KATHMANDU UNIVERSITY SCHOOL OF LAW

Water & Energy Law Assignment

1. Review of existing/proposed legal drafts of Water Resources Policy and Water Resources
Act
2. Find out the strengths and weaknesses of Draft Policy and Act
3. Comparative Analysis between existing and proposed Act
4. Substances of Draft Policy translated into Draft Act

Submitted by: Deepika Acharya Submitted to: Faculty Madhab Raj Ghimire
Roll no.: 15001
5th year, I semester
1. Review of Water Resources Policy
The proposed name for water resources policy is National Water Resources Policy.
No such policy was in effect before this proposed draft. There are altogether 12
chapters and 12 sections in this draft policy.

Section 1 provides about the background of this policy. It gives idea about the
necessity of this policy. Lack of comprehensive policy encompassing overall water
resources development and management and also the lack of accessibility of water
sources, this policy has been prepared. It also talks about the power of federal,
provincial and local level regarding planning and implementation of water related
projects.

Section 2 defines various terms used in water resources. Commission has been
defined as Water and Energy Commission. Regulatory Commission has been defined
as Nepal Water and Electricity Regulatory Commission. Large Rivers has been
defined as Koshi, Karnali, Mahakali, Gandaki or rivers directly entering them or
second order rivers flowing due to snow melt. Beneficial use has also been defined as
the use of water resources to accrue the optimum benefits from the economic, social
and environmental viewpoint. The other terms like domestic use, basin, medium
river, license, project has also been defined.

Section 3 provides about the problems, challenges and opportunities for this policy.
The major policy issues seen in Nepal are lack of development of physical
infrastructure, adequate structure, institutional infrastructure and regulatory entity.
Also, the inability to carry out a coordinated and integrated development and
management among the various use specific sectors of water and other natural
resources of the watershed as land, forest etc. In addition, there are other policy
issues. So, the question remains will all these problems be resolved by this policy?
Thus, the challenges are- will these issues be resolved and will there be proper
planning and implementation of water resources regarding its various use? The
opportunities are all these problems will be resolved if these policies come into
implementation.

Section 4 provides about the long-term vision. And the vision is “Utilization of water
resources with the optimization of its social, economic and environmental value for
well-developed Nepal”.

Section 5 provides about the goals of this policy. The major goals are protection and
productive use of water resources, sufficient availability of clean water, increase in
agriculture production, mitigation of adverse effects of flood, landslide and drought.
Section 6 provides about the 11 basic principles that this policy is based on.
Beneficiary and Polluter pay principle, principle of integrated water resource
management, principle of water utilization among three tiers, sustainable use, existing
uses and equitable access, compensation, appropriate tariff, service fee,
decentralization of water distribution service, first priority for drinking water and
coordinated water accounting system.

Section 7 provides about objectives. Section 8 provides about the policies and
strategies to be put into effect to achieve the objectives as mentioned in section 7.
There are 13 objectives and policies & strategies has been affected accordingly.

Objective 1: Sharing of resources among various uses and users

The policy is to develop and manage the water resources as integrated water
resources management principle. But what this principle is haven’t been defined. The
strategies to achieve these policies include utilizing other natural resources such as
forests, vegetation, adopting inter-basin water transfer like alternatives. River basin
plans will be prepared for which consultation will be done with stakeholders,
environment and social assessment will be done. Water and Energy Commission
prepare such plans. Water sharing among various uses and users will be done in a
transparent manner. Strategy includes water allocation on volumetric basis and in
case of acute shortage allocation shall be done in priority order (8 items prioritized).
Right to water use for new user and existing user shall be granted through license
personally or collectively.

Objective 2: To provide directive guidance for formulating laws

Legal arrangement for ownership of water resources, duty and responsibility of user
over water shall be done. Ownership lies with the state so shall be utilized by all three
tiers. An irrigation project or system having a command area more than 10,000 ha in
Terai and 1,000 ha in hills shall be large irrigation. Such area equal to or less than
1,000 ha in Terai and more than 500 ha in hills shall be medium irrigation. Similarly,
area equal or less than 500 ha in Terai and more than 50 ha in hills shall be small
irrigation. License for large project shall be issued by center, medium be provincial
and small be local level. Hydropower project exceeding 100 MW are large project,
below or equal to this but exceeding 1MW is medium project, equal to 1MW or below
it is small project. The license for large, medium and small project is issued by
federal, provincial and local level accordingly. Similarly, for the sewerage project
threshold for different tiers has been provided. For agriculture, fishery, recreation,
religious cultural use license to be provided by local level. For multipurpose project,
the license shall be issued by highest level. For river project bordering two local
levels, the license shall be issued by the concerned province, for river bordering two
provinces, by center and for an international border river, license shall be issued by
highest level. So, all these projects shall be carried out on the river basin plans or use
specific master plans by 3 tiers, local community or user groups or the private sector
solely or in collaboration with one another.

