The past decade has witnessed discussions on various options to overcome groundwater depletion, such as rainwater harvesting (RWH) and ‘artificial recharge’ methods. This paper addresses law and policy issues relating to managed aquifer recharge (MAR). Based on an analysis of the National Water Policy of India and water polices and laws of the Indian states, a concrete case study, namely Chennai metropolitan area, has been studied in detail. The city of Chennai and the State of Tamil Nadu provide a favorable atmosphere for groundwater recharge, making, e.g. RWH mandatory. However, the legal framework does not support more systematic approaches towards MAR and the administrative praxis does not ensure that groundwater recharge is offset by an increase of illegal groundwater extraction.

INTRODUCTION

Highly variable rainfall over time and space and a growing population has driven India's society to depend increasingly on groundwater and its use has dramatically increased over the last 60 years, rising from 10 to 20 km3 before 1950 to 240–260 km3 in 2010, to a large extent for irrigation (Shah 2010). Around 85% of drinking water supplies depend on groundwater, which is an even more important source of water during failures of monsoon; failures occur regularly (Kumar et al. 2006). Furthermore, it is projected that by 2030 around 60% of the groundwater sources will be in a critical state of degradation (World Bank 2010).

The past decade has witnessed the discussions on various options to overcome the difficulties posed by groundwater depletion. A possible solution is its replenishment of groundwater by managed aquifer recharge (MAR). This is a holistic approach, which includes all types of groundwater recharge programs to increase water availability by generating water supplies from sources which may otherwise be wasted (Gale et al. 2006; Sharma 2011). According to Oaksford (1985), MAR is the planned augmentation of the amount of groundwater available through works designed to increase the natural replenishment or percolation of surface waters into the aquifers, resulting in a corresponding increase in the amount of groundwater available for abstraction. Essl et al. (2014) ascertained a high potential.

In India, various policies, programs and laws support MAR. The present paper explores the legal and policy implications of this situation. After an overview of national and state legislation and policies, the paper analyzes their implementation in Tamil Nadu State and specifically in Chennai, the capital of Tamil Nadu.

LAWS AND POLICIES RELEVANT FOR MAR

National policies and laws

Following the Bhopal gas leak disaster of 1984 and similar events, the Supreme Court of India concluded from the right to life (Article 21 Constitution of India) that ‘environmental, ecological, air, water pollution […] should be regarded as amounting to a violation of Article 21’ (Virendra Gaur v State of Haryana of 24 November 1994) and that drinking ‘cannot be made subservient to any other use of water, like irrigation. So the right to use of water for domestic purpose would prevail over other needs’ (Delhi Water Supply & Sewerage v State of Haryana of 29 February 1996).

This case law compelled the Government of India to revise the National Water Policy of 1987 in 2002 and later in 2012. The new policy is supportive of MAR, focusing on groundwater extraction, water resources planning, and recycling. This is consistent with the National Environment Policy of 2006, which supports rainwater harvesting (RWH) and promotes MAR. The National Water Policy recognizes the problem of declining groundwater levels in over-exploited areas and addresses technological measures to arrest such a trend; artificial recharge programs shall ensure the extraction–recharge balance of groundwater. The policy reiterates the ecological need that aquifers maintain certain base flows, it recognizes the importance of groundwater in the inter-state dispute settlement, and it declares the importance of aquifer mapping and the need for keeping that information up to date. Further, the policy addresses several quality and quantity oriented issues relating to groundwater, recycling and reuse of water, groundwater depletion, and the need and impact of small RWH structures.

