Happy New Year 2016

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MWRRA: A catch-22 situation$

                                                          Article by Pradeep Purandare

ABSTRACT 

On the occasion of tenth anniversary celebration of Maharashtra Water Resources Regulatory Authority (MWRRA), this paper makes an attempt to take a critical review of MWRRA – the first ever Quasi Judicial Independent Regulatory Authority (IRA) in India’s water sector.   First, this paper explains how MWRRA is in catch-22 situation because of its 100% dependence on Water Resources Department. Then the paper points out that MWRRA’s catch–22 situation becomes more complex & serious because of systemic constraints like (i) physical system being not compatible & amenable to new concepts of regulation & governance (ii) nature & quality of O & M practices (iii) absence of separate administrative guidelines for sanctioning irrigation projects & (iv) non – implementation of water laws. Next, the paper takes MWRRA under microscope & tries to find out what MWRRA itself has done to come out of catch-22 situation & overcome systemic constraints. The paper further argues that MWRRA has not used its powers as a quasi judicial Independent Regulatory Authority & in fact, has not done many things it is supposed to do as per the Act. It then lists out many contradictions on the part of WRD & raises a question whether WRD is confused or there is method behind the madness.  Based on above discussions the paper draws obvious conclusions. At the end, many recommendations are given regarding restructuring & strengthening of MWRRA. Some of the important  recommendations are as follows: Elevate the legal status of MWRRA, delink it from Water Resources Department, let MWRRA be run by young & well qualified experts, build up a substantial corpus, make separate & substantial  provision for the authority in the annual budget, let it be an interdisciplinary Authority, and select Chairman strictly on merit basis.

Key words: Quasi judicial Independent Regulatory Authority, catch-22 situation, River Basin Authority, State Water Board, State Water Council, Integrated State Water Plan,

Compatible systems, Water Laws, Restructuring & Reforms in water sector, Water Entitlement

_______________________________________________________________________

#    Retired Associate Professor, WALMI, Aurangabad 431005, Maharashtra, India.    Former Expert Member, Marathwada Development Board.                                                E-mail:pradeeppurandare@gmail.com, Mobile No. 9822565232                             Address: B-12, Pride Towers, Vedantnagar, Aurangabad 431005, Maharashtra, India

$    A catch–22 situation means a tricky or disadvantageous condition; a catch!; a paradoxical situation that has no happy ending;  a frustrating situation in which one is trapped by contradictory regulations or conditions; an impossible situation where you are prevented from doing one thing until you have done another thing that you cannot do until you have done the first thing; a situation in which a desired outcome or solution is impossible to attain because of a set of inherently contradictory rules or conditions.  (Google)

Introduction:

On the occasion of tenth anniversary celebration of Maharashtra Water Resources Regulatory Authority (MWRRA), it is necessary to take a critical review of this first ever Quasi Judicial Independent Regulatory Authority (IRA) in India’s water sector.  It’s time to do introspection, consolidate the gains, identify & remove weaknesses & further strengthen the IRA in the larger interests of the State in general & water sector in particular. This is, of course, easier said than done!

 An attempt has been done in this article to analyse why MWRRA is trapped in a catch – 22 situation. This author sincerely believes in the concept of IRA & knows the potential of  MWRRA as an Institution . He was actively involved as a representative of WALMI in many thought processes & activities of MWRRA since its inception till his voluntary retirement in Dec, 2011. He does appreciate some of the decisions taken by MWRRA. For example, its decision regarding Nira Deoghar & its order regarding release of water for Jayakwadi Project from reservoirs in Upper Godavari sub basin. But this author sincerely feels that MWRRA could not utilise its potential. Hence, the author would like to play a role of `responsible opposition’ & raise many issues that would ultimately help MWRRA only.

