Draft National Policy Guidelines for Water Sharing: Comments
Copied below are the Comments sent by SANDRP to the Union Ministry of Water Resources in response to MWR’s invitation to send comments by July 31, 2013.
1. What is the value added by these Draft National Policy Guidelines on Water Sharing? What is the immediate reason for bring out these guidelines? The guidelines do not make this clear. This becomes particularly important as under constitution, water is a state subject and among states there is increasing suspicion that centre is trying to take over the rights of deciding about the water resources. If that is the case, as it seems (see comments below), than the guidelines also seem to violate the constitutional provisions.
2. The guidelines use the word “National Interest” at least four times, without explaining who will decide this and how. This is likely to raise suspicions among the states. This is particularly true with provisions like that in section 4.6 (c) saying, “The quantum of water exported from the surplus basin in overall national interest will not be counted as water available for sharing in that basin.” This seems to give unfettered rights to the centre to decide about inter basin transfer of water citing “national interest”.
3. If the Union Ministry of water resources is going to decide what is in National Interest than it is likely to invite risk of ridiculous and risky propositions. For example, the ministry some years ago came out with a scheme of National Projects, but most of the projects under this scheme did not have statutory clearances, or were unviable or were controversial and involved unresolved interstate issues. Thus use of such terms without clear definition and clear checks and balances is not likely to be acceptable.
4. It is pertinent to note that conflicts over river waters, whether inter-country or intra-country, invariably seem to arise only in the context of large projects. So long as the river is flowing freely without any such big projects, there is no cause for any conflict between the upper and lower riparians. As soon as any riparian State plans an intervention (dam or barrage or other diversion structure), anxiety in other riparians is triggered, and a potential for conflict arises. It would appear that large projects tend to become the foci of conflicts. This is essentially because (a) they tend to drastically alter geography and hydrological regimes, and (b) they involve issues of control, power and political relations, social justice and equity. The best course to avoid conflicts is to refrain from such interventions as far as possible, keep them minimal, give advance notice of an intended intervention to all the other riparians, provide full information, take the concerns and consent of the lower riparian into account, and refrain from causing ‘substantial harm’ or ‘significant injury’ to the lower riparian. This point has not been covered in the guidelines.
5. On similar lines, the guidelines basically take a macro view and do not seem to have a place for micro, local, bottom up process or democratic perspective.
6. The sharing should be only of what is available for sharing after the ecological functions of the river (in all its manifestation and catchments) are ensured. These would include the sustaining of wildlife, aquatic life and vegetation; the maintenance of the river regime and the capacity of the river to cope with pollution and regenerate itself; the maintenance of the micro climate; the support of the lives and livelihoods of people dependent on the river on both sides of the political or administrative border; the recharging of aquifers; the preservation of wetlands; the protection of the health of the estuary; and so on. This does not find mention in the guidelines.
7. Its very important to note here that groundwater is increasingly the main source of water for all sources and more and more areas. This is likely to remain the situation whether we like it or not. Under the circumstances, sustenance of rivers flowing all round the year with freshwater as one of the most important groundwater recharge mechanism is also important, both at intrastate as well as interstate level. This aspect should have found a key place in these guidelines.
8. An inter-State river is not a sequence of Statewise segments, it is one continuous flow, one integral whole as a hydrological/ecological system. Allocating so much of its waters to State A, so much to State B, etc, involves a segmentation – a chopping up – of the river. The ideal course would be a joint, agreed, integrated, holistic, harmonious use of its waters by all the basin States coming together. Any statement of sharing principles should begin with this recognition.
9. If a sharing becomes necessary, equitable sharing for beneficial uses must of course be the governing principle, and the Ministry’s draft says this in section 4.3.
The word ‘apportionment’ is best avoided because it suggests an imposition by a judicial or other agency. As mutual agreement is also possible, the word ‘sharing’ seems better. As contending States often argue on the basis of other principles such as ‘territorial sovereignty’ (the Harmon doctrine) or ‘prior use’ or ‘prescriptive rights’, the National Statement of Principles should not merely lay down the principle of equitable sharing but specifically rule out other principles such as those referred to above. Three, it is not enough to say ‘equitable sharing’; the words ‘for beneficial and justifiable uses’ must be added, because the sharing is not for non-use or waste.
The term ‘equitable sharing’ immediately leads to the question of what constitutes ‘equity’, and the draft has something to say about this. The Helsinki Rules enumerate a large number of criteria and leave the actual applicable criteria and the relative weights to be attached to each criterion to be determined in accordance with the circumstances of each case. These are missing here.