Objective 3: To develop necessary infrastructure and manage water resources to

address also the variations in water availability
Infrastructure necessary for the utilization of water resources shall be built. Priority
shall be given for storage, inter basin transfer projects and multi-purpose projects.
Rainwater harvesting, artificial recharge of groundwater storage by rainwater etc. like
alternative technologies shall be used for meeting the needs of drinking water,
irrigation. Alternatives energy sources such as solar and wind shall also be applied to
lift water for various uses.

Objective 4: To develop and manage coordinated water resources related database

and information system
Such database shall be brought under a single structural framework. The Water and
Energy Commission develops and manages coordinated data and information system.
All scientific and technical work under the Department of Hydrology and
Meteorology shall carry out its work in consultation with the commission. In order to
establish decision making, the capacity of government entities and research
organization shall be enhanced.

Objective 5: To increase participation of public and private sector, local community

and user’s group for development of water resources
There shall be no irrelevant and uncontrolled involvement. Digital information shall
be kept. The participation along with the share investment of the private sector, local
community and communities of the project areas shall be given protection and
encouraged for projects promoted by public sector.

Objective 6: Protecting the watershed areas and groundwater recharge areas to effect
inter-generational equity
For the prevention of deforestation, erosion; unscientific models of infrastructure
development; uncontrolled extraction of boulders, aggregate shall be protected by
coordinating among all the concerned entities. Such acts shall be done according to
plan and design standards. The quality and quantity of the recharged groundwater
shall be enhanced by planting grasses like narkat, reeds etc of appropriate species.

Objective 7: Maintain the required quality standard for various uses and to maintain
sanitation be preventing water pollution
Quality standard shall be prescribed as compatible with international standards for
various use. Commission shall prepare such standards and shall submit it to
regulatory commission for approval. Legal arrangement for polluter pays principle.

Objective 8: To address drought, flood, landslide and manage such situations

Development of water storage schemes of various sizes shall be prioritized. A flood
forecasting and early warning system shall be installed by Department of Hydrology
and Meteorology. Shallow tube wells for irrigation and deep tube wells for domestic
use shall be given priority during drought in Terai. An emergency center for situation
be established in every province. Land eroded or mandated be flood shall be utilized
judiciously in accordance with flood management principles by reclaiming and
protecting it.

Objective 9: To maintain gender equality by increasing involvement of women in

decision making process related to water resources management and enhance the
income of rural communities
For utilization of water resources, at every stage the participation of women shall be
made in an increasing order. Minimum one-third participation of women in water
user’s organization. The income of the local community shall be enhanced through
integrated promotion of irrigated agriculture based on organic manicure and cash
crops. The cooperative system shall be established for the supply of agricultural
inputs for appropriate production benefit, market management, loan facility for small
users.

Objective 10: To protect the potential areas and construction site as well as irrigated
areas
Structures and the project area shall be protected against encroachment by other
infrastructure development. Arable lands shall also be protected from such
encroachment.

Objective 11: To address matters related to relocation and rehabilitation of

communities for affected by water resources project including the development of
project area
Laws and policies shall be made for the relocation and rehabilitation of population.
Land for land shall be given. A single particular community shall be rehabilitated
together through land exchange.

Objective 12: To maintain optimal benefits from the development and management
of water resource of international dimension
International treaty, agreement, collaboration shall be entered into in the development
and management of water resources for comparative and mutual benefits. So, when
entering such agreements, it shall be based on the principle of optimum benefit and
beneficiary must pay principle. Such agreement to be done by center only.

Objective 13: To carry out institutional reforms for the effective development and
management of water resources
There shall be 3 types of institutional provisions at the various levels of the state to
formulate plans, manage and regulate water resources.

Section 9 provides about the legal instruments to be enforced for the effective and
successful implementation of this policy. Even the provincial government is provided
with power to formulate necessary laws in consistence with constitution and federal
law.