1.    Maharashtra Water Resources Regulatory Authority (MWRRA)¹, since its inception, is in a tricky or disadvantageous condition; a catch!  It is totally dependent on Water Resources Department (WRD) for its very existence for reasons given below:

     (i) WRD has a decisive role in the appointments of the Secretary, Members, and Chairman of MWRRA

     (ii) MWRRA gets its funds from WRD

     (iii) MWRRA has to perform all of its activities through WRD only.

    This 100% dependence on WRD leads to a paradoxical situation i.e. instead of the so called Independent Regulator regulating WRD; it is the WRD that regulates the Regulator for all practical purposes sometimes directly & always indirectly.

2.      MWRRA has to face a frustrating situation if government (read WRD)  does following:

       (i) Amends the MWRRA Act unilaterally & in an ad-hoc manner²

       (ii) Does not amend the said Act as per MWRRA’s felt needs / experience

       (iii) Does not frame the Rules of MWRRA Act for years together

       (iv) Prepares the Rules that are contradictory to the provisions of the Act³

3. MWRRA is literally trapped in an impossible situation because

    (i) Irrigation Development Corporation (IDCs) have not been converted into River Basin Agencies (RBAs)⁴

    (ii) State Water Board (SWB) & State Water Council (SWC) have not become fully operational as separate legal entity on regular basis in a proactive manner

   (iii) There is an inordinate delay in giving hydrological data & vetting the hydrology of river basins /sub basins

    (iv)  Integrated State Water Plan (ISWP) is not ready.

    (v)   MWRRA has been forced to give clearance to water resources projects even in the absence of ISWP.

MWRRA’s catch–22 situation becomes more complex & serious because of systemic constraints.

Systemic Constraints:

(i)          Compatibility of the physical system:⁵

Large Scale Public Sector Irrigation Projects [LSPSIP] in Maharashtra are, in fact, Water-Infrastructure-Systems [WIS] which provide water not only for irrigation but even for non-irrigation [drinking, domestic, industrial, etc] purposes. These systems are highly complex Public Distribution Systems [PDS] comprising of several Techno-Socio-Economic-Legal [TSEL] processes. It is expected (but not designed for) to simultaneously achieve multiple & at times, even competitive / conflicting objectives. Existing WIS in Maharashtra are up stream controlled, manually operated, mostly open channel systems without water-control-situation [functioning control gates, cross regulators, measuring devices]. Present performance of WIS is obviously an outcome of its original nature, system constraints & inherent characteristics. For example, the Overall Project Efficiency (OPE) assumed in the design of WIS normally ranges between 41 to 48% only! It is needless to say that the actual OPE is hardly 20 to 25% because of host of real life practical considerations. Any discussion on Regulation of Water Resources in Maharashtra should not, therefore, ignore such real life system constraints. It would not be correct to expect something for which the system is not designed.

(ii)        Operation & Management (O & M) practices of irrigation projects:⁶

Prevailing O & M practices are project-centric & hence, do not consider river basin / sub basinwise integrated approach. WRD has not changed its Govt Resolutions (GR), Circulars, Notifications, Agreements & Techno-Managerial Guidelines as per recommendations of Maharashtra Water & Irrigation (Chitale) Commission Report⁷ 1999, State Water Policy⁸ (SWP) 2003 & new Water Laws, namely, MMISF⁹ & MWRRA Acts 2005. Since, the operative part is not as per SWP & new Water Laws, practically nothing has changed in practice.

O & M practices include:

(a)  Water Budgeting (Preliminary Irrigation Program, PIP),

(b)  Irrigation Scheduling,

(c)   Monitoring & Regulation of  Irrigation Schedules,

(d)  Water accounting & auditing,

(e)   Maintenance & Repairs (M & R) &

 (f) Assessment & Recovery of water charges.

Ground reality about all these important aspects is going from bad to worse. It is simply not conducive to & amenable for Regulation of Water Resources based on  modern concepts & reforms. Following two comments, perhaps, aptly summarise the O & M scenario.

- There is no management in irrigation, its only administration!                          

-  Whatever irrigation takes place, it is not the result of any planning as such. Its irrigation by accident!

