Governance of a Transboundary River: The Rhône [1st ed.] 978-3-030-19553-3;978-3-030-19554-0

Table of contents :
Front Matter ....Pages i-xvii
Exploring the Rhône’s Transboundary Governance (Christian Bréthaut, Géraldine Pflieger)....Pages 1-38
Types of Transboundary Water Governance Regimes: Theoretical Discussion and Empirical Illustrations (Christian Bréthaut, Géraldine Pflieger)....Pages 39-70
From Local Uses Towards Appropriation by Nation-States (Christian Bréthaut, Géraldine Pflieger)....Pages 71-100
The Emergence of Multifunctional Transboundary River Governance (Christian Bréthaut, Géraldine Pflieger)....Pages 101-173
Towards Integration? Looking for a Best-Fit Governance Model (Christian Bréthaut, Géraldine Pflieger)....Pages 175-210
The Franco-Swiss Rhône: A Story of Twists, Turns and Tensions (Christian Bréthaut, Géraldine Pflieger)....Pages 211-217

Citation preview

PALGRAVE STUDIES IN WATER GOVERNANCE

GOVERNANCE OF A TRANSBOUNDARY RIVER:

The Rhône

CHRISTIAN BRÉTHAUT AND GÉRALDINE PFLIEGER

Palgrave Studies in Water Governance: Policy and Practice

Series Editors Christian Bréthaut Institute for Environmental Sciences University of Geneva Geneva, Switzerland Thomas Bolognesi GEDT University of Geneva Geneva, Switzerland

Looking at the issues of water governance through the perspective of the social sciences, books in the Palgrave Series in Water Governance take a global perspective on one of the key challenges facing society today: the sustainable development of water resources and services for all. In stepping away from the traditional focus on engineering and geophysics, the series takes a more holistic approach to both consolidate and generate knowledge that can be applied to different geographic areas by academics, researchers, policy-makers, NGOs and the private sector. This series emphasises the link between science and policy through considering water as a socio-ecological system, water and the territoriality of action, and water in the context of conflicts. More information about this series at http://www.palgrave.com/gp/series/15054

Christian Bréthaut · Géraldine Pflieger

Governance of a Transboundary River The Rhône

Christian Bréthaut UNESCO Chair on hydropolitics Institute for Environmental Sciences University of Geneva Geneva, Switzerland

Géraldine Pflieger UNESCO Chair on hydropolitics Institute for Environmental Sciences University of Geneva Geneva, Switzerland

Palgrave Studies in Water Governance: Policy and Practice ISBN 978-3-030-19553-3 ISBN 978-3-030-19554-0  (eBook) https://doi.org/10.1007/978-3-030-19554-0 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: Borges Samuel/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

This book results from the research project GOUVRHONE: Hydropower and the Regulation of the River Rhone in a Context of Climate Change and Electricity Liberalization, carried out at the Institute for Environmental Sciences at the University of Geneva between 2012 and 2015. All data collection for the project was funded by our partners: the Federal Office for the Environment (Switzerland), the Rhône-Alpes Regional Directorate for Environment, Spatial Development and Housing (DREAL Rhône-Alpes, France), the Rhône-Mediterranean and Corsica Water Agency, the Canton of Geneva, the Canton of Vaud, Services Industriels de Genève and Électricité de France—whom we thank most warmly. We are also indebted to our interviewees for their precious time and the valuable information they provided: thank you all. This book has benefited from the help of colleagues who have played a key role. We would like to thank Laura Turley, Research Assistant in the University of Geneva’s Institute for Environmental Sciences, who took part in the final edit, and Stéphane Kluser, Communications Officer at the Geneva Water Hub/University of Geneva, for his help with maps and in finalizing the figures. Finally, many thanks to Karen George for her collaborative approach and the high quality of her translation. v

Praise for Governance of a Transboundary River

“This book addresses a less well-understood yet crucially important case of conflict and cooperation over shared water resources in Europe and provides highly relevant insights for scholars and water managers alike in Europe and beyond.” —Dr. Susanne Schmeier, IHE Delft Institute for Water Education, The Netherlands “Governance of a Transboundary River is an assiduously researched and expertly argued intervention into the deepening conversations over transboundary river governance in a rapidly changing world. Using Europe’s highly altered Rhône River basin as the central case, the authors combine an insightful framework for assessing current and future transboundary governance arrangements with a keen understanding of how these arrangements have been shaped through a variety of historical processes. Bréthaut and Pflieger are especially deft at bringing to life the biophysical processes—sediment transport and river flows— that are too often neglected in accounts of transboundary governance. Scholars and practitioners of water-society relations will discover a vii

viii      Praise for Governance of a Transboundary River

compelling account of the contemporary state of transboundary river governance and, more importantly, the various governance futures that hinge on the complex circumstances and decisions of today.” —Prof. Chris Sneddon, Dartmouth College, USA “How does the transboundary governance of a river like the Rhône change over time? Bréthaut and Pflieger’s book answers this question in a highly systematic fashion, covering the socio-history, assessment of regulatory and coordinating mechanisms as well as analysis of key actors. This book, Governance of a Transboundary River: The Rhône is the most up-to-date and comprehensive analysis of the institutional features of this complex river with increasingly competing interests of water use. In addition, Bréthaut and Pflieger reveal intriguing paradoxes of the current governance, which is fragmented and polycentric. Their suggestions of possible future trajectories will be of great interest to all those keen to find alternatives and see more diverse ways of doing transboundary river governance.” —Dr. Naho Mirumachi, King’s College London, UK

Contents

1 Exploring the Rhône’s Transboundary Governance 1 1.1 General Introduction and Guiding Questions 1 1.2 Transboundary River Governance: A ‘State of the Art’ Review 9 1.3 Theoretical Gaps 21 1.4 The Rhône River: Specifics of the Case 23 1.5 The Methodology and Stages of Our Research 28 Bibliography 34 2 Types of Transboundary Water Governance Regimes: Theoretical Discussion and Empirical Illustrations 39 2.1 The Integrated Management Regime 40 2.2 The Monofunctional Management Regime 42 2.3 The Polycentric Management Regime 45 2.4 Hybrid Regimes and Mosaics 47 2.5 An Illustrative Case Study for Each Regime 47 Bibliography 67

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x      Contents

3 From Local Uses Towards Appropriation by Nation-States 71 3.1 Phase 1: The Rhône as a Tool of Production (1870–1970) 73 3.2 Phase 2: The End of the Hydropower Monopoly (1970–2000) 82 3.3 Phase 3: The Emergence of Complex Rivalries (2000 and Ongoing) 87 3.4 The Historical Development of the Rhône’s Governance Architectures 94 Bibliography 98 4 The Emergence of Multifunctional Transboundary River Governance 101 4.1 Hydropower and Upstream–Downstream Co-ordination 103 4.2 Lake Geneva Water Levels and Management of the Rhône’s Flow-Rates 120 4.3 Abstraction of Water for Productive Use 131 4.4 Sediment Management and Ecological Restoration 148 4.5 Conclusion 170 Bibliography 172 5 Towards Integration? Looking for a Best-Fit Governance Model 175 5.1 Assessing the Current Governance System 176 5.2 The Main Trends in the Hydrological Regime of the Rhône Between Lake Geneva and Lyon 186 5.3 Exploring Integrated, Monofunctional and Polycentric Scenarios 189 5.4 Integrated Governance Scenarios 191 5.5 Monofunctional Governance Scenarios 193 5.6 Co-ordinated Polycentric Governance Scenarios 195 5.7 Comparing the Governance Scenarios with the Results of Analysis of Current Rhône Governance 198 5.8 Identifying Capacities Inherent in the Different Scenarios 202

Contents      xi

5.9 Conclusion 208 Bibliography 210 6 The Franco-Swiss Rhône: A Story of Twists, Turns and Tensions 211 6.1 Analysing Empirical Evidence in Depth and Identifying Generic Analytical Variables 212 6.2 Contributing to Possible Research Directions 214 6.3 Looking Forward, Making Decisions… 216 Bibliography 217

Acronyms

ASN Nuclear Safety Authority (France) BC Hydro British Columbia Hydro and Power Authority (Canada) CIPEL International Commission for the Protection of Lake Geneva CNR Compagnie Nationale du Rhône (France) COGEFE Geneva Committee for the Use of the Eco–Electricity Fund (Switzerland) DETEC Federal Department of the Environment, Transport, Energy and Communications (Switzerland) DREAL Regional Directorate for Environment, Spatial Development and Housing (France) EDC European Danube Commission EDF Electricité de France EIA Environmental Impact Assessment EU European Union FRS Functional Regulatory Space GCN Lake Geneva General Navigation Company GWP Global Water Partnership ICPDR International Commission for the Protection of the Danube River ICPR International Commission for the Protection of the Rhine xiii

xiv      Acronyms

ICREP International Commission on the Use of Rhône Waters for Energy Production (fictional) IDC International Danube Commission IPCC Intergovernmental Panel on Climate Change IWRM Integrated Water Resource Management LFH Federal Law on the Use of Water Power (Switzerland) MASL Metres Above Sea Level MISE Inter-Agency Water Task Force (France) NPP Nuclear Power Plant NWD United States Army Corps of Engineers Northwestern Division OFEN Federal Office of Energy (Switzerland) OFEV Federal Office for the Environment (Switzerland) ONEMA National Agency for Water Biodiversity (France) PLAGEPOMI Migratory Fish Management Plan RBO River Basin Organization SAGE Local Water Development and Management Schemes (Schéma d’Aménagement et de Gestion des Eaux) SDAGE Water Development and Management Master Plans (Schéma directeur d’aménagement et de gestion des eaux) SFMCP SA Société des Forces Motrices de Chancy-Pougny SIG Services Industriels de Genève SMHAR Rhône Regional Association for Agricultural Water Use SWOT Strengths, Weaknesses, Opportunities and Threats UN United Nations UNECE United Nations Economic Commission for Europe VUE Association for Environmentally Sound Energy WFD Water Framework Directive (European Union) WPA Water Protection Act (Switzerland) WPO Water Protection Ordinance (Switzerland) ZABR Zone Atelier Bassin du Rhône

List of Figures

Fig. 1.1 Fig. 1.2 Fig. 1.3 Fig. 2.1 Fig. 2.2 Fig. 2.3 Fig. 3.1

Analytical framework, by chapter 4 Map of the Rhône Basin 29 Analysis of the Rhône’s governance—themes 31 Map of the Rhine Basin 49 Map of the Danube Basin 56 Map of the Columbia River Basin 63 The Rhone River Basin and its main hydropower infrastructure from Geneva to Lyon (adapted from Storck, Pochat, & Tosello, 2004; UNEP 2007) 74 Fig. 3.2 Stages of public policy on surface water in Switzerland 76 Fig. 4.1 Map of the water infrastructure surrounding Lake Geneva 105 Fig. 4.2 Governance structure of the Rhône in Switzerland (OFEN: Swiss Federal Office of Energy; OFEV: Federal Office for the Environment; SIG: Services Industriels de Genève; SFMCP: Société des Forces Motrices de Chancy-Pougny) 105

xv

xvi       List of Figures

Fig. 4.3 Governance structure of the Rhône in France (ASN: Nuclear Safety Authority; DREAL: Regional Directorate for Environment, Spatial Development and Housing, RhôneAlpes Region; SFMCP: Société des Forces Motrices de Chancy-Pougny; SIG: Services Industriels de Genève; CNR: Compagnie Nationale du Rhône; EDF: Electricité de France) Fig. 4.4 Overall structure of the binational Rhône governance Fig. 4.5 Regulating Lake Geneva water levels—normal year Fig. 4.6 Regulating Lake Geneva water levels—leap year Fig. 4.7 Regulatory framework for sediment flushing operations: France and Switzerland Fig. 5.1 A range of integrated scenarios Fig. 5.2 A range of monofunctional scenarios Fig. 5.3 A range of co-ordinated polycentric scenarios Fig. 5.4 Governance capacities of the different scenarios Fig. 5.5 Capacities to integrate environmental stewardship

107 117 123 123 151 191 193 196 203 204

List of Tables

Table 1.1 List of the main rivalries along the Rhône, from Lake Geneva to Lyon Table 3.1 Arenas of participation in managing the Rhône Table 3.2 Evolution of the Rhône River’s governance from 1870 to present

32 89 95

xvii

1 Exploring the Rhône’s Transboundary Governance

1.1 General Introduction and Guiding Questions 1.1.1 A Case of Emerging Tension in the Context of Environmental Change: Sediment Flushing Operations Between France and Switzerland In June 2012, the Verbois Dam was at the heart of the debate on developments in the transboundary governance of the River Rhône. Situated in the Swiss Canton of Geneva and upstream of the border with France, its reservoir had gradually been filled by sediment carried down from the Alps by the Arve, a tributary of the Rhône. This had reduced the efficiency of hydropower generation and increased the flood risk on the outskirts of Geneva. Now, following a nine-year period without any flushing events, a new draining operation was scheduled. On the Swiss side, this operation was viewed with equanimity; French stakeholders, on the other hand, expressed serious concerns. Public authorities, hydropower operators, environmentalists and the © The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_1

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2     C. Bréthaut and G. Pflieger

fishing community feared that a wave of sediments would descend, with devastating effects. The 2003 operation was still fresh in everyone’s minds—an event which had had significant impacts, not only on fish populations, riverbanks and nesting birds, but also on key infrastructure such as discharge-regulation outlets, drinking water well fields and the nearby Bugey Nuclear Power Plant. The impact of this event led, in 2006, to a moratorium being declared on the previous practice of threeyearly flushing events. This allowed breathing-space to assess the overall situation, to gain a better understanding of the effect of these sedimentary discharges and to give more careful consideration to the way such operations are implemented. The draining operation scheduled for 2012 took place in a tense atmosphere, with two significant factors making the procedure particularly complex. First, the operation would discharge a particularly large quantity of sediment. After nine years without any draining, the volume of materials to be discharged would clearly be much greater than that accumulated over a three-year period. Secondly, introduction of the European Union’s Water Framework Directive1 in 2003 meant that the administrative procedure for conducting such operations on the French section of the river had become much more demanding, even though Switzerland is not a member of the European Union. In the EU, and therefore in France, there is now a requirement that the application for authorization must be submitted to a public enquiry. These new administrative constraints had prolonged proceedings to the point where the draining operation scheduled for 2010 had to be deferred to June 2012. The operation was launched on 6 June 2012. On that date, the French operator triggered supporting measures for sediment transport, including lowering the water level in the downstream Génissiat Dam in anticipation of the flushing of the upstream Verbois Dam. Flushing began on 9 June, and the water level in the Swiss reservoir fell. On the morning of 10 June, the first materials from the Verbois Dam arrived in France. Weather conditions were not favourable, and heavy rainfall in a number of areas took several tributaries of the Rhône to flood levels. In 12000/60/EC,

adopted on 23 October 2000.

1  Exploring the Rhône’s Transboundary Governance     3

addition, work being undertaken on the Verbois Dam during the draining operation fell behind schedule. These different factors combined to considerably complicate the operation, leading to difficulties in controlling the concentration of suspended solids in the river. On 11 June, the Compagnie Nationale du Rhône (CNR), the French Rhône operator, announced peak concentrations of 40 g per litre on the stretch of the river from the Verbois Dam to the Génissiat Dam. These levels were in clear breach of French legislation and led to increased fish mortality. The operation came to an end on 22 June, allowing the Verbois Dam to return to appropriate fill levels: this ensured the safety of the upstream riverside population and re-established the dam’s electricity generation capacities. The unfavourable weather conditions, the particularly large quantities of material to be discharged and the technical restrictions relating to the works being carried out on the Dam meant that the flushing operation had not been easy. It left those involved feeling somewhat ambivalent. The operation had required—and achieved in the beginning—increased Franco-Swiss collaboration throughout the authorization procedure, but had then gone forward in a climate of tension between the different stakeholders. The French and the Swiss sides had both undertaken precautionary fishing before the operation, and fish removal during flushing had helped to preserve the fish population. Nevertheless, end-to-end control of suspended solid loads was not achieved, and this failure resulted in high concentrations that would arouse heated disputes between operators in the months to come. Our research began as this operation drew to a close. The value of investigating the conditions of change in transboundary river governance was highlighted by the complexity of the procedure, the involvement of multiple stakeholders and of institutions at various levels and the existence of a crisis situation—a major ‘focusing event’ (Birkland, 2004). Investigation in a broad academic perspective is particularly relevant in this context, since governance of the Rhône is not based on any framework agreement, any commission or other international mechanism dedicated to transboundary co-ordination of different uses of the river.

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1.1.2 Objectives: From Scholarly Investigation to Support for Decision-Makers Taking historical and present-day governance of the River Rhône as our core material, our central objective is to understand the practical ways in which stakeholders have co-ordinated their management of this watercourse, which flows between France and Switzerland, and since the early twentieth century. We aim to move away from norms of ‘good governance’ of the river towards an assessment of successive models of transboundary governance, the conditions in which they have existed and their effects on co-ordination of uses and regulation of rivalries. Three sets of objectives and research questions provide the guiding framework of this book (see Fig. 1.1). Question 1: What are the conditions in which transboundary governance of the river has changed, and how has such governance evolved in terms of boundaries and scales of intervention and institutional designs for co-ordinating and including different uses? Our first objective is to understand the system, to identify the different actors involved in managing the river and to analyse the legal relationships between the various parties. This provides us with a better grasp of the bases and robustness of interactions between the actors and of the ways these change over time, in a social and historical perspective. Our approach will also involve an assessment of methods for co-­ordinating different uses and for regulating rivalries while still preserving the

Fig. 1.1  Analytical framework, by chapter

1  Exploring the Rhône’s Transboundary Governance     5

Rhône’s environmental integrity and its ecosystem, particularly in relation to electricity generation—which has been and remains the predominant form of exploitation of the river. We have set ourselves this objective in order to respond to a knowledge gap, since there has been little academic study of the Rhône’s governance aiming to assess the practical conditions to which it is subject. To date, there has been no in-depth research and systematic analysis, in a transnational perspective, of methods of complex governance of different uses and the resulting upstream–downstream rivalries. From a methodological point of view, our central hypothesis is that changes in methods of governance (in terms of institutional design, and of scale and scope) are primarily responses to shifts in the main uses and functions of the river, resulting from political, economic and social change in society. One example of this is that the need to take environmental goals into account is now one of the central factors influencing changes in methods of governance of major rivers, which had long centred solely on exploiting hydropower potential or on flood defences. Uses, users and rivalries arising from resource use create conditions that are key to the emergence of one system of water governance over another. The way in which changes in resource use are taken into account in the governance system may also vary according to the local political context and to the physical condition of the resources, in terms of quantity, quality or seasonality. In this context, we develop a set of questions based on a single overarching one: How has transboundary governance of the river evolved, and under what conditions? The sub questions are: a. How have shifts in the river’s major functions, uses and rivalries led to re-examination of modes of governance of the river? b. How have models of governance succeeded one another over time and according to what processes of socio-environmental and political change? c. What are the major changes in these models in terms of scale of governance and scope of intervention? How have the geographical boundaries of governance systems been defined and how have they changed?

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d. In the absence of a consolidated framework on transboundary governance, how has the river been managed between two countries while still retaining a significant ability to regulate rivalries? Specific responses to this set of questions will be the focus of Chapters 3 and 4, which analyse the construction of transboundary governance and its historical and social shifts. Question 2: What are the strengths and weaknesses, from a comparative point of view, of different modes of transboundary governance of the Rhône? Our second objective is tackled through a comparative analysis of various systems of transboundary governance, which take many different practical forms. These may reflect not only the problems encountered by an entire region but also the political choices and strategic directions defined by the actors. Thus, we note significant contrasts between the various solutions adopted, ranging from—for example—a highly integrated system of co-operation based on unanimous decision-making to the establishment of essentially sectoral systems dedicated to the smooth running of a limited number of activities (hydropower generation; navigation; irrigation). In order to assess governance from this point of view, we compare various cases of transboundary river governance and alternative models of river governance (see Chapter 2). The crux of our second question is: What are the strengths and weaknesses of modes of transboundary governance of the Rhône? We break this down as follows: a. When we observe the practical management of the river from various different angles, tensions are revealed: how good is the governance system at co-ordinating stakeholders to resolve them? b. How does a loosely co-ordinated, polycentric governance system stand up to changes in the uses, rivalries and conditions of the resource, in particular those brought about by climate change? c. Is the current structure of governance robust enough to withstand changes to the Rhône’s water regimes? How adaptable is it?

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d. Where is it situated in comparison to other models of governance that can be observed in other transboundary contexts? Specific responses to these questions will be given in Chapters 4 and 5, based on our analysis of a decade of observations of the mode of transboundary governance of the Rhône and the strengths and weaknesses of the current governance model. Question 3: What are the possible scenarios for change in river governance and for new forms of transboundary co-ordination between political actors and users of the river? Our third objective is to evaluate possible futures in the light of international experience in transboundary management of water resources and to outline how these different methods of governance could develop. This means looking at Rhône management structures and co-ordination methods through the prism of the existing literature and the practices of the various actors. This third objective also involves furthering our investigation into the capacities of governance structures to withstand change and to adapt in the face of significant external crises, such as the focusing event described in our introduction. In particular, we put forward a number of different scenarios, offering a broad range of tools for thinking about the ultimate future of transboundary management, for tackling the complexities of real-life issues and for imagining not only the type of institutions that could be implemented but also the territoriality of their activities. We are especially interested in scenarios for change in the Rhône’s governance that represent responses to environmental and climate change as well as to changes in exploitation of the river as an environmental and energy production resource, against a background of possible shifts in national economic and political contexts. These environmental, political and socio-economic changes of context are key factors in the development of the uses and use rivalries that underpin the explanatory diagram presented above. Our investigation into scenarios for change in the Rhône’s governance will be approached via a number of supplementary questions:

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a. How might the configurations of actors and different agreements change if the flow-rates of the Rhône were repeatedly subject to extreme situations (both flood levels and low water levels)? b. How can emerging tensions and use rivalries be regulated? What management mechanisms should be established in this kind of situation? c. What would happen to the Rhône’s governance if there were a shift in the configuration of actors? What would be the effects of any alteration to the contract terms for a French Rhône concession? d. If hydropower were to lose or gain importance within the energy mix at the European scale, not only in France but also in Switzerland, what would happen to management of the Rhône? e. What would be the effects of a change to Swiss or French national energy policy? These questions will be addressed in Chapters 5 and 6, where we develop various scenarios for transboundary governance of the Rhône.

1.1.3 Structure This book is made up of six chapters. This chapter defines our analytical framework. A review of the literature analysing transboundary governance systems is followed by a presentation of the specifics of our Rhône River case study and our methodology. Chapter 2 highlights the variety of modes of governance of transboundary rivers, presenting an overview of these different systems through three main models: the integrated regime, the monofunctional regime and the polycentric regime. Each model is illustrated through a case study enabling us to map the main trends up to now. Chapter 3 offers a historical analysis of transboundary governance of the Rhône, concentrating in particular on changes in the balance of power between different sectors of activity, on the changing position of the State and on changes to territoriality. Chapter 4 focuses on inter-sectoral relationships. Here we make use of four different analytical studies to help us gain an understanding of the system: hydropower

1  Exploring the Rhône’s Transboundary Governance     9

and upstream–downstream co-ordination; water levels in Lake Geneva and management of Rhône flow-rates; sediment management and revitalization; and abstraction of water for use in production. Chapter 5 gives a picture of the governance mechanisms in play and evaluates their strengths and weaknesses. This presentation of current systems is followed by an exploration of different institutional arrangements that might respond effectively to the main challenges identified and could be integrated into the different governance models conceptualized in Chapter 2. Chapter 5 also presents various scenarios for change in governance of the river in the light of the socio-economic, political and environmental changes which could be facing the Rhône, looking at these in terms of the issues already highlighted in Chapter 4. We examine several scenarios in detail, comparing their capacities to co-ordinate uses in a transboundary context and to meet the need to adapt to environmental change. Finally, Chapter 6 returns to the theoretical gaps identified in the introduction and reflects on the growing involvement of non-State actors in the system. On the basis of lessons drawn from our work, we conclude by presenting some future research avenues that could improve understanding of the transboundary management of water resources.

1.2 Transboundary River Governance: A ‘State of the Art’ Review This section will describe how this book relates to existing research and to other theoretical streams. Then we will explain the originality of the book’s approach and why we consider that our use of the Rhône as empirical material adds value to our research. Many challenges face those who manage and attempt to co-ordinate international rivers, including interaction between distinct national regulatory frameworks as well as the relative power determined by the upstream or downstream position of the riparian countries involved and the multitude of strongly interdependent uses along the river. Given these factors, international collaboration efforts may not only give rise

10     C. Bréthaut and G. Pflieger

to cooperative dynamics but could lead to heightened tensions that must be understood and regulated. These issues have provided a great deal of material for academic research on transboundary water management, across various scales and covering a wide variety of contexts. In attempting to reach a better understanding of this complex picture, much previous research has been characterized by a strongly interdisciplinary perspective, applying historical, legal, economic, political, international relations and even sociological analyses. We do not intend to give an exhaustive account here: rather, this section simply outlines the key trends in academic research into questions of transboundary water management. Six main bodies of work can be identified. Section 1.2.1 analyses legal instruments that frame transboundary water management. The 1990s were marked by the adoption of major international treaties for managing transboundary waters. Many scholars have subsequently adopted a legal perspective not only on the substantive content of these texts but also in analysing their effects on the ground. The second body of research (Sect. 1.2.2) adopts an institutionalist perspective, aiming to understand the problems of collective action raised by transboundary management of a river and to analyse the solutions that might be provided by institutions. Work in this area focuses in particular on the nature and functioning of international commissions, and the literature examines questions relating to the adaptability, robustness and institutional flexibility of these organizations. We approach this aspect of transboundary water governance through the prism of a number of different governance models—the integrated regime, the monofunctional regime and the polycentric regime. Following on from this institutionalist perspective, the third area of research (Sect. 1.2.3) looks at the issue of scalar change in the governance of major river basins in general and of transboundary rivers in particular. Numerous works have focused on the implementation of governance systems and on the territoriality of State action in addressing transboundary river management. Here we can cite the political geography literature on questions of scale (Brenner, 2004; Sayre, 2005; Swyngedouw, 2004) or analysis of the State’s actions and roles at different levels (Reed & Bruyneel, 2010). Indeed, the issues of scale and

1  Exploring the Rhône’s Transboundary Governance     11

boundaries are crucial when it comes to a collective problem and the way this problem is managed at multiple levels (Carter & Smith, 2008; Enderlein, Walti, & Zurn, 2010). It is also relevant to mention the institutional economics literature that focuses on the methods available for managing collective action problems (Ostrom, 1990, 2010) and on consideration of alternative governance mechanisms alongside State action or private sector involvement. From this perspective, various authors have shown that different types of governance regimes and territorialities may be applied to transboundary river management. The fourth research area (Sect. 1.2.4) analyses the economic scope of co-operation. In many cases, upstream–downstream collaboration is a great source of benefits, exchanges and economic dynamism at the regional scale. On the other hand, lack of co-ordination can lead to the emergence of tensions, linked not only to economic inefficiency resulting from failure to co-ordinate but also to—sometimes significant— asymmetries between the benefits derived by some stakeholders from exploiting the resource and the costs borne by others. Against this background, research has focused in particular on the advantages that might accrue from increased co-operation. It has also looked at the potential economic consequences of putting into effect various decisions about the transboundary management of international rivers. The fifth research area (Sect. 1.2.5) brings together literature that focuses on questions of co-operation in transboundary water management, looking both at the advantages that can be derived from international rivers and at the asymmetries that can exist between upstream and downstream, between countries with varying degrees of hegemony. This research has demonstrated the deeply political nature of transboundary interactions and the nuances that may exist between situations at the two extremes of conflict and co-operation—situations which increasingly often lead to the emergence of tensions, ‘cold conflicts’ or profoundly asymmetric co-operation. Finally, the last research tendency (Sect. 1.2.6) is to engage in a broader analysis of ‘governance’, along with a wider appreciation of the diverse actors involved in transboundary river governance. Moving away from analysis focused solely on the role of States, researchers have investigated the role of non-State actors and their influence in

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defining upstream–downstream co-ordination strategies. From this wider angle, they have looked at participatory processes, at the role of non-governmental organizations or at the influence of co-operation agencies and international financial providers. The following six sub-sections give an overview of some contributions to these different bodies of research, presenting a selection of the literature generally regarded as seminal or which we see as particularly relevant to our own investigation.

1.2.1 International Law: An Analysis of Transboundary Water Management As Boisson de Chazournes (2008) points out, water has increasingly been drawn into a particular legal framework, tending towards the adoption of a systemic socio-ecological perspective on various political, economic and social issues. Management of this system is currently considered to tend towards integration, even towards viewing the resource holistically—conciliating between productive uses of the resource, environmental issues and the inclusion of the largest possible number of decision-making processes. Transboundary waters have not escaped this momentum, with a trend towards integration and towards harmonization of international treaties. In his historical analysis of legislative regimes for the management of international rivers between 1815 and 2008, Malla (2008) shows how these trends have been reflected in international treaties, with the adoption of substantive principles such as equitable resource use, sustainable development, the need to do no harm, the application of the ‘polluter pays’ principle and the duty to compensate for any damage. At the moment, from a legal point of view, transboundary water management relies on two different instruments that promote these principles: the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 17 March 1992 (the 1992 Helsinki Water Convention) and the UN Convention on the Law of the Non-Navigational Uses of International Watercourses of 21 May

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1997 (the UN Watercourses Convention). As Rieu-Clarke and Kinna (2014) show, these two conventions contain some very similar provisions. Since both instruments are open to all States around the world, McCaffrey (2014) questions whether they are compatible—indeed, whether or not States should consider ratifying both of them. From a similar standpoint, Rieu‐Clarke and Kinna (2014) emphasize that the two documents are not contradictory: they go so far as to promote the two conventions as a package that offers a response to the challenges of transboundary water management everywhere in the world. They demonstrate strong similarities but also differences, notably from the point of view of environmental concerns (1992 Helsinki Water Convention, Article 2) or the obligation not to cause significant harm to other watercourse States (UN Watercourses Convention, Article 7). Finally, they reflect on the risks linked to weak co-ordination between the two documents, which could lead to confusion among States signing up to the conventions.

1.2.2 The Institutionalist Perspective on Transboundary Water Management Complementary to the analysis of regulatory frameworks, another research area looks at questions of implementation and of the functioning of institutions (here we can mention Bernauer, 2002; Gerlak, 2004; Hooper, 2006; McCaffrey, 2014; Raadgever, Mostert, Kranz, Interwies, & Timmerman, 2008, among others), seeking to understand how far the management of international rivers represents a collective action problem and questioning what solutions might be introduced at the institutional level (Marty, 2001). In this context, Raadgever et al. (2008) attempt to define the nature of a transboundary management regime. They identify its key features: actor networks, a legal framework, public policies, information management, financing and co-operation processes. Schmeier, Gerlak, and Blumstein (2015) focus on the governance frameworks that have actually been adopted for the management of international rivers, and from these they attempt to

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define a River Basin Organization (RBO). They identify various different indicators relating to issues of internationalization, institutionalization and governance. While Schmeier et al. (2015) attempt to produce a standardized definition and then observe the ways that organizations deviate from it, Lautze, Wegerich, Kazbekov, and Yakubov (2013) focus on the wide variety of forms that an RBO can take. They organize their case studies into three categories: international committees, commissions and river basin authorities. They also show that these different forms must be viewed as different options for defining a made-to-measure system that suits the particular features of each case. This central point dovetails with our intention to demonstrate that, in practice, there is a broad range of models for transboundary water resource governance. This will be the focus of Chapter 2, where we aim to highlight institutional pluralism and the diversity of governance models, in terms that might have been used by Ostrom (2010). In particular, our analysis will demonstrate that it is possible to identify three main types of governance models at the international level: (1) the integrated regime, which is based on a central, multifunctional institution that is integrated at a sufficiently broad scale to enable effective regulation of the great majority of use rivalries—whether these are rivalries between similar or very different uses; (2) the monofunctional regime, which focuses on regulating homogeneous rivalries between similar uses—for example, in order to optimize upstream–downstream hydropower production—at a vast scale (the whole river basin) or a more limited scale (a sub-basin); (3) the polycentric regime, which is based on different institutions that are interlinked to varying extents: their functions may overlay and overlap one another, supporting very different ways of co-ordinating resource uses within the same river basin. These mechanisms may be applied at a very broad scale or a much smaller one, and may aim to regulate one or more rivalries between very similar or, in contrast, very different uses. The polycentric regime is characterized by institutional proliferation, which may make it appear more complex than the integrated regime and is based on a bottom-up approach to transboundary governance.

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1.2.3 The Politics of Scale and the Territoriality of Transboundary River Basin Governance Since the end of the 1990s, the concept of Integrated Water Resource Management or Integrated River Basin Management has spread worldwide under the auspices of the United Nations, NGOs and natural scientists. It aims to (1) emphasize the need for co-ordination between users sharing the same water resource and (2) promote the basin scale as the relevant scale for managing resources. These aims were also integrated into the EU Water Framework Directive of 2000, which establishes the river basin scale as the best model (Barraqué, 2001; Graefe, 2011). In this context of deep-rooted institutional reform, several authors (Moss, 2003; Moss & Newig, 2010; Ostrom, 2010; Ostrom, Burger, Field, Norgaard, & Policansky, 1999; Young, 2002) emphasize a number of problems linked to the disconnect between the different spaces involved and the multiple institutional levels at which environmental problems occur. These problems are related (1) to the scalar misfit between environmental processes and institutional levels, (2) to the scalar interplay (both vertically and horizontally) between the different institutional levels that could be responsible for managing a resource (Young, 2002), and (3) to the reconfiguration of scalar levels of responsibilities, linked to rescaling processes and to the emergence of new institutional levels dedicated to resource management (Nahrath, Varone, & Gerber, 2009), such as river basin institutions (Moss, 2003). The main contribution of authors working on the ‘politics of scale’ (Brenner, 2004; Swyngedouw, 2004) is that they highlight the strategic use of scales made by public actors and the potential impact of rescaling processes on the interplay between pre-existing institutions and on the distribution of power. Situating our work within the theoretical and empirical discussion of environmental rescaling processes, in this book we propose a more detailed discussion of the territorialities and geographical boundaries of river basin governance. We define the notion of territoriality as a controlled, bounded area, providing a means of reifying power (Sack, 1983). This conceptualization is very close to the Weberian principle

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of monopoly of the legitimate use of physical force. In this context, ‘territoriality’ is understood as delineating a governance arena for the political regulation of a resource domain that is subject to rules and to governance by one or more authorities. Although institutional territories traditionally correspond to political jurisdictions, such as a municipality or a nation, in the environmental field specific territories are often created to tackle one or more specific problems or functions (Hooghe & Marks, 2003). This trend is not new, since these kinds of functional territories have been identified for many decades in the fields of urban water and urban transport management (Eichenberger & Frey, 1999; Ostrom, 1988), as well as in river basin management. However, some authors consider the creation of these kinds of territories to be a worldwide phenomenon. In this context (Varone, Nahrath, Aubin, & Gerber, 2013) have recently developed the concept of the functional regulatory space (FRS), defining it as ‘a regulatory space, which politically emerges in order to tackle, support or solve problems concerning several policy sectors in different institutional territories and at different levels of government. […] An FRS is thus a space of inextricable rivalries and conflicts, as well as a space of political regulation of these rivalries. The more or less clearly territorialized boundaries of this field of power are defined by the stakeholders who act independently from the boundaries of the pre-existing sector-specific policies and institutional territories’. Although the authors use the term ‘space’ rather than ‘territory’, their definition makes it clear that they regard the FRS as a political space of regulation with territorialized boundaries—which is close to the definition of ‘territoriality’ given above. In this book, we propose going a step further than the generic definition of a FRS (or territory) put forward by (Varone et al., 2013), as we wish to analyse how different territorialities of river basin management are constructed by stakeholders and how they can compete. The perimeters of FRSs are defined by actors, whether public or private, to resolve rivalries over the production of goods or services. Thus, in the domain of water, it is possible to observe a variety of functional spaces for the production of different goods and services (for example, regulation of flood management or of hydropower). For the governance of a river, different types of territorialities can be observed in practice, varying over

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space and time and including or excluding different kind of uses and users. To be more precise, the spatial delineation of an FRS in the field of river basin management could vary strongly along three dimensions. First, the type and the number of regulated functions could vary from one type of space to another, and this would impact the boundaries of river management structures. Governance structures at river basin scale are often first and foremost ‘the product of successful attempts to resolve collective action problems among users of a single type (e.g. urban, industrial, agricultural)’ (Scholz & Stiftel, 2005, p. 1). However, the promotion of a more integrated form of river basin management inevitably requires arbitration between heterogeneous uses (Gerber, Knoepfel, Nahrath, & Varone, 2009; Kissling-Näf & Kuks, 2004) as well as between different and overlapping resource domains, such as water and energy or water and agriculture (Hering & Ingold, 2012). In this context, new governance institutions might be needed in order to tackle multifunctional problems that arise between different types of resource uses, which Scholz and Stiftel (2005) call ‘second-order conflicts’. Secondly, the problem of defining boundaries implies the need to decide which users to include in or exclude from the governance structure (Hering & Ingold, 2012; Nahrath, Gerber, Knoepfel, & Bréthaut, 2012). This is different from the issue of multifunctionality discussed in the previous paragraph, because an FRS can manage different kinds of homogeneous or heterogeneous rivalries without opening up the governance structure to a wide variety of users and stakeholders. River basin management represents a good case for studying how boundaries as well as physical position (that is, location in the upstream or downstream part of a river basin) are contested in order to define new areas and arenas of co-ordination (Lebel, Garden, & Imamura, 2005). Thirdly, the delineation of functional spaces for management of a river can vary with the degree of involvement of public authorities. As noted by Ostrom (1990), problems of co-ordination around common-pool resources can be solved through institutions for collective action, organized directly by and between users or appropriators (Keohane & Ostrom, 1994). However, the governance of large rivers

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and especially transboundary rivers requires the involvement of different national jurisdictions with differentiated property rights and public policies for the management of their water resources. For Carter and Smith (2008), political jurisdictions and their boundaries need to be studied carefully because they have a strong impact on the way that public actors interpret these limits with regard to their self-interest: they help to define the issues, as well as the nature of policy interventions and instruments. If we are to understand the degree of autonomy (that is, the actors’ room for manoeuvre to implement their own rules and instruments) and the degree of legitimacy of an FRS (that is, to what extent an FRS benefits from its own political legitimacy with regard to existing public jurisdictions and policy), then it is crucial to take into account the boundaries of political jurisdictions—especially national frontiers—and the degree of involvement of different levels of public authorities. In a nutshell, and as we hypothesized in Part I, these contributions to the literature allow us to assess the close relationship between the spatial boundaries of a governance structure and the uses and users included in or excluded from its regulatory provisions and governance mechanisms.

1.2.4 Economic Analysis of International Rivers The economic perspective offers a view that complements the investigation of transboundary water management, shedding light on issues of international co-operation and identifying the economic mechanisms that enable the balance of interests between upstream and downstream countries to be taken into account (or not). Several different approaches can be distinguished. Bhaduri and Barbier (2008) focus in particular on the notion of altruism between countries, with a form of transboundary water management that can help to achieve good political relationships between States. They analyse mechanisms for building this ‘political altruism’ and offer a model of the conditions necessary for equitable resource-sharing. Adopting a similar perspective, Arjoon, Tilmant, and Herrmann (2016) focus on the concept of benefit sharing in a transboundary context, developed on the basis of empirical data

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drawn from a case study of the Nile River Basin. They propose a methodology for distributing the benefits of cooperative management and consider how resource uses might be quantified and monetized. Finally, Garrick (2015) compares the institutional designs of three river basins (the Colorado, the Columbia and the Murray-Darling), focusing on the measurement of transaction costs. In a broader perspective than the other approaches mentioned in this section, he questions transboundary arrangements from a point of view that is both institutionalist and global, and looks at the costs associated with collective action.

1.2.5 Conflict and the Dynamics of Upstream–Downstream Co-operation The politico-economic situations of riparian States and their capacities for negotiation differ widely: power relations along the river fluctuate and involve actors who dominate to varying degrees, tensions that are heightened to varying extents, and more or less successful dynamics of co-operation. This body of academic research focuses largely on the position of riparian countries and their interactions. Most prominent are several works that analyse mechanisms for co-operation between upstream and downstream stakeholders (Conca, 2006; Priscoli, 1996; Priscoli & Wolf, 2009). In particular, Sadoff and Grey (2002) identify the benefits that can arise from co-operation on international rivers. They describe different aspects: benefits for the river and its ecosystems, benefits derived from productive use of the river water, a reduction in the costs linked to damage caused by the river, even benefits that go beyond river management—for example, economic co-operation at the regional scale. Tackling notions not only of co-operation but also of conflict, Zeitoun and Mirumachi (2008) highlight the complexity of the continuum that exists between the two. From their perspective, it is increasingly important to understand the stakeholders’ interactions and to undertake a close analysis of methods of co-operation. This means, in particular, trying to gain an understanding of how riparian countries coexist, how they take joint action and how they are able to adjust

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asymmetries of power and politico-economic inequalities between upstream and downstream countries. Here too, it is important to avoid hasty simplification. As Dinar (2009) shows, the river basin’s ‘hegemon’ does not necessarily always succeed in imposing its agenda, and weaker riparian States may also influence the hydropolitical context. Daoudy (2009) shares this point of view and emphasizes—counter-intuitively— that asymmetry of power can also favour interaction between parties whose capacities for negotiation within the configuration of actors differ widely. Warner and Zawahri (2012) also interrogate these notions of conflict and co-operation, stressing the ambiguity and diversity that can exist. In particular, they mention gaps in the literature, which focuses mostly on interactions between States. Logically, therefore, any relevant analysis of transboundary issues should also involve an analysis of the non-State actor, leading to a better understanding of the dynamics at play and a more complete spectrum of possible situations between conflict and/or co-operation.

1.2.6 A Focus on Non-State Actors Taking a similar stance to that of Warner and Zawahri (2012), several publications have attempted to move away from an analytical perspective that focuses solely on the role of States (Bréthaut, 2016; Bréthaut & Pflieger, 2015; Dore, Lebel, & Molle, 2012; Sneddon & Fox, 2006; Suhardiman & Giordano, 2012; Suhardiman, Giordano, & Molle, 2012). The focus of these scholars is on transboundary water management through the prism of non-State actors and their influence on upstream–downstream co-ordination issues. Suhardiman and Giordano (2012) note that States play an important role in defining governance structures and, to a degree, in defining actors’ informal interactions. However, they also point out that insufficient work has been done from this perspective. Not only a multitude of potential actors but also intra-state dynamics and their influence on the decision-making process have escaped the research net (Suhardiman et al., 2012). To remedy this, these authors call for ‘process-focused’ analysis—an approach which would allow for the integration of a significant number of actors,

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leading to a better understanding of how decisions are made at the national level and of why States collaborate. It is an approach that lines up well with critical hydropolitics developed by, for example, Sneddon and Fox (2006). Their work involves the analysis of complex interactions between different scales of conflict, viewing the river basin as a set of socio-ecological dynamics and analysing its construction as an object of co-operation. The idea of critical hydropolitics also raises questions of scale, as tackled by Lebel et al. (2005), whose work on the Mekong focuses on analysing power relations between the different actors and on the construction of discourse from a dynamic, multilevel point of view. The present authors have also previously turned their attention towards non-State actors and the multilevel approach in a historical analysis (Bréthaut & Pflieger, 2015). This focused on the shifting territoriality of the Rhône’s governance from a system limited to a number of uses driven by States with a national agenda, to one that included an increasing number of recognized uses and, finally, to the emergence of a new perspective at the river basin scale. Taking the role of nonState actors into account also raises the question of public participation in transboundary river governance. On that score, we should look not only at the extent of such participation but also at its nature and how far it successfully integrates the various categories of users into the decision-making process (Bréthaut, 2016).

