Aditi Mukherji & Sanjiv de Silva

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

Trends, their drivers and implications

Work In Progress

Components of Water Governance

Institutional

Environment

Institutional

Arrangements

e.g.

Water markets

WUAs

Water Right

Why are we doing this study?

• South Asian countries are known for their limited

state capacity and a huge mismatch between

state’s ambitions and capabilities

• Society is in many ways powerful than the state

• Laws are most often statement of intent and

most often not even that!

Then what’s the point?

• States will willy nilly play an important role in

NRM, either by its presence or its absence and

can not be wished away

• Laws sometimes are good at frustrating efforts

(nuisance value) : Forest laws

• Lessons for these countries and other countries

(Central Asia, Africa) where resources are still in

development mode

META OBJECTIVES

• What is it that states respond to when they

legislate on water?

– Felt need of stakeholders

– Protect their own investments, monopoly interests

and state patronage

– Response to fiscal/legal/agro-ecological emergencies

– Interest of fringe stakeholders, e.g environmental lobbies, international community

• What triggers a water legislation?

Questions we asked -1

• How has legal regulatory framework in IGB

changed over time? Temporal analysis

– Number of legal instruments (LI) over the years

– Primary focus of the LI (e.g. I&D, GW, DW, pollution control, flood control, setting up of water

administration, IWRM etc.)

– Orientation of the LI (development vs. management

vs. governance)

– Has water administration kept pace with evolving

water laws?

Questions we asked -2

• Do the laws reflect agro-ecological realities?

Spatial analysis

– Floods vs. droughts

– Over-exploitation of GW vs. under utilization

• Are water laws mere intent of purpose or do

they have any real impact on the ground?

Methodology (1)

� Collection of legal instruments (May not have been comprehensive)

� Development of framework for comparison of instruments and analysis

– Identification of:

• Key sectoral focus

• Orientation - development/management/governance (SUBJECTIVE BIAS)

• Sectoral priorities for water allocation

� Development of a coding scheme

� Entering of provisions (actual text) of each instrument into the framework, with

reference (e.g. “Establishment of Central Water Board”, Article 2)

� Quantification of provisions under each section of the framework

� Agro-ecological parameters, water sector investments, national and federal politics

and developments in international water discourse

Definitions (Subject to interpretation)

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 social issues. E.g.

decentralization & participation in

planning; equitable access amongst

different sectors and marginalised

groups; adoption of integrated

resource planning approaches.

Orientation of Water Sector Legal Instruments between Water

Resource Development, Management & Governance in the IGB

• Methodology

• Panel data strategy, 4 countries, 50-60 years

• Different agro-ecologies

• Different levels of water resource development

• Different strategies of WR development

• Political differences, federal systems

• Dependence on foreign aid

• Regional powerplays

• All these offers scope for rich analysis of how

these differences lead to difference in legislation processes

Sample size

Total LI: 98 Earliest LI in the sample: Canal & Drainage Act, 1873,

India

Temporal Trends

Most irrigation

investments in

1960s to 1980s, and

laws in 1990s and

2000?

WHY?

Orientation of Water Sector Legal Instruments between Water

Resource Development, Management & Governance in the IGB

02468

1012141618202224262830

Instr

um

en

ts

1900 to

1909

1910 to

1919

1920 to

1929

1930 to

1939

1940 to

1949

1950 to

1959

1960 to

1969

1970 to

1979

1980 to

1989

1990 to

1999

2000 to

2009

Decade

Irrigation & Drainage Bangladesh Irrigation & Drainage India Irrigation & Drainage Nepal Irrigation & Drainage Pakistan

Hydropower Bangladesh Hydropower India Hydropower Nepal Hydropower Pakistan

Watershed Mgt Bangladesh Watershed Mgt India Watershed Mgt Nepal Watershed Mgt Pakistan

Environmental Mgt Bangladesh Environmental Mgt India Environmental Mgt Nepal Environmental Mgt Pakistan

Flood Mgt Bangladesh Flood Mgt India Flood Mgt Nepal Flood Mgt Pakistan

Water Quality Bangladesh Water Quality India Water Quality Nepal Water Quality Pakistan

Drinking water supply Bangladesh Drinking water supply India Drinking water supply Nepal Drinking water supply Pakistan

Municipal Water Bangladesh Municipal Water India Municipal Water Nepal Municipal Water Pakistan

Water Use Efficiency Bangladesh Water Use Efficiency India Water Use Efficiency Nepal Water Use Efficiency Pakistan

IWRM Bangladesh IWRM India IWRM Nepal IWRM Pakistan

Dispute Resolution Bangladesh Dispute Resolution India Dispute Resolution Nepal Dispute Resolution Pakistan

Groundwater Bangladesh Groundwater India Groundwater Nepal Groundwater Pakistan

Cost Recovery Bangladesh Cost Recovery India Cost Recovery Nepal Cost Recovery Pakistan

IWRM India

Water Quality

India

Irrigation &

Drainage Pakistan

GW India

Focus of Water Sector Legal Instruments in the IGB

(By Decade)

Water Sector Legal Instruments in the IGB Countries (By Primary Focus)

0

1

2

3

4

5

6

7

8

9

10

11

12

Ins

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Irrigation

&

Drainage

Hydropow erWatershed

Mgt

Environmental

Mgt

Flood Mgt Water

Quality

Drinking

w ater

supply

Municipal

Water

Water Use

Eff iciency

IWRM Dispute

Resolution

Groundw ater Cost

Recovery

Primary Focus

2000 to 2009

1990 to 1999

1980 to 1989

1970 to 1979

1960 to 1969

1950 to 1959

1940 to 1949

1930 to 1939

1920 to 1929

1910 to 1919

1900 to 1909

IWRM emerging in

2000s across IGBGW 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

Groundwater laws

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

Entirely private investments

Some speculative hypothesis

1.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?