Section 10 provides about the assumptions about the role of different stakeholders for
the effective implementation of this policy.

Section 11 provides about Audit and Monitoring. Monitoring shall be performed in a

comprehensive manner by central ministry responsible for water and energy and also
commission. Similarly, the audit of policy implementation shall be performed by
commission and river basin offices.

Section 12 repeals the existing water resources related policies to the extent of
inconvenience.

Review of Draft Water Resources Act

This draft is supposed to amend the existing Water Resources Act, 2049. There are 13
chapters and 75 sections in this draft.

Chapter 1 (section 1-2) talks about Preliminary.

Section 2 defines 14 different terms where new terms has been defined. The existing
act defines five such terms only and beneficial use has been differently defined by
this act from the existing act. The definition is as per the policy.

Chapter 2 (sec 3-7) talks about Ownership and Use of Water Resources.
Section 3 provides the ownership of water resources to state which shall be exercised
by 3 tiers of government which can be done in partnership or collectively.
Section 4 is totally new. River Basin Plan shall be formulated and implemented by
central in consultation with provincial, local level, local community and other
concerned stakeholders.
Section 5 is also new provision which provides about use specific water resources
master plan. To obtain optimum benefit by addressing the primary water resources
use, demands such as water supply, irrigation and hydropower and to promote the
systematic and coordinated development and management of such uses, GON can
formulate and implement such plan.
Section 6 talks about Inter basin water transfer which is also new provision. If it is
appropriate to utilize the water existing in a river or stream in another river or basin
for the optimum beneficial use and development of water resources, inter-basin water
transfer may be done under such amended river basin plan. The federal government in
consultation with provincial government may do such transfer but the limit for
transfer will be fixed.
Section 7 provides about the Authority to use powers related to water resources
which is similar to section 3.

Chapter 3(sec 8-19) talks about Water Use.

Section 8 focuses on use of water resources through license only which is similar to
existing act.
Section 9 talks about concurrence for water resources utilization. While developing
and implementing water resources utilization and management project by 3 tiers prior
to implementation shall obtain concurrence from the river basin office on matters
relating water availability and sharing related to the project. The licensing authority
then issues license as per the concurrence.
Section 10 is similar to existing act which provides no license for certain kind of
uses. It includes existing domestic use, irrigation, water mill, landowner to use source
of water resources within one’s own land for oneself, for existing hydropower
production or other uses.
Section 11 talks about Prior Right in Water Resource Use. It provides priority right
for following individual:
1(a): Has been using water as water supply or traditional irrigation use at his/her own
expense up to the quantity he had been using
(b): If at collective expense or free labor for traditional water supply, water mill or
irrigation purpose up to the quantity individuals have contributed the labor or expense
2. Water resources existing in an individual’s private land but has been used by water
user’s group collectively, the users can use such water.
3. If any resources being used by obtaining a license as per commencement of this
act, such water resources can be used by licensee.
Section 12 provides about Account of Water Use. The authority granting the license
shall be required to keep account of water availability and use, manage & monitor in
a scientific manner. In case of reduction of water, the licensing authority may reduce
the quantity of water but for domestic use, it shall be maintained to the same extent
possible.
Section 13 talks about power to prohibit water resource use. If the procedures aren’t
fulfilled by licensing authority, the prescribed authority may prohibit the use of water
resources in such project.
Section 14 provides about water sharing. Water sharing among the various uses and
users shall be done according to the river basin plan and various use specific master
plans. Therefore, time schedule and volume will be prescribed.
Section 15 provides about the order for priority of water resource use where two
more items are added to the list than the existing act. There are 10 items to the list.
Protection of livestock assets, Religious, Cultural and Environmental Protection are
the added list.
Section 16 provides about Water Rights to be obtained. Water right shall be obtained
by the licensee for mentioned quantity and time bound schedule for period mentioned
in the concurrence.
Section 17 provides that dual license not to be given. If the water resource use project
license has been issued to one licensee, no other license shall be granted for other
licensee. But if it doesn’t affect quality and quantity of such water, dual license may
be granted.
Section 18 talks about making beneficial use of water resources. Utilization of water
resources shall be done in a manner to accrue the optimum overall benefit to the
water available for each kind of water resources and forest, vegetation, irrigable land
and the ecological system associated with it.
Section 19 provides about the compensation to be given. While implementing a
project, if adverse effect on the existing consumption, the licensee shall compensate
individual or consumer to be affected therefrom.