1.3 Theoretical Gaps Next, we highlight several elements that we feel are lacking in the current research and explain how this book will attempt to fill those theoretical gaps. First, we intend to look in more depth at practical methods of transboundary governance of river basins, from an analytical perspective rather than a normative one. It seems to be the case that a significant part of the literature on river basin governance adopts a normative stance, evaluating good governance conditions and promoting the integrated management model alone as the ‘one best way’. In contrast,

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and in the tradition of Elinor Ostrom, we intend first to paint a picture of the variety of institutional mechanisms for co-ordinating uses at the river basin scale, and then to offer an analysis that recognizes the importance of this diversity. Secondly, we would like to take an approach that focuses on the stakeholders, on their co-ordination problems, their strategies and the institutional mechanisms they adopt to achieve better co-ordination of their resource uses and to mediate their rivalries. Any study of the boundaries and scales of actions and co-ordination mechanisms must be based primarily on the actors’ strategies and interests and on the social construction of these interests. We would like to go further in this direction, adopting an analytical perspective based on the social construction of scales and institutions, inspired by historical neo-institutionalism (Hall & Gingerich, 2009). This kind of actor-centred approach will allow us to cross-fertilize lessons drawn from the literature on changes of scale and territoriality of action with an economic analysis of transboundary rivers and asymmetrical interactions between stakeholders, all within a political economy perspective. From a third standpoint, we believe that this actor-centred approach should be based on socio-historical perspectives, which have been somewhat lacking up to now. Indeed, it seems to us that analyses of transboundary river basin governance require more historical substance if they are to assess institutional trajectories effectively. Therefore we have sought inspiration not only from the work of contemporary political sociologists on governance processes in operation, but also from the literature on the history of water resource governance. A historical perspective is vital to any in-depth analysis of institutional transformation and rescaling processes, and also fosters an understanding of the long-term dynamics that lead, in particular, to the diversification and intensification of uses and to a commensurate increase in the number of State and non-State actors involved in transboundary river governance. We view this perspective as a prerequisite to any effective assessment of long-term change in transboundary river governance. Fourthly—while remaining rooted in a socio-historical perspective focused on the actors and the plurality of institutions—we offer some international comparisons which will illuminate the diversity of

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the different models available, their properties and their strengths and weaknesses. Finally, instead of taking a normative approach which would point out a single path to good governance of transboundary rivers, we offer a number of alternative routes. Here again, we aim to highlight the diversity of possible trajectories for strengthening governance and resolving rivalries. Past studies have not done enough to broaden the spectrum of scenarios for development, and we believe an approach that is not only actor-centred but also recognizes the importance of the entire range of institutions will help promote varied scenarios for the transformation of water resources governance.

1.4 The Rhône River: Specifics of the Case The Rhône is characterized by a multitude of hydrological regimes, yielding many different hydrological profiles as it flows between its 1624 km course—from the mountain stream that leaves the Rhône Glacier, through its broad meanders across the Camargue Plain, then down to its mouth on the Mediterranean Sea. The Rhône is subject to many different types of uses—and therefore to a significant number of socio-economic concerns. It is, in effect, a production tool—notably for irrigation, drinking water, supplying water to industry, cooling nuclear power plants and, of course, generating hydropower. Largely canalized since the early twentieth century, the Rhône is now highly anthropized. This has led to major changes in the natural state of the river, through variations in water flows and water temperature. Therefore management of the Rhône is a particularly complex matter. The river is characterized not only by a variety of different hydrological conditions and by multiple uses but also by its transboundary nature, which involves co-ordination mechanisms and potentially opposing regulatory frameworks. The contemporary picture is further complicated by new challenges that must be faced by all those involved in managing the river. First and foremost are the challenges of climate change, which seems to be leading to increasingly frequent and recurrent extreme

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events (extremely low water levels and severe flood levels), to the melting of glaciers and to major changes in water regimes (Beniston, Stoffel, & Hill, 2011). We also cannot fail to mention that several European governments are initiating an ‘energy transition’: this means a shift in energy policy, moving from a primary focus on nuclear energy and fossil fuels towards the declared aim of employing an increasing spread of renewable energy sources—mainly, hydropower. In this context, Rhône management policies, which are strongly influenced by the presence of a hydropower sector making a growing contribution to this energy mix, are seeing some profound changes. This is particularly true because these management policies are affected by the growing impact of environmental policies, including the influence of European Union legislation or of the way in which the Swiss Waters Protection Act (WPA) and the related Waters Protection Ordinance (WPO) have evolved.2 Finally, the river’s hydropower generation capacity is also feeling the impacts of European electricity market liberalization. As far as France is concerned, management of the river is entirely delegated to private operators, and the Rhône Concession is coming to its end. This deadline is accompanied by the emergence of a degree of instability, related to possible changes in the configuration of actors in charge of both the quantitative and the qualitative management of the river and to the form that a future concession contract for the river might take.

1.4.1 The Legal Framework for Managing the Rhône From its source in the Swiss Canton of Valais to the Mediterranean Sea, the Rhône crosses various political and institutional borders. In this context, the regulatory framework for managing the Rhône has evolved in distinct ways in different regions. This section aims to give a picture of this framework, focusing both on the main characteristics of the system for legal recognition of ownership and on the public policies in

2Loi fédérale sur la protection des eaux du 24 janvier 1991 [Federal Law on the Protection of Waters of 24 January 1991], RS 814.20; Ordonnance fédérale sur la protection des eaux du 28 octobre 1998 [Waters Protection Ordinance of 28 October 1998], RS 814.201.

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effect. This overview of the legal provisions will consider internal and legal trends at each of the different levels concerned: Swiss federal provisions, provisions in the different Swiss cantons, EU provisions and French national provisions. We first present the system of property rights on the Rhône and then move on to review the main public policies concerned.

1.4.2 Property Rights In Switzerland, the legal system is characterized by the implementation of the principles of executive federalism and of subsidiarity, which mean that the application of Swiss legislation depends on a system where each level of government exercises a series of specific powers and responsibilities in implementing laws (Article 5 of the Swiss Constitution, Classified Compilation Ref. No: RS 101; Article 664(3) of the Swiss Civil Code, RS 210). Therefore the cantons play an important role, in that they have to ensure the consistent application of laws made at federal level while also adapting them to specific local circumstances. The various cantonal-level provisions emphasize that the public authorities have direct responsibility for all major rivers or water sources: in the case of the Rhône, this means the Cantons of Valais, Vaud and Geneva. In Valais, the Rhône is part of the public domain. It is managed by the Canton, as laid down by Article 163(1) of the Valais Cantonal Law implementing the Civil Code (RS 211.1). In this respect, the Rhône is an exception—at the canton level, most surface waters are managed directly by the municipalities. The situation is similar in Vaud, where Article 138a of the Law introducing the Swiss Civil Code into the Canton of Vaud (RS 211.01) provides that rivers and riverbeds fall within the public domain. Finally, Article 5(1) of the Geneva Cantonal Water Law (L2 05) states that watercourses are part of the cantonal or municipal public domain. Article 5(2) goes on to specify that stretches of river which form part of the national border (such as the Rhône) fall within the cantonal public domain.

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France has a legal regime of water ownership based primarily on three pieces of legislation: the Law of 8 April 1898, the Law of 16 December 1964 and the Law of 3 January 1992 (the 1992 Water Act). Although public policymakers have introduced many restrictions on use rights through successive amendments to these laws, the main principles introduced by the 1898 Law still remain in force. Sangare and Larrue (2004, p. 208) highlight several major characteristics of this ownership regime. First, small watercourses cannot be subject to titles of ownership (whether public or private): only the riverbeds can be owned. The private owner of a riverbank and the associated riverbed merely has a right to use the river water and is bound by an obligation to care for it. Where a riverbed belongs to the central State, use rights belong to the State and the river is defined as public property: this applies to the Rhône, which is thus categorized as a river in the public domain. Secondly, the State has priority rights over state-built canals, to the riverbeds in the public domain (such as the Rhône) and to lakes through which public rivers flow. Thirdly, private ownership of low-flow springs (covered by Article 643 of the Civil Code), rainwater, entirely privately owned riverbeds, most canals, some ponds, and groundwater can be recognized. However, the above-mentioned 1964 Law and the Fishing Act of 1984 introduced public policies making the use rights associated with most such titles of private ownership subject to numerous constraints. Thus, for example, the use of groundwater is covered by legal provisions imposing a large number of restrictions. Since the 1992 Water Act was introduced, water has been ‘part of the common heritage of the Nation’ (Article L210-1, Environmental Code), in the same way as ‘sites and landscapes, air quality, plant and animal species, and the biological diversity and balance to which they contribute’ (Article L110-1, Environmental Code). Therefore water resources in general and the Rhône in particular are regarded as a common good: they do not belong to anyone and they can be used by everyone (Article 714, Civil Code). Responsibility for managing the river falls to the State. The State can decide to delegate the management of the river to an operator through a time-limited concession contract— as is the case with the Rhône. However, the State remains responsible for guaranteeing good management of the river.

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1.4.3 Public Policies: The Main Trends Management of the Rhône depends directly or indirectly on a large number of public policies. Although we do not intend to embark on an exhaustive description of these different provisions, one aim of this chapter is to present the main trends and public policies affecting the regulatory frameworks concerned. In Switzerland, the legal framework governing water resources is strongly influenced by the trend towards integration and greening of policies in the water sector (Varone, Reynard, Kissling-Näf, & Mauch, 2002). The current phase, which began in 1991 with the most recent (third) revision of the WPA, marks an important turn in Swiss water policy. Since then, legislative objectives have focused on protecting the resource, not only from a qualitative point of view but also in regards to quantity, thus aiming to develop a more integrated water policy design. In France, water policy derives from provisions established both at the European Union scale and at the French national scale. Since the 2000s, the national regulatory framework has been strongly influenced by the Water Framework Directive (2000/60/EC), which aims to define an overarching policy for managing water at the European Union scale. This is designed to improve the general state of water resources by reducing pollution, protecting the environment, improving the state of aquatic ecosystems and preventing and/or reducing the possible adverse effects of rising water levels, flooding (see also Directive 2007/60/EC) and droughts. The Water Framework Directive set out management plans to achieve its objectives by 2015, with the aim of achieving ‘good status’ for water bodies of water throughout the European Union. The Directive’s provisions are transposed into Member States’ national legal frameworks. In France, the relevant management plans are SDAGEs: Water Development and Management Master Plans (Schéma directeur d’aménagement et de gestion des eaux), which are public policy instruments designed to regulate action across an entire river basin: the Rhône, for instance, is governed by the Rhône-Mediterranean Basin SDAGE.

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Water management is also governed by the various French Legal Codes. Of particular note in this context is the Environmental Code, which integrated the 1992 Water Act and is intended to ensure the protection, enhancement and development of water as a resource in the general interest. This is a similar trend to that of the Swiss regulatory framework, with the principles of protecting aquatic ecosystems and both quality and quantity of water resources at its heart. The amended Water Act should allow France to achieve the objectives set by the European Union, through new instruments such as SDAGEs and SAGEs: Local Water Development and Management Schemes (Schéma d’Aménagement et de Gestion des Eaux) and by strengthening obligations to collect and treat wastewater or to establish protection areas for drinking water abstraction.

1.5 The Methodology and Stages of Our Research From 2012 to 2015, we undertook an academic study of the functioning of the transboundary Rhône governance, in a project involving the French and Swiss national and regional authorities as well as two major operators within the governance system: Services Industriels de Genève (SIG), which manages all Swiss hydroelectric dams, and Electricité de France (EDF), which runs all the operational nuclear power plants along the river and hydropower plants on many Rhône tributaries. As a consequence of the Verbois Dam flushing operation (described at the beginning of this chapter) and of the tensions resulting from it, CNR, which operates most of the French dams along the Rhône, decided not to take part in the research project: for researchers investigating the way that governance systems function and analysing existing power relations, this decision was both symbolic and revealing. We studied the stretch of the river from Lake Geneva to Lyon (Fig. 1.2)—a geographical area that enabled us to take a practical look at the main research issues relating to river governance.

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Fig. 1.2  Map of the Rhône Basin

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1.5.1 Stage I: Socio-Historical Analysis of Transboundary Governance The first stage of our study was based on archival research, recording all the agreements affecting transboundary governance of the River Rhône and of Lake Geneva and the origins of these different agreements. We relied on grey literature and all the available historical documents about the Rhône, its drainage network and how it has been regulated, as well as on scholarly environmental histories of the river (Pritchard, 2011).

1.5.2 Stage II: Analysing Methods of Governance Through Various Themes At the next stage, our comparative assessment of governance models and their practical scope was structured on two different analytical scales. First, we looked at governance of various activities along the Rhône, then we grouped these into several different categories of use rivalries. Where Stage I of our research had enabled us to delineate our study subject in order to tackle it in successive stages, at Stage II we identified particular focal points and embarked on an empirical analysis of how governance models are expressed in practice. In order to achieve a coherent analysis of the river’s chief sectors of activity and problems, we looked at the Rhône’s governance from five main angles developed in Chapter 4 (Fig. 1.3). These different thematic directions represented our approach to the key issues involved in managing the Rhône and were based on the main heterogeneous and homogeneous rivalries that exist around use of the river, since each set of issues requires implementation of appropriate co-ordination mechanisms. In addition, all these activities are potentially affected not only by climate change impacts and variations in water flows but also by any change in the configuration of actors that is intrinsic to liberalization of the European electricity market or to the effects of a possible energy transition. We selected a number of use rivalries that seem to us to convey some of the major issues for governance of the river (symptomatic rivalries).

1  Exploring the Rhône’s Transboundary Governance     31

Fig. 1.3  Analysis of the Rhône’s governance—themes

Through this approach, we hoped to obtain a picture of all the river’s main uses and users. Our first step was to identify the main rivalries that exist along the Rhône, from Lake Geneva to the city of Lyon. During this first phase, we aimed to gain the most comprehensive picture possible, based on our theoretical analysis and our empirical observations. We then selected those rivalries that we regarded as the most emblematic and as having contributed most to the overall balance of the governance structure (see Table 1.1). This choice enabled us to develop representative case studies from different angles, while still achieving an overarching analysis of the Rhône’s governance. Chapter 4 will present our study of the regulation of these main rivalries, which are listed in Table 1.1. Investigating this group of rivalries provides a number of case studies that act as sub-analyses of the Rhône’s governance. Looking at the different regulatory mechanisms involved and then drawing together issues relating to the main uses and users around the Rhône will provide an overall picture of governance of the river. In other words, our aim in approaching these rivalries through case studies is to investigate the regulatory mechanisms implemented (or not) by the actors. Rivalries of varying degrees of intensity are analysed on the basis that they reflect the river management mechanisms functioning among different categories of uses and users. Our work focuses on these different points of tension, how they have come into being and

32     C. Bréthaut and G. Pflieger Table 1.1  List of the main rivalries along the Rhône, from Lake Geneva to Lyon Themes for analysis

Rivalry ref. no.

Hydropower and 1 upstream–downstream co-ordination Lake Geneva 2a water levels and 2b Rhône flow—rates Sediment management

3a 3b

Abstraction of water

Regulation of extremes and upstream–downstream co-ordination

3c 3d 3e 4a 4b 4c 5a 5b

Rivalry analysed Homogeneous upstream–downstream rivalries over hydropower Lake Geneva water levels vs. hydropower Lake Geneva water levels vs. nuclear power Nuclear power generation vs. hydropower Hydropower vs. drinking water production Nuclear power vs. ecosystems Ecosystems vs. hydropower Hydropower vs. fishing Drinking water vs. industrial activities Industrial activities vs. irrigation Irrigation vs. hydropower Rhône flood levels vs. Lake Geneva water levels Rhône flood levels vs. hydropower

the mechanisms that regulate them—allowing us to analyse the Rhône’s governance, its legal basis and the relative robustness and/or flexibility of different methods of river governance. We based our research approach on documentary analyses and on a series of interviews with key actors: policymakers, river users, technical staff or administrative personnel in charge of managing the river, representatives of operators and businesses with working links to the Rhône, and representatives of NGOs in the field of environmental protection.

1.5.3 Stage III: Evaluating Strengths and Weaknesses The different points of tension, laid out in Table 1.1, allowed us to identify the characteristics, strengths and weaknesses of the Rhône’s governance and then to move on to compare its structure to the different possible ways in which water management regimes can develop.

1  Exploring the Rhône’s Transboundary Governance     33

Finally, analysis of these rivalries will allow us to assess the state of governance of the Rhône and to identify the Strengths, Weaknesses, Opportunities and Threats (the ‘SWOT’ model) of the river’s current system. Chapter 5 will present this SWOT analysis, looking in particular at how far the current governance structure is flexible or robust and to what extent it demonstrates significant adaptability. This is the diagnosis which we then apply to different climate scenarios, aiming to evaluate the effects of these on the regulatory mechanisms currently in operation. This stage of our work investigates the flexibility and legal robustness of agreements as well as their capacity to adapt to major changes in water availability. It also identifies the strengths and weaknesses of the governance structure and offers an analysis of the risks inherent in rising, falling or constant mean flows along the river. Both our diagnosis and the SWOT analysis were shared with the key actors interviewed at Stage II of the research. We interviewed them a second time in order to obtain feedback on our analyses and additional information.

1.5.4 Stage IV: Generating Scenarios for the Development of River Governance The last stage of our research protocol involved identifying scenarios for the development of institutional mechanisms for transboundary governance of the Rhône. These scenarios represented several possible future situations and the conditions for movement towards different institutional designs for the governance of the river. We generated these scenarios on the basis of the analysis of international experience in transboundary governance and management of water resources presented in Chapter 2. We converted these different international models into scientific models or ‘ideal-types’ of governance, establishing the outline structures of the trajectories we predicted for various situations in which current trends change. These trajectories provide a significant contrast to the scenario we project on the basis that current trends in the Rhône’s governance will continue. Our methodology for generating the various scenarios will be described in more detail at the beginning of Chapter 6.

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Our ultimate aim is to generate scenarios that outline the institutional mechanisms capable of adapting to various types of change. At the same time, we want to highlight not only the strengths and weaknesses of the institutional options on offer to decision-makers, but also their richness and diversity. We returned to our funding partners and the key actors involved in the project to present these different scenarios, drawing on their expertise to help us refine them and assess their viability.

Bibliography Arjoon, D., Tilmant, A., & Herrmann, M. (2016). Sharing water and benefits in transboundary river basins. Hydrology and Earth System Sciences, 20(6), 2135–2150. Barraqué, B. (2001). Les enjeux de la Directive cadre sur l’eau de l’Union Européenne. Flux, 4, 70–75. Beniston, M., Stoffel, M., & Hill, M. (2011). Impacts of climatic change on water and natural hazards in the Alps: Can current water governance cope with future challenges? Examples from the European “ACQWA” project. Environmental Science & Policy, 14(7), 734–743. Bernauer, T. (2002). Explaining success and failure in international river management. Aquatic Sciences, 64(1), 1–19. Bhaduri, A., & Barbier, E. B. (2008). Political altruism of transboundary water sharing. The BE Journal of Economic Analysis & Policy, 8(1). Birkland, T. A. (2004). “The world changed today”: Agenda-setting and policy change in the wake of the September 11 terrorist attacks. Review of Policy Research, 21(2), 179–200. Boisson de Chazournes, L. (2008). Le droit international de l’eau: tendances récentes. Anuário Brasileiro de Direito Internacional, 2, 137–150. Brenner, N. (2004). New state spaces: Urban governance and the rescaling of statehood. New York: Oxford University Press. Bréthaut, C. (2016). River management and stakeholders’ participation: The case of the Rhone River, a fragmented institutional setting. Environmental Policy and Governance, 26(4), 292–305. Bréthaut, C., & Pflieger, G. (2015). The shifting territorialities of the Rhone River’s transboundary governance: A historical analysis of the evolution

1  Exploring the Rhône’s Transboundary Governance     35

of the functions, uses and spatiality of river basin governance. Regional Environmental Change, 15(3), 549–558. Carter, C., & Smith, A. (2008). Revitalizing public policy approaches to the EU: ‘Territorial institutionalism’, fisheries and wine. Journal of European Public Policy, 15(2), 263–281. Conca, K. (2006). Governing water: Contentious transnational politics and global institution building. Cambridge and London: MIT Press. Daoudy, M. (2009). Asymmetric power: Negotiating water in the Euphrates and Tigris. International Negotiation, 14(2), 361–391. Dinar, S. (2009). Power asymmetry and negotiations in international river basins. International Negotiation, 14(2), 329–360. Dore, J., Lebel, L., & Molle, F. (2012). A framework for analysing transboundary water governance complexes, illustrated in the Mekong Region. Journal of Hydrology, 466, 23–36. Eichenberger, R., & Frey, B. (1999). The new democratic federalism for Europe: functional, overlapping and competing jurisdiction. Cheltenham: Edward Elgar. Enderlein, H., Walti, S., & Zurn, M. (2010). Handbook on multi-level governance. Cheltenham: Edward Elgar. Garrick, D. E. (2015). Water allocation in rivers under pressure: Water trading, transaction costs and transboundary governance in the Western US and Australia. Cheltenham: Edward Elgar. Gerber, J.-D., Knoepfel, P., Nahrath, S., & Varone, F. (2009). Institutional resource regimes: Towards sustainability through the combination of property-rights theory and policy analysis. Ecological Economics, 68(3), 798–809. https://doi.org/10.1016/j.ecolecon.2008.06.013. Gerlak, A. K. (2004). Strengthening river basin institutions: The global environment facility and the Danube River Basin. Water Resources Research, 40(8), 1–10. Graefe, O. (2011). River basins as new environmental regions? The depolitization of water management. Procedia-Social and Behavioral Sciences, 14, 24–27. Hall, P. A., & Gingerich, D. W. (2009). Varieties of capitalism and institutional complementarities in the political economy: An empirical analysis. British Journal of Political Science, 39(3), 449–482. Hering, J. G., & Ingold, K. M. (2012). Water resources management: What should be integrated? Science, 336(6086), 1234–1235.

36     C. Bréthaut and G. Pflieger

Hooghe, L., & Marks, G. (2003). Unraveling the central state, but how? Types of multi-level governance. American Political Science Review, 97(2), 233–243. Hooper, B. (2006). Integrated water resources management: Governance, best practice, and research challenges. Journal of Contemporary Water Research and Education, 135(1), 1–7. Keohane, R. O., & Ostrom, E. (1994). Local commons and global interdependence. London: Sage. Kissling-Näf, I., & Kuks, S. (2004). The evolution of national water regimes in Europe. Dodrecht: Kluwer Academic. Lautze, J., Wegerich, K., Kazbekov, J., & Yakubov, M. (2013). International river basin organizations: Variation, options and insights. Water International, 38(1), 30–42. Lebel, L., Garden, P., & Imamura, M. (2005). The politics of scale, position, and place in the governance of water resources in the Mekong region. Ecology and Society, 10(2), 8. Malla, K. (2008). Current state of the law of international watercourses: Progress and paradigm shifts 1815–2008. Nordic Journal of International Law, 77(4), 461–508. Marty, F. (2001). Managing international rivers: Problems, politics and institutions. Food and Agriculture Organization of the United Nations (p. 409). Bern: Peter Lang Publishing. McCaffrey, S. C. (2014). International water cooperation in the 21st century: Recent developments in the law of international watercourses. Review of European, Comparative and International Environmental Law, 23(1), 4–14. Moss, T. (2003). Solving problems of ‘fit’ at the expense of problems of ‘interplay’? The spatial reorganisation of water management following the EU water framework Directive. In How institutions change (pp. 85–121). Wiesbaden: Springer. Moss, T., & Newig, J. (2010). Multilevel water governance and problems of scale: Setting the stage for a broader debate. Berlin: Springer. Nahrath, S., Gerber, J.-D., Knoepfel, P., & Bréthaut, C. (2012). Gestion des ressources communes en Suisse: le rôle des institutions de gestion communautaire dans les politiques environnementales et d’aménagement du territoire. Natures Sciences Sociétés, 20(1), 39–51. Nahrath, S., Varone, F., & Gerber, J.-D. (2009). Les espaces fonctionnels: nouveau référentiel de la gestion durable des ressources? VertigO-La Revue Électronique En Sciences de l’environnement, 9(1).

1  Exploring the Rhône’s Transboundary Governance     37

Ostrom, E. (1988). Institutional arrangements and the commons dilemma. In V. Ostrom, D. Feeny, & H. Picht (Eds.), Rethinking institutional analysis and development: Issues, alternatives, and choices (pp. 103–139). San Francisco: Institute for Contemporary Studies Press. Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge: Cambridge University Press. Retrieved from http://dx.doi.org/10.1017/CBO9780511807763. Ostrom, E. (2010). Beyond markets and states: Polycentric governance of complex economic systems. Transnational Corporations Review, 2(2), 1–12. Ostrom, E., Burger, J., Field, C. B., Norgaard, R. B., & Policansky, D. (1999). Revisiting the commons: Local lessons, global challenges. Science, 284(5412), 278–282. Priscoli, J. D. (1996). Conflict resoultion, collaboration and management in international and regional water resources issues. Belvoir, VA: Army Engineer Institute for Water Resources. Priscoli, J. D., & Wolf, A. T. (2009). Managing and transforming water conflicts. Cambridge: Cambridge University Press. Pritchard, S. B. (2011). Confluence: The nature of technology and the remaking of the Rhône (Vol. 172). Cambridge: Harvard University Press. Raadgever, G. T., Mostert, E., Kranz, N., Interwies, E., & Timmerman, J. G. (2008). Assessing management regimes in transboundary river basins: Do they support adaptive management? Ecology and Society, 13(1), 14. Reed, M. G., & Bruyneel, S. (2010). Rescaling environmental governance, rethinking the state: A three-dimensional review. Progress in Human Geography, 34(5), 646–653. Rieu-Clarke, A., & Kinna, R. (2014). Can two global UN water conventions effectively co-exist? Making the case for a ‘package approach’ to support institutional coordination. Review of European, Comparative and International Environmental Law, 23(1), 15–31. Sack, R. D. (1983). Human territoriality: A theory. Annals of the Association of American Geographers, 73(1), 55–74. Sadoff, C. W., & Grey, D. (2002). Beyond the river: The benefits of cooperation on international rivers. Water Policy, 4(5), 389–403. Sangare, I., & Larrue, C. (2004). The evolution of the water regime in France. In The evolution of national water regimes in Europe (pp. 187–234). Dordrecht: Springer. Sayre, N. F. (2005). Ecological and geographical scale: Parallels and potential for integration. Progress in Human Geography, 29(3), 276–290.

38     C. Bréthaut and G. Pflieger

Schmeier, S., Gerlak, A. K., & Blumstein, S. (2015). Governing international river and lake basins: Clearing the muddy waters of international river basin organizations. Scholz, J. T., & Stiftel, B. (2005). Introduction: The challenges of adaptive governance. Adaptive governance and water conflict: New institutions for collaborative planning (pp. 1–11). Washington, DC: Resources for the Future. Sneddon, C., & Fox, C. (2006). Rethinking transboundary waters: A critical hydropolitics of the Mekong basin. Political Geography, 25(2), 181–202. Suhardiman, D., & Giordano, M. (2012). Process-focused analysis in transboundary water governance research. International Environmental Agreements: Politics, Law and Economics, 12(3), 299–308. Suhardiman, D., Giordano, M., & Molle, F. (2012). Scalar disconnect: The logic of transboundary water governance in the Mekong. Society and Natural Resources, 25(6), 572–586. Swyngedouw, E. (2004). Scaled geographies: Nature, place, and the politics of scale. In Scale and geographic inquiry: Nature, society, and method (pp. 129– 153). Oxford and Cambridge: Blackwell. Varone, F., Nahrath, S., Aubin, D., & Gerber, J.-D. (2013). Functional regulatory spaces. Policy Sciences, 46(4), 311–333. Varone, F., Reynard, E., Kissling-Näf, I., & Mauch, C. (2002). Institutional resource regimes: The case of water management in Switzerland. Integrated Assessment, 3(1), 78–94. Warner, J., & Zawahri, N. (2012). Hegemony and asymmetry: Multiplechessboard games on transboundary rivers. International Environmental Agreements: Politics, Law and Economics, 12(3), 215–229. Young, O. R. (2002). The institutional dimensions of environmental change: Fit, interplay, and scale. Cambridge: MIT press. Zeitoun, M., & Mirumachi, N. (2008). Transboundary water interaction I: Reconsidering conflict and cooperation. International Environmental Agreements: Politics, Law and Economics, 8(4), 297.

2 Types of Transboundary Water Governance Regimes: Theoretical Discussion and Empirical Illustrations

Transboundary water governance makes use of a plethora of organizations and institutions in the name of resource co-ordination. These modes of organization result from negotiations and from power relations, and they can be expressed in different forms and different scales. They illustrate the diversity of views of the very nature of a river and they take practical form at different scales, sometimes sector-based, sometimes more broadly inclusive. In this chapter, we move on to conceptualize several transboundary water governance regimes, through perspectives that are both theoretical and empirical. We use the term ‘regime’ to denote a form of governance that has been stabilized through the introduction of a certain degree of coherence (Enjolras, 2008). A regime includes specific regulatory frameworks, objectives, instruments and actors. In practice, it may be implemented at various territorial scales that do not necessarily correspond to administrative and political boundaries. Thus a regime represents a context for action rather than the action itself (Bressers & de Boer, 2013). Regime analysis enables us to capture the different perceptions, the different priorities set and the different uses linked to a river. © The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_2

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We describe three governance regimes: integrated, monofunctional and polycentric. In brief, the integrated regime reflects a holistic governance strategy, viewing the river basin as the reference unit for river management. The multifunctional regime looks at transboundary water governance through the prism of the various branches of activity involved. Finally, the polycentric regime is characterized by the simultaneous operation of a large number of decision-making arenas within a loosely co-ordinated system. These three regimes should be viewed as ideal-types (Weber, 1997), whether as simplifications of social reality or as theoretical sketches. On this basis, they may either coexist— overlapping, supplementary, mutually enriching—or succeed one another over time. Reviewing them here will shed light on our subsequent analysis of transboundary governance of the Rhône and so will allow us to interpret not only the historical trajectories of transboundary governance of the river but also its current issues. The chapter is structured around two approaches. First we describe the different types of governance regimes (integrated, monofunctional and polycentric) and their theoretical bases. We then illustrate each regime through a representative case study, looking in turn at three rivers: the Rhine, representing the integrated regime; the Danube, for the monofunctional regime; and the Columbia River as an illustration of the polycentric regime.

2.1 The Integrated Management Regime Since the resurgence of the concept of ‘Integrated Water Resources Management’ (Global Water Partnership, 2000) in the early years of this century, the integrated regime has been the object of particular attention from the independent oversight authority, academics (including Conca, Wu, & Mei, 2006; Kliot, Shmueli, & Shamir, 2001; Marty, 2001; Milman, Bunclark, Conway, & Adger, 2013; Sadoff & Grey, 2002; Schlager & Blomquist, 2000) and practitioners. The integrated perspective is also widely promoted by most international organizations (GWP, UN-Water, UNECE, etc.) as the standard approach. What is

2  Types of Transboundary Water Governance Regimes …     41

more, Goal 6 of the 2030 Agenda for Sustainable Development makes this approach the focus of its specific target1 on water resources. As far as transboundary water governance is concerned, this perspective takes the boundaries of the river basin as its reference unit, rather than political and/or institutional boundaries. The regime is regarded as consisting of a multitude of actors and uses, often drawn together into an organization responsible for joint management at the river-basin scale. As Marty (2001, p. 24) points out, the river becomes ‘common property’, with stronger international co-ordination—even integration—of public policy objectives, aiming to define a regulatory regime at river-basin scale. Within this overall framework, States are generally drawn into a river basin organization that, in many cases, was established to manage one or more specific issues (water pollution, management of rising water levels, flood management and so on) and then gradually broadens its activities as the stakeholders expand its organizational mandate. This is a mode of management offering various advantages. First and foremost, it allows for the reduction of transaction costs since only one management body is responsible for carrying out tasks for all the riparian countries. Secondly, it strengthens co-ordination within the river basin and facilitates communication, reducing the likelihood of activities being duplicated. The trend towards integration is particularly marked in Europe, with major continental rivers (notably the Rhine and the Danube) managed through international river basin organizations (the International Commission for the Protection of the Rhine, the International Commission for the Protection of the Danube River)—although the Rhône remains an exception in this regard. Normative assumptions about the integrated regime’s effectiveness are generally fairly positive. However, the literature does also mention the limitations of this form of governance (Marty, 2001; Milman et al., 2013). For instance, the true degree of integration of national frameworks into an integrated regime’s institutional architecture can be 1Target

6.5: ‘By 2030, implement integrated water resources management at all levels, including through transboundary cooperation as appropriate’.

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questioned: there are substantial difficulties in integrating the objectives of different riparian public policies for managing transboundary waters, while the importance of overarching frameworks and of international law remains undeniable. What is more, the holistic perspective adopted by this type of regime does not necessarily translate into significant progress on the ground. Thus, some writers (Rangeley, Thiam, Andersen, & Lyle, 1994) maintain that only an organization with limited objectives can produce tangible results. This is because river basin organizations face the difficulty (indeed, the challenge) of simultaneously integrating hydrological, ecological, economic and social issues into a single framework. This in turn leads to questions about the degree of flexibility and adaptability of such organizations, where there may be significant inertia in decision-making and participation processes. Finally, we should point out the size of the financial resources that have to be invested in order to establish and monitor the activities of a river basin organization, the time and human resources needed to understand complex systems and to plan multipurpose solutions, and finally the volume of data and information that has to be collected in order to identify effective arrangements. However, where all these conditions are met, the integrated regime can succeed in effectively organizing and structuring water management at the transboundary scale. The example of the Rhine, discussed in this chapter, demonstrates the capacity of river basin organizations to unite actors effectively around the issues facing the shared river, namely to improve co-ordination between the different stakeholders (authorities, economic sectors, civil society, environmental protection) and to facilitate participatory processes.

2.2 The Monofunctional Management Regime A holistic perspective does not always meet the challenges of transboundary governance. Co-ordination problems may arise on a particular stretch of the river, for a specific group of stakeholders or in a branch of activity that makes use of the river’s waters to produce particular goods and services. Therefore, although States may indeed play a

2  Types of Transboundary Water Governance Regimes …     43

dominant role in transboundary governance, it is clear that other actors can also occupy key positions in relation to co-ordination issues. Transboundary rivers are quite commonly managed through the implementation of a monofunctional regime. The principle underlying this regime is that river management should be directed towards tackling significant problems. Such a regime may be implemented through the creation of a commission for managing a specific co-ordination issue (a purely administrative body) or it may create a system of governance around a limited number of leading sectors. As Sara Pritchard (2011) shows, the Rhône—and the French section of the river in particular—provides a long-standing example of this regime-type, since, historically, the operational management of the river has depended on agreements and interactions established primarily between electricity producers. This system has succeeded in guaranteeing continuous capacity for the production of goods and services by the industries concerned. It has also encouraged the co-ordination of the main uses of the river and promoted the homogeneous regulation of rivalries. In this way, the monofunctional regime helps to anticipate any use conflicts which may arise. Although States remain highly present within this configuration, the actors and their branches of activity have considerable room for manoeuvre in establishing arrangements tailored to their needs, generally defined with a focus on production. Thus, the monofunctional model offers an alternative view of institutionalization and territoriality. Its design often goes beyond political, administrative and hydrological boundaries and is characterized by an institutional architecture built around the problems and use rivalries that need to be resolved if the system is to function at its best. It is implemented through a specific configuration of actors and through interaction between branches of activity. A number of works have conceptualized this type of governance regime and described how management of a territory can rely on differing institutional structures. As Varone, Nahrath, Aubin, and Gerber (2013) point out, the literature on boundary-spanning regimes (Jochim & May, 2010), the territorial institutionalism literature (Carter & Smith, 2008) and works on multilevel governance (Ostrom, 2008; Young, 2008) have all contributed to this picture, providing different

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ways to reflect on the relationship between a collective-action problem and the best institutional form for tackling it. Here we concentrate in particular on the concept of Functional Regulatory Space (Varone et al., 2013), which was developed in order to fill some of the gaps in the above-mentioned literature in relation to analysing mechanisms for co-ordinating policy sectors, institutional territories and management scales. A space is ‘functional’ when it uses ad hoc criteria to redefine geographical and social spaces considered relevant to managing a problem that needs to be solved. In order to achieve this, the regulatory space requires various adaptations. Particularly notable are the redefinition of relationships between the different policy sectors concerned, the creation (and conceptualization) of new geographical areas dedicated to managing the problem and the redistribution of public policy responsibilities between different levels of government. A functional space is organized around the management of use rivalries and of regulatory mechanisms for arbitrating conflicts. It may span political borders in order to maximize co-ordination of the branches of activity concerned and thus reduce tensions over the uses of a shared river. In Chapter 3, our historical analysis of transboundary governance of the Rhône (also partly covered in Bréthaut, 2018; Bréthaut & Pflieger, 2015) will illustrate the rise of specific functional regulatory spaces and the development of the system towards somewhat different views of the problem of collective action and towards a redefinition of the territoriality of institutions—eventually leading to new public policy priorities and modes of organization. This monofunctional perspective can also be implemented through institutions or organizations that aim to unite the interests of one particular branch of activity and ensure that it is co-ordinated at the transboundary scale. By way of illustration, in this chapter we focus on the case of the Danube Commission, an intergovernmental organization for co-operation on navigation on the Danube. On the one hand, this monofunctional organization supervises co-ordination within the sector (management of homogeneous rivalries), while on the other hand, it also represents a uniform bloc in any inter-sectoral negotiations that may take place (management of heterogeneous rivalries).

2  Types of Transboundary Water Governance Regimes …     45

2.3 The Polycentric Management Regime Polycentrism is a concept that has long been used by researchers looking at urban development models and centralization/decentralization processes, in particular those with a critical perspective on change in metropolitan areas of the United States and Europe and on the imbalances that can arise between centre and periphery or between places of residence and places of work. In the 1950s, any mode of organization tending towards decentralization was subject to a great deal of criticism, with references to ‘organizational chaos’ and with emphasis on the co-ordination problems and costs that such fragmentation might entail. In the face of this outcry, Vincent Ostrom and his colleagues (Ostrom, Tiebout, & Warren, 1961) set out to analyse the link between the way institutions function and the way territories are organized. Their work explored polycentric governance and looked at how far this type of system is likely to lead to chaos in managing a territory. They concluded that an organization can be defined as polycentric where several centres coexist while remaining formally independent of one another. The key contribution made by these authors was their emphasis on the gains that can accrue from this type of organization. They took the positive view that polycentric governance may sometimes be more effective than an organization structured around a single decision-making centre. They showed that this type of organization can function coherently when the centres involved engage in competitive relationships, enter into various contractual undertakings and, where a dispute arises, have recourse to centrally based conflict-resolution mechanisms. In other words, polycentric governance can be effective to the extent that fragmented institutions can function as a more or less co-ordinated system (Ostrom et al., 1961, pp. 831–832). The same idea would later be taken up by Elinor Ostrom (1990), who talks about ‘nested enterprises’—where a governance system is organized in multiple, interlocking layers of institutions active at different levels of governance. Thus a polycentric regime is characterized by the existence of a complex system of decision-making arenas established in a ­ multi-scalar dynamic that integrates both bottom-up and top-down processes

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(Lankford & Hepworth, 2010). Within this framework, stakeholders tend to seek arbitration at a higher level only if they find it impossible to settle a collective-action problem on a self-organized basis (Marty, 2001; Ostrom, 2010). These arenas are created in order to respond to specific issues: given this, the system evolves incrementally and cumulatively, according to the need to solve problems encountered in the river basin. The polycentric regime differs from the integrated model because it does not rely on a single, centralized unit of governance and does not develop within specific limits (in this case, within hydrological boundaries). Instead, each management unit has the independence to establish particular rules and norms. There are several advantages to the polycentric regime. Its bottom-up dimension allows the application of local knowledge, both in defining the collective-action problem that needs to be solved and in putting a decision-making process into effect. When doing this, it must aim to design more inclusive, equitable institutional arrangements (McGinnis, 1999). This networking then facilitates learning for the actors, who are involved in a process characterized by permanent instability and the need for constant adjustments. What is more, the polycentric regime’s inherent institutional fragmentation fosters its adaptability in the face of change and its long-term resilience (Ostrom, 2010; Pahl-Wostl, 2009). Finally, the fact that competition exists between the different arenas should generate innovation in problem-solving. At the same time, the example of the Rhône illustrates the drawbacks of this type of regime. Although these different factors will be discussed in more detail in Chapter 4, we should mention here the c­ o-ordination difficulties generated by the fact that multiple actors and institutions are present, as well as the possibility that actions taken within this kind of governance system may duplicate or overlap one another. Fragmentation and diversity of agreements between decision-making arenas also make the governance system much more opaque—and this is all the more true in a transboundary context, characterized by different institutional and regulatory frameworks. This opacity may take on an instrumental role, leading to the emergence of power relations— even dominance—that pose problems for shared management of the resource.

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2.4 Hybrid Regimes and Mosaics In this book, we look at these three governance regimes as theoretical tools that will allow us to analyse the current situation and pave the way to a forward-looking analysis of the development of transboundary governance of the Rhône. As mentioned above, these regimes illustrate different expressions of the link between institutions and territories. They all represent possible strategies for responding to the challenges posed by governance of a transboundary river, in that—to a greater or lesser extent—they transcend institutional and political boundaries. To sum up, we conceptualize three governance regimes: a regime organized around the river basin as reference unit and tending towards centralized management (the integrated regime), a decentralized regime configured in such a way as to regulate any use rivalries between branches of activity using a shared river (the monofunctional regime) and finally another decentralized model structured around links between decision-making arenas that have been created to tackle particular problems (the polycentric regime). As we have said, these different regimes are ideal types that provide us with ways of viewing the governance of international rivers. However, the empirical reality shows that a set of mixed arrangements is equally possible, drawing inspiration, all or in part, from these three proposed approaches and combining the attributes of these different regimes in order to define a custom-made arrangement.

2.5 An Illustrative Case Study for Each Regime In Chapter 1, we presented different theoretical models that can be used in constructing scenarios for adaptation to change. We now turn to the real world and analyse the way these different directions have taken shape on the ground, through case studies that illustrate the theoretical models. These cases allow us to give concrete examples of different strategies implemented for transboundary water management. On the basis of

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the models described above, we present three cases. The International Commission for the Protection of the Rhine illustrates the integrated model, while the Commission for the Navigation of the Danube exemplifies an institutionalized monofunctional model. Finally, the case of the Columbia River illustrates the polycentric model.

