Sanjiv de Silva, Aditi Mukherji and Bharat Sharma

The Water Sector Policy and Legal Framework in the Indo-Gangetic Basin

A cross-country analysis of trends

New Delhi, November 2009

Questions we asked (1)

How has the legal regulatory framework in IGB changed over time? What are the emerging areas of emphasis?

Overall policy/legislative activity

Changes in sectoral emphasis

Movement from resource development to management and governance

Similarities and differences at cross country, and sub-national (India & Pakistan) levels

Drivers of change

Questions we asked (2)

• Qualitative analysis focused on selected topics to contrast with quantitative results:

– Groundwater (GW)

– Floods and droughts

– Integrated Water Resources Management (IWRM)

– Decentralization and participation

Focus on India in this presentation (but not the case in the planned publication)

Methodology (1)

Located 101 instruments mainly through the internet

– FAOLEX, website of the Commonwealth Legal Information Institute, the India Water Portal, and national websites (official and others).

Developed a framework for analysis and comparison of instruments

– Identification of:• Key sectoral focus & other sectoral content & priorities for water allocation• Classification – resource development/management/governance orientation

(SUBJECTIVE BIAS)• Content covering resource development/management/governance

Distributed each instrument’s content across the framework

First level analysis of trends (quantitative) - by combining the framework with the grouping of instruments by decade and comparing across countries

Second level trends analysis (qualitative) - by assessing their content and comparing across countries

Amalgamation of the two analyses

Total LI: 98

Earliest LI in the sample: Canal & Drainage Act, 1873, India.

Includes State and Provincial instruments in India and Pakistan respectively.

Methodology (2):

Methodology (3): Key components of the framework

Components

General Geographic Scope

Document Type

Focus of the Document Abstraction & Use

Water Management &

Governance

Conflict Resolution

Mechanisms

Sub-components

Source Regional Scope

Water Law Irrigation and drainage

Drinking water and its provision

Water Allocation Priority

Irrigation

ID number Country(s) Involved

Water Policy

Hydro-power development

Municipal use of water

Water Resources Planning

Special Provisions for GW

Private Individuals

Title of the Document

States/ Provinces

Other Instruments

Watershed management

Industrial water use Institutional Development & Decentralization

Firms

Date of the Document

Ecological uses of water

Integrated water resources management

Maintaining environmental

Statutory Bodies

Document type

Water harvesting through check dams

Equitable Water Distribution

Integrity

Water Conservation

Sovereign State

Document Development

Flood management Water Conservation Geographical allocation

Drought management

Fisheries and aquaculture

Provisions for Water-short Regions or periods

Pollution control and water quality management

Primary Focus Participation in water resources management decision making

Water use efficiency improvement

Inclusion of women and other marginalized groups

Water Rights / Access to Water

Subject to interpretation & overlap

Water resource development

Water resource management

Water resource governance

An orientation towards increasing resource exploitation. E.g. expanding irrigation and hydropower generation.

Laws to manage Public Production

Recognition of the need to regulate exploitation and establishment of rules and institutions for this purpose.

Laws to promote and regulate

Expansion of rules and institutional structures from resource regulation to also address ecological & social issues. E.g. decentralization & participation in planning; equitable access amongst different sectors and stakeholder groups; adoption of integrated resource planning approaches.

Methodology (4): Definitions

Temporal Trends

Findings

A sudden spurt in number of water related instruments after 1980.

An exponential increase in overall activity…

driven by a shift towards management/ governance

Coincides with the emergence of State and Provincial instruments in India and Pakistan respectively.

…and towards decentralization

In India: a similar pattern emerges even beyond the water sector

Nevertheless, irrigation & drainage dominates in absolute numbers

IWRM India

Water Quality India

Irrigation & Drainage Pakistan

GW India

… but the focus has widened since the 1980s More color = more diversity

IWRM emerging in 2000s across IGB

GW a key priority for

India in 1990s

I&D dominant in BD over last 50 years & in PK in 1990s

Expansion from I&D to IWRM in

BD in last 20 yrs

… including GW & IWRM (and its components)

Groundwater

Findings

Emergence in the 1990s

Country Primary Focus Substantial Focus Minor Focus Total

Nepal 0 2 0 2

Bangladesh 1 2 2 5

Pakistan 0 3 3 6

India 8 7 5 20

• Entirely private investments

• Some speculative hypothesis1. In response to public hue and cry over GW?

2. Almost no state intervention and the state is trying to get a handle to control?

3. States need to be seen to do something?

Why a plethora of GW laws in 1990s and 2000s…

…especially in India?

Featured in 20 of the 25 instruments assessed for the 1990-2009 period

• 15 classified as having either a primary or substantial focus

Close similarity in content (and language) between the three Model Groundwater Bills at Union level (spanning a period of 13 years).

• The three significant additions to the 2005 version are: • A focus on securing groundwater for drinking

• Emphasis on GW recharge

• Requirement for the Central GW Authority to maintain a GW database

The similarities (with the 2005 Bill) continue down to four State-level instruments in terms of content and language (almost identical in the Bihar Act).

In fact donor-driven rather than responding to local specifics.

IWRM

Findings

Appears to have taken off in the 1990s

…after the Dublin Principles of 1992

17 of the 19 instruments occur in or after 1992.

