ground water resources

Tackling India’s Ground Water Resources: The Legal Perspective

By: Staff Reporter
Policy

India’s average annual precipitation, including snowfall is 4000 billion cubic meters (BCM). Computing various constraints, only 1123 BCM is assessed as the average annual utilisable water – 690 BCM from surface water and 433 BCM from ground water. Our nation’s present total water use is 634 BCM of which 83 percent is for irrigation. This is projected to grow to 813 BCM by 2010, 1093 BCM by 2025 and 1447 BCM by 2050, against utilisable quantum of 1123 BCM. Thus the demand will outstrip availability in another 35 to 40 years. The Central Ground Water Board (CGWB) has estimated the present annual ground water draft as 230.6 BCM.

The overall stage of ground water development in the country is 58 percent, indicative of a comfortable situation at the aggregate level. This however masks the high degree of variability in availability and development throughout the country. In the Indo-Gangetic and Brahmaputra plains, ground water potential is very high and such areas can support large scale development. In peninsular India and hilly states, however, groundwater potential is relatively much lower. The extent of extraction has increased significantly over the years – it is estimated that there are currently 19 million wells in the country, out of which 16 million are in use and are drawing about 231 BCM of water – about 213 BCM for irrigation and 18 BCM for domestic and industrial use. There is also a high degree of variability in annual groundwater draft vis-à-vis net availability across states. By the year 2025, the demand for domestic and industrial uses is projected to rise to 29 BCM from the current level of 18 BCM.

Consequences of over – exploitation

According to a recent report the ultimate irrigation potential from ground water source is 64.05 million hectares, as compared to 46 million hectares of land currently under groundwater irrigation, indicating further scope for developing ground water in some areas, such as the eastern and north eastern parts of the country. The report (reference year 2000-01) has however revealed that in many states, the irrigation potential created has exceeded the ultimate potential, showing that mining of ground water, that is exploitation beyond the dynamic resource, is already taking place. Today some states have a large number of semi critical, critical and over exploited assessment units. Out of the 5723 assessment units assessed jointly by State Ground Water Departments and CGWB in the country, 4078 are safe (71 percent), 550 are semi critical (10 percent), 226 are critical (4 percent) and 839 are over exploited (15 percent). Just 6 States – Gujarat, Haryana, Maharashtra, Punjab, Rajasthan and Tamil Nadu – with 1413 assessment units, have 762 units which are semi critical, critical or over exploited. Thus 54 percent of the units in these States are stressed, against national average of 29.

Somewhat comparable time series data on proliferation of semi critical, critical and over exploited blocks in the country clearly indicate deterioration, as the differences between the 1995 and 2004 estimates are too large to be explained by the minor differences in the classification methodology used in the two estimates. The percentage of over exploited units has increased from 7 percent to 28 percent making ground water a matter of concern.

In most over exploited areas, the prime cause is the rising demand for irrigation. Decisions on cropping pattern and cropping intensity, which are the predominant determinants of agricultural demand for groundwater, are being taken largely independent of ground water availability. Thus, water intensive crops tend to be grown even in the face of scarcity of groundwater – if these crops are perceived to be remunerative. Such distortions occur partly due to the legal or regulatory regime governing groundwater and partly due to the minimum support price policy and agricultural trade policy currently being followed.

The problem has been compounded by the availability of cheap, subsidised or even free power in many states – since power is a main component of the cost of groundwater, making the marginal cost of power zero – providing farmers with little incentive to use power or water more efficiently.

Over exploitation leads to increase in pumping depths, reduction in well/tube well yields and rise in the cost of pumping ground water and widespread and acute scarcity of ground water in summer for irrigation and drinking. This forces farmers to deepen their wells and install larger pumps. Another fallout of over exploitation has been contamination of ground water due to geogenic factors, resulting in increasing levels of fluoride, arsenic and iron. Ground water in some parts of West Bengal and Gujarat, which are contaminated by arsenic and fluoride now, were safe at the time of Independence. Since 85 percent of rural water supply programme depends on ground water as the source, effects on health of rural population due to such contamination is a matter that merits serious attention. Over exploitation in coastal areas leads to salinity ingress and potentially leads to reductions in essential base flow to rivers and streams. It is now fairly clear that over exploitation is rampant in agriculturally crucial states, such as Punjab, Haryana, Gujarat, Maharashtra and Andhra Pradesh.