       (iii) Prevailing administrative processes regarding Administrative Approvals (AA), Revised Administrative Approvals (RAA) & Technical Sanctions (TS):¹⁰

       Chitale Committee i.e. Special Investigation Team (SIT) constituted by Govt for Enquiry of Irrigation related issues, has revealed many things in its land mark report (Feb 2014). For example, Water Resources Department simply does NOT have following:

(a)        River basin-wise master plans

(b)          Its own Rules & Procedure for giving AA, RAA & TS to Irrigation Projects.  (WRD, strangely enough, follows Public Works Department’s (PWD) Rules, 1984)

(c)       Rules of Irrigation Development Corporation (IDC) Acts (1996 – 1999)

(d)         Rules & Regulations of IDCs for project-wise distribution of funds, priorities  of projects & norms of benefits  cost ratios

                   SIT report gives several examples of cost & time overruns, arbitrary changes in the scope of projects & variety of (innovative) irregularities. All such things ultimately reflect in the quality of construction & subsequently in difficulties in Regulation & Water Resources Management. For example, if the actual carrying capacity of canal system is significantly less than designed one & if the conveyance losses are much more than the assumed ones, it certainly adversely affects the regulation which includes entitlements, irrigation schedules & hence, equitable distribution of water.

(iv)  Non-Implementation of Water Laws¹¹:

 Enacting a law is not sufficient. The operative part which includes Rules, notifications, agreements, government resolutions, orders & circulars as per the Act is also equally important. If operative part is not in place, then the Act remains on paper for all practical purposes. Incomplete legal processes make regulation & conflict resolution impossible which finally help free riders & deprive water to tail enders. A brief review of three Water Laws is given below:

Maharashtra Irrigation Act, 1976 (MIA76):¹²

In absence of Rules for last 38 years & non-issuance of basic notifications (rivers, command areas & appointment of Canal Officers), MIA 76 which is supposed to be the parent Act has remained mostly on paper. Locus standi of implementing authority i.e. Water Resources Department (WRD), therefore, can itself be questioned. The obvious result is there is no water regulation & governance. Free for all situation exists. Water theft, vandalism & tampering with canal system are rampant. Offences go un-punished. Irrigators, particularly the tail enders neither get water nor compensation. Politically influential irrigators grab all the benefits. Diversion of water from irrigation to non-irrigation, flow irrigation to lift irrigation & food crops to cash crops becomes easy.       

 Maharashtra Management of Irrigation by Farmers Act, 2005    (MMISF Act):

MMISF Act was brought in to legally provide for Participatory Irrigation Management (PIM).This is the only Act which has got detailed Rules. It, however, is not being implemented in letter & spirit. Ambiguity in Rules for WUAs at higher level, non formation of sub committees, delayed or non execution of agreements with Water Users Associations (WUAs), insincerity in the processes such as “joint inspection” to “handing over”, not providing measuring devices, confusion over powers of WUAs, keeping lift irrigation out of purview of  the Act, inordinate delays in returning part of tariff to WUAs for carrying out maintenance & repairs, asking contractors to form WUAs and last but not the least, non involvement of WUAs either in water budgeting or in conflict resolution speak volumes about the actual implementation of MMSIF Act.

Maharashtra Water Resources Regulatory Act, 2005(MWRRA Act):