Chapter 4 (sec 20-22) provides about Project Related to Water Resources.

Section 20 provides about large, medium and small project which is very limitedly
provided in existing act. The authority to grant license for these projects are federal,
provincial and local level respectively.

Chapter 5 (sec 23-26) is totally new chapter and provisions relating to Management
of Groundwater Resources.
Section 23 provides that groundwater can be used for mentioned purposes. Province
or local level are required to protect groundwater resources under its jurisdiction.
GON may prohibit such use if it deems necessary.

Chapter 6(sec27-28) is new chapter and talks about Management of Water Induced
Disasters and River Control. It provides that GON shall be required to forecast and
 establish system for the issuance of early warning of water induced disasters.
Emergency works should always be prepared.

Chapter 7(sec 29-32) is new and talks about Ecological Conservation of Water
Resources. It provides that conservation of water resource by making a strategic plan.
Cumulative environmental impact study assessment shall be done. Alternate
technologies for water supply, irrigation or recharging groundwater reserve shall be
done.

Chapter 8(sec 33-35) is similar to existing act providing about water quality and
pollution control. While fixing standards it shall be required to be based on standards
adopted by WHO or other relevant international standards. The tolerance limit for
water quality of waste water generated from town, settlement or any other place shall
be proposed by commission and approved by the regulatory commission.

Chapter 9(sec 36-55) is also new and provides about Nepal Water and Energy
Regulatory Commission. To fix the various uses of water resources and its quality,
regulate electricity generation, transmission, distribution or trade, encourage public
and private entrepreneurs in the water resources development sector, protect the
interest of electricity consumers, it acts as regulatory entity. It

Chapter 10(sec 56-59) provides about National Water and Electricity Development
Council which recommend government on the policy matters, interprovincial use of
water.

Chapter 11 (sec 60-63) provides about other Institution Structures for the utilization
of water resources. Water and Energy Commission which was also in the existing act
and River basin offices are such structures.

Chapter 12(sec 64-65) provides about Special powers of Federal, Provincial, and
local level related to water resources development.

Chapter 13(sec 66-75) provides miscellaneous. Offense Land Punishment for

mentioned activities, service fee and framing of rules.

2. Strength and Weakness of Draft Policy

a. The policies and strategies have made the objectives of water resources clear.
b. The policy is based on water sharing and integrated water resource management
principle considering every river basin in its entirety.
c. Optimum utilization of resources is provided which also includes Inter Basin
water transfer.
 d. It talks about water related physical, institutional intellectual infrastructure
relating to planning, implementation and utilization of water resources.
e. Different ministries are involved so that it will be difficult to separate power
between these ministries. The same power may lie between the ministries so the
utilization of water resources may be difficult.
f. For some projects, the role of 3 tiers of government has been mentioned. But for
the projects not provided in policy, there may arise conflict between these 3 tiers.
g. Provided about integrated water resources principle but doesn’t mention about
what it inculcates.
h. The local level is intended to have equal powers as federal and provincial but very
less powers for local level has been provided to it relating to water resources
utilization because the optimum utilization can only be done at this level.

Strength and Weaknesses of Draft Act

1. This act is very progressive and has taken fully the consideration of draft policy.
2. New definitions are added and new provisions relating to river basin, inter basin water
transfer, groundwater, precautions to water induced disasters are added.
3. Institutional frameworks as proposed by policy has been incorporated and also a
Council is added to it which looks into the interprovincial use and federal-provincial use
of water resources,
4. The existing provision are amended to the extent necessary meeting the needs of
present society with the consideration of future.
5.The defects of policy can also be felt in this act.

3. The comparison between existing and draft act has already been mentioned above
in the process of the Review of the Act.

4. From all of this we can see that, policy and act both are progressive. Almost
everything of policy has been inculcated in act and its defect in itself and act can
also be felt. However, the provision relating to council is provided in Act only. No
other new provisions have been added to the act.

To conclude, such policies and acts have been more prevalent in theory. The
question remains whether there will be its implementation or not and whether the
implementation becomes effective or not. Let’s be positive for the implications of
both these policy and act. May all the related legislations and policies be amended
accordingly. The policy and act aim for optimum and sustainable use of resources
and has been very progressive from the related policies and acts.