National Water Policy, 2012 silent on priorities

Author(s): Bharat Lal Seth, Down to Earth Magazine. Date: Feb 10, 2012

Draft document gives industry implicit priority over agriculture in water allocation The Union Ministry of Water Resources recently uploaded the draft of the new national water policy on its website, inviting comments and objections from the public. Water resources minister Pawan Kumar Bansal said the policy, under preparation since 2010, is being framed with a participatory approach. The draft of the National Water Policy, 2012, uploaded on January 31, has called for a water framework law that will enable the establishment of river basin authorities with appropriate powers to plan, manage and regulate water resources at the river basin level. Community resource or economic good? The last water policy was framed a decade back and says it may be revised periodically as and when need arises. The preamble of the new policy draft gives reasons for the revision. It notes that availability of utilisable water is coming under further strain, with expectations that conflicts would only increase in future. The policy seeks to address such a future, with a growing population and rising needs of a developing nation with the looming uncertainty of climate change. The objective of the National Water Policy is to take cognisance of the existing situation and to propose a framework for creation of an overarching system of laws and institutions and for a plan of action with a unified national perspective, says the draft preamble. The draft explicitly says that water needs to be managed as a community resource held by the state under public trust doctrine, but at the same time it underlines the need to treat water as an economic good. What's more, the new policy deliberately misses a crucial pointprioritising competing users of water, thus providing flexibility for allocating water for industrial use even at the cost of agriculture. The approach, says the ministry, is to steer clear of water allocation priorities because they lead to conflict. G Mohan Kumar, additional secretary in the water resources ministry says a reading of the draft shows it is implicit that irrigation be given priority over industry. The draft states, After meeting the minimum quantity of water required for survival of human

beings and ecosystem, water must be used as an economic good with higher priority towards basic livelihood support to the poor and ensuring food security. When asked why this is not stated explicitly, he replied: We dont want to keep it rigid.
Can the National Water Policy do away with priorities?

M Dinesh Kumar, executive director Institute for Resource Analysis and Policy (IRAP)

Ramaswamy Iyer, former secretary of water resources and principle draftsman of first National Water Policy, 1987

Archana Vaidya, partner, Indian Environment Law Offices (IELO)

Philippe Cullet, senior visiting fellow, Centre for Policy Research, School of Oriental and African Studies Read more

Subhash Chander, former IIT-Delhi professor and member of the 2012 National Water Policy Drafting Committee explains the approach. Priority is different at different places. Each catchment and watershed requires a different solution. There was total agreement amongst the drafting committee to do away with the priority of allocations, he says. This is a consensus document, he adds. But the new draft is at variance with the earlier water policy adopted a decade ago which states that drinking be accorded the highest priority followed by irrigation, hydropower, ecology, industrial requirement, and navigation and other uses. Kumar says the priorities have been done away with since they were creating confusion. Agriculture may become irrelevant where industrialisation is taking place on a large scale, he adds. However there is no answer on what the confusion is.

Silver lining On a positive note, the draft upholds the ecological needs of a river for the first time, stating that water be set aside in proportion to a river's natural flow regime. A portion

of river flows should be kept aside to meet ecological needs ensuring that the low and high flow releases are proportional to the natural flow regime, including base flow contribution in the low flow season through regulated groundwater use, reads the draft. The new policy includes some welcome change in priorities for water to be treated as a community resource under state ownership, and gives priority for base river flows and water as a social good for basic drinking water and sanitation needs, says Depinder Kapur, coordinator India WASH forum, a non-profit. But the priority for agriculture needs and the increasing conflict of industry-agriculture and urban-agriculture water needs is not stressed in the draft, he adds. Industry gives thumbs up Industry associations, who lobbied for the draft, have welcomed it. Improving water efficiency across all sectors is crucial for reducing dependence on freshwater sources, says Romit Sen, senior assistant director, Federation of Indian Chambers of Commerce and Industry (FICCI). Water should be priced properly to reduce its overuse. Pricing of water for various uses has received considerable attention in the draft policy, he adds. The draft maintains that water for drinking should have priority over other uses. The first National Water Policy of 1987 explicitly stated water allocation priorities, but issued a rejoinder: However these priorities might be modified if necessary in particular regions with reference to area specific considerations. The 2002 policy deviated from the National Water Policy of 1987, by removing this rejoinder, and juggled and added priorities to include ecology, navigation and divided industry into agriculture-related (agro) and otherwise. The 2002 policy also encouraged private sector participation in planning, development and management of water resources (see table). Due to opposition to the possibility of the private sector owning water assets, this has been dropped in the draft. Instead, impetus has been given to the public private partnership (PPP) model. The draft mentions the service provider role of the state has to be gradually reduced and shifted to regulation and control of services. The draft also states that water-related services should be transferred to community and/or private sector with appropriate PPP model under the general superintendence of the state. Ramaswamy Iyer, principal draftsman of the 1987 policy is critical of the draft policy for simultaneously advocating community participation, public trust doctrine and PPP. The draft fails to recognise that we cannot simply assert a number of propositions without considering their inter-relationships (and possible contradictions), he says.

