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The Forum and its Work The Forum (Forum for Policy Dialogue on Water Conflicts in India) is an effort to bring together all those interested in working on issues related to water conflicts in India into a loose network for action and interaction. The Forum began its work towards the end of 2004 as a collaborative effort of a few WATER organisations and independent researchers and was supported by World Wide Fund for Nature (WWF). Presently the Forum has more than CONFLICTS 150 organisations and individuals and the present phase of Forum's work is primarily supported by Arghyam Trust, IN Bangalore. The Forum's work covers the four broad areas of conflict documentation, conflict resolution, conflict prevention and network and INDIA outreach. Towards a New Legal Contact Forum for Policy Dialogue on Water and Institutional Framework Conflicts in India c/o Society for Promoting Participative Philippe Cullet, Suhas Paranjape, Himanshu Thakkar, Ecosystem Management M. S. Vani, K. J. Joy, M. K. Ramesh (SOPPECOM) 16, Kale Park, Someshwarwadi Road, Pashan, Pune 411 008 Maharashtra, India Phone: 0091-20-25880786, 25886542 Fax: 0091-20-25886542 Email: [email protected] URL://conflicts.indiawaterportal.org Forum for Policy Dialogue on Water Conflicts in India Water Conflicts In India: Towards a New Legal and Institutional Framework Philippe Cullet, Suhas Paranjape, Himanshu Thakkar, M. S. Vani, K. J. Joy, M. K. Ramesh Forum for Policy Dialogue on Water Conflicts in India March 2012 Water Conflicts In India:Towards a New Legal and Institutional Framework Philippe Cullet, Suhas Paranjape, Himanshu Thakkar, M. S. Vani, K. J. Joy, M. K. Ramesh © Forum for Policy Dialogue on Water Conflicts in India, Pune First published in March 2012 Supported by: ARGHYAM Trust, Bangalore Cover Design and Layout: Marion Jhunja Printed by: Mudra Published by: Forum for Policy Dialogue on Water Conflicts in India, Pune c/o Society for Promoting Participative Ecosystem Management (SOPPECOM) 16, Kale Park, Someshwarwadi Road, Pashan, Pune 411 008 Maharashtra, INDIA Tel: +91-20-2588 0786/ 2588 6542 Fax: +91-020-2588 6542 Email: [email protected] URL: http://conflicts.indiawaterportal.org Copies are available at the above address The contents of this report may be used with due acknowledgement of the source. Any form of reproduction, storage in a retrieval system or transmission by any means requires a prior written permission from the publisher. Citation: Cullet Philippe, Suhas Paranjape, Himanshu Thakkar, M. S. Vani, K. J. Joy, M. K. Ramesh, 2012, Water Conflicts In India: Towards a New Legal and Institutional Framework, Pune: Forum for Policy Dialogue on Water Conflicts in India. Contributory Price : Rs 200/- Contents Acknowledgements pg i Executive Summary pg ii - vi Chapter 1: Introduction pg 1 - 4 Chapter 2: Rivers pg 5 - 30 Chapter 3: Surface Water Bodies pg 31 - 57 Chapter 4: Groundwater pg 58 - 71 Chapter 5: Dams pg 72 - 90 Chapter 6: Issues and Way Forward pg 91 - 107 Acknowledgements On behalf of the Forum for Policy Dialogue on Water Conflicts in India (Forum) we would like to thank all those who have contributed to the preparation and production of this report Water Conflicts in India: Towards a New Legal and Institutional Framework. First of all we are thankful to the members of the working group set up by the Forum on Legal and Institutional Issues Related to Water Governance and Conflict Resolution - Philippe Cullet, Suhas Paranjape, Himanshu Thakkar, M. S. Vani, and M. K. Ramesh - for first agreeing to be part of this working group and then taking time off to write the various chapters. They also tried to engage with the comments and suggestions they received from the participants of the two national workshops held in March 2009 and February 2010 at Pune. We also acknowledge the critical feedback provided by the members of the first working group on Water Entitlements and Allocations for Livelihoods and Ecosystem Needs consisting of K. J. Joy, Priya Sangameswaran, A. Latha, Shripad Dharmadhikary, M. K. Prasad and K. P. Soma. The report has been greatly enriched by the deliberations of the two national workshops held in March 2009 and February 2010. The first workshop helped to define the contours of these two themes of Entitlements and Allocations for Livelihoods and Ecosystem Needs and Legal and Institutional Issues Related to Conflict Resolution. In the second workshop the draft reports/outlines were presented for a critical feedback. A special thanks to all the participants of both these workshops. We appreciate the support we have received from the members of the Steering Committee and Advisory Committee and we do count on their support in taking this report forward. We would like to acknowledge the financial support and encouragement provided by Arghyam Trust, Bangalore. In fact the second phase of the work of the Forum is primarily supported by Arghyam. We thank Marion