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Groundwater Management and Ownership

The conclusions of the recent report of the Planning Commission's expert group on groundwater management and ownership, from an earth-science perspective, are poorly informed and simplistic. The report is conspicuous in its failure to seek counsel from the nation's scientific, professional and public institutions that have expertise and interest in a wise utilisation of groundwater resources.

Groundwater Management and Ownership

T N Narasimhan

The conclusions of the recent report of the Planning Commission’s expert group on groundwater management and ownership, from an earth-science perspective, are poorly informed and simplistic. The report is conspicuous in its failure to seek counsel from the nation’s scientific, professional and public institutions that have expertise and interest in a wise utilisation of groundwater resources.

Thanks are due to William Alley and Thomas Winter, US Geological Survey, Panos Panagopoulos, ECOS Consulting, Athens, Marios Sophocleous, Kansas State Geological Survey, an anonymous reviewer for candid comments and Suresh Bharucha, New Delhi, for bringing the report to my attention. The opinions expressed are solely mine.

T N Narasimhan (tnnarasimhan@LBL.gov) is with the department of material science and engineering, University of California at Berkeley, United States.

Economic & Political Weekly

EPW
february 16, 2008

R
ecently, the Planning Commission has published an Expert Group Report (2007), (the report) on groundwater management and ownership. The report, motivated by the alarming decline in groundwater levels in some parts of India, first addresses the status of groundwater availability, efficacy of artificial recharge, legal status of groundwater, domestic legislative experience and international management experience. It then examines the way forward and ends with summary and conclusions. The goal is to find ways of achieving sustainable management of groundwater resources. Sustainability is taken to denote groundwater use in a manner that can be maintained for an indefinite time without causing unacceptable environmental, economic or social consequences.

Important Findings

The report’s findings are first mentioned and then critiqued.

(1) Availability of Groundwater: The report’s findings on the availability of groundwater are:

India’s average annual precipitation input is 3,800 cu kms (rainfall of 1,170 mm over 3.25 million sq kms), of which, 1,869 cu kms constitutes potential flow in rivers. India’s utilisable water is 1,123 cu kms [Ministry of Water Resources 1999]. Present total water use is 634 cu kms, or 56.5 per cent of the total utilisable resource. Water demand is projected to increase to 1,447 cu kms by 2050, exceeding total utilisable resources. Accordingly, demand is expected to outstrip availability in 35 to 40 years. Annual replenishable groundwater resource is estimated at 433 cu kms, of which 399 cu kms constitutes net annual availability. At present, 231 cu kms or 58 per cent of net groundwater availability is used, indicative of a comfortable situation at the aggregate level, subject to wide local variability around the country.

The conclusion that current demand is less than supply may be optimistic. Of total precipitation, a significant portion goes back to the atmosphere through evapotranspiration. This portion is unavailable for surface flow or ground water flow. Thus, annual utilisable water equals total precipitation less evapotranspiration. Conversely, evapotranspiration equals total precipitation less the sum of surface runoff and groundwater recharge. Accordingly, India’s evapotranspiration amounts to 3,800 – (1,869 + 433) = 1,498 cu kms, which is 39.4 per cent of total precipitation. The table compares evapotranspiration estimates for different parts of the world, along with that for India. It is seen that the estimate for India is significantly lower than those of others by 20 per cent or more. Underestimation of evapotranspiration implies overestimation of utilisable water resources. The table suggests

Table: Comparison of Evapotranspiration Estimates

Region Evapotranspiration Source (% of Annual Rainfall)

Australia 90 Australian Water Resources
(2005)
Amazon basin 59-82 Marengo (2006)
France 62 Institut Français de
L’Environment (2004)
California 69.8 Department of Water
Resources (2005)
United States 70 Leopold (1974)
India 39.4 Ministry of Water Resources
(1999)

that India may be at the threshold of overdevelopment even now, rather than 35 to 40 years from now.

(2) Deep Confined Aquifers: As per the report,

Where geological conditions are favourable, groundwater may move slowly down to depths of several hundred metres to replenish deep aquifers. Static groundwater resources in deep aquifers are large, estimated to be 10,812 cu kms.