2.5.1 Integrated Regime: The Rhine The Rhine is an international river in Western Europe (see Fig. 2.1). Its basin covers 198,000 km2 across nine countries—Switzerland, Liechtenstein, Italy, Austria, Germany, France, Luxembourg, Belgium and the Netherlands—with a total population of 60 million people. The river is 1232.7 km long, making it the third longest European river. It supports numerous economic activities, including navigation, irrigation, tourism, hydropower production, industry, sanitation and drinking water production. A number of major European industrial centres are situated in the Rhine Basin. Historically, water quality issues were already apparent in the 1450s (Wieriks & Schulte‐Wülwer‐Leidig, 1997); however, in this chapter we focus mainly on the period from the end of the Second World War to the present day. This section will therefore allow us to describe the changing perceptions of collective-action problems, the measures taken and the organizations established at the river-basin scale. i. History of the river management regime Our description of the governance of the Rhine will reflect on how approaches to problem-solving evolve at the river-basin scale. Drawing on a number of works (Bernauer, 2002; Bouché, 1981; Dieperink, 1999; Huisman, De Jong, & Wieriks, 2000; Mostert, 2009; Schiff, 2017; Wieriks & Schulte‐Wülwer‐Leidig, 1997; Wolfrom, 1964), we consider four phases in the development of transboundary Rhine governance: (1) establishment of the Salmon Commission, (2) management of chloride pollution, (3) the Sandoz chemical spill, (4) revision of the Berne Agreement. As we shall see, these four phases were accompanied by the formalization of a body for transboundary co-operation

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Fig. 2.1  Map of the Rhine Basin

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(the International Commission for the Protection of the Rhine) with a gradually expanding remit. • Establishment of the Salmon Commission In 1885, the Netherlands, Switzerland and Germany signed a treaty for the creation of the Salmon Commission. The stated objective was to regulate Rhine fishing by controlling the methods used and defining specific fishing periods. In 1922, the Commission noted a fall in the fish population, and from then on the issue of pollution of the Rhine was on the agenda. In 1948, very soon after the end of the Second World War, the Dutch Government drew attention to the risks linked to chloride pollution. It was proposed that the Salmon Commission address the issue; but, taking the view that pollution problems were beyond its remit, the Commission refused to accept this additional mandate. As a result, a new commission was established on 11 July 1950: the International Commission for the Protection of the Rhine (‘the ICPR’), with Switzerland, Germany, France, Luxembourg and the Netherlands as members. At the outset, this new body concentrated on gaining a better understanding of the problems that needed to be tackled, and so it focused its activities on conducting scientific research. However, the work of this Commission quickly moved towards the development of solutions that would enable the problems associated with chloride pollution to be countered by approaches beyond the solely scientific. This put the ICPR in a key position to become the leading international collaborative organization on the Rhine: despite its best efforts, the Salmon Commission would never manage to curtail the disappearance of the Rhine’s salmon population from the 1950s onwards—and, with no remaining purpose, it abandoned its activities. • Management of chloride pollution From the start of its mandate, the ICPR focused its efforts on chloride pollution. Nevertheless, this presented a particularly thorny set of problems, since the pollution resulted from some of the leading economic activities in certain regions of the river basin, and therefore differing standpoints among the Commission stakeholders. Thus, the

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Netherlands, in its downstream position, took a stance that was strongly opposed to France and Germany’s, the countries whose economic activities primarily caused this type of pollution. This conflict resulted in a move to give the Commission a broader mandate and provide it with a legal instrument. Consequently, the Agreement concerning the International Commission for the Protection of the Rhine against Pollution (‘the Berne Agreement’) was signed in Berne on 29 April 1963 by France, Luxembourg, the Netherlands, the Federal Republic of Germany and Switzerland. The ICPR became the formal framework and body for co-operation, and the following mandates were laid out: co-ordinating research, proposing measures to protect the river against pollution and preparing the bases for possible future arrangements between the parties. The ICPR has a permanent Secretariat and publishes the results of annual physico-chemical analyses of Rhine river water. In the years that followed, the ICPR produced various studies on the question of chloride pollution. However, no significant measurement programme was undertaken. It became apparent that although the Berne Agreement had formalized the ICPR’s role as a framework for co-operation, the organization had not managed to achieve any progress on a key issue. Faced with this situation, the ICPR Member States took the view that the chloride pollution problem should no longer be handled within the framework of a body set up essentially to provide technical co-operation, but that it required negotiations at the political level. Consequently, from 1972 onwards, several ministerial conferences brought together delegations from the signatory States to the Berne Agreement, in order to define mechanisms and financial contribution formulas for tackling the pollution problems. In this regard, it was decided to draw up a convention relating specifically to the problems caused by chlorides and to invite all the ICPR Member States to become Contracting Parties. This process eventually led to the signing of two further agreements: the Convention on the Protection of the Rhine against Chloride Pollution (‘the Chlorides Convention’) and the Convention on the Protection of the Rhine against Chemical Pollution (‘the Convention on Chemical Pollution’), both signed in Bonn on 3

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December 1976. In the years that followed, many negotiations between the Contracting States took place and several solutions were tested. However, improvements remained limited and the river pollution was not reduced. As is often the case with political processes relating to the environment, it took an ‘external shock’ to radically shift the agenda (Birkland, 2004; Jenkins-Smith & Sabatier, 1999; Young, 2002). • The Sandoz chemical spill On 1 November 1986, fire broke out in a factory belonging to the Sandoz AG chemical company near Basle, on the banks of the Rhine. The use of water in extinguishing the fire led to the emission of large quantities of pesticides to the river (1300 tonnes), staining the water for several kilometres and causing the death of fish and other aquatic organisms along several hundred kilometres. This pollution event, considered to be one of the biggest that has ever occurred in Europe, extended as far as the city of Koblenz, Germany, and received massive media coverage. The accident came as a genuine shock and led to the rapid convening of a ministerial conference, which was held on 12 November 1986, only two weeks after the fire. This disaster was to reveal the weaknesses of the co-operation framework. Dealing with the prevention of accidents obvious revealed gaps in the framework, gaps that could result in impacts at the transboundary scale. These gaps in turn illustrated the need to rethink the governance framework and its capacity for co-ordination and prevention. In this context, the idea for an ambitious ‘Rhine Action Programme’ emerged, with the ultimate goal of returning salmon populations to the river by the year 2000. At the 7th Conference of Rhine Ministers, held in December 1986, the ICPR was tasked not only with drawing up this Action Programme but also with co-ordinating it and monitoring its results. The draft plans illustrate the paradigm shift and the expansion of the organization’s mandates, with the main objectives of restoring extinct species to the river, securing the use of the river for drinking water production, reducing harmful substances (the Action Programme provided for discharge of 40 hazardous chemicals to be halved in the space of ten years) and improving sediment quality. In the years that followed, the river’s water quality improved dramatically.

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• Revision of the Berne Agreement In December 1994, the 11th Conference of Ministers noted the increasing number of ICPR mandates and proposed a review of the Berne Agreement. The chosen approach was to repeal both the 1963 Berne Agreement and the 1976 Convention on Chemical Pollution and to establish a new legal framework, marking the birth of the ICPR as it functions to this day. Its operation took concrete form when, on 12 April 1999, the five riparian States and the European Commission signed a new convention: the Convention on the Protection of the Rhine (‘the 1999 Convention’). This also allowed the Parties to integrate the provisions of various international framing measures such as the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 17 March 1992 (the 1992 Helsinki Water Convention). From then on, as the 1999 Convention indicates, the ICPR became the reference organization for the entire catchment area, co-ordinating the management of both water quality and water quantity. The ‘Rhine 2020’ Action Plan was adopted in January 2001 in this holistic perspective. Its objectives are improvement of the Rhine ecosystem, flood prevention and protection, water quality improvement and groundwater protection. This Action Plan also functions within the European Union context, being intended to support implementation of the Water Framework Directive (2000/60/EC). ii. Objectives of the International Commission for the Protection of the Rhine The 1999 Convention formalized the ICPR’s role in implementing its provisions and gave the Commission legal personality (Article 6). This has enabled the Contracting Parties to step up their co-operation in shared river management. In line with the ‘Rhine 2020’ Action Plan, the Convention pursues a wide range of aims (Article 3): maintaining the quality of the Rhine’s waters, protecting its ecosystems against pollution, maintaining and restoring the natural functions of the river’s waters (not only the surface waters but also interactions with groundwater), conserving, improving and restoring natural habitats, maintaining

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drinking water production from the river’s waters, improving sediment quality, preventing floods, and restoring and protecting the North Sea. Although it relies on the Member States for implementation, the ICPR is the platform that allows the stakeholders to collaborate. It plays a dominant role in implementing action plans and monitoring outcomes. In particular, the Commission takes the lead on measurement programmes and informs the Member States of their results (Article 8). The ICPR is also responsible for supervising warning and alert plans. As a consequence of the impact of the Sandoz chemical spill, a number of monitoring sites and early-warning stations have been installed along the whole length of the river. iii.  Structure and organization of the Commission The structure is such that countries’ delegations chair the Commission in turn for a period of three years. Operational services are provided by a permanent Secretariat. Decision-making is structured around a number of bodies working at different levels. The highest of these is a Conference of Rhine Ministers, which makes decisions on political issues—decisions to which the Member States make a formal commitment. It is these Conferences that set out overall policy orientations for transboundary governance of the Rhine. The next level is the Plenary Assembly, also a decision-making body. Generally summoned annually, this meeting brings together the heads of delegations. Its decisions are communicated to the Member States’ ministers responsible for the Rhine. Extraordinary plenary sessions may also be called, either on the initiative of the Chairman or at the request of at least two delegations. Decisions must be unanimous, with each delegation having one vote. Next comes the Strategy Group, which drafts decisions for the Plenary Assembly and co-ordinates and steers the Commission’s work via the operation of various working groups and expert groups. There are four working groups, focusing on four themes: (1) floods and low water, (2) water quality and emissions, (3) ecology, (4) the Upper Rhine Project. This structure facilitates handling of the river’s complex problems, defines solutions and ensures that the decisions taken in the Plenary Assembly are generally based on consensus.

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Funding for the Commission’s operational budget is based on a fair contribution formula. This takes into account the geographical situation of each Party and its position in the river basin. It also considers the overall economic situation. The budget is set and adopted by the Plenary Assembly. iv.  Gradual integration at the river-basin scale Our analysis of the history and organization of the Rhine’s management demonstrates that it has been structured by an integrated regime that tends towards a holistic perspective. Historically, transboundary governance of the river was organized around bodies whose number of objectives tended to increase and whose scale of action gradually moved towards the river basin as reference unit. Thus, a commission dedicated to managing a particular problem (the salmon population) gave way to an organization with legal personality handling, in addition, many qualitative and quantitative issues at the river-basin scale. The ICPR is now the co-ordinating body within the river basin and provides a legal basis for the Contracting Parties to collaborate, co-ordinating their activities. The river basin has become ‘common property’ (in the sense of Marty 2001) and is managed by all the Commission stakeholders working together, a fact that is illustrated by the requirement for unanimous decision-making within the organization.

2.5.2 Monofunctional Regime: The Danube Two international Commissions are involved in transboundary management of the Danube. Of the two, the International Commission for the Protection of the Danube River (‘the ICPDR’) is considered the reference organization. Taking an integrated perspective and with a broad remit, the ICPDR operates on a similar model (i.e. ‘integration model’) to that of the ICPR (discussed in previous section), but in this instance co-ordinating 15 Member States as Contracting Parties (Germany, Austria, Bosnia-Herzegovina, Bulgaria, Croatia, Hungary, Moldova, Montenegro, the Czech Republic, Romania, Serbia, Slovakia, Slovenia,

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Ukraine and the European Union). The other body active in the basin is the Danube Commission, an international intergovernmental organization established by the Convention regarding the Regime of Navigation on the Danube, signed at Belgrade on 18 August 1948 and amended on 26 March 1998 (‘the Belgrade Convention’). The objectives of the Danube Commission are to provide and develop free navigation on the river for commercial vessels. It brings together 11 Member States (Germany, Austria, Bulgaria, Croatia, Hungary, Moldova, Romania, Russia, Serbia, Slovakia and Ukraine) and ten States with Observer status (Belgium, Greece, Georgia, Cyprus, the former Yugoslav Republic of Macedonia, the Netherlands, Turkey, France, Montenegro and the Czech Republic) (see Fig. 2.2). In this chapter, focusing on the monofunctional regime-type, we discuss only the Danube Commission. As we shall see, this Commission is exemplary of a transboundary water governance perspective rooted in a monofunctional regime, dedicated in this case to co-ordinating management for navigability. Information for this chapter has been drawn

Fig. 2.2  Map of the Danube Basin

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from Bokor-Szegö (1962), Cattell (1960), and Lagendijk (2015), as well as from documentation produced by the Danube Commission itself.2 i. History of the river management regime Approaches to transboundary governance of the Danube have varied widely since the early nineteenth century. Several different bodies have been involved over the years, changing according to the geopolitical situation. The Danube’s history is also marked by a number of wars, by intense opposition between ‘East and West’ and by the dissolution of the Soviet Bloc, illustrating how power relations can go beyond the strictly physical boundaries of a river basin and involve global geopolitical equilibria. The first general framework governing navigation of the river was formalized as early as 1815, when the Congress of Vienna established the principle of freedom of navigation on international waterways. The objective of the Congress was to provide a long-term peace plan for Europe—and the issue of freedom of river traffic was considered crucial in this regard. However, despite this initiative, 1853 saw the outbreak of the Crimean War: the Ottoman Empire, France, the United Kingdom and the Kingdom of Sardinia lined up against the Russian Empire, and the ensuing conflict lasted for three years. The Treaty of Paris was signed in 1856, bringing the war to an end. As far as the Danube was concerned, administrative management of the river was then divided between the Upper Danube and the Lower Danube. The European Danube Commission (‘the EDC’) was established to supervise the Lower Danube (the ‘maritime’ section of the river from Brăila in Romania to the Black Sea). This marked the first time that a body of rules was introduced over the river. Another commission became involved in managing the river when, in 1921, the International Danube Commission (‘the IDC’) was set up to supervise issues of trade on the Danube and to improve conditions for navigation on the ‘fluvial’ upper section of the river (from Ulm in Germany to Brăila). 2http://www.danubecommission.org/dc/en/.

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The EDC and the IDC differed not only in their geographical scope but also in the spheres of influence that endorsed their creation. The IDC was based in Belgrade and the organization was firmly overseen by the USSR. The EDC, on the other hand, had its headquarters in Rome, and was oriented towards Western countries. The coexistence of these two Commissions provides a particularly good illustration of the competition that then existed between West and East, with markedly different positions on the development of Danube management. First of all, there were management plans supported by the Western powers, drawing inspiration from US projects of the 1930s, notably the establishment of the Tennessee Valley Authority in 1933. The latter’s achievements represented an innovative investment and infrastructure project, combining management of navigation, flood water management, electricity production and economic development at the regional scale. Yet there were also plans based on Soviet knowhow in managing and exploiting rivers. Everything came down to competition between the two blocs. For example, from 1925 to 1932, the United States and the USSR raced to create the world’s largest reservoir, building the Hoover Dam and the Dnieprostroi Dam (in present-day Ukraine) respectively (Lagendijk, 2015). The EDC and the IDC coexisted until 1938, when they were swept away by the Second World War and the rise of German control over the river. Following the defeat of the Nazi regime, management and reconstruction had to be organized. From 1946, the victorious United States, highly present in the region, supported the re-establishment of the international dimension of the Danube and discussed ways of facilitating the navigability of the entire length of the river. In 1948, a Conference on managing the river was held and a new treaty was adopted—the Belgrade Convention. This was signed only by the riparian States and, from that point of view, marked the return of management of the river to the jurisdiction of the regional powers. The Convention was structured around two basic principles: implementation of the principle of free navigation and respect for the sovereign rights of the riparian States. The Danube Commission was established on the basis of the Belgrade Convention. From 1949 onwards, the Commission played

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a mainly technical role in defining a general plan to supervise and co-ordinate the riparian States’ various development plans—while leaving the execution of the work required to the States alone. Although the coexistence of the EDC and the IDC had been characterized by clashes between the Western and Soviet Blocs, the early years of the Danube Commission were marked by the USSR’s domination and the bitter opposition that then existed with Yugoslavia—also described as ‘the Tito-Stalin split’. Consequently, the Commission’s activities during its first four years can only be described as weak. The situation improved from 1953 onwards and then developed more positively still after Stalin’s death in 1955 and the reconciliation between Yugoslavia and the USSR. During this period, the USSR used the Danube Commission as a laboratory to test different political strategies: from bilateralism to multilateralism, or opposition to rapprochement, with Western Europe and the United Nations. Later, the Commission continued its activities on the basis of the provisions of the Belgrade Convention. A Supplementary Protocol was signed on 26 March 1998, with the main aim of formalizing the status of Germany as a signatory State to the Convention. ii.  Objectives of the Danube Commission The Danube Commission’s main objectives, as defined by the Belgrade Convention, are twofold (see the preamble to the Convention). First and foremost, from a technical point of view, the Commission’s objective is to guarantee and develop free navigation on the Danube for merchant vessels under the flags of all States in accordance with the interests and sovereign rights of the States Parties to the Belgrade Convention. As we have already seen, the Commission provides a co-ordination framework and relies on the Member States to implement any planned activities. Secondly, the Commission has a more general objective: to strengthen and develop economic and cultural relations between Member States and with other countries. The Commission’s jurisdiction does not cover the whole river basin, but only the navigable part of the Danube—that is, from the city of Ulm in Germany to the Black Sea (Article 2). Therefore, although the Danube Basin covers 19 States, only 11 are members of the Commission (a notable comparison here is that

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the ICPDR, whose objectives extend beyond the operations of just one branch of activity, has 15 Member States). The Belgrade Convention formalizes the role of the Danube Commission. As Article 8 states, the Commission’s main responsibilities involve co-ordinating activities on the navigable section of the river, consulting and making recommendations, and harmonizing standards and data collection in order to facilitate the navigability of the river. This co-ordination role is fulfilled through the preparation of a general plan of principal works in the interests of navigation, on the basis of proposals and projects presented by the Member States. To this end, the Commission can formulate recommendations with respect to the execution of the works and is required to ensure the implementation of a uniform system of standards governing the whole navigable portion of the river. In order to guarantee navigability, the Commission also has to unify the regulations governing river inspection, co-ordinate hydrometeorological services, publish a hydrological bulletin, issue forecasts and publish navigational tools (including reference works, navigational charts and atlases). Finally, the Commission has to draw up and approve its own budget (Article 10). This is covered by equal payments from the Member States, made on an annual basis. The Commission also has the right to levy charges to meet the costs of any special works connected with the navigability of the river. iii.  Structure and organization The organizational structure of the Danube Commission is defined by the Belgrade Convention. The first point of note is that the Commission has legal personality (Article 14). Secondly, each of the 11 ‘Danubian States’ is represented by a delegate to the Commission (Article 5). The Commission’s functions are overseen by a Chairman, a Vice-Chairman, a Treasurer and a Secretary, each elected for a threeyear term by the members of the Commission (Article 6). A permanent Secretariat carries out the tasks of the Commission and monitors the execution of works; Secretariat staff are recruited from the Member States (Article 9). The Commission’s decision-making process is based on majority voting by the members. This applies to decisions relating to the general

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plan of principal works, the execution of direct works along the river, the provisions governing navigation, the budget and the location of the Commission’s official headquarters (Articles 10, 12 and 13). The Commission’s work is based around a number of Working Groups (made up of Member States’ representatives on the Commission) and Expert Groups (whose meetings are attended by experts from the riparian States). Currently, the Working Groups deal with technical matters and legal and financial affairs. The Expert Groups cover more specific aspects of the Commission’s work, such as hydro technology, ship waste management and the security of inland water transport. Last but not least, the Danube Commission engages with the ICPDR, the authority responsible for overall management policy in the river basin. Of particular note is the fact that the two Commissions collaborate to tackle the adverse impacts of navigation on the river’s waters. This interaction between the two Commissions is illustrated by their adoption, with the International Sava River Basin Commission, of a Joint Statement on Guiding Principles on the Development of Inland Navigation and Environmental Protection in the Danube River Basin (October 2007). iv.  The monofunctional perspective The Danube Commission provides a particularly good illustration of a monofunctional regime. It has been given a specific, circumscribed remit, in that its activities are aimed at ensuring the good condition of the navigable portion of the river. The scope of its management responsibilities corresponds to the area of that particular function, not to the whole territory of the river basin—for which responsibility falls to the ICPDR. Therefore the Danube Commission brings together a limited number of Member States, all of which are directly involved in navigation issues. It plays a mainly technical role, supervising the sector concerned and advising the Member States. As one of its main objectives indicates, the Commission essentially represents a site of collaboration and exchange between the Member States—a locus for the management of homogeneous and heterogeneous rivalries linked to a single sector.

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2.5.3 Polycentric Regime: The Columbia River Unlike the case studies of the Rhine and the Danube, here we do not describe a specific river basin organization. To illustrate the polycentric model, we present the case of the Columbia River, flowing between Canada and the United States (see Fig. 2.3). We describe a governance system structured around links between different types of institutions and actors. Our interest here focuses on interactions between the different stakeholders in the system and on co-ordination mechanisms established between different decision-making centres—particularly because the case of the Columbia River displays certain similarities with that of the Rhône. Governance of the Columbia River was initially characterized by marked institutional fragmentation. However, the ways in which the river is used have evolved significantly over time, with movement away from an essentially productivist approach towards a greater emphasis on social-ecological perspectives for managing the river, taking into account a growing number of uses in terms of both human activity and natural ecosystems (Hand et al., 2018). Despite this trend, the Columbia River Basin remains one of the most developed in North America, with more than 200 dams supporting, among other uses, irrigation, hydropower generation and drinking water production (Garrick, 2015). The Columbia River rises in the British Columbia section of the Canadian Rockies. Its basin covers approximately 670,000 km2, divided between Canada (the Province of British Columbia) and seven US States (Washington, Oregon, Idaho, Montana, Nevada, Utah and Wyoming). Although only 38% of the river’s average annual flow originates in Canada, the country provides 50% of the peak flow, because runoff from snowpack gives rise to the critical late summer flow (Cosens & Williams, 2012). i. History of the river management regime A description of the history of the Columbia River basin could go back several hundred—or even several thousand—years beginning with the Native American populations of the region. Some writers describe this

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Fig. 2.3  Map of the Columbia River Basin

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evolution in terms of ‘pre’ and ‘post’ contact with the European populations that settled in the region from the nineteenth century onwards (Cosens & Fremier, 2014). These two eras are differentiated by a radical shift in the social structure within the river basin, with devastating impacts on the indigenous populations. Unprecedented changes took place within just one generation, notably processes of settlement, expropriation and reallocation of lands that had, until then, belonged to indigenous tribes. In this section, we focus on the most recent phases of this development: a first phase characterized by the development of hydropower production capacity and channelization to confine the watercourse, and a second phase marked by the increasing influence of environmental considerations. Channelization of the river began in 1896 with locks at the Cascades Rapids, transforming the river for the purposes of navigation, followed by construction of a number of storage dams (Cosens & Fremier, 2014), mainly in the United States. At that time, the river was viewed essentially as a means of ensuring economic growth (Hirt & Sowards, 2012), and so its entire length was altered by engineering in order to support the operation of different types of uses. The infrastructure built in this period does not generally allow for substantial quantities of water to be stored, and only the Grand Coulee and Bonneville Dams (in operation since 1942 and 1937 respectively) provide sufficiently large impoundment capacities to meet irrigation needs and ensure flood control. While enabling water to be supplied for different uses, and help to regulate the flow-rate for navigation, the construction of this infrastructure along the river has dramatically altered the river’s ecosystems and habitats by fragmenting the watercourse into distinct sections (Hand et al., 2018; Rieman et al., 2015). One of the major consequences of this has been to block the passage of fish, particularly of salmonids. Since the works carried out in the 1930s, therefore, the Columbia River Basin has effectively been divided into two, with the Canadian upper section of the river now containing only extremely small salmon populations. The situation changed from the 1970s onwards. The rights of indigenous populations were increasingly affirmed. National environmental protection legislation was also adopted by both countries: in the US,

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this mandated the States of Idaho, Montana, Oregon and Washington to make nature conservation and the use of renewable resources their highest priorities (Cosens & Fremier, 2014). Therefore the view of river management gradually altered, with particular attention paid to ecosystems and the protection of endemic species in particular. Largescale programmes were funded and set in motion in order to monitor, evaluate and improve the state of the fish population. However, despite these investments and the installation of fishways in much of the infrastructure, salmonid population numbers remain depressed to this day (Rieman et al., 2015). ii.  Transboundary governance In 1948, major floods devastated several towns in the river basin. In order to avoid any more such disasters, the decision was made to impose large-scale canalization on the river in the aim of better controlling the risks of flooding. It is notable that at the time Canada had the best water storage sites, while the best conditions for hydropower generation were to be found in the United States. Consequently, both sides studied the possibility of establishing an agreement at the transboundary scale, with the aims to take full advantage these respective strengths. The Treaty between Canada and the United States of America relating to Co-operative Development of the Water Resources of The Columbia River Basin (United States-Canada, January 17, 1961) was signed in 1964, with a clear division of tasks between the two countries, and giving each an equal share in the benefits of hydropower generation. The Columbia River Treaty (‘the 1964 Treaty’) was particularly innovative for its time in terms of international co-operation on non-navigational uses of a river (Cosens & Williams, 2012). While the main Treaty objectives related to flood control and hydropower generation, the governance mechanism also integrated other uses of the river, such as irrigation and navigation. Some of the flood control provisions will expire in 2024—which also represents the earliest date at which either party may withdraw unilaterally from the Treaty. Therefore discussions about options for renewing the 1964 Treaty have recently started—and these negotiations have brought issues of ecosystem health

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onto the international agenda. Academic interviews conducted early in the consultation process suggest that there is growing interest in considering ecosystem management as a third Treaty objective, alongside flood control and hydropower benefits for both countries (McKinney, Baker, Buvel, & Fischer, 2010). iii.  Polycentric governance As part of the 1964 Treaty, Canada and the United States designated various operators on the Columbia River. The United States has selected two entities: the Bonneville Power Administration and the United States Army Corps of Engineers Northwestern Division (‘the NWD’). On the Canadian side, the chosen operator is the British Columbia Hydro and Power Authority (‘BC Hydro’). These stakeholders are diverse in nature: the Bonneville Power Administration is a US Federal agency; the NWD is a branch of the United States Army; BC Hydro is a Canadian Crown corporation (State-owned enterprise) operating independently and with a mandate that includes managing public water resources in British Columbia. And beyond the confines of the 1964 Treaty, Columbia River governance involves multiple actors—not only the individual States and the various federal authorities, but also different governmental agencies, inter-State representative bodies charged with energy planning and implementation of species and environmental conservation programmes, private property owners, non-governmental organizations, tribal entities and numerous legal and regulatory authorities (Hand et al., 2018; Rieman et al., 2015). Thus, the Columbia River governance system is characterized by a wide variety of stakeholders, not merely acting but co-operating in the operational management of the river. These different bodies are situated at different institutional levels and have different types of legal personality. Moreover, each body does not necessarily have an equivalent on the other side of the national border. The characteristics of the governance system (a large number of decision-making arenas, fragmentation in decision-making processes, overlapping jurisdictions) reveal a certain degree of polycentricity. The functioning of this system does not depend on one organization to co-ordinate and harmonize practices at the

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river-basin scale: rather, it is based on operational mechanisms distributed across various decision-making centres. As a result, there are many elements that contribute to co-ordinated management of the river—a great deal of bilateral negotiation; oversight by the operators designated under the 1964 Treaty (with funding for environmental activities); and, not least, intervention by federal institutions aiming to achieve co-ordination at the system scale. The latter applies, for example, to a group of agencies drawn together under the banner of ‘the Federal Columbia River Power System’ in order to co-ordinate the interests of federal dams throughout the Columbia River system.

Bibliography Bernauer, T. (2002). Explaining success and failure in international river management. Aquatic Sciences, 64(1), 1–19. Birkland, T. A. (2004). “The world changed today”: Agenda-setting and policy change in the wake of the September 11 terrorist attacks. Review of Policy Research, 21(2), 179–200. Bokor-Szegö, H. (1962). La Convention de Belgrade et le régime du Danube. Annuaire Français de Droit International, 8(1), 192–205. Bouché, H. (1981). L’action de la Commission Internationale pour la Protection du Rhin Contre la Pollution. International Business Law, 9, 65. Bressers, H., & de Boer, C. (2013). Contextual interaction theory for assessing water governance, policy and knowledge transfer. In Water governance, policy and knowledge transfer (pp. 56–74). London: Routledge. Bréthaut, C. (2018). Transboundary water management: From geopolitics to a non-state analytical perspective: The case of the Rhône River. In A critical approach to international water management trends (pp. 71–95). London: Palgrave. Bréthaut, C., & Pflieger, G. (2015). The shifting territorialities of the Rhone River’s transboundary governance: A historical analysis of the evolution of the functions, uses and spatiality of river basin governance. Regional Environmental Change, 15(3), 549–558. Carter, C., & Smith, A. (2008). Revitalizing public policy approaches to the EU: ‘Territorial institutionalism’, fisheries and wine. Journal of European Public Policy, 15(2), 263–281.

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Cattell, D. T. (1960). The politics of the Danube Commission under Soviet control. American Slavic and East European Review, 19(3), 380–394. Conca, K., Wu, F., & Mei, C. (2006). Global regime formation or complex institution building? The principled content of international river agreements. International Studies Quarterly, 50(2), 263–285. Cosens, B., & Fremier, A. (2014). Assessing system resilience and ecosystem services in large river basins: A case study of the Columbia River Basin. Idaho Law Review, 51, 91. Cosens, B. A., & Williams, M. K. (2012). Resilience and water governance: Adaptive governance in the Columbia River Basin. Ecology and Society, 17(4), 3. Dieperink, C. (1999). Tussen zout en zalm: Lessen uit de ontwikkeling van het regime inzake de Rijnvervuiling. Enjolras, B. (2008). Régimes de gouvernance et services d’intérêt général, une perspective internationale. Brussels: PIE Peter Lang. Garrick, D. E. (2015). Water allocation in rivers under pressure: Water trading, transaction costs and transboundary governance in the Western US and Australia. Cheltenham: Edward Elgar. Global Water Partnership. (2000). Integrated water resources management (No. TAC Background Papers No. 4). Retrieved from https://www.gwp.org/globalassets/global/toolbox/publications/background-papers/04-integrated-water-resources-management-2000-english.pdf. Hand, B. K., Flint, C. G., Frissell, C. A., Muhlfeld, C. C., Devlin, S. P., Kennedy, B. P., … Stanford, J. A. (2018). A social-ecological perspective for riverscape management in the Columbia River Basin. Frontiers in Ecology and the Environment, 16(S1), s23–s33. Hirt, P. W., & Sowards, A. M. (2012). The past and future of the Columbia River. In The Columbia River Treaty revisited: Transboundary river governance in the face of uncertainty. Corvallis: Oregon State University Press. Huisman, P., De Jong, J., & Wieriks, K. (2000). Transboundary cooperation in shared river basins: Experiences from the Rhine. Meuse and North Sea. Water Policy, 1(2), 83–97. Jenkins-Smith, H. C., & Sabatier, P. A. (1999). The advocacy coalition framework: An assessment. In Theories of the policy process (pp. 117–166). Boulder: Westview Press. Jochim, A. E., & May, P. J. (2010). Beyond subsystems: Policy regimes and governance. Policy Studies Journal, 38(2), 303–327.

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Kliot, N., Shmueli, D., & Shamir, U. (2001). Institutions for management of transboundary water resources: Their nature, characteristics and shortcomings. Water Policy, 3(3), 229–255. Lagendijk, V. (2015). Divided development: Post-war ideas on river utilisation and their influence on the development of the Danube. The International History Review, 37(1), 80–98. Lankford, B., & Hepworth, N. (2010). The cathedral and the bazaar: Monocentric and polycentric river basin management. Water Alternatives, 3(1), 82. Marty, F. (2001). Managing international rivers: Problems, politics and institutions. Food and Agriculture Organization of the United Nations (p. 409). Bern: Peter Lang Publishing. McGinnis, M. D. (1999). Polycentric governance and development: Readings from the workshop in political theory and policy analysis. Ann Arbor: University of Michigan Press. McKinney, M., Baker, L., Buvel, A. M., & Fischer, A. (2010). Managing transboundary natural resources: An assessment of the need to revise and update the Columbia River Treaty. Hastings West-Northwest Journal of Environmental Law and Policy, 16, 307. Milman, A., Bunclark, L., Conway, D., & Adger, W. N. (2013). Assessment of institutional capacity to adapt to climate change in transboundary river basins. Climatic Change, 121(4), 755–770. Mostert, E. (2009). International co-operation on Rhine water quality 1945– 2008: An example to follow? Physics and Chemistry of the Earth, Parts A/B/C, 34(3), 142–149. Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge: Cambridge University Press. Retrieved from http://dx.doi.org/10.1017/CBO9780511807763. Ostrom, E. (2008). Institutions and the environment. Economic Affairs, 28(3), 24–31. https://doi.org/10.1111/j.1468-0270.2008.00840.x. Ostrom, E. (2010). Beyond markets and states: Polycentric governance of complex economic systems. Transnational Corporations Review, 2(2), 1–12. Ostrom, V., Tiebout, C. M., & Warren, R. (1961). The organization of government in metropolitan areas: A theoretical inquiry. American Political Science Review, 55(4), 831–842. Pahl-Wostl, C. (2009). A conceptual framework for analysing adaptive capacity and multi-level learning processes in resource governance regimes.

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Global Environmental Change, 19(3), 354–365. https://doi.org/10.1016/j. gloenvcha.2009.06.001. Pritchard, S. B. (2011). Confluence: The nature of technology and the remaking of the Rhône (Vol. 172). Cambridge: Harvard University Press. Rangeley, R., Thiam, B. M., Andersen, R. A., & Lyle, C. A. (1994). International river basin organizations in Sub-Saharan Africa. Washington, DC: The World Bank. Rieman, B. E., Smith, C. L., Naiman, R. J., Ruggerone, G. T., Wood, C. C., Huntly, N., … Congleton, J. (2015). A comprehensive approach for habitat restoration in the Columbia Basin. Fisheries, 40(3), 124–135. Sadoff, C. W., & Grey, D. (2002). Beyond the river: The benefits of cooperation on international rivers. Water Policy, 4(5), 389–403. Schiff, J. S. (2017). The evolution of Rhine River governance: Historical lessons for modern transboundary water management. Water History, 9(3), 279–294. Schlager, E., & Blomquist, W. (2000, May). Local communities, policy prescriptions, and watershed management in Arizona, California, and Colorado. Eighth Conference of the International Association for the Study of Common Property, Bloomington, IN, USA. Varone, F., Nahrath, S., Aubin, D., & Gerber, J.-D. (2013). Functional regulatory spaces. Policy Sciences, 46(4), 311–333. Weber, M. (1997). The methodology of the social sciences. New York: Free Press. Wieriks, K., & Schulte‐Wülwer‐Leidig, A. (1997). Integrated water management for the Rhine River Basin, from pollution prevention to ecosystem improvement. In Natural resources forum (Vol. 21, pp. 147–156). Oxford: Wiley. Wolfrom, M. (1964). La pollution des eaux du Rhin. Annuaire Français de Droit International, 10(1), 737–763. Young, O. R. (2002). The institutional dimensions of environmental change: Fit, interplay, and scale. Cambridge: MIT press. Young, O. R. (2008). The architecture of global environmental governance: Bringing science to bear on policy. Global Environmental Politics, 8(1), 14–32.

3 From Local Uses Towards Appropriation by Nation-States

This chapter now turns the focus to the Rhône River. We have described the specific features of the case in Chapter 1 and presented the different governance models in Chapter 2: this in-depth case study will allow us to demonstrate how systems of governance evolve and adopt different governance regimes over time. The chapter will concentrate in particular on one of our three main research questions: What are the conditions in which transboundary governance of the river has changed, and how has it been reshaped? We shall approach this by tackling four specific questions: 1. How have models of governance in the basin succeeded one another over time and what are the processes of socio-environmental and political change that have determined this? 2. How have shifts in the river’s major functions, uses and rivalries led to the re-examination of modes of governance of the river?

© The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_3

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3. What are the major changes in these models in terms of scale of governance and scope of intervention? How have the geographical boundaries of governance systems been defined and how have they changed? 4. How has public participation in the processes of reshaping transboundary governance of the river evolved? Building on our previous work (Bréthaut, 2016; Bréthaut & Pflieger, 2015), we first present a historical analysis of transboundary governance of the Rhône. Thus, Sects. 3.1–3.3 will allow us to address the first of the four specific research questions listed above, looking at processes of socio-environmental and political change in the governance models. The Rhône’s governance system has evolved in three specific time periods: 1870–1970, 1970–2000 and 2000 to the present day. These phases demonstrate the changing perceptions of the collective-action problem of the river. They illustrate various configurations of actors and an increasing number of users formally recognized by the regulatory framework. They also reveal changes in the way that central States view river governance, manifesting varying degrees of involvement in operational management and in commitment to the different institutional levels considered appropriate for managing the river. Following this analysis of the history of transboundary river governance, Sect. 3.4 will focus on governance of the river by France and by Switzerland. We analyse the evolution of Swiss and French public policies, as well as the structure of property rights in relation to water and dams. This analysis of regulatory frameworks provides information on the various organizational structures for managing the river, and presents four interrelated dimensions: mono/multifunctional regulation, inclusion/exclusion of uses and users, the involvement of private or public actors and how these relate to the territoriality of river management. Finally, this section will allow us to discuss the state of public participation in the Rhône River Basin and the extent to which stakeholders potentially affected by a particular issue are involved in the decision-making process (Bréthaut, 2016).

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3.1 Phase 1: The Rhône as a Tool of Production (1870–1970) The first phase, from the late nineteenth century to 1970, saw national and regional public authorities prioritizing a small number of water uses along the Rhône. Upstream of Lake Geneva, water was used mainly for agricultural purposes, while from Geneva to the Mediterranean Sea, it was primarily dedicated to hydropower production.

3.1.1 The CNR as Monopolistic Manager of the French Part of the River In this first phase, the French section of the Rhône was essentially dedicated to producing hydropower. As Pritchard (2004, 2011) has illustrated, it represented a tool of production that would ensure France’s energy independence. Moreover, the construction of hydraulic infrastructure was an important aspect of the rebuilding of France after the destruction of the Second World War. The Rhône was perceived as one of the nation’s industrial resources—and this is explicit with several French dams along the Rhône bearing the maxim Le Rhône, au service de la nation: ‘The Rhône—at the service of the Nation’. During this period, the river was subject to channelization on a massive scale: its population, protected from flooding, gradually ceased to perceive the river as a natural water system. Downstream of Geneva, the Compagnie Nationale du Rhône (‘the CNR’) is responsible for the French section of the Rhône: it holds a concession contract for management of the river from the border with Switzerland to the Mediterranean Sea. With the aim of implementing a development programme for the entire French portion of the river, the Rhône Act was passed on 27 May 1921. This new legislation led to the creation of the CNR, which became the Rhône operator when it was awarded a 90-year concession on the river, running from 20 December 1933 to 31 December 2023. The concession applies not only to the Rhône but also ‘to tributaries of the Rhône in any parts of their

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Fig. 3.1  The Rhone River Basin and its main hydropower infrastructure from Geneva to Lyon (adapted from Storck, Pochat, & Tosello, 2004; UNEP 2007)

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course affected by development of the river and to by-passed sections of the river’ (Decree No. 2003-513 of 16 June 2003). The CNR is a semi-public company involving both public and private interests. Public authorities, both central and local, hold 50.03% of its share capital. The CNR has three major objectives: production of electricity (operating 19 hydropower plants), navigation (downstream of Lyon) and water supply for irrigation. The French concession integrates different types of water uses: although initially the chief concern was to better manage floods events, hydropower production quickly became the main goal of the central State. In the aftermath of the Second World War, France invested heavily in industrializing the River Rhône, as a symbol of the nation’s reconstruction. As Pritchard (2011, p. 70), it benefited from massive Marshall Plan investments: ‘The CNR received almost 2 per cent of all Marshall Plan funds distributed in France between 1948 and 1951’. This enabled the CNR, ‘essentially […] a regional arm of the French state’ (Pritchard, 2011, p. 54), to heavily embank the Rhône along its entire course and to make hydropower production the main use of its waters. The Rhône was increasingly dedicated to production use, and the river came to be considered less a natural water system than an industrial tool to produce energy (Pritchard, 2011). Thus, the first phase is characterized by a monofunctional vision of the Rhône—a vision primarily dedicated to the production of electricity through hydropower (see Fig. 3.1).

3.1.2 The Development of River Exploitation in Switzerland and the Creation of SIG by the City of Geneva In Switzerland, records of different uses and use rivalries reveal several very distinct stages in public policies on surface water at the level of the Confederation (see Fig. 3.2) (Varone, Reynard, Kissling-Näf, & Mauch, 2002). The first stage, from 1871 to 1908, saw the accretion of a number of policies intended to protect developing human activities against the two

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Fig. 3.2  Stages of public policy on surface water in Switzerland

most challenging water-related problems of the day: flooding and industrial river pollution. Based on their flood control strategy at this time, the Swiss Confederation implemented the first programme of embankment and channelization of tributaries, on the basis of the 1877 Federal Law on Water Law Enforcement in Elevated Regions. In parallel, forest clearance was strictly regulated. However, policies to prevent pollution were in marked contrast: discharges were permitted if the natural flow of rivers was considered sufficient to dilute them (Mauch, Reynard, & Thorens, 2000). The next stage, from 1908 to 1953, saw water resources placed at the service of the country’s urban and industrial development, just as we have already observed in France. With the development of hydraulic power, major cities—and later cantons—gradually went beyond the confines of their institutional boundaries and expanded the sphere of influence in mountain regions, through the creation of transport companies and the award of concession contracts for electricity generation, with the first one granted to the Société des Forces Motrices de Chancy-Pougny (SFMCP SA—see Chapter 4) in 1915. The Swiss Confederation adopted regulatory tools to oversee the use of hydraulic power—an intervention that resulted from several years’ debate on the boundaries of the Confederation’s role in regulating water infrastructure. These discussions gave rise to a large number of proposals, ranging from granting the Confederation a monopoly over the exploitation of water power (a petition from the Frei Land Company in 1891) to asserting that hydraulic power represented a national public good for both the industrial sector and the railways (the 1902 Müri Motion) (Mauch et al., 2000). In 1908, a new article of the Constitution was adopted to confirm the national interest in economic exploitation of water. Thus three national policies coexisted: on the protection against flood risks, minimal restrictions on pollution, and the exploitation of

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hydraulic power. In the third of these areas, the Confederation developed capacities to regulate inter-cantonal use of hydraulic power and to oversee the whole sector. The cantons retained the right to grant concessions, while the cities were direct shareholders in the operating companies. During this phase, management of infrastructure and of the flow of the river was delegated to a small number of operators. All Swiss dams, from the outlet of Lake Geneva to the French border, are operated—solely or jointly—by Services Industriels de Genève (Industrial Services of Geneva, or ‘SIG’), a semi-public company supplying water, gas and electricity, which holds concession contracts granted either by the Canton of Geneva or (for binational infrastructure) by the Swiss Confederation. SIG’s origins are deeply rooted in the technological and institutional history of hydropower production in Geneva—a history that reflects a strong trend towards innovation in energy production from the second half of the nineteenth century onwards. This has been driven by the fact that Geneva, like Switzerland as a whole, does not have abundant fossil fuel resources—indeed, it has no coal or oil. Due to its location, Geneva is to some extent an enclave that must create its own energy resources; and, as in France, during this phase the Rhône emerged as a key resource for the city’s industrial development. Innovation in Geneva followed several different trajectories: • step-by-step import of techniques and know-how, with reliance on financial autonomy established through the close relationship between local engineers and Geneva’s leading banking houses; • adding value and adapting technology for local conditions; • developing a culture that aimed at economic viability through economies of scale (and profit for the city), with international revenue generation through external market penetration and export of engineering services. In September 1882, in order not only to capture the local profits of energy production but also to place it at the disposal of the city’s industrial development, the City of Geneva acquired a monopoly concession

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for use of the hydraulic power of the Rhône, paying compensation to private operators for doing so.1 The city’s engineer at the time, Théodore Turrettini—also the elected municipal councillor in charge of public works—was in a position to implement major infrastructure development on the Rhône. The first stage, from 1883 to 1886, saw the building of the Bâtiment des Forces Motrices, a 6000—horsepower plant erected in the river bed at La Coulouvrenière to deliver water under pressure for use in the fountains, houses and factories of the city. Shortly after this had come into service, Turrettini launched the second stage of Rhône development (1893–1896), installing a hydropower plant 7 km downstream of Geneva. Turrettini’s favoured approach was to import and enhance techniques recently piloted elsewhere, and this project was no exception. In order to make use of the river’s considerable power (50,000 HP), he applied the model of the hydroelectric plant then nearing completion in Niagara Falls (which came into operation in 1895)—the first time this model was imported into Europe. Some of the electricity produced instream was to be used to power electrochemical and electro-metallurgical plants, while some would provide lighting and power services for the urban area. Over the course of the twentieth century, SIG saw little organizational change. The most significant organizational reform came in 1931, with shifts from direct control to an autonomous State-owned company and from municipal to cantonal administrative supervision. SIG’s commercial dimension was never called into question, but, after this introduction of independent management, profits were redistributed between the municipalities and the Canton of Geneva, rather than being creamed off by the city. * * * The Canton of Geneva continued to prioritize hydropower production until the end of the twentieth century. In 1984, the executive government built a new dam that was not only equipped to protect the city from flood events by monitoring water levels in Lake Geneva, but would also generate electricity. The building of the Seujet Dam justified 1Mémorial des séances du Grand Conseil de la République et canton de Genève [Gazette of Sessions of the Grand Council of Geneva], 1882, pp. 1665–1676.

