Right to Water-Issues and Concerns*

*This essay makes an attempt to present all alternate issues, concerns, viewpoints, and projections that are a part of the discussion and deliberation on water rights and water regulation. The views expressed here are a reflection of the tenor of the debate currently unfolding on the future of evolving a governance mechanisms of a critical natural resource, and does not necessarily present the official position of the government on the subject.

Legal Conventions on Water Resources

The oft repeated adage that the Third World War will be over Water-outlines the future scenario in a macabre manner. Water along with the air we breathe in is considered one of the essentials of life-without which life is not possible. Recent developments like irrigation management reforms and the global debate on climate change projected to impact per capita water availability adversely have brought attention on issues surrounding the use and ownership of Water Resources-long considered a natural good. However, water scarcity projections and environmental concerns have taken the debate on water resources use to concerns about access and control over water even as multiple demands battle to establish its claims and counter claims on water.

The water resources law is poised at an interesting juncture grappling with the huge responsibility of establishing the rules and regulations for governing water resources management in the 21st century.The era of liberalization, privatization and globalization, the resultant governance reforms in administration and service delivery and the changes in the legal norms, structure and institutions to sustain these reforms are revolutionizing foundations of operational norms and structures in all sections of governance.

Questions like who owns and controls water and who gets how much water have become issues of policy concerns and legal / technical means of controlling water use in water scarce conditions. Moreover, the contest on better water management contains within it a more complex and intricate contest between issues of equity and efficiency in water management. This debate in fact underlines the fundamental conflict between protecting the inherent right of human beings to a few basic goods essential for leading a dignified life vis-a-vis the commercial exploitation of water. Both arguments hinge on ensuring judicious usage of water.

Recent Global Enunciations:

Broadly, four formulations of water management discourses at the international level have been guiding water sector reforms-

1. The Dublin-Rio principles
2. The advocacy of water markets and privatization of water services (propagated by the World Bank and the Asian Development Bank)
3. The approach of Integrated Water Resources Management propagated by the Global Water Partnership and the World Water Council) and
4. The rights discourse-(right to water)

In academic portals the first three formulations constitute the Global Environmental Management discourse (GEM) of water, which emphasize a technocratic worldview requiring science-based solutions and external policy and/or managerial interventions, recognizes water as an economic good to improve efficiency, equity and sustainability, advocates the rolling back of the state, promotion of private sector involvement, adoption of market based delivery systems, establishment and enforcement of an effective individual property rights regime. The Dublin Declaration formalized following four principles to reverse the trends of overconsumption, pollution, droughts and floods.

Principle No.1-Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment.
Principle No.2-Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels
Principle No.3-Women play a central part in the provision, management and safeguarding of water
The General Comment 15 adopted in November 2002 by the United Nations Committee on Economic, Social and Cultural Rights can be said to be the most explicit formal adoption of right to water as an independent human right.
Principle No.4-Water has an economic value in all its competing uses and should be recognized as an economic good

An Integrated Water Resource Management, decentralization and participation of water users, water as an economic good, cost recovery through appropriate pricing, water markets, participation of private sector and independent regulators have been some of the key components of the reforms are initiating momentous implications set to redefine water law in the country having far reaching implications on the manner in which water will be governed in future.

Water law Reforms:

Water law reforms unfolding as a part of the overall water sector reforms have been unfolding in an atmosphere of virulistic expansion and exposition of liberalization, privatization and globalization in developing countries. Set within this context, facing challenges from issues like the water pollution, water conservation, water governance and management, traditional water law is being challenged and undergoing alterations. The physical scarcity of water has come to rule the perceptions and governing rules in the water sector. A school of thought propounded that the conservation of the scarce water resource can be achieved by putting a price on it like a commodity so as to establish its cautious and economical usage. Thus establishing water as an economic good. These economic good proposition are generally lead by many multi-lateral agencies as a condition of financial assistance. Extending this proposition a bit further; logically any economic good should be used to provide maximum economic gain. And therefore water should move to the sector that pays the highest for the resource and makes the most efficient use of water!

This puts the irrigation sector in the most disadvantaged position given the high water consumption and low returns that agriculture generates compared to other industrial sector. Extension of the economic good theory to the drinking water sector means that the access of poor, who can not pay for the drinking water and related service, is restricted. Nonetheless, under the conditions imposed by the multilateral agencies, the focus of water sector reforms is to make agriculture and drinking water economically viable by transforming the structures, management principles, legal and policy framework, governing it for heralding changes for carrying forward the economic good theory that have far-reaching implications.