The draft is a slight improvement on the 2002 policy, but it is no more than slight, says Iyer. There is really no fundamental departure from the conventional approach of supply-side response to projected demand, and the advocacy of large storages as the answer to all problems, says Iyer. He has submitted an alternative water policy to the drafting committee. In his draft, Iyer has argued: Humanity receives water from, and cannot presume to allocate water to nature and ecology. It follows that nature and ecology come first, are anterior to human water use, determine the water available for allocation, and cannot figure within our system of priorities for water allocation. This has been dismissed by officials in the Central Water Commission as a very noble sentiment and just another high sounding line. The draft has among others called for recycle and reuse of water, a refund for properly treated water and heavy fines for polluted effluents. The draft has called for reversal of under-pricing of electricity, which leads to wastage of both water and electricity. The issue is not about the objectives of the policy, but of instruments to translate the policies (intentions) into actions on ground, says Dinesh Kumar, executive director of Institute for Resource Analysis and Policy in Hyderabad. These include creation of river basin organisations, regulatory bodies and establishment of a legal framework to realise the objectives. The draft does not seem to offer anything significantly different from what the old one suggested, only the wordings are different, says Kumar, seeking to move beyond semantics. The ministry says the 2012 policy will set new guidelines for states to adopt. It is left to the states to use these guidelines, say ministry officials. The earlier policy also stated that success of the endeavour will depend on a commitment to achieve the objectives and adoption of state water policies backed by an operational action plan. In the past decade only 11 states drafted their own policy. The draft National Water Policy, 2012 shall remain open for comments till February 29.
India's water policy over the years Issue National Water Policy (1987) National Water Policy Draft policy (2012) (2002) Done away with explicit priorities.Water, over and above the pre-emptive need for safe drinking water and sanitation, should be treated as an economic good so as to promote its conservation and efficient use.After meeting the minimum quantity of water required for survival of human beings and ecosystem, water must be used as an economic good with higher priority towards basic livelihood

Allocation priority 1. Drinking water 1. Drinking water 2. Irrigation 2. Irrigation 3. Hydro-power 3. Hydro-power 4. Navigation 4. Ecology 5. Industrial and other 5. Agro-industries and usesHowever these non-agricultural priorities might be modified industries if necessary in particular 6. Navigation and other regions with reference to uses area specific considerations.

Service provision No mention.

Private sector participation should be encouraged in planning, development and management of water resource projects for diverse uses, wherever feasible. Depending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered.

support to the poor and ensuring national food security. On the one hand the draft say that Water 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. On the other it mentions that: The service provider role of the state has to be gradually shifted to that of a regulator of services and facilitator for strengthening the institutions responsible for planning, implementation and management of water resources. The water related services should be transferred to community and / or private sector with appropriate public private partnership model.

Can the National Water Policy do away with priorities?

Draft document gives industry implicit priority over agriculture in water allocation

M Dinesh Kumar executive director Institute for Resource Analysis and Policy (IRAP) The draft National Water Policy, 2012 document duly recognises the fact that economic principles need to guide pricing of water. But, one important issue concerning pricing is that mere use of economic principles does not address the issue of water allocation for different sectors. This would lead to compromising on several objectives including equity, social justice and water for environment. The document is silent on water allocation priorities, an important aspect of Policy framing. The problem, use of economic principles, suggests that net marginal returns from the use of water is to be a basis for fixing prices when used for production for affordability. It is quite well known that the marginal returns from the use of water in manufacturing are much higher than that of crop production. This means, the manufacturing sector will be able to pay prices much higher than what irrigators can pay. So, if we blindly follow this affordability criterion without rules and mechanisms for water allocation, industries might be able to walk away with all the water in some really water-scarce basins. This will be at the cost of living of millions of farmers. The

