Chapter
6:
Legal
and
regulatory
framework
of
Water
Law
The
Water
Law
seems
to
be
an
articulation
of
the
concept
of
concession
and
regulation
by
the
State
used
in
the
Constitution.
The
Water
Law
recognizes
traditional
diversion
rights
and
usufruct
rights
as
mentioned
above
in
Article
29.
The
Water
Law
recognizes
the
traditional
usufruct
and
diversion
rights,
provided
that
the
water
is
45
used
for
irrigation
in
connection
with
agricultural
land.
From
these
provisions
it
can
be
concluded
that
for
all
46
existing
diversion
and
usufruct
rights,
which
do
no
stem
from
custom,
registration
with
NWRA
is
required.
6.5.2
Selling
and
transferring
of
diversion
and
usufruct
rights
Shari’ah
employs
two
lines
of
thought
when
it
comes
to
the
transfer
of
diversion
and
usufruct
rights.
The
first
line
of
reasoning
regards
water
rights
as
connected
to
the
land.
Therefore,
water
rights
are
inseparable
from
the
land
and
transfers
automatically
with
the
land
through
sale
or
inheritance.
The
second
line
of
reasoning
argues
that
water
rights
and
land
can
be
separated
and
that
transfer
of
water
rights
should
be
expressly
stipulated
when
land
is
sold.
If
this
is
not
done,
the
water
rights
remain
with
the
previous
landowner.
The
Civil
Code
also
allowed
for
the
ownership
of
land
and
the
ownership
of
what
is
above
and
beneath
to
be
separated
through
agreement,
as
long
as
it
does
not
contradict
other
legal
provisions.
The
Civil
Code
does
define
irrigation
rights
as
servitude
to
the
land,
making
this
right
inheritable
and
transferable
by
selling
land.
Article
1363
makes
this
explicit
by
stating:
‘the
right
to
use
water
for
irrigation
is
an
appurtenance
to
the
land,
so
that
it
is
inheritable
but
it
cannot
be
sold
separately
from
the
land,
neither
may
it
be
rented
or
donated,
except
in
accordance
with
a
recognized
custom.’
For
this
reason
all
water
rights,
besides
irrigation
rights,
are
transferable
and
use
can
be
separated
from
the
land.
As
mentioned,
the
Water
Law
allows
traditional
water
diversion
rights
except
water
rights
for
irrigation
47
purposes,
obtained
before
the
entry
into
force
of
the
Water
Law,
to
continue
without
application
of
the
law.
These
rights
are
also
servitudes
of
the
land,
which
means
that
according
to
the
Law
they
are
compulsorily
48
transferred
with
the
land.
The
Water
Law
does
impose
the
condition
that
the
purposes
and
amount
of
water
use
for
irrigation
may
not
be
changed
in
order
to
be
preserved
and
the
rights
are
subject
to
registration
with
the
State.
All
other
diversion
and
usufruct
rights
to,
for
instance
groundwater,
whether
obtained
prior
to
or
after
the
issuance
of
the
Water
Law
are
subject
to
licensing
and
regulation
by
the
State.
The
terms
and
conditions
of
these
rights
are
specified
and
assigned
by
the
relevant
Authority
as
explained
in
article
37:
‘[n]o
beneficiary
may
exceed
the
quantities
or
surpass
the
purposes
of
use
or
any
other
technical
specifications
identified
by
the
Authority.
The
beneficiaries
should
strictly
observe
the
conditions
in
the
license.
The
bylaws
49
provide
the
necessary
details
for
implementing
these
conditions.’
As
the
Water
Law
implicitly
recognizes
that
water
is
owned
by
the
State
as
stated
in
the
Constitution
and
that
usufruct
rights
are
administered
by
the
State,
usufruct
rights
can
only
be
obtained
by
individuals
and
entities
based
on
the
provision
of
the
Law.
Accordingly,
it
can
be
assumed
that
usufruct
rights
cannot
be
sold
or
transferred
without
regulation
and
monitoring
by
the