Presented at the 2nd Phase Planning and Review Workshop of the Indo-Ganges Basin Focal Project, 24-25 February, 2009, Haryana, India

1. The Water Sector Policy and Legal Framework in
the Indo-Gangetic Basin
Trends, their drivers and implications
Work In Progress
Aditi Mukherji & Sanjiv de Silva

2. Components of Water Governance
Institutional
Environment
Institutional
Arrangements
e.g.
Water markets
WUAs
Water Right

3. 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!

4. 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

5. 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?

6. 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?

7. 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?

8. 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

9. Orientation of Water Sector Legal Instruments between Water
Resource Development, Management & Governance in the IGB
Definitions (Subject to interpretation)
Water resource Water resource Water resource governance
development management
An orientation Recognition of the need Expansion of rules and institutional
towards increasing to regulate exploitation structures from resource regulation
resource and establishment of to also address social issues. E.g.
exploitation. E.g. rules and institutions for decentralization & participation in
expanding irrigation this purpose. planning; equitable access amongst
and hydropower Laws to promote and different sectors and marginalised
generation. regulate groups; adoption of integrated
Laws to manage resource planning approaches.
Public Production

10. • 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

11. Sample size
Total LI: 98 Earliest LI in the sample: Canal & Drainage Act, 1873,
India

12. Temporal Trends

14. Most irrigation
investments in
1960s to 1980s, and
laws in 1990s and
2000?
WHY?

15. Orientation of Water Sector Legal Instruments between Water
Resource Development, Management & Governance in the IGB

16. Focus of Water Sector Legal Instruments in the IGB
(By Decade)
GW India
30
28
26
24
22
Instruments
20 Irrigation & IWRM India
18 Drainage Pakistan
16
14
12
10 Water Quality
8 India
6
4
2
0
1900 to 1910 to 1920 to 1930 to 1940 to 1950 to 1960 to 1970 to 1980 to 1990 to 2000 to
1909 1919 1929 1939 1949 1959 1969 1979 1989 1999 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

17. Water Sector Legal Instruments in the IGB Countries
(By Primary Focus)
I&D dominant in BD over last 50
12
2000 to 2009 years & in PK in 1990s
11
IWRM emerging in
GW a key
1990 to 1999 2000s across IGB 10
priority for India
in 1990s
9
1980 to 1989
8
1970 to 1979 7
Instruments
Expansion from
I&D to IWRM in 6
1960 to 1969
BD in last 20 yrs
5
1950 to 1959
4
1940 to 1949 3
2
1930 to 1939
1
1920 to 1929 0
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Pakistan
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
Nepal
India
India
India
India
India
India
India
India
India
India
India
India
India
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
Bangladesh
1910 to 1919
1900 to 1909 Irrigation Hydropow er atershed
W Environmental
Flood Mgt Water Drinking Municipal Water Use IWRM Dispute Groundw ater Cost
& Mgt Mgt Quality w ater Water Ef f iciency Resolution Recovery
Drainage supply
Primary Focus

18. 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?

19. 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

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 Himachal Pradesh Ground Water (Regulation and Control of
Groundwater Authority, 1997 (P) 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 Himachal Pradesh State Water Policy, 2008
Authority, 2001 (M)
Uniform Protocol on Water Quality Monitoring Order Draft Rajasthan State Water Policy, 2008 (S)
(S.O.2151), 2005 (M)
Delhi Water Board Act (M)
Uttar Pradesh Water Management and Regulatory
Commission Bill, 2008 (M)

21. 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?

22. Decentralisation

23. Decentralisation in the Water and Related Sectors in Nepal -
A timeline Decentralisation in
water sector remains
1992: Water Establishes WUAs - Focus on post-project O&M - No clear role during project planning & implementation
Resources Act - No recognition for capacity development to support effective O&M behind overall
decentralisation
1999: Local Self- • Institutional structures for devolving governance functions to District and sub-district levels: 1) District
Governance Act 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 • To implement the 1992 WRA – 8 years to move from principal enactment to regulations.
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 • Calls for IWRM… but at District level
Water Plan • 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 • Transfer of O&M to WUAs
Irrigation Policy • 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

24. 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?