Potential exists for developing deep, confined aquifers in the Indo-Gangetic plains and in coastal sedimentary basins of peninsular India. Nevertheless, the estimate of 10,812 cu kms of reserves can be misleading. Confined aquifers release water from storage through very small decreases in porosity caused by large water pressure declines. Because of this, and because of slow recharge of deep aquifers, only a small fraction of the in situ reserves can be expected to be utilisable under favourable conditions.

COMMENTARY
  • (3) Water Quality: The report conspicuously fails to address issues of water quality and vulnerability to pollution of groundwater, especially when the national economy is expanding. Water quality is as important as quantity in groundwater resource assessment.
  • (4) Efficacy of Artificial Recharge: The report says:
  • The Central Groundwater Board estimates that 214 cu kms of monsoon runoff can be stored in the subsurface vadose zone (the zone between the land surface and the water table) down to a depth of 3 m below land surface. Additionally, 36.5 cu kms of surplus monsoon runoff can be recharged into the groundwater reservoir below the water table.

    But water in the vadose zone (also referred to as unsaturated zone) is strongly bonded to soil grains and cannot be extracted by wells. Because of the complexities of physical processes involved, water cannot be retrieved for direct human use from the vadose zone. Hence, the statement that water can be stored in the sub-surface vadose zone is misleading, especially because the quantity involved, 214 billion cubic metre (BCM) is substantial, far in excess of the 36.5 BCM of surplus water available for artificial recharge.

    (5) Legal Status: Regarding the legal status of groundwater the report states,

    Groundwater ownership legally stems from the Easement Act of 1882, within which groundwater is treated as real (not movable) property. The states have responsibility to regulate groundwater under “water supplies” within the Entry 17 of List II in the Seventh Schedule. Additionally, based on public trust principles, the Supreme Court has decreed that the central government is responsible to protect water under Article 21 of the Constitution, which asserts that no person shall be deprived of his life or personal liberty except according to procedure established by law.

    During the 19th century, groundwater was considered by many to be unknown and unknowable,1 or a mysterious, secret, occult and concealed phenomenon.2 These perceptions influenced judicial decisions in England and the US. Groundwater was legally treated as an entity distinct from surface water. It is in this context that the status of groundwater in the Easement Act of 1882 must be comprehended. Modern scientific understanding of groundwater has radically changed the situation. Central to the concepts of shallow and deep aquifers, artificial recharge and capture of groundwater is the scientific fact that the groundwater is always in a state of motion. Therefore, treating groundwater as an immovable property as the Easement Act does is no more tenable.

    The public trust doctrine originated in the Justinian Institutes of the sixth century AD, from which it entered English Common Law in the 13th century via the Magna Carta [Birks and McCleod 1987; Sandars 1917]. Public trust is a part of the constitution of many countries in Europe, and many states in the US. Yet, surprisingly, there is little

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    inclination in India to give a constitutional recognition to this doctrine. Instead, it is merely considered to be implied and buried in Article 21 of the Constitution. Based on modern scientific knowledge, groundwater, in conjunction with surface water, must be given due attention in the Constitution as a necessary prelude for formulating a credible national water policy.

    (6) States’ Approaches to Regulation:

    The report on the states’ approaches to regulation:

    Mounting groundwater crisis stemming

    from an overdraft has led many states, no

    tably, Kerala, Tamil Nadu, Andhra Pradesh,

    Maharashtra and Gujarat to legislate ground

    water. The report perceives shortcomings in

    the legislative actions, including slowing

    down of development by the permit system,

    difficulties in enforcing regulations, scope

    for corruption and depriving new water

    users of water allocation.

    Groundwater has to be managed based on scientific information. For ground water management to succeed, laws and policies have to be set in place to enable disciplined participation of all segments of society in implementing optimal utilisation strategies. Ideally, the states should implement comprehensive water management plans to assure long-term sustainability and stability in water supplies to all segments of society. In actuality, however, states have embarked on groundwater legislation in response to crisis management. Without adequate scientific data, and due to lack of adequate planning time, legislation necessitated by crisis management will have shortcomings. The logical way to approach these inevitable shortcomings is to initiate, simultaneously with crisis management, long-term planning of comprehensive water management. This, combined with transparency and public education, will give short-term crisis measures credibility and a better chance of success.