The water and irrigation reforms are set in the era of economic liberalization in favor of privatisation or for public private partnerships. The economic goods theory and these neo liberal approaches are extended to agriculture and drinking without any debate and appreciation of life supporting nature of water. Rather water is treated as any other underlying financial instrument at par with many negotiable instruments.

Modern Water Rights:

For water to be treated as an economic good and/or as a commodity, the quantification, specification, ownership rights and possession are necessary precondition. Water Rights in agriculture sector are deemed to be usufructuary rights or rights to use-legally recognized, registered, near perpetual. Right to use does not entail right to trade. Therefore the scope of the present definition of water right needs to be redefined to convert the water use right in to a good. Scarce goods have good profit margins. Scarcity of this good (water) also creates potential for huge profits provided this good be converted to economic good.

The first step therefore begins at defining the good and its ownership. In water sector it is recognized as ntitlement. Entitlement to water. The entitlement is for a seasonal or annual quantity. Non-fulfillment of entitlement obligation leads to compensation. Maharashtra has also made entitlement as tradable right separate than the land ownership. Practically it means that the entitlement holder can sell it any one though not connected with agriculture. The entitlements are created by a competent authority and enforced. In Maharashtra, the Maharashtra Water Resources Regulatory Authority carries out both these functions. Water rights not unlike the land rights are deemed to usher in a market culture in water resources by introducing principles of individual ownership, exclusive preserve, use rights and commodification of natural resource, the rights of which have traditionally been vested in state as a public trustee for community purposes.

Water Markets:

Individual ownership, use, allotment, transfer, and selling of these rights is intended to lay foundation of water markets in which the regulator functions as the apex body overseeing, balancing and adjudicating. These entitlements can be transferred, bartered, brought or sold within a market system. The purchasing power of buyer would rule in such market lead water rights that can severely undermine the access of those who do not have purchasing power. Sale of such rights under distress can also not be ruled out. Use of water in sector other than agriculture produces higher returns and thus the user of the sectors other than agriculture can afford to pay a higher price for the water. In a market lead water right system, these other sectors can easily buy the water originally allotted to a agriculturist. The flight of water from agriculture to other sector can adversely impact the food security. Scarcity of water and big purchasing power can also result in hoarding of water rights to be sold at profit. Can we allow to create an enabling environment, in disguise of economic efficiency, that allows the diversion of water from agriculture, merely because it produces lower financial returns compared to other sector? Can we refuse the drinking water to those who cannot pay for it? Can we make the water as an instrument to be hoarded and sold for profit?

Water Rights versus Right to Water:

Water rights get confused and co-related with right to water, which belongs and elaborates the human right discourse on water management. It has to be noted that water right is only a sub-set of the right to water which is a much broader concept that includes dimensions like scope (quantity and quality requirements, accessibility and affordability) duties and responsibilities, ownership, delivery, pricing (state, market, social versus economic good) relationship with other rights, participation in decision making, macro-global developments impacting the content and working of the right and so on. Right to water is a part of the broad right to development, or right to resources discourse which is irrespective of the present ownership or access to property that emanate from concerns like human dignity, human rights, and equity, where the thrust is on ensuring a social minimum to all.

Implications of Water Rights and Water Markets:

One needs to understand the nature of these rights and the future implications that the entitlements regime has within it. Water allotted for agricultural use in customary rights/ historical rights / contractual rights/statutory rights / entitlements are basically use-rights, where the user is given water for certain specific use. The use of water in agriculture sector is primarily for food security of nation and its citizen. The country governments do make the decisions of re-allocation of water during distress keeping the interest of the community and country above than the rights of individual for making profit. The point of concern is that entitlements tend to transform these use rights into tradable property rights, as when the use ceases or is deferred the right can be sold, bartered and transferred to other users. How can any individual or group or institution be given a right to water that is unrelated to use is something that needs to be carefully looked into.

Water entitlements according to the pro-reformists are intended to strengthen the rights of water users by stopping any kind of diversion of water resources, from rural users to urban-industrial users and secure the rights of the marginalized and the poor; instill efficient use of water and reduction in wastage because of the costs involved; equitable distribution of water resources by making the poor and other disadvantaged sections entitled to due shares.