Article 7 Map 1

Legal Position

To ensure sustainability it is critical to find ways to limit the use of ground water. We need to create legal provisions concerning groundwater use by individuals and review power and obligation to take needed actions. The right to groundwater in India is, as in many other legal cultures, seen as following the right to land. The source usually referred to in support of this is the Indian Easements Act 1882. An ‘easement’ is mostly agreed upon between two neighbours and an easement so created leads, according to Section 7(a) of the Act, to restrictions of certain basic rights. As real property chiefly denominates land, and groundwater legally is seen as a naturally inherent part of land. Provisions of the Act build upon common law principles establishing a rule of ‘absolute ownership’ over all there is below the surface of the earth of each landowner. This doctrine, settled in England in the nineteenth century and in turn drawing from ancient Roman law, makes a distinction between water flowing in ‘defined channels’ and underground percolating water. The landowners are perceived to have an unlimited right to appropriate whole of the latter.

However, the right also suggests that if your neighbour extracts too much water and lowers the water table you have the right to prevent him from doing it. Symmetrically the neighbour can prevent you from over exploitation. Thus there are limits to an individual’s right to exploit ground water. The limits were tested recently in the Coca-Cola case in Kerala. The High Court of Kerala known as the landmark ‘Coca- Cola Case’, decided on the issue of the excessive exploitation of ground water. The judgment clearly lays down that the State has a right and obligation to restrain use of groundwater if it causes harm to others.

India is a federal republic and its Constitution distributes the legislative power by classifying responsibilities through the Union, State and Concurrent list. Under the Constitution, ‘water’ is a matter included in Entry 17 of the State List – subject to the provisions of Entry 56 of the Union List. Accordingly, it may be argued that ‘water’ as such is a state subject and that states have jurisdiction to regulate and control groundwater. However, the Parliament does have a concurrent power to make laws with respect to any matter for any part of the territory of India not included (in a State). Further, the Supreme Court has interpreted certain constitutional provisions as having indirect implications for ground water, directing the state to “endeavour to protect and improve the environment”, thereby entailing certain obligations for the Government in general. The roles that the Government is expected to play in ground water development and management are outlined in two important policy statements: National Environment Policy and National Water Policy.

As regards groundwater regulation, the Supreme Court of India has passed several orders in 1996, for setting up of CGWA under the Environment (Protection) Act, 1986 to regulate indiscriminate boring and withdrawal of groundwater in the country and issue necessary directions with a view to preserving and protecting the groundwater. The CGWA has been granted the powers to, amongst others, regulate and control, manage and develop groundwater in the entire country and to issue necessary directions for this purpose.

 

National Environment Policy

Since the Centre’s power to legislate on groundwater is based on environmental grounds, the National Environment Policy has suggested action points in relation to ground water.

  • To take explicit account of impacts by tackling electricity tariffs and diesel pricing
  • To promote efficient water use techniques, such as sprinkler or drip irrigation among farmers
  • To provide necessary pricing, inputs and extension support to feasible and remunerative alternative crops for efficient water use
  • To support practices of contour bunding and revival of traditional methods for enhancing ground water recharge
  • To mandate water harvesting in new constructions in relevant urban areas as well as design techniques for road surfaces and infrastructure to enhance ground water recharge
  • To support R&D in most effective techniques suitable for rural water projects for removal of arsenic and mainstream their adoption in rural drinking water schemes in relevant areas.

 

National Water Policy

The Ministry of Water Resources is responsible for laying down policy guidelines and programmes for the development and regulation of country’s water resources. The Revised National Water Policy (2002) has the following recommendations relating to ground water.

  • The exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. Ground water recharge projects should be developed and implemented for improving both the quality and availability of ground water resource.
  • The integrated and coordinated development of surface water and ground water resources and their conjunctive use should be envisaged right from the project planning stage and should form an integral part of the project implementation.
  • Over exploitation of ground water should be avoided especially near the coast to prevent ingress of sea water into sweet water aquifers.

 

Model Bills

Sensing the need for model uniform regulators, the Centre has prepared and circulated model bills to the states. The purpose of such a bill is essentially to form a template for the states in their own regulations of rain water harvesting, notification of areas, requirements for applications for permits prior to digging and drilling of new wells, registration of existing wells and all existing water users. The Model Bill proposes the establishment of a Ground Water Authority in the state, vesting of authority to notify areas for control and regulation of ground water, vesting of authority to grant permit for extraction and use of ground water in notified areas, registering existing users in notified areas and new users in non-notified areas, prescribing penalties for offences and implementing rain water harvesting for ground water recharge.

 

Endnote

The recommendations as these should be the cornerstone of the ground water development and regulation policy in the country. However, these policy statements are neither supported by institutional infrastructure nor by enabling legislation nor by supporting economic incentive structure. As depletion of ground water may lead to environmental hazard, people’s participation and awareness generation is required.

Extract from the Report of the Expert Group on Ground Water Management and Ownership, Planning Commission, September 2007

Leave a Reply

Your email address will not be published. Required fields are marked *