    (7) International Experience: The report on international experiences:

    In the arid regions of western United States, severe groundwater overdrafts have occurred over the past century. Water management strategies are now being developed to reverse adverse effects of overdraft primarily through reduction in withdrawals either through force, or through purchase of water rights at great expense from those who were

    Economic & Political Weekly

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    february 16, 2008

    granted the rights for free. It is not clear if institutional and regulatory actions have succeeded to the desired extent. …Spain enacted a comprehensive water act in 1985, declaring groundwater to be a public property, authorising river basin agencies to regulate groundwater. The current state of implementation of the envisioned management ideals presents a gloomy picture. After two decades, less than a quarter of all the wells have been registered due to insufficiency of resources. Overall it appears that local water users’ associations are defunct and that water law is widely bypassed. …Oman’s public water supply depends mainly on desalinated sea water. Sustainable management of this water is achieved by deftly combining demand side measures with supply-side measures. …Based on these experiences, the report concludes that the deft strategy of Oman, balancing demand and supply, has the best potential for successful replication in India.

    In physical, geological and climatic diversity, the western US and India have many similarities. For example, the Great Central Valley of California, perhaps the richest agricultural region in the world, has notable similarities with India’s Indo-Gangetic Plains.

    (a) California: The report does little justice to rich American water experience. Instead, attention is drawn to narrow water rights issues and the expenditure of public funds to import surface water to reduce the groundwater pumping. The conclusion in Section 6.1.4 that the institutional and regulatory action in America to improve groundwater governance may not have solved the problem to the desired extent may have some validity, but it cannot diminish the progress that has been made over the decades through concerted actions of informed public groups, the academia, associations of scientific professionals, and scholarly societies. Santa Clara Valley, now known as Silicon Valley, boasts of an integrated water management system that has evolved out of the experience of the local people over the past 80 years. Since 1991, California has passed several assembly bills and senate bills to encourage local agencies to prepare groundwater management plans, provide assistance to local agencies, requiring water suppliers to demonstrate adequate water supplies for planned development projects, establishing coordinated water quality monitoring requirements and integrated regional water management plans. California is moving unmistakably towards coordinated management of surface water and groundwater. Further insights into California’s evolution towards integrated regional water management, and the lessons that other countries may learn from California’s experience can be found in Kretsinger-Grabert and Narasimhan (2006). India has much to lose by failing to devote a serious attention to water experiences of California and other western states.

  • (b) Spain: Spain’s traditional water users’ associations were organised around irrigation networks, to build and maintain canals, distribute water and mediate disputes. The 1985 Water Act extended this concept to create users’ associations for groundwater management. These user associations can be grouped into (a) those that have a common goal of exploiting a well or a group of wells, for collective management of irrigation networks, and
  • (b) those that comprise all or a majority of users within one aquifer. Currently, the desired objectives of curbing groundwater overdraft have not been achieved in the case of the first group. The small number of associations which belong to the second group have had notable success in curbing overdraft and managing groundwater wisely on the scale of the aquifer [Hernández-Mora et al 2007].
  • Spain, as a member of the European Union, is actively engaged in modifying its water laws and institutional structure to implement the Water Framework Directive [European Commission 2000], requiring all water bodies (surface water and groundwater) to achieve a good ecological status by 2015. After much political turmoil during the 20th century, Spain is in a state of transition. To facilitate Spain’s goals of wise groundwater management, there is an active interest among a broad group of Spanish citizens including academia, research institutions, civil organisations, and NGOs. It is premature and unwise to conclude that Spain’s efforts at regulated groundwater management have failed.
  • (c) Oman: The report’s conclusion that Oman’s strategy to control, protect and conserve water resources with supplydemand measures has the best potential for successful replication in India is
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    extraordinary. With less than 10 per cent of India’s land area, Oman’s population is merely 2.4 million. Because of its oil wealth, Oman can afford to depend mainly on manufactured (desalinated) sea water. Compared with the rest of the world, Oman’s water situation is an anomaly. The astonishing espousal of the Oman model for India makes one wonder if the expert group had a priori decided in favour of a supplydemand paradigm, and searched avidly for supporting evidence in any conceivable form rather than an assiduous open-minded exploration of international experience.

