Response on Draft Water Framework Law Bill 2013 of India.

Dear Friends/Co-sailors,

Greetings from Water Initiatives Odisha (WIO) !

As you may be aware the Ministry of Water Resources (MoWR) at the Govt. of India has circulated a Draft National Water Framework Law Bill for public comments.  The document is available at http://mowr.gov.in/writereaddata/linkimages/nwfl1268291020.pdf.

I have prepared my preliminary broad comments on the Bill and sharing with all of you.  WIO is in the process of compiling a detailed response to this.  In fact we also are discussing with other concerned groups and individuals in this regard and would be sharing the developments as they happen.  

My response, besides responding to the Draft in a general note, also has certain immediate demands to be made to the MoWR that includes extension of the commenting period, putting relevant documents in public domain and make it more participatory among other things.  

Hope to receive your response and feedback on my response and also requesting you to comment on the draft and send it to the MoWR.

Thanks again,

With regards,

Ranjan

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Response on Draft Water Framework Law Bill 2013 by Ranjan Panda

The premise is incorrect, and the draft bill is lacking in many ways

To understand any such draft document one needs to understand the premise on which it has been set.  To me, the Draft Water Framework Law bill has been set up on a wrong premise and has set a wrong precedence.  The prescriptions have biases common with that of the National Water Policy 2012 that talks about making water a tradable commodity, promoting corporate grabbing of water and lacks a holistic approach.   Detailed comments follow:

Set up on a wrong premise?

The very way the draft has been prepared should be a matter of concern.  During formulation of the 12^th Five Year Plan, a Sub Group was formed to draft a National Water Framework Law.  This was headed by Prof. Ramaswamy R. Iyer.  This sub group, as part of the working group on Water Governance, should have ideally fed to the National Water Policy as well.  The Water Policy recognized the long pending need of a framework law that is supposed to be an “umbrella statement of general principles” in governance of the increasingly scarce water resources but resulted in formation of another committee under leadership of Dr. Y. K. Alagh.  This new committee’s report therefore comes with biases of the new Water Policy, naturally.

Iyer has been a leading advocate for such a Framework Law and the report his committee provided (can be found at:ftp://ftp.solutionexchange.net.in/public/wes/cr/res-27061301.doc)  was a thoroughly drafted relevant document.  It needed discussion and improvement, as do all other such reports.  Ideally therefore Iyer Sub Group’s report should have been circulated in public domain and the process of formulation of the Framework Law taken forward.  By formulating another committee the government has not only wasted public money but set a wrong precedence.

Taking a clue from the ToR of Alagh committee the government’s justification of not going with Iyer report was that the Iyer sub group draft stipulated ideal propositions but lacked stipulations for actions by Central/States Governments and that it was mostly a statement of principles.  A framework law can only be a statement of principles as water is a State subject and such a law has been conceived only to bring in a common understanding and cohesion among all states for overall water resources management in the country.  One is therefore forced to say that the government had some hidden agenda in going for another committee.  This also makes one believe that decisions are taken by the Ministry and not the people of the country.  And we can apply some of the common biases of the National Water Policy itself which has, for all practical purposes, prompted the need for this Law.  The first of such biases is to consider Water as a tradable commodity after a minimum amount of entitlement is provided to each citizen of the country.  This not only neglects the ecological importance of water but also the need of water for ecology.

In a country like India, where we have struggled to adhere to pollution control norms and environmental clearance norms despite of having stringent regulations, it would be too much to believe that such biases would favour social justice and welfare.  This law should not work as another tool to favour the big and blatant water abusers like corporate houses, industries and the urban rich.  The proposed Law, which is just a framework law and is much needed for the country, should also have clear cut means to ensure water to water itself for its ecological value to be respected and sustained.  This is no ideal prescription but the need of the hour.

