Sanjiv de Silva, Aditi Mukherji and Bharat Sharma The Water Sector Policy and Legal Framework in the Indo-Gangetic Basin A cross-country analysis of trends New Delhi, November 2009

Questions we asked (1)  How has the legal regulatory framework in IGB changed over time? What are the emerging areas of emphasis?  Overall policy/legislative activity  Changes in sectoral emphasis  Movement from resource development to management and governance  Similarities and differences at cross country, and sub-national (India & Pakistan) levels  Drivers of change

Questions we asked (2) Qualitative analysis focused on selected topics to contrast with quantitative results: –Groundwater (GW) –Floods and droughts –Integrated Water Resources Management (IWRM) –Decentralization and participation  Focus on India in this presentation (but not the case in the planned publication)

Methodology (1)  Located 101 instruments mainly through the internet –FAOLEX, website of the Commonwealth Legal Information Institute, the India Water Portal, and national websites (official and others).  Developed a framework for analysis and comparison of instruments –Identification of: Key sectoral focus & other sectoral content & priorities for water allocation Classification – resource development/management/governance orientation (SUBJECTIVE BIAS) Content covering resource development/management/governance  Distributed each instrument’s content across the framework  First level analysis of trends (quantitative) - by combining the framework with the grouping of instruments by decade and comparing across countries  Second level trends analysis (qualitative) - by assessing their content and comparing across countries  Amalgamation of the two analyses

Total LI: 98 Earliest LI in the sample: Canal & Drainage Act, 1873, India. Includes State and Provincial instruments in India and Pakistan respectively. Methodology (2):

Methodology (3): Key components of the framework Comp onents GeneralGeographi c Scope Document Type Focus of the DocumentAbstraction & Use Water Management & Governance Conflict Resolution Mechanisms Sub- compo nents SourceRegional Scope Water LawIrrigation and drainage Drinking water and its provision Water Allocation Priority Irrigation ID numberCountry(s) Involved Water Policy Hydro-power development Municipal use of water Water Resources Planning Special Provisions for GW Private Individuals Title of the Document States/ Provinces Other Instruments Watershed management Industrial water useInstitutional Development & Decentralization Firms Date of the Document Ecological uses of water Integrated water resources management Maintaining environmental Statutory Bodies Document type Water harvesting through check dams Equitable Water Distribution Integrity Water Conservation Sovereign State Document Development Flood managementWater ConservationGeographical allocation Drought management Fisheries and aquaculture Provisions for Water-short Regions or periods Pollution control and water quality management Primary FocusParticipation in water resources management decision making Water use efficiency improvement Inclusion of women and other marginalized groups Water Rights / Access to Water

Subject to interpretation & overlap Water resource development Water resource management Water resource governance An orientation towards increasing resource exploitation. E.g. expanding irrigation and hydropower generation. Laws to manage Public Production Recognition of the need to regulate exploitation and establishment of rules and institutions for this purpose. Laws to promote and regulate Expansion of rules and institutional structures from resource regulation to also address ecological & social issues. E.g. decentralization & participation in planning; equitable access amongst different sectors and stakeholder groups; adoption of integrated resource planning approaches. Methodology (4): Definitions

Temporal Trends Findings

A sudden spurt in number of water related instruments after An exponential increase in overall activity…

driven by a shift towards management/ governance

Coincides with the emergence of State and Provincial instruments in India and Pakistan respectively. …and towards decentralization

In India: a similar pattern emerges even beyond the water sector

Nevertheless, irrigation & drainage dominates in absolute numbers

IWRM India Water Quality India Irrigation & Drainage Pakistan GW India … but the focus has widened since the 1980s More color = more diversity

IWRM emerging in 2000s across IGB GW a key priority for India in 1990s I&D dominant in BD over last 50 years & in PK in 1990s Expansion from I&D to IWRM in BD in last 20 yrs … including GW & IWRM (and its components)

Groundwater Findings

Emergence in the 1990s Country Primary FocusSubstantial FocusMinor FocusTotal Nepal0202 Bangladesh1225 Pakistan0336 India87520

Entirely private investments Some speculative hypothesis 1.In response to public hue and cry over GW? 2.Almost no state intervention and the state is trying to get a handle to control? 3.States need to be seen to do something? Why a plethora of GW laws in 1990s and 2000s…

…especially in India?  Featured in 20 of the 25 instruments assessed for the period 15 classified as having either a primary or substantial focus  Close similarity in content (and language) between the three Model Groundwater Bills at Union level (spanning a period of 13 years). The three significant additions to the 2005 version are: A focus on securing groundwater for drinking Emphasis on GW recharge Requirement for the Central GW Authority to maintain a GW database  The similarities (with the 2005 Bill) continue down to four State-level instruments in terms of content and language (almost identical in the Bihar Act).  In fact donor-driven rather than responding to local specifics.

IWRM Findings

Appears to have taken off in the 1990s

…after the Dublin Principles of 1992  17 of the 19 instruments occur in or after 1992.