To implement this policy, the national government proposed a framework law. A Model Bill for the Conservation, Protection and Regulation of Groundwater was drafted by the Planning Commission of India. The framework law is an umbrella statement of general principles of law guiding all the state agencies in their water-related agenda. In addition, the Government of India has instruments to directly improve the water situation at the local level, namely by legislation about pollution control (e.g. Water Prevention and Control of Pollution Act of 1974, Environment Protection Act of 1986) and through the authorities established under these laws. They have the mandate to establish and enforce water-related standards. A national groundwater agency is created under the environmental laws to study, survey and monitor the groundwater situation in India. This agency has wider powers to regulate the quality aspects of groundwater. Further, victims of pollution may claim damages and compensation under the National Green Tribunal Act of 2010. The national government also initiated several funding schemes, which may finance MAR structures (e.g. Central Sector Scheme, Rural Employment Guarantee Program).

State policies and laws, specifically for Tamil Nadu

Not all states approve the National Water Policy. Its most contested aspect is about rational water prizing and cuts of energy subsidies for agro-business (whereas small and marginal farmers remain in a preferential position). In the public debate this was seen as an intention to privatize water-services, possibly depriving the poor from access to water (Flynn & Chirwa 2005). Also the planned Water Regulatory Authority was perceived as an attempt to usurp the powers of the states in water management. Rather, in the view of states, the union should focus on the resolution of inter-state disputes, the management of inter-state rivers and on international water issues. Hitherto the union resolved these matters unsatisfactorily (Jamil et al. 2012). Further, while under the model bill groundwater is to be treated as a community resource held by the state under the public trust doctrine, groundwater legislation of the states considers groundwater as a state-controlled resource, as is illustrated in Table 1. Thus, the state groundwater laws need to be modified.

Table 1

Comparison of selected state laws

State, act and applicability Purpose Control of groundwater Reference to MAR 
Andhra Pradesh Water, Land and Trees Act, 2002; for the State Conservation of water & tree cover; regulation of extraction & use of water (ground, surface); protection of water sources, land and environment Groundwater contamination in any manner by anyone is prohibited [sec.19]; direct disposal of waste waters into the aquifers is prohibited [sec.19(2)] To improve the groundwater resources, by harvesting and recharge, the authority may issue guidelines for constructing appropriate RWH structures in all residential, commercial and other premises and open spaces [sec.17(1)] 
Chhattisgarh Ground Water (Regulation and Control of Development and Management) Act, 2012; for the State Improvement of the groundwater situation Establishment of an authority (sec.4); permission to extract groundwater (sec.7) The authority may identify the recharge worthy areas in the State and issue necessary guidelines [sec.20(1)] 
Himachal Pradesh Ground Water Regulation & Control of Development & Management Act, 2005; for notified areas Regulation for development and management of groundwater Establishment of an authority [sec.3]; licence to extract groundwater [sec.6] Identify the areas of groundwater recharge and issue guidelines for adoption of RWH for groundwater recharge in such areas [sec.15(1)] 
Kerala Ground Water Control and Regulation Act, 2002; for notified areas Regulation of groundwater Grant of permit to extract and use groundwater [sec.7]  
West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005; for the State Manage, control and regulate extraction of groundwater Authorities at various levels (sec.3); sinking of wells for extracting or using groundwater (sec.7) State level authority to issue certificate for recharge of groundwater [sec.8(2)(c)] 
State, act and applicability Purpose Control of groundwater Reference to MAR 
Andhra Pradesh Water, Land and Trees Act, 2002; for the State Conservation of water & tree cover; regulation of extraction & use of water (ground, surface); protection of water sources, land and environment Groundwater contamination in any manner by anyone is prohibited [sec.19]; direct disposal of waste waters into the aquifers is prohibited [sec.19(2)] To improve the groundwater resources, by harvesting and recharge, the authority may issue guidelines for constructing appropriate RWH structures in all residential, commercial and other premises and open spaces [sec.17(1)] 
Chhattisgarh Ground Water (Regulation and Control of Development and Management) Act, 2012; for the State Improvement of the groundwater situation Establishment of an authority (sec.4); permission to extract groundwater (sec.7) The authority may identify the recharge worthy areas in the State and issue necessary guidelines [sec.20(1)] 
Himachal Pradesh Ground Water Regulation & Control of Development & Management Act, 2005; for notified areas Regulation for development and management of groundwater Establishment of an authority [sec.3]; licence to extract groundwater [sec.6] Identify the areas of groundwater recharge and issue guidelines for adoption of RWH for groundwater recharge in such areas [sec.15(1)] 
Kerala Ground Water Control and Regulation Act, 2002; for notified areas Regulation of groundwater Grant of permit to extract and use groundwater [sec.7]  
West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005; for the State Manage, control and regulate extraction of groundwater Authorities at various levels (sec.3); sinking of wells for extracting or using groundwater (sec.7) State level authority to issue certificate for recharge of groundwater [sec.8(2)(c)] 