Maharashtra established an Independent Regulatory Authority (IRA) in water sector by enacting MWRRA Act. It’s no doubt a pioneering effort. But the actual implementation of this Act is frustrating. MWRRA Rules were prepared after 7 years from the enactment of the Act & that too only after an order to that effect by the High Court. Prepared Rules were contradictory to the provisions of the Act & WRD had to withdraw the same. The result is MWRRA Act has no Rules!  Integrated State Water Plan (ISWP) which was to be prepared & approved within one year from the enactment of the Act is still not in place even after 10 years. River Basin Agencies (RBA) have not been operationalized & issuing water entitlements by RBAs has not so far materialized. MWRRA Act has been amended in 2011 to retrospectively protect the non transparent decisions of High Power Committee regarding transfer of water from irrigation to non-irrigation. Powers of MWRRA in respect of sectoral water allocation have been withdrawn by the said amendment. Effective area under water entitlement thus has been drastically reduced. MWRRA recently decided the criteria for water tariff. But it opted for the path of least resistance. It reduced the water tariff to avoid criticism & virtually followed the policy of appeasement by providing host of concessions. But in the process whether it could follow the mandate given by the Act is a moot point. Act says that water tariff should fully recover the O & M Cost & canal system should be properly maintained. MWRRA is supposed to ensure that WRD accordingly gives adequate funds for the maintenance irrespective of concessions or no concessions. Issue of concessions is in the realm of WRD as per political decision of the govt.  The burden of concessions will be borne by the govt. The ever deteriorating conditions of canals in Maharashtra, however, tell a different story. Revision of water tariff for a period of three years from 2013 to 2016 was due in 2013. That has not been done so far (July 2015).  Regulation of all types of water (surface & ground water) & its uses for different purposes (drinking, domestic, industrial & irrigation) is supposed to be done by MWRRA. But nothing significant has been done so far regarding ground water & non-irrigation i.e. drinking, domestic & industrial water supply.

          On this unfortunate background, now it would be interesting to see what MWRRA itself did to come out of the catch - 22 situation & overcome the systemic constraints.

    MWRRA UNDER MICROSCOPE:

1.      MWRRA is supposed to be an independent quasi judicial body armed with       following provisions in its Act:

( i )      Powers of Authority and Dispute Resolution Officer u/s 13: They have the “powers as are vested in a civil court, under the Code of Civil Procedure, 1908”

(i)        Disputes & Appeals u/s 22: Prescribed procedures for Primary  Dispute Resolution Officers (PDROs) to hear the disputes u/s 22 (2) & Authority to hear the appeals 22(4)

(ii)      Punishment for non-compliance of orders u/s 26

(iii)    Offences by companies u/s 27

(iv)    Compounding of offences u/s 28

(v)      Cognizance of offences u/s 29: “No Court shall take cognizance of an offence punishable under this Act except upon a complaint, in writing made by the Authority or by any other officer duly authorized by the Authority for this purpose”.

       MWRRA has hardly used these provisions in last ten years. It does not behave like a quasi judicial authority at all. It acts more like as an academic institute involved in the extension services and / or as a toothless advisory committee with an ideal wish-list ever ready in the hand. It is literally running with the hare and hunting with the hounds (try to remain on good terms with both sides in a conflict or dispute). Therefore, nobody takes MWRRA seriously. MWRRA has not maintained a safe distance either from WRD officials or from political leaders. Familiarity breeds contempt! That’s what has exactly happened.

2.      It would be better if MWRRA, on its own, declare what it has done so far in respect of its following powers, function & duties  

(a)       Sectoral allocation from 2005 to 2011 i.e. till the amendment of the Act which withdrew its powers of the sectoral allocation

(b)      Adverse impact of amendment to MWRRA Act in 2011 on the regulation process

(c)       Bringing it to the notice of Hon. Governor (MWRRA’s appointing authority), the Chief Minister ( ex officio President of SWC), Chief Secretary ( ex officio President of SWB)  & WRD that MWRRA cannot legally function in the absence of  the framework of water governance which includes Rules, RBAs, SWB, SWC & ISWP. (There are no Rules, true RBAs & ISWP for last 10 years. SWB & SWC, constituted by law in 2005 itself, started their functioning only in 2013  & 2015 respectively)

(d)      Making it clear to all concerned that MWRRA’s decisions would be vulnerable in the absence of Rules & ISWP and may eventually be cancelled by the Court of Law if somebody moves the court & brings to its notice that basic provisions in the Act have been bypassed.