The introduction speaks its lacunae

Before coming further on the process and the document, it is worth looking at the introduction chapter of the draft.  I am surprised to see that the draft, in its introductory note, weighs management of ground water than that of surface water.  It says, “Therefore, water, particularly, groundwater, needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all.The fact that surface water is also stressed beyond limit should not be played down.  This sounds like resigning to the fate of our surface water; or one could say it supports the obsolete and devastating idea of creating vast storage of surface water through more large dams.  A law is a law and it should not begin with such bias.  The law must recognize that water scarcity is more of a man made crisis at the moment and its solution does not only lie in regulating the existing resource but working towards recovering and recharging what we have lost or about to lose.  Or else no law, whatsoever strong it is in its prescriptions, can save this country from water scarcity led conflicts, chaos and feuds that may lead to complete anarchy.

Coming back to the way the law has been formulated, I would say that the govt. of India has set a wrong precedence by not taking the discussion forward from the Iyer report.  The proper way should have been to put the Iyer sub group report in public domain with special efforts to ensure participation of large number of people of the country in debating this.  The MoWR could have added its own reactions to this report while circulating the Iyer report for others to view and comment.  Then it could have organized consultations in each region of the country and this process could have been facilitated by the current committee if there was a need.

So this draft bill is set on a wrong premise and calls for a larger debate on the arbitrary way the MoWR works.  Further, the consultations have been so limited and cannot be termed as even bare minimum considering the vast implications this proposed Law is going to have on the country’s water governance principles and structures.  And ironically, contrary to what the ToR of Alagh committee says, there have not been any consultations with state governments and no efforts seem to have been made to make the draft building process consultative.

The immediate need therefore is to:

1. Put both the drafts (Ramaswamy Iyer sub group report and the current Alagh Committee Report) in public domain for discussion.  It would be good to have a group of experts to come out with a comparative analysis of both the drafts to go along with these drafts for creating a participatory and proper discussion.
2. The MoWR should immediately organize at least one consultation in each state, in collaboration with the state governments, on these drafts and the analysis.
3. In these consultations steps should be taken that all sections of the people are properly represented.  Most importantly the local self-government representatives, Members of Legislative Assemblies, Members of Parliaments, representatives from civil society, officials of      all departments related to water, agriculture, industries, urban development, etc.
4. And for the above process the MoWR should take more time.  Just putting one draft on the internet and seeking comments within a month is grossly inadequate and uncalled for.
5. The draft bill says it had four consultations.  The MoWR should provide the pubic with the detailed minutes of all these meetings.  This will help us understand what suggestions and feedback came in the meetings, what was incorporated and what was not. 
6. I am personally surprised that the minutes of the Colloquium has not been provided.  I participated in this meeting and had raised several critical issues on the Draft.  The MoWR should therefore immediately circulate the minutes. 

Other Comments:

The Bill needs to be further inclusive in analysing the issues and challenges; and has to come up with ideas that are visionary and not just prescriptions to tackle the present scenario.

