As the water crisis deepens, can India afford to leave groundwater unregulated?

It has been yet another blistering summer with a severe water crisis in large parts of India. Among the worst affected states is Tamil Nadu, where the government has blamed the water scarcity on three consecutive years of failed monsoon, without acknowledging its own role in exacerbating the crisis. Despite groundwater levels falling sharply in the state, the government has simply failed to regulate groundwater use.

In 2003, the state assembly passed the Tamil Nadu Groundwater Development and Management Act. Under the law, the state could establish an authority to regulate groundwater extraction in the state. The authority would have the power to notify areas where the “development, extraction and utilisation” of groundwater would require its express permission.

Even outside the notified areas, new wells would have to be registered with the authority and permits obtained for the transportation of groundwater. The Act was binding on both individuals and companies that were using groundwater for any purpose other than domestic and farming use.

The law also granted the authority immense powers of applying the Code of Criminal Procedure to seize or investigate any of the notified areas or wells, along with the “power to break open the door of any premises where such sinking, extraction or use of groundwater is going on.”

Tamil Nadu failed to implement the law. In 2013, the state government repealed it through an ordinance. One of the reasons cited in the ordinance for revoking the law: “If the Act in the present form was implemented and groundwater was not allowed to be tapped, it would have led to a public outcry.”

The government promised to enact another law to regulate groundwater, but six years later, there is no sign of it.

Tamil Nadu is not the only state where excessive groundwater extraction continues in the absence of a regulatory framework. This is the reality across India.

Depleting levels

Groundwater extraction has rapidly increased in India over the years, partly due to urbanisation and industrialisation, but largely because of water-guzzling agricultural practices. For instance, 90% of India’s freshwater use was for agricultural purposes in 2010, according to Hindustan Times.

In response to a question posed in Parliament on June 27, Rattan Lal Kataria, minister of state for Jal Shakti, the newly formed ministry handling all water-related matters, said about 52% wells monitored by the government showed a decline in groundwater levels in 2018 compared to the 10-year average.

A weak central authority

There is currently no Central law on groundwater regulation. There is, however, a British-era law called the Indian Easement Act, 1882 which gives landowners the right to “collect and dispose” of all water under the land within their own limits.

Water as a subject belongs to the states which makes it their responsibility to regulate and manage it. But under the Environment Protection Act, the Central Ground Water Authority can issue guidelines to states.

The Authority also has the responsibility of conducting groundwater level surveys across the country. It divides the groundwater table across the country into different assessment blocks and categorises them based on “groundwater development”. This is a measure of how much groundwater has been extracted from an area compared to its recharge through rains.

If assessment units are classified as over-exploited then it means that the groundwater extraction is overall much higher than the groundwater recharge. The other categories are safe, semi-critical and critical. The over-exploited zones are notified by the authority to ensure groundwater use is more strictly regulated.

On June 27, the Jal Shakti minister told Parliament that the authority carried out groundwater monitoring four times a year in different states. But the last survey available on the Authority’s website dates back to 2013. The 2013 survey stated that there were 1,034 over-exploited units, or around 15% of the total 6,584 units assessed. That year, only 162 have been “notified” for greater protection.

India’s water information system is in a major crisis, said Himanshu Thakkar of South Asia Network on Dams, Rivers and People. Instead of regularly providing data on groundwater levels and regulating its use, the Central Ground Water Authority “has become a licensing body for groundwater that gives no objection certificates to industries to extract groundwater,” he said.

The Model Bills

But even before the formation of the Central Ground Water Authority, a Model Bill to regulate groundwater was framed in 1970 by then Ministry of Water Resources.

A Model Bill is nothing but a set of guidelines for states to use to develop their own specific groundwater Acts, said Himanshu Kulkarni of the Advance Centre for Water Resources Development and Management in Pune.

This Model Bill was later updated in 1992, 1996 and 2005. The 2005 Model Bill mandates the formation of a groundwater regulation authority that would function under the control of the state government. The authority would also have the power to grant permits to anyone who wants to extract groundwater or sink wells.

