pp. 196-198 in Bioethics in Asia

Editors: Norio Fujiki and Darryl R. J. Macer, Ph.D.
Eubios Ethics Institute

Copyright 2000, Eubios Ethics Institute All commercial rights reserved. This publication may be reproduced for limited educational or academic use, however please enquire with the author.

5.6. Need For Ground Water Laws and Water Abstraction Ethics For Industrial Use

Jayapaul Azariah and C. Thomson Jacob

Department of Zoology, University of Madras, India

Rapid expansion in the exploitation of ground water resources in India for irrigation, domestic, industrial requirements, livestock consumption and other uses had led to the over exploitation of ground water. The protection of ground water includes the enactment of national ground water legislation, the establishment of an implementary agency and the adoption of a variety of regulatory and non-regulatory mechanisms. No single recipe will guarantee the successful protection of ground water resources. A solution must be tailored to fit the physical characteristics of specific aquifers as well as the goals and resource of a country.

The rapid growth of industrialization and excessive mining of ground water threaten the very availability and quality of ground water. The depletion of ground water resources and ground water pollution has brought about a scarcity in ground water resources in Tiruppur, as discussed in the previous paper. Tiruppur is a special grade municipality in the Coimbatore district, Tamil Nadu, India with 400,000 inhabitants. It extends to a total area of 27.19 sq.km. The main industries of the town are hosiery and knitting garments. There are about 187 bleaching and 526 dyeing units making a total of 713 water intensive industrial units which consume a total amount of 91.7 mld of water. Phenomenal industrial growth has generated a huge annual foreign exchange of more than 30 billion Rs. per year.

As members of the current generation we may wish to brighten our own welfare, improving during our own lifetime, and treating the needs of the future as less important. As the extent of the general damage increases the question of water rights becomes more urgent. Should future people be treated as if they were already dead? Should this generation care about its actions that will result in a degraded environment in the distant future? If we do care then what should be done? A great deal of thinking and research need to be done to come up with appropriate legal measures with regard to mining and the use of available ground water.

In many countries ground water is incorporated within the context of a basic water act, which includes all the water resources. The protection is achieved to some degree through a wide range of regulations which regulate specific aspect of ground water, such as extraction rates, public health and environmental protection. The agency responsible for ensuring compliance with standards and enforcing regulations should be clearly designated within ground water legislation.

A fundamental issue in ground water legislation is that of ownership. Under many traditional systems of law, property owners were historically entitled to the full use of all resources above and below their land including ground water. Private ownership of ground water is practiced in many countries including USA. However, there is a growing distinction made between the concepts of ownership and right to use. Ownership does not automatically convey the right to pollute or over exploit ground water. In other countries such as Indonesia, Australia, and Peru, ground water is considered as a public good, either through legal tradition or through the suppression of private ownership rights and the transfer of the resource to the public domain (Christine , 1992).

There are two primary pieces of national legislation mandate for the protection of ground water in United States: (1) The Clean Water Act (1972, 1987) which authorizes the US Environmental Protection Agency (EPA) to protect all water resources, and the Safe Drinking Water Act (1974, 1986) which sets minimum drinking water standards establishes special protective statues for sole source aquifers; (2) The EPA's well bead protection program: under this programme each state is required to design and implement a plan to protect public ground water supplies from contamination with in a framework of criteria established by EPA.

In 1977 the ground water act of Thailand was enacted to bring ground water activities within designated ground water areas under government control. The Ministry of Industry is responsible for designating regions as ground water areas, issuing directives and enforcement. The director general of the department of mineral resources is responsible for administrating the Act including the processing of permits and registration of wells. The act is being implemented in areas where ground water resources are particularly critical and are threatened by over exploitation and pollution. Directives issued under the provision of the Act includes, specifications for drilling and well construction: methods of water extraction and conservation, technical measure for pollution control, drinking water standards and technical principles for subsurface disposal of liquids. Penalties for violations include fines, imprisonment and confiscation of equipment. A policy has been adopted of not granting permission to construct new wells in areas where there is an adequate public water supply. Strict controls on ground water use are applied in critical zones (UNDTCD, 1986).

Ground water is under a totally private legal regime in India. Rights in ground water belong to the land owner. It forms part of the dominant heritage and as with land ownership is governed by the tenancy law of the state. The transfer of property act necessitates that the right to ground water can be given to anyone only if the dominant heritage is transferred. In short ground water is attached like a chattel to land property. There is no limitation on how much ground water a particular land owner may draw. The consequence of this legal framework is that only land owners can own ground water in India. Landless individuals and tribals are left out. The legal framework also implies that rich land lords can be water lords and indulge in openly selling as much water as they wish. The people who are worst affected by over exploitation of ground water are the small and marginal farmers (Niranjan, 1987). There farmers are affected by dropping water tables. However, any regulation is unlikely to address their problems. Since there is no distinction between water rights and land rights

Regulations tend to disproportionately exclude those who access to the work against those who have small land holdings. In consideration the various socio-economic and political interests which play an important role in the use of ground water. The dominant interests tend to be able to avoid the effects of regulation to a much larger extend then those having limited social, economic or political capital.

A summary of legal rights to water sources in India is:

Tanks and Lakes (Artificial): Individual right of owners customary use. No right if the tank is on public land. Powers of the government to regulate use of private tanks in some states. Rights vested with the panchyats or municipality if tanks is on public land.