Source: modified from Sakthivel et al. (2013).

The situation of the Tamil Nadu State is exemplary for the implementation problems of the National Water Policy, which results in a gap between laws and policies. Table 2 shows various regulations relevant for MAR.

Table 2

MAR-related Tamil Nadu State regulations

Purpose Regulations 
Pollution control Water Prevention and Control of Pollution Rules of 1983, Industrial Township Area Development Authority Act of 1997 
Public health, maintenance of public places, waste water Public Health Act of 1939 
Eviction of encroachment of water bodies and other public places Land Encroachment Act of 1905, Protection of Tanks & Eviction of Encroachment Act of 2007 
Mandatory RWH (in relation to water supply, sewerage) District Municipalities Act of 1920, District Municipalities Building Rules of 1972, Panchayats Act of 1994 
Extraction of water for public supply Water Supply & Drainage Board Act of 1970 
Extraction of groundwater by aquaculture units Aquaculture Regulation Act of 1995 
Building regulations, planning and approval Town & Country Planning Act of 1971 
Irrigation, sustainable use of water Farmers Management of Irrigation Systems Act of 2000 
Protection of river banks River Conservancy Act of 1884 
Renovation of temple tanks Hindu Religious & Charitable Endowment Act of 1959 
Purpose Regulations 
Pollution control Water Prevention and Control of Pollution Rules of 1983, Industrial Township Area Development Authority Act of 1997 
Public health, maintenance of public places, waste water Public Health Act of 1939 
Eviction of encroachment of water bodies and other public places Land Encroachment Act of 1905, Protection of Tanks & Eviction of Encroachment Act of 2007 
Mandatory RWH (in relation to water supply, sewerage) District Municipalities Act of 1920, District Municipalities Building Rules of 1972, Panchayats Act of 1994 
Extraction of water for public supply Water Supply & Drainage Board Act of 1970 
Extraction of groundwater by aquaculture units Aquaculture Regulation Act of 1995 
Building regulations, planning and approval Town & Country Planning Act of 1971 
Irrigation, sustainable use of water Farmers Management of Irrigation Systems Act of 2000 
Protection of river banks River Conservancy Act of 1884 
Renovation of temple tanks Hindu Religious & Charitable Endowment Act of 1959 

However, the Groundwater Development and Management Act of 2003, applicable to Tamil Nadu except Chennai, which was informed by progressive principles (National Water Policy of 2002), was never notified and finally repealed in 2013 (Groundwater Development and Management Repeal Ordinance), although Madras High Court repeatedly urged the government, not to allow any person to draw and sell the groundwater until that act would be notified (Pachai Perumal v District Collector of 8 July 2011).

The Tamil Nadu Groundwater Development and Management Act aimed at the protection of groundwater resources, established safeguards against overexploitation, and proposed planned development and proper water management. By Section 9(3) an authority established by this law ‘shall have power to direct, regulate and control the development, extraction and utilization of groundwater’ and by Section 5 it ‘may direct the disposal of mine water in a manner that it may be directly used by the farmers and its recharge, if feasible to augment ground-water storage’. The government's promise to bring back the law in a modified form is not realized. The repeal of the act shows a reversing trend in groundwater policy making.