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the creation of a specific regulatory framework based on an earlier inter-cantonal agreement to regulate Lake Geneva’s water levels and on management concessions (in force from 1997) for the Seujet Dam itself and for the Verbois Dam (in force from 1996). As long as it complied with Lake Geneva water level requirements, SIG maintained a degree of flexibility in implementing its strategy for exploiting the Rhône, choosing when to produce energy, how and how much. Therefore the amount of water flowing downstream from Geneva still depends, first, on the rules relating to Lake Geneva’s water levels as defined by the Intercantonal Agreement (see below) and, secondly, on SIG’s hydropower production policy. In concrete terms, this means—for example— that Rhône water levels downstream of Geneva will be dependent on electricity consumption trends in the city. Hydropower remains dominant over other types of water uses, such as the natural functioning of ecosystems.

3.1.3 The Key Role of the Intercantonal Agreement on Regulating Water Levels in Lake Geneva In the Canton of Geneva, the building of major infrastructure to regulate the flow of the Rhône had two main objectives: controlling Lake Geneva’s water levels and producing hydropower. The late nineteenth century saw a great deal of infrastructure built both at the outlet of Lake Geneva and along the channel of the Rhône within the Canton of Geneva. The latter sometimes required the construction of reservoirs, artificially modifying the Lake’s outflow capacities. As the Canton of Vaud noted, the various forms of infrastructure seemed to lead to ‘a significant rise in mean high water and mean low water levels in the Lake itself; (…) in addition, these works have caused a notable increase in the length of the annual period of high water’ (pleadings reported in Judgment of the Federal Supreme Court of Switzerland of 17 May 1879). In light of the many adverse effects of these lake level changes (threatening neighbouring private property and endangering public health), the Canton of Vaud prosecuted the Canton of Geneva, accusing the latter of imposing variations in water levels over

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which Vaud itself had no influence, and thus of violating the principle of cantonal sovereignty. In 1873, the Canton of Vaud asked the Federal Court to force the Canton of Geneva to dismantle works situated within its territory that were blocking the free flow of lake waters—an episode now referred to as the ‘Lake Geneva Trial’. This proved to be one of the triggers for negotiations on controlling water levels in Lake Geneva. Another was the intense debate surrounding lake regulation methods, which gave rise to numerous expert reports and plans to regulate the level of Lake Geneva while at the same time exploiting the power of the Rhône. Although the Canton of Vaud chose the remedy of applying to the Federal Court, the Canton of Geneva, in contrast, requested a negotiation procedure, overseen—if necessary—by the Federal Council. As Geneva pointed out in its defence before the Federal Court: ‘A conflict like this cannot be decided solely on the basis of abstract legal ideas: it should be subject to a formal understanding entered into freely by both parties, and if such an agreement proves impossible, it is for the political authority of the country as a whole to resolve the matter’. The Swiss authorities concerned from Cantons Geneva, Vaud and Valais became parties to an agreement which they ratified on 17 December 1884. This was the Intercantonal Agreement on Correcting and Regulating Lake Geneva Water Flows, later supplemented by the Infrastructure Operation Regulations of 7 October 1892. The Intercantonal Agreement, ratified under the auspices of the Swiss Confederation, had five main objectives. First and foremost, it aimed to regulate the continued flow of water from the Lake, which was the main cause of conflict between the Cantons of Vaud and Geneva. Benchmark water levels in Lake Geneva were to be set precisely on a monthly basis. The Agreement, which was updated in 1984, defined minimum and maximum altitudes in order to regulate fluctuations in the Lake’s water levels and thus the quantities of water released downstream of Geneva. The Act’s second objective related to reducing variations in Lake Geneva’s water levels, while its third and fourth objectives were to bring down the highest water level and to avert the adverse effects of high water. Its fifth and final objective was to ensure the anchorage necessary for navigability in the Port of Geneva at all times. This was viewed as a particularly important aim, since the Lake Geneva General Navigation

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Company (CGN) had been created in 1873, establishing commercial operation of passenger transport on the Lake. The specific terms of the Intercantonal Agreement required the executive government of the Canton of Geneva to carry out various lake regulation works (Article 1). It was also to be responsible for the future operation of control structures and therefore for ensuring that the minimum and maximum water levels (371.7 and 372.3 metres above sea level respectively) were observed (Article 4). Between 1883 and 1886, spurred on by the Intercantonal Agreement negotiations, the Canton of Geneva built the Bâtiment des Forces Motrices and the Pont de la Machine (a curtain weir with a pedestrian bridge over the Rhône), which together would regulate the flow-rate and supply a major hydraulic power network. It was not long before the city’s remaining windmills vanished. The construction of these different works was enabled by establishing a formula for sharing financial contributions between the various actors who had a stake in lake regulation (Article 5). This legal instrument opened the way for building structures to control Lake Geneva, which ultimately impacted the amount of water flowing to downstream France. Made under the auspices of the Swiss Confederation, the Intercantonal Agreement resolved the conflict between the Cantons of Vaud and Geneva. Yet it is notable that this agreement, also signed by the Canton of Valais, failed to include France, despite the fact that a significant part of the south shore of Lake Geneva is in its territory, including the important spa towns of Thonon-Les-Bains and Evian-Les-Bains. France was not a party to the discussions on defining arrangements for lake regulation: indeed, no French public authority seems to have expressed any desire to take part in a system for regulating Lake Geneva, and our research has turned up no documents that might explain this absence.2 Therefore France was left with no formal lever for action or intervention in the management of monthly changes in lake levels or of quantities of water released downstream of Geneva, with the exception (as

2See

Chapter 4 for a more substantial analysis of the Acte intercantonal concernant la correction et la régularisation de l’écoulement des eaux du Léman.

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we shall show below) of the waters of the River Arve. The result of this situation was that, during this first phase, both countries were exploiting the Rhône’s great potential, but without any binational co-operation agreement to harmonize hydropower operations or to jointly regulate Lake Geneva’s water levels. * * * During the first phase, regulatory spaces for governance of the river were highly fragmented. Despite various attempts to collaborate, France and Switzerland had no shared transboundary regulation framework. The only arrangements in existence were standing agreements on water transfers related to hydropower production and some ad hoc agreements on procedures for monitoring sediment discharge. Hydropower producers developed co-ordination tools at a transboundary scale without involving public authorities. As a result, according to SIG, in the course of its electricity production, ‘SIG (nowadays) establishes a production programme for a few days ahead. Before implementation, this schedule is communicated to the CNR, which is then able to match water inflows with the storage capacities of the Génissiat Dam’ (18 July 2011, Geneva). During this phase, public authorities did not consider the transboundary river-basin scale a relevant regulatory space, even though France’s 1964 Water Act—which was partly influenced by the creation of the CNR in 1921 (Ghiotti, 2006, p. 10)—called for implementation of precisely such regulatory spaces for water management. Transboundary governance of the Rhône remained fragmented and bounded by national frontiers. This fragmentation was also linked to low levels of involvement of the public authorities in any river management activities beyond their own regulatory responsibilities and beyond the concession contracts signed with private operators on each side of the border.

3.2 Phase 2: The End of the Hydropower Monopoly (1970–2000) This second phase of governance was characterized by the emergence of a new arrangement, where the use of the river was no longer dedicated solely to the production of hydropower.

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Two factors contributed to the disintegration of this monopoly. First, several nuclear power plants were constructed along the Rhône in France during the 1970s, using the river’s water for system cooling. The river came to play an important role in helping guarantee the nuclear energy supply in both France and Switzerland: Bugey Nuclear Power Plant, for example, is situated about 35 km from Lyon and 110 km from Geneva. Therefore the hydropower sector is forced to share the resource with new users and to adapt its approach to managing the river’s flow accordingly. Secondly, this phase was characterized by the emergence—and continual strengthening—of environmental standards (Usui, 2003). This trend can be seen clearly not only at national levels (Switzerland and France) but also at the supranational level (European Union) (Barraqué, 2003; Bolognesi, 2014; Bressers & Kuks, 2004; Kaika, 2003; Varone et al., 2002). These standards and the influence of the trends towards Integrated Water Resource Management (‘IWRM’) contributed to a reinforced natural perception of the river and moderated the view that the Rhône was simply a means of production. In Switzerland, water protection measures remained patchy, to say the least, until 1953. With the adoption of the first Federal Waters Protection Act (‘the WPA’) in 1955, and from then through to the 1990s, increasingly strong measures to combat agricultural, industrial and household pollution were gradually introduced. At first, such interventions focused on purifying industrial and household wastewater and on building treatment plants. Switzerland pursued a strong policy of universal connection to wastewater systems from the mid-1960s until the 2000s: by 2008, it had the highest rate of connection to public wastewater treatment facilities of any OECD country (the OECD average then stood at 62%). From the 1980s onwards, stronger measures were taken to combat pollution from agricultural sources. Following several years of incrementally incorporating various policies at the Confederation level, the trend towards greener water management culminated in the adoption of the 1991 WPA (Mauch et al., 2000). This policy aimed to reinforce co-ordination between the various water uses and to focus all policies on the overarching objective of quantitative and qualitative protection of water resources. This called for not only

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protecting lakes, rivers and wetlands through stronger co-ordination of hydropower production uses and regulation of water flow-rates but also managing watercourse renaturation objectives while still aiming to avert risks related to climate hazards. These standards were also perceived as limiting how hydropower operators work, although operators on both sides of the border had, and still have, some room for manoeuvre in implementing their own production strategies. This second phase shows the emergence of a new governance structure, no longer monofunctional but oriented towards greater integration and polycentricity. In France, a new type of operator became involved in the Rhône’s governance. The CNR now had to negotiate and collaborate with Electricité de France (‘EDF’), which manages all the nuclear power plants along the river. The CNR thus lost its monopoly position when central government decided to prioritize navigation downstream of Lyon and nuclear power plant cooling, allocating a share of the Rhône’s water flow to meet these aims. Nuclear energy supply thus became a key issue in the transboundary management of water transfers between Switzerland and France. The emergence of this major new water user increased rivalries and prompted the implementation of specific regulatory arrangements. The CNR, sole manager of the Rhône in France and holder of the State concession, signed various types of agreements (including some contracts) with private-sector river users, with EDF in France and with SIG in Switzerland. Public authorities—such as the Rhône-Mediterranean and Corsica Water Agency, the Auvergne-Rhône-Alpes Region and the Permanent Delegation for the Rhône-Mediterranean Basin (part of central government’s Regional Directorate for Environment, Spatial Development and Housing)—play a role in the governance structure, in that they define regulations and monitor concession contracts: however, their role at the operational level is limited, leaving private operators a good deal of room to manoeuvre. Even though hydropower production remains the main user of its water, the Rhône has gradually become a multifunctional object, involving a growing, if still limited, number of users. The management of rivalries essentially

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depends on private-law agreements between electricity producers. As the Head of the Permanent Delegation’s Specialist Service dealing with issues of pressure on water systems told us, ‘(…) the management of water flows at the outlet of Lake Geneva is dictated by fairly detailed and sometimes rather restrictive arrangements between the CNR and SIG’ (personal communication, July 2012, Lyon). Thus, this operational structure for governance of the French part of the Rhône tends to exclude actors who have no production relationship with the river: this is particularly the case for environmental NGOs and riparian municipalities. On the Swiss side of the border, regulation of the Rhône essentially depends on two types of legislative document. The first is the Intercantonal Agreement dating from 1884 and renewed in 1984, which we have already discussed. The second is a set of concession contracts signed between SIG and the Canton of Geneva or the Swiss government, resulting from a long-standing relationship between the Canton and the semipublic utilities company (Paquier & Pflieger, 2008). Thus, the Swiss portion of the Rhône is managed through public-law agreements, with the strong involvement of public actors, who are responsible for monitoring the concession contracts. Within this legal framework, hydropower plays a major role, as concession contracts are regularly amended to include new objectives such as flood protection or ecosystem management of the river and its banks (for example, local operators may be responsible for fish passage or for ecological restoration of some sections of the river) (Delahaye, 2009). The second phase was characterized by the fact that concession contracts for the Swiss part of the Rhône actually began to take an increasing number of water uses into account. Historically, public authorities had mainly been concerned with flooding and hydropower production, but new types of uses related to environmental protection were now integrated into the regulatory framework. Nevertheless, as we have shown, hydropower production remained the dominant use of the Rhône, with ecological measures mainly implemented through hydropower concession contracts.

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In line with this expansion, transboundary co-ordination between France and Switzerland became stronger, albeit remaining focused on hydropower and operational issues. In 1963, France and Switzerland agreed to build the Émosson Dam, located in the Canton of Valais. As the reservoir of this dam would be filled in part from the Arve watershed (France), Switzerland agreed to return water collected and recovered at the outlet of the Rhône in Geneva. As a result, France holds a stock of water in Lake Geneva, equivalent to 85,000,000 m3 of available water each year. This stock can be claimed at any time and for any use determined by the French government (as previously mentioned, until recently its priorities were navigation and nuclear power plant cooling). An agreement between the various operators (SIG, the CNR and EDF) defines the conditions for water transfers downstream of Geneva. Known as ‘the Year 2000 Implementation Measures’ (Mesures d’execution 2000 ), this agreement represents the only formal transboundary collaboration for the Rhône’s management. It gives concrete form to a regulatory space dedicated primarily to the governance of energy production (nuclear power or hydroelectricity) and to the resolution of homogeneous upstream-downstream rivalries. But in doing so, it connects two geographical spaces separated by Lake Geneva. The agreement redefines political boundaries on the basis of a multifunctional arrangement related to water rights that were originally granted to hydropower producers: it enforces co-ordination between hydropower operators and aims to define amounts of water needed for irrigation, industry, drinking water production and the conservation of ecosystems during periods of water scarcity. Thus, the second time period saw the emergence of transboundary and multifunctional agreements on the Rhône. Collaboration between Switzerland and France in managing the Rhône is not based on any international convention or commission, as it is for other major European river basins. Rather, any shared functions—most specifically, water transfers—rely on the hydropower sector. However, even though transboundary governance remains mono-sectoral, the functional regulatory spaces of collaboration now seem less fragmented.

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3.3 Phase 3: The Emergence of Complex Rivalries (2000 and Ongoing) The most recent time period has seen the proliferation of multiple types of activity along the Rhône. Use of the river is no longer limited to energy production: it is now viewed as a resource for irrigation, drinking water, tourism and ecosystem maintenance. This phase has seen the central States coming to the fore again, with the political will to strengthen their capacities to regulate the system and to enforce co-ordination within a strongly polycentric regime. Traditionally, operational management of the river was delegated to hydropower operators through concession contracts. This kind of delegation meant that the system relied on self-organization to ensure that this sector of activity functioned smoothly. But now we see questions being raised on the co-ordination between different sectors. As more consideration has been given to the different uses of the river, complex rivalries have emerged between different uses—especially those with differing end goals. Against this background, the transboundary aspect becomes more significant: effective management of the range of branches of activity depends on upstream–downstream ­co-ordination between Swiss and French authorities. In addition, the recurring drought events of the last ten years and other specific focusing events, coinciding with patterns revealed by climate and hydrological modelling (Beniston, Stoffel, & Hill, 2011; Chauveau et al., 2013; RuizVillanueva, Stoffel, Bussi, Francés, & Bréthaut, 2015), have also pushed transboundary co-ordination up the agenda. As our account of Phase two has shown, the governance structure of the Rhône is still organized around the electricity production sector. However, since the early 2000s, and as a result of the growing number of previously unrecognized uses, these collaborative functional spaces have been faced with increasingly complex water management requirements. New water management policies have been set in motion in response to the strengthening of environmental legislation in Switzerland, France

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and the European Union, and have moved rapidly towards focusing on the river basin as reference unit and on better protection of ecosystems. In France, public authorities have adopted several timely measures to strengthen conservation of Rhône ecosystems through ecological restoration of several sections of the river. The legal framework has recently been changed in order to better integrate various uses of aquatic ecosystems and to regulate the river as part of a biodiverse network. The main legislation came into effect between 2006 and 2010, chiefly as a result of developments in the EU’s legal framework. It included the 2006 Law on Water and Aquatic Environments—effectively the third Water Act—and the 2010 Law affirming National Commitment to the Environment, known as ‘the Grenelle II Act’. The new regulatory framework does more to compel hydropower producers to take into account new types of water uses (ecosystem services, for example), and this has been particularly the case since implementation of the European Water Framework Directive (Directive 2000/60/EC) and the various national legal provisions based upon it. At the same time, the greater involvement of the public sector modifies the governance system of the river, and illustrates a shift in the setting of priorities that concern use of the water. Hydropower production now tends to be more precisely framed by policy instruments (for example, SDAGEs— Water Development and Management Master Plans), while public actors (such as the Rhône-Mediterranean and Corsica Water Agency) now aim to achieve greater coherence in water management within French borders. Therefore the development of legal frameworks and the increasing number of heterogeneous uses—potentially leading to rivalries—mean that central States are coming to the fore again. While autonomous management by private actors proved efficient in operating the Rhône until the 2000s, the move to include new water uses and users calls for stronger intervention on the part of public actors in order to resolve not only the complexities involved in setting priority goals but also the heterogeneous rivalries between resource uses—and this is especially true when the resource must be shared between two countries. When it comes to the question of public participation, Switzerland and France are both signatories to international treaties underscoring its importance—for example, the United Nations Economic

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Commission for Europe (‘UNECE’) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). The French Environmental Code stresses the importance of this issue, mentioning various instruments such as public debates, public inquiries, the provision of information to the general public and the implementation of consultation procedures. The Code requires that these instruments are brought into effect as soon as it emerges that significant socio-economic, environmental or land-use impacts could be at stake. In fact, a number of very diverse arenas for public participation exist along the length of the Rhône. But due to fragmentation between these initiatives, which are not co-ordinated at river basin level, the involvement of stakeholders in decision-making processes is far from homogeneous (Table 3.1). Three of these arenas of participation can be regarded as governance bodies: the International Commission for the Protection of Lake Geneva (‘CIPEL’) and, in France, the Rhône-Mediterranean and Corsica Water Agency and the Rhône Plan. These bodies have a mandate to frame the management of a particular portion of the river and/or to co-ordinate specific activities within their respective sections. They not only have management responsibilities, but are also responsible for the implementation of action plans and policy instruments. In other words, these Table 3.1  Arenas of participation in managing the Rhône 1 2

3 4 5 6

Arena of participation

Portion of the river

International Commission for the Protection of Lake Geneva (CIPEL) Consultative Commission for the Management of the Rhône and the Arve Sediment flushing at the Verbois Dam Rhône-Mediterranean and Corsica Water Agency, France The Rhône Plan Migratory Fish Management Plan (PLAGEPOMI)

Lake Geneva Lake Geneva—Swiss/French border

Lake Geneva—Swiss/French border Rhône River Basin within France Rhône River Basin within France Rhône River Basin within France

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different bodies target precise objectives for water management within the portion of the river that falls under their jurisdiction. Because the border between France and Switzerland runs through Lake Geneva, CIPEL is an international commission. It was created in 1962 in order to improve and monitor lake water quality. Its steering committee, subcommittees and various working groups bring together elected officials/representatives, scientists and experts and senior officials from French and Swiss central government administrations, French départements and Swiss cantons. CIPEL’s mandate centres mainly around technical and scientific issues, with a focus on lake water quality management. The Commission’s activities cover the entire Lake Geneva watershed from the source of the Rhône downstream through the river basin to the point where the river leaves Swiss territory (see Chapter 1, Fig. 1.2). CIPEL produces various materials, including a regular newsletter, and holds events to inform stakeholders about its ongoing projects or to discuss specific issues, such as the management of micropollutants. These materials and activities are intended for the general public and do not address any category of stakeholders in particular. Therefore, participatory processes related to the Commission remain focused mainly on information, with top-down diffusion and selected content. The Rhône-Mediterranean and Corsica Water Agency is a public organization under the auspices of the French Ministry of Ecology. Established by the 1964 Water Act, water agencies embody the policy of decentralizing water management and are mapped to France’s main river basins. In consequence, the country is divided between six water agencies, which are responsible for sustainable water resources management, pollution prevention and protection of aquatic ecosystems. The Rhône-Mediterranean and Corsica Water Agency is responsible for implementation of the SDAGE, a policy instrument that aims for coherent planning and management of actions undertaken within river basins. In particular, this Water Development and Management Master Plan should enable the achievement of the environmental objectives defined for all countries by the EU’s Water Framework Directive. The Water Agency’s approach has participation at its heart: it aims to develop action programmes jointly with its stakeholders—public authorities, other public actors, resource users, economic actors. The

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38 members of its steering committee include 11 representatives from municipalities, 11 central government representatives and 11 user representatives. The Water Agency’s participatory processes are characterized by co-production, with direct involvement of stakeholder groups in the decision-making process. Thus, this organization is designed to express public opinion through the filter of representation (Fishkin, 2011). The Rhône Plan is a management plan introduced in response to massive floods in southern France in 2003. The Plan implemented a contract between different central government services, the French regions located along the Rhône and the main French operator on the river. In response to the focusing event in 2003, this instrument defines objectives for the French part of the Rhône Basin, such as managing flood risks, reducing the vulnerability of the neighbouring population and improving knowledge of the river. The Plan is presented as a new approach to managing the Rhône, allowing those who live and work along the river to claim it. Participation is effected through the involvement of representatives from the various départements, major cities and relevant associations of municipalities. The Plan provides support for specific projects along the river and has a mandate to set up participatory processes (Guerrin, 2015) that aim to take account of stakeholders’ concerns through deliberation. The next two arenas of participation can be considered operational management arenas. Here each arena targets objectives for a limited number of sectors. Their mandates are more specific than the arenas described above and they focus on a very limited portion of the river. The Migratory Fish Management Plan (PLAGEPOMI) is a regulatory tool for managing the continuity of migratory fish and guaranteeing their passage throughout the Rhône within France. The Plan involves a range of partners, including representatives of central government, representatives of the relevant regions and municipalities, organizations involved in managing specific parts of the Rhône, the scientific community, the fishing community, the neighbouring population, the leading operators and other industrial groups. The Plan is provided for by the French Environmental Code,3 which establishes an operational 3 Article

R436-49.

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management committee that enables these different stakeholders to define the main strategic directions and take decisions on the basis of the Plan. Thus the system is an instance of co-production by the different stakeholders involved. The Consultative Commission for the Management of the Rhône and the Arve has no regulatory competencies. It brings together the main stakeholders in activities that take place on these rivers from Lake Geneva down to the French border. It is run under the auspices of the Canton of Geneva: the Cantonal Water Law establishes the Commission4 and defines its membership. The Commission is made up of four representatives from riparian local authorities, four representatives of the branches of economic activity that use the river, four representatives from the fishing community and environmental protection organizations, one or two representatives of the dam operators and two representatives from environmental services of the Canton of Geneva. The Commission aims to involve all stakeholders potentially affected by river management issues. Its role is to ensure better co-ordination and dissemination of information among the various interest groups and to facilitate dialogue between the parties in order to avoid tensions. There is consultation with stakeholders within the Commission: however, this does not necessarily have any effect on the decisions taken or on their implementation. Our final arena of participation is one that was set up in relation to a specific operation to manage sediment discharge in a transboundary context. The Verbois Dam is situated in Switzerland, but close to the border with France. Sediments must be periodically flushed from the reservoir behind the dam, and this operation has been undertaken regularly since the dam was built. In the past, it was mainly dependent on collaboration between the two operators (SIG and the CNR) and was carried out without any in-depth discussion. However, in 2012, the discharge operation was characterized by greater administrative complexity, because requirements were put in place for authorization at the transboundary scale and for a public inquiry, which took two years. Therefore the operation was supported by a participatory process, 4 L2

05.01, Articles 45–49.

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implemented by French and Swiss actors and conducted simultaneously on both sides of the border. A public inquiry was launched using the frameworks offered through the Aarhus Convention and the Espoo Convention (the UNECE Convention on Environmental Impact Assessment in a Transboundary Context). This allowed the concerns of Swiss and French stakeholders to be gathered in the context of an open participatory process—to be more precise, a public consultation. Hydropower operators led the whole procedure under the auspices of public authorities, central government in France and the Canton of Geneva in Switzerland, which have now become strongly involved in monitoring the whole process of sediment management. This case exemplifies the current changes in the governance structure of the Rhône. There has been much greater involvement on the part of public authorities in recent times and, alongside the strengthening of the regulatory framework, this has led to greater complexity for procedures like the flushing operation. This complexity is well illustrated by the Canton of Geneva’s Director of Water Policy: ‘for example, in France, the CNR has been the sole manager of the Rhône for a long time—but there is no longer any guarantee that it will be granted the concession in future. Things will get more complicated. This is not just a French problem—it’s a Swiss problem, too. The more stakeholders get involved, the more complicated it all becomes’ (personal communication, 17 July 2012, Geneva). This is especially the case with the Rhône, as the river basin is divided by national borders and the policy instruments available to public authorities for transboundary management of water at that scale are weak. As the Deputy General Secretary of the Canton of Geneva’s Department of Environment, Transport and Agriculture told us, ‘The institutional framework on the Swiss side is weak. Therefore we have created a working group to look at strengthening the existing institutional framework and addressing the problem of coherence between two very different institutional frameworks’ (personal communication, 23 April 2013, Geneva). The spatial extent of the regulatory framework during the third phase is quite similar to that of the previous phase. However, public actors are currently trying to find new institutional mechanisms that are

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better able to frame transboundary governance of the Rhône: these rely on high-level political negotiations, in contrast with the autonomous management procedures and the arrangements between private actors that prevailed during Phase 2. Chapter 4 will focus more intensively on Phase 3, in order to give a more precise assessment of the extent to which the emergence of complex rivalries has impacted on transboundary governance of the river.

3.4 The Historical Development of the Rhône’s Governance Architectures In this chapter, we have analysed the governance structure of the Rhône through the prism of an analytical framework with four interrelated dimensions: mono/multifunctional forms of regulation, inclusion/exclusion of uses and users, the involvement of private or public actors and how these relate to the territoriality of river management (Table 3.2). In conclusion, we shall discuss these results by referring back to the three outstanding research questions set out at the beginning of this chapter: 1. How have shifts in the river’s major functions, uses and rivalries led to a re-examination of the modes of governance of the river? The inclusion of new water uses has had a substantial impact on the governance of the river. In describing the governance of the Rhône in terms of three historical phases, we have tracked the rise in heterogeneous rivalries through the inclusion of new water uses driven by central and local public authorities. During the third phase in particular, public authorities came to the view that the existing diverse multifunctional spaces, which still shared their boundaries with national territories, were no longer adequate to manage such complex, heterogeneous rivalries. This third phase illustrates the need for the public sector to take on more responsibility within the governance structure of the river and shows how, as a result, public authorities have attempted to redefine the common political regulatory space by establishing a new transboundary

Phase 3 2000–ongoing

Phase 2 1970–2000

Phase 1 1870–1970

Included/excluded users

Included: hydroelectricity producers Excluded: environmental organisations Absent: nuclear energy producer Included: hydroelectricity Multifunctional producers nuclear energy regulation of few producer water uses Excluded (but emerging): public administrations responsible for environmental preservation Included: hydroelectricity Multifunctional producers nuclear energy regulation of hetproducers public administraerogeneous and tions in charge of environcomplex rivalries mental preservation Excluded (but emerging): environmental organisations

Monofunctional regulation

Mono/multifunctional regulations

Transboundary agreements existing on a sectorial basis

Management at the basin scale in France only (through CNR concession) no transboundary agreements

Spatiality

Switzerland: public actors Attempt to define new transboundary as regulator and maninstitutional mechaager (for environmental nisms between public issues)/semipublic actors authorities as manager France: private actors as manager/public actors with reinforced regulatory power in energy and environmental fields

Switzerland: public actors as regulator/semipublic actors as manager France: on a sectorial basis private actors and self-management

Switzerland: public actors as manager and regulator France: private actors and self-management

Private or public actors involvement

Table 3.2  Evolution of the Rhône River’s governance from 1870 to present

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area. Thus, although private actors still self-organize, public authorities seem to be getting increasingly involved: they are the actors who decide—and sometimes impose—priority uses. In this context, the transboundary scale tends to be imposed not only as an operational space but also as a new political arena, characterized by potentially opposing political agendas and regulatory framework objectives. Thus, changes in territorialities have taken place under the pressure of the emergence of more and more heterogeneous uses, which require public authorities to play a stronger role. In this ongoing phase, the need to co-ordinate complex uses impels public authorities to build a new transboundary and political space of regulation. 2. What are the major changes in these models in terms of scale of governance and scope of intervention? How have the geographical boundaries of governance systems been defined and how have they changed? Through our description of the three different phases of the Rhône’s governance, we have demonstrated that the territoriality of river management tends to evolve in an incremental way from monofunctional spaces of regulation to a multifunctional, transboundary regulatory space at the river-basin scale, in line with the concept of IWRM. At first, management of the river was restricted within national borders. Then private actors implemented several transboundary agreements, which remained mainly dependent on the hydropower sector and on autonomous management procedures and arrangements between private actors. Finally, public actors are now trying to define new institutional mechanisms able to span national borders and move well beyond operational co-ordination between hydropower producers. The shift in the territorialities of river governance is strongly influenced by the emergence of new uses and heterogeneous rivalries, which are leading to multifunctional regulation of the river. This is especially true when new uses have a potential impact on a wider scale and across national frontiers. For example, the use of the Rhône’s waters for nuclear power plant cooling is a major issue, since an accident at Bugey Nuclear Power Plant, situated 35 km from Lyon and 110 km from Geneva, would have an impact on both France and Switzerland.

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Equally, the reverse has proved true: the evolution of river governance territoriality has an impact on the way different uses are integrated. The first phase was characterized by monofunctional regulation, organized between different but interconnected regulatory spaces, with one main type of use—hydropower production—included in the governance structure. During the second phase, public actors modified the regulatory framework and private actors adjusted their arrangements in order to reconcile nuclear power and hydropower uses of the river. The third phase is characterized by multifunctional regulation of heterogeneous, complex rivalries. As we have observed, central and local authorities have gradually integrated new water uses into the spaces of regulation, legitimizing activities such as environmental and ecosystem conservation. By modifying regulatory frameworks and introducing new requirements into concession contracts, they have obliged hydropower producers to take these previously unrecognized uses into account in their management of the river. Thus, since the early 2000s, the implementation of a new political agenda in relation to IWRM has tended, on the one hand, to reinforce the inclusion of heterogeneous uses and rivalries among users and, on the other hand, to strengthen management of upstream–downstream interdependencies along the Rhône. 3. How has public participation in the processes of reshaping transboundary governance of the river evolved? We have revealed the obstacles that stand in the way of implementing participation in a transboundary setting characterized by diversity of institutional frameworks and absence of a central river basin organization to ensure co-ordination. Notably, the case of the River Rhône illustrates how international treaties can allow links to be established and how fragmentation arising from the presence of political borders can be overcome in order to put a participatory process into effect. It shows that there can be multiple arenas for participation along a river. On the one hand, this kind of context increases the risk of incoherencies between the different participatory processes that may be implemented. On the other hand, it opens up the possibility of creating issue-based arenas in the aim of solving more or less specific problems and of responding to stakeholders’ concerns in a transboundary

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perspective. This is particularly the case with CIPEL and, more recently, with the management of sediment flushing at the Verbois Dam between Switzerland and France. * * * Using the case of the Rhône, we have demonstrated that redefinition of the territoriality of river governance can lead to power games between actors at different scales, as well as to inter-sectoral tensions and rivalries. The role played by hydropower operators and subsequently by public authorities shows that different kinds of territoriality can apply to river management, sometimes going beyond national borders. While public actors now tend to promote IWRM, the history of the governance structure of the Rhône illustrates how, in the past, agreements oriented largely towards the functioning of one branch of activity created a situation in which the introduction of strong regulation at the river-basin scale could be avoided. However, we have also shown that, in the third—most recent and continuing—phase, the institutional setting has evolved towards greater complexity, with an increasing number of actors involved, a blurring of roles and functions, multiple scales of intervention and a number of overlapping initiatives at different institutional levels, sometimes targeting similar objectives. Therefore, reflecting on the historical development of the governance structure, we offer the conclusion that, potentially, the coherence of river management—and consequently its level of integration—may actually diminish during this ongoing phase of governance.

Bibliography Barraqué, B. (2003). Past and future sustainability of water policies in Europe. In Natural resources forum (Vol. 27, pp. 200–211). Hoboken: Wiley. Beniston, M., Stoffel, M., & Hill, M. (2011). Impacts of climatic change on water and natural hazards in the Alps: Can current water governance cope with future challenges? Examples from the European “ACQWA” project. Environmental Science and Policy, 14(7), 734–743.

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Bolognesi, T. (2014). The results of modernizing network industries: The case of urban water services in Europe. Competition and Regulation in Network Industries, 15(4), 306–333. Bressers, H., & Kuks, S. (2004). Governance of water resources. In Integrated governance and water basin management (pp. 1–21). Dordrecht: Springer. Bréthaut, C. (2016). River management and stakeholders’ participation: The case of the Rhone River, a fragmented institutional setting. Environmental Policy and Governance, 26(4), 292–305. Bréthaut, C., & Pflieger, G. (2015). The shifting territorialities of the Rhone River’s transboundary governance: A historical analysis of the evolution of the functions, uses and spatiality of river basin governance. Regional Environmental Change, 15(3), 549–558. Chauveau, M., Chazot, S., Perrin, C., Bourgin, P.-Y., Sauquet, E., Vidal, J.-P., … Norotte, T. (2013). Quels impacts des changements climatiques sur les eaux de surface en France à l’horizon 2070? La Houille Blanche, 4, 5–15. Delahaye, E. (2009). Les espaces fluvio-urbains rhodaniens à l’aval de Lyon: vienne, Valence, Avignon, Tarascon, Beaucaire et Arles: des territoires à la dérive? Lyon 2. Fishkin, J. S. (2011). When the people speak: Deliberative democracy and public consultation. Oxford: Oxford University Press. Ghiotti, S. (2006). Les Territoires de l’eau et la décentralisation. La gouvernance de bassin versant ou les limites d’une évidence. Développement Durable et Territoires. Économie, Géographie, Politique, Droit, Sociologie (Dossier 6). Guerrin, J. (2015). A floodplain restoration project on the River Rhône (France): Analyzing challenges to its implementation. Regional Environmental Change, 15(3), 559–568. Kaika, M. (2003). The Water Framework Directive: A new directive for a changing social, political and economic European framework. European Planning Studies, 11(3), 299–316. Mauch, C., Reynard, E., & Thorens, A. (2000). Historical profile of water regime in Switzerland (1870–2000). Lausanne: IDHEAP. Paquier, S., & Pflieger, G. (2008). L’eau et les services industriels de Genève: aux sources du modèle suisse des services urbains. Entreprises et Histoire, 1, 36–51. Pritchard, S. B. (2004). Reconstructing the Rhône: The cultural politics of nature and nation in contemporary France, 1945–1997. French Historical Studies, 27(4), 765–799.

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Pritchard, S. B. (2011). Confluence: The nature of technology and the remaking of the Rhône (Vol. 172). Cambridge: Harvard University Press. Ruiz-Villanueva, V., Stoffel, M., Bussi, G., Francés, F., & Bréthaut, C. (2015). Climate change impacts on discharges of the Rhone River in Lyon by the end of the twenty-first century: Model results and implications. Regional Environmental Change, 15(3), 505–515. Storck, F., Pochat, M., & Tosello, F. (2004). Utilisation des outils ArcVeiw 3D—Tracking Analys pour l’étude de l’aléa inondation induit par les crues du Rhône et de la Saône sur le territoire du Grand Lyon. In Unpublished paper presented at SIG 2004, conférence francphone ESRI, Issy-Les-Loulineaux. UNEP, G. (2007). Rhone Basin. Retrieved from http://www.grid.unep. ch/index.php?option=com_content&view=article&id=73&Itemid=400&lang=en&project_id=25FE9290. Usui, Y. (2003). Evolving environmental norms in the European Union. European Law Journal, 9(1), 69–87. Varone, F., Reynard, E., Kissling-Näf, I., & Mauch, C. (2002). Institutional resource regimes: The case of water management in Switzerland. Integrated Assessment, 3(1), 78–94.

4 The Emergence of Multifunctional Transboundary River Governance

This chapter focuses on questions related to the management of intersectorality and to the emergence of a multifunctional form of transboundary river governance. We shall continue our discussion of the ways in which transboundary governance of the Rhône has altered and, during the course of this chapter, embark on discussion of the strengths and weaknesses of modes of transboundary governance of the river, which we shall then pursue in Chapter 5. To be more precise, this chapter will tackle the following questions: a. How have shifts in the river’s major functions, uses and rivalries led to re-examination of modes of governance of the river? b. In the absence of any consolidated framework of transboundary governance, how has this river been managed until recently? c. When we observe the practical management of the river from various different angles, tensions are revealed: how good is this system of governance at co-ordinating the stakeholders to resolve them? Governance of the Rhône River involves a diverse range of actors, all targeting different objectives. This chapter focuses on the management © The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_4

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of intersectoral linkages in river use and some issues relating to it. We analyse five main focal areas: (1) hydropower and upstream–downstream co-ordination, (2) Lake Geneva water levels and management of the Rhône’s flow-rates, (3) abstraction of water for various productive uses (irrigation, cooling of nuclear power plants, drinking water production, etc.) and (4) sediment management and ecological restoration. Hydropower and upstream–downstream co-ordination Downstream of Lake Geneva, the Rhône is managed by just three hydropower operators. In Switzerland, Services Industriels de Genève (‘SIG’) is responsible for managing water levels in Lake Geneva. It also holds concession contracts to operate two dams. The Seujet Dam infrastructure controls the Lake Geneva water level and generates a very small amount of electricity. The other installation is the Verbois Dam, which draws on the flow-rates produced by the Seujet Dam and generates a lot of electricity. SIG is also the main shareholder in the Société des Forces Motrices de Chancy-Pougny (‘SFMCP SA’), the company responsible for managing the Franco-Swiss Chancy-Pougny Dam, which is jointly owned by SIG (72%) and the Compagnie Nationale du Rhône (‘the CNR’). Lake Geneva water levels and management of the Rhône’s flow-rates The management of water levels in Lake Geneva depends on an agreement signed in 1984 between the Swiss cantons that border the Lake, under the auspices of the Swiss Confederation. Despite the fact that most of the south shore of the Lake is in France, regulation of its water levels relies solely on Swiss management mechanisms. Consequently, France has no influence on water flows downstream of Geneva. This section aims to explain the situation, focusing on how the co-ordination mechanisms—which depend mainly on hydroelectricity producers— function and on its effects on the various other uses of the Rhône. Abstraction of water for productive uses Several branches of activity along the Rhône withdraw fairly large volumes of water from the river. Irrigation is a good example, with largely seasonal needs, mostly in the summer months. But there are other uses

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equally dependent on the river: industrial activities, drinking water production, the cooling of nuclear power plants (NPP). From a transboundary governance point of view, there is only one nuclear power plant involved: Bugey NPP (35 km upstream of the city of Lyon and 110 km downstream of the city of Geneva). Although hydropower plays a dominant role in the governance system, other types of uses also represent major socio-economic challenges. Consequently, hydroelectricity producers are under an obligation to ensure co-ordination with other users and negotiate water transfers. Sediment management and ecological restoration The need to manage sediment at dams along the Rhône may provide one of the best illustrations of upstream–downstream co-ordination. The analysis of sediment transfer arrangements involves a case study of how co-ordination functions and how the different stakeholders interact. Focusing on a specific crisis—in the form of a sediment flushing operation—we shall identify the capacities of the governance structure to manage crisis and reflect on the flexibility and adaptive capacities of some of its institutional arrangements.

4.1 Hydropower and Upstream–Downstream Co-ordination Historically, the various concession contracts in force for managing Rhône flow-rates gave a dominant role to hydroelectricity operators— an aspect covered in the previous chapter. In this chapter, we shall look in more depth at the river management agreements and measures implemented by the actors concerned. Here the governance structure is presented solely through its operational dimensions—that is, through interactions that have a practical effect on flow-rate management, abstraction of water or water transfers. This focus should provide us with an understanding of how these relationships achieve co-ordinated river management and establish mechanisms allowing water transfer from one actor to another. It should also enable us to identify the main issues affecting a river that is primarily co-ordinated through concession

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contracts for producing hydroelectricity.1 In addition, this approach will enable us to see more precisely how new uses of the river and legislation for better nature conservation and ecosystem protection are exerting an increasing influence.

4.1.1 Operational Governance for the Rhône: The Strong Influence of Hydropower Producers We start by presenting the Swiss Rhône governance structure. In Switzerland, the river is managed mainly through public or semi-public actors, whose activities are strongly underpinned by the Intercantonal Agreement on Correcting and Regulating Lake Geneva Water Flows. Figure 4.1 provide a map of water infrastructures surrounding Lake Geneva and directly concerned by the different institutional arrangements in place.

4.1.2 Swiss Rhône Governance Structure As Fig. 4.2 shows, the governance structure of the River Rhône in Switzerland relies mainly on legal mechanisms governed by public law and is characterized by the fact that the governance system concerns a significant number of stakeholders. The cantons have a strong presence in this system, through their part in defining and implementing the Intercantonal Agreement (covered in more detail in Sect. 4.2 below) and because they award the concession contracts for managing the structures that control Lake Geneva. SIG produces electricity, distributes gas, water and energy for heating, manages waste and provides telecoms services. Although ownership

1In fact, operators’ responsibilities are not limited to hydroelectricity production, but also include navigation or maintaining riverbanks. However, by far most development of the Rhône is directed at producing hydroelectricity—a use which seems to have been prioritized de facto since the early twentieth century (Pritchard, 2011).