(e)       Simultaneously initiate regulation & monitoring of domestic & industrial water supply which includes determination of criteria for issuing entitlement, appointment of Regulators & PDROs, revision of agreements with utilities in the light of MWRRA Act, & guidelines for Public Private Partnership (PPP) & bottled water

(f)       Playing  a role in respect of Interstate Rivers u/s 11 (e) & (p) & categorically point it out to all concerned that any release of water for - or exchange of water with -any other State need to be incorporated in ISWP.

(g)      Powers used, functions performed & duties carried out in respect of following:

       ( i ) State Water Entitlement data base [11 (s)]

        (ii ) Hydro-meteorological information data base [11(t)]

(iii)   Irrigation Status Report [11 (v)]

(iv)   Preservation of water quality [12(5)]

(v)     Private LIS [12(6)(d), (e)]

(vi)   Water to drought prone areas [12 (10) (a)]

(vii) Restrictions on digging wells [14(3)]

(viii)     Drip / Sprinkler [14 (4)]

 General perception is, barring the exception of issues at Sr. No. (vii) & (viii) above, nothing noteworthy has been done by MWRRA. Even in the case of restrictions on wells & drip, only notifications have been issued recently. Some experts find even those notifications inadequate for host of reasons. If MWRRA had initiated the work of preparing data bases & ensured regular publication of Irrigation Status Report, many difficulties regarding data would have been reduced.

In view of above discussions, at the end of this paper, one question needs to be asked – What WRD is up to?

What WRD is up to?

WRD is either totally confused regarding what it really wants to do or there is some method behind the madness. It advocates restructuring but doesn’t go beyond reshuffling of its offices & changing the designation of some of its officers. It preaches reforms in water sector but doesn’t solve the problems of WUAs. It initiates Water Auditing, Benchmarking & Irrigation Status Reports but doesn’t make any arrangements for water & crop area measurement & simply abort / abandon all these basically good & necessary things when its reliability & accuracy gets challenged. It wants RBAs without dismantling IDCs. It legally provides for Integrated State Water Plan (ISWP) but doesn’t prepare it for years together. It makes affidavit in the High Court & gives roadmap of preparing ISWP & in the same affidavit it also talks about amendments to the same Act. It establishes MWRRA by an Act but doesn’t complete the prerequisites of that Act. It swears by the State Water Policy but doesn’t revise it every 5 years as provided for in the policy itself.

WRD, since long, has outsourced the very thinking process to only one individual.  He gives very good advice which is mostly global in nature & certainly essential in the long run. WRD shows respect to him but doesn’t officially accept his recommendations for “practical” reasons because of its own short-sightedness, failure to understand  the things in broader perspective & complete lack of strategic thinking.  WRD only seeks his blessings to use it as sort of a certificate for camouflage & concealment purposes.. People generally don’t speak anything when WRD says that “He has appreciated our proposal”.

   Conclusions:

1.      MwRRA’s 100% dependence on WRD has created number of hurdles in - & restrictions on - its development as IRA in the truest sense of the term.

2.      Systemic Constraints like compatibility of the physical system, O & M practices of irrigation projects, prevailing administrative processes regarding Administrative Approvals (AA), Revised Administrative Approvals (RAA) & Technical Sanctions (TS) & non-implementation of Water Laws have not been considered while adopting / transplanting / imposing  present IRA model of foreign origin.  Ground reality about irrigation projects in the State is simply not conducive to & amenable for Regulation of Water Resources based on modern concepts & reforms.

3.      MWRRA has hardly used its powers in last ten years. It does not behave like a quasi judicial authority at all. It acts more like as an academic institute involved in the extension services and / or as a toothless advisory committee.

4.      MWRRA instead of carrying out its own functions & duties as per the Act, has unnecessarily involved itself in functions & duties of WRD & its other institutions.

         RECOMMENDATIONS:

·           MWRRA may start functioning like a quasi judicial IRA & start using its powers.

