21 Legal Initiatives to protect and Regulate Ground Water

Dr. Sangeeta Taak

Introduction

• India has extensive groundwater resources and it is the largest user of groundwater globally.
• India abstracts about 25% of the total global water abstraction. Ground-water use helped to spur the Green revolution and currently provides 65% of irrigation
• .
• Over 80% of the rural and urban domestic water supplies in India are served by groundwater. It contributes to the base-flowing rivers and wetlands and supports terrestrial vegetation.
• The behavior of ground water in the Indian sub-continent is very alarming. It has a highly diversified geological formation. Studies carried out over the years have revealed that aquifer groups in soft rocks even transcend the surface basin boundaries. Broadly two groups of rock formations have been identified depending on characteristically different hydraulics of ground water, viz. Porous formations and Fissured formations.

1.1         Porous Formations:

Porous formations have been further subdivided into Unconsolidated and Semi – consolidated formations.

1.1.1     Unconsolidated Formations

The areas covered by alluvial sediments of river basins, coastal and deltaic tracts constitute the unconsolidated formations. These are by far the most significant ground water reservoirs for large scale and extensive development. The hydrogeological environment and ground water regime conditions in the Indo-Ganga-Brahmaputra basin indicate the existence of potential aquifers having enormous fresh ground water resources. Bestowed with high incidence of rainfall and covered by a thick pile of porous sediments, these ground water reservoirs get reloaded every year and are being used heavily. In these areas, in addition to the annual replenishable (reloaded) ground water resources available in the zone of Water Level Fluctuation (dynamic ground water resource), there exists a huge ground water reserve in the deeper passive recharge zone below the zone of fluctuation as well as in the deeper confined aquifers which is nearly unexplored. Although the mode of development of ground water is primarily through dug wells, dug cum borewell and cavity wells, thousands of tube wells have been constructed during last few decades.

1.1.2   Semi-Consolidated Formations

The semi-consolidated formations normally occur in narrow valleys or structurally faulted basins. For example, the Gondwanas, Lathis, Tipams, Cuddalore sandstones and their equivalents are the most extensive productive aquifers. Under favourable situations, these formations give rise to free-flowing wells. In select tracts of northeastern India, these water-bearing formations are quite productive. The Upper Gondwanas, which are generally arenaceous, constitute prolific aquifers.

1.2       Fissured Formations (Consolidated Formations)

The consolidated formations occupy almost two-third of the country. The consolidated formations, except vesicular volcanic rocks, have negligible primary porosity. From the hydrogeological point of view, fissured rocks are broadly classified into four types viz. Igneous and metamorphic rocks excluding volcanic and carbonate rocks, Volcanic rocks, Consolidated sedimentary rocks and Carbonate rocks.

1.2.1   Igneous and Metamorphic Rocks Excluding Volcanic and Carbonate Rocks

The most common rock types are granites, gneisses, charnockites, khondalites, quartzites, schists and associated phyllites, slates, etc. These rocks possess negligible primary porosity but develops secondary porosity and permeability due to fracturing and weathering. Ground water yield also depends on rock type and possibly on the grade of metamorphism.

1.2.2   Volcanic Rocks

The predominant types of the volcanic rocks are the basaltic lava flows of Deccan Plateau. The contrasting water bearing properties of different flow units controls ground water occurrence in Deccan Traps. The Deccan Traps have usually poor to moderate permeabilities depending on the presence of primary and secondary pore spaces.

1.2.3   Consolidated Sedimentary Rocks excluding Carbonate rocks

Consolidated sedimentary rocks occur in Cuddapahs, Vindhyans and their equivalents. The formations consist of conglomerates, sandstones, shales, slates and quartzites. The presence of bedding planes, joints, contact zones and fractures control the ground water occurrence, movement and yield potential.

1.2.4   Carbonate Rocks

Limestones in the Cuddapah, Vindhyan and Bijawar group of rocks are the important carbonate rocks other than the marbles and dolomites. In carbonate rocks, the circulation of water creates solution cavities, thereby increasing the permeability of the aquifers. The solution activity leads to widely contrasting permeabilities within short distances1.