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Fig. 4.1  Map of the water infrastructure surrounding Lake Geneva

Fig. 4.2  Governance structure of the Rhône in Switzerland (OFEN: Swiss Federal Office of Energy; OFEV: Federal Office for the Environment; SIG: Services Industriels de Genève; SFMCP: Société des Forces Motrices de Chancy-Pougny)

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of the company lies solely in the public sector (55% of the share capital belongs to the Republic and Canton of Geneva, 30% to the City of Geneva and 15% to municipalities in the Canton), it functions as a traditional industrial player in a market that is partially open to competition. Therefore SIG is able to define its industrial and commercial strategy on an autonomous basis. On the other hand, the company remains subject to a certain degree of control by its Board of Directors, on which all the shareholders are represented. As an operator, SIG has certain amount of independence in management choices and in defining day-to-day modes of operation. However, the latter remain highly constrained, from a production strategy point of view, by the provisions of the Intercantonal Agreement—in particular, by the fact that the various concessions granted to SIG make it a priority for the company to comply with the Agreement. In this context, the Canton of Geneva occupies a key position. It is not only the shareholder controlling most of the endowment capital in a hydroelectricity producer but also the authority that defines the concession contract terms for the Seujet and the Verbois Dams. Furthermore, it is the authority that sets SIG’s objectives, including its environmental conservation objectives. The Canton plays a pivotal role between the concerns of the upstream stakeholders (the cantons above Lake Geneva and the lakeside municipalities) and the downstream stakeholders.

4.1.3 French Rhône Governance Structure The French Rhône governance structure differs fairly significantly from the Swiss one, since regulation of the river in France derives primarily from co-ordination between private-sector or semi-private actors (Fig. 4.3). It is characterized by the extreme complexity of its contractual mechanisms and by a degree of self-organization on the part of the actors for managing and transferring water. Multiple agreements have been made between the two main industrial users of water from the Rhône: the CNR, which uses it to generate hydroelectricity, and EDF, which withdraws water to cool its NPP.

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Fig. 4.3  Governance structure of the Rhône in France (ASN: Nuclear Safety Authority; DREAL: Regional Directorate for Environment, Spatial Development and Housing, Rhône-Alpes Region; SFMCP: Société des Forces Motrices de Chancy-Pougny; SIG: Services Industriels de Genève; CNR: Compagnie Nationale du Rhône; EDF: Electricité de France)

There are public actors in the stakeholder configuration, but they are not directly involved in operational management of the river. The Regional Directorate for Environment, Spatial Development and Housing (‘DREAL’, a decentralized department of central government) is the authority with oversight—through the concession contract—of the CNR, while EDF, a company governed by private law, is regulated by the Nuclear Safety Authority (‘the ASN’). However, the complexity and the fragmentary nature of agreements concluded between private actors can limit the capacity of public bodies to steer operational management of the river. This aspect of the governance structure is now tending to influence the authorities towards significant attempts to get involved in the co-ordination mechanisms currently in play. Finally, although France is partly dependent on Switzerland (and on the Intercantonal Agreement) in regard to Rhône flow-rates, it is nevertheless in a position to take action to enable additional transfers of

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water. This mechanism can be activated by drawing on waters diverted from the River Arve following the building of the Emosson Dam upstream of Lake Geneva, which became operational in 1976. This joint French-Swiss development is covered by the 1963 Convention between the Swiss Confederation and the French Republic on the Emosson Dam Hydroelectricity Development of 23 August 1963 (‘the Emosson Convention’). This agreement contains various provisions regulating collaboration between Switzerland and France at the construction stage. But the Emosson Convention is also particularly important from the point of view of managing the Rhône. This is because the Emosson Dam impounds part of the water from the Arve River Basin, which had previously flowed through France before reaching Geneva. In order to return these French waters, the Convention allocates a share of Lake Geneva’s waters to France, to be recovered at the outlet of the Lake. The application of Article 20 of the Emosson Convention depends on a supplementary agreement that defines the arrangements for returning this water: the ‘Year 2000 Implementation Measures’ (Mesures d’execution 2000 ). France holds a stock of 85,000,000 m3 of water in Lake Geneva, with a depth range of 150 mm. Therefore the operators responsible for managing Lake Geneva’s water levels must guarantee France a minimum reserve of water, equivalent to a 50-mm layer of water across the whole surface of the Lake—and this must be available throughout the year (with the exception of March to May in normal years and February to May in leap years). They must also respond to requests for water from the French stakeholders. This section of our study has shown that there are fairly significant governance differences between the two countries, since the situation in France—unlike that in Switzerland—is characterized by multiple agreements governed by private law, underpinning its co-ordination and water management mechanisms. In the next section, we go on to study the legal instruments and convention-based mechanisms that apply to management of the Rhône, as outlined above. This presentation will allow us to analyse to what extent the agreements in force are based on formal legal frameworks and to what extent they rely on relatively informal arrangements (where operational management is not governed by relevant legal provisions).

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4.1.4 Analysis of Convention-Based Instruments Having looked at the main characteristics of governance structures in both Switzerland and France, we now focus on the main legal instruments for managing the Rhône. These consist of various international conventions and agreements, Swiss measures at intercantonal level or in the different cantons and, finally, a number of French provisions. i.  International conventions and agreements As we have already seen, management of the Rhône is partly influenced by the 1963 Emosson Convention. This document lays down the principle that the waters of the River Arve are to be returned to France at the outlet of Lake Geneva. Under Article 20 of the Convention, France recognizes that Switzerland is free to use the water diverted into the Emosson Dam reservoir. Water from the Arve River Basin in France is stored in Lake Geneva, to be returned when requested by France. It is the Emosson Convention itself that initially establishes the principle of returning the waters of the River Arve, but it is the Year 2000 Implementation Measures (signed by France on 27 March 2000 and by Switzerland on 5 April in the same year) that put this decision into practice and clarify how the water reserve defined in Article 20 of the Convention is to be managed (Paragraph 1 of the Implementation Measures). The Implementation Measures also state how this water is to be returned—through gradual linear transfer (Paragraph 4). Finally, an important aspect of this supplementary agreement is an undertaking by the Parties to exchange information about variations in Lake Geneva water levels or about any changes to operational practices at the Seujet Dam (Paragraph 5). It relies on a high level of transparency on the part of SIG—which operates the Seujet Dam—in sharing information with the other Rhône management stakeholders. This is counterbalanced by the CNR’s responsibility, under Paragraph 6, for calculating the value of the stored waters of the River Arve on a weekly basis, according to the quantities of water withdrawn. The Implementation Measures were initially ratified for a period of five years, and then renewed in 2005, 2010 and 2015.

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ii.  The Intercantonal Agreement As we have seen, management of Lake Geneva and Rhône flow-rates are strongly dependent on the Intercantonal Agreement on Correcting and Regulating Lake Geneva Water Flows (11 September 1984)—the historical origins of which we presented in Chapter 3. This updated version of the 1884 Intercantonal Agreement specified, in the second paragraph of Article 1, that a new control structure should replace the existing installations, which had fallen into dilapidation. This led to construction of the Seujet Dam (under Article 2), in order to modernize the control mechanism that had previously depended on the curtain weir at the Pont de la Machine. Building of the new structure was financed by SIG, while the signatories to the Intercantonal Agreement were to be responsible for its operating costs. Although Switzerland invited French participation, France was not involved in building this infrastructure for controlling Lake Geneva water levels. The practical effects of this Agreement on management of these water levels are discussed in Sect. 4.1.2 below. iii.  Measures adopted by the Canton of Geneva The Canton of Geneva adopted four measures to put the Intercantonal Agreement into practice by setting out operating methods for the new Seujet Dam: these will be presented in detail in Sect. 4.2, where we look at Lake Geneva’s water levels. Chief of these were the Regulations on operating the infrastructure for correcting and regulating Lake Geneva water levels at Geneva (17 September 1997), which in turn were put into effect by a contractual mechanism—the Methods for Application of the Infrastructure Operation Regulations (1 December 1997), agreed between and ratified by SIG and the Canton of Geneva. Two further provisions provided a framework for this relationship: the Convention between the Republic and Canton of Geneva and Services Industriels de Genève (12 November 1984) and the Law granting a Concession to Services Industriels de Genève for use of the hydraulic power of the River Rhône in order to operate a hydroelectric plant at Seujet. The latter was

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passed on 12 September 1984 and came into force on 1 July 1997 when the Seujet Dam became operational. iv.  Binational measures The Chancy-Pougny hydroelectricity plant was first granted a concession in 1915. As the facility was a Franco-Swiss project, in formal terms the concession was awarded jointly by France and Switzerland. The operator of this dam is the Société des Forces Motrices de Chancy-Pougny (SFMCP SA), a limited company under Swiss law. Although from a strict legal point of view, the company is an additional Rhône operator, not only its ownership structure but also the way it is run tie it closely to SIG—in particular, its operations are co-ordinated with SIG’s upstream dams and with those belonging to the CNR, the French operator. v.  The French Rhône concession As we saw in Chapter 3, there is also a concession covering the section of the Rhône that flows through France. As Delahaye (2009) points out, the CNR’s Concession Contract is underpinned by General Terms of Reference and a Master Plan. In agreeing these two documents, the operator undertakes to carry out works and engage in various activities on the Rhône. The current Master Plan covers the period from 2003 to 2023. While it mainly relates to activities in the sectors for which CNR is responsible under the terms of the Concession (hydroelectricity generation, navigation, agriculture), it also includes environmental management guidelines. The General Terms of Reference merely define overall objectives, therefore CNR implements a ‘Public Interest Action Plan’ every five years, in order to set out various more specific activities. This is effectively a set of shortterm TORs and relates to particular action plans, such as those for developing tourism and other economic activities along the river (the 2004–2008 Plan) or for implementing a programme of activities consistent with the national objectives set by the Grenelle Environmental Round Table. These include, for example, efforts to maintain fish transit or renaturation of certain undeveloped sections of the river often referred to as the ‘old Rhône’.

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vi.  International conventions There are various international conventions which offer a supporting framework for transboundary management of resources, including water resources. We have already mentioned the UN Watercourses Convention (the UN Convention on the Law of the Non-Navigational Uses of International Watercourses of 21 May 1997), the Espoo Convention (the UNECE Convention on Environmental Impact Assessment in a Transboundary Context), the 1992 Helsinki Water Convention (the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 17 March 1992) and the Aarhus Convention (the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). Conventions like this have as yet rarely been applied to the Rhône, although some of them have been used on isolated occasions. One of these was when the Espoo Convention was brought into use in order to provide a framework for sediment flushing at the Verbois Dam: its provisions enabled a transboundary participation process to be established, with a public inquiry jointly co-ordinated by France and Switzerland (see Chapter 3).

4.1.5 Upstream–Downstream Co-ordination and Procedures Formally Agreed Between Energy Producers The sections above have outlined all the legal provisions that currently frame management of the Rhône. We now turn our attention to the state of interactions around the river, focusing on various types of operational procedures formally agreed between the different electricity producers on the Rhône. Among other things, we highlight the significant degree to which self-organization regulates the flow regime in the section of the river we studied. Although SIG and the CNR are the main operators involved, it is also important to look at the role played by EDF, which relies on the Rhône for cooling its NPP. The only one of these on the section of the river we studied is Bugey Nuclear Power

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Plant, which is situated upstream of the Lyon metropolitan area. The Société des Forces Motrices de Chancy-Pougny (SFMCP SA) also operates on this section of the river, managing the transboundary dam with responsibilities that parallel those of the CNR, SIG and EDF. In order to simplify our analysis and the presentation of the various co-ordination mechanisms, we do not devote a specific part of this chapter to this operator, since it is jointly owned by SIG (the majority shareholder) and the CNR. Our presentation of the governance structure and of the various legal provisions has pointed to the complexity and the significant fragmentation of the co-ordination mechanisms that exist between the energy producers. Next, we go on to look at the various operational mechanisms formally agreed between electricity producers for co-ordinating their use of the Rhône. These formalized procedures largely reflect three types of collaboration. First and foremost, the exchange of information is vital for advance planning and implementation of production schedules. The second aspect of collaboration relates to water transfers between the different operators. These mainly take place under bilateral conventions (such as the Emosson Convention) or on the basis of resource management mechanisms organized jointly by the operators themselves. Thirdly, the companies concerned may collaborate to build joint hydroelectricity projects. Therefore the CNR and SIG are at the same time competitors on the electricity market and partners in building production installations.

4.1.6 Procedures Formally Agreed Between SIG (Switzerland) and the CNR (France) The relationship between SIG and the CNR is largely based around three formalized procedures, covering information exchange and collaboration on hydroelectricity projects. For the first of these, a precise co-ordination mechanism defines the type, timing and frequency of the data that the operators must send each other. SIG provides details of its production schedules to the CNR, which is then in a position to anticipate the different inputs of water from the Rhône and to set

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hydroelectricity production levels at its installations downstream of Geneva. Obviously, therefore, collaboration between the two operators is important when it comes to exchanging details of production schedules. However, it should be said that SIG retains a position of strength: because it is situated upstream, it occupies a key position that enables it to respond to peak demand by generating hydroelectricity at very specific times, keeping its production schedules continuously optimized in line with demand. An interaction between the two operators can also take the practical form of a jointly owned production installation. As we have already seen, they are both involved in SFMCP SA, with each owning part of the share capital. The procedures applied in that instance relate not only to collaboration between SIG and the CNR but also to sharing of the energy produced by the Chancy-Pougny plant. SFMCP SA sells the energy it produces to the two operators, but SIG then purchases the CNR’s share and thus becomes the owner of all the electricity produced by this dam. Finally, these two operators also collaborated on the proposed Conflan Dam project, on the section of the Rhône that runs along the border between France and Switzerland downstream of ChancyPougny. The projected collaborative model was to implement a structure similar to that of SFMCP SA—in other words, to establish an independent company jointly owned by the future operators of the installation. This project is currently still at the feasibility stage, undergoing a procedure in which simultaneous French and Swiss public inquiries would be followed by the conclusion of a binational agreement. In Switzerland, building consent will be granted at the same time as award of the concession, whereas in France there is a two-stage procedure in which building consent will be granted first and then the concession will be awarded to an operator chosen on the basis of a draft concession. Assuming this procedure is followed through to its conclusion, in Switzerland the concession will be awarded de facto to SIG. In France, however, the operator who initiates the project will not necessarily be the one chosen at the end of the procedure.

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4.1.7 Procedures Formally Agreed Between the CNR (France) and EDF (France) Co-ordination is equally necessary further downstream, between the CNR, which holds concessions on installations for regulating the flow regime and for hydroelectricity production on the Rhône, and EDF, the operator of NPP along the Rhône—in particular Bugey NPP, which is situated on the section of the river covered by our research project. These two operators co-ordinate water transfer arrangements, as EDF needs to be guaranteed a continuous supply of 130 cubic metres per second (m3/s) for cooling Bugey NPP. To meet this requirement, EDF is able to rely on using the waters of the River Arve, since it benefits from the priority granted by the French government to the use of this water for nuclear power generation and for navigation. The guarantee of this continuous supply of water to Bugey NPP is achieved through two procedures that have been formally agreed between the CNR and EDF. The first of these is the Agreement on Managing the River Arve Water Reserves Available from Lake Geneva, signed by the CNR and EDF on 5 June 2002. This agreement begins by noting the priority accorded to the nuclear power sector in using this stored resource (Article 2). Next, in order to facilitate water transfer arrangements, Article 3 provides that the CNR is to represent EDF in dealing with SIG—amending the Year 2000 Implementation Measures on this particular point. Therefore when EDF wishes to draw on the reserve of River Arve waters, it makes its request to the CNR, which then passes this on to SIG. Article 4 provides that the CNR can decide to vary EDF’s request and supply the water directly, if it has enough water to do so. This allows the CNR to make use of the River Arve waters at a more beneficial time in terms of its hydroelectricity production schedule—for example, when it is more economically attractive to generate enough to satisfy peak demand—and thus optimize the value of these waters. Therefore the transfer of water from the River Arve reserve is based mainly on a co-ordination mechanism that depends primarily on agreements governed by private law. Although the public stakeholder is still

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present through its role as oversight authority (through DREAL or the ASN), it has no direct involvement in the water transfer co-ordination arrangements. The Convention’s final provision of significance in this context covers exchange of information, enabling the stakeholders to adapt production infrastructure operations to variations in the flow regime. The second measure to ensure EDF’s water supply allows the company to ask the CNR to adapt its production schedule. If it needs to, EDF can request additional quantities of water that are not part of the River Arve water reserve. This entails EDF purchasing the additional water and compensating the CNR for its loss of optimal scheduling of hydroelectricity production.

4.1.8 Overview: The Main Characteristics of the Rhône’s Governance Having presented the governance structure in Switzerland and in France and the various legal provisions that apply to managing the Rhône, we now, by way of an overview, summarize the main characteristics of governance of the river. The first point to be made is that, as Fig. 4.4 illustrates, the Rhône governance structure is characterized by a large number of stakeholders and by fragmented management mechanisms and legal provisions. As things stand at the moment, few stakeholders enjoy a complete picture of how the river is managed. The actors involved have in-depth knowledge of the mechanisms that concern them, but they lack any overview of how the various approaches to river governance actually function. River management remains opaque in this regard because of the lack of any focal point to take specific responsibility for steering river governance and because there are no institutions managing the river basin as a whole. There are very few arenas that would facilitate structured discussion between the various stakeholders. The International Commission for the Protection of Lake Geneva (CIPEL) allows stakeholders to meet and share information informally, and the activities it undertakes are characterized by a significant degree of transboundary collaboration:

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Fig. 4.4  Overall structure of the binational Rhône governance

these actions have enabled enormous improvements in Lake Geneva water quality and the implementation of research programmes to increase understanding of the Lake. However, although this provides a transboundary framework for Lake Geneva, the Rhône itself has no transboundary institutional management body that could play a similar role in supporting discussions among stakeholders. A second characteristic of the Rhône is that it has few public policy instruments appropriate for river management. Although both the Swiss and the French national legal frameworks governing water in general have relatively similar objectives, there are no mechanisms to enable co-ordinated management of this river as a water resource. On the other hand, it is worth noting that all sub-basins of the region of Geneva are the object of a transboundary river contract that allows for transboundary co-ordination. The two national frameworks for governance of the Rhône are somewhat different. In Switzerland, the public-sector stakeholders play a

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dominant role in managing the river waters, while the presence of a Rhône operator is strongly constrained by regulatory frameworks. In France, there is a predominance of private-sector actors, which— although they operate within the regulatory framework and are overseen by central government—engage in a mutual self-organization process in order to establish co-ordination mechanisms and arrangements for regulating the Rhône’s flow regime. Therefore measures for managing the Rhône are mostly based on interactions between the private-sector actors, who collaborate to a certain extent in managing Rhône flowrates. This self-organization arises from a context where the operators are in a form of direct competition—though this is relative, since they are operating in different markets (the CNR acts as a wholesaler, while SIG is an electricity provider) or are producing electricity in response to different kinds of demand (base load as against peak demand). Self-organization offers certain advantages. First and foremost, it facilitates adaptation of arrangements for river management to meet the concerns of the actors, who are able to design contractual measures for jointly agreed, co-ordinated approaches to river management. Taking Geneva as the focal point, the current agreements between SIG and the CNR provide a structure for co-ordination between users upstream and downstream of the city and represent a relatively mature system for collaboration, capable of resilience in the face of any difficult or exceptional situation. Self-organization between private-sector operators is implemented on a day-to-day basis, but also seems to function well at other times: there is close, effective collaboration between public and private stakeholders to manage any crises. The severe low water levels experienced in 2003 and 2011 could have posed challenges for some water uses, such as abstraction for irrigation or nuclear power plant cooling—but these were satisfactorily resolved through the existing governance system. This demonstrates that the methods of Rhône management which depend on actors’ self-organization have a degree of flexibility, since they leave the operators considerable freedom to define co-ordination measures suited to their respective needs and open to periodic renegotiation. On the other hand, these different mechanisms also pose certain problems.

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Most of the time, these arise from a predominantly sectoral view, based on electricity production. The river’s flow regime depends on co-ordination arrangements between the operators, who aim to facilitate electricity generation at their production installations. Therefore alternative uses of the river, such as ecosystem conservation, are viewed as merely secondary and remain closely tied to the conditions in which hydroelectricity is produced. Moreover, most of the time these different measures are negotiated bilaterally, which means they are reliant on the stability of the configuration of actors involved. Consequently, the liberalization of the European electricity market and/or any future re-award of the French Rhône concession would raise questions about the impact of such changes, not only on homogeneous rivalries between operators (which are inherent in the entry of a new operator into the market or in the call for tenders for a new concession) but also on the entire structure of the Rhône’s governance. In addition, any changes in water regimes also raise the issue of how far regulatory mechanisms are able to adapt to the emergence of stronger rivalries between the different river users. Finally, the proliferation of agreements between different operators means that the rules of the game for day-to-day management of the Rhône have become highly opaque. Therefore, as some of the stakeholders are now asserting,2 the number of agreements in force and the resulting fragmentation could rapidly create a web of inextricably binding legal commitments. To sum up, current agreements for managing the Rhône are characterized by a high level of self-organization on the part of private-sector operators and by a degree of flexibility, but also by a certain legal robustness. However, these mechanisms are open to renegotiation at regular intervals (every five years), potentially leading to rapid change in the conditions that frame river governance. Therefore it is worth investigating the capacities of such arrangements to adapt, most particularly to

2EDF

and the CNR, for instance, have set about significantly simplifying their framework collaboration agreements.

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situations where growing homogeneous or heterogeneous rivalries put the operators in a position where their own different interests conflict.

4.2 Lake Geneva Water Levels and Management of the Rhône’s Flow-Rates Water levels in Lake Geneva are subject to a highly structured regulatory mechanism for defining the Rhône’s flow regime. The basis of this is the 1884 Agreement between the Swiss cantons of Geneva, Vaud and Valais under the auspices of the Swiss Confederation (Chapter 3 gives an account of the history of this document). Precise benchmark water levels for Lake Geneva are defined on a monthly basis. The Agreement, updated in 1984, sets minimum and maximum altitudes in order to regulate fluctuations in the Lake’s water levels and thus the quantities of water released downstream of Geneva. From a practical point of view, the lake level is controlled at Geneva through the Seujet Dam. This infrastructure is managed through a concession awarded to SIG. Although Lake Geneva is shared between the two countries—and a large part of its south shore is in France—control of its water levels relies on a co-ordination mechanism designed solely in Switzerland. Therefore, since France expressed no desire to take part in the system for regulating Lake Geneva, it has no formal right or policy instrument through which it could intervene in the management of monthly changes in lake levels or of quantities of water released downstream of Geneva, with the exception, as we have seen above (Sect. 4.1) of the waters of the Arve River. Consequently, the French municipalities on the south shore of Lake Geneva, the operator managing the Rhône in France and the local and regional public authorities downstream of Geneva are all dependent on an agreement set up by Switzerland. The aim of the next section is to provide a detailed picture of the mechanism for controlling and co-ordinating the water level in Lake Geneva. As we have already seen, although the document originally related solely to Lake Geneva water levels, de facto it has an equally

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strong influence on methods for co-ordinating Rhône flow-rates between Lake Geneva and Lyon. Therefore this section will evaluate the positions of the different stakeholders who are, to a greater or lesser extent, directly affected by this regulatory agreement: the neighbouring cantons and municipalities, hydroelectricity producers and other river users downstream of Geneva. This stage of our analysis will enable us to identify the main governance issues and, in particular, the upstream and downstream effects on the Rhône of a control mechanism of this kind.

4.2.1 The 1984 Intercantonal Agreement on Controlling Lake Geneva Water Levels A new version of the Intercantonal Agreement was ratified on 11 September 1984. The main reason for this renegotiation was to facilitate modernization of the infrastructure built between 1883 and 1886, which had become obsolete and needed to be replaced. The second paragraph of Article 1 of the new Agreement provided for a new control structure to replace the existing installations. The new installation was to be constructed in Geneva, in a locality known as ‘Le Seujet’, and— as Article 2 stipulated—had to be capable of controlling the lake level while generating hydroelectricity. Building of the Seujet Dam began in 1987 and was completed in 1995. Although the required maximum and minimum lake levels were to remain unchanged, this new version of the Intercantonal Agreement opened up the possibility of introducing a new actor into the operational configuration: Article 4 stated that the executive government of the Canton of Geneva could grant a concession for management of the infrastructure at Seujet and thus for control of Lake Geneva’s water levels. As Article 4 of the Infrastructure Operation Regulations (17 September 1997) explicitly states, the Canton of Geneva entrusted management of the Seujet Dam to SIG. Although the Canton retains supervisory authority and legal liability, SIG puts the provisions of the Intercantonal Agreement into practice and is therefore responsible for ensuring that the defined monthly levels are met: this means that, as far as the situation at the outlet of Lake Geneva is concerned, SIG is the Rhône operator. The second

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paragraph of Article 5 of the Agreement defines the maximum (372.30 m) and minimum (371.70 m) altitudes of water levels in Lake Geneva. In addition, Article 5 specifies that the Agreement may be reviewed every five years at the request of any one of the signatories (Paragraph 4). Finally, the seventh paragraph of Article 5 of the Intercantonal Agreement establishes the Federal Council as the highest authority for oversight of compliance with the mechanisms for regulating Lake Geneva. This mechanism for controlling Lake Geneva water levels reflects the signatories’ desire to protect the cantons concerned against possible flood damage arising from high water levels or from surface meltwater. This was to be achieved by aiming to avoid the possibility of the water level in Lake Geneva exceeding a maximum elevation, which was set at 372.3 metres above sea level (MASL). The second paragraph of Article 5 of the Agreement specifies that the water levels in Lake Geneva must be maintained between 371.70 MASL and 372.30 MASL. The fifth paragraph states that the relevant Regulation may be reviewed every five years at the request of any one of the Contracting Parties. The mechanism for controlling lake water levels is based on the annual variations in the hydrological regime. During the winter, the water in Lake Geneva is lowered to its minimum elevation of 371.70 MASL: this gives the lake sufficient volume to accommodate high waters in the summer without risk of flooding. As Figs. 4.5 and 4.6 shows, the Lake reaches its minimum elevation during the months of March and April and then fills again rapidly, reaching its maximum elevation during the months of June and July. The graphs also show that, although these elevations are defined by the Intercantonal Agreement, in practice they are sometimes exceeded: the benchmark levels are primarily intended as a guide for the lake’s managers during the course of the year. It is less a question of systematic compliance with the altitudes set by the Intercantonal Agreement and more a matter of observing the principle of good lake management—targeting, above all, the safety of neighbouring populations by avoiding going over the benchmark level and introducing a risk of flooding. Therefore the arrangements for managing Lake Geneva also include reducing the water surface level every four years, so that, in leap years, the minimum elevation is reduced to 371.50 MASL in order to allow access to the shoreline for essential works.

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Fig. 4.5  Regulating Lake Geneva water levels—normal year

Fig. 4.6  Regulating Lake Geneva water levels—leap year

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The physical infrastructure for controlling Lake Geneva’s water levels is located at the Seujet Dam. The actual level of the Lake has a major impact on the Rhône’s flow regime and so reducing or raising lake levels (by opening or closing the Seujet dam gates) can only be done in certain conditions. Reducing the water level in Lake Geneva results in a higher flow-rate in the Rhône: therefore this measure can be taken only when the overall hydrological trend is downwards or, in particular, when the Rhône’s initial water level is falling. The lake level is reduced when Rhône flow-rates are under 400 m3/s, which is either in mid-March or after mid-September. In these conditions, the increased flow-rate of the river does not endanger areas situated downstream of Geneva. In the opposite situation, the lake level can be raised only when Rhône flow-rates are high. In this scenario, the amount of water escaping at the outlet of Lake Geneva has to be limited in order to raise the lake level. Therefore hydrological conditions downstream of Geneva must be sufficient on their own to provide for the various water uses within the area concerned (irrigation, nuclear power plant cooling, supplying well fields, etc.). It should also be noted that there is relatively little leeway at Geneva, since the outlet at Seujet cannot discharge more than 550– 600 m3/s. Therefore, if the lake has been raised, recovery to the elevations defined by the Intercantonal Agreement may be rather slow. From a strictly legal point, the governance mechanism that applies to Lake Geneva’s water levels is based not only on the Intercantonal Agreement, but also on four additional texts which regulate the relationship between the Canton of Geneva and SIG, the operator concerned. These different provisions embody a clear framework for controlling the lake level from an operational point of view. First, arrangements for implementing the control mechanism depend on a legal provision passed by the Canton of Geneva—the Infrastructure Operation Regulations (17 September 1997). These regulations set the monthly levels and lay down specific details of how the control structure is to function during leap years or if the River Arve is in flood. They also require the operator to keep records of when the mobile floodgates open, of flow-rates and of water levels and to send this information to the relevant cantonal authorities. Other stakeholders may also receive this data, for information purposes and/or so that they can

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anticipate and manage the Rhône’s flow regime. The Regulations also cover different scenarios that could affect how the lake level is managed. In particular, they set out the steps to be taken when floodwaters from the River Arve impede the Rhône flow-rate at the outlet from the Seujet Dam. Regulation 10 requires continued compliance with the provisions of the Emosson Convention for the return of water diverted from the River Arve (see Chapter 1). A second document—Methods for Application of the Infrastructure Operation Regulations (1 December 1997)—primarily aims to provide for the chief function of the Seujet Dam, which is to maintain the lake level in accordance with the Regulations while safeguarding the interests of users of Lake Geneva and the Rhône and of the lakeside and riparian populations (first paragraph of Article 2). The third paragraph of Article 2 then stipulates that the operator must guarantee the right to recover the diverted waters of the River Arve (in the form of the defined water reserves available from Lake Geneva). Finally, again from an operational point of view, Article 3 defines minimum flow-rates downstream of the control structure, peak flow-rates and maximum flow-rate variations per 20 minutes. The third relevant text is the Convention between the Republic and Canton of Geneva and Services Industriels de Genève (12 November 1984). Article 12 of this Convention states that ‘the Executive Government of the Republic and Canton of Geneva delegates all its rights, obligations and undertakings arising from the Intercantonal Agreement of 11 September 1984 to SIG (…)’. This means that the operator is obliged to observe the provisions of the Intercantonal Agreement to control Lake Geneva’s water level and therefore to comply with the various benchmark elevations and procedures defined there. On the other hand, it can operate as it sees fit, as long as it keeps lake levels within the altitude range defined by the Agreement. The fourth provision is the Law granting a Concession to Services Industriels de Genève for use of the hydraulic power of the River Rhône in order to operate a hydroelectric plant at Seujet. This was passed on 12 September 1984 and came into force on 1 July 1997 when the Seujet Dam became operational: it establishes the terms of the concession awarded to SIG to run the hydropower section of the Seujet Dam.

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Article 4 of the Law defines the maximum flow-rate at the outlet from the installation (360 m3/s), while Article 5 restates SIG’s obligation to comply with the Intercantonal Agreement. Finally, Article 10 of the Law provides that flow-rates can be adapted to the needs of the hydropower plants downstream of the Seujet Dam. However, such adaptations must be made within the benchmark elevations set by the Intercantonal Agreement—illustrating that the operator has some leeway to establish its own industrial strategy for hydropower production, but only within the range defined by the agreement to control Lake Geneva’s water levels.

4.2.2 Upstream and Downstream Effects of Controlling Water Levels in Lake Geneva The Intercantonal Agreement to control the level of Lake Geneva is essential for maintaining the infrastructure situated around the Lake and for the safety of neighbouring populations. In this context, it is highly relevant to the authorities in France and in the Canton of Vaud, since between them they are responsible for the greatest part of the shores of Lake Geneva. Vaud takes a particular interest in implementing co-ordination mechanisms that apply not only to the Rhône downstream of Geneva but also to the section of the river upstream of the lake, while all the Swiss actors proactively control Lake Geneva’s water levels, paying close attention to any variations that occur and to the different factors that might cause these (for example, sediment flushing at Verbois, which is discussed in Sect. 4.4 below). Against this background, one cannot fail to wonder why France is not party to the Intercantonal Agreement. In practice, France complies with the required changes in water levels, even though it is still not involved in the discussions and adjustments that may result from the five-yearly review. In terms of our analysis of co-ordination mechanisms, this failure to include all the relevant stakeholders remains a major weakness. Several hypotheses could explain the non-involvement of France, ranging from the fact that there are fewer towns on the south shore of the Lake and therefore French local authorities (even though they benefit from regulation of lake levels by the Seujet Dam) had little

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reason to play any part in the processes that led to introduction of the Intercantonal Agreement, through to the French government’s refusal to participate in financing the Seujet Dam. Although it does not provide a clear explanation, the Federal Council’s Communication of 31 October 1984 on contributing to the costs of constructing a new regulatory dam at the outflow from Lake Geneva (84.083) illustrates just how little communication there was between the two sides: ‘Early in 1983, the French Government was informed through diplomatic channels of the plan for a new dam, but it has not expressed a view on this subject. Controlling the flow regime of water in the Canton of Geneva will remain, as hitherto, a Swiss matter – apart from the measures arising from the 1963 Emosson Convention concerning the hydropower development. We have not asked France to contribute to financing the new dam’ (Section 13, pp. 116–117). The Intercantonal Agreement has major effects on the river downstream of Geneva. It largely determines the quantities of water flowing in the Rhône and somewhat limits hydroelectricity production methods, by virtue of the fact that it requires compliance with certain levels on a monthly basis and with minimum and maximum benchmark elevations. The Agreement is a management mechanism that imposes a strong structure on the Rhône’s governance. From a historical point of view, it is the oldest water co-ordination and regulation provision influencing how the Rhône is exploited. It has proved extremely robust, enduring for over a hundred years, and has enabled financing of the main infrastructure for controlling the level of Lake Geneva. It has defined the flow regime of the Rhône downstream of Geneva and, in doing so, has avoided significant flooding across the whole area surrounding Lake Geneva. Nevertheless, the Intercantonal Agreement poses some problems. First, this legal provision was decided on and implemented unilaterally by Switzerland. Although the French side of the Lake benefits equally from the increased safety brought by flood control, the flow regime of the Rhône in France is subject to variations resulting from measures, taken under the Agreement, that are defined on a sectoral basis and directed primarily towards the safety of the infrastructure and neighbouring populations of the Lake alone.

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In this regard, the Intercantonal Agreement demonstrates a certain degree of rigidity. It tends to restrict the implementation of any new mechanisms for co-ordination or water transfer between upstream and downstream, even though the actors have shown that they are ready to negotiate ad hoc adjustments—or even, in exceptional circumstances, to go temporarily beyond the required benchmark elevations. Therefore we might question whether this Agreement is still relevant in the face of the new issues that have become intrinsic to managing the Rhône. Within the terms of our analysis, its highly robust nature from a legal point of view may give it a relative inflexibility and lack of adaptability that are potential obstacles to the implementation of new co-ordination instruments.

4.2.3 Lake Geneva’s Water Levels: Regulating the Extremes Lake Geneva has an important role to play because of its flood absorption capacity—it could be said that the volume of water is being continuously ‘reset’ as water leaves the Lake. The Canton of Geneva imposes limit levels on SIG in order to protect inhabited areas bordering the Rhône. Then, from the national border onwards, successive hydroelectricity generating installations intervene, in effect subjecting the river’s flow regime to their own strong controls. Therefore flood peaks do not really occur on the Rhône—although the risk of these increases as various tributaries join the river one after another along its length. This leads the French authorities to pay particular attention to the Rhône, since any flooding there requires deployment of all the methods at their disposal in order to avert the possibility of the river overflowing its banks. Even the slightest changes in Rhône flow-rates have the potential to increase the danger of flooding. In response to this, DREAL has implemented a forecasting system to give 24 hours’ warning of any rise in the area’s rivers. Early warning is especially important because, if there is a major incident, the CNR’s installations along the river do not have large enough water storage capacities to contribute effectively to flood management. On the contrary—if there is a significant rise in

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water levels, the CNR’s installations will be overwhelmed. Therefore, in a critical situation, DREAL must take action to prevent floods using measures such as road closure or use of flood storage areas. At the same time, its actions are defined by a Flood Prevention Master Plan for the Rhône-Mediterranean Basin, which deploys various flood storage areas upstream of Lyon in order to reduce excessive water levels. Despite this, the danger of flooding increases as the river approaches the Lyon metropolitan area, even though the river configuration remains fairly favourable and the overflow quite small. Against this background, the available co-ordination mechanisms remain relatively weak. DREAL has no access to the CNR’s production schedules so long as the flood level is not rising. The operator is required to warn DREAL of any works on its infrastructure or of any flow-rate changes. Despite this limited access to the CNR’s data, DREAL has its own hydrometric service, which provides it with good knowledge of Rhône flow-rates. But binational co-ordination of Lake Geneva’s water levels is mainly achieved by SIG and the CNR exchanging details of production schedules: there is no other collaboration between the two countries with regard to flow-rates at the exit from the Lake. As far as DREAL is concerned, the input data used for forecasting Rhône flood levels are taken from flow-rates at the outlet from the Génissiat Dam in France. Apart from agreements made between the hydroelectricity producers, the only formal agreement that brings together the Swiss and the French stakeholders is a memorandum of understanding on flooding in the Arve River. In this context, the Intercantonal Agreement remains the reference document and has a powerful influence on the variation between the quantities of water in the river upstream of Geneva and those downstream. We have already shown that the Intercantonal Agreement represents a strong institutional mechanism in that it partly determines the amount of water released downstream, which in turn helps to explain the system’s water storage capacities. Geneva’s location means that it has relatively limited leeway if the water rises to significant flood levels, since the outlet at Seujet cannot allow more than 550–600 m3/s to pass through—and is limited by the amount of water coming in from other tributaries (notably the Arve). Therefore very high waters make

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it difficult to control rising levels in Lake Geneva. If extremes of low or high waters occur, it takes a long time for the original water surface elevations to be restored. In order to handle this, the system for regulating the lake level is run on rather conservative lines, providing significant snowmelt flood absorption capacity. The Intercantonal Agreement sets a monthly core range, with a minimum and a maximum elevation, as well as providing for a variation in level that can absorb meltwater inflows from April onwards. In order to achieve this, the lake level falls from December onwards, reaching its minimum elevation ahead of the first inflows of meltwater. In order to gain a better understanding of the available leeway in regulating the Lake, the Canton of Geneva has initiated an assessment of the maximum water surface elevations that could be sustained before infrastructure on both the Swiss and French shores would be in danger. These measures should enable lake management methods to be refined, defining the main areas at risk. This in turn should help managers to more easily ascertain Lake Geneva’s flood absorption capacity and evaluate potential risks, which, in the long run, will provide them with advance warning of a possible threshold effect linked to an extremely high water level. We should look at this question from the perspective of managing not only floods but also periods of low water and serious drought. In doing so, we have two objectives: (1) to evaluate the extent to which this type of situation may be more likely to get worse as a consequence of climate change and (2) to take stock of existing co-ordination mechanisms—how robust are they? Do they offer potential ways of coping with this type of climate event? By defining different climate scenarios, we can identify potential trends in the hydrological conditions of the Rhône along the section of the river we studied. This approach can also help us to visualize new solutions or co-ordination mechanisms. As we have seen, the issue of low water has already been the subject of discussions within the configuration of actors responsible for managing the river. These situations, which are caused by difficult hydrological conditions combined with methods of operation and upstream–downstream co-ordination, have demonstrated that the actors can rapidly find ad hoc solutions that enable them to bring the situation under

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control for the time being. Nevertheless, it must be emphasized that these solutions have not become part of a range of fully developed mechanisms, but rather fall under the heading of interim or one-off attempts to tackle the kind of events that will most probably escalate with climate change over time. Although it is possible to discern some outlines of institutional mechanisms for regulating low-water situations, the issue of flooding remains more or less absent from current binational arrangements for governance of the Rhône. Therefore analysing the situation from this perspective reveals little readiness to experiment with or implement relevant governance instruments at the transboundary scale. For the moment, flood management is not on the agenda for intergovernmental discussions, and transboundary management of the Rhône has few tools at its disposal for advance warning of flood waters or for monitoring and managing flooding.

4.3 Abstraction of Water for Productive Use Hydroelectricity production represents a major use of Rhône river water. Although the process does not abstract large quantities of water from the river, it holds back significant volumes for defined periods. In contrast, other branches of activity characteristically withdraw fairly large quantities of water resources. Irrigation is one of the major uses, with the distinctive characteristic that its withdrawals are specifically seasonal—mainly concentrated in the summer. And there are other uses that are also highly dependent on the river: industry, drinking water production and NPP situated along the river (which use water as a means of cooling their production systems). Bugey Nuclear Power Plant, situated about 35 km east of Lyon and 110 km from Geneva, and Creys-Malville Nuclear Power Plant both lie on the section of the river studied in our ‘GOUVRHONE’ research project. The second of these is no longer operational, but still draws water from the Rhône to ensure that it continues to remain cool. As these different examples show, although hydroelectricity production occupies an important place, other types of use also raise major socio-economic issues in terms of governance. Therefore hydroelectricity

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producers have to co-ordinate and negotiate exchanges of water with other river users: in France, for example, the CNR and EDF have established a set of contractual provisions in order to regulate and co-ordinate their respective needs. Analysis of such measures provides us with the opportunity to study the main heterogeneous rivalries for use of the Rhône, allowing us to understand the current configuration of stakeholders and to put the different co-ordination mechanisms to the test in the face of changes in Rhône flow-rates. In the following subsections, we first of all present the different requirements imposed by the Swiss and French regulatory frameworks to deal with, among other things, the need for abstraction of water to be authorized—which means an initial implicit allocation of use rights by the State. Then we go on to look at the problems that severe extremes of low water can bring, and (focusing on the French case) how negotiations and strategies for resolving conflicts work. In the light of the various regulatory mechanisms and their development, we finally return to the main issues involved in these rivalries and to their possible future evolution. In particular, we shall see that the Rhône is tending to play a growing role as a substitute resource during water shortages— implying that it will probably be increasingly expected to contribute more within the area we studied.