The entitlements regime in effect is set to replace and substitute the varied community, collective, state, shared, conventional, religious, historical, traditional laws that have governed governing water use and ownership issues since time immemorial. Thus the right to water recognized as a part of Right to Life, the principle of Public Trust Doctrine which accords a right to the state to protect and preserve natural resources and public goods for general welfare of the people, the common law principles, the system of riparian laws, the conventional community rights of communities which have historical rights on usage of surface water for common use like fisheries, washer men, livestock rearing, brick making etc. stand to be nullified and replaced by allocations and allotments determined and decided by markets and a quasi- judicial body not accountable to anyone.

Regulating in Water Resources:

The rolling back of the State and changing the role of the State from a provider to a facilitator post-liberalization has led to a phase of establishment of Independent Regulatory Authorities to protect the interests of the service users and also the interests of the service providers and create an atmosphere conducive for private sector participation in domains that traditionally have been the preserve of public sector. Thus opening of sectors like telecom, electricity, insurance etc. to private participation has led to the creation of independent, quasi-judicial regulatory bodies like Telecom Regulatory Authority of India, State Electricity Regulatory Commissions, Securities and Exchange Board of India that have become the new institutional bodies entrusted and empowered to decide on matters like terms of competition, price of services, distribution of services and benefits among stakeholders to bring in economic efficiency in the operation of the sector as a whole. Establishing of individual rights over water is one of the central and necessary conditions surrounding regulation in water resources management.

Water Resources Regulatory Authority-Maharashtra:

The Maharashtra Regulatory Authority Act generates keen attention as it is one of the first cases of a Regulatory Body created in water sector in the country. The Maharashtra Water Resources Regulatory Authority Act 2005 establishes MWRRA as the regulatory authority to regulate the water resources in the state. The impacts and implications of the Act and what it signifies for the future of water resources management is keenly followed elsewhere as the CWC has called upon all states to follow and emulate Maharashtra and establish similar Regulatory bodies in Water Resources Management. The key functions and powers of the MWRRA as detailed in the MWRRA Act can be summarized as:

• Determining of distribution of Entitlements for various Categories of Use and the equitable distribution of Entitlements of water
• Determining the priority of equitable distribution of water during periods of scarcity
• Establishing a water tariff system which reflects the full recovery of the cost of the irrigation management, administration, operation and maintenance of water resources project
• Administration and managing of interstate water resources apportionment on river systems, of the State
• Reviewing and clear water resources projects proposed at the sub-basin and river basin level
• Laying down the criteria and monitor the issuance of Entitlements:-Entitlements shall be issued by River Basin Agency based on the Category of Use; Bulk Water Entitlements shall be issued by the River Basin Agency for irrigation water supply, rural water supply, municipal water supply or industrial water supply to the relevant Water User Entities including Municipalities, Water Users Associations, Industrial Users and State agencies; terms and conditions governing issuing of Bulk Water Entitlements for irrigation, by River Basin Agency, to the Water Users Associations at three levels; issuing of Aggregate Bulk Entitlements to Water User Entities
• Laying down the criteria for modification in Entitlements for the diversion, storage and use of the surface and subsurface waters of the state.
• Fixing the criteria for trading of water Entitlements or Quotas on the annual or seasonal basis by a water Entitlement holder where entitlements, (except Aggregate Bulk Water entitlements) are deemed to be usufructuary rights which may be transferred, bartered, bought or sold on annual or seasonal, basis within a market tof the Authority; Quotas of water determined by the seasonal or annual allocation assigned to an entitlement shall be volumetric usufructuary rights which may be transferred, bartered, bought or sold on an annual or seasonal basis within a market system as established and controlled by the rules of the Authority;
• Reviewing of entitlements at intervals of not less than three years
• Registering and monitoring of Bulk Water Entitlements
• Permanent transfer of Entitlements and registry of Entitlements
• Adjusting quantities of water to be made available to all Entitlements and permitting the temporary transfer of Water Entitlements between users and categories of users in the event of water scarcity
• Establishing regulatory system for the water resources of the State, including surface and sub-surface waters
• Establishing a system of enforcement, monitoring and measurement of the Entitlements
• Administering the use and Entitlement of water resources within the State in a manner consistent with the State Water Policy

Water Resources Regulatory Authority-Uttar Pradesh:

Uttar Pradesh is the other state that along with Maharashtra has given legislative clearance to the establishment of a Water Regulatory Authority. Most of the provisions in UPWRRA are similar to the provisions and conditions provided in the Maharashtra Act. For academic interest, the key functions of the UPWRRA are summarized and presented below.