Thus, it is not clear how this equitable sharing will be applied and how it will get change with other principles like prior use, high economic value use, etc come in the picture. This principle has always been there, and in spite of such principles, in Maharashtra, a state with largest number of big dams, 70% of irrigation water gets used up by 2% land under sugarcane. Similarly while parts of Krishna basin is highly drought prone, over 3 billion cubic meters of water get transferred from that basin to the high rainfall area of Konkan while the downstream areas in the Krishna basin is severely drought prone. This is also applicable at interstate level as is clear from the reservoir filling methods applicable in all basins, where the upstream dams will release water only when they are full and till than downstream areas wont get any water, irrespective of if the downstream areas are in the same state or another one. So in absence of clearly defined publicly accountable mechanism to implement this principle, it is of little value.
10. Incidentally, one of the criteria, namely the ‘contribution’ of each BasinState, is a bit dicey. Can that fact give unfettered rights over that water to that state? If not what will limit those rights? This is because, the State that receives the precipitation also needs downstream state to provide drainage; it follows that by virtue of providing that crucial drainage the lower State also acquires a certain right over those waters. This factor is not mentioned here.
11. The upper riparian tends to assume a primacy of rights, and in any case has control over the waters, putting the lower riparian at a disadvantage. The upper riparian often talks in terms of ‘giving’ water to the lower riparian or ‘sparing’ water for the lower riparian. It is necessary for the Statement of Principles to make it clear that there is no hierarchy of rights; that all co-riparians have equal use-rights over the waters of the inter-State river; that the lower riparian has a right to the waters. If there is a hierarchy, than the hierarchy should be made clear and also how that hierarchy is going to be ensured in real situation.
12. One of the key issues that a statement of principles must deal with is the problem of sharing in a low-flow year. This is clearly recognised in the India-Bangladesh Ganges Water-Sharing Treaty 1996. However, the draft guidelines do not make this clear.
13. The upper riparian, in using the waters, must not cause ‘substantial harm’ (Helsinki language) or ‘significant injury’ (UN convention language) to the lower riparian. (The India-Bangladesh Ganges Treaty contains a ‘no harm to either party’ clause.) The draft guidelines must include this.
14. Under the law as it stands at present, the parties to an adjudication under the ISWD Act are the State Governments. A more inclusive approach seems desirable so as to allow water-users (agriculture, industry, citizens, etc), as well as those likely to be affected by the projects in dispute, to be heard in the adjudication process.
15. Data of all kinds needed for the purposes these guidelines (e.g. section 6.1.1) shall be freely shared by the States concerned and put in the public domain for the information of all without any restrictions on the grounds of confidentiality or secrecy.
16. Section 4.3 mentions that storage of rainwater shall not qualify as direct use of rainwater. However, there are many techniques that require local storage of rainwater and such local storage should not disqualify from being considered as direct user of rainwater. This may be modified to say that storage of water beyond a certain quantity at one place (say 1 million cubic meter) may not qualify as direct use of rainwater.
17. The guidelines are only pertaining to interstate water sharing. However, any such (non binding) guidelines should also include provisions for intra-state, inter-sectoral water sharing.
18. Section 4.8 is problematic as it does not define what “existing use” is. Is the use of water by fish, plants and nature “existing use”? Does it count? It seems the existing use is entirely anthropocentric, but in case of an ecologically embedded entity like water this may be seriously problematic. Secondly, it seems to recognise use only when done through projects approved through due process. But there is a lot of informal use of water (e.g. by tribals) that is beyond the project-generated use. Does it count? Thirdly it makes a strange distinction of preplanned use. Do we have well documented and well recognised pre plan uses of water? Fourthly, the use of phrase “Every effort shall be made to protect the existing utilization” creates serious doubts as it gives an escape route that nothing is sacrosanct.
19. Section 4.9.1 also raises serious suspicions since it says even where an existing interstate agreement has approval of all the basin states, it may still not be good enough before “national interests”. This is bound to raise suspicion of all the states.
20. Section 4.10.2 is also likely to raise suspicions as it reads: “In the process of water sharing/distribution, in consultation with the co-basin States, the Centre would take care of the water sharing/distributions required in the national interest… Any State affected adversely due to such sharing/distribution would be adequately compensated by alternative means.” This seems to give rights to centre that so far belongs to the state. As far as the interests of the ecology and environmental flows are concerned, centre has the powers under Environment Protection Act, 1986 and do not have to resort to such seemingly extra constitutional guidelines.
21. The presence of section 4.12 on interlinking further raises the suspicion that this whole effort is geared towards pushing such projects. This should have had no place in these guidelines.
22. In section 5.1b there should have been explicit mention of groundwater use and climate change implications on water use and availability.
23. In section 5.4b(i) it is not clear what is the basis for review after 40 years.
24. The whole guidelines have no place for people, and also has no value for transparency, accountability or participatory processes.
25. Conclusion This exercise may be redone with more open ended terms of reference and holistic way of considering water in nature and with greater faith in the people and democratic processes.
The Ministry should not rush through this. It should give more time for feedback, take up extensive consultation and make the draft available in regional languages.
Himanshu Thakkar (email@example.com)
 I have used some of the comments on this document by Shri Ramaswamy Iyer.