A Comparative Study of Groundwater Institutions in the Western United States, France and Peninsular India for Sustainable and Equitable Resource Use –Some lessons for India

The first part of this study aimed at institutional perspective of groundwater management in dealing with overdraft problems in India and western US. A great deal of management problems relating to groundwater overdraft and use are emerging in both India as well as in western US.

Legal status of groundwater in India:

The legal status of groundwater is not clear in India. The Easement Act of 1882, recognized customary community rights in surface water based on long use and allowed private usufructuary rights in groundwater by viewing it as an easement, inseparably connected to land. The general rights structure is governed by English common law of absolute ownership (to owners of overlying land) and the resource is legally unbounded (Singh 1991). The rights in groundwater belong to the landowner as groundwater is like a chattel attached to the land property. There is no limitation on the volume of groundwater extraction by a landowner. Many experts and policy makers have been emphasizing the need for appropriate water rights system for regulating groundwater extraction and use particularly at the individual level. For instance, both the Model groundwater (control and regulation) Bill of 1970, as that of 1992, formulated by the center, and circulated among the states, for their possible enactment, have proposed some kind of groundwater permits and licensing system. (GOI, 1972 and 1992). Since water is a state subject, the groundwater laws are to be enacted by the states. Unfortunately, no state has enacted any groundwater legislation so far barring Gujarath. The 1976, National Commission on Agriculture suggested criteria to be used for specifying individual rights in groundwater on a physical and quantitative basis, but also in identifying the administrative frame work necessary for their enforcement. This is very similar to that of correlative rights system prevalent in Western US.

Property rights to Groundwater:

In India, the rights in groundwater belong to the landowner as groundwater is attached with land. Since land ownership is a prerequisite to ownership of groundwater, it is difficult to assign “open access” nature to groundwater resource (Singh 1992). Whether groundwater is a open access resource or private property resource is still a mute point. Though landowners own groundwater de jure, this right is limited by huge investment necessary to tap the groundwater, which makes only restricted access to those who have adequate resources to invest. Under these circumstances the groundwater rights are obscure. Ciriacy-Wantrup (1969), indicates that groundwater is fugitive resource, since definite property rights belong only to those who are in possession ie., who gets there fastest with mostest.

Institutional Management in Western US:

Each state in the western US, has its own selection of groundwater laws and regulations. Beneficial and reasonable use concepts are one of the main legal boundary conditions on water rights. Under the beneficial use concept, individual own water use rights as long as use is accepted as “beneficial”. Reasonable use concepts further limits rights to overlying users unless injury to other overlying owners can be avoided. In addition to this, “public trust” concept being used in western US as a non-legislative approach to initiating water management. The basic idea is that water is a public good, held in the trust for the welfare of the population (Moench 1991).

In western US, the issues of groundwater depletion are being effectively addressed through institutional policy instruments with local control. According to water code, all water within the state is the property of the state, but the right to use may be acquired by appropriation in the manner provided by law. These include formation of natural resource districts with varying responsibilities over groundwater issues, creation of an enabling framework specifying user rights, correlative rights to a reasonable use, issue of permits for extraction, allocating quotas and declaration of moratorium on new wells in critical/over exploited areas. These regulations enabled to set an upper boundary for extraction of groundwater and made groundwater legally scarce. This has had a profound impact on use pattern and conservation of groundwater in the region. In India, lack of effective groundwater institutions at local level to deal with emerging problems in groundwater development and use has resulted in intergenerational, inter-temporal and inter-spatial misallocation and severe overdrafts creating several externalities. This has severely mauled equity, efficiency and sustainability of groundwater resource use. The emerging environmental implications on account of groundwater overdraft will be terrible for the future generation.

French Model of Water Management

The second part of this paper deals with the French water management models in addressing the irrigation sector problems and the lessons that could be applicable to the Indian situation. The French Water Law of 1962 and 1992 delineates the principles of water Management. The striking feature of the 1964 Water Act is the creation of Water Agencies and Basin committees. The water Law of 1992, insists on the uniqueness of water resources and imposes measuring devices. In France, water belongs to the “ patrimonie commun de la nation ” (common heritage of the nation, public trust) and the state is custodian of the resource. According to water laws, water is considered to be a resource, as a milieu and as an environmental good to be shared among the different users including nature itself.

Basin committee and Water Agencies

The legal structure of the 1964 Water Act, entrust water management to the water users of the basin who formed the Basin committee, representatives of territorial committee (County, Councillor and Mayor), water users (farmers, industrialists and fishermen), the state and environmental protection associations. In each Basin Committee, the elected representatives, and water users who decide on the most appropriate policy pertaining to water management in their basin hold the majority membership. Various actors at different levels handle the water management in a participatory way. The entire French territory is divided into 6 major catchment areas. Each major catchment area has river Basin Committee and a corresponding executive authority called the Water Agency ( Agence de l'Eau ). Indeed the Basin committee is a water parliament because its representation and powers reflect regional rather than central government control. The Prefect-the government representative (like a collector in each Indian district) is the head of the Basin committee. He manages and coordinates the state policy concerning the issue of permits to draw water, pricing, discharge of effluents and and water law enforcement. In times of extreme scarcity, the Prefect can decide all the uses of water. The committee is responsible for applying “user pay” and “polluter should pay” principle through the use of economic instruments such as taxes, subsidies etc. Since, the beginning of 1970's regulations for water management have been increasingly restrictive at the European level. European Union sets the standards for drinking water quality, river water quality and water quality of sensitive ecosystems.

The management approaches followed both in the case of surface and groundwater in France, have yielded modest degree of success with respect to pricing of the resource, and cost recovery especially in the case of surface irrigation projects. The issue of groundwater depletion in some areas of France is effectively addressed by a collective action of user groups with the active involvement of the authorities (Basin committee). This enables an understanding and appreciation of the rules that identify and assign the roles and responsibilities of different actors in a credible way. The impetus to organise such user association should be promoted in the Indian context in order to address the burning issues of groundwater overdraft. Less political intervention in the functioning of the institutions and the due recognition of users' representation in the decision making process enabled financially viable projects, as they are capable of generating surplus income in order to recover the project costs. It also ensured desirable results in terms of increasing water use efficiency and reducing conflicts. In India, under pricing or no pricing is one of the major causes for heavy investments in groundwater and over- pumping, leading to depletion of aquifers. Since groundwater conservation is a public policy problem private interest in conservation is lacking.