1. It would also be important to know what makes the Alagh committee talk about ensuring a minimum of 25 liters of water to all.  What is the basis of this calculation?  The Govt. of India has a higher stipulated rate for each individual.  Is it an indirect admission that the Govt. has failed to provide the minimum requirement?
2. The need for ensuring water for livelihood to water dependent communities such as farmers and fisherfolks should be clearly emphasized in the policy.  The riparian rights should be clearly defined and mechanisms mentioned to ensure this.
3. The bill should talk about maintaining free flowing rivers with their ecological restoration and revival rather than talking about maintaining minimum ecological flow.  When the framework law and water policy all are geared up for proper management and governance of the water resources, what makes the Alagh committee believe that the rivers will not be able to maintain even minimum flow?  This is a serious point to ponder and again sounds towards resigning to fate.
4. The bill has underplayed the water extraction by industrial and corporate houses.  It rightly points out urbanization as one of the water guzzlers but does not mention that indiscriminate industrialization, mining, thermal power plants and other such so called development that happens for promoting the current economic growth model, urbanization and resultant life styles. 
5. It talks that "access to safe water for drinking and other domestic needs still continues to be a problem in many areas”.  It should include ‘water for livelihood for communities/people whose livelihoods are primarily dependent on water’.
6. It mentions that ground water is considered as a private property and hence misused.  Further, it talks about the problems with regard to fragmented approach in water management.  It should also talk that the centralized structures of water storage and management through large dams have also created whole lot of problem in this country and have in fact not only led to aggravated flood conditions, unsustainable irrigation systems but also negatively affected the traditional irrigation systems that promoted decentralized water conservation and management and are more sustainable.  In fact, the proposed Framework Law should be proposing community rights over surface and ground water resources and towards devolving power of water governance to local bodies and community institutions with supporting hands provided by respective departments. 
7. The draft bill says, “grossly inadequate maintenance of existing irrigation infrastructure has resulted in wastage and under-utilization of available resources. There is a widening gap between irrigation potential created and utilized”.  In fact this sentence should also include that large scale dam and irrigation projects have themselves been wrong steps and hence small and decentralized irrigation systems should be promoted for helping irrigation projects of this country in optimal utilization of water in an ecologically sustainable manner. 
8. I support the draft when it says Rivers and other water bodies are highly polluted by industrial and urban pollutants and that they have been encroached upon.  The proposed Law should have clear cut prescriptions for freeing water resources from all these encroachments and recommend for bringing in a special Act for River Conservation and freeing flood plains as well. 
9. The assessment of the situation by the draft Bill when it says “low consciousness about the overall scarcity and economic value of water results in its wastage and inefficient use” needs to be restructured.  Mere economic value of water will never help so long the rich and powerful of this nation keep abusing the water resources in the name of ‘development’.   What the country now needs is to understand the ‘ecological value’ of water and that can never be quantified in monetary terms.  Rather, calculating water’s value in ‘economic terms’ contradicts the basic principles of sustainability as because the small chunk of rich and powerful would never bother about a ‘fine’ of ‘fee’ for the abuse of this vital life-giving resource.  While it is essential to fix price for industrial and other such use (that is not vital life and livelihood use) and charge penalties for abuse and illegality, this should no way undermine the fact that water is an ecological resource and ‘fee’ or ‘penalty’ should not justify the use, abuse and misuse.  Water resources planning must be based on ecological impacts assessments at the basin and sub basin levels and a ‘limit’ to extraction should be drawn.  Commercial pricing, as experience suggests so far, does not stop misuse or abuse.  So, the awareness should be on ‘ecological value’ of the water more than the limited ‘commercial value’ it has in some aspects of use.
10. The draft raises concern saying, “the public agencies in charge of taking water related decisions tend to take these on their own without consultation with stakeholders, often resulting in poor and unreliable service characterized by inequities of various kinds”.  This is very true and the Alagh committee itself should regard this as a principle for itself.  This draft needs to be put in for wider discussion with all sections of people.  As already mentioned, the committee did not really have any wide scale consultations.  It had four meetings with select participants and there was no effort made to reach out to large sections of the country. 
11. The draft says, “characteristics of catchment areas of streams, rivers and recharge zones of aquifers are changing as a consequence of land use and land cover changes, affecting water resource availability and quality”.  In my opinion, it should mention specifically that industrialization, mining and urbanization are majorly responsible for this.  This will make the concern stronger.