…but the relationship seems more complex  Majority of instruments (10 of the 19) occur after a time lag of 10 years for the Dublin Principles to influence national instruments  The texts of the various instruments indicate references to the need for integrated approaches to water management prior to  E.g. India’s National Water Policy of 1987  Suggests that IWRM principles may reflect pre-existing knowledge at country level, and are in fact a codification of this.  But did formal recognition at international level give IWRM an added legitimacy post 1992?  Suggests a two-way cyclical national-international-national interaction given the post-1992 emphasis on IWRM.

Decentralization & Participation Findings

Decentralization: similar timing to IWRM

…but Bangladesh appears to lag behind Institutional orientation remains at national scale. In terms of geographical/administrative scale covered by institutions:

In terms of orientation/functions of institutions:

Participation  The quantitative analysis suggests a relatively late emergence  But a more detailed assessment indicates that decentralization and participation predates its visibility as a principle in policy and legal texts.  Today these are well established principles, but display different timelines and maturity. E.g. Bangladesh: despite recognition by policy instruments, little evidence to indicate translation into practice. India: over half (13/24) the organizations either established or referred to in the 2000s operate at levels no higher than the district and sub-basin.  Attention to providing access to marginalized social groups across IGB, but weak in Bangladesh.  Recognition (especially in Nepal) of the need for empowerment and capacity building of local institutions to bridge gap between enactments and practice.  Overall: significant attention to establishing water sector organisations and promoting equitable participation & access, but effectiveness?

Flood and Drought Management Findings

 Emergence of flood and drought management instruments during the India displays the most consistent focus on both flood & drought management. 13 of the 19 instruments are at the State level. Despite Bangladesh’s high exposure to flooding, only three instruments appear to have any focus on flood management. Relatively low prominence except in India

 Bangladesh has the only instrument with flood management as its core focus (Bangladesh Water and Flood Management Strategy, 1995). …but do numbers always tell the whole story?

Conclusions

 Significant increase in water sector policy and legislative activity in the past 20 years throughout the IGB  Shift towards viewing the resource through a ‘governance lens’, and this has brought a diverse set of issues to the table  A similar effect from emergence of broad multi-sector and multi-disciplinary concepts such as IWRM, and the interaction with international norms  The GW sector in India suggests that significant legislative activity may not always be meaningful at ground level. Will depend on what motives underlie legislation.  To follow-up: explore what drives policy and legislative responses using the identified shifts in focus. Conclusions

Searchable Database on Water Sector Instruments in the IGB

 F ramework containing the content of the 101 instruments is being converted to a database.  Searches possible:  by country/State/Province instrumentscontent  by topic country/State/Province content. Searchable Database

Instruments that cover (Select one): Water resources development Water resources management Water resources governance Water-related Instruments by Content Back to main menu

Water Resources Management: Groundwater management Flood management Drought management Pollution control Watershed management Maintaining environmental integrity Fisheries and aquaculture Water use efficiency Integrated water resource management (IWRM) Water-related Instruments by Content Back to instruments by content menu Back to main menu

Select one: All countries India Bangladesh Nepal Pakistan Water-related Instruments by Content Section: Water resources managementTopic: Flood Management Back to instruments by content menu Back to main menu Back to water resource management page

Instruments by Contents Results display page CountryInstrumentYear IndiaEmbankment and Drainage Act1953 Water Resources Planning Act1992 The Rural Electricity Policy2006 Uttar Pradesh State Water policy1999 Rajasthan Farmers' Participation in Management of Irrigation System Act2000 BangladeshEmbankment and Drainage Act1953 Bangladesh Water and Flood Management Strategy1995 Bangladesh National Water Policy1999 Bangladesh National Water Management Plan2001 NepalSoil and Watershed Conservation Act1982 Water Resources Act1992 Local Self-Governance Act1999 Irrigation Regulations2000 PakistanDraft National Water PolicyNot known Pakistan Water and Power Development Authority Act.1958 Punjab Canal and Drainage Act1873 West Pakistan Water and Power Development Authority Act1958 The Sindh Irrigation and Drainage Authority Act1997 North-West Frontier Province Irrigation and Drainage Authority Act1997 Topic: Flood ManagementCountry: AllState/Province: n/a Back to instruments by content menu Back to main menu Back to water resource management page Back to previous page

Select one: View the provisions that relate to the topic View the entire instrument Instruments by Content Topic: Flood ManagementCountry: IndiaInstrument: Uttar Pradesh State Water Policy, 1999 Back to instruments by content menu Back to main menu Back to water resource management page Back to previous page

Water-related Instruments by Content Results display page SectionText 4.9Flood protection should be considered as an essential component while planning water resources of a basin or sub-basin. 7.1The problem of the flood has been recognized as a basin problem not confined to a state. 7.3(a)Preparation of a perspective plan up to 2025 in which the priorities be fixed to tackle the areas which are worst affected both in terms of frequency and extent. 7.3(c)While planning water resources projects flood protection, water logging and drainage decongestion should be included as an integral part wherever possible. 7.3(d)"Tariff Regulatory Body" proposed to be setup for the determination of water charges should also look into the possibilities of levying cess on the areas protected from floods and suggest ways and means for the enforcement keeping in view the wider socio-economic perspective. Topic: Flood Management Country: IndiaInstrument: Uttar Pradesh State Water Policy, 1999 Back to instruments by content menu Back to main menu Back to water resource management page Back to previous page

Thank you.