The National Green Tribunal and Suggestions on the Conservation, Protection, Regulation and Management Of Groundwater

The National Green Tribunal and Suggestions on the Conservation, Protection, Regulation and Management Of Groundwater.

By

Dr. Yashpal Singh

Formerly Director Environment, Govt. of U.P. and Member, Expert Appraisal Committee,INFRA.II, MoEF&CC, Govt. of India

THE UNDERSTANDING

The Need

India is fast moving towards a crisis of ground water overuse and contamination resulting in severe depletion of ground water resources and consequent stress on competing water uses including the provision of Water for Life. In India, the availability of surface water is greater than ground water. However owing to the decentralized availability of ground water, it is easily accessible and forms the largest share of India’s agriculture and drinking water supply. 89% of ground water extracted is used in the irrigation sector, 9% for domestic purposes and 2% industrial. Enormous quantities of ground water loss as a result of dewatering for mining, industry and other infrastructure projects are also areas of concern. Ground water use is to be regulated .

On the intent of the Honourable NGT.

1. The Honourable National Green Tribunal in its orders passed on 03-01-2019 in OA No. 176/2015, (M.A. No. 1332/2015) and other connected matters has in paragraphs 29-33 directed the constitution of an expert Committee to examine the issue of appropriate policy for ground water. The Committee has been directed to submit a report before the Honourable NGT within two months of the order. The committee is also expected to indicate the projection of its impact study in light of projected data for the next 50 years (in phased manner with action plan for each decade). The MoWR has been directed to issue fresh guidelines, thereafter.
2. As per these directions of the Honourable NGT, the Ministry of Water Resources would be initiating the process of issuing fresh guidelines once the committee report has been finalized and the action plans have  been drawn up by the committee as directed by the Honourable NGT.
3. The Honourable NGT vide its orders dated 15-04-2015 in O.A. Nos. 204/205/206 of 2014 has issued directions to the Authority to ensure that any person operating tube well or any means to extract ground water shall obtain permission from the Authority and shall operate the same subject to Law in force, even if such unit is existing unit or the unit is yet to be established.  By referring to the user as “Any Person”, this order has emphasized the need to  regulate all users/any person extracting ground water, (through tube well or any means). The guidelines to be drawn up, therefore, should include regulation and adequate procedures for all users. It also says that the existing unit or a unit yet to be established shall operate subject to the law in force. Therefore, the guidelines should aim at regulation across the board and also till such time as law in this regards is not enforced and the proposed guidelines put in practice, the existing users should be allowed to continue subject to such safe guards as may be prescribed by the Honourable NGT or by the CGWA. New users can be regulated on merits depending on the current classification of the area.
4. The Honourable NGT at para 3, Page 330 of its Judgement delivered on 13-07-17 in the Ganga Matter, has issued the following directions “We direct that no person shall be permitted to extract ground water for industrial and commercial purposes unless it has obtained permission from CGWA. The CGWA should also regulate extraction of ground water for agriculture and other purposes as per state policy. The permission shall be granted subject to such terms and conditions as may be necessary for the purpose of preventing and controlling the pollution on one hand and ensuring maintenance of depletion in the ground water projects as well as ensuring measures for recharging of the ground water levels. ”
   1. The Honourable NGT has also directed the CGWA, at page 331 in the same judgement, to carry out a study and notify the areas in segment-B of Phase-1 which are overexploited, critical, semi critical and safe zone. There shall be a complete prohibition on extraction of ground water in the critical areas. Further, in relation to other two areas, the CGWA shall also publicize the fundamental conditions subjects to which the extraction of ground water would be permitted and the extent thereof and if necessary would require people to fix flow meter who are using the Bore well or take well for extraction of water.
5. At para 15, page 472, the Honourable NGT further goes on to direct that, “All the industrial units falling on the basin/catchment areas of river Ganga and its tributaries should not be permitted to indiscriminately extract ground water. Extraction of ground water should be subject to the CGWA granting permission for such extraction, and that too, only after ensuring that such permission is granted after rigorous water use assessment by the industry, water reuse and recycling methodologies adopted by the industry and also subject to the rain water harvesting measures adopted by the industry and monitored by the CGWA. The Flow meters must be installed prior to the grant of such permissions. Every industry should be directed to pay for extraction of such water that too, subject to the conditions stated in the order permitting such extraction”.
6. Page 330, para 3 13-07-2017 ‘We direct that no person shall be permitted to extract ground water for industrial and commercial purpose unless it has obtained permission from CGWA. The CGWA should also regulate extraction of ground water for agriculture and other purposes as per state policy.