…but the relationship seems more complex

Majority of instruments (10 of the 19) occur after a time lag of 10 years for the Dublin Principles to influence national instruments

The texts of the various instruments indicate references to the need for integrated approaches to water management prior to 1992. E.g. India’s National Water Policy of 1987 Suggests that IWRM principles may reflect pre-existing knowledge at country

level, and are in fact a codification of this. But did formal recognition at international level give IWRM an added

legitimacy post 1992? Suggests a two-way cyclical national-international-national interaction given

the post-1992 emphasis on IWRM.

Decentralization & Participation

Findings

Decentralization: similar timing to IWRM

…but Bangladesh appears to lag behind

Institutional orientation remains at national scale.

In terms of geographical/administrative scale covered by institutions:

In terms of orientation/functions of institutions:

Participation

The quantitative analysis suggests a relatively late emergence

But a more detailed assessment indicates that decentralization and participation predates its visibility as a principle in policy and legal texts.

Today these are well established principles, but display different timelines and maturity.

E.g. Bangladesh: despite recognition by policy instruments, little evidence to indicate translation into practice. India: over half (13/24) the organizations either established or referred to in the 2000s operate at levels no higher than the district and sub-basin.

Attention to providing access to marginalized social groups across IGB, but weak in Bangladesh.

Recognition (especially in Nepal) of the need for empowerment and capacity building of local institutions to bridge gap between enactments and practice.

Overall: significant attention to establishing water sector organisations and promoting equitable participation & access, but effectiveness?

Flood and Drought Management

Findings

Emergence of flood and drought management instruments during the 1990-2009

India displays the most consistent focus on both flood & drought management. 13 of the 19 instruments are at the State level.

Despite Bangladesh’s high exposure to flooding, only three instruments appear to have any focus on flood management.

Relatively low prominence except in India

Bangladesh has the only instrument with flood management as its core focus (Bangladesh Water and Flood Management Strategy, 1995).

…but do numbers always tell the whole story?

Conclusions

Significant increase in water sector policy and legislative activity in the past 20 years throughout the IGB

Shift towards viewing the resource through a ‘governance lens’, and this has brought a diverse set of issues to the table

A similar effect from emergence of broad multi-sector and multi-disciplinary concepts such as IWRM, and the interaction with international norms

The GW sector in India suggests that significant legislative activity may not always be meaningful at ground level. Will depend on what motives underlie legislation.

To follow-up: explore what drives policy and legislative responses using the identified shifts in focus.

Conclusions

Searchable Database on Water Sector Instruments in the IGB

Framework containing the content of the 101 instruments is being converted to a database.

Searches possible:

by country/State/Province instruments content

by topic country/State/Province content.

Searchable Database

Instruments that cover (Select one):• Water resources development

• Water resources management

• Water resources governance

Water-related Instruments by Content

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Water Resources Management:• Groundwater management

• Flood management

• Drought management

• Pollution control

• Watershed management

• Maintaining environmental integrity

• Fisheries and aquaculture

• Water use efficiency

• Integrated water resource management (IWRM)

Water-related Instruments by Content

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Select one:• All countries • India• Bangladesh• Nepal• Pakistan

Water-related Instruments by Content

Section: Water resources management Topic: Flood Management

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Instruments by ContentsResults display page

Country Instrument YearIndia Embankment and Drainage Act 1953

Water Resources Planning Act 1992

The Rural Electricity Policy 2006

Uttar Pradesh State Water policy 1999

Rajasthan Farmers' Participation in Management of Irrigation System Act 2000

Bangladesh Embankment and Drainage Act 1953

Bangladesh Water and Flood Management Strategy 1995

Bangladesh National Water Policy 1999

Bangladesh National Water Management Plan 2001

Nepal Soil and Watershed Conservation Act 1982

Water Resources Act 1992

Local Self-Governance Act 1999

Irrigation Regulations 2000

Pakistan Draft National Water Policy Not known

Pakistan Water and Power Development Authority Act. 1958

Punjab Canal and Drainage Act 1873

West Pakistan Water and Power Development Authority Act 1958

The Sindh Irrigation and Drainage Authority Act 1997

North-West Frontier Province Irrigation and Drainage Authority Act 1997

Topic: Flood Management Country: All State/Province: n/a

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Select one:• View the provisions that relate to the topic• View the entire instrument

Instruments by Content

Topic: Flood Management Country: India Instrument: Uttar Pradesh State Water Policy, 1999

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Section Text

4.9 Flood protection should be considered as an essential component while planningwater resources of a basin or sub-basin.

7.1 The problem of the flood has been recognized as a basin problem not confined to a state.

7.3(a) Preparation of a perspective plan up to 2025 in which the priorities be fixed to tackle the areas which are worst affected both in terms of frequency and extent.

7.3(c) While planning water resources projects flood protection, water logging and drainage decongestion should be included as an integral part whereverpossible.

7.3(d) "Tariff Regulatory Body" proposed to be setup for the determination of water charges should also look into the possibilities of levying cess on the areas protected from floods and suggest ways and means for the enforcement keeping in view the wider socio-economic perspective.

Topic: Flood Management

Country: India Instrument: Uttar Pradesh State Water Policy, 1999

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Thank you.