2. Legislative Measures taken for the Protection of the Ground Water

    The Union Ministry of Water Resources has put up a Model Bill for Conservation, Protection and Regulation of Groundwater. This is a very important bill and needs the attention of every citizen of India, especially the 33 million or more borewell users extracting around 250 cubic km. of water from the ground.

The bill seeks to move groundwater away from the Easements Act as a private property resource to a Common Pool Resource. The State will hold groundwater as a resource in public trust.

In the true spirit of decentralization and the principle of subsidiarity, it seeks to empower Gram Panchayats and Nagar palikas through a process of Gram Sabhas and Ward Sabhas to develop management plans for groundwater use in public domain and through people’s participation and approval.

2.1 Some of the objectives of the Bill include:

The main objective of the Bill is to ensure the fundamental rights which are enshrined under the Constitution of India under Article 21. It says that everyone must have a right to life and it includes the clean water as well. The other objectives are to meet food security, livelihood and basic human needs etc. The brief objectives of the Act are mentioned as under:

1. Ensure the realization of the fundamental right to life through the provision of water.
2. Meet food security, livelihoods, basic human needs, livestock and aquatic life.
3. Protect ecosystems and their biological diversity.
4. Reduce and prevent pollution and degradation of groundwater.

2.2 Measures taken to control Ground Water Depletion

2.2.1    Rain Water Harvesting: Circulation of a Model Bill, by this Ministry, to all the States/UTs to enable them to enact suitable ground water legislation for its regulation and development which includes provision of rain water harvesting. So far, 15 States/UTs have adopted and implemented the ground water legislation on the lines of Model bill.

2.2.2    Conservation Measures: The Ministry of Drinking Water & Sanitation has suggested all States to adopt water conservation measures like roof top rainwater harvesting, erecting sustainability structures for water conservation etc. For creating such sustainability structures, 10% of National Rural Drinking Water Programme (NRDWP) funds are provided to the States.

2.2.3     The Environment Protection Act, 1986: Central Ground Water Authority (CGWA) has been constituted under “The Environment (Protection) Act, 1986” for the purpose of regulation and control of ground water development and management in the Country. So far, CGWA has notified 162 areas in the Country for the purpose of regulation of ground water.

Promote Measures to adopt artificial recharge to Ground Water: : CGWA has issued advisories to States and UTs to take measures to promote/adopt artificial recharge to ground water / rain water harvesting.

2.2.5    Community Participation: CGWB has taken up Aquifer Mapping and Management programme during XII Plan, under the scheme of Ground Water Management and Regulation. The Aquifer Mapping is aimed to delineate aquifer disposition and their characterization for preparation of aquifer/area specific ground water management plans, with community participation.

2.2.6     Jal Ki Kranti Abhiyaan: MoWR, RD & GR has also launched ‘Jal Kranti Abhiyan’ (2015-16 to 2017-18) in order to consolidate water conservation and management in the Country through a holistic and integrated approach involving all stakeholders, making it a mass movement.

3. Legislation in India related to Under Ground Water

During the ancient India, Britishers had a great influence. It can be seen through various legislations as well. In India the influence in laws can be seen in Common law which considered groundwater as part and parcel of the land. The legal consequence of the common law rule is that the owner of the land could dig well(s) in his land and extract as much groundwater he can or wants. The land owner was not legally liable for any damage caused to water resources of his neighbor as a result of his over extraction. It was not a matter even if he has over-exploited groundwater with an intention to cause injury to neighbours’ wells. This legal principle could be seen in some laws dealing with land rights, for instance, the Indian Easements Act, 1886. This principle was also endorsed by courts during pre-independence period2.

3.1 Common Law Principle: Common law principle is still a part of groundwater law in India. It will remain as a part of groundwater law until and unless state governments make separate groundwater laws. The applicability of common law principle on groundwater is being discussed even now3.