    (8) Overall Conclusions: The main conclusions of the report are:

    Supply-demand philosophy should be the cornerstone of India’s groundwater management. The unlimited rights of landowners to capture groundwater with wells cannot be abridged because new legislation to amend the Easement Act to make groundwater, say, a community, or, a state property is complex. Therefore, there is no need for changing the legal regime in India. Instead, groundwater will be best managed cooperatively through local user groups and panchayati raj institutions, with technical inputs from the groundwater boards at the central and state levels. However, implementation of such cooperative schemes raises formidable questions of local governance, including equity, efficiency of use and open transparent institutions. In cases of excessive overdraft, the public trust doctrine may be invoked, but intervention strategies must be explicitly presented with stakeholder consultation, especially the smaller users. Artificial recharge and rain harvesting should be actively encouraged through the use of modern methods such as remote sensing, geographical information systems (GIS) and information technology.

    The choice of supply-demand as the cornerstone of groundwater management in India is perplexing. Credibility of the supply-demand model for groundwater depends on whether groundwater is a commodity that should be priced purely through market forces. Here, three perspectives are relevant.

    First, the Water Framework Directive of the European Union [European Commission 2000] starts with an assertion, “Water is not a commercial product like any other, but rather, a heritage which must be protected, defended and treated as such”.

    Second, in formulating its Federal Water Code of 1957, Germany believed

    Economic & Political Weekly

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    that the goal of equitable distribution of surface water and groundwater could be attained, “ff the free disposition by private owners is restricted and if the consideration of the public weal is the starting point of all action”. Further, recognising that the scarcity of publicly valued natural goods implies a parliamentary right to assume responsibility to distribute and manage the resources, the Federal Constitutional Court observed [Kube 1997], “The impossibility to increase the area of land as well as its absolute importance to everybody prohibit leaving its use completely to the management through market forces”.

    Third, Sax (1970), summarising the es sential features of public trust noted that certain interests (e g, water, navigability, fishing) are so vital to every citizen that society must be especially vigilant so that no particular individual or group acquires power to control them. A consequence of public trust as a manifest in water law is that one does not own a property right in water the same way one owns a right in other material things. Rather, one’s right is usufructuary, meaning that it is a right to benefit from a resource, implicitly recognising the needs of others.

    These perspectives convincingly question the wisdom of subjecting groundwater to the supply-demand philosophy.

    The report concludes that no change in legal position regarding groundwater is necessary, and that existing ownership rights, subject to state control is sufficient to achieve sustainable groundwater management. It supports decentralisation, giving management responsibilities to user cooperatives and panchayati raj institutions, with technical assistance from the central groundwater board. These conclusions are inconsistent. The expert committee was constituted because of alarming overdraft of groundwater in many parts of India. If status quo is adequate except for marginal changes, why there is an alarming situation in the first place? Secondly, if, as the report has noted, user associations and cooperatives have failed to meet expectations in Spain, what are the prospects of user cooperatives succeeding in India? Finally, the report cautions that the implementation of cooperative schemes raises formidable questions of local governance, including equity, efficiency and transparent institutions. Therefore, a pilot testing is recommended to develop collective action institutions. Is it rational to embark on the decentralisation approach in such a major way, when pilot studies are as yet to be conducted to assess the feasibility of the envisioned local governance institutions? What if pilot studies yield negative results?

    Section 7.10 recommends that public trust provisions must be invoked in areas of substantial water level decline. Even then, intervention should be constrained by an explicit strategy in consultation with stakeholders. This recommendation does not show comprehension of the depth of public trust doctrine, which is strongly endorsed by the Supreme Court. The trusteeship responsibility of the state requires a proactive planning to prevent overexploitation and misuse, rather than a weak intervention after damage has already occurred through uncontrolled exploitation.