CASE STUDY CHENNAI

Current water supply

Chennai (formerly Madras) is one of the metropolitan cities of India, with a population of 6,727 million (2011 census). The Chennai Metropolitan Water Supply and Sewerage Board (CMWSSB), a statutory body established in 1978, is responsible for water supply and sewerage functions. Presently, its operations are restricted to Chennai city. However, CMWSSB is expected to gradually extend its services to the Chennai Metropolitan Area with about 9 million people and an area of 1,189 km2. Water supply is mainly covered by surface sources. To a smaller extent groundwater sources are used and recently also two desalination plants have been installed. In addition, treated wastewater is provided to industry. An overview of the present water supply sources can be seen in Table 3 and Figure 1.
Table 3

Chennai water supply

Source Capacity Supply at 13.03.2013 
Surface Water (Kilpauk WTP) 270 MLD 230 MLD 
Surface Water (Red Hills WTP) 300 MLD 139 MLD 
Surface Water (Veeranam WTP) 180 MLD 105 MLD 
Surface Water (Chembarambakkam WTP) 530 MLD 210 MLD 
Surface Water (Surapet WTP) 14 MLD 9 MLD 
Groundwater (Araniyar-Kortalaiyar basin) 100 MLD 7 MLD 
Groundwater (South Chennai) 1 MLD 1 MLD 
Local sources in added areas of Chennai 30 MLD 30 MLD 
Desalination plant (Minjur) 100 MLD 100 MLD 
Desalination plant (Nemmeli) 100 MLD 48 MLD 
Treated wastewater (to industry) 41 MLD 36 MLD 
Source Capacity Supply at 13.03.2013 
Surface Water (Kilpauk WTP) 270 MLD 230 MLD 
Surface Water (Red Hills WTP) 300 MLD 139 MLD 
Surface Water (Veeranam WTP) 180 MLD 105 MLD 
Surface Water (Chembarambakkam WTP) 530 MLD 210 MLD 
Surface Water (Surapet WTP) 14 MLD 9 MLD 
Groundwater (Araniyar-Kortalaiyar basin) 100 MLD 7 MLD 
Groundwater (South Chennai) 1 MLD 1 MLD 
Local sources in added areas of Chennai 30 MLD 30 MLD 
Desalination plant (Minjur) 100 MLD 100 MLD 
Desalination plant (Nemmeli) 100 MLD 48 MLD 
Treated wastewater (to industry) 41 MLD 36 MLD 

Source: CMWSSB homepage, retrieved 2013; MLD = million liters per day.

Figure 1

Location of Tamil Nadu, of Chennai and of the Chennai sources of water (Source: Google Maps for Tamil Nadu and unpublished CMWSSB data).

Figure 1

Location of Tamil Nadu, of Chennai and of the Chennai sources of water (Source: Google Maps for Tamil Nadu and unpublished CMWSSB data).

Municipal policies and laws

Water provision is regulated by the Chennai Metropolitan Water Supply and Sewerage Act of 1978. With respect to water pricing, Chennai introduced metering in addition to a water tax (dependent on property value). To support the poor, Chennai subsidizes water consumption of less than 30 m3 per month; the tariff for a higher demand exceeds the running costs for water provision. However, only a small fraction of households meters their water consumption (Brocklehurst et al. 2002), whence they have no economic incentive for water saving.

The Groundwater Regulation Act of 1987, applicable to Chennai and certain villages in Kancheepuram and Thiruvallur Districts, regulates the extraction and use of groundwater in any form and aims to conserve the same. CMWSSB is responsible for the issue of licenses ‘to be obtained for extraction, use or transport of groundwater’ (Section 5). Further, by Section 14, ‘to ensure optimum utilization of groundwater and formation of hydraulic barrier against sea water intrusion, the government shall issue instructions to the board for implementing within such period as may be prescribed the scheme for artificial recharge’. Urban RWH is mandatory (also by the Corporation Act of 1919) and failure to implement RWH may lead to the severance of water connections.