Every new well and drilling machine would also have to be registered with the authority. The Code of Criminal Procedure would also apply if the authority would want to search and seize any machinery. Additionally, the Bill also stated that the authority would have to issue guidelines to state governments to adopt rain water harvesting in their development schemes.

But this Bill had several shortcomings. “The older Model Bills create a direct link between landowners and groundwater which leaves out landless people,” said Philippe Cullet, a senior visiting fellow at the Centre for Policy Research in New Delhi. “This does not take into account all those people who do not own land and need access to groundwater. This is the elephant in the room that no one wants to address.”

He also said that it was practically impossible to implement an Act based on the Model Bill that was introduced after the usage of tubewells became more rampant. “This was never going to be practical because there are too many pumps to check,” Cullet said.

“It did not provide a basis for shaking the unsustainable and inequitable system of control over groundwater linked to land rights but simply added another layer of bureaucracy,” he added.

Groundwater (Sustainable Management) Bill, 2017 was another Model Bill framed keeping in mind the decentralisation of groundwater regulation. Cullet and Kulkarni were both a part of the drafting committee to frame the Bill under the Ministry of Water Resources, River Development & Ganga Rejuvenation. The new draft recognises water as a public trust. It also includes water security measures and groundwater protection zones.

“Groundwater as a local source of water may become even more important in the future in the face of the push for privatisation since that may be one way in which panchayats may maintain some ‘public’ control over drinking water supply,” Cullet said.

But Kulkarni raised more questions that he said could not be addressed in the 2017 Model Bill. “In India we need a legislation on water which can incentivise conservation,” he said. “How do we replace the command and control mode in a legislation with a more protective mode that incentivises participatory, social norms of groundwater management and governance.”

Kulkarni also explained that it was difficult to prevent external factors even if some efforts were being taken to conserve groundwater. “For instance, if a village comes together and conserves water, how does it get protected from other villages or industries that could free ride on the benefits of conservation?”

How states have fared

Kulkarni said that when it came to groundwater regulation, it was necessary to broadly classify states in four different categories. First, where there was no Bill prepared for groundwater legislation. Second, where there was a Bill but it hasn’t yet been converted to an Act. Third, where a Bill has been passed to form an Act but without any rules to implement it. And fourth, where there was an Act with rules.

The states that have enacted their own legislation include Andhra Pradesh, Assam, Goa, Bihar, Delhi, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Lakshadweep, Puducherry and West Bengal. “These Acts were mostly drafted around the earlier Model Bills,” Cullet said.

But how have these states fared in implementing their groundwater laws? Cullet said that there was no state-specific research on ground water laws to determine how they were being implemented.

A study in 2013 on groundwater governance in India states that Acts enabled by states did not “enable the authorities to re-allocate groundwater between different uses or take either precautionary or pro-active decisions, except for Andhra Pradesh, whose Water, Land and Trees Act, 2002, is a move to regulate groundwater in conjunction with surface water and other pressing environmental concerns.”

It further added that the states’ Acts and pending Bills did not provide safeguards for “nature protection areas”, drinking water protection zones and it did not provide measures to involve communities at the village level.

Andhra Pradesh’s 2002 Act framed similar to the Model Bill prescribes the formation of an authority and registration of wells. But in addition to this, it also lays down measures to protect public drinking water sources and recycling water for industrial purposes. The authority can also notify lakes, ponds and other water bodies as “heritage bodies and conservation areas”. It also states that the authority can put a limit on commercial and industrial units for their water usage.

Kulkarni however said that Maharashtra was an interesting example. It enacted a groundwater regulation law in 1993. However, this Act is to be replaced by another Maharashtra Groundwater (Development and Management) Act 2018 that has faced several delays.

In March, The Indian Express reported that the state government had accepted many of the rules and regulations proposed under the new law. Some of the new rules include online registration of wells and their geo-tagging, having a fixed depth for digging borewells and collection of an annual cess for extraction of groundwater for agricultural and industrial purposes from existing deep wells that have not been notified by the state.

“The process of developing a new Act [in Maharashtra] has run parallel to how the groundwater crisis has panned out in the state,” Kulkarni said. “The groundwater crisis has come about at a much faster pace than the pace of legislation. Over these years, there has been significant change in groundwater extraction and the Act seems to be catching up only now.”