Improving Compliance in the Three Waters: The Tension between the Rule of Law, Accountability and Subsidiarity

Abstract

Levels of compliance, monitoring and enforcement in the three waters – drinking water, wastewater and stormwater – are inadequate. The three waters review is currently investigating options to improve compliance because of the serious adverse effects a lack of compliance has on our health, environment and economy. This paper argues that the current governance arrangements are the reason for the lack of compliance. Local authorities lack the resources to ensure compliance is consistent and effective which undermines equality before the law and congruence. The various actors and forums also dilute accountability. While theoretically subsidiarity and accountability justify the current arrangements, in practice local responsibility for compliance is inefficient and there is weak democratic accountability. This paper analyses the inherent tension between the rule of law, accountability and subsidiarity by assessing the compatibility of these principles with possible changes to the three waters governance arrangements to improve compliance. Despite the difficulty in resolving the tension, this paper argues that changes to the governance arrangements must be made and suggests that a mixture of compliance responsibilities at central and regional governance levels would be most appropriate.