·           MWRRA may keep an arms distance from politicians & never succumb to their illegal orders

·           MWRRA may change its priorities as follows:

(a) Conversion of IDCs into RBAs,

(b) Regular functioning of SWB & SWC

(c) Preparation of ISWP

(d) Making systems compatible & hence, amenable to regulation & governance. (e) Insisting for introduction of New-CADA (as suggested by Kelkar Committee),

(f) Ensuring regular O & M systems

(g) Implementation of Water Laws

·           To resolve the problem of compatibility, all old water related physical systems & their management may gradually be replaced by modern systems to substantially increase their efficiency. A time bound roadmap may be developed for this purpose.

·           Globally best modern – preferably Green technologies - based on transfer of  knowledge may be brought taking benefit of globalisation

·           New water resources projects may be cleared only & only if their design & planning is based on modern concepts

·           Projects requiring rehabilitation may also be modernised to the extent possible.

·           Ongoing projects, depending upon their stage of completion, may also be modernized to the extent possible

·         MWRRA may be delinked from WRD from administrative point of view. It may have direct linkage with SWB & SWC.

·         Ways & means may be identified to make MWRRA truly independent by elevating its legal status & suitably empowering it.

·         MWRRA may be given some percentage of funds provided for in the State’s annual budget for all water related departments taken together. Such funds may specially be provided in the name of MWRRA directly & not through some particular department

·         A corpus of substantial amount may specially be created for MWRRA

·         MWRRA may have adequate technical & ministerial staff considering its increased workload due to added responsibility of aspects related to Ground Water

·            MWRRA may be restructured to ensure that it would be an interdisciplinary authority comprising of national / international level young (age group 40 to 50) techno savvy experts of proven track record from all disciplines directly related to regulation & governance of water. Post graduation in water management, regulation & governance related subject from a reputed institution should be the minimum educational qualification. Persons from various renowned Indian Institutions like IIT, NIT, IIM, IIS, WRDTC, Agricultural Universities, Gokhale Institute of Politics & Economics, etc may be preferred.

·           Chairman, MWRRA may be selected strictly on the merit basis through a national / international level selection process. Selection committee may accordingly be restructured.

·           MWRRA (Amendments & Continuance) Act 2011 may be repealed to restore MWRRA’s original powers

·           MWRRA Act may suitably be amended to incorporate above recommendations.

·           Task Force may be constituted as per directives given by  Hon. Chief Minister in the first meeting of  State Water Council on 17 Jan 2015 to complete operative part (Rules, Notifications, Agreements, etc) of all water & irrigation related Acts

REFERNCES:

1. Maharashtra Water Resources Regulatory Authority Act, 2005(MWRRA Act)
2. Maharashtra Water Resources Regulatory Authority (Amendment & Continuance) Act, 2011
3. MWRRA (Allocation & Monitoring of Entitlements, Disputes & Appeals & other Matters) Rules, 2013
4. Maharashtra Krishna River basin Act (MKRBA) Bill
5. Purandare Pradeep (2012): “Canal Irrigation in Maharashtra – Present Status”, Dams, Rivers & People, July – Aug 2012, www.sandrp.in http://sandrp.in/irrigation/Status_of_Canal_Irrigation_in_Maharashtra.PDF
6. WALMI, “O & M of Irrigation Systems in Maharashtra State” Jan 2004,         Publication No.20

7.      WRD, GoM(1999): “Report of Maharashtra Water & Irrigation Commission”

8. WRD, GOM, “Maharashtra’s State Water Policy”, July 2003
9. Maharashtra Management of Irrigation by Farmers Act, 2005 (MMISF Act)
10.  WRD,GOM, ”Report of Special Investigation Team (SIT) constituted by Govt for Enquiry of Irrigation related issues, (Chitale Committee) (Feb 2014)
11. Purandare Pradeep, “Irrigation Laws in Maharashtra: Politics of Non-Implementation”, International Conference on Political Economy of Water: A Social Response, 19-21 Dec 2013
12. Maharashtra Irrigation Act, 1976 (MIA76),