problem can only be addressed by clearly mentioning water allocation priorities in the Policy document. That done, actual allocation in different basins will have to be decided on the basis of overall availability and competing demands keeping the Policy goals in mind. Pricing can then be used to encourage efficient use in each sector and financial working. At present the document only mentions about access to safe drinking water and sanitation as priority. What about other sectors, and what is the order of priority for them? Water pricing is a broad-term and has got many connotations. There is a need to make distinction between price of water (as a resource) and charges for water-related services (like domestic water supply, irrigation water supply). While the first could consider the resource cost (value in alternative uses), the second concerns the cost of appropriation and supply. How these concepts affect the pricing of water from different sources and in different sectors (economic, social and environmental) needs to be spelt out. Since in the case of groundwater, the resource is mostly in the private domain, only the resource cost needs to be considered. Whereas in the case of surface water from public irrigation schemes, both cost of appropriation, distribution and delivery, and the resource cost need to be considered. These aspects do not find mention in the document. Also, the criteria that will be used for pricing of water for domestic uses, which are non-economic, need to be explicitly stated. Can we go by the long-term marginal cost pricing principle? In that case, the resource cost and environmental degradation due to its use will have to be considered along with the cost of production and supply of water. While this will ensure cost recovery and efficient use, how do we ensure that the poor are able to access water of sufficient quantity?

Ramaswamy Iyer former secretary at ministry of water resources and principle draftsman first National Water Policy, 1987 There can be no general priorities for all contexts and areas and the relative priorities will depend on the right land use for the area. The question is not exactly one of agriculture versus industry, but about the best use of water in a given area, having regard to all relevant circumstances (including the availability of water). In an area with water scarcity, it would be unwise to promote water-intensive use, whether agricultural or industrial; development in such areas may have to take other forms. A general

preference for agriculture could lead to the introduction of water-intensive agriculture in an arid area, creating an unsustainable demand for water. An absolute priority, say, water for life and livelihoods, is a sequential priority and it must be met first before any other use is considered.The relative priorities among those other uses (agriculture (beyond livelihoods), industry, commerce and recreation) are proportional and a matter of sharing of what is available, with relative weights in the allocation to different uses. Ecology cannot be asked to accommodate development needs. Our visions of development must spring from an understanding of ecological limits. We do not allocate water to the ecological system. Ecology tells us how much water we have for allocation. Ecological limits and parameters come first; human (and animal) basic needs come next; all other uses come thereafter, and these are not merely economic but also social, cultural, customary, and other.

Archana Vaidya partner Indian Environment Law Offices (IELO) There is no disputing the fact that we need to have a national water perspective in our country while planning, managing and developing this scarce, natural resource. This however becomes extremely complicated given the constitutional framework of our country where water, barring interstate rivers and their management, is a state subject. The draft National Water Policy, 2012 is surely a step ahead in the right direction in more ways than one but it still leaves a lot to be desired. On one hand there are several progressive features in this draft but at the same time some very important issues have either been left out from the previous Policy. The draft does not categorically prioritise the use of water as was done in the previous Policy and this looks like a half-baked effort. It is understandable that such priorities should not be fixed in an inflexible manner for the entire country of the size of India with different agro-climatic regions at the Central level. It would however be advisable if basic principles of resource allocation are enumerated in the National Policy with discretion available to the state governments to prioritise their own water among various users according to their specific needs but in conformity with national perspective.

The following are some of the other important issues that this draft Policy needs to take into account and deal with more effectively:

The first part of the preamble of the Policy does not do justice to the context setting for a review of Policy. It also does not enumerate exhaustively the issues that need to be addressed by the Policy and the issues that led to the review of the Policy in the first place. For example, it nowhere speaks of the need to have comprehensive resource mapping of all available water resources to the smallest possible water management unit and its constant upgradation at regular intervals to enable water management authorities take informed decisions and do water planning based on reliable scientific data. The Policy also does not recognise the need to have a conducive regulatory and institutional framework with commensurate technical and financial strength to do the same.

The Policy also does not see any merit in having short-term, medium-term and long-term water management plans for basic water management units, states and for the country as a whole, incorporating all the variables having a bearing on such planning. Water planning of any water management unit should take into account the amount of rainfall in the region which can be harnessed, saving of water that can be achieved by mandatorily employing measures of water conservation and possibility of recycle and reuse. Any user of water should also have corresponding duty to use water in a sustainable manner, to conserve and use water efficiently and recycle and reuse water depending upon the type of user and the quantum of water being used.

The second part of the preamble setting out basic principles dealing with some commonality in approaches of dealing with planning, development and management of water resources does not take into account sustainable use of utilisable water, water conservation measures needed to be employed by every water user, water use efficiency in every usage, systemic efficiency for any water delivery system and incorporation of polluter pays principle for industrial users. The basic paradigm of planning where demand and supply need to balance each other and in case demand outstrips supply then multiple measures have to be adopted to bridge the gap have also not been mentioned as a basic principle. It also does not stress the need to harmonise state specific requirements with national perspective.