4.3.1 Resource Allocation Mechanisms An initial allocation mechanism can define the use rights of different branches of activity. Both Switzerland and France have established procedures to authorize abstraction of water. These control the quantities to be withdrawn, withdrawal methods and types of water use within a given area, defined in the form of a permit. This represents a primary mechanism for regulating a given rivalry, through oversight of the number of permits awarded. A brief presentation of the administrative procedures that operate in the Swiss and the French cases will illuminate this. In Switzerland, a permit must be issued when the amount of water withdrawn exceeds common use of the resource—notably when technical methods of withdrawal are employed. In the Canton of Geneva, a permit

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can be issued by one of two bodies. The first is the General Directorate for Nature and Landscape, which must, according to Article 8(1) of the Federal Law on Fishing (RS 923.0), ensure that ‘any activity affecting waters, a water regime or a watercourse, or any activity undertaken on the banks or shores or on the bed of a body of water, is subject to authorization by the competent cantonal fishing authority (authorization under fishing law), if it is likely to adversely affect fishing’. The second is the General Directorate for Water, which is designated by the Geneva Cantonal Water Law (RS L2 05) as the competent authority to issue a permit. Article 28 of this Law outlines the above-mentioned definition of quantities of water that exceed common use, while Article 7(2) specifically names the branches of activity that need a permit: ‘In particular, the department concerned shall supervise the protection and use of surface waters and groundwater, the use of water as a resource for power generation or for hydrothermal purposes or for industrial or agricultural use, the extraction of materials from riverbeds, any works affecting watercourses or their banks, any areas that cannot be built on or systems for disposal and treatment of wastewater and storm-water, even if they are situated on private property’. In order to improve co-ordination and facilitate dialogue between the different users of the Rhône in Switzerland, the Consultative Commission for Management of the Rhône and the Arve brings together representatives of the different branches of economic activity that use the two rivers. In France, water abstraction is authorized at the level of the département and must be ratified by the préfet (the regional representative of central government). It is governed by various legal provisions in the Environmental Code (Articles L214-3, L214-4, L215-13 and L123-1) and in the General Local Government Code (Article L2224-9). Authorization must be consistent with existing planning tools such as Water Development and Management Master Plans (SDAGEs), Local Water Development and Management Schemes (SAGEs) or river contracts. Responsibility for supervising application of the regulations and for monitoring individual permits falls, in particular, to Inter-Agency Water Task Forces (a ‘MISE’ is a cross-disciplinary body at the level of the département ) and the Water Law Enforcement Agency (a decentralized national authority). At the local authority level, these activities

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also fall within the remit of Mayors, who share responsibility for supervising water withdrawals and effluent discharges (Bréthaut, 2013; Cosanday, 2003).

4.3.2 Drinking Water About 95% of the supply of drinking water to the Greater Lyon metropolitan area comes from the Rhône and its associated groundwater. This water is abstracted through the use of five well fields upstream of the City of Lyon, situated between two canals that are supplied by the Rhône (the Miribel Canal and the Jonage Canal). These abstraction zones are partly recharged directly by the undeveloped ‘old Rhône’, which winds between the two canals, supplying a designated Natura 2000 site (see Sect. 4.4), various abandoned channels and a lake (‘Blue Waters Lake’). The various zones produce very different quantities of water. The main feed for Greater Lyon comes from the well field at Crépieux-Charmy, which supplies 300,000 m3 of groundwater a day. The other well fields are much less significant, since the next largest one produces about 24,000 m3 a day. As a result, the Crépieux-Charmy well field is so heavily exploited that withdrawals of water have created a drawdown cone (cone of depression), which has the potential to allow all the runoff, including any that may be polluted, to intrude into the well field. In order to remedy this problem, a hydraulic barrier has been constructed to protect the well field from possible pollution. It consists of a series of ponds permanently fed by surface waters from the river. These waters create a piezometric dome that protects water intake structures located in the ‘old Rhône’ from possible pollution. Although there are many fears about this scenario, no massive deterioration in water quality has been observed. In fact, the main risk is that the well fields will silt up. Because of this, the issue of sediment flushing takes on particular importance, since any increase in rates of suspended solids represents a risk factor for operation of the various water abstraction wells and bore-holes. The effects of the flushing operation carried out in 2012 are still being studied from the point of view of this rivalry between drinking water production and

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managing sediment in relation to hydroelectricity production. There was no such assessment of the 2003 flushing event, even though a decline in drinking water production was noted at the time. Some months after the 2003 flushing operation, there was an alert at the Greater Lyon well field when Veolia, its private-sector operator, found that the water supply from some 15 wells had come to a standstill. In the face of this situation, it could continue to abstract water only by using Blue Waters Lake to supply the hydraulic barrier artificially. In fact, changes in weather conditions helped to bring the crisis rapidly under control, with the arrival of autumn rains. However, an investigation of the situation by the Greater Lyon Water Service diagnosed significant silting of some parts of the ‘old Rhône’: this was as thick as three metres in places, necessitating a major cleaning operation. The latter proved somewhat costly for Greater Lyon, to the point where the local authority considered bringing a legal action against the operator responsible for managing the Rhône. However, only a small amount of the data collected (before, during and after the operation) showed a causal link between the silting and the sediment flushing operation, and therefore the idea of legal action was abandoned. Although no tangible proof could be put forward, there remain some indications that seem to demonstrate that flushing had an impact, in terms of additional sediment inputs into the well field in question (personal communication, Drinking Water Management Unit, 28 April 2012, Lyon). Following the 2003 event, SIG decided to suspend flushing operations, and did not review this decision until 2009—when it became increasingly apparent that they were necessary. The Greater Lyon metropolitan authority had not been directly involved in these decisions and contacted DREAL about the situation. Various preparatory meetings were then organized during 2010, in order to think about developing strategies to protect the well fields and initiating measurement and follow-up programmes to monitor the effect of flushing operations on Greater Lyon’s abstraction zones. But in spite of this initial phase, flushing operations were first called off and then postponed until 2012. Before the operation took place, various stakeholders (DREAL, CNR, EDF, Greater Lyon, etc.) decided to collaborate in implementing follow-up studies of the operations and their impacts. In the case of the

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Greater Lyon well fields, the Zone Atelier Bassin du Rhône (ZABR),3 which was already involved in various studies to increase understanding of how the well fields function, initiated studies of rates of suspended solids, of turbidity and of PCBs at different strategic points on the water abstraction site. Among other things, these studies showed that rates of suspended solids were higher than those observed in 2003. Although studies to document the possible impacts on the Greater Lyon well fields are still ongoing, certain observations about their effects have already been made. For example, the months of January and February typically see many different forms of precipitation: but even if the overall level of the groundwater table has gone up as a result, no significant rise has been measured at the Crépieux-Charmy abstraction site. This observation is worrying for the well field’s managers, who fear that there may have been silting—or at least, some alteration to the water exchanges taking place in the system. The rivalry that exists between supplying drinking water and sediment flushing reveals various gaps in approaches to co-ordinating the Rhône. First and foremost, preparations for a flushing operation do not seem to automatically make any formal allowance for the fact that the river is used for drinking water production. It was only as a consequence of a proactive approach on the part of the Greater Lyon Water Service in advance of the 2010 preparatory phase that concerns about the effects of sediment flushing on well fields were taken into account, in the context of the public inquiry held jointly by France and Switzerland (notably, this was through the Espoo Convention). Furthermore, although in the end consideration of river use for drinking water was integrated into the preparatory phases of sediment flushing, little information was made available during the operation itself. This left even a large metropolitan authority like Greater Lyon somewhat in the dark in terms of available information—and in fact the first feedback about the effects of sediment flushing came from local community stakeholders (research teams already engaging with the well 3ZABR conducts long-term interdisciplinary research, looking at the river’s ecosystem within the human-dominated landscape.

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field; a farmer using water from the abstraction zone). The outcomes of the operation only became known at the time of the final evaluation, which was organized by DREAL and involved all the stakeholders concerned. The case of the Greater Lyon well field also shows that, while Rhône management raises many complex issues at the wider level, its localized effects in an area of this kind are equally difficult to grasp. Therefore there is rivalry not only between drinking water production and the potential impacts of sediment flushing, but also between sediment flushing and use of the area as a leisure park. Last but not least, these impacts can conflict with ecosystem quality within a Natura 2000 site that is legally designated as such by the EU—and all this in an extremely small physical space.

4.3.3 Industrial Activities and Irrigation When it comes to managing rivalries across the main sectors abstracting water from the Rhône (drinking water production, industry, irrigation), the situation generally less conflictual, even though they are generally withdrawing large quantities. Nevertheless, from time to time more serious rivalries arise and—as the events of 2003 and 2011 showed— low-water situations may exacerbate tensions. Apart from the rivalry between hydroelectricity generation and drinking water production (see Rivalry 3b), we can cite the example of the Lyon East aquifer, which is connected to the Rhône, where the issue of shared use is being debated in the context of the forthcoming SAGE scheme. Both industry and irrigation remain major users, withdrawing 43 and 45% respectively (drinking water production takes the remainder, with 12%). The various uses that involve the rivalries analysed here are highly interdependent, since they all abstract water from the Lyon East aquifer. Two main dynamics foreshadow the emergence of new regulatory mechanisms. The first of these dynamics arises from a pilot study by the Rhône-Mediterranean and Corsica Water Agency for managing water quantities in the Rhône at low-water periods, to gain a better understanding of the river’s ability to respond to all present and future uses while still preserving the functional features of the aquatic environments

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concerned. The purpose of the study was to assess the current situation on the river and to identify the conditions limiting water availability for specific uses. It provided tools to support decision-making based on changes in flow-rates over time, which are linked in particular to climate change and to developments in use rivalries. If the system is better understood, it will be possible to formulate various options for arbitrating between uses that depend heavily on the Rhône for their particular mode of operation. A second dynamic relates to use of the Rhône as a replacement tool or a safety net. In June 2013, Philippe Martin, a French parliamentarian (MP for Gers), reported the results of his assignment to investigate, on behalf of the French Government, possible new arrangements for managing water quantity in agriculture. This initiative was driven in particular by the difficulties of implementing the 2006 legislative reform on volumes of water to be abstracted.4 Although the results of this investigation have no intrinsic regulatory value, they are indicative of what may prove to be a future strategic direction for the use of water resources in agriculture. In his report, Martin first of all notes the importance of adaptability in the face of climate change. He then goes on to mention a shift in the management of shared water use towards a territorial planning rationale, taking advantage of capacities for substitution. In this context, he advocates ‘mobilizing existing resources, in particular those that could, within the framework of current concessions, be shared with EDF or other managers of infrastructure that is intended mainly for energy production. Where concessions are to be renewed, it would be desirable—in the cases that involve the largest volumes of water—to make sure a defined amount is provided to support not only irrigation but also natural environments (low-flow replenishment)’ (Martin, 2013, p. 38). In the geographical area we studied, the trend in allocating water has been to defer water withdrawals, not just for irrigation but also for drinking water production. For example, the Lyon East aquifer of the Rhône is shared by various uses: industry, irrigation and drinking water 4Reform

to harmonize the Act with the EU Water Framework Directive (2000/60/EC).

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production. In order to reduce pressure on the resource, to prioritize access to the aquifer for uses that require better-quality untreated water and to avoid time-specific impacts of seasonal use on the water table, some withdrawals of water for farming along the Rhône have had to be deferred. However, the Rhône Regional Association for Agricultural Water Use (‘SMHAR’) has stressed that the proportion of farmland irrigated by the river would need to rise from 65% in 2013 to 90% in 2018 (personal communication, SMHAR Director, 22 October 2013). This approach is fully in line with the territorial planning rationale advocated by Philippe Martin and aims to make farmers’ water supplies more secure. To this end, SMHAR intends to submit various proposals to the Rhône-Mediterranean and Corsica Water Agency for construction of a new irrigation network. In this area, the rivalry between irrigation and hydroelectricity production is already well regulated. SMHAR collaborates with the CNR through an agreement to optimize the management of the Rhône in low-water situations. To achieve this, the two organizations have established various mechanisms to anticipate problems and avoid unacceptably severe restrictions on use of the river. The first element of the CNR-SMHAR agreement is timely adaptation of the hydroelectricity production schedule. The CNR has agreed, when necessary, to deviate from its production schedule in order to ensure that a sufficient supply of water is maintained to keep irrigation pumping equipment continuously immersed. At the same time, SMHAR sticks to minimum pumping capacities during low-water periods, avoiding draining the equipment because this could subsequently lead to significant infrastructure damage. The agreement also provides a framework for sharing information. SMHAR receives data about changes in river dynamics that are being evaluated by the CNR and SIG for the purposes of their production schedules. This is then is compared to meteorological forecasts of precipitation and to SMHAR’s assessment of irrigation needs. Their agreement gives SMHAR the opportunity to impose a specific constraint on the CNR, in the form of a lower water surface elevation during hydroelectricity production. This can be applied when different factors combine—such as when a severe low-water situation occurs at

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the same time as a predictable variation in the water level (for example, when SIG sets production schedules that involve holding back water throughout Saturdays and Sundays).

4.3.4 Nuclear Power Generation There are a number of NPP along the Rhône, including Bugey NPP, Saint-Alban NPP, Cruas NPP and Tricastin NPP. These installations all require a constant input of water, which is vital for cooling the plants’ reactor cores. Bugey NPP, for instance, requires a minimum guaranteed flow-rate of 130 m3/s. As we saw in Sect. 4.1 of this chapter, co-ordination between the CNR and EDF depends on various contractual measures to secure this minimum flow-rate. Furthermore, France has prioritized use of the Arve River water to guarantee sufficient quantities of water for the nuclear power sector. Navigation benefits from a similar priority use, even though there is not much traffic on the section of the river in question. i.  Water needs: quantity Although there are a number of measures in place to ensure a water input of 130 m3/s, past experience has shown that, in certain conditions, guaranteeing an adequate supply for NPP cooling systems may pose a problem. The events of May 2011 are telling. As a result of relatively thin snow cover in the Alps and low precipitation, water levels in Lake Geneva fell below the elevations defined by the Intercantonal Agreement (see Sect. 4.1). In order to comply with the provisions of this Agreement, the Canton of Geneva asked SIG—operator of the Seujet infrastructure— to keep minimum winter flow-rates to less than 100 m3/s, so as to allow the lake to rise to a level within the defined altitude range. This meant that the reduction in flow-rates combined with a certain level of waterstress to lead to a sharp decrease in the quantities of water available for all uses downstream of Geneva, and in particular for cooling Bugey NPP. This decision had been taken unilaterally in Switzerland: SIG simply notified the CNR through the production schedule exchange

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mechanism described in Sect. 4.1. The CNR then passed the information on to DREAL and to EDF, which in turn sent it to the ASN, its oversight authority. This rivalry provides a particularly good illustration of the gaps in co-ordination between upstream and downstream Rhône users, discussed in Sect. 4.1 of this chapter. On the other hand, it also demonstrates the actors’ capacity for transboundary collaboration in a situation where tension is high. The high stakes associated with cooling Bugey NPP—and with nuclear safety more generally—transcended political borders, leading to urgent discussions between the French and Swiss sides to find a joint solution. The Cantons of Geneva, Vaud and Valais agreed to a temporary deviation from the required altitudes for water levels in Lake Geneva, allowing an increase in flow-rates from the Seujet Dam. In fact, precipitation conditions improved rapidly over the course of June and early July, allowing the altitude range defined by the Intercantonal Agreement to be achieved again. This is a clear illustration of the rivalry that can arise between, on the one hand, a lake level defined through a formal agreement between the Swiss stakeholders alone and, on the other hand, nuclear energy production in France. It also shows that, although mechanisms do exist to secure water for nuclear use (for example, the Year 2000 Implementation Measures, which provide for the return of water diverted from the Arve River), this is not enough to secure an adequate input of water when a crisis occurs. Current approaches to the Rhône’s governance raise two main issues. First, a decision taken in order to comply with the Intercantonal Agreement may have extremely serious impacts on a downstream use such as nuclear energy production. From a transboundary perspective, unilateral management of water levels in Lake Geneva and flow-rates from the lake are a major issue, especially in situations of water-stress, such as the one experienced during the low-water episode of 2011. Although the different operators take into account—and adjust for— the variation in flow-rates from the Seujet Dam (and in particular the variations between the weekend and working week), it is questionable whether these approaches to governance are effective in such extreme situations, which are bound to recur as the climate changes. Therefore,

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this example also raises questions about the (in)flexibility of the Intercantonal Agreement and about its unilateral nature, since prioritizing Lake Geneva’s water levels has consequences for the entire Rhône flowing through downstream France. Questions are also raised regarding the arrangements in place for sharing information. In France (see Sect. 4.1), they are largely based on the involvement of private-sector actors who are in competition for use of the river. DREAL attempts to steer these approaches to governance and is involved in discussions about the Rhône: the ASN, however, is at the end of the information-sharing and decision-making chain. The experience of 2011 showed that the ASN has very little room for manoeuvre, with its actions limited to laying-down strict Terms of Reference for EDF, with no power to steer the CNR’s involvement or to influence the negotiating methods used by the operators. ii.  Water needs: quality The second central issue relating to the use of water from the Rhône by the nuclear power sector is the interaction between reservoir sediment flushing and NPP production capacities. Any increase in levels of suspended solids can have harmful impacts on the operation of NPP cooling systems, particularly at Bugey. This in turn can have two effects. First, an increase of suspended solids can seriously damage air coolers in the NPP’s cooling tower. The purpose of these is to spray water from the top of the tower and thereby reduce the temperature of the water in the plant. This is essential to the cooling process, supporting the entire NPP production cycle and, especially, the smooth operation of the steam condenser that enables electricity production. Sediment flushing can increase the concentration of suspended solids in the water earmarked for spraying. High rates of suspended solids can damage this type of installation, requiring major investments in repair or even replacement of infrastructure. Therefore there is an economic impact, since the air coolers are part of the electricity production cycle. Preventing them from working leads to a fall in production—although it does not affect cooling of the plant’s reactor core and therefore does not compromise nuclear safety as such.

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While the first of these effects of sediment flushing is more illustrative of an economic or industrial rivalry, the second one, in contrast, has a direct impact on how the installation functions. An operation such as reservoir sediment flushing leads to high mortality in fish populations, closely associated with the increase in rates of suspended solids. In addition, increased flow-rates and the wave of sediment caused by flushing create a siphon effect, moving a large quantity of organic matter (vegetation, algae, etc.) downstream of the discharging installation. All this organic matter can clog the NPP’s water exchangers, leading to a fullscale stoppage in the cooling system. However, while increased rates of suspended solids may lead to gradual silting of the exchangers, an intake of organic matter can block the pump filters and bring the input of water needed for cooling to an abrupt halt. Thanks to the package of anticipatory measures recommended by the ASN and implemented by EDF, this situation did not arise at Bugey NPP (located in the area we studied) following the 2012 flushing operation. Nevertheless, the fact that an internal emergency plan, supervised by the ASN, had to be implemented at Cruas NPP (located further downstream) in 2009 provides a clear example of what is at stake in this type of event.5 This demonstrates that there can be rivalry between sediment flushing and nuclear energy production, not only because of the increased rates of suspended solids, but also from all the organic matter swept downstream by a sediment flushing operation.

5‘On

1 December 2009, at about 7 p.m., following a massive influx of plant debris carried by the Rhône, the screens and strainers on the Cruas 4 reactor’s cooling water intake became blocked. Normal cooling of this reactor’s auxiliary systems was lost. EDF triggered the plant’s internal emergency plan at 11.50 p.m. ASN then implemented its emergency response procedures, contacting EDF, the Office of the Préfet for Ardèche and the Institute for Radioprotection and Nuclear Safety. EDF applied the operating procedures for management of this type of incident: reactor 4 was shut down and from then on was cooled by the back-up system designed to deal with these situations. EDF also unclogged the screens and strainers where the debris was lodged. The cooling systems for the NPP’s other reactors remained operational. Normal cooling of reactor 4 was restored on 2 December at 5.50 a.m. EDF brought its internal emergency plan to an end at 6.30 a.m., and ASN followed suit by lifting its emergency response procedures. ASN rated this incident at Level 2 on the 7-level INES scale’ (Source: http://www.asn.fr/index.php/LASN-en-region/Division-de-Lyon/Centrales-nucleaires/Centrale-nucleaire-de-Cruas-Meysse/Avisd-incidents/Perte-du-systeme-de-refroidissement-des-auxiliaires-de-surete-du-reacteur-n-4, date accessed 3 June 2013; English translation based on Chapter 12 of ASN 2009 Annual Report).

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iii.  Impacts of nuclear power generation on ecosystem protection The production of nuclear energy emits various types of effluent discharges that can have an impact on the river’s ecosystems. On the section of the river we studied, there is only one operational nuclear power plant: Bugey NPP, operated by EDF. In this case, the rivalry between nuclear power generation and ecosystem protection comes from two types of pollution. The first of these is heat waste, inherent in the production of electricity by a nuclear power plant (Khalanski et al., 2008). As mentioned in the discussion of Rivalry 3a, EDF uses water from the Rhône for cooling Bugey NPP. After it has passed through the cooling circuit, warm water is released downstream of the installation, leading to a localized rise in temperature and therefore possibly to an environmental change that is viewed by some people we spoke to as ‘thermal pollution’ (personal communication, ASN, 1 March 2013). This rise in temperature can potentially have an effect on flora and fauna near the production site. It may also influence a more general shift in river temperature, in particular as the effects of various installations add up. A current study of the influence of nuclear energy production on the temperature of the Rhône is looking at heat emissions along the entire length of the river in France. The Rhône Heat Study, initiated in 2001, consists of four phases, the last of which is currently being validated (Khalanski et al., 2008). The second source of pollution arises directly from the NPP’s industrial process, in the form of chemical and/or radioactive effluents, which, again, are discharged downstream of the installation. Against this background, the guaranteed water intake of 130 m3/s, as discussed in the context of Rivalry 3a, is needed not only to cool the plant at all times but also to ensure that the installation can reduce both the temperature and the quantities of chemical and/or radioactive effluents released downstream of the NPP. At Bugey NPP, these two sources of pollution are subject to regulation through the Terms of Reference formally defined by the ASN, which also oversees implementation of these responsibilities. The ASN

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is an independent administrative authority6 empowered by central government to supervise nuclear safety throughout France and to promote the provision of transparent information to the public. It acts as the regulator for the activities of the operator, EDF, and implements a series of regulatory resolutions that define the maximum permitted values for emissions at Bugey. There is an extensive body of regulations, covering not only quantities of heat, chemical and radioactive waste but also the specific methods of discharge of each of these substances. Therefore it is imperative for EDF to build compliance with all these different resolutions into its industrial operations. The flow-rate of the Rhône plays an important role in achieving this, since—to a greater or lesser degree—it enables the dilution of effluent downstream of the plant. Therefore a severe low-water situation can have an impact not only on NPP cooling but also on the plant’s ability to discharge radioactive, chemical or thermal effluents. In this context, canalization of the Rhône and its use for hydroelectricity production have led to some smoothing of changes in flow-rates, helping to provide a relatively constant input of water. Despite this, the events of 2011 demonstrated that, in certain conditions, the situation—in terms of flow-rates adequate to supply this input—can become strained anyway. We have already observed how, faced with this, EDF has various mechanisms that allow it to adapt (temporarily, at least) to changes in flow-rates or water temperature. First of all, as a result of the central government decision to prioritize nuclear energy production, EDF can draw on the reserve of the Arve River waters. This request is made through the CNR, which acts as an intermediary with the Swiss side—a role delegated to it under the terms of the Year 2000 Implementation Measures, as described in Sect. 4.1. Next, EDF can also arrange to purchase water—which in practice is achieved by the CNR adjusting flowrates or else adapting its own production schedules. This adjustment is then offset by financial compensation based on the quantities of water

6Law

No. 2006-686 of 13 June 2006 on Transparency and Security in the Nuclear Field.

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released that have not been through CNR’s turbines. Finally, EDF can also apply an interim solution by temporarily storing the chemical and/ or radioactive effluent waste. This procedure operates through the use of effluent storage tanks and can, for example, provide a short-term response to a severe low-water situation, with discharge of the materials in question being postponed until water availability (and therefore dilution capacities) are more favourable. In this case, the rivalry between nuclear energy production and ecosystem protection is regulated by various mechanisms. First, electricity production and the operation of NPPs are both very highly circumscribed by precise legal requirements and supervised by the ASN, the independent oversight authority. The NPP operator is also engaging proactively with the issue of heat waste, through its involvement in the Rhône Heat Study. This rivalry is also regulated through the implementation of mechanisms for co-ordination between operators, based on agreements governed by private law which enable ad hoc adaptation of the CNR’s production schedules in return for financial compensation. These mechanisms also regulate the procedures for transferring water from the Arve River reserve at EDF’s request. As we have seen, this process is activated by the CNR making a direct request to SIG for the water to be transferred. In other words, this rivalry is regulated through a very dense set of legal mechanisms—but also through a high level of self-organization between private-sector actors. Against this background, the ASN is responsible for supervising EDF’s activities through enforcement of its resolutions and the requirements of the Terms of Reference. It plays a major role in regulating the rivalry between nuclear energy production and ecosystem protection. Nevertheless, although EDF consistently complies with the regulatory requirements, the ASN has no influence on and no authority over its practices or the co-ordination mechanisms it has negotiated with the CNR. Up to now—as we have seen—contractual arrangements between operators seem to have proved their worth. However, this results in a situation in which compliance with nuclear safety and environmental protection legislation appears to be partly dependent on agreements governed by private law. The regulatory resolutions imposed on EDF largely relate to the definition of limit values for emissions

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and immissions downstream of the NPP: in contrast, arrangements for water transfer and flow-rate adjustment, which are arguably equally crucial, rely primarily on self-organization—over which the regulator (the ASN) has only minimal control.

4.3.5 Overview When it comes to analysing rivalries, the shifting balance between the various uses of water from the Rhône is particularly interesting. First and foremost, this great river reduces pressure on particularly fragile environments, such as aquifers, and enables good-quality untreated water to be conserved for uses with sensitive issues (drinking water production or industry), as it offers the advantage of a continuously available reserve. It also represents a contingency resource for irrigation use. However, this also exposes the Rhône to ever-increasing abstraction of water for drinking water production, industry, irrigation and nuclear energy production—between all of which co-ordination is, by and large, poor. Rivalries between the different types of water withdrawals from the Rhône are framed by two types of provisions. First, in France, central government is entitled to grant use rights through legal and administrative mechanisms by, for example, authorizing water abstraction. Secondly, the contractual agreement between SMHAR and the CNR demonstrates the capacity for self-organization between the actors, as they regulate potential use rivalries and make advance provision for possible tensions. To conclude, this section shows that the rivalries between various uses for which water is abstracted from the Rhône raise issues that can become sensitive in specific situations where there is extremely low water at the same time as a predictable variation in the water level, or where there are tensions associated with sediment flushing. Regulatory mechanisms may rapidly reach the limits of their effectiveness, notably because there is no transboundary co-ordination mechanism either for quantitative management of the resource or for management of water quality in relation to the problems caused by sediment transport, which has an impact on both drinking water production and nuclear power generation.

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4.4 Sediment Management and Ecological Restoration First, the presence of hydroelectricity installations along the river leads to its discontinuity: the migration routes of aquatic fauna are significantly disrupted, as is the upstream–downstream sediment transport. Next, the Rhône is subject to the inherent effects of hydroelectricity production, notably of flow-rate modulation, with significant variations (as much as five or six metres) not only between day and night but also between the weekend and weekdays (for example, between Sunday evening and Monday morning). The impacts include sudden variations in the Rhône’s water levels (tidal range), effects on fish trapping along the riverbanks, and damage to riverside forests or bankline erosion. In addition to these sustained effects on ecosystems, the operations involved in generating hydroelectricity can also cause direct harm to fauna and flora on occasions. This is particularly the case with sediment flushing, where the immediate effects can be major: fish mortality resulting from forced downstream migration or increased rates of suspended solids; destruction of habitats that support the reproduction of species (nesting sites or spawning grounds); impact on the riverbanks (destruction of reed beds or riverbank landslide); and finally, disturbance of natural areas and of habitats. The pressing nature of sediment management at the various water storage structures along the Rhône is perhaps one of the most telling illustrations of the need for upstream–downstream co-ordination between the various stakeholders on the river. As the Arve joins the Rhône downstream of Geneva, it brings with it amounts of sediment that oblige SIG to periodically empty the Verbois Dam (or, more specifically, to flush out the accumulated quantities of sediment) in order to avoid the water impoundment structure filling up, which would bring a risk of flooding to the city of Geneva. Although in the past there was no particularly rigid regulatory framework for carrying out this procedure, the increasing power of environmental legislation has considerably changed the conditions for this type of operation. Analysing this procedure of sediment flushing allows for a simultaneous discussion of a large number of use rivalries, as it involves many different Rhône users, whether they are actors or (sometimes opposed)

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interest groups. Therefore looking at flushing operations will allow us to apply a cross-sectional analysis to different branches of activity (hydroelectricity generation, drinking water production, leisure and fishing, ecosystem protection) and to various mechanisms for regulating river use rivalries. Arrangements for sediment management provide a reallife case study of how transboundary governance of the Rhône operates on the section of the river covered by our research study, offering us an understanding of the advantages and limitations of the current governance structure. It will also allow us to observe what mechanisms currently exist for managing rivalries around use of the Rhône that may depend more or less directly on the river. An example of this is drinking water production, where, as we have seen, the well fields serving the Lyon metropolitan area lie within a branch of the Rhône upstream of the city itself (see Sect. 4.3).

4.4.1 Management of Sediment Flushing In 2006, a ‘Rhône Congress’ attempted to assess the effect of sediment flushing operations at the Verbois Dam and consider its long-term implications. Following this reflective process, a decision was made to suspend operations—a moratorium that, in the end, lasted nine years. As a result of this history, and as briefly presented in the introduction of the book, the flushing operation carried out in 2012 faced three main issues: 1. A large quantity of sediments had built up in the reservoir and had to be discharged by this operation: flushing had taken place every three years prior to 2003, to avoid this kind of accumulation. 2. The operation was also marked by a significantly more complex administrative procedure. Although the Swiss legal framework remained, relatively speaking, the same, French (and EU) legislation relating to ecosystem protection had become considerably stronger (see Sect. 4.4). Therefore compiling all the authorization documents was a complex matter—not least because the procedure included a transboundary public inquiry. Although the application for authorization aimed for a 2010 flushing operation, France made a unilateral

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decision to postpone the operation not long before it was due to be carried out. Not only was the operation itself put off until 2012, but the time frames for the various different stages were also changed. 3. The operation itself turned out to be complicated because, firstly, work being undertaken on the Verbois Dam fell behind schedule and, secondly, the Arve River reached flood levels, impeding the control of flow-rates and—most importantly—of rates of suspended solids downstream of the reservoir. Therefore the operation was marked by peak concentrations of suspended solids, reaching about 40 gm per litre on the stretch of the river from the Verbois Dam to the Génissiat Dam—in direct contravention of the requirements of the French legislation. These tensions continued after the operation had ended, and resulted in the CNR presenting SIG with a bill of 8000,000 EUR. The whole episode led to a significant slowing of moves towards transboundary collaboration in management of sediment flushing. This section of our analysis of sediment flushing management will focus on the different regulatory frameworks that applied to the 2012 operation at Verbois (see Fig. 4.7). We compare the French and Swiss legislative frameworks, since they reflect distinct institutional structures and therefore differ quite a bit. In France, there is relevant legislation at various scales: supranational (EU legislation), national and at the level of the département. In Switzerland, the different ‘layers’ of legislation involved are at the federal and the cantonal scales. In both cases, the legislation is put into effect at a practical level through the implementation of a concession contract, which defines the hydroelectricity operators’ responsibilities and establishes that formal authorization must be sought before a sediment flushing operation can be implemented. The formal authorization procedure was undertaken by all the operators involved (SIG, SFMCP SA and the CNR), who compiled a joint application. After presenting the regulatory framework at different institutional levels in France and Switzerland (supranational, national, at the level of the département or the canton and at operator level), we shall then focus on the transboundary dimension. We highlight the provisions

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Fig. 4.7  Regulatory framework for sediment flushing operations: France and Switzerland

within the two legal frameworks concerned (the Swiss and the French) that enable transboundary management of an operation like this. We then describe the main public policy instruments deriving from international law that support joint implementation of a procedure by two countries. Finally, we analyse the advantages and disadvantages, as well as the obstacles and the drivers, to this type of collaboration in relation to sediment flushing.

4.4.2 Analysis of the French Regulatory Framework From the EU point of view, there are three directives which frame this type of procedure. The first is Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. Two articles of the Water Framework Directive (‘WFD’) relate specifically to the issue of sediments. First of all, Article 2(35) states that there is a concentration of sediment in water which should not be exceeded in order to protect human health and the environment. Secondly, Article 16 provides that

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specific measures are to be adopted against pollution of water (Article 16(1)) and that quality standards are to be applicable to the concentrations of sediments in surface water. The second relevant text is Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. The Habitats Directive aims to promote biodiversity through conservation of natural habitats and of wild fauna and flora in the European Union (Article 2). In this context, the Directive provides for a coherent European ecological network of special areas of conservation to be set up under the title ‘Natura 2000’ (Article 3). This Directive has a bearing on sediment flushing, since Article 12 establishes a list of a number of protected species and prohibits disturbance of these species during the period of breeding as well as deterioration or destruction of breeding sites, the latter without any mention of particular periods. The final relevant directive is the Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. The EIA Directive provides that projects with potential environmental impact are to be subject to development consent (Article 1). It states that, before consent is given, projects likely to have significant effects on the environment are to be subject to an assessment with regard to their effects—specifically, an environmental impact assessment (Article 2(1)). This first stratum of legislation addresses consistency and co-ordination of public policy at the European scale: to this are added provisions laid down at the French national scale. This second stratum is governed by primary legislation—the Environmental Code—and then by a succession of decrees and regulatory resolutions that frame this type of operation more precisely. In line with the EU legislation, the Environmental Code aims to set out the requirements for authorizing various types of activities. Article L122-1 states that works which may harm the natural environment are to be subject to an impact study. Article L214-1 is of particular interest in our case, as it provides that any works resulting in a change in the level or flow-mode of water or wastewater are subject to authorization. More broadly, authorization is required whenever the ‘balanced management of water resources’, as defined by Article L211-1 of the Environmental Code, is affected (Article L214-6).

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At the next level on this national scale, decrees and regulatory resolutions play a part in implementing the above-mentioned provisions. Article 1 of the Resolution of 20 November 2009 to approve the Water Development and Management Master Plan for the Rhône-Mediterranean Basin and to confirm approval of the Multi-Year Measurement Programme provided for the formal adoption of the Rhône-Mediterranean SDAGE. This public policy instrument enables implementation of a water policy within the boundaries of the river basin on French territory alone. The Resolution brought French law in line with EU law on combating water pollution and implementing a network of areas of high biodiversity value (the Natura 2000 network). A further regulatory resolution—the Resolution of 30 May 2008 setting out the General Instructions applicable to operations to maintain watercourses or canals which require authorization or declaration under Articles L214-1 to L214-6 of the Environmental Code and which are covered by Section 3.2.1.0 of the System of Classification annexed to the Table in Article R214-1 of the Environmental Code—covers watercourse cleaning and sediment transport. Article 7 includes the requirement that watercourse maintenance should limit disturbance of the aquatic environment and riverside areas. The final relevant provision at the national scale is Decree No 94-894 of 13 October 1994 on concessions for works which make use of waterpower and on declaring such works to be of public interest. Article 1 states that the Decree covers hydropower concessions and that the concessionaire chosen must be the one ‘best able’ to guarantee energy efficiency, exploitation of waterfalls, the best economic and financial conditions and compliance with Article L211-1 of the Environmental Code. In other words, this provision indicates that the operator chosen must be the one most likely to ensure the balance of aquatic ecosystems. These first two regulatory levels define the general principles for managing a river such as the Rhône. They are characterized by a strong desire to maintain the balance of aquatic ecosystems, evident at both the EU and French scales. In addition to these more general rules, an interregional legal provision specifically covered the 2012 flushing operation: the Interprefectoral Resolution amending the Interprefectoral Resolution of 21 December 2011 to approve the General Operating

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Instructions for installations engaged in supporting the Swiss flushing operation at the Verbois Dam in the context of the CNR’s 2012 Development Programme for the Upper Rhône. As the sediment flushing operation that should have been carried out in 2010 was postponed to 2012, the amended Resolution followed the general lines of the 2011 Resolution, noting the detailed rules for the operation in its preamble and setting out a new timescale in Article 1. Article 8 of the 2012 Resolution also provides for the creation of an Operational Steering and Coordination Committee in order to oversee and monitor the operation. Lastly, Article 12 gives the CNR responsibility for supplying the minimum flow-rates required for cooling Bugey NPP. By way of a summary, the Resolution restates the fact that priority is to be given to the conservation of aquatic ecosystems and in particular to providing for the balanced management of water resources (Article L211-1 of the Environmental Code). The operation itself was to be strongly regulated, by the requirements for an impact study and for prior consent, with the former based primarily on limiting disturbance of the aquatic environment. In addition, the operational timescale and the supervision arrangements (including the creation of an Operational Steering and Co-ordination Committee) are set out in detail. Nevertheless, there are some weaknesses. The rivalry between sediment flushing and NPP cooling is addressed: however, relatively little consideration is given to the possibility that use conflicts with other branches of activity may arise. It might also be regarded as disappointing that there are few mechanisms relating to transboundary management of water resources with Switzerland, given that the latter is a non-EU country and therefore not subject to the same legislation as France. Switzerland’s role in the operation is mentioned only in relation to the composition of the Operational Steering and Co-ordination Committee. Some provision is also made for the relevant French installations to make arrangements in support of the operation. Although the wording of this remains fairly vague, the articles covering the impact study and compilation of the application for consent give much more detail. Finally, these rules also pay considerable attention to public consultation, information and participation, since these are mandatory in the context of a public inquiry.

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4.4.3 Analysis of the Swiss Regulatory Framework The structure of the Swiss regulatory framework is quite different from that of the French. There are far fewer regulatory provisions in force: in fact, there are just two relevant federal laws, one law at canton level and one concession contract. Although the legal architecture is less elaborate, the objectives—like the procedures that have to be followed before a sediment flushing operation—are fairly similar. The first provision governing any sediment flushing operation is the Federal Law on the Protection of Waters of 24 January 1991 (RS 814.20). The Waters Protection Act (‘WPA’) applies to all Swiss cantons. Article 40(1) provides that the operator responsible for a dam shall as far as possible ensure that downstream fauna and flora are not harmed when the impoundment is emptied. Article 40(2) goes on to specify that this type of operation is to take place only with the authorization of the cantonal authority, which is to fix the times and the detailed rules for emptying the impoundment. Finally, the Act provides that this type of operation must be co-ordinated within the catchment area of the body of water concerned. However, no mention is made of a transboundary situation and therefore of a river basin in a foreign country. This primary legislation is supplemented by the Waters Protection Ordinance of 28 October 1998 (RS 814.201, ‘WPO’), which specifies the methods for application of the WPA. Article 42(1) of the WPO provides that operations to empty an impoundment must be not only economically acceptable but also compatible with environmental objectives. More details are given in the second paragraph, which emphasizes that communities of plants, animals and microorganisms are to be harmed as little as possible. To this end, the relevant cantonal authority must define the time of the operation and the maximum permitted concentrations of suspended solids during the operation. These water protection provisions are supplemented by the application of the Federal Law on the Use of Water Power of 22 December 1916 (RS 721.80, ‘LFH’), which provides that methods for regulating the levels and flow-rate of watercourses must take into account the interests of every user (Article 32). Article 32(2) of the LFH specifies that the provision applies at the intercantonal and international scales. In those situations, further instructions

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may be issued by the Federal Department of the Environment, Transport, Energy and Communications (DETEC)—leaving the door open for management on a case-by-case basis. Implementation of this first ‘layer’ of legislation, issued at the federal level, is supported by a layer of cantonal legislation—in particular, by the Geneva Cantonal Water Law of 5 July 1961 (L2 05), which follows the main lines laid out by the WPA. It also includes additional instructions on the operation of water management infrastructure in the Canton of Geneva. In particular, Article 24(2) provides that river training infrastructure must be maintained in such a way as to protect the flow capacities and the ecological functions of the watercourse. This provision is supplemented by Article 31(1), which specifies that all structures and installations must be operated in accordance with the conditions of authorization or the concession conditions. More specifically, Article 31(2) states that those who are granted a permit or a concession are obliged to keep structures and installations perfectly maintained. This obligation to maintain the infrastructure is also mentioned in the final layer of regulation—the Concession Contract made between the Canton of Geneva and SIG for the latter to operate the Verbois Dam. Article 17 of the Concession Contract states that this maintenance obligation covers not only the structure but also the riverbed and the riverbanks, with its sixth paragraph highlighting the fact that the operator is to bear the costs of all these measures. In this context, sediment flushing is expressly provided for in Article 12, which also states that the operation must be co-ordinated with the operators of any plants located downstream of the structure. Finally, Articles 5 and 6 relate to upstream–downstream co-ordination. Article 5 provides that management of the Seujet Dam and management of the Verbois Dam must be co-ordinated in order to allow floodwaters from both the Rhône and the Arve to pass through. Article 6 then provides for mandatory compliance with the requirements for water levels in Lake Geneva. Thus the Swiss regulatory framework for sediment flushing has an extremely simple structure by comparison with the French one. Although its objectives seem just as ambitious as those of the French authorities, the Swiss cantons are equipped with fewer public policy instruments for supervising these procedures. In this case, the regulatory

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framework stresses not only the operator’s responsibilities to maintain the structures and the riverbed but also the need to conserve the biological quality of aquatic ecosystems. Therefore, any activities carried out around the river must not harm the flora and fauna. However, by comparison with the French situation, Swiss legislation does not provide tools—such as the European Natura 2000 scheme—that would support consistent action across a biodiversity network. The Swiss regulatory framework does mention the transboundary dimension, highlighting the need to co-ordinate water uses within a catchment area and to take into account all relevant interests, including at the intercantonal and the international scales. Nevertheless, although the general principle of transboundary co-ordination is mentioned, the provisions on implementation are vague, and no precise instructions are given to managers. Compared to the French framework, the Swiss rules offer less detailed mechanisms and leave the cantons greater room for manoeuvre.

4.4.4 A Regulatory Framework for Transboundary Co-operation: A Joint Approach As we have seen, the Swiss and French regulatory frameworks do not include public policy instruments that facilitate a transboundary approach to managing sediment flushing. The French legislation covers co-ordination within the Rhône River Basin—but only as far as the border with Switzerland. The transboundary issue is mentioned in the Swiss legislation, but the provisions themselves do not contain any additional details as to how these management arrangements are to be implemented. Thus the Federal WPA leaves the cantons a great deal of leeway, but fails to provide them with any details of how to manage this type of operation in a transboundary context. There are two provisions which are for all intents and purposes Franco-Swiss agreements on sediment flushing: a 1967 agreement and a 1989 memorandum of understanding. Nevertheless, as the application for authorization of the 2012 flushing operation points out: ‘(…) it is important to emphasize that these texts were not adopted through the usual legislative processes, therefore they are not binding in a legal sense

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and should simply be viewed as contractual agreements of a technical nature, without any force of law’. In actual fact, these documents are the minutes of meetings between the operators and the policymakers responsible for flushing operations. For example, the parties to the 1967 agreement were the Chief Engineer of Electricity District 6, representing France, and the Councillor of State responsible for the Department of Public Works, for the Canton of Geneva. Therefore these agreements have no legal force and their main value is that they set the pace of flushing and the time frame for implementing the operation. As time went on, these decisions were adjusted to fit the various applications for authorization of subsequent flushing operations. Therefore, the main legal instrument applied to managing the 2012 sediment flushing operation was the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) signed in 1991, ratified by Switzerland on 16 September 1996 and by France on 15 June 2001. The Espoo Convention defines the obligations of the Contracting Parties to assess environmental impacts of operations taking place in a transboundary context and to ensure public participation in the inquiry procedure. The Convention sets out its ‘General provisions’ in Article 2, where Paragraph 1, in particular, states: ‘The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities’. In this regard, Article 2, Paragraph 3, also stipulates that the ‘Party of origin’ of the proposed activity shall ensure that an EIA is undertaken and a relevant authorization procedure is established. Lastly, Article 2, Paragraph 6, states that the Party of origin shall provide the other Parties concerned with the opportunity to participate in relevant EIA procedures. Therefore this instrument opens up a practical way to implement a process of participation at the transboundary scale. The main provisions of the Convention cover preparation of the EIA documentation (Article 4) and arrangements for consultation on this documentation (Article 5). Finally, the Convention provides for a post-project analysis (Article 7), enabling review of any adverse impact resulting from the operation in question, which means that monitoring and data collection must take place during the operation.