While the orders of the Honourable NGT as above apply to segment B of phase-1, yet, accepting the importance of the orders in conservation of ground water on a pan India basis, the following principles seem to evolve which may be important in formulating the prescriptive guidelines/regulation.

1. No person should extract ground water for industrial and commercial or other purposes unless it has obtained permission from the CGWA.
2. Extraction of ground water for agricultural and other purposes should be regulated as per state policy.
3. All users should ensure harvesting and recharge as applicable.
4. The CGWA should carry out a study and notify the areas which are over exploited, critical, semi critical and safe and thereafter there should be a complete prohibition in the critical areas.
5. Industries should not be permitted to indiscriminately extract ground water.
6. Every industry should be directed to pay for the extraction of such water.

In view of the above it is understood that any guidelines that may be drawn up or any decision to prohibit ground water abstraction should be only taken once the CGWA has carried out a study on the current status of ground water development and notified the areas in each category. This is also important because ground water recharge and development are dynamic issues and the areas may change with time. Further, since the Honourable NGT has intended to only regulate indiscriminate use of water, the existing industry, in any area, should be allowed to continue to use ground water subject to the proposals being in accordance to the NGT requirements of recycle, reuse, recharge and conservation fee and any such demand side initiatives as the CGWA wishes to impose in consultation with the Pollution Control Boards.  The charges for conservation could in the interim period be fixed at the Capital cost and annual recurring cost of recharging the prescribed quantity of rain water within the same area.

It is also felt that regulation should be across the Board as regulating only industrial use may not have the desired impact on the overall ground water crisis. Regulation should also consider the state policies.

Indias Ground Water Use

1. It is beyond doubt that India is fast moving towards a crisis of ground water overuse and contamination. In India, the availability of surface water is greater than ground water. However owing to the decentralized availability of ground water, it is easily accessible and forms the largest share of India’s agriculture and drinking water supply. 89% of ground water extracted is used in the irrigation sector, 9% for domestic purposes and 2% industrial. We tend to forget here the enormous quantities of ground water loss as a result of dewatering for mining, industry and other infrastructure projects.

This also calls for a targeted approach. By merely setting tough guidelines for industries which use only 2% of the ground water extracted the crises cannot be overcome. We have to see beyond and as rightly pointed out by the NGT, all users have to be covered through a system of authorization and incentives/disincentives. Like the Pollution Control Boards, we should not end up as being there only for Industries and not caring enough for the other sectors. The huge, inequitable costs on Industries will create additionalities which will finally get transferred to the product and the consumers most of whom may be so poor as not to be in a position to sustain the increase in costs. Conservation fee should be rational.  Cost of conservation rather than Capacity to pay should be the criteria . Mitigation of water loggings should also be  a concern.  

 The States and Water Conservation

Water Falls under the State list. Model bills have been drawn up by the Ministry of water resources in 2016. The states should be asked to enact their own laws. Goa, Lakshadweep, Kerala, Pondicherry, West Bengal, Himachal Pradesh, Bihar, Chandigarh, Jammu and Kashmir have enacted legislation on the lines of the Model bills suggested earlier. It is therefore suggested that the guidelines be examined in terms of the latest Model Bill and related enactments and suggestions given to the State Governments for inclusion in these laws and procedures as applicable. U.P. has also introduced the Uttar Pradesh Ground Water (Management and Regulation) Bill, 2017. Till such time, existing units should be allowed to continue and new units considered on merits through a decentralized machinery at the State Level. The Model Bill has introduced many provisions which are common, in intent, to the draft notification of 12-12-2018 of the CGWA.

The  Model  Bill For The Conservation, Protection, Regulation And Management Of Groundwater, 2016, Draft Of 17 May 2016