3.1.1. Kesava Bhatta v. Krishna Bhatta case: Common Law Principle on Groundwater in the case of Kesava Bhatta v. Krishna Bhatta, Chandra Shekhara Aiyar j, held that: “the general rule is that the owner of a land has got a natural right to all the water that percolates or flows in undefined channels within his land and that even if his object in digging a well or a pond be to cause damage to his neighbour by abstracting water from his field or land it does not in the least matter because it is the act and not the motive which must be regarded. No action lies for the obstruction or diversion of percolating water even of the result of such abstraction is to diminish or take away the water from a neighbouring well in an adjoining land.

3.1.2 Plachimada Coca-Cola Case – The Plachimada panchayat, which had granted an exploitation license to the Coca Cola Company, decided not to renew it because of the lowering of the water table and decreasing water quality. The Panchayat also ordered the closure of the plant on the ground that over-exploitation of water by the Company had resulted in acute shortage of drinking water. The company challenged the authority of the Panchayat before the High Court of Kerala. The major legal issue was the right of a landowner to extract groundwater from his land and the power of the Panchayat (or local bodies in general) to regulate the use of groundwater by private individuals.

The Single Judge observed that even without groundwater regulation, the existing legal position was that groundwater is a public trust and the state has a duty to protect it against excessive exploitation. The judge also made a link between the public trust and the right to life and thus recognized that a system which leaves groundwater exploitation to the discretion of landowners can result in negative environmental consequences. However, on appeal, the Division Bench asserted the primacy of landowners’ control over groundwater in the absence of a specific law prohibiting extraction. The issue is now pending in the Supreme Court.

The decision may be in someone’s favour. But the question remain the same and that is if we extract the underground water and exploit it limitless. A day will come when we shall not be having a water to drink.

Perhaps due to the continuous push from the central government, some state governments have come forward to make separate groundwater law. The states of Andhra Pradesh, Goa, Himachal Pradesh, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh and West Bengal, and the Union Territories of Lakshadweep and Pondicherry, have introduced laws to regulate and conserve groundwater resources.

Although we have discussed various objectives and measures to ensure the protection of ground water and judicial approach towards it. However, we have various challenges before us in order to implement all these measures. The major challenge is the overuse of the water due to overpopulation and exploitation of water resources etc. the major challenges are mentioned as under:

4. Challenges for the Sustainable Management of the Groundwater

One of the biggest challenges for sustainable management of groundwater comes from overexploitation and overuse, beyond the annual recharge. The other comes from pollution, from natural mineral occurrences such as with fluoride and arsenic and with man-made sources such as industrial effluents, fertilizers and sewage. To combat this, the Act proposes the demarcation of ‘groundwater protection zones’ based on the latest dynamic resource assessment of the Central Groundwater Board and State agencies and the mapping of aquifers and sub-aquifers, a process which is ongoing. This then will lead to the development of a groundwater security plan which through a process of recharge and demand management will result in attainment of sufficient quantity of safe water for life and sustainable livelihood and ensuring water security even in times of drought and floods. For the institutional framework, the Act sees the setting up of a groundwater sub-committee under the village water and sanitation committee by the Gram Panchayat. This will be supervised by a Block Panchayat, which will consolidate the groundwater security plans of all Gram Panchayats in its ambit.

In urban areas, the Model Bill envisages the setting up of ward groundwater committees which will plan, approve and facilitate the implementation of Ward Groundwater Security Plan. This will be overseen by a Municipal Water Management Committee.

On top of these layers will be a District Groundwater Council and State Groundwater Advisory Council to appropriately integrate and take decisions at their scale.

5. Conclusion

The Model Bill seeks to place certain responsibilities on the groundwater user: for example, its efficient use, its prevention from pollution, replenishing and recharging groundwater.

For industrial users there are several checks and includes the recommendation to charge for groundwater use. While the bill has been drafted with care and is comprehensive, yet it is at a draft stage and will need several inputs, especially from industrial users of groundwater and those in the peri-urban areas. It is unlikely that the bill will work in urban areas, being extremely idealistic in its assumption of the existence and capabilities of local governments. This holds true for gram panchayats too.

Eventually the bill will need to be adopted by States and will be modified based on their local conditions, institutional, legal and governance related as well as aquifer related differences.