    Perspectives

    The following are some perspectives on groundwater management:

    (1) Groundwater, Science and Policy:

    Groundwater is intimately linked with the atmosphere, surface water, the soil, plant communities and aquatic ecosystems. Its judicious management must be based on the best available, evolving scientific knowledge. Despite spectacular advances in science, groundwater systems remain complex, difficult to access for observation and defy precise quantitative description. Practically, therefore, the basic strategy of groundwater management is to continuously monitor these systems inasmuch detail as is reasonably possible, design optimal extraction strategies based on available data, make short-term forecasts of system behaviour through models of different levels of sophistication, reevaluate management plans based on accumulating new information and implement sensible water use strategies. Potentially hazardous environmental, ecological, or public health impacts must be detected early to initiate timely corrective measures.

    Groundwater management has to be integrated with watershed development, land use, ecosystem management and public health protection. Formidable scientific

    COMMENTARY

    and technological challenges lie ahead in these areas.

    The goal of water law and policy is to combine scientific reality with democratic social values to formulate codes and statutes to enable equitable, just and efficient use of water resources.

    (2) Expert Group’s Approach: A major conclusion of the report is that groundwater management should be decentralised and left to local and panchayati raj institutions, with technical support provided by the central groundwater board. Some brief references are made to water level monitoring, remote sensing, GIS, and information technology. Groundwater development is strictly treated as a water supply issue, without any examination of connections to watershed management on various scales, ecosystem protection, or, water quality implications. This is simplistic. If emerging developments are any indication, the future of groundwater management lies in the direction of developing techniques, methodologies and institutions needed for integrated groundwater management. The report has shown little awareness for future research and institutional needs in hydrological, environmental and ecological sciences that will become vital with an increasing stress on groundwater resources.

    Closely related to scientific research is water education. The knowledge dimensions of water are so many that there is a need for water education among all segments of society, from the lay person to experts in various fields. The polarisation of views and the contentious opinions that exist in India about groundwater and related issues can be considerably ameliorated with the dissemination of knowledge about water. Any plans or policies for groundwater management in India will have a bleak future without serious efforts for outreach and water education.

    In the report, policy decisions on a matter of great national importance have been treated as an internal administrative matter of the government. There is no evidence that the expert group has sought counsel from the scientific research community, academia, professional societies, NGOs, or other concerned groups. Particularly noteworthy is the lack of any contribution from the Indian academies of science. Within the EU, academies of the member countries are working together towards the development of water policies, with active exchange of ideas with professional societies, research institutions and public interest groups. In the US, science and engineering academies, scholarly and professional societies, and the academia, are fostering candid debates as to how science may learn to inform policy.

    Conclusions

    The Planning Commission is the most influential body in India’s democratic governance, with the authority to formulate visions and facilitate necessary resource allocations. It is gratifying that such a body has found it fit to devote attention to the

    Call for Papers on

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    For the Fifth Biennial Conference of The Indian Society for Ecological Economics (INSEE) 21-23 January 2009 in Ahmedabad, India

    The Fifth Biennial Conference of The Indian Society for Ecological Economics (INSEE) will be held at Ahmedabad during 21-23 January 2009 in collaboration with Gujarat Institute of Development Research and Gujarat Vidyapith. The main theme of the Conference is Environmental Governance. The Conference is aimed at professional strengthening of the emerging interdisciplinary area of ecological economics and expansion of its use in research, teaching and policymaking. Participation of professionals from diverse disciplines in natural sciences, engineering, law and social sciences is encouraged. Abstracts reflecting original work on the following sub-themes are invited:

    A. Emerging concepts and applications of interdisciplinary knowledge involving ecology and economics.

    B. Regulatory institutions, regulatory failures, pollution control boards, EIA debate, etc.

    C. Institutions for natural resources management and needs for innovation.

    D. Markets and environmental governance, Carbon credit, etc.

    E. Information, knowledge and IPR regimes for environmental governance.

    F. Gender issues in environmental governance.

    G. Law, judiciary and environmental governance.

    H. Global environmental governance – climate change, WTO, etc.

    I. Alternate frameworks for environmental governance – Green Parties, green consumerism, etc.

    Abstracts (and papers) should focus mainly on India, but limited number of abstracts on other countries may also be accepted. A 1000 word abstract clearly mentioning the sub-theme for which the submission is made, should be submitted by 31 March 2008. By 15 May 2008 the Scientific Committee will review the abstracts and select some of them for submission by 15 September 2008 as full papers of 12,000 words (maximum). The full papers will be further evaluated and acceptance of papers selected for presentation in the Biennial Conference will be communicated to authors by 15 December 2008. Authors should modify their papers, if so suggested, and submit the final version by 10 January 2009. Abstracts and full papers, preferably in soft copy, should be sent to

    Shri Sushil Kumar Sen, Office Manager INSEE C/O Institute of Economic Growth University of Delhi Enclave, (North Campus) Delhi-110007 India Fax: 011-27667410; email: insee@iegindia.org Website: www.ecoinsee.org

    A limited amount of travel grant is available to support some of the participants with papers accepted for presentation in the Conference. Selected papers from those presented in the Conference are expected to be published in a book by INSEE.

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    future of groundwater in India. Unfortu-2 Frazier vs Brown, 1861 Frazier vs Brown, 12 Ohio Kretsinger-Grabert, V and T N Narasimhan (2006): St 294 (Ohio, 1861). ‘California’s Evolution toward Integrated Region

    nately, a careful reading of the report

    al Water Management: A Long-term View’, Hydro

    leaves one with a sense of disappointment. geology Journal, 14, 407-423. Kube, H (1997): ‘Private Property in Natural Resourc-

    From a scientific perspective, the report References

    es and the Public Weal in German Law – Latent

    is poorly informed, and seems to have been prepared in isolation, without any broad consultation with research and professional communities, the academies of science and concerned public organisations. If the recommendations as contained in the report are to be the basis of groundwater policies for India, then, from scientific and water management perspectives, the future looks bleak. The losers will be the people of India.

    Notes

    1 Acton vs Blundell, 1843 12 M&W 324, 152 ER 1223 (Ex 1843).

    Australian Water Resources (2005): http://www. water.gov.au/WaterAvailability

    Birks, P and G Mcleod (1987): Justinian Institutes, Cornell University Press, Ithaca, New York, p 160.

    Department of Water Resources (2005): Water Plan Update 2005, Public Review Draft, Vol 3, State of California.

    European Commission (2000): ‘Directive of the European Parliament and of the Council 2000/60/EC Establishing a Framework for Community Action in the Field of Water Policy’, Official Journal C513, 23/10/2000, p 62 plus annexes.

    Hernández-Mora, N, L C Martinez, M R Lfsaxlamas and E Custodio (2007): ‘Groundwater Issues in Southern EU Member States: Spain Country Report’, Draft Report on Spain prepared by a working group appointed by European Academies of Sciences Advisory Council.

    Institut Français de L’Environment (2004): ‘L’état des eaux souterraines en France, aspects quantitatifs et qualitatifs, Report, Institut français de l’environnement, Orléans, Etudes et Travaux n 43, pp 34.

    Similarities to the Public Trust Doctrine?’, Natural Resources Journal, 37, 857-80, Fall.

    Leopold, L B (1974): Water: A Primer, W H Freeman, San Francisco, p 172.

    Marengo, J A (2006): On the Hydrological Cycle of the Amazon Basin: A Historical Review and Current State-of-the-Art; Revista Brasileira de Meteorolgia 21, 1-19.

    Ministry of Water Resources (1999): ‘Integrated Water Resources Development – A Plan for Action’, Report of the National Commission for Integrated Water Resources Development, Vol 1.

    Planning Commission (2007): Report of the Expert Group on ‘Groundwater Management and Ownership’, Government of India, Yojana Bhavan, New Delhi, September, pp 70.

    Sandars, T C (1917): The Institutes of Justinian, Longmans, Green and Co, London (New Impression, 1962).

    Sax, J L (1970): ‘Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’, 68, Mich Law Review, 473.

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