1. One of the basic thrust areas behind the Governments intent to protect, conserve and regulate ground water is to ensure that the fundamental right to live is realized through the provisions of “Water for Life”. The model rule drafted in 2016 by the MoWR does not include irrigation water as ‘Water for Life’. It does, however, aim at conservation to provide water also to meet food security, livelihoods, basic human needs and the needs of live stock and aquatic life and in this connection places all needs at par which interalia point to a need for uniform conservation strategies and practices.    
2. While every person has a right to sufficient quantity of “Water for life”, such quantity has to be determined by the appropriate Government (The State Government and its various agencies as may be prescribed). This would indicate that regulation of this resource has to be done at the State Government Level.
3. It is also the Government’s intention to allow the use of ground water in such a way so as not to adversely affect the realization of any other persons fundamental right to safe “water for life”.
4. Section 5 of the Bill is very clear in stating that “every person shall have access to ground water without any discrimination, including among others caste, creed, religion, community, class, gender, age, disability, economic status, land ownership and place of residence.” This reflects that the regulatory regime should ensure no discrimination in its efforts for the provision of water and should not target any particular group.  
5. Section 6 also states that different conservation, regulation and management measures may be used in different parts of the state in accordance with the availability of ground water.
6. Section 7 suggests an EIA and SIA on uses of ground water likely to have severe negative impacts on local sources of groundwater.
7.  Section 9 provides that the use of ground water by any person on their own land should not deprive other persons of their right to groundwater for life, in case these persons are dependent for their water on the same aquifer. Pricing will be justified only if the cost recovered is utilized in restoring this very right.
8. Section 11 provides for the demarcation of Ground water protection zones and their notification by the State Government.
9. Section 19 provides that every person is entitled to use ground water for meeting livelihood needs   so long as it does impact the right to water for life of any other person. It also provides for the following:
   • Major and medium Irrigation projects would need an authorization and levy of water charges.
   • Water intensive cash crops shall be discontinued in ground water protection zone-2.
   • Water user associations   may levy and collect water charges.
   • All industries and infrastructure projects using 10 KLD or more or water agencies supplying water (Govt or Pvt.) will need an authorization.
10. Section 21 provides that Industrial or bulk ground water abstraction shall be priced and that the funds would be used for G.W. conservation and augmentation. It also makes a provision of an annual water audit beyond prescribed limits.

THE SUGGESTIONS

Based on the problems, the intent of the NGT and the recommendations of the Model Bill as above, the following suggestions are being made.

1. Water Falls under the State list.  A Model bill has been drawn up by the Ministry of Water Resources in 2016. The States should be asked to enact their own laws. We may additionally like to draft  rules and notify them under the E.P. Act 1986 or suggest model rules also in addition to the Bill as above for the States to follow.
2.  Since the Honourable NGT has directed that the provision of permissions would apply to each person operating tubewells or any means to abstract ground water  and also that the CGWA should also regulate extraction of ground water for agriculture and other purposes as per State Policy, therefore abstraction  should be regulated  across the Board either through each user  being covered individually under the provision of permissions and charges or being covered  through agencies (Government or otherwise) abstracting ground water (even when engaged in providing ‘water for Life’.
3. Although the NGT, in its orders of 13-07-2017, has directed that every industry should be directed to pay for extraction of such water, yet taking into consideration that industrial use is just about 2% of total ground water abstraction, payment for extraction should be extended to other users also for an effective control and also to act as a deterrent for a very wasteful  consumption in other sectors. By merely setting tough guidelines for industries which use only 2% of the ground water extracted the crises cannot be overcome. We have to see beyond and as rightly pointed out by the NGT, all users have to be covered through a system of authorization and incentives/disincentives. Like the Pollution Control Boards, we should not end up as being there only for Industries and not caring enough for the other sectors. The huge, inequitable costs on Industries will create additionalities which will finally get transferred to the product and the consumers most of whom may be so poor as not to be in a position to sustain the increase in costs. Conservation fee should be rational.  Cost of conservation rather than Capacity to pay should be the criteria 