Tanks Lakes (Natural): Customary right of the people recognized by the courts and under Easement Act. Absolute right of ownership and use.

Wells (Private) Absolute right of the land/owners. No rights for others.

Wells (Public) Customary right of groups, casts or communities; but right for all under the constitution and the civil liberties act. Power to regulate.

Tube well (Private) Unlimited right to draw water from tubewells on private land. No rights to own or regulate.

Tube well (Public) Restricted right granted Power to regulate by the state.

The Government of Tamil Nadu has introduced a bill to regulate and control the extraction, use or transport of ground water and to conserve groundwater in certain areas in the state of Tamil Nadu. The act envisages (1) registration of existing wells (2) regulation of sinking of new wells (3) issue of licenses to extract water from non-domestic use and (4) issue of licenses for transportation through goods vehicles. The act came into force with effect from 15-2-1988. The term ground water mentioned in this Act means the water which exists below the surface of ground and the term "scheduled area" means the whole of the city of Madras and the villages specified in the schedule. Any offense punishable under this Act shall be a cognisable offense within the meaning of the code of criminal-procedure 1973 (Central act 2 of 1974). In India there is no separate law for private owners to restricting the exploitation of ground water, by private owners. There is a need for at least 4 different types of legal research and management to be carried out to explore alternative for appropriate ground water legislation (Singh , 1992).

1) Examination is needed of the existing and possible legal regimes where private rights to ground water can be constructed with common property or common access rights.

2) Research is required to understand situation in which water right as separated from land rights and the possible legal alternatives and consequences of this separation.

3) Understanding of legal regimes in which environmental and other multiple use values play significant roles is required. so that appropriate elements for reflecting these values can be incorporated in any new legal structures created in India.

4) Research required related to legal regimes for different hydrological or ecological situations.

Ground water was not mentioned in any of the lists in the seventh schedule of the constitution of India. This could be because the farmers in their infinite wisdom did not envisage such a water crisis as we are facing today. The fact remains that we are faced with this water crisis. Furthermore all the attempts at action made by the various legislators have only tried to address extraction. None of the bills or acts have sought to deal with the inequity and inequality inherent in the very conceptualization of ground water. Water should not have been handed out to the regulatory states at the time of the framing of our constitution. The reason why these bills and acts have failed is because the focus of regulation was merely extraction, and the authority vested with this power was based on a political or linguistic divisions of the state.

The magnitude of emerging problem is indicated by the fact that the Central Ground Water Board of the Government of India has been engaged in drafting a National Ground Water Bill. There should be an alternative legislation. An effective ground water management which is based on the setting of realistic priorities, policies and objectives is needed:

1. The ground water and surface water are integrally linked, so ground water planning should ideally take place within the broader context of integrated water resource planning.

2. Planning should be based on the natural boundaries of the resource. Aquifers rarely respect administrative or natural boundaries. In cases where aquifers cross international boundaries treaties or other international conventions may be required.

3. Ground water planning should reflect a co-ordinated effort between agencies involved in all aspects of ground water.

4. Full protection of ground water resources is rarely practicable, priorities must be carefully targeted.

5. Public input and feedback from all sectors of the community is of critical importance in resource management.

Water is a universal solvent. It has multiple use value, is a non-renewable resource (with about 1400 million cubic km) but is recyclable. It is a common link among humanity. Water has no geographical boundary, and does not distinguish colour, creed, religion or race, so it is like universal ethics. 97.44% is salt water, another 2% is locked in ice caps and glaciers, leaving only 0.6% or 8.4 million cubic km of which 8 million are stored underground. Ground water is used in irrigation, industry, domestic households and for maintaining livestock. Water use has trebled in the past 40 years, with 69% being used in agriculture (for irrigation), 23% for industry and 8% for domestic use. About 450 cubic km of waste water flow into rivers and streams every year, and about 6000 cubic km of clean water are needed to dilute this dirty water and clean it up enough to make it reusable. Those who suffer most from this scarcity are the worldfs 1200 million poor people of whom nearly 800 million are still undernourished. (Diouf, 1994)

For an efficient regulatory regime, perhaps we require ecological, and more specifically aquifer-based divisions. The question of rights, those of the landed and those of the landless, need to be addressed within this framework. All attempts that ignore this question remain inadequate, and perhaps we need to look at water and water management more holistically: understanding surface water, ground water and rain water as a common pool of resource or a common world heritage. Segregating/dissecting does not make water management efficient. There is a need to develop a universal bioethics regarding the abstraction of ground water. water should be treated as a common global heritage and not just grouped with other natural resources. Should we have a global water authority and would it work?

References

Christine, C, (1992). Water related issues of the humid tropics and other warm humid regions. IHP Humid Tropic Programme series No.8.

Diouf, J. UN Newsletter 15, Oct. 1994, United Nations Information Centre, New Delhi. pp.1- 4.

Niranjan (1987). Ground water depletion. Economic and Political Weekly, 7th Feb. 219 pp.

Singh, Chatrapati (1992). Research agenda for ground water Law in India. Environmental Law Centre, World wide fund for Nature, New Delhi.

UNDTCD (1986). Ground Water Division, Thailand Department of Mineral Resources, 1991.


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