Criteria for Distribution of Surface Water Entitlements

Criteria for Distribution of Surface Water Entitlements by RBAs for Domestic & Industrial Uses (Aug 2017)

Comments & Suggestions

-Pradeep Purandare

1.     MWRRA being also a Groundwater Regulatory Authority, Groundwater Entitlements too need to be dealt with. In fact, integrated approach demands conjunctive entitlements.

2.     Since Irrigation Development Corporations (IDC) are not true River Basin Authorities (RBA), it is necessary to convert IDCs into RBAs at the earliest. MWRRA may please try to expedite the matter.

3.     Sec 3 of MWRRA (Amendment & Continuance) Act, 2011substituted following for clause (a) of section 11

“(a) to determine the criteria for the distribution of Entitlements by the RBAs, within each Category of Use, on such terms & conditions as may be prescribed, after sectoral allocation is made under 16A”

MWRRA, therefore, can now only determine criteria ‘as may be prescribed’. This prescription is possible only through Rules. However, in the absence of Rules, nothing has been prescribed.  A question, therefore, is whether MWRRA can determine the said criteria. A legal opinion, perhaps, is warranted. Even otherwise the Rules of MWRRA Act are anyway required. MWRRA may please try to expedite the matter

4.     MWRRA (Amendment & Continuance) Act, 2011 has deleted Clause (n) of section 11 which reads as follows

“(n) to establish regulatory system for the water resources of the State, including surface and sub-surface waters, to regulate the use of these waters, apportion the Entitlement to the use of the water of the State between water using categories”;

On this background following important issues need to be addressed:

1.     If MWRRA cannot establish regulatory system, how the entitlements would be monitored & enforced?

2.     What will happen to the present arrangement comprising of PDROs & Regulators?

3.     Will there be a separate arrangement for monitoring & enforcing the entitlements for non-irrigation?

5.     A new section of MWRRA (Amendment & Continuance) Act, 2011 is given below:

“31A. Notwithstanding anything contained in this Act or any other law for the time being in force, the term "Entitlement" shall apply only to such areas where compliance of all relevant provisions including delineation under the Maharashtra Management of Irrigation Systems by Farmers Act, 2005 is made.”

The amendment considers entitlement for agriculture / irrigation only. It is silent about entitlement for domestic & industrial purposes.

6.     Following amendments done via MWRRA (Amendment & Continuance) Act, 2011 virtually close the chapter of redistribution of water. That would make it difficult to give entitlements to the new entrants. These amendments need to be repealed.

“31B. Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any order, judgement or decree of any court, tribunal or authority, any person or Water User Entity to whom a permission, allocation, sanction, authorization or Entitlement of water has been granted by the High Power Committee or the River Basin Agency or the State Government, prior to the 17th September 2b 10, being the date of commencement of section 1 of the
Maharashtra Water Resources Regulatory Authority Amendment and Continuance) Act, 2011, shall be deemed to have been granted, in accordance with the provisions of this Act and accordingly the same shall continue and no such person or Water User Entity shall be required to obtain fresh permission, allocation, sanction, authorization  or Entitlement to draw water.”

“31C. Notwithstanding anything contained in this Act or in any other law for the time being in force, a permission, allocation, sanction, authorization or Entitlement of water, granted by the High Power Committee or the River Basin Agency or the State Government prior to the 17th September 2010, being the date of commencement of section 1 of the Maharashtra Water Resources Regulatory Authority (Amendment and Continuance) Act, 2011, shall be valid and shall be deemed always to have been valid and accordingly no suit, prosecution or any other legal proceedings shall lie, challenging such permission, allocation, sanction, authorization or Entitlement to draw water, before any court, tribunal or other authority and no such suit, prosecution or other legal proceedings shall lie or continue on the ground that any permission, allocation, sanction, authorization or Entitlement, as required under this Act, has not been obtained. ".

7.     It is imperative to also consider / discuss following issues related to the operative part of the Entitlements.

1.     Experience / feedback regarding

(a)   Procedure for Regulation & Enforcement of Entitlements, Powers & Functions of Regulators & Responsibility of WRD Officials, Oct 2007

(b)   Technical Manual: Determining, Regulating & Enforcing Water Entitlements in Irrigation Projects of Maharashtra, May 2015 [Annex 6(1) & 6 (2)]

2.     Agreements for Non Irrigation: Existing drafts, Amendments, Execution, Renewal, Implementation [ a critical review may be taken]

3.      Measurement Devices: Procurement, Installation, Monitoring, Calibration, Records, Checking [time bound program is reqd.]

4.     Functions of MWRRA:

1.   State Water Entitlement data base [11 (s)]

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

3.   Irrigation Status Report [11 (v)]

5.     Powers of MWRRA:

1.  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”

2.  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)

3.  Punishment for non-compliance of orders u/s 26

4.  Offences by companies u/s 27

5.  Compounding of offences u/s 28

6.  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”.

6.     Applicability of Criteria:

Legally speaking WRD & MWRRA has got locus standi for all matters related to water management only if following notifications have been duly issued as per Maharashtra Irrigation Act 1976

1.       River Notification (u/s 11)

2.       Command Notification (u/s 3)

3.       Appointments of Canal Officers (u/s 8)

7.     Approach & Guiding Principles:

 Category of sub basins was decided by MWIC (1999) considering only surface water & cultivable area. It would now be better if ground water too is considered. For domestic purposes, in fact, per capita availability of water and status of watershed (over exploited, critical, etc) may be considered.

The main purpose of defining categories of sub basins is to plan water use accordingly. MWRRA may recommend industries considering Tables 1 & 2 together.

Maximum permissible use of water for different purposes in a sub basin may be correlated to the planned water use & present actual water use. Only projectwise approach would not suffice.

Review of existing reservations for non-irrigation based on new entitlement criteria may be done.

8.     Mineral Water may pl be added in Table 2

9.     Following concepts have got the potential of changing  the whole logic of water entitlements & hence, need to be discussed / gradually introduced

·        Zero Liquid Discharge,

·        Indefinite recycling & Make Up Water

·        Bio-toilets / waterless urinals

·        Water efficient taps

·        Adoption of techniques that would reduce volume of sewage itself

10.            Para 5.2 (ii) & 6.2 (i) make important & valid points but propose something which is open ended.  It is proposed that  following formula may be  given due thought

Entitlement = [Net Water Requirement as per criteria + losses] * X

Where X = some percentage to be decided which would account for other sources, rainwater harvesting, recycling, etc.

This simply means that no entity would get 100% entitlement from the reservoirs. Entities will have to do special efforts to create X volume of water on their own. X may be periodically increased / revised.

Water Sector should have entitlement standards that would progressively reduce. It’s high time we should have standards like Bharat 1, 2, 3 or Euro 1, 2, 3 in Water Sector as well.

11.             Para 5.2 (iii ) needs to be redrafted to make it clear that  eventually all water allotted for non-irrigation purposes will have to be treated. (& not only entitlement beyond sectoral allocation) Similar revised paragraph may also added under Criteria for Industrial Use

12.             It is requested to revisit the concept initiated in Para 6.2 (v) which reads as follows:

“All water used by the industry within its premises shall be considered as industrial use for billing purpose”.

It would lead to litigations & the whole process would be jeopardized. A message, even inadvertently, should not go that increased productivity is being penalised. Though industrial water use is less, its priority has already been lowered & tariff has been increased significantly. Cross subsidy for other sectors is possible because industry is “paying”. Moreover, expectations under CSR also are on increase. The paying capacity of small & medium size industry is limited & affordability clause also needs to be applied to them.  Improving recovery of tariff from other sectors is the real solution.