• Approving the Integrated State Water Plan / Basin Plans developed by State Water Resources Agency
• Determining the allocation and distribution of entitlements for various category of use of water at utility, project level and also between various water user entity
• Laying down the criteria for modifications in the entitlements for the diversion, storage and use of surface and ground water of the State
• Reviewing and according clearance to new water resources projects proposed at the river basin / sub-basin level by the concerned entity
• Establishing a system of enforcement, monitoring and measurement of the entitlements for the use of water
• Monitoring conservation of environment and facilitate the development of a framework for the preservation and protection of the quality of surface and ground water resources
• Withdrawing the entitlement or take any action as deemed necessary in case any water user entity pollutes or causes to pollute any surface or ground water source of water
• Imposing penalty on any organization or agency
• Review the entitlement as and when considered necessary
• Registering and monitoring bulk water entitlement by the Commission or its duly authorized representatives
• Promoting competition, efficiency and economy in the activities of the water

Water Resources Regulatory Authority-Andhra Pradesh:

Andhra Pradesh is the other state (apart from Maharashtra and UP) that has passed The A. P. State Regulatory Commission Act-a prelude to the creation of a regulatory authority for governing water resources management in the state. However, the basis, nature and scope of the activities of the APWRRC have been drafted to differ from the focus and foundations that the Maharashtra and UP Regulatory Commissions profess to establish. Concerned at the implications of setting in motion a market led mechanism and adjudicatory body in place the AP I&CAD has sought to support and strengthen the notion of protecting the rights of the people and upholding the public trust doctrine / trusteeship principle governing the management of public goods like air, water and forests.   Motivated by the socialist foundation of the Indian constitution, care has been taken to make the regulatory Authority an instrument for ensuring water equity within the various sectors of water users. Instead of restricting the scope of the institution to a body for establishing economic water pricing, encouraging water corporatization and privatization and creating conditions for conferring entitlements and regulating water markets the is intended to create a supportive environment for facilitating participation of stakeholders, setting up standards of performance and monitoring it annually.. The APWRRC is to become a state level mechanism for progressive implementation of governance, institutional re-engineering, reforms and sustenance of the spirit of state water policy. The key functionalities of the body as envisaged in the APWRRC Act can be summarized as follow.

• Share of apportionment of water charges collections to the farmers organizations and other agencies
• Procedures and modalities for plough back to the farmers organizations for operation and maintenance
• Technical standards for operation and maintenance, cyclical repairs
• Stipulation of quality standards for water supply and waste water
• Rationalization of demands and conflict resolution between sectoral users
• Recommendations on specific issues referred to the commission by the Water Management Committee
• Determination of the water requirement for various categories of users
• Providing Guidelines / Procedures / modalities for plough back of operation & maintenance
• Monitoring the technical standards for operation and maintenance, cyclical repairs and minimum rehabilitation of irrigation system
• Ensuring that the principle of tail to head irrigation is implemented by the project authorities
• Promotion of efficient use of water resources and minimizing wastage of water
• Perform any other powers, functions and duties as assigned to the commission by the State Government by notification

Issues and Concerns:

The water sector reforms, water entitlements and regulation in water regulation regime have exposed issues of critical concern that can have a debilitating impact on governance framework and developmental concerns of developing countries. The key issues of concern necessitating closer attention can be listed as follows:

• The statutes creating entitlement and tradable water rights have in one stroke nullified, replaced, and over raided the body of customary, traditional, religious, local, conventional, historical practices and principles governing the use and exploitation of surface water resources.
• The statutes creating entitlement and tradable water rights have at one go, transformed water-considered a natural good in Indian context, ruled by the public trust doctrine into a private good, access to which is to be established through entitlements, rights to which could be bartered, sold, transferred and brought in open market conditions. Radical shift towards initiation of market mechanisms in water resources was established without taking into account the impacts that this will have on poverty eradication, livelihoods, rural development, natural resource management and general rural economy.
• The envisaged reforms will bring changes that will transform the basic principles of water law, initiate long-term impacts that will not be able to be easily undone. Varied instruments like new laws, issuing of government orders, and guidelines are instituting laws, policies, capacities, and organizations for creating an enabling environment for the establishment of water entitlements and regulation that will provide adequate incentive to attract profit seekers in water sector.
• While the Independent Water Resources Regulatory bodies, both in Maharashtra and Uttar Pradesh are empowered to take key policy decisions on water distribution, allotment and transfer of entitlements, and other water resources related issues, there are few mechanisms for making them directly accountable to the general public in any manner. These bodies have been kept out of purview of political accountability, that can have critical implications in terms of protection of rights and redressel of grievances of the poor and the marginalized.
• The Dublin-Rio Statement that heralded almost identical water sector reforms in most of the developing countries that incorporates water as an economic good is premised on the view that water is both economically valuable and finite and that only its efficient use and management can conserve and establish efficiency in the sector. Putting economic value on water calls for the creation of an environment of pricing and cost recovery for water delivery that entails extra burden on the poor and marginal sections of society and create extra baggage on the sections of society struggling to meet ends meet in a country like India. The developmental agenda of poverty eradication and the Millennium Developmental Goal of reducing by halve poverty in the country by 2015 will be seriously challenged and receive a set back with the increased burden that pricing and cost recovery of water can have on rural poverty.
• Attaching economic value to water has the potential to imbalance the equation between efficiency and equity as water will automatically get transferred to individuals /sectors that generates higher returns. This negatively impacts equity as the access to the resource becomes directly dependent on the capacity/ability of the user to afford it. The poor and the irrigation sector will be the most impacted as allocation of waters to actors / individuals that generate higher returns will lead to transfer of water from the poor to the well off, and from agriculture to the industrial sector. Transfers from agriculture to industry have larger connotations as withdrawal of water from irrigation will affect the rural poor most and augment inequalities. Cost recovery in irrigation sector is in fact an economic impossibility, given the fact that studies have estimated the full recovery charges of farmers who are now paying about Rs. 300 per hectare at Rs. 10,000 per hectare. Moreover, cost recovery norms ignore the indirect benefits like food security, livelihoods, inflation that irrigation and agriculture are associated with in a predominantly agricultural economy like India, which the cost recovery principles do not take into account.
• Recognition of water as an economic good has further complications as it implies that water as a good can than become a tradable commodity under the rules of the existing international trading system. While water as of now does not fall under the scope of trade in services, one cannot rule out the possibility of water services falling under the scope of GATS and come under international control.
• The cost-recovery principle-a part of the economic good paradigm, it is argued will establish privatization in water resources management and hit the socialistic foundations of our nation that has subsidized access to essential resources. Charges for water considered more of a social good were fixed more on affordability and have been highly subsidized. Water regulation symbolizes the shift in the countrys water resources perspective from the water as a social good paradigm to water as an economic good outlook.
• The social implications of water as an economic good principle are immense as a tradable good cannot be a subject of human right.  Imposing an economic value on water negatively impacts the realization of the right to water from a human rights perspective, where for example access to water is disconnected / denied as a consequence of inability to pay/non-payment of tariff dues. In India, the Right to water is protected as a fundamental human right by the Indian Supreme Court as a part of the Right to Life guaranteed under Article 21 of the Indian constitution.
• Water Rights directly impinge upon water as a community resource held by the State in public trust in recognition of its duty to respect the principle of inter-generational equity.
• Vigilant civil society groups have pointed out that water entitlement systems will function as a prelude to emergence of Water Lords (like land lords) which will reinforce the financial and political clout of the dominant classes and further dis-empower and dislodge the rights of poor and marginalized.
• Entitlements also have the potential of transferring the rights to other users, which may lead to large-scale diversification of irrigation water to more productive and high value users like industry and power generation. A study conducted on the distributive impacts of water markets in Chile records that farmers share of water rights decreased significantly after formal markets backed by the system of property entitlements were introduced leading to deterioration of the stranded of living.
• Water allocations based on allocated rights rather than requirements, it is argued will be ineffective and inequitable as it lays foundations for hoarding or holding larger rights for ensuring continued access to water even in scarcity periods. One cannot rule out the possibility of farmers, industry users, and energy enterprises acquiring water rights to more water than necessary to avoid future uncertainties.