• Since the guidelines are expected to have a ‘Pan India’ applicability, the State Governments and their existing State Policies, laws and procedures need to be consulted and dovetailed to the proposed guidelines which as suggested earlier could be then sent to the State Governments for inclusion in their procedures. Some States already have a law and a  system of authorizations and costs.
• With the directions of the NGT throwing up huge workloads and an immense responsibility of permissions, collection of charges, physically utilizing the funds and providing for water recharge etc. it would appear feasible to decentralise the regulatory functions and delegate them to the State Agencies responsible for ground water development or as may be considered proper as has been done in the case of Environmental Clearance by the constitution of  Central and State level regimes.
•   Since the orders of the Honorable  NGT as passed on 15-04-2015 are very clear and direct that each person has to seek a clearance therefore the guidelines should in no way suggest exemption of any class of users from the provision of permissions. In the Water (Prevention and Control of Pollution) Act 1974 the onus is on each person to comply with provisions.  Here the local bodies have the responsibility to comply with the provisions for residents within their areas of operation. The Water Cess Act 1977 was also an identical provisions where the local bodies had to pay Water Cess for Water use by residents in their areas. A similar provision could be introduced in the guidelines where each abstraction is covered but through pragmatic management options.
• Individual households should in no case be permitted to use mechanized and energised means of abstraction of ground water within the jurisdiction of local bodies entrusted with the responsibility of water supply even if there is no further water available with the local body.It is for the Local body to augment its resources and thereafter supply within the ambit of its water budget as permitted by the CGWA.   This will safeguard sustainable growth as it will be a deterrent in the indiscriminate abstraction of ground water even in areas where local bodies can supply water or in areas where, inspite of the infrastructure, there is no water.
• Local bodies, responsible for supplying water should necessarily certify for each new user (irrespective of user) that they have sufficient ground water reserves in their area to sustain the development and they have permission to commit the supply.
• A system needs to be introduced to maintain a coordination between the Local Bodies (Demand) and the CGWA(Supply) and realize that the local body is not the supplier. The supplier is the CGWA on behalf of the people and all distribution should be based on this supply(OCS).
• The agriculture sector is the single largest consumer of ground water.  Indiscriminate and wasteful use of Ground Water by farmers has been repeatedly reported.  With  the NGT orders being also very clear in the matter of regulating agriculture use through state policy ,no exemptions should be granted. However, as a suggestive cut off, individual land holdings below 3HA could be considered to be covered through a system of registrations, conditions and regular monitoring by the Panchayats  (this is assuming that the optimal use for irrigation is on an average about 10KL/Ha/day), while farmers with individual land holdings of more than 03 HA or farmers with  individual land holdings of less than 03 HA but pooling for a common ground water resource and  with a total collective area exceeding 03 HA should be covered by regulation through permissions, conditions, costs and regular monitoring by the State or its designated authorities.
• There should be an incentive for using treated effluents for irrigation as it would exert lesser pressures on ground water irrigation. Industries authorized by the Pollution Control Board, could pay farmers for using their treated effluent for agriculture.
• A part from the village ponds, individual land holdings of more than 03 HA could be asked to essentially provide rain water harvesting structures equivalent to at least 1% of the area of the holding in terms of volume. This will help in harvesting rain water, collect excess surface water drainage and also reduce water logging. The water thus harvested could be used by the farmers for irrigation and/or livestock.
• Water abstraction by defense, paramilitary and other sensitive operations may also need to be regulated. For security reasons, such organizations could be exempt from a NOC but may still require to be covered by systems either in-house or through their respective Ministries based on guidelines that may be drawn up by the CGWA.
• Water supply through government water supply agencies is a major component of abstraction of ground water. This needs to be regulated through the system of permissions, costs, conditions, recharge and monitoring. It will help in reducing wastages and augmenting ground water through recharge. It will also help the local bodies to commit water to users based on the actual availability of the resource rather on the capability of the distribution network and to plan the supply network matching with the ground water resource in the area.
• While provision of drinking water is a basic necessity yet necessary control needs to be applied when allowing energized means of water abstraction to individual households. Certification of non existence of water supply system or an inadequate water supply only points at the inability of the  distribution network to provide water. It does not take into consideration the availability of the resource underground and in areas where the withdrawal is more than the recharge; this may even lead to further problems unless steps are taken to check the growth of users in the area. This again calls for policies and guidelines which encourage decentralization. It is therefore suggested that no NOC be issued for energized means of abstraction to any house hold where a Water supply agency is responsible to supply drinking water. In case the agency feels that it is necessary to augment its resources to provide for additional population, it will have to take a clearance from the competent Authority. While on one hand it will help in sustaining future development, on the other it would help in a more responsible planning based on actual water budgets and not on capacities of resources, reservoirs or the distribution network.
• Every District should immediately proceed to prepare its water balance showing its resources, its commitments, the balance available and further carrying capacity of the district in terms of population that could be sustained. Area wise criteria ( for OCS) could be evolved.
• Wherever it is imperative that individual households be allowed to use energized means of abstraction, certificate could be obtained from the local Authority supplying water instead of a self affidavit. The certificate should, apart from certifying the inadequacy of the supply network to provide water should also say that sufficient ground water resources exist to sustain the permission. 
• Water conservation fee could be charged on only the net abstraction i.e. abstraction minus the actual harvesting and could be computed on the costs of recharging equivalent amounts of Water to the ground.