12. In fact the draft overlooks (I think very deliberately) the impacts of mining, industrialization and power plants (the three major contributors to water scarcity and contamination now and destined to grow still faster and major in future years) on water availability and quality.  That’s why under point 2.2 (viii), under basic principles, the draft says “ Given the limits on enhancing the availability of utilizable water resources and increased variability in supplies due to climate change, meeting the future needs will depend more      on demand management, and hence, this needs to be given priority, especially through (a) evolving an agricultural system which economizes on      water use and maximizes value from water, and (b) bringing in maximum efficiency in use of water and avoiding wastages”.  In fact, keeping in mind the growing urbanization and industrialization the country faces now, in which more than 50 per cent of people will shift to urban areas and industrial need of water would surpass all other needs shortly, the first thing this draft should have talked about is bringing efficiency in industrial sector.  And most importantly drawing a limit to extractive industrialization that would put the ecology into so much of imbalance that water availability would be difficult, let alone management.  A country whose freshwater availability has reduced by about 80 per cent in last 60 years cannot afford to let loose such eco-destructive industrial and urbanization growth.  Each law and policy that this country formulates at this crucial juncture of time must realize, recognize and emphasize this in clear cut and strong terms.  The draft bill, as the water policy, fails in this count miserably. 
13. The draft fails to recognize water as an ecological resource.  The common principles of water management, as drawn by the water policy, that the draft recognizes talks about social justice and equity in water allocation.  Water allocation has to have ‘ecological equity’ as humans alone don’t have a right over water.  Supporting the principle of ‘minimum ecological needs’ exposes the lack of vision in the Draft Bill.  The national water policy lacked this vision but a proposed law that is supposed to be a guiding framework, can’t afford to do this. 
14. The draft also lacks in analysing the current and potential water conflicts and chaos in the country.  The role of indigenous knowledge and special sections of people such as women, indigenous communities etc. in water harvesting and management needs to be clearly recognized and mechanisms prescribed to integrate those in the planning of water management.  Water cannot just be planned as a hydrological matter where Engineers and Bureaucrats decide its fate.  Water planning has to properly integrate social, cultural and ecological issues and principles.  The draft Bill lacks in all this. 
15. To no one’s surprise the draft Bill believes in an engineering approach to control disasters.  This has to be changed as engineering solutions to disasters have miserably failed in this country, and in fact have caused more disasters.  There should be emphasis on river basin management in ecological approaches and the draft should give special emphasis on flood plain zoning, revival of rivers and surface water bodies and the related ecological aspects. 
16. The Water Users Associations(WUAs) on which the draft Bill lays emphasis when it comes to participatory water resources management are not a success in this country.  They have mostly been undemocratic bodies with lot of political and bureaucratic control of the powerful sections.  This needs to be thoroughly studied and understood before giving such prescriptions.  The role of Panchayati Raj Institutions and other local bodies including indigenous institutions should also be emphasised.  As such also most of WUAs in this country have been formed under the designs prescribed by alien authorities such as World Bank and Asian Development Bank.  So, the draft should have a clear stand on institutions which will be promoted as ‘water conservation and management institutions’ that are formed on democratic principles, in transparent manner and free from the bureaucratic and engineering clutches.  The people of the nation should be the managers of its water.  Government institutions should only play the facilitation role. 
17. Water Information should be up to date, transparent and freely accessible to all citizens of India.  The current way of controlling information, even though this draft, is unacceptable. Further, the draft is silent on improving data quality that is a vital component in planning water resources and governance
18. The Water Regulatory Authorities (WRAs) in their current forms are structures that are going to give more power to the water bureaucracy and related people.  The draft should therefore make a proper assessment of the working of the WRAs where they exist now, especially Maharashtra where these have not been successful.  Further, role of World Bank, ADB and other external financial institutions in promoting Regulatory Authorities in India should be done away with. 

A Water Framework Law for a federal country like ours which is already a water stressed nation, has to be idealistically visionary and practically implementable.  The Iyer draft had such a framework and needed further discussion for sharpening.  However, that was unfortunately rejected and a new committee was formed only to land up in a more lacking draft.    The National Water Policy called for a Framework Law perhaps because veterans like Ramaswamy Iyer had been lobbying for one.  However, when time came to really draft such a Law, the MoWR failed to take cognigence of a better draft for reasons they have not been able to justify properly.  The Iyer Committee had a much better stand on water as an ecological resource and tried to give a better vision on how to manage water resources of this country through such guiding principles.

I immediately urge upon the Govt. of India to give more time to debate on these drafts and to take responsibility in facilitating such discussions with all state governments and people from all sections of the society throughout the country.

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