The role of MAR

As follows from Table 3, over 90% of the water supply of Chennai comes from reservoirs, some at considerable distances, as illustrated in Figure 1. These surface sources are dependent on the monsoon rains. If the reservoirs are empty then groundwater should be available to cover the resulting gap. However, owing to the exploitation of groundwater (mostly for irrigation), the contribution of groundwater to the water supply of Chennai has decreased. For instance, on 13 March 2013 (during the summer season, from March to June), the share of groundwater fell to 1% (Table 3). Further, intrusion of sea water forces to reduce groundwater extraction close to the coast (e.g. Minjur well field; CMWSSB 2011). This shows the vulnerability of the Chennai water supply.

MAR is considered as a measure to increase the groundwater level and to mitigate the seawater intrusion. Besides recharge by RWH, the rivers flowing north (Arani and Koratallai rivers) and south (Palar river) of Chennai were considered for harvesting the excess runoff by constructing a series of check dams. For the Arani and Koratallai rivers, check dams have already been constructed or are in the planning/construction phase, while check dams were planned across Palar river, but the implementation has not been given priority, as the Chennai water supply is presently not dependent on groundwater from the Palar basin. In addition, infiltration ponds are considered, with one pilot study implemented by Anna University. Such ponds are low cost small-scale solutions comparable to RWH. Estimates indicate that about 10,000 ponds could be implemented in the agricultural lands surrounding the Chennai metropolitan area, whereby unit costs in Table 4 demonstrate that infiltration ponds are cost-effective.

Table 4

Capital costs for water supply infrastructure

Infrastructure Water supplied (million m3 per year) Total investment cost (million INR) Unit investment costs (INR per m3
New surface storage reservoirs (Thervoikandigai-Kannankottai Reservoir) 28.31 3,300 117 
Increasing storage capacity of existing reservoirs (Cholavaram, Porur, Ayanambakkam & Nemam tanks) 16.08 1,300 81 
Desalination (Nemmeli plant) 36.50 8,712 239 
Check dam (Irulipattu check dam) 0.30 62 207 
Infiltration pond (Anna University pilot project) 0.000175 0.015 86 
Infrastructure Water supplied (million m3 per year) Total investment cost (million INR) Unit investment costs (INR per m3
New surface storage reservoirs (Thervoikandigai-Kannankottai Reservoir) 28.31 3,300 117 
Increasing storage capacity of existing reservoirs (Cholavaram, Porur, Ayanambakkam & Nemam tanks) 16.08 1,300 81 
Desalination (Nemmeli plant) 36.50 8,712 239 
Check dam (Irulipattu check dam) 0.30 62 207 
Infiltration pond (Anna University pilot project) 0.000175 0.015 86 

DISCUSSION: THE GAP BETWEEN LAW AND POLICY

In Chennai, groundwater has been a source of water, which was used during the regular droughts, when less surface water was available. The peri-urban villages depend completely on groundwater. However, agriculture and industry have been heavy water users overexploiting groundwater, which is evident from the lower water table and the intrusion of sea water. This situation threatens drinking water security for the citizens of Chennai, and more effective legal instruments would be needed to manage groundwater. Thereby, technical groundwater recharge measures to improve the existing water supply system are not sufficient, if there is no effective control of groundwater extraction to ensure that non-domestic users do not offset the benefits of recharge by increasing their groundwater extraction. Therefore, in addition legal instruments for groundwater management are needed.

The National Water Policy proposes such instruments and it acknowledges MAR as an important tool for sustaining water supplies for all kinds of users (Jain 2012). However, Indian laws and polices support MAR on paper only (Sakthivel et al. 2013). The case of Tamil Nadu is exemplary, as there the framework law to instigate the National Policy is not implemented. Rather, the Tamil Nadu Groundwater Development & Management Act of 2003 was never notified and finally repealed in 2013. Only certain aspects were preserved in the form of government orders. This discrepancy between national policies and its implementation exemplifies the controversies about water, which result in a widening gap between progressive policies and rather conservative laws. Some laws are even counterproductive, such as, e.g. at the national level the Easement Act of 1882, which vests owners of land with ownership