Southeast UniversityDepartment of Law & Justice

LLM(Final) –Program.

Course Title: Water Law and PolicyCourse Code: LLMF 3221

Prepared By:

Prepared For:

Date of Submission: 01-09-2013

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Assignment On:The Ground Water Management Ordinance, 1985 Bangladesh”

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Table of Contents:

SL. Subject

01. Introduction

02. Definition of Ground Water

03. The Groundwater Management Ordinance 1985

04. Upazila Irrigation Committee

05. Licence of existing tube wells:

06. Suspension and revocation of licence

07. Cancellation of licence

08. Supply of tube wells By Corporation

09. Offence

10 Cognizance of offence

11 Power to make rules

12 Case Study in Bangladesh

13. Groundwater in Bangladesh

14. Groundwater Use Policies and Regulations

15. Conjunctive Use of Water

16. Impact of Declining Ground Water on Drinking Water Supply

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17. Opinion

18. Conclusion

ACKNOWLEDGEMENT

At first, I would like to thanks Almighty Allah for his kindness on me in accomplishing this report. The author is immensely grateful to all of them who have given guidance, help and co-operation during the tenure of the study. I would like to express my deep sense of gratitude to my respected and distinguished supervisor ‘Bahreen Khan’ Assistant Professor; Department of Law & Justice, Southeast University for his individual suggestions, valuable time, important information and guidance during the study period that greatly inspired me in preparing this report successfully. Of course there are some very special names that cannot be forgotten. I am also grateful to the Department of Law, Southeast University for providing me such an opportunity to come closer to real situation. Finally, I want to

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express my deep gratitude to my family members to all well wishers whose enormous helps assisted me to complete this Assignment.

Introduction:

Groundwater is water that comes from the ground. Sounds easy, doesn't it? Amazingly, many people use groundwater but don't even know it. In fact, half of everyone in the United States drinks groundwater everyday! Groundwater is even used to irrigate crops which grow food for tonight's dinner.

Where does groundwater come from? Groundwater comes from rain, snow, sleet, and hail that soak into the ground. The water moves down into the ground because of gravity, passing between particles of soil, sand, gravel, or rock until it reaches a depth where the ground is filled, or saturated, with water. The area that is filled with water is called the saturated zone and the top of this zone is called the water table. Makes sense, doesn't it? The

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top of the water is a table! The water table may be very near the ground's surface or it may be hundreds of feet below.

Think about this: have you ever dug a hole in sand next to an ocean or lake? What happens? As you're digging, you eventually reach water, right? That water is groundwater. The water in lakes, rivers, or oceans is called surface water...it's on the surface. Groundwater and surface water sometimes trade places. Groundwater can move through the ground and into a lake or stream. Water in a lake can soak down into the ground and become groundwater.

Groundwater is stored in the ground in materials like gravel or sand. It's kind of like the earth is a big sponge holding all that water. Water can also move through rock formations like sandstone or through cracks in rocks. An area that holds a lot of water, which can be pumped up with a well, is called an aquifer. Wells pump groundwater from the aquifer and then pipes deliver the water to cities, houses in the country, or to crops.

Most groundwater is clean, but groundwater can become polluted, or contaminated. It can become polluted from leaky underground tanks that store gasoline, leaky landfills, or when people apply too much fertilizer or pesticides on their fields or lawns. When pollutants leak, spill, or are carelessly dumped on the ground they can move through the soil.

Because it is deep in the ground, groundwater pollution is generally difficult and expensive to clean up. Sometimes people have to find new places to dig a well because their own became contaminated.

Definition of Ground Water:

Available stores of natural water are made up of groundwater, impounded of flowing surface water and seawater. Groundwater is water that exists in the pore spaces and fractures in rock and sediment beneath the Earth's surface. It originates as rainfall or snow, and then moves through the soil into the Groundwater system, where it eventually makes its way back to surface streams, lakes, or oceans. It is naturally replenished from above, as surface water from precipitation, streams, and rivers infiltrates into the ground.( Lara Fabriz)

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Groundwater is often contained in aquifers: an aquifer is an underground water saturated stratum of formation that can yield usable amounts of water to a well. There are two different types of aquifers based on physical characteristics: if the saturated zone is sandwiched between layers of impermeable material and the Groundwater is unfed pressure, it is called a confined aquifer; if there is no impermeable layer immediately above the saturated zone, it is called an unconfined aquifer. In an unconfined aquifer the top of the saturated zone is the water table as defined above. Usually an aquifer can produce an economically feasible quantity of water to a well or spring. A saturated region that, due to lower hydraulic conductivity, does not yield a sustainable amount of water in an economic fashion is called acquitter.

According to the Groundwater Management Ordinance 1985: Effect of laws, etc. inconsistent with the Ordinance: 3. The provisions of this Ordinance and the rules made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any rule, regulation, bye-law, or in any other instrument.

Upazila Irrigation Committee: 04. There shall be constituted, in the prescribed manner, a Upazila Irrigation Committee in each Upazila for the purposes of this Ordinance.

1) No tube well shall be installed in any place without a licence granted by the Upazila Parishad. (2) An application for licence for installation of a tube well shall be made to the Upazila Parishad in such form as may be prescribed. (3) No application shall be entertained by the Upazila Parishad unless it is accompanied by such fee as may be prescribed.

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(4) On receipt of an application for licence, the Upazila Parishad shall direct the Committee to hold a local enquiry and submit a report on the following points, namely:- (a) the aquifer condition of the soil where the tube well is to be installed; (b) the distance of the nearest existing tube well; (c) the area likely to be benefited by the tube well; (d) the likely effect on the existing tube wells including tube wells used for domestic purpose;(e) the suitability of the site for installation of the tube well; and (f) the conditions on which a licence, if any, may be granted.

(6) A licence granted under sub-section (5) shall be in such form as may be prescribed and shall be subject to such conditions as may be specified therein. (7) Any person aggrieved by the decision of the Upazila Parishad may file an application to such authority as may be prescribed for review of the decision and the decision of that authority on such review shall be final.Licence of existing tube wells: 6. notwithstanding anything contained in this Ordinance, a tube well in existence on the day of commencement of this Ordinance shall not operate after six months from such commencement unless a licence is obtained in the meantime from the Upazila Parishad on payment of the prescribed fee:

Suspension and revocation of licence: 7.(1) The Committee may, if it is satisfied that the conditions of a licence are being violated, by order in writing specifying the reasons therefore, suspend the licence of a tube well and report the matter forthwith to the Upazila Parishad.

2) The Upazila Parishad may confirm the order of suspension of a licence if it is satisfied that there are good reasons for suspension of the licence:

Provided that the Upazila Parishad shall not confirm the suspension of a licence unless the licensee is given a reasonable opportunity of being heard:

Provided further that, if an order of suspension is not confirmed within fifteen days from the date of making of the order of suspension, the order of suspension shall be deemed to have been vacated on the expiry of that period.

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(3) An order of suspension confirmed by the Upazila Parishad shall remain valid for a period of forty five days.

4) Any person aggrieved by an order of suspension confirmed by the Upazila Parishad may make an application to such authority as may be prescribed for review of the order and the decision of that authority on such review shall be final.

Cancellation of licence: 8. (1) A licence granted under this Ordinance may be cancelled by the Upazila Parishad if, on a report from the Committee, it is satisfied that,

(a) the licensee has violated the terms and conditions of the licence; or(b) the licence was suspended for more than three times during one year

preceding the orderProvided that no licence shall be cancelled unless the licensee is given a reasonable opportunity of being heard.

Supply of tube wells By Corporation, etc: 9. Notwithstanding anything contained in any other law for the time being in force, neither the Bangladesh Agricultural Development Corporation established under the Agricultural Development Corporation Ordinance, 1961 (E.P. Ord. XXXVII of 1961), nor any other authority or person dealing with tube wells shall supply tube wells to any person unless he has a licence for installation of a tube well granted under this Ordinance.

Offences: 10. Whoever contravenes any provision of this Ordinance or rules made thereafter shall be punishable with fine which may extend to two thousand taka.

Cognizance of offence: 11. No Court shall take cognizance of an offence under this Ordinance except on a complaint made in writing by the Chairman.Power to make rules: 12. The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

Power to exempt: 13. The Government may, by notification in the official Gazette, exempt any project or any area specified in the notification from the operation of this Ordinance.

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Case Study in Bangladesh:

The various dimensions of increased accessibility of groundwater referred to above, plus the finite quantity of renewable groundwater, have resulted in widespread concern as to the sustainability of the current groundwater use scenarios. To put the magnitudes into context, a case study assessment for Bangladesh is developed below.

Figure 2 depicts the historical temperature trends in Bangladesh for annual, August and January conditions. As evident for all three lines, there are significant trends indicated. To portray the implications with time, in a climate changing world, projections of temperature trends as characterized by four for the Global Circulation Models (GCMs) are depicted in Figure 3 which indicates that the projected trends for Bangladesh represent a continuation of increased temperatures with time, but with an increased rate of change.

In parallel, there have also been modest increases in historical precipitation rates over time, as evident in Figure 4. Further, the GCM projections, using the same four GCMs as relied upon for the temperature changes, demonstrate that there will be continued modest increases in precipitation rates until approximately 2050 where there is divergence between the various models. Regardless, the GCMs are predicting modest increases in precipitation rates as characterized, which would naturally suggest that there will be potentially increased water available for agricultural activities.

The similarity of rates of change of temperature, for all four GCMs, is evident from Figure 3, as well as the demonstration that all four GCMs are projecting increases at similar rates to that evident over the last fifty years of historical record. Some amelioration of the rate of these increased temperatures is evident if the various countries attain their committed levels of emission reduction where, for example, the CGCM3.1 model suggests an attenuation of increase in rates of change of annual temperature projections but regardless, there is a prevalent indication that the temperatures in Bangladesh will continue to increase.

However, it is important to note that the increases in precipitation rates are expected in one month, namely July, which is already a very wet month, as indicated in Table 2; for the considerable majority of the months, the precipitation levels are projected to decrease such that in October, for

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example, the precipitation rates will decrease to 72% of current precipitation levels in 2100. Hence, these findings indicate that when monthly conditions are currently ‘wet’, conditions will get wetter, and when monthly conditions are currently dry, they will get drier. This prediction indicates that during the dry season, there will be less water available, and hence this will result in increased groundwater demands to sustain irrigation levels.

Groundwater in Bangladesh:

The hydro-geological conditions in Bangladesh allow inexpensive extraction of ground water with simple technologies almost everywhere in the country. In terms of the water table, there are four major areas: Low Water Table Area (LWTA) where water is available below 8 meters, Shallow Water Table Area (SWTA) where water is available within 7 meters, Coastal Saline Area (CSA) where water at shallow depths is saline and the hilly terrain of Chittagong Hill Tracts (CHT) Area where water is available at much lower depths. In the early eighties, about 75 percent of the country was under the SWTA, while around 8 percent of the country was under LWTA. The CSA and CHTA area are rather static, although, due to upstream withdrawal of surface water by India during the dry months, salinity is increasing in the coastal areas of Bangladesh. Over the years, the LWTA is increasing rapidly and the forecast is that it will subsume around 50 percent of the country by the year 2000 (DPHE, undated).

In the SWT area, water is extracted by common No. 6 hand pumps for drinking water purposes, while mechanized shallow pumps draw water irrigation; the depth for both being within 7 meters. In the LWT area deep-set hand pumps are used for drinking purposes while mechanized deep tube wells are common for irrigating crops. The required depth of these tube wells is considerably below the shallow water table (7 meters) and varies according to soil conditions and water table. The CSA and CHTA use different types of deep tube wells and technologies for extracting ground water from far greater depths. Successive governments in Bangladesh have always been involved in the provisioning of water for all purposes with varying level of involvement. Until recently, it was the exclusive responsibility of the government to provide drinking water. In the rural areas, this has changed considerably in the recent past as individuals are sinking and operating No. 6 suction mode hand pumps in increasing

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numbers (Sadeque and Turnquist, 1995). Despite the impressive private sector participation in SWTA, other areas are still dependent upon government provisioning of water and the available technologies are relatively more expensive. In the absence of piped water system in the rural areas, beneficiary contribution remains limited to a small down payment at the time of installation and minor repairs only.

Groundwater Use Policies and Regulations:

Historically, rights and ownership issues concerning ground water have never been viewed seriously. This is contrary to surface water, which has been regulated and utilized by central authorities even prior to the arrival of British colonialists in the eighteenth century. Central authorities have regularly reviewed control of surface water and regulations have been developed over the years. As early as the nineteenth century, under the Irrigation Act of 1876, diversion or overuse of surface water compared to the existing natural flow of water has to be notified by government if such plans are underway.

The idea behind this is twofold: first the affected people may make alternative arrangements and claim compensation (Khan and Khan: 1987). Similar issues with amendments were included in subsequent surface water regulations of 1952, and in 1983 during the Bangladesh period. However, no such regulatory framework concerning the rights of ground water by its users as well as the stakeholders exists. It is not even considered as a similar activity like mining, that many other countries consider (Ali et. al. 1987). During the early eighties, there were efforts to regulate ground water use by defining the siting conditions of mechanized DTWs, but the regulations were never seriously enforced, as part of the deregulating and liberalizing the economy. Tube well sinking (for irrigation) was deregulated during the mid-eighties and no controls whatsoever exist today.

Conjunctive Use of Water:

As stated earlier, there are two principal sectors of water use in the rural areas: agriculture and drinking water supply. Supply of irrigation water has been the responsibility of both Water. Resource and Agriculture Ministry in the past, while provisioning of domestic water services belonged to Local Government Ministry. However, water sector in general has seen

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privatization efforts in the recent past to attain greater efficiency and for reducing budgetary allocations. In a seemingly water abundant country like Bangladesh, scarcity has never featured prominently and coordination amongst Ministries and agencies to deal with the scarcity issue has never been a priority. Recent deregulation of the water market may have exacerbated the problem. The NWP, 1990 recognizes the serious conflict between expanding irrigation abstractions and viability of potable water supplies obtained through

Impact of Declining Ground Water on Drinking Water Supply:

Over the years, winter (Boro) rice has become a critical source of food and income for the North-Western villages. These areas used to be rain fed and single cropped. With the introduction of DTWs they have become double cropped areas; and due to higher productivity and less uncertainty, Boro rice has become the major harvest for the villagers. Each year beginning in February the irrigation machines (DTW) start functioning and after a month or so the HTWs begin to run dry as the water table recedes well below their suction capacity. The seasonal hand pump failure continues during March-May for this region. The entire population of both the villages begins their vigil for collecting drinking water. The couple of Tara Pumps in their village are their only alternative.

These pumps are built with a capacity to supply water to about 10-15 households. But during this long 3-4 month period they are always in operation as more and more people start obtaining water from these pumps. These pumps are provided by the government Rural Water Supply and Sanitation (RWSS) Program to groups of ten households. The Caretakers (the household that organizes the signature collection of allotters and usually pays the contribution sum), who are the de facto owners of the pump, institute new rules for use of the pumps during this period. As they (caretakers) are also responsible for maintenance, the extra pressure on the pumps becomes a source of irritation for them. Previous studies on access and equity issues of public HTW, have also noted that the caretaker households control access to tube wells and make rules about non-owners’ access (Sadeque and Turnquist, 1995). Although religious and cultural norms preclude total exclusionary tactics by the controlling household, the

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caretaker family places restrictions of various sorts especially at times of crisis.

Opinion:

Groundwater withdrawals over the last four decades have been substantial and important, in meeting the burgeoning needs of the agricultural sector and increasingly so, the needs of the urban sectors. However, the ability to respond to the existing and projected increased needs, including the increasing populations, has limits. The situation, in light of climate change, however, is even more foreboding, as the ability to rely on groundwater resources is going to be severely limiting. While issues of the challenges to sustainability were only demonstrated using one country (Bangladesh), the message is consistent across many parts of the world. The potential to use increased groundwater withdrawals as the response to climate change, is very limited in most countries.

Groundwater has storing, filtering and transforming capacities, and regulates atmospheric, hydrological and nutrient cycles. Groundwater stores and partly transforms CO2, energy, plant nutrients and other chemical substances. Groundwater can act as sink in the carbon cycle. Groundwater can immobilize or break down a multitude of pollutants, for example from waste disposal. Contaminants may build up and subsequently be released in different ways, in some cases exceeding regulatory thresholds. Sustaining biodiversity is an essential ecological function of the land.

In turn, the biological activity on the land and in the soil contributes to its properties and characteristics, which are essential for its productive functions. Groundwater maintains wetlands and their ecosystems. Groundwater makes part of base flows of rivers and Support River in ecosystem. Groundwater is principal pathway though which solute (such as silica, nitrate, and cations) enters into lake and ultimately supports the phytoplankton and zooplanktons.

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Groundwater sustains aquatic ecological functions in rivers, lakes, riparian zones and estuaries require huge volumes of water. Fresh water sustains biomass growth in terrestrial ecosystems, and provides key ecological services—maintaining biodiversity, sequestering carbon and combating desertification. Groundwaters are principal pathways of essential and non essential exotic trace elements in nature to get to the human metabolism

Relevant also is that increasing water needs are causing greatly increased interest in water diversion to assist irrigation within a country. In-country diversion of water such as is occurring in India from the Ganges by the Farruka Barrage down to Calcutta, has ramifications to downstream countries in terms of opportunities lost due to lower river levels and will result in lower recharge to groundwater. The impacts are most dramatic during the dry seasons when the demand for water from rivers is the highest.

The results from these growths in water demand are so large in the developing world, in particular, that serious questions exist in terms of the sustainability of groundwater as a resource. When compounded by climate change and continued population growth, of concern is the degree to which increased groundwater withdrawals are sustainable to meet water supply needs. This paper describes relevant dimensions of groundwater withdrawal characteristics, with a case study application to Bangladesh, to develop estimates of implications in terms of the sustainability of groundwater resources.

Conclusion:

Ground water is a common resource, neither under complete state authority nor in the private domain. It is now increasingly being used for productive purposes (mainly irrigation). It is also facing intense demand from other conjunctive uses such as drinking water, domestic use, and fisheries. Narrow sectoral development approaches exacerbate the conflicts arising out of conjunctive use of this resource, while the absence of a comprehensive water policy only furthers the sub-sect oral orientation to water use policies.

Water resources, although brought under some form of government control and regulation over the last hundred years or so, has always remained as a common community resource.New laws and institutional barriers have been created by the state to restrict their use by people. Bureaucratic traditions

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remind us that, once under their control, governments and their line agencies are very reluctant to relinquish authority over any resource.

The erosion of common property resources and its impact on the sustenance of poor households is a relatively well recognized phenomenon in Bangladesh. The dwindling forest resources of the Central Highlands are disproportionately affecting the Garo indigenous forest dwellers of Madhupur tract (Khaleque, 1984). Flood control embankments and other infrastructures are seriously affecting the income, nutrition and employment opportunities of poor households and fisher-folk communities in the flood plains (Sadeque, 1992).

It is apparent that with increasing demands on ground water use, some regulations are needed to deal with the emerging conflicts. While policies and regulations are developed at the central government level, due considerations from the perspectives of all stakeholders are a critical need in order to formulate principles that are equitable and generally acceptable to all. The lessons from our rapid appraisal suggest that there are points of conflict as well as consensus in sharing the common resource.

The future of cooperative use of this common resource hinges upon these points of conflict as well as consensus. Some of the policy options of dealing with seasonal (drinking) water shortage and their mitigation are becoming issues of grave concern for the water-sanitation sector. Essentially, in the absence of large scale replacement of hand pumps by improved Tara pumps, cooperation among all users of ground resources must be encouraged. Irrigation sector can share some water with drinking water sector, while newer methods of demand driven Tara pump distribution mechanism need to

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be developed to ensure greater participation and ownership by all stakeholders.

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