To have national water framework law to evolve a legal framework to make way for essential legislation on water governance in every state. This is a crucial requirement and should be done in a time-bound manner. However the Policy is silent on the same.

At the planning stage itself when available water resources are taken into account the impact of climate change on its future availability needs to be

considered in the planning process. Thus, any adaptation required will automatically get integrated in to mid-term and long-term water management plans which the Policy does not envisage.
y

Enhancing water available for use, demand management and water use efficiency are interlinked concepts and need an integrated approach. All measures that would manage demand or enhance water use efficiency would automatically lead to enhanced water available for use. At the water planning stage if we know the gap between demand and supply, different strategies of water conservation, water augmentation, water recycle and reuse can be employed depending upon the specific conditions and requirement of a particular region to bridge the gap.

Water pricing reflecting the actual cost of water, once basic drinking and hygiene needs of human beings are met is a very basic reform that this sector needs. The Policy reiterates once again the need for the same but no time bound action is envisaged to set up institutional mechanism in the states to do the same. The Policy does speak of state-level water regulatory authorities but no guiding principles have been laid down to ensure that such institutional mechanism is free of state control, autonomous with adequate stakeholder participation and refrains from a top down approach.

The Policy treats preservation of natural water sources and water infrastructure in the same way, which is fundamentally flawed. The former is one of the fundamental duties of all the citizens and also a duty of state to maintain and preserve them, while the latter is a function of financially-viable organisations that are responsible for maintaining water infrastructure and is a direct fallout of administered water pricing.

At one place the Policy states that Integrated Water Resources Management (IWRM) taking river basin/sub-basin as a unit, should be the main principle for planning, development and management of water resources. Another place it states that local governing bodies like panchayats, municipalities and corporations and water users associations shall be involved in planning and implementation of the projects. However the Policy is silent on how to reconcile these two approaches. On one hand it advocates water resource planning to be done at the basic level and on the other it says we need to have a national perspective while planning.

Interlinkages with other relevant policies i.e. industrial policy, agricultural policy, land use policy and mining policy need to be highlighted so that all these policies have compatible provisions and can be interpreted harmoniously.

It would not be out of place to mention here that a National Water Policy should also address uniformity in water management across the country and equity for different users and within same user group. The policy should clearly acknowledge Right to Water for drinking and basic hygiene purposes as a fundamental right which would cast a corresponding duty on state to provide this to one and all. The quality, quantity of water, its access, distance should also be mentioned in the policy to make it a meaningful right. This would provide a remedy for people who are denied this fundamental right. Any use of water over and above the basic need can be allowed to be governed by economic considerations incorporating full cost recovery and return on capital investment principle.

Philippe Cullet, senior visiting fellow, Centre for Policy Research, School of Oriental and African Studies This is both simple and multi-layered question which I am not sure I can answer comprehensively here. With regard to prioritisation in a policy document there is nothing wrong with the policy doing so. However, 1) this can never make the prioritisation binding, 2) a policy cannot be used to regularly change the framework by which the water sector is governed (1987, 2002, 2012). A policy in the governance system we have is meant to be a precursor to an Act which sets out rights and obligations, 3) prioritisation per se is a crude way of addressing inter-sectoral allocation of water and thus should neither be the centre of all attention nor alternatively be conceived simply as a list. The proposed framework is inappropriate for several reasons: Prioritisation must by definition be guided by the existing legal framework. This means that the National Water Policy has no choice but to work prioritisation within the context of a hierarchy which is given in the form of the fundamental right to water. The point is not that this is not done here but that it's not done in the name of an overriding legal priority. The more important point is that a policy like the National Water Policy is to be guided not only by the fundamental right to water but also by all other rights whose realisation depends on water. This includes health (mentioned here but again not as a fundamental right), sanitation (hygiene mentioned but not the right to sanitation) and food (mentioned in terms of national food security, not the right to food).

What the above point to is the fact that an indirect of direct prioritisation will necessarily be embedded in the National Water Policy. This must be made explicit in terms of what is actually hierarchical (namely fundamental rights), as well as what stems out from other parts of the Constitution, such as Article 47 ('duty' to raise the level of nutrition). This does not leave much space for bringing in concepts like water as an economic good into a prioritisation. Beyond this, there is the issue of who should be in charge of the said prioritisation. As we have seen it in the groundwater model bill developed for the Planning Commission, this specific issue is one that needs to be also in the control of the lowest possible authority.