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In conclusion, in terms of our analysis, the legal structure of the different agreements presented above shows a certain imbalance between France and Switzerland when it comes to regulating an operation such as sediment flushing. The French legislation is highly developed, as it results from requirements defined at the EU scale. Various public policy instruments equip the different administrative levels in charge of the operation with tools to prepare, manage and evaluate the event. In Switzerland, the legal framework is less complex: nevertheless, it has similar objectives and is similar in scope. On the other hand, the cantons (and in particular the Canton of Geneva) have not been provided with instruments defined at a higher institutional scale for managing the operation. Bringing the Espoo Convention into this picture helps to tie the two legal frameworks together, as its transboundary scope partly bridges the gap between the two bodies of legislation. In fact, the Convention establishes an overall legal framework that in part coincides with the EU requirements: however, for the Canton of Geneva, implementation of these provisions is actually rather more symbolic, reflecting its need to establish ad hoc mechanisms for transboundary management of the operation—a situation somewhat redolent of ‘institutional bricolage’. The Convention provides a general framework, within which the signatories must take into account their respective positions with regard to authorization procedures. Finally, it should be pointed out that there is still a certain lack of clarity about application of the Convention on the Swiss side, because there is no focal point at federal level to support the cantons in their work.

4.4.5 Ecosystem Protection and Hydroelectricity Production As the literature shows (in particular, Pritchard, 2011; Stäuble & Reynard, 2005), the hydroelectricity sector has massively altered the ecosystems in the Rhône. The river’s dynamics are now largely dictated by the fact that it is extensively channelized, so that mean flow-rates have been smoothed out: flood crests and therefore flooding are better controlled and less damaging for those who live and work along the

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river. Our aim here is to gain a better understanding of what kind of practical mechanisms have arisen from the legal frameworks regulating this rivalry between hydroelectricity production and ecosystem protection. Our presentation will first look at legislation and practical action on both sides of the border and then focus on transboundary mechanisms implemented to protect ecosystems. i.  From Lake Geneva to the Swiss border Operational management of the Rhône from Lake Geneva to the Swiss border with France falls largely to SIG and SFMCP SA. As we saw in Sect. 4.1, hydroelectricity production infrastructure on the Rhône is operated under concession contracts granted by the Canton of Geneva (for the Seujet and Verbois dams) or the Swiss Confederation (for the facility at Chancy-Pougny). These concessions and the operating regulations arising from them define how the infrastructure is to be operated and how the river is to be managed, as well as governing the role and responsibilities of the concessionaire. From the point of view of regulating the rivalry between hydroelectricity and ecosystem protection, this contractual approach provides a particularly well-developed primary mechanism, defining a specific set of requirements for each operational structure. These measures aim to anticipate and tackle the direct environmental effects of hydroelectricity production. For example, the operator must ensure that the riverbanks and riverbed are well maintained, must monitor the state of various sections of the river covered by the concession and must report on this to relevant federal bodies or departments of the Canton of Geneva. The concession contracts also establish requirements for installing fish ladders on the structures, in the aim of reducing river discontinuity and improving fish population movement. They also stipulate that the operator must comply with the provisions laid down by the relevant fisheries protection authorities. For example, Article 9(6) of the Implementing Regulations on the Concession to operate a hydroelectric plant at Verbois provides for a sum to be paid into the Fisheries Fund to compensate for the negative impacts of hydroelectricity production, in proportion to the harm suffered.

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Apart from the provisions for reducing river discontinuity, ensuring maintenance of the riverbanks and the riverbed and monitoring the state of the river and any changes, the concession contracts also establish a set of more specific compensatory measures. Article 1 of the Implementing Regulations on the Verbois Dam Concession stipulates that various different areas along the river must be provided with infrastructure to minimize impacts: it goes on to give precise geographical locations, mentioning the distance in kilometres and which riverbank is concerned. Article 1(2) makes it clear that this infrastructure is to be financed by the concessionaire and Article 1(3) sets out a timetable for putting it in place. As far as the Rhône in Switzerland is concerned, these compensatory measures take the form of specific activities that help to enhance particular areas along the river. They aim to limit the environmental impacts of the hydroelectricity sector, to conserve the biodiversity of the Rhône and to maintain or even increase populations of the various species along the river. The compensatory measures in question take different practical forms, which are managed and/or funded by the operators (SIG and/or SFMCP SA). Worthy of mention are the creation of nature reserves, the installation of fish ladders, the construction of individual areas of riprap to create favourable conditions for increased biodiversity (by slowing the river’s flow-rates), the creation of wetlands, reed beds and spawning areas and the construction of dikes, islets, breeding ponds and other fish management measures. For instance, the Tabary Reach, upstream of the Verbois Dam, provides an area that is conducive to rearing young fish and growing troutlets to restock the Rhône. In addition, the whole of this scheme is covered by a five-year programme to monitor river training measures, changes in vegetation, water quality, sediments, riverbank slippage, the state of groundwater tables and sediment flows. In parallel to these measures, which are mandatory under the concession contract, there are other tools or platforms for tackling river conservation and maintenance. The primary mechanism is the Geneva Cantonal Nature Restoration Fund, established under the Geneva Cantonal Water Law (RS L2 05). The Fund is financed by charges paid by SIG and SFMCP SA for the use of Rhône water in their turbines,

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supplemented by the Canton of Geneva’s income from pumping taxes and by subsidies granted by the Swiss Confederation. The total amount allocated annually is almost 6 million CHF, which is used for the renaturation of parts of the river as well as for maintaining water quality, controlling flow-rates and protecting people and property against flooding. Then there are two mechanisms that involve the operators—either SIG or SFMCP SA, or both. The first is the voluntary certification of their installations with the Naturmade Star quality mark, which certifies energy from renewable sources and is awarded after thorough inspection by the Association for Environmentally Sound Energy (VUE). A practical benefit of the scheme is that it includes the payment of one centime per kilowatt hour of certified electricity (0.1 CHF cent/kWh on production and 0.9 CHF cent/kWh on sales). These amounts are paid into an environmental improvement fund, which is used to undertake ecological restoration in areas surrounding the installations. At present, only the Seujet Dam has been certified; discussions are underway with a view to certification of the Chancy-Pougny Dam. This first instrument is directly linked to a second mechanism—the Geneva Committee for the use of the Eco-Electricity Fund, financed by sales of Naturmade Star-certified electricity. The Committee funds specific schemes on the Rhône for renaturation of the river and for supporting threatened species, with appropriate integration of human activities. It is made up of representatives of the relevant government services of the Canton of Geneva, environmental protection NGOs and the hydroelectricity operators (SIG and SFMCP SA). ii.  Developments in Swiss legislation Following a nationwide ‘Living Waters’ initiative, the WPA (RS 814.20)— the primary legislation at federal level—was amended on 1 August 2010, placing greater emphasis on requirements to limit the impacts of hydroelectricity production on ecosystems. Article 39a was introduced in order to cover the issue of hydropeaking from that point of view. In particular, Article 39a(1) provides that ‘those responsible for hydropower plants must prevent or eliminate, by means of civil engineering measures, short-term

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artificial changes in the water flow on a body of water (hydropeaking) that cause serious harm to the indigenous flora and fauna as well as their habitats’. Taking this as a starting point, Article 83a then defines the obligation to take appropriate remediation measures within 20 years of the provision coming into force, with Article 83b requiring the cantons to back this up by establishing a scheduled programme of measures and submit their plans to the federal government by the end of 2014. This amendment to the WPA also entails a change to the Federal Energy Act (RS 730.0): Articles 34 and 35 now make a provision to compensate the concessionaire for the cost of implementing remediation measures. In particular, they provide for the possibility that the concessionaire will finance these actions through SWISSGRID, the company that owns and manages the electricity transmission network, which will levy a surcharge on high-voltage transmission costs. So we can see developments in statute law tending to become stricter, sometimes going beyond the requirements of the currently available quality certification mechanisms. Therefore, since the compensatory measures provided for by the Swiss Rhône concessions are now drawing to an end, a new programme of remediation measures could be implemented within the legal framework provided by the Confederation and the cantons. iii.  The Rhône in France As described, the CNR is the designated Rhône operator for the production of hydroelectricity in France. This role is framed by a concession contract with the central government which entrusts the operator with three main tasks: to produce hydroelectricity, to ensure navigation on the river and to supply water from the Rhône for irrigation. Within this framework, the CNR’s responsibilities relate mainly to managing the quantity of river water: the question of water quality is not directly within its remit. The rivalry between hydroelectricity production and ecosystem protection was addressed, relatively recently, in the context of the Eighth Amendment to the General Concession Agreement (Decree No 2003-513 of 16 June 2003). Article 1bis of the amendments defines the main

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environmental objectives, such as balanced management of water resources and aquatic environments, prevention of environmental damage linked to the presence or operation of installations under the Concession and correction of any such damage. These objectives apply equally to the management of spaces, resources, natural environments, sites and landscapes that are part of the Concession area. Article 7bis goes on to give more specific details on these responsibilities and on the type of practical actions needed to achieve the environmental objectives. On this basis, the concessionaire must draw up a multi-year programme for fulfilling its responsibilities. Article 7bis(I) shows that its actions should include reviewing environmental flows at the various waterfalls, renaturation of abandoned channels, improved integration of structures into the landscape and improving conditions for migratory fish movements, at crossing points for large mammals and for sand and gravel transit. Article 7bis(III) also provides that the concessionaire must ensure appropriate ecological monitoring in order to assess the consequences of the presence and operation of its installations for the natural environment. Finally, Article 7bis(IV) provides for compensation for harm suffered by the fish population. As in Switzerland, the French legislation is particularly demanding when it comes to regulating the effects of hydroelectricity production. One aspect of this is the strength of the laws governing interactions between hydroelectricity production and ecosystem protection. Changes in the regulatory framework are similar to those in Switzerland, with relatively recent tightening of legal requirements relating to the environment. The CNR is responding actively to the environmental requirements of its General Concession for the Rhône, implementing a multi-year Master Plan and funding projects for restoration or protection of the river environment. Since 2003, the company has developed a Public Interest Action Plan, broken down into five-year tranches and running until 2023. The second Plan, which ends in 2013, has been integrated into the Rhône Plan and applies equally to the whole length of the river. In practical terms, the Plan has a budget of 30,000,000 euros to cover all its operations, which fall under various headings: restoring flow regimes and ecosystems, restoring fish migration routes and fish

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passage points, managing and enhancing natural environments in the Concession area and environmental management of leisure areas. Even though the CNR’s practical actions stem from the obligations imposed by its Concession, the operator sometimes goes much further than the standards set by the legal framework. One notable example of this is the CNR’s increase in environmental flows on some sections of the undeveloped ‘old Rhône’, where it has allocated more than required by law (requirements based on an environmental flow corresponding to one-twentieth of the module), leading de facto to a drop in hydroelectricity production. The company has also established several partnerships, through agreements with various stakeholders such as the fishing community or environmental protection NGOs. In order to ensure co-ordinated policy on the river, central government has recently asked the CNR to produce a comprehensive action plan, showing the progress made and the practical actions undertaken to protect and enhance Rhône ecosystems. iv.  Developments in French legislation There have also been changes to the legal framework around hydroelectricity production. Following the introduction of two EU directives (the Renewable Energy Sources Directive7 and the WFD),8 the Law of 30 December 2006 on Water and Aquatic Environments (L2006-1772)— effectively the country’s third Water Act—set out to develop and reconcile the objectives of both directives. The aim of drafting a new water law was to ensure the balanced management of aquatic environments despite the fact the proportion of renewable energy is set to rise from 15 to 21% of national requirements. Therefore changes in the law were needed in order to compensate for the easing of the situation in the hydroelectricity production sector. The 2006 Water Act set a deadline of 2014 to increase environmental flows for all existing infrastructure. 7Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market. 8Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.

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It also simplified the legal requirements for environmental flows p ­ assing through water turbines. Finally, it redefined the minimum flow, which should now be at least one-tenth of the module. For the CNR, this change in the legislation means increased environmental flows at certain installations, notably the Génissiat Dam. v.  Hydropower and transboundary management of environmental impact As our analysis of the situation in Switzerland and France has shown, the national legal frameworks for regulating the rivalry between hydroelectricity production and ecosystem protection are particularly dense. In both countries, the legislation is shifting towards requiring reduced environmental impact in the hydroelectricity sector, and this is reflected in amendments to both the Swiss Federal Waters Protection Act and the French 2006 Water Act. Nevertheless, as the French legislation shows, regulatory and operational mechanisms now have to be found in order to reconcile a policy of increasing renewable energy production with a growing desire to protect the environment. Although the rivalry between hydroelectricity production and ecosystem protection is framed by dense legal mechanisms, very little attention is paid to environmental issues from a transboundary point of view. The most salient current question in this regard is how the 2012 flushing operation at Verbois will be followed up. On the basis of a joint proposal by the French Préfet whose regional responsibilities include the Rhône River Basin and the relevant Councillor of State from the Canton of Geneva, a policy steering group and a technical steering group have been set up to assess the 2012 operation and draw operational and strategic lessons from it. There are other shared arenas where discussions between Swiss and French stakeholders could tackle the issue of the environment, most notably the Rhône Plan and the Consultative Commission for Management of the Rhône and the Arve (established under the Regulations Implementing the Geneva Cantonal Water Law, L 2 05.01), which brings together most of the Swiss Rhône stakeholders and representatives of the CNR.

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However, from a transboundary point of view, there are very few arenas where all the French and Swiss Rhône actors can come together around the same table to discuss issues of ecosystem protection. Existing initiatives relate to individual events such as sediment flushing and/or bring together only some of the actors. Although the legal frameworks are very extensive, ways of bringing French and Swiss environmental requirements into line with each other are not on the agenda. As a result, this rivalry seems to be largely regulated by legal mechanisms at the national level. The issue of transboundary collaboration and arrangements for upstream–downstream co-ordination of ecosystem protection is, for the time being, not in the spotlight. vi.  Impact on fish and fishing Hydroelectricity production has an impact on fish populations. In the case of the Rhône, we note flow-rate modulation, river training measures, migration corridors being cut-off or even the destruction of habitats and spawning areas during specific operations such as sediment flushing. Both the literature and communications from the fishing community emphasize that the causal link between the ways the Rhône is used for hydroelectricity production and the state of health of the fish population can be observed by monitoring species and looking at whether their population trends are maintained, increase or decrease. There is certainly rivalry between the hydroelectricity sector and fishing—and in some localities it is growing. In the area around the Ain River, for example, the Federation for Fishing and Protection of the Aquatic Environment and the Association for Amateur Trap and Net Fishing have noted variations and trends in the fish population connected with hydroelectricity production. For example, an increase in the pike population was observed during the moratorium on sediment flushing at Verbois, while a drop in catch was identified in the months following the 2012 flushing operation. More generally, and from the point of view of the stakeholders, the quality of fishing seems to have declined as tidal range has increased following the change in the CNR’s status in 2001: the company has gone back to being an independent

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electricity producer and seems to have adapted its methods for imposing variations on the water level accordingly (personal communication, President of the Federation for Fishing and Protection of the Aquatic Environment, 10 October 2013; personal communication, CNR Regional Directorate, 2 October 2013). As yet, these indicators of variation in the fish population are mainly based on the practical experience of the fishing community, and therefore must be viewed with caution. In France, the fishing permit system requires records to be kept of catch numbers, and these are passed on to the French National Agency for Water Biodiversity (ONEMA). However, its reports are provided only on an individual basis: the combined number of fish caught by all permit holders on the section of the river we studied is not publicly available. Although we cannot quote relevant fishing statistics, the perception of trends is still a relevant indicator when it comes to understanding the direction that the rivalry between hydroelectricity production and fishing may be taking. In particular, it shows that the scale of this rivalry on this section of the river is significant, with recurring tensions and difficulties for the fishing community—which holds the hydroelectricity sector mainly responsible for these changes. Managers of the Rhône have several existing mechanisms at their disposal to regulate this rivalry. First, as we have already seen, Swiss and French hydroelectricity operators have (whether voluntarily or as a regulatory requirement) established various supporting and compensatory measures to tackle the effects of their activities on the river. Among the practical actions described in the previous section, we can highlight the construction of fishways at production installations on both sides of the national border and the works carried out—by the operators and by the authorities—to re-establish areas as protected habitats and to rehabilitate abandoned channels or nature reserves. We should also mention the existence of planning instruments, such as the Migratory Fish Management Plan (PLAGEPOMI), which aims to define a management strategy for reclaiming the whole Rhône-Mediterranean Basin within France for the fish population. PLAGEPOMI has a broad-based consultation structure, bringing

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together the authorities, NGOs, energy producers, etc. The RhôneMediterranean and Corsica Water Agency acts as its steering body, and it is integrated into the Rhône Plan. Fishing communities on the Rhône also participate in other arenas where river management is discussed. In Switzerland, they are involved in the Consultative Commission for Management of the Rhône and the Arve and in the Geneva Committee for the use of the Eco-Electricity Fund, where they play a part in decision-making on funding Rhône environmental projects within the Canton of Geneva. In France, the fishing community participates in collaborative projects with the Rhône-Mediterranean and Corsica Water Agency and/or the CNR. However, most of the efforts of these projects go into renaturation of abandoned channels or into creating fish-rearing areas in direct tributaries of the river, and the main Rhône channel receives relatively little attention. Finally, the fishing community plays a role in aspects of river management where their skills can be put to good use. For example, the French operator on the Rhône, the CNR, delegates specific fish-stunning operations ahead of sediment flushing or responsibility for monitoring abandoned channels and sediment loads during a flushing operation to the Ain Federation for Fishing and Protection of the Aquatic Environment. In this context, the fishing stakeholders are major institutional partners for the operators and for the authorities on both sides of the national border. This role does not just stem from the community’s desire for greater participation in river management, but is also grounded in regulatory provisions. For example, the first paragraph of Article 90 of the French 2006 Water Act provides that ‘recognized associations for fishing and for protection of the aquatic environment shall contribute to monitoring fishing, exercise their fishing rights, take part in protecting national fish stocks and the natural heritage of aquatic environments and carry out fish management operations’. However, although these stakeholders have a relatively significant involvement in the Rhône’s governance configuration, most of the time their contributions remain consultative and ad hoc in nature. They also have very little freedom to influence operational management of the river. Despite

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their involvement in discussions in various arenas, this rivalry is still very real, with tensions—and sometimes conflicts—between the fishing stakeholders and the hydroelectricity operators or the authorities.

4.5 Conclusion To conclude this chapter, we shall give a brief summary of our main results, looking again at the three questions set out in the introduction, which cut across the various sectors we have been considering. 1. How have shifts in the river’s major functions, uses and rivalries led to re-examination of modes of governance of the river? We have observed that, historically, arrangements for governance of the Rhône have been oriented around hydroelectricity production as the primary user of the river, and that other, additional uses are essentially organized around that reality. This has created an enduring structure shaping upstream–downstream co-ordination and providing the main framework for transboundary co-operation. Nevertheless, this structure is tending to open-up over time, especially as new uses come into the frame. Throughout this chapter, we have highlighted the increasingly entangled, complex interactions between the various major uses and users of the Upper Rhône: hydroelectricity producers, the fishing community, nature protection associations, farmers, industrial users, drinking water managers, nuclear energy producers. Clearly, as different water uses and the various functions of the river itself all exert increasing influence, interdependencies between river uses and users can only grow. One example of this is the close interdependence between governance of the hydroelectricity sector and governance of Lake Geneva’s water levels and of large-scale water transfers between France and Switzerland. In this context, we can see that regulation of the hydroelectricity sector relates equally to other important river uses, such as flood protection, guaranteeing certain water levels in Lake Geneva or ensuring water supplies in times of drought. We can also

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see a gradual extension of river governance instruments at the national level on both sides of the border, whether for ecosystem protection, sediment management or water abstraction for nuclear, industrial and agricultural use. 2. In the absence of any consolidated framework of transboundary governance, how has this river been managed until recently? In practice, transboundary co-operation is largely expressed in the form of effective co-operation between operators, in the interests of optimizing hydroelectricity production. As we have shown, it is mainly the hydroelectricity producers who build bridges between the current French and Swiss regulatory frameworks: in the absence of any treaty or international convention, it is up to them to ensure that they have the right tools to make their differing legal situations compatible. The instruments they use are not just relatively stable but also adaptable, supporting day-to-day co-ordination between the actors in the hydroelectricity sector. However, all this takes place within the bounds of the historically established imperative of optimizing hydroelectricity production and ensuring operational co-ordination between hydroelectricity producers. 3. When we observe the practical management of the river from various different angles, tensions are revealed: how good is this system of governance at co-ordinating the stakeholders to resolve them? All the evidence suggests that the Rhône’s current form of governance— polycentric, flexible, poorly co-ordinated and above all focused on use of the river for hydroelectricity production—is not managing to cope with all the rivalries and tensions that can arise at the transboundary scale: a certain number of these simply go unregulated. If we step back from this chapter’s tight focus on various uses and sectors to consider what this form of transboundary co-operation has to offer for the heterogeneous rivalries now arising between different new uses, we can see that the existing framework has some major gaps. The examples of flow-rate management in extreme situations—floods or droughts—and

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of the debates around environmental and ecosystem protection demonstrate that there are barely any tools for transboundary co-ordination. Against this background, we have seen just one area of real co-operation: co-ordination of sediment management and sediment flushing— an area that has demonstrated both success and repeated failures in transboundary co-operation. It is an example which shows that piecemeal co-operation to regulate heterogeneous uses rapidly finds its limits. All the other transboundary tensions have remained largely blind to co-operation and this can lead to clashes such as those we have observed around droughts and around nuclear power plant cooling, around ecological improvement of watercourses or even around supplying drinking water to the Lyon metropolitan area. The transboundary governance framework is still very patchy, except in the hydroelectricity sector, where there is a set of instruments which help it achieve a form of co-ordination that is both strong and flexible. In this chapter, we have offered an in-depth analysis of the conditions in which a form of multifunctional transboundary governance has emerged, as well as a preliminary scoping of its strengths and weaknesses. Chapter 5 will assess and explore these further, in order to highlight different potential models for the development of the Rhône’s governance.

Bibliography Bréthaut, C. (2013). Gestion des réseaux urbains de l’eau en stations touristiques alpines. Ecologie & Société, 23. Zürich: Rüegger. Cosanday, G. (2003). Les eaux courantes. Géographie et environnement. Paris: Collection Belin Sup Géographie Ed. Delahaye, E. (2009). Les espaces fluvio-urbains rhodaniens à l’aval de Lyon: vienne, Valence, Avignon, Tarascon, Beaucaire et Arles: des territoires à la dérive? Lyon 2. Khalanski, M., Carrel, G., Desaint, B., Fruget, J.-F., Olivier, J.-M., Poirel, A., & Souchon, Y. (2008). Étude thermique globale du Rhône-Impacts hydrobiologiques des échauffements cumulés. Hydroécologie Appliquée, 16, 53–108.

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Martin, P. (2013). La gestion quantitative de l’eau en agriculture. Une Nouvelle Vision Pour Un Meilleur Partage. Pritchard, S. B. (2011). Confluence: The nature of technology and the remaking of the Rhône (Vol. 172). Cambridge: Harvard University Press. Stäuble, S., & Reynard, E. (2005). Evolution du paysage de la plaine du Rhône dans la région de Conthey depuis 1850: les apports de l’analyse de cartes historiques. Vallesia: Bulletin Annuel de La Bibliothèque et Des Archives Cantonales Du Valais, Des Musées de Valère et de La Majorie = Jahrbuch Der Walliser Kantonsbibliothek, Des Staatsarchivs Und Der Museen von Valeria Und Majoria (pp. 433–456).

5 Towards Integration? Looking for a Best-Fit Governance Model

Our goal in this chapter is to assess the strengths and weaknesses, from a comparative point of view, of different modes of transboundary governance of the Rhône. We start by discussing the current arrangements. How does a loosely co-ordinated, polycentric governance system stand up to changes in the uses, rivalries and conditions of the resource, in particular those brought about by climate change? Is the current structure of governance robust enough to withstand changes to the Rhône’s water regimes? How adaptable is it? Building on information given in previous chapters, we provide a strengths-weaknesses-opportunities-threats (SWOT) analysis of the transboundary governance system now in effect. This chapter will allow us to identify the main challenges facing management of the Rhône and to provide an overview of the main issues at stake. Following this review of the current state of play, we explore different scenarios that could answer the challenges identified. What are the possible scenarios for change in river governance and for new forms of transboundary co-ordination between political actors and users of the river? How might the configurations of actors and different agreements change if the flow-rates of the Rhône were repeatedly subject to extreme © The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_5

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situations (both flood levels and low water levels)? How could emerging tensions and use rivalries be regulated? Taking the various transboundary water governance regimes— integrated, monofunctional and polycentric—as starting points, our objective is to evaluate possible futures in the light of international experience. This chapter suggests different scenarios that offer a broad range of tools for thinking about the ultimate future of transboundary management, for tackling the complexities of real-life issues and for imagining not only the type of institutions that could be implemented but also the territoriality of their activities. We conceptualize different answers and perspectives on how a transboundary water governance system could operate, given that the stakeholders have different goals for and perspectives on the Rhône. We test theory against empirical insights and reflect on key issues such as the institutional needs of transboundary rivers, how to ensure adaptive capacities and how to identify triggers for co-operation.

5.1 Assessing the Current Governance System SWOT analysis offers a framework for assessing an organization’s or a policy’s strengths, weaknesses, opportunities and threats and ‘translating them into value’ (Coman & Ronen, 2009). It not only provides a synthetic view of a large amount of information, but also distills the main challenges and issues in a complex system and establishes links between different analytical variables (Helms & Nixon, 2010). By grouping the most significant data into different categories, SWOT analysis helps to identify a system’s salient features and the variables that could be viewed as the most influential. In particular, it distinguishes characteristics that depend on internal elements of the system under study from those that relate to the external environment. In this case, we used SWOT analysis as a tool for assessing the mechanisms currently in play in the governance of the Rhône. As Valentin (2001) points out, the SWOT analysis framework is open to some criticism, as it can lead to oversimplification of real situations. In order to avoid this kind of exhaustive listing of elements and factors (the ‘catalogue effect’), we use this analysis to provide a basis for

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reflection on modes of river governance, applying it to the in-depth analysis of various arrangements set out in our previous chapters. Then we readjust our perspective in order to focus on assessing different modes of governance in the light of various climate change scenarios. Use of this strategic tool will enable us to identify the key variables of the system which could be open to change in response to various major political, socio-economic or environmental developments.

5.1.1 Strengths The strengths of the Rhône governance system can be described along three main lines. First and foremost, both France and Switzerland provide dense institutional frameworks with strong regulatory capacity. As we repeatedly saw in Chapter 4, the legal provisions concerned are extensive in scope and highly coherent. They provide a form of river management that instrumentalizes numerous public policies, which in turn aim to provide a framework for consistent water resource management. In France, water management policy relies on management plans and on political and administrative actors operating at the scale of the French Rhône River Basin. In Switzerland, the Canton of Geneva’s legislation implements federal provisions that are promoting a gradual integration of river governance. These different regulatory provisions are part of the Swiss and French national legal frameworks, both of which are moving towards integrated water management, demonstrating their desire to sustain this important resource (Barraqué, 2001; Mauch, Reynard, & Thorens, 2000). In this context, the Intercantonal Agreement to control Lake Geneva’s water levels has proved itself highly robust. It ensures the safety of the infrastructure situated around the Lake and of its neighbouring populations; it places certain limits on arrangements for hydroelectricity production and largely predetermines the quantities of water flowing in the Rhône downstream of Geneva. Finally, we must mention that some legal mechanisms with transboundary scope have already been implemented, such as the measures for allocating water diverted from the Arve River.

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Despite the presence of a legal and institutional framework that is both dense and extensive, the Rhône governance structure still manages to maintain a certain flexibility and a capacity to adapt to fluctuations in the river’s flow-rates. This is because a significant part of Rhône governance depends on self-organization between private-sector actors—most especially, between electricity producers. This collaborative interaction between operators is typically governed by highly developed legal provisions. These measures also facilitate regular adaptation of the convention-based system, with predefined renegotiation cycles (at five-year intervals for the Year 2000 Implementation Measures, for instance). Thus the operators concerned have opportunities to make periodic adjustments to their management arrangements and can successfully anticipate possible tensions or barriers arising between them. These self-organized governance arrangements have demonstrated their functionality for operational management of the river, not only on a day-to-day basis but also in crisis situations, showing that self-organization on the Rhône can be highly adaptable in the face of environmental changes and sudden variations in the river’s flow-rates. The high quality of this collaboration seems to be guaranteed as long as the economic climate and the configuration of actors remain stable— and as long as trust between the operators can be maintained (Ostrom & Ahn, 2009). As far as the situation in France is concerned, various crises have also demonstrated that the public-sector stakeholders do have the capacity to intervene in the configuration of private-sector actors at times of tension. Their involvement indicates, first, the need for collaboration between public bodies when the difficulties that arise go beyond the narrower framework of the hydroelectricity production sector and, secondly, that public stakeholders are able to impose their will within the configuration of actors when necessary. Some specific crises—sediment flushing operations and the 2003 and 2011 low-water situations—have highlighted capacities for transboundary collaboration in managing extreme events. However, in the context of this collaboration between France and Switzerland, ad hoc arrangements for reacting to specific gaps in the co-ordination structure (maintaining water supplies to Bugey NPP in the 2011 low-water situation, for instance) must be distinguished from the implementation of arrangements agreed

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in advance, which reflect a true transboundary dynamic. An example of the latter was the preparatory procedure for the 2012 Verbois Dam sediment flushing operation, which demonstrated the public-sector actors’ capacity to carry through a joint procedure at the binational scale, involving a participatory process based on a public inquiry. Although the impact of hydroelectricity production on the environment is to some extent inevitable, it can be significantly reduced by a legal framework that acts as a constraint on the operator (for ­example, establishing environmental flows, defining responsibilities to ­maintain the river, setting up compensatory measures). Both the French legislation and the Swiss legislation are tending to place stronger and stronger limits on operators, imposing new measures that have to be reconciled with the policy pressure on them to produce more energy from renewable sources. Apart from highlighting the increasingly strong legal framework, we should also mention the fact that hydroelectricity producers participate in various Rhône management bodies at the national and transboundary scales, whether on an entirely voluntary basis or in order to support their compliance activities. These bodies include, in France, the Rhône Plan or the Migratory Fish Management Plan and, in Switzerland, the Geneva Committee for the Use of the Eco-Electricity Fund (‘COGEFE’) or the Consultative Commission for Management of the Rhône and the Arve—and in fact, the last of these also involves the Compagnie Nationale du Rhône (‘the CNR’), representing economic operators who use the Rhône in France. Finally, reductions in the impact of hydroelectricity production can also be achieved by the sector making significant financial contributions through funding environmental action plans: an example of this is the sum of about 30,000,000 EUR that the CNR invests through the Public Interest Action Plan associated with its concession contract to operate on the Rhône in France. The Swiss legislation also requires hydroelectricity producers to make financial contributions to environmental protection funds: an example of this is the participation of SIG, which manages all Swiss hydroelectric dams, in bodies such as COGEFE or the Geneva Cantonal Nature Restoration Fund.

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Finally, transboundary management of the Rhône already has one platform where stakeholders can come together to engage in fairly informal discussions of issues relating to water quality or water quantity: although the International Commission for the Protection of Lake Geneva focuses on transboundary management of the lake, it actually includes a significant number of actors who are also involved in managing the river.

5.1.2 Weaknesses The first weakness of the governance system that we should note is its high level of institutional fragmentation. It has a huge number of actors, who are highly diverse in status: private-sector operators, political actors, policymakers and administrative stakeholders, NGOs and so on. Its structure is also ill-defined with regard to the scope within which the various actors and Rhône management bodies can operate— a situation that only serves to complicate not just national frameworks (especially in France) but also transboundary frameworks. It can be difficult to get an accurate picture of who is or is not responsible for particular tasks at the various levels, or even simply to know who to contact. This multi-layered institutional complexity means that the governance system is somewhat opaque—a characteristic exacerbated by a large number of legal provisions and contractual measures that structure the entire system. As we have seen, regulation of the river’s flow-rates depends on a form of transboundary collaboration that is equipped take effective ad hoc action to solve a particular problem but has no shared agenda or vision for Rhône management. As the rivalries we have studied show, the result of this is that the governance system has a large number of gaps in co-ordination between the different river uses. These shortcomings arise in particular from the large-scale delegation of Rhône management powers to hydroelectricity operators, who are using the river as their main industrial production resource. Gaps can also be caused by a failure to take into account what is at stake when it comes to co-ordinating operational management arrangements for the Rhône at

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the transboundary scale. Analysis of the various rivalries demonstrates, in particular, that there is not always an awareness of the number of uses of the river that require co-ordination. As we have shown, some uses of the Rhône are directly impacted by methods of use upstream. For example, if general water-stress conditions occur, the Rhône Regional Association for Agricultural Water Use may experience supply difficulties as a consequence of the drop in flow-rates that results from SIG’s weekend production strategy. Finally, additional gaps in co-ordination seem to have arisen from France’s 1986 decision not to become party to the Intercantonal Agreement on management of Lake Geneva water levels or to get involved in other mechanisms for regulating the lake levels. The next important point to be made is that Rhône’s governance lacks an arena where key stakeholders can come together on a regular basis and discuss the challenges of managing water quantities at the transboundary scale. Existing initiatives remain largely ad hoc: they bring together the actors who are concerned by a particular set of problems but do not tackle the issues of transboundary co-operation in their entirety. Therefore the various collaborations between French and Swiss stakeholders mostly depend on a reactive dynamic, rather than engaging in an anticipatory one that takes into account the medium or the long term. Therefore, despite the importance of the national and cantonal legal frameworks, operational management of the Rhône largely depends on the electricity producers. In fact, the governance structure itself is essentially dictated by their sector-based approach: other uses (ecosystem protection in particular) are viewed and evaluated in terms of their interrelationship with hydroelectricity production. Although there is a gradual move towards placing increasingly stringent demands for environmental stewardship on those who manage the Rhône, the river’s transboundary governance structure still has many shortcomings from this point of view. Environmental responsibilities may be the subject of binational discussions in relation to particular events (sediment flushing, for example), but essentially they are handled solely at the national scale. Finally, although there are legal mechanisms and ad hoc arrangements for managing low-water situations, when it comes to regulating Rhône flood levels, the governance structure is, again, significantly

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lacking. The issue appears only very rarely on the agenda for transboundary discussions. One might wonder why there are no FrancoSwiss early warning measures in place for extremely high water levels or flooding—or whether consideration has ever been given to the use of Lake Geneva as a storage facility to manage a significant rise in river levels upstream of Lyon. To what extent could impounding water there be a decisive factor in flood control? And could the strategy actually be implemented, in light of the Intercantonal Agreement?

5.1.3 Opportunities Our analysis shows that various opportunities exist to strengthen transboundary management of the Rhône and to increase the resilience of the governance system. First of all, different crises (exceptional situations) have highlighted the capacity of the actors to make ad hoc adjustments to extremely robust mechanisms such as the Intercantonal Agreement on Lake Geneva’s water levels, indicating that there is a certain amount of leeway (flexibility) in the regulatory framework. The actors have also succeeded in co-ordinating across national borders in order to manage tricky procedures such as sediment flushing, demonstrating a capacity for transboundary collaboration around high-priority challenges. Although up to now transboundary collaboration has taken practical forms only in crisis situations, these have shown us that the dynamic is gradually growing stronger and becoming institutionalized in certain cases, with the emergence of arenas that bring together the French and the Swiss stakeholders to discuss both operational and policy matters. Worthy of mention here are the technical and policy working groups following up the Verbois Dam sediment flushing operation, the Consultative Commission for Management of the Rhône and the Arve and—on a somewhat smaller scale—the willingness of the French Rhône Plan to include Swiss stakeholders in some of its discussions. Secondly, the current governance system is characterized by a gradual return of the public sector to a central role in the stakeholder configuration. This is expressed in particular through the instigation and

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completion of various studies, carried out simultaneously across the Rhône River Basin, to identify the major current and future challenges of managing the river’s water quantities. These include, in France, the ‘Rhône-Alpes Heat Study’ and a study of the quantitative management of Rhône water flows in low-water periods and, in Switzerland, a study to identify alert levels for water elevations in Lake Geneva. Nor should we omit our own research project, which involved both French and Swiss stakeholders. All these research efforts should provide opportunities to improve understanding of the system and its dynamics and to reflect in more depth on how to develop the river’s governance structure, how to create new co-ordination mechanisms and how to devise strategies for resolving existing conflicts—and those that will have to be handled in future—between the different users of the Rhône. The repositioning of the public-sector stakeholders—notably French central government actors—within the Rhône configuration is coinciding with the approaching end of the CNR’s Concession Contract. The end of a cycle like this provides the public-sector stakeholders with opportunities to clarify the main challenges and issues faced by the river and to adopt measures required to meet them when (re)defining a new concession and/or new terms of reference for the future Rhône operator. This period could potentially provide an opportunity to rethink the overarching management approaches currently being applied to the river at the national level in France, as well as to reflect on new transboundary collaboration mechanisms that would not be largely sector-based but could draw in a much wider range of uses, such as those represented by the rivalries we studied (hydroelectricity production, nuclear energy, drinking water production, ecosystem protection, fishing, irrigation and industrial activities).

5.1.4 Threats Finally, there is no doubt that the governance system is also subject to forces that threaten how it functions now, and how it may function in future. The threats we identified fall into three areas.

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First, although the French public-sector stakeholders are now gradually regaining a central position within the configuration of actors, they remain as yet somewhat on the margins of arrangements for operational management of the river. One example of this is the paradoxical situation of the Nuclear Safety Authority in France, which regulates Electricité de France, producer of nuclear energy along the Rhône: it has to define and supervise EDF’s responsibilities, but it has no freedom to act on its own account, nor any right of oversight of the agreements made between operators for water transfer. This in turn highlights a second threat: self-organization by the actors can also be problematic. It is based on agreements governed by private law, the majority of which involve just two operators and, as such, it tends to remain vulnerable to emerging and potentially persistent tensions caused by exceptional situations. Private-sector operators whose business depends on a shared water resource can experience major episodes of rivalry, which can in some cases lead to open conflict. In this context, the tendency to defer certain river-use activities (irrigation, for instance) can be a source of new rivalries and new barriers within the configuration of actors. These tensions can result in increased instabilities within the governance system, reducing—or complicating—the capacities of existing mechanisms to adapt to change. The resource-use conflict between the CNR and SIG offers a perfect example of situations that are critical for Rhône management, where co-operation solely between private-sector actors reaches its limits and where the existing trust relationship between operators can be put at risk, with repercussions for the whole operational management of the river. Finally, implementation of any form of transboundary management of the river is currently restricted by the absence of institutional instruments (such as a river basin organization) or legal measures (a binational convention or agreement) covering management of water quantities and regulation of flow-rates. At the moment, transboundary policy consists merely of specific instances of co-operation and discussions of particular problems. And last but not least, the rigidity of the Intercantonal Agreement on control of Lake Geneva water levels tends to limit the emergence or implementation of new approaches to transboundary management of the Rhône.

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5.1.5 Overview This analysis of Rhône governance has given us an initial picture of the leading trends and characteristics of the current system, highlighting three main paradoxes in the governance structure. First, management of the river is characterized by a high level of self-organization between the private-sector actors. As we have emphasized, this feature of the system provides a degree of flexibility within a dense legal framework that is robust but sometimes rather rigid. Through these various contractual arrangements, the actors succeed in adjusting their management methods to fluctuating hydrological or economic conditions and in adapting the current legal mechanisms on a regular basis—for instance, at five-year intervals, EDF and the CNR can renegotiate procedures for transferring water from the Arve River reserve (Year 2000 Implementation Measures). But although self-organization enables some flexibility within the electricity production sector, it also creates the risk of increased tensions, barriers or even conflicts between the operators. Therefore, paradoxically, this form of self-organization—when faced with conditions that may fluctuate strongly—does not necessarily demonstrate significant adaptability to external crises such as climate change or the potential to modify the configuration of actors. Secondly, the current Rhône governance structure is characterized by a gradual move towards the transboundary scale. An important feature of this is the institutionalization of some arenas that bring together both Swiss and French stakeholders for discussion of Rhône issues. But, paradoxically, while the number of bodies that enable some binational collaboration is tending to increase, transboundary management is not becoming any easier from a practical point of view. Typically, initiatives generated by the bodies where these discussions take place are highly fragmented: their aims may not just be very different, but sometimes overlap or compete. Moreover, although there is dialogue, not all the relevant co-ordination problems are always discussed, and this is particularly the case with rivalries that are regarded as causing only temporary problems—for example, the fact that water-level variations (tidal range) resulting from SIG’s production schedules affect arrangements

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to withdraw untreated water for collective agricultural irrigation use in France is rarely brought up. Thirdly, we have noted that regulation of the uses of Rhône water is powerful and coherent at both Swiss and French national scales. In particular, there are certain public policy instruments that provide a robust structure for approaches to the governance of the Rhône—for example, the French Water Development and Management Master Plan for the Rhône-Mediterranean Basin or the Swiss Intercantonal Agreement on Control of Lake Geneva Water Levels. These legal frameworks represent a practical expression of the desire for integrated management of water at the national level. However, paradoxically, there are very few such instruments that could serve as tools for transboundary management of the Rhône, whether for hydroelectricity production, environmental protection or to ensure the safety of riverside populations and infrastructure. This gap in the system can be explained not only by the fact that the desire for increased transboundary management is relatively recent, but also by the robust nature of the Intercantonal Agreement, which seems to have become set in stone—or at least, its provisions are never debated by the Rhône stakeholders. The governance of the Rhône is at a crossroads in its history. The combination of various simultaneous initiatives, the imminent expiry of a concession contract that has helped to impose a strong structure on the river and the development of the legal frameworks all promise opportunities to rethink river governance at both the national and the transboundary scale. Against this background, we hope our analysis will help to identify the strengths and weaknesses of current governance mechanisms.

5.2 The Main Trends in the Hydrological Regime of the Rhône Between Lake Geneva and Lyon In response to the dynamics of change, we now propose to set our analysis of transboundary governance alongside the results of evaluations of predictable climate change impacts, in order to assess the adaptability of the governance system.

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Here we draw on research conducted by Ruiz-Villanueva, Stoffel, Bussi, Francés, and Bréthaut (2015), who looked at possible changes in the hydrological regime of the Rhône and its tributaries at Lyon. Their work combined two time scales. The first covered the late twentieth century and was based on the collection and statistical analysis of observed data. The second relied on modelling the potential impacts of climate change on the behaviour of the river up to 2100. For this stage, the IPCC’s latest AR5 GCM (CMIP5) models were used, providing an opportunity to include not just geophysical variables but also societal ones. The main climate trends, which reflect global climate change scenarios, are: – Increase in mean temperature – Increase in evaporation – Decrease in precipitation (between −10 and −27% by the end of the century). Modelling showed that the projected impact of these trends on observed mean flow-rates in the Rhône River Basin by 2100 would be: – an overall decrease in mean annual flows – a smoothing of interannual variability in the river’s flow regime – a trend towards more extreme low flows – a probable trend towards an increase in extreme high-flow events. As Chapter 4 revealed, the Rhône is the site of various rivalries, since its waters have to be shared between different uses. Although, as things stand, the river benefits from an advantageous location and abundant quantities of water, these uses can still find themselves in competition during low-water periods. The trends identified by this climate analysis indicate that the future may bring a mean decrease in available water reserves and an increase in the number of extreme situations such as low water, high water and flooding. Given that abstraction of water for all the various uses will at least remain constant and may even grow, the conditions outlined seem to indicate strong probabilities of increased use rivalries on the Rhône.