• For an application for N.O.C. there should be no need of a referral. The Regulatory Authority should consider applications independent of other clearances. Similar provisions exist in the E.I.A. notification of 2006. Earlier Environmental Clearance was also linked to the NOC from the Pollution Control Board and Forest Clearance. This stands delinked now. This will save time. Instead the only  certificate that we would like to insist is a certificate from the concerned local body supplying water and from the regional officer of the CGWA/State agency as designated that adequate resources are available to sustain the abstraction. Application for renewal could be accompanied by a certified compliance report of the previous conditions and a consent form the PCB.
• Any references in the guidelines with respect to the use of treated waste water for flushing should be exercised with caution. The CPCB could be consulted on whether the practice is safe from the Health point of view. The CPCB could be asked to conduct a study to evaluate the quality of water being used for flushing in the existing systems and its impact on the users.      
• Dewatering for basement excavations and the use to which this water is to be put to has to be specifically addressed to.  It could be examined for use by augmenting the drinking water supplies or in irrigation and other uses.
• The guidelines could specified provide for an inclusive list of industries and establishments (Labs. etc) where roof top rain water harvesting may not be allowed for reasons of adding to the contamination.
• The CGWA should very explicitly provide through each NOC that it issues, the need for monitoring the water supply, the frequency of reporting the general parameters and the specific location wise parameter to be monitored by the abstracting agency.
• The monitoring data from each abstraction agency, both in terms of water levels and quality could then be compiled in a State and National information base.
• Industrial water use in terms of total ground water abstracted may not be very significant but being localized may have far reaching consequences on aquifer hydrology. Supply of ground water for industrial use by Government agencies may impact competing water use, may result in excessive extraction in localized areas and may need an augmentation in the distribution network. It will also promote industrial growth in areas where the existing supply system can distribute water irrespective of the ground water balance. Instead industries may be directly considered for permissions which can be granted on merits based on ground water hydrology and availability of resource as assessed regulatory authority.
• While suggesting on line connectivity of data in case of industries, the limitation of speed of  connectivity should be given due consideration.
• Water conservation fee could be based on the quantum of extraction minus the amount of water harvested either as roof top rain water harvesting or recharge to aquifer through ponds, check dams or other structures.
• There should be a complete prohibition of injecting any type of industrial waste water into ground water aquifers.
• The water conservation fee should be utilized to create recharge structures in the same aquifer from which water is being abstracted or around 10 Km area of the Industries as decided by the Regulatory Authority. For water logged areas, the recharge could be done in the nearest over exploited, semi critical or critical zone as may be suggested by the Regulatory Authority.
• A system of incentives could also be worked out for agencies and industries using treated waste waters for various legitimate purposes.
• No objection certificates could be transferable on change of ownership with the condition that the change of ownership is notified with one month of such change and the liabilities of default would be applicable on the owner, as established, on date of default.
• In case of new project, there should be no requirement for submitting proof of ownership of land. A new application could be made at the stage of identification of site, as also provided in the EIA notification of 2006 for Environmental Clearances. This will save from the difficulties arising out of surrendering/disposing land if a new proposal is disallowed on the location.   
• Water available from dewatering is very clean. This should not be drained out but should be gainfully utilized to offset abstraction and augment water needs of nearby areas, after necessary treatment if required.
• Augment demand side management strategies for agricultural use of ground water.
• Mandate preparation of sustainable irrigation plans and promote farmers participation in proactive demand and supply side measures specially reduction in conveyance losses, development of  irrigation plans, adoption of water efficiency measures for water intensive crops etc.
• Develop a separate set of regulation for the use of treated effluents in agriculture through integrating with the existing canal networks.
• Industry wise best practices need to be documented and per capita product water consumption standards/ bench marks developed in consultation with different industry sectors. As already tried in the case of the Water Cess Act 1977, penal rates could be applicable where the water abstraction exceeds the bench mark.
• Impose conservation charges on dewatering, as it is also an abstraction of ground water. Incentivize if the same is gainfully utilized in the area and substitutes the ground water requirements of other users.
• Failure to apply for renewal in time frames with in the period of validity, should not be a cause for penal action or imposition of fines. Penal action and fines could only arise if ground water is being used without permission. The Regulatory Authority however could reserve the right to cancel a NOC if the application for renewal is not made in the specified time stipulated in the conditions.
• Extension of validity of existing NOC’s could be considered but, unless otherwise stated,  the conditions could be revised based on current state of art and regulatory requirements.
• The quantum of processing fee to be charged by the Regulatory Authority could be linked to the quantum of desired abstraction so that a disincentive is introduced for overestimating requirements.
• The guidelines/regulations once notified could only be reviewed by the Ministry of Water Resources and not by the Regulatory Authority.
• There is a need to provide for an appellate authority for grievances.
• Since the powers with the CGWA are delegated powers, any re-delegation /delegation has to be done by the MoEF and CC. Multiplicity of delegated power should be avoided.
• The guidelines should also aim at the State, drawing up plans for the reclamation of degraded lands and taking other measures to minimize the surface and subsurface water logging through provision of adequate horizontal and vertical drainage systems.
• Water user associations may be created at the Panchayat Level to manage, conserve and augment ground water through use based and fiscal instruments.
• The guidelines could also prescribed that the carrying capacity, interms of population, shall be worked out for each ground water (OCS) area and further permissions be granted strictly as per the resource availability balance.