Jhunja for the cover and lay out of the report and Mudra for its production. We are also grateful to all our colleagues in SOPPECOM for their help in bringing out this report. It would not have been possible to bring this report out without the efforts put in at different levels by, our colleague in the Forum and SOPPECOM, Shruti Vispute. A big thanks to her. K. J. Joy and Suhas Paranjape Forum for Policy Dialogue on Water Conflicts in India i Executive Summary Context The work of the Forum during the last five to six years has very clearly led to an understanding that the existing legal framework around water does not have much to offer in terms of resolution and prevention of water conflicts. There is a need to change this framework so that it becomes an instrument of conflict resolution and prevention. This concern about the inadequacy of the legal regime around water stems from many quarters. For example, it is widely believed that the present legal system is not informed of its bio-physical and socio-cultural peculiarities as a resource. Similarly, the laws do not recognise water as a common pool and ecosystem resource. The laws are mostly based on the premise that water is classical private property, which it is not. The water sector is also confronted with new issues and challenges, especially after the 1990s. There is an increasing awareness of the multifaceted crisis surrounding water in the sector, including the fear that our water resources may not be able to meet the needs of our growing population. This is also giving rise to different types of conflicts, especially around the issues of access and allocation. The demand to make the right to water a constitutional night is also gaining ground, especially because there is a fear that the resource poor might get priced out of the system with the type of reforms taking place in the water sector, especially privatisation of different types. The preoccupation with an 8 to 9% growth rate with industrialisation as its main engine is also taking a toll on water. Increasing levels of pollution and inter-sectoral water conflicts mainly because of the diversion of water from agriculture to industry are symptoms of this trend. The changing role of the state from that of service provider to regulator, and the institutional changes in the form of Water Users’ Associations (WUAs) and independent regulatory mechanisms, are also part of this new set of issues and concerns. Such issues have contributed to the widespread belief that the legal and institutional regimes governing the water sector need to be overhauled. What should be the broad direction of this change? What can the Forum do in this regard? This prompted the Forum to decide to engage with these issues on a long term basis, and as a first step, to constitute a small working group to go into these issues and come up with a report that would indicate the broad direction of the required changes. The main insights from the different chapters of the report are presented below. Rivers The existing legal and institutional structures that affect rivers in India have proved to be ineffective in protecting rivers from being polluted. When rivers have been protected in rare instances, it has been achieved through social and community initiatives that have often bypassed these established structures. In the decision ii making processes, there is no attempt at valuing the services provided by a river, either in qualitative or quantitative terms. Rivers face many existential threats, including due to dams (including run of river and other hydropower projects), pollution, diversions, encroachments, and excessive use of groundwater and catchment degradation. The newer threats that rivers face include privatisation, climate change and river linking plans. The current National Water Policy (2002) and its revision under consideration the Draft National Water Policy 2012, as well as the various state water policies have very few river-friendly elements, and are also marked by a complete absence of legal and institutional mechanisms to ensure implementation of river- friendly aspects of the policy. What is needed is an enabling legal and institutional framework conducive to an equitable, sustainable and just resolution of water conflicts in the context of rivers. Some of its key elements may be enumerated as follows: a national rivers policy, river zone regulation, floodplain protection, catchment management, protection of local water systems, wetland and forests, ensuring freshwater flow in perennial rivers even from existing dams, hydropower projects and diversions and also from such future projects, a credible community managed pollution control regime, ensuring natural flow in selected rivers, and credible redressal and compliance mechanisms, among others. Groundwater The role of groundwater in water provisioning has been increasing and, more importantly, has now come to play a crucial role in drinking water provision.