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In practice, this risk of tensions being exacerbated could be played out both at sectoral level (within the same branch of activity) and at intersectoral level (between two distinct activities that both depend on the Rhône for their particular mode of operation). The energy sector is currently equipped, through contracts governed by private law, with effective governance instruments that combine flexibility (agreements can be renewed on the basis of periodic negotiations) and robustness (they can be both resilient and adaptable in crisis situations). Nevertheless, operational management of the river is still primarily sector-based, since everything is strongly structured around electricity production (both hydroelectricity and nuclear energy). The conclusions of our SWOT analysis and our comparison of those with the results of this climate analysis indicate the need to reflect on a form of operational management for the Rhône that could include all river uses (including ecosystem protection) and avoid the deadlock that may be inherent in the potential increase in the number of use rivalries or even use conflicts within one particular branch of activity. From this point of view, our analysis of Rhône governance highlights (a) the system’s increasingly strong capacities to develop strategies for resolving conflicts on both sides of the border and (b) the obvious gaps in the system at the transboundary scale, with no authorities taking on the regulatory role. Potentially rising tensions could also affect the management mechanisms that the private-sector actors organize between themselves, and one cannot help but to wonder whether these agreements will remain fit for purpose in the longer run. Our analysis of governance mechanisms has shown that self-organization is in fact subject to significant controls on the French section of the river, where collaboration between the French Rhône operators (EDF and the CNR) is regulated by Terms of Reference defined by the relevant central authorities, by various conventions and even by the French government’s priorities for use of particular reserves of water (the diverted waters of the Arve River). Nevertheless, such terms of reference are established solely at national scales: therefore interactions between operators at the transboundary scale are typically subject to a lighter regulatory regime.

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In the end—for the time being, at least—the Rhône’s governance system has succeeded in surviving various crises by implementing ad hoc procedures, with the actors managing to collaborate in order to find solutions. However, if climate change is going to lead to recurrent extreme events, there will be an obvious interest in putting such upstream–downstream co-operation procedures on a stable footing. In this context—and particularly with possible future reductions and variations in available water inputs—management of Lake Geneva is playing an increasingly significant role. Therefore it is relevant to ask whether and how approaches to managing the Lake could change.

5.3 Exploring Integrated, Monofunctional and Polycentric Scenarios Our next step will be to set up different scenarios in order to explore avenues of thinking about possible ways to adapt various river governance arrangements to the transboundary scale. Our method makes use of the three main types of governance that take the river basin as their reference unit, which we presented in Chapter 2: integrated, monofunctional and polycentric. First of all, we present nine governance scenarios—three for each river basin governance type. Then we analyse these scenarios through the prism of various indicators, in order to evaluate their scope or potential effectiveness. Our first set of indicators is compiled from the factors that influence integration according to the Handbook for Integrated Water Resources Management in Basins (Global Water Partnership and International Network of Basin Organizations, 2009), which we use to compare the different scenarios and to analyse their degree of theoretical integration. Then we go back to the results of our SWOT analysis and the weaknesses and threats we identified, using these as a second set of indicators in our assessment of each scenario’s capacity to strengthen the current system so as to resolve these problems. Finally, we evaluate the different scenarios’ governance capacities, capacities to take various actions and capacities to integrate environmental stewardship.

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5.3.1 Scenario-Building Method In Chapter 2, drawing on the literature and on real-life instances, we presented three main types of governance: integrated, monofunctional and polycentric. Taking this typology as a basis, we now focus on presenting various scenarios for transboundary governance of the Rhône and on comparing these different institutional arrangements. We break down each type of governance into different scenarios, which vary according to their degree of integration, monofunctional organization or polycentricity as well as in terms of the strength of their internal co-ordination. In this context, we can start by describing the current governance system—which we include in our projections as a ‘business as usual’ scenario—as polycentric and loosely co-ordinated. This is on the basis that, to date, the Rhône’s governance has been characterized by multiple decision-making bodies that interact within a loosely co-ordinated framework and through numerous bilateral agreements. Here, however, our objective is to assess contrasting scenarios in order to highlight different possible lines of development in the Rhône’s governance that could respond to the weaknesses and risks of the current governance system, which we have already discussed. We hope to achieve this by describing not only various possible futures that have their roots in the types of governance we have identified but also situations that are really attainable, looking at the attributes and limitations of these lines of development in terms of their effects or consequences and in terms of the potential for implementing them. In the closing subsections, we draw a brief but finished picture of the kind of governance that could be achieved through a given scenario. We end the chapter with a brief discussion of the factors and stages that might be involved in achieving the various scenarios, in terms of timings and processes. Our intention is to highlight the diversity of possible lines of development that could strengthen co-ordination at the river-basin scale, without moving too far towards any normative recommendations.

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5.4 Integrated Governance Scenarios Figure 5.1 shows Scenarios 1a, 1b and 1c, which all fall within the integrated model of governance—a model that is generally expressed at the river-basin scale, through the creation of a water management body that brings together the different stakeholders. In this part, we present three scenarios ranging from loosely to strongly integrated. Moving across these three scenarios, the rationale of river management gradually goes further beyond national frameworks and monofunctional views of the Rhône.

5.4.1 Scenario 1a. Franco-Swiss Multi-stakeholder Co-ordination Platform The Franco-Swiss Multi-stakeholder Co-ordination Platform (Scenario 1a) aims to bring together those with a stake in transboundary management of the Rhône, in response to particular events or problems to be resolved. It is not a permanent body and has no decision-making powers: it is generally mobilized only when a co-ordination issue requires it. It tries to anticipate potential bottlenecks arising from inadequate co-ordination and to strengthen dialogue at the transboundary scale in order to prevent further problems. The Platform brings together the different stakeholders involved (the authorities, various branches of business and industry, environmental organizations, representatives of the public) and facilitates their discussions of approaches to transboundary management of the river. It is a forum for consultation

Fig. 5.1  A range of integrated scenarios

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and participation, aiming to establish (and strengthen) increased co-operation between, on the one side, the different branches of activity and, on the other, the various institutional levels involved.

5.4.2 Scenario 1b. Rhône Transboundary Scientific Observatory The Rhône Transboundary Scientific Observatory (Scenario 1b) takes the lead on and co-ordinates scientific activities at the transboundary scale. The Observatory is managed by a permanent Secretariat, supporting the work undertaken by its members—scientists, other experts, the authorities and elected representatives. Its remit is to collect, compile and analyse scientific data on the transboundary section of the Rhône. The Observatory’s activities not only facilitate diagnosis of the state of the river but also generate analytical forecasts of changes in its water quantities and water quality. It is responsible for drawing up scientific programmes and for promoting increased collaboration between experts and academics in France and Switzerland. It actively tries to improve knowledge of the river at the transboundary scale and to encourage the application of scientific evidence to thinking on co-ordination issues. This scenario creates a transboundary scientific community for the Rhône and facilitates the production of new data and knowledge: in doing so, it supports and illuminates policy-making.

5.4.3 Scenario 1c. Binational Rhône Basin Authority The France-Switzerland Binational Rhône Basin Authority (Scenario 1c) is a permanent body with legal personality and financial autonomy, acting as an oversight authority for the different branches of activity that function within the river’s transboundary governance system. Operating under the direction of an Executive Committee that includes the authorities, the various branches of activity, environmentalists and the public, the Basin Authority has three main areas of responsibility: funding action programmes at the binational scale; overseeing negotiating strategies and acting as arbitrator between different uses and users of the

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river; creating a platform to guarantee public participation and dialogue between the different stakeholders. In a governance system with a large number of actors who have different objectives, the Basin Authority must provide a framework for all uses of the river while still guaranteeing long-lasting, coherent management of water quantities and water quality in the Franco-Swiss Rhône. This scenario envisages strong supervision of activities carried out on the river at the transboundary scale. The Basin Authority has genuinely strategic scope, therefore the parties involved—France and Switzerland—have given it financial, legislative and policy-making powers. This empowers the Authority to fashion governance of the river by creating the financial, legislative and policy instruments it requires in order to orient the governance system towards the strongest degree of integration, focused on the river-basin scale.

5.5 Monofunctional Governance Scenarios A monofunctional scenario is constructed around one branch of activity in particular. This was the situation on the Rhône before the 1970s. At that stage the river had long been dominated by the hydroelectricity sector—and primarily by agreements and interactions between the producers: on that historic basis, our suggested scenarios take a production-centred perspective, focusing on in particular on energy production. As Fig. 5.2 shows, these successive scenarios (Scenarios 2a, 2b and 2c) are increasingly strongly monofunctional.

Fig. 5.2  A range of monofunctional scenarios

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5.5.1 Scenario 2a. Franco-Swiss Operational Groups The Franco-Swiss Operational Groups (Scenario 2a) represent the least monofunctional scenario on this spectrum. Operational groups are non-permanent consultative groupings defined on the basis of specific sets of problems. They function as ad hoc platforms to bring together actors from different branches of activity to tackle issues relating to use of the river for hydroelectricity production. They promote information-sharing and try to anticipate crises by facilitating dialogue either within a particular sector or between different branches of activity. The concept behind this scenario is broadly inspired by the model of the Consultative Commission for Management of the Rhône and the Arve (although this differs by virtue of its permanent nature), which brings together the main economic actors of the Rhône in the Geneva area but also includes the CNR. Our scenario institutionalizes a forum for ad hoc discussion—when necessary—of the issues and challenges of transboundary operational management of the Rhône.

5.5.2 Scenario 2b. Joint Supervisory Commission on Rhône Water Quantities The Joint Supervisory Commission on Rhône Water Quantities (Scenario 2b) is a permanent commission that brings together representatives of all the institutional levels involved and representatives of the main branches of activity. This Commission, focused on use of the Rhône for energy production, supervises management of the river’s water quantities. It has no decision-making capacities or restrictive powers, but aims to generate and frame discussion and information-sharing between the different parties—in which it includes stakeholders other than just the hydroelectricity producers. Within this framework, not only specific operations but also major strategic directions can be discussed and debated between operators and representatives of the different authorities. This scenario strengthens the supervisory framework of a river governance system already characterized by a high level of self-organization between private-sector or semi-private actors. In this regard it corresponds to the Swiss approach to water management, where the involvement of government

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authorities is secondary and regulates the operations of the private sector only from an administrative point of view.

5.5.3 Scenario 2c. International Commission on the Use of Rhône Waters for Energy Production (ICREP) The International Commission on the Use of Rhône Waters for Energy Production—known by its French acronym, ‘the ICREP’—(Scenario 2c) is a body with legal personality, financial autonomy and a permanent Secretariat. It has been set up to co-ordinate the energy sector and fulfils the role of a transboundary umbrella organization, drawing together operators and authorities within a single arena for negotiation and decision-making. All International Commission on the Use of Rhône Waters for Energy Production (ICREP) decisions must be carried by a unanimous vote. It is structured around a number of Working Groups, each tackling a defined set of problems experienced by the energy sector. As an international commission, the ICREP is able to bring together the sector’s interests within a single body, meaning that it can also take a single position in discussions and negotiations with the other different branches of activity (irrigation, drinking water production, environmental protection and so on). The practical significance of this scenario is that it marks a return of public authority to the heart of the configuration of actors, with significant oversight of the hydroelectricity production sector. It also enables the sector’s actors to agree on a management strategy and to speak with one voice in negotiations with other sectors and branches of activity.

5.6 Co-ordinated Polycentric Governance Scenarios As we have seen, the polycentric model consists of a complex system of institutions established within a dynamic that integrates both bottom-up and top-down processes, where the stakeholders seek arbitration at a higher level only if their existing institutions find it impossible to settle

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Fig. 5.3  A range of co-ordinated polycentric scenarios

a given collective-action problem (Marty, 2001). These institutions have been created in response to a particular issue—an incremental process in which co-ordinated polycentrism builds up gradually. Polycentrism has the advantage of a high level of flexibility and adaptability but also carries the risk of significant institutional fragmentation. The scenarios presented below (see Fig. 5.3) range from a loosely co-ordinated (but strongly framed) polycentric picture to a strongly polycentric situation—but one that still leaves the actors a great deal of leeway for self-organization.

5.6.1 Scenario 3a. ‘Business as Usual’ This first scenario (‘Business as Usual’, Scenario 3a) represents the current system of transboundary governance of the Rhône as we have observed it. Lacking any organization to specifically co-ordinate management of Rhône water quantities, the system depends on various bodies that do not set out to adopt a co-ordinated approach and therefore cannot represent all branches of activity on the river in every situation that might arise. The possibility of simply continuing with the current situation must of course be mentioned—but since we have already provided an exhaustive analysis of that scenario, here we pass rapidly onwards.

5.6.2 Scenario 3b. Franco-Swiss Rhône Plan The Franco-Swiss Rhône Plan (Scenario 3b) represents an instrument for promoting co-ordinated management of the Rhône. This body has no decision-making capacities and therefore simply acts as a platform

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for co-ordination between the different sectors that use the river. The Plan’s structure is based on various defined policy headings, which are co-ordinated by a permanent Secretariat. It promotes synergies between the different stakeholders concerned and establishes programmes of measures aiming to strengthen transboundary co-ordination. Last but not least, the Plan also aims to encourage and provide a framework for participation in river governance mechanisms.

5.6.3 Scenario 3c. International Commission for the Protection and Management of the Rhône The International Commission for the Protection and Management of the Rhône (Scenario 3c) is a scenario that tends towards strongly co-ordinated polycentricity. This Commission is equipped with legal personality and financial autonomy. Its activities are organized around a permanent Secretariat, which ensures co-ordination of its various policies. Working with all the stakeholders, the Commission defines shared transboundary objectives for France and Switzerland. In order to achieve these, the International Commission implements joint action programmes. As with real-life examples of international commissions, various working groups have been established in order to tackle and investigate particular points of concern on the basis of input from experts (both administrative and scientific) and from representatives of the different stakeholders (branches of activity, authorities, environmental protection organizations, the general public). The International Commission also guarantees public participation in decision-making on Rhône management at the transboundary scale. It represents an arena where co-ordination problems can be discussed and any potential tensions anticipated. It also defines the remit of scientific research programmes and supervises their implementation and completion. This scenario envisages the creation of a binational Rhône management institution at the transboundary scale: thus, from the international and intersectoral points of view, the Commission becomes the reference body for managing the whole length of the river from Lake Geneva to the Lyon metropolitan area.

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5.7 Comparing the Governance Scenarios with the Results of Analysis of Current Rhône Governance Having analysed the degree of integration of these suggested scenarios, we now review them again with reference to the main weaknesses and threats to which the transboundary governance system of the Rhône is exposed.

5.7.1 Franco-Swiss Multi-stakeholder Co-ordination Platform (1a) A Franco-Swiss Multi-stakeholder Co-ordination Platform would have no decision-making or regulatory capacities, leaving its impact on the governance system in general and the regulatory framework in particular quite limited. The Platform is primarily a structure for bringing together the stakeholders at the transboundary scale, and it would have little influence on the various branches of activity and their operational management arrangements. On the other hand, this scenario does facilitate stronger i­nteraction between river users. Established on a formal basis, the Platform would provide a forum for discussion of the challenges of transboundary management of water quantities, with opportunities to integrate environmental and climate change issues. It could provide support in anticipating situations where tensions may arise, although it cannot act as arbitrator in any specific conflict. The Platform would also facilitate the dissemination and sharing of information, thus helping to increase the transparency of the governance system.

5.7.2 Rhône Transboundary Scientific Observatory (1b) Similarly, a Rhône Transboundary Scientific Observatory would not have any decision-making powers or any influence on the regulatory framework. Its responsibilities would be limited to gaining more in-depth scientific knowledge of the Rhône, integrating the

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transboundary dimension. This means that its activities would have only slight influence on operational management of the river. The Observatory would help to improve understanding of the system, essentially concentrating on scientific information and on gathering and analysing data on the quantity and quality of river water. This type of observatory would support the decision-making process by documenting the state of the Rhône from the social-ecological perspective, analysing the overall state of the river system and generating analytical forecasts.

5.7.3 Binational Rhône Basin Authority (1c) The France-Switzerland Binational Rhône Basin Authority is the scenario with the highest degree of integration, since it would oversee the governance system and set strong directions for transboundary Rhône management. This Basin Authority would have legal personality and financial autonomy. It would be the oversight authority for the various activities undertaken on the Rhône, with capacities not only to arbitrate disputes but also to take decisions with regulatory force. This means that the Authority would have a powerful formative influence on Rhône governance mechanisms. Its highly participatory structure would not only generate interaction between the different parties involved but also have the capacity to anticipate possible tensions within the stakeholder configuration. This characteristic would help to reduce institutional fragmentation as well as allow some light into the opaque governance system. At the same time, the Basin Authority’s structure would promote discussion of issues common to all the parties and new ways of thinking about how France and Switzerland share governance of the river: for example, it could situate environmental stewardship as a central concern of the governance system.

5.7.4 Franco-Swiss Operational Groups (2a) As institutions, Franco-Swiss Operational Groups would not be permanent, but merely consultative. They would be created on a case-by-case

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basis, according to the operational management issues identified. They would have no effect on the overall governance structure, focusing mainly on areas that are problematic for the branches of activity dependent on the river. The Operational Groups’ chief responsibility would not be to make changes to operational management arrangements but to circulate information between the different stakeholders. They would represent an important arena for discussion, but would have no capacity to regulate possible tensions. Operational groups could bring together the various actors when necessary, framing and stimulating dialogue and therefore helping to reduce sources of immediate and persistent tension between the economic sectors involved. They could also increase the transparency of operational practices and strengthen co-ordination within the sector or branches of activity concerned.

5.7.5 Joint Supervisory Commission on Rhône Water Quantities (2b) A Joint Supervisory Commission on Rhône Water Quantities would be a permanent commission representing all institutional levels and including a breadth of organizations concerned with transboundary governance of the Rhône. It would oversee management of water quantities in the river, although it would not have decision-making capacities or restrictive powers: from that point of view, it would be a supervisory body for self-organization within the energy sector. The Joint Commission would help to reduce institutional fragmentation, facilitating information-sharing and therefore helping to increase transparency within the sector. It would establish and strengthen ties between authorities and operators, framing discussions on the challenges of and arrangements for transboundary operational management of the river. Finally, a commission of this type plays a particularly important role when it comes to specific activities such as sediment flushing: it provides a framework for these operations by creating an arena for discussion specifically dedicated to the branches of activity concerned.

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5.7.6 International Commission on the Use of Rhône Waters for Energy Production (2c) An ICREP would have legal personality and financial autonomy. Managed by a permanent Secretariat, it would be an umbrella organization, steered by operators in the energy sector but including the relevant authorities. Focusing solely on use of the river’s water to produce energy, the ICREP would have no formal capacity to arbitrate conflicts or to take any action that would affect the governance system in general. It would be limited to supervising one particular sector—energy production. It could, however, offer a framework for negotiation with other branches of activity, drawing together the positions of the various actors in the energy sector and supporting negotiations. The authorities directly involved in the ICREP could offer to supervise the process, setting a framework and attempting to anticipate any tensions that might arise. This in turn could open up an arena for sharing information with other sectors and branches of activity and for monitoring and discussing operational management arrangements for the river.

5.7.7 ‘Business as Usual’ (3a) Our earlier analyses have shown the strengths and weaknesses of the current governance system on the transboundary section of the Rhône. They have also demonstrated that there are two aspects of the current system with the potential to improve river governance. First of all, the system encompasses some arenas for discussion which—although they are not always well co-ordinated—do allow the actors to meet and exchange ideas on managing the river. Second, as the example of the Verbois sediment flushing operation has shown, the system does have the capacity to develop ways of handling problems where these are identified: following the flushing operation, working groups were created to reflect on and respond to the gaps that had been exposed in the system. However, although the current system is a form of polycentrism, it is still only very loosely co-ordinated.

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5.7.8 Franco-Swiss Rhône Plan (3b) A Franco-Swiss Rhône Plan would be an instrument to promote co-ordinated management of the Rhône. It would have no decisionmaking or regulatory capacities, but would be a co-ordination platform with a permanent Secretariat. The Franco-Swiss Rhône Plan would help to limit institutional fragmentation and, as an arena for discussion, also help to increase transparency. It would provide a framework for the different branches of activity, establishing incentives and participatory measures. This type of Rhône Plan is a forum for discussion of current river management practices and arrangements at the transboundary scale. It would support co-ordination between sectors and promote the inclusion of the various actors who use the Rhône.

5.7.9 International Commission for the Protection and Management of the Rhône (3c) This International Commission would provide an institutional framework for a strongly co-ordinated polycentric system. Although it would not have the capacity to arbitrate conflicts, the Commission would help to anticipate tensions by bringing together all the stakeholders within a joint body. It would strengthen dialogue between the different branches of activity and with the different authorities. This binational institution would become the focal point for managing the whole length of the river from Lake Geneva to the Lyon metropolitan area.

5.8 Identifying Capacities Inherent in the Different Scenarios We built our different governance scenarios in three successive stages. The first stage (1) was to conceptualize the various scenarios on the basis of three previously identified models (integrated, monofunctional and polycentric governance regimes). Then we evaluated the theoretical degree of integration of these different scenarios, using ideal-type indicators of

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Fig. 5.4  Governance capacities of the different scenarios

transboundary water management defined in GWP-INBO 2009. At the next stage (2), we tested the way the scenarios would respond to the weaknesses and threats defined by our SWOT analysis (see Sect. 5.1). These were used as indicators (33 in total) to evaluate the capacities of the different scenarios to respond to problem areas identified in the current system. The final stage (3) consists of a combined interpretation of the different indicators, using a set of diagrams to analyse and compare different types of capacity for each scenario. The first discussion and its diagrams investigate their governance capacities (Fig. 5.4); then we move on to look at their capacities to integrate environmental stewardship (see Fig. 5.5).

5.8.1 Governance Capacities We first analyse the governance capacities of our suggested scenarios (see Fig. 5.4). Our approach is to regroup and analyse our selected indicators according to four types of capacities: capacity to co-ordinate, capacity to steer regulatory compliance, capacity to produce and disseminate information, capacity to promote participation. Each indicator selected is subject to evaluation, which is then weighted so as to assign similar importance to all these different capacities.

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Fig. 5.5  Capacities to integrate environmental stewardship

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The integrated scenarios (1a, 1b and 1c) demonstrate three very different situations. First of all, Scenario 1c (the Binational Rhône Basin Authority ) stands out across all the indicators selected. Of all our scenarios, it has the greatest capacity to steer regulatory compliance, as a result of its responsibility for conflict arbitration. Moreover, the integration of different uses and the inclusion of river users within a decision-making body considerably strengthen its capacities to promote participation and to produce and disseminate information. However, although this particular scenario seems to have substantial governance capacities, the difficulties involved in implementing it should also be noted: for this model to achieve a high enough level of integration to overcome political and administrative boundaries, strongly differing regulatory frameworks have to be harmonized. In fact, an organization like this would have difficulty fitting into the Swiss institutional framework at all, since its tendency to drive towards centralization could conflict with the principle of subsidiarity between the country’s federal, cantonal and municipal levels of government. Scenario 1a (the FrancoSwiss Multi-stakeholder Co-ordination Platform) is a largely ad hoc arena for conflict resolution, bringing together the various stakeholders and providing them with a framework for discussions. However, this scenario is limited by the weakness of its capacity to steer the stakeholders’ regulatory compliance: this type of platform is not intended to be a decision-making forum or a locus of arbitration between river users. Finally, Scenario 1b (Rhône Transboundary Scientific Observatory) demonstrates only limited governance capacities, since it deals solely with scientific collaboration and focuses on producing relevant data in order to improve understanding of the river system in France and Switzerland. It has no remit to take any actions affecting operational features of the system. Our monofunctional scenarios (2a, 2b and 2c), which are built around a single main use of the river, also lag behind when it comes to governance capacities, with deficiencies in their co-ordination capacities and their capacities to promote participation and to produce and disseminate information. These different scenarios are typically stronger when it comes to their capacities to steer regulatory compliance: nevertheless, even those remain limited, as they are restricted to supervising

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one particular branch of activity. Scenario 2c (the ICREP) demonstrates the strongest governance capacities of the three, with a significant capacity to produce and disseminate information. Lastly, the polycentric scenarios (3a, 3b and 3c) display a relatively homogeneous trend, with Scenarios 3b and 3c demonstrating particularly strong capacities to promote participation. Scenario 3b (‘the Franco-Swiss Rhône Plan’) stands out as an interesting model here: although it does not require the creation of a significant management institution, it scores well in the overall evaluation of its governance capacities. Given that our analysis is based on an assessment of the shortcomings of the current system, it is unsurprising to find that Scenario 3a (‘Business as Usual’) projects continued poor capacities for transboundary governance of the river. Nevertheless, its inclusion of various arenas for discussion and its strengths in the area of crisis co-ordination give this scenario a certain capacity to co-ordinate and a capacity to produce and disseminate information.

5.8.2 Capacities to Integrate Environmental Stewardship The second set of diagrams (Fig. 5.5) relates to identifying capacities to integrate environmental stewardship at the transboundary scale. In this case, rather than using aggregate indicators, we apply five single indicators. We determine whether the scenarios lend themselves to integration of environmental stewardship on the basis of: capacity to create arenas for discussion of environmental issues, capacity to get environmental issues onto the transboundary agenda, capacity to have an impact on operational management of the river, capacity to have an impact on sectoral arrangements for river management and capacity to implement relevant transboundary public policy instruments. We first highlight the only two scenarios with substantial potential capacities to have an impact on operational management of the river from an environmental point of view. First, the binational Rhône Basin Authority (Scenario 1c) scores highly when it comes to evaluating its capacity to have this kind of impact for all sectors. Here, it is the

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Authority’s power to arbitrate conflicts that would facilitate its impact on operational management of the river. Secondly, the ICREP (Scenario 2c) represents an umbrella organization for the energy sector. As such, it brings together the relevant Rhône operators and therefore could enable the actors to define a common position on operational matters affecting the environment. Two of the integrated governance scenarios (Scenario 1a: the FrancoSwiss Multi-stakeholder Co-ordination Platform and Scenario 1b: the Rhône Transboundary Scientific Observatory) have similar capacities to integrate environmental stewardship. However, it should be emphasized that the potential impact of these two bodies would vary according to (1a) the determination to bring together specific actors around the problems to be tackled and (1b) how essentially scientific activities that are intended to improve understanding of the river system could be developed in the interests of environmental stewardship. As in the case of governance capacities, the scenarios based on monofunctional organization typically lag behind the other models, with lower overall evaluations in this analysis. This is explained by the fact that this model is essentially oriented towards productive use of the river, which does not regard the environment as its first priority. However, this situation is somewhat paradoxical, since the monofunctional scenarios are also those that could have the most direct impact on the operational dimension of environmental stewardship, with actions undertaken by and for representatives of the different branches of activity. The polycentric scenarios typically display two types of situations. Scenario 3a (‘Business as Usual’) and Scenario 3b (the Franco-Swiss Rhône Plan) score averagely across all indicators—with the exception of their poor capacities to implement transboundary public policy instruments. Scenario 3a does partly integrate environmental stewardship, thanks to policy measures defined by the national public authorities or to actions undertaken by the Rhône operators (although these too are mostly under the aegis of the authorities). Scenario 3b simply represents a platform for all the transboundary stakeholders to plan actions: it has no responsibility to define and implement any kind of regulatory framework, but primarily focuses on strengthening co-ordination between

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actors. Finally, Scenario 3c (ICPMR) demonstrates significant capacities across all the indicators. As in the case of our analysis of governance capacities, here this International Commission matches Scenario 1c, with the exception of its capacity to have an impact on operational management of the river.

5.9 Conclusion Our approach in this chapter has been to conceptualize various governance scenarios, to analyse their degree of theoretical integration, to compare the capacities of these scenarios to cope with the weaknesses and threats identified through analysing the current governance system and, finally, to analyse their governance capacities, their capacities to integrate environmental stewardship into river management and their capacities to improve the system’s operational transparency. These steps have enabled a review of each scenario, identifying its main characteristics. The chief result of this analysis is that two scenarios (Scenarios 1c and 3c) stand out clearly for the strength of their governance capacities. The highest score was achieved by Scenario 1c (the binational Rhône Basin Authority), which was the most competent in terms of framing, supervising and arbitrating between the different branches of activity on the river—thus giving it the strongest capacity to steer regulatory compliance. Scenario 3c (the ICPMR) was not far behind, although its results demonstrate that it has a poorer capacity for steering regulatory compliance and for arbitrating disputes. Unsurprisingly, the scenarios with the most highly developed institutional architecture seemed to be the best performing in terms of the various evaluations we carried out. However, our results must be read with a number of important caveats. First and foremost, we are not adopting any kind of normative stance or pointing to an ideal scenario that has the capacity to respond to all the problems posed by transboundary Rhône management. Rather, our objective is to offer a broad range of options, of which the best fit will vary according to the criteria applied and to their ease of

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implementation. Our scenarios represent a basis for reflection, which could develop along many lines: it is easy to envisage various different combined or modified versions of the governance scenarios we have explored. Secondly, given the scale of the architecture of some of these institutions and the breadth of their responsibilities, there is a risk that implementing them will involve major costs. Creating an organization with legal personality, financial autonomy and a sizeable remit can generate particularly high investment outlay and running costs. These can relate to the structural features of the organization (workforce costs, premises, infrastructure and so on) and also to setting up and running its programme of activities (such as financing action plans or funding individual research projects). Similarly, it is also important to point out that the larger and more strongly-defined the structure imposed by an organization, the more the system’s decision-making and implementation processes could tend towards inertia. In contrast, our analysis has emphasized the advantages of a flexible system—such as the current state of play—by comparison with more integrated systems. A third point to note is that our scenarios differ in terms of potential for implementation. Some of them do not necessarily require the various parties to sign up to exactly the same objectives: for example, the Franco-Swiss Multi-stakeholder Co-ordination Platform (Scenario 1a) or the Franco-Swiss Operational Groups (Scenario 2a) would aim to resolve very specific problems through dialogue between a small number of the stakeholders. However, some of the other suggested scenarios, such as the Rhône Transboundary Scientific Observatory (Scenario 1b), the Franco-Swiss Rhône Plan (Scenario 3b) or the different international bodies (Scenarios 1c, 2b, 2c and 3c) assume that the principles underpinning their objectives and modes of action will be agreed in advance. Therefore the various scenarios would involve somewhat different implementation timescales, ranging from a flexible, ad hoc, often simply trouble-shooting solution that could be put in place quickly through to a body with extremely sophisticated institutional architecture that could take on long-term planning objectives.

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Bibliography Barraqué, B. (2001). Les enjeux de la Directive cadre sur l’eau de l’Union Européenne. Flux, 4, 70–75. Coman, A., & Ronen, B. (2009). Focused SWOT: Diagnosing critical strengths and weaknesses. International Journal of Production Research, 47(20), 5677–5689. Global Water Partnership and International Network of Basin Organizations. (2009). A handbook for integrated water resources management in basins. Retrieved from https://www.inbo-news.org/IMG/pdf/GWP-INBOHand­ bookForIWRMinBasins.pdf. Helms, M. M., & Nixon, J. (2010). Exploring SWOT analysis—Where are we now? A review of academic research from the last decade. Journal of Strategy and Management, 3(3), 215–251. Marty, F. (2001). Managing international rivers: Problems, politics and institutions. Food and Agriculture Organization of the United Nations (p. 409). Bern: Peter Lang Publishing. Mauch, C., Reynard, E., & Thorens, A. (2000). Historical profile of water regime in Switzerland (1870–2000). Lausanne: IDHEAP. Ostrom, E., & Ahn, T.-K. (2009). The meaning of social capital and its link to collective action. In Handbook of social capital: The troika of sociology, political science and economics (pp. 17–35).Cheltenham: Edward Elgar. Ruiz-Villanueva, V., Stoffel, M., Bussi, G., Francés, F., & Bréthaut, C. (2015). Climate change impacts on discharges of the Rhone River in Lyon by the end of the twenty-first century: Model results and implications. Regional Environmental Change, 15(3), 505–515. Valentin, E. K. (2001). SWOT analysis from a resource-based view. Journal of Marketing Theory and Practice, 9(2), 54–69.

6 The Franco-Swiss Rhône: A Story of Twists, Turns and Tensions

We began this book with a description of the Verbois Dam sediment flushing operation and the tensions it caused between France and Switzerland. That episode illustrated both the deep complexity and the broad extent of the challenges faced by transboundary spaces— spaces that encompass, by definition, differing legal and institutional frameworks and a large number of users whose objectives and arrangements for use of the river may diverge somewhat. We then moved on to a detailed scrutiny, peeling back the layers of practices and strategies employed by the various Rhône stakeholders to define institutional arrangements for water use, analysing the balance of power between them and how their negotiating processes function. In order to achieve this, the book moves through five chapters, concentrating in turn on setting a framework for analysis of the transboundary Rhône governance system (Chapter 1), identifying transboundary water governance regimes through a theoretical framework and through empirical case studies (Chapter 2), analysing the history of transboundary Rhône governance (Chapter 3), scrutinizing the system presently operating at the Franco-Swiss scale (Chapter 4) and, finally, offering various scenarios for adapting the current institutional architecture (Chapter 5). © The Author(s) 2020 C. Bréthaut and G. Pflieger, Governance of a Transboundary River, Palgrave Studies in Water Governance: Policy and Practice, https://doi.org/10.1007/978-3-030-19554-0_6

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This approach helped us to construct an in-depth analysis of the transboundary governance of a river that enjoys favourable framework conditions, with not only generally satisfactory resource availability but also, on the whole, more than adequate operational and financial capacities for the actors who manage the river. Therefore, the idea that ‘there is a water crisis, but it is a crisis of management’ (Cosgrove & Rijsberman, 2000) becomes crystal clear here: even in a highly favourable hydrological context, lack of co-ordination and transparency in governance systems can lead to profound crises within the configuration of actors concerned. More broadly, there are colliding world views of the most desirable status for the Rhône, as our survey of successive periods in the history of its transboundary governance highlights. Is it really possible to view this great river sometimes as a tool of industrial production and at other times as an authentic ecosystem? From this angle, our study of transboundary Rhône governance has provided a gateway into consideration of wider questions, such as the changing importance of the environment within political processes, the inclusion and growing legal recognition of new water users and/or the diversity of institutional architectures that could be used to manage a shared river. This concluding chapter aims (1) to review the key contributions offered by this book and (2) to reflect on some future research directions that could be extrapolated from what we have learned. Finally, (3) we situate our work within the perspective of the current state of negotiations between Switzerland and France over transboundary governance of the Rhône.

6.1 Analysing Empirical Evidence in Depth and Identifying Generic Analytical Variables The River Rhône is a strikingly singular case. It occupies an immense corridor that cuts a swathe through two countries. Yet, intriguingly, its institutional dimensions are negligible by comparison, with no legal provision for defining a collaborative framework at the river basin scale—even though, as a geographical and political space, it is rooted in a long-term culture of

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collaboration. Therefore, in working closely with the operators who enact transboundary governance of the Rhône, we constructed a research protocol that not only analysed the present situation, diagnosing and meticulously examining a fragmented governance system, but also looked forward, identifying avenues for thinking about possible ways of adapting the institutional architecture. Our work also mobilized specific theoretical frameworks and compared different case studies (the Rhine, the Danube and the Columbia River). In doing so, it relied on the following three main angles of analysis, which together formed our conceptual framework.

6.1.1 Identifying Governance Regimes (Chapters 2 and 5) In order to gain a clear understanding of the institutional mechanisms in play and the points in the system where change could occur, we established our analytical framework in the form of three generic categories of governance regime: the integrated regime, the monofunctional regime and the polycentric regime. Having defined these ideal-type categories, we were then able to develop different governance models, offering a set of tools for reflection on possible futures. In practice, we identified different avenues for adapting the Rhône governance system, in the form of various scenarios that outlined contrasting options for adapting the institutional framework. These choices would in turn express different philosophies, each characterizing a different vision of the role that the river should be playing—not only today, but in the future.

6.1.2 Surveying the Development Trajectories of the Institutional Framework (Chapter 3) Reconstructing successive stages in the history of the Rhône’s governance framework gave us an understanding of how the system has developed in practice and, in particular, of how different types of institutional framework have combined over time. Thus, historical analysis reveals the variable configurations of actors, the changes in the ways new river users have been recognized and the various new use rivalries

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that have arisen and intensified. By drawing out these different historical trajectories, we were able to observe the break points within the governance system and identify the institutional innovations and drivers of innovation that could respond to growing multifunctionality and to the emergence of complex rivalries.

6.1.3 Through the Prism of the Actors Involved in Operational Management of the River (Chapter 4) Looking at river governance through the prism of the actors involved revealed the fragmentation and the complexity of a system characterized by a high level of self-organization on the part of electricity producers, who have long enjoyed a near monopoly on exploitation of the river through their concession contracts—which, although they impose a strong structure on routine operations, still leave significant room for manoeuvre. We were able to analyse the types of actor involved and the nature of the legal relationships between them. We were also able to pinpoint positions of strength within the network of actors and to capture trends in their configurations over time. Although we noted the persistent dominance of the energy producers within the transboundary governance system, we also observed some changes. Throughout the twentieth century, the two nation-states played a central role in reshaping the transboundary Rhône governance system: more recently, however, changes in water uses and legal recognition of the environmental stakes have been the true drivers of the States’ role and have ultimately opened up the system to a growing number of stakeholders.

6.2 Contributing to Possible Research Directions It is our hope that this study of the Rhône has thrown light on dimensions of the issues that have been less frequently addressed in the literature (see Chapter 1). We focused particularly on (1) surveying the

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variety of mechanisms involved in co-ordinating water uses at the river basin scale, (2) analysing the strategies employed by actors and how they construct these arrangements, (3) producing historical analyses that help to identify development trajectories, scalable territorial modes of governance and the impact of institutional path dependencies and (4) producing international comparisons that illustrate the diversity of institutional mechanisms for transboundary management of a major river. From these starting points, various directions could be developed into a strategic long-term research agenda. First, as other studies have demonstrated (Özerol et al., 2018), comparative analysis of water governance mechanisms (particularly in regard to rivers) seems especially promising, since such comparisons provide a better grasp of institutional diversity and help to identify practices that could be transposed into other contexts. Producing generic categories—such as those we have put forward in this book or those developed by other colleagues (Huntjens et al., 2011; Knieper, Holtz, Kastens, & Pahl-Wostl, 2010; Pahl-Wostl, Holtz, Kastens, & Knieper, 2010)—opens up discussion on the production of indicators for evaluating transboundary water governance conditions and on the construction of scenarios that anticipate the trade-offs inherent in implementing different water management policies. In the case of the Rhône, applying this approach to the three regimes we identified (integrated, monofunctional and polycentric: see Chapter 2) led us to construct scenarios that distilled the increasingly visible strengths of each regime. Our typology defines a broad range of possibilities for the actors involved in decision-making and identifies the specific nature of various strategic directions: in the case of the Rhône, a holistic view of river governance that favours the river basin as reference unit, a production-oriented view that centres around the major uses of the river and aims to resolve the main use rivalries, or a view that is both fragmented and flexible, shared by a configuration of actors loosely co-ordinated around various decision-making arenas. Secondly, our actor-centred approach was shown to be very relevant to analysing arrangements for implementing institutional mechanisms, general co-ordination issues and, notably, the strategies applied by the actors involved to try and co-ordinate river uses and manage use rivalries. It takes a similar perspective to that of a number of works on

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transboundary river management (see, in particular, Warner & Zawahri, 2012; Zeitoun & Mirumachi, 2008), focusing especially on variables relating to power and power asymmetries between actors both within and beyond the river basin. As the example of the Rhône shows, a governance system results from trade-offs between different perceptions of a river: in other words, from the adoption of conflict-resolution strategies that are embedded in a specific socio-political context but have the potential to make an impact over a longer period, allowing a powerful structure to emerge—especially where concession contracts are concluded for several decades at a time. Analysing transboundary river governance in terms of political economy is particularly relevant to understanding the balance of power, the phenomena of exclusion and the trade-offs at work in producing mechanisms for allocating water resources between different uses. Here again, historically based process analysis can help to provide a better grasp of these questions and identify possible solutions.

6.3 Looking Forward, Making Decisions… At the time of writing, negotiations between Switzerland and France about future governance of the Rhône are still ongoing. The system of transboundary governance of the river has been functioning for a long time on the basis of routines that involve a limited number of users: but it now faces a profoundly changed situation. As a result, recent years have seen the system questioned and debates opening up about the role of this powerful river. The productivist mantra that was dominant after the Second World War no longer carries as much weight when set against demands for sustainable development and a half-formed desire for greater public participation in decision-making. However, defining a role for a great transboundary river is a challenge that is subject to many shifting forces and to intense upstream– downstream negotiations. Climate change and uncertainties about water quantities and water quality create more stumbling-blocks, highlighting the need for increased dialogue between the various stakeholders. Sharing a river does not simply entail reconciling different water uses but also means thinking about and agreeing on the desired status

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of a particular water system. In this context, debates about granting legal personality to rivers—whether large or small—(O’Donnell, 2018; O’Donnell & Talbot-Jones, 2018) are just one illustration of the profound change in the relationship between environment and society. Although the maxim ‘The Rhône at the service of the Nation’ is still to be found emblazoned on a number of French hydroelectricity installations, the story it tells is now taking some new twists and turns.

Bibliography Cosgrove, W. J., & Rijsberman, F. R. (2000). Challenge for the 21st century: Making water everybody’s business. Sustainable Development International, 2, 149–156. Huntjens, P., Pahl‐Wostl, C., Rihoux, B., Schlüter, M., Flachner, Z., Neto, S., … & Nabide Kiti, I. (2011). Adaptive water management and policy learning in a changing climate: A formal comparative analysis of eight water management regimes in Europe, Africa and Asia. Environmental Policy and Governance, 21(3), 145–163. Knieper, C., Holtz, G., Kastens, B., & Pahl-Wostl, C. (2010). Analysing water governance in heterogeneous case studies—Experiences with a database approach. Environmental Science & Policy, 13(7), 592–603. O’Donnell, E. (2018). Legal rights for rivers: Competition, collaboration and water governance. Abingdon: Routledge. O’Donnell, E., & Talbot-Jones, J. (2018). Creating legal rights for rivers: Lessons from Australia, New Zealand, and India. Ecology and Society, 23(1), 7. Özerol, G., Vinke-de Kruijf, J., Brisbois, M. C., Casiano Flores, C., Deekshit, P., Girard, C., … & Schröder, N. (2018). Comparative studies of water governance: A systematic review. Ecology and Society, 23(4), 43. Pahl-Wostl, C., Holtz, G., Kastens, B., & Knieper, C. (2010). Analyzing complex water governance regimes: The management and transition framework. Environmental Science & Policy, 13(7), 571–581. Warner, J., & Zawahri, N. (2012). Hegemony and asymmetry: Multiplechessboard games on transboundary rivers. International Environmental Agreements: Politics, Law and Economics, 12(3), 215–229. Zeitoun, M., & Mirumachi, N. (2008). Transboundary water interaction I: Reconsidering conflict and cooperation. International Environmental Agreements: Politics, Law and Economics, 8(4), 297.