Emergence of Groundwater Policy & Legislation in the IGB (Primary, Substantial & Minor)

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

Groundwater in India

Groundwater Instruments

P = Primary; S = Substantial; M = Minor

Union State

Model Groundwater Bill 1992 (P) West Bengal Ground Water Resources (Management, Control of Over Exploitation and Regulation) Act, 2005 (P)

Model Groundwater Bill 1996 (P) Bihar Groundwater (Regulation & Control of Development and Management) Act, 2006 (P)

Model Groundwater Bill 2005 (P) Himachal Pradesh Groundwater Act 2005 (P)

Ministry of Environment and Forest Notification on Central

Groundwater Authority, 1997 (P)

Himachal Pradesh Ground Water (Regulation and Control of

Development and Management) Rules, 2006 (P)

National Water Policy 2002 (S) Uttar Pradesh State Water Policy, 1999 (S)

Draft State Water Policy 2008 (S) Rajasthan State Water Policy, 1999 (S)

Guidelines on Swajaldhara 2002 (M) Orissa State Water Policy, 2007 (S)

Order (S.O. 583(E)) relating to Water Quality Assessment Authority, 2001 (M)

Himachal Pradesh State Water Policy, 2008

Uniform Protocol on Water Quality Monitoring Order (S.O.2151), 2005 (M)

Draft Rajasthan State Water Policy, 2008 (S)

Delhi Water Board Act (M)

Uttar Pradesh Water Management and Regulatory

Commission Bill, 2008 (M)

Groundwater in India

Findings to date:

� Little change can be observed between the three Model Groundwater Bills which

span a period of 13 years. The three significant additions to the 2005 version are:

� a focus on securing groundwater for drinking

� the requirement for the Central GW Authority to maintain a GW database

� promotion of rainwater harvesting in both urban and rural areas

� The four primary State-level instruments bear close resemblance to the 2005 Bill

in terms of content and language (almost identical in the Bihar Act).

Next Steps:

� Compare standardised approach to GW management amongst States with

ground-level GW context of each State.

�Speculate further on why?

Decentralisation

1992: Water Resources Act

Establishes WUAs - Focus on post-project O&M - No clear role during project planning & implementation - No recognition for capacity development to support effective O&M

1999: Local Self-Governance Act

• Institutional structures for devolving governance functions to District and sub-district levels: 1) District Council (DC); 2) District Development Committee (DDC); 3) Village Council (VC); 4) Village Development

Council (VDC); 5) Ward Committees (WC) & 6) Consumer Committees (CC)

• Focal areas include drinking water supply, irrigation, river control, soil erosion, electricity generation &

distribution and developing annual development plans.

• Membership becomes progressively inclusive from Daces to CCs with provisions for women and marginalised group representation.

• Broad scope over local development creating possibility of integrated resource management

2000: Irrigation Regulations

• To implement the 1992 WRA – 8 years to move from principal enactment to regulations.

• WUA functions - primarily O&M incl. managing equitable water distribution between farmers.

• Requirement that WUAs pay 0.2% of project costs to D/Irrigation for O&M to = “Public Participation”

• Establishes Monitoring Committee in D/Irrigation - functioning of WUAs, condition of structures

• Links to institutions established under Local Self-Government Act unclear.

2002: National Water Plan

• Calls for IWRM… but at District level

• Restructuring District Water Resources Committees (DWRCs) and District Water Assemblies

(DWAs) towards IWRM. DWAs to be the apex body for IWRM in District• Calls for creation of and Sub-basin Committees to implement IWRM. Membership to include Water User

Groups (WUGs), other users groups, NGOs, CBOs, women’s & minority groups.

2003: National Irrigation Policy

• Transfer of O&M to WUAs

• Establishes an Emergency Maintenance Fund to which WUAs to contribute 80% of revenue, but Fund

controlled by D/Irrigation. WUA can retain remaining 20% for running expenses re. O&M• Approach to WUAs appears to remain confined to irrigation sector whilst parallel District system

moving towards integrated management & inclusive processes

Decentralisation in the Water and Related Sectors in Nepal -A timeline Decentralisation in

water sector remains

behind overall

decentralisation

Remaining work

We are yet to answer most of the questions we posed

1. Why are laws legislated as they are and when they are?

2. How do the laws relate to larger agro-ecologies, larger political economy, international discourse etc.

2a. Analysis of flood vs. drought provisions (Bangladesh vs. Pakistan)

2b. Provisions on IWRM and international discourse

Help needed

1.Have we left out important laws that we need to include?

2.Can you help us with speculation?

3.Contact experts for backgrounds on laws?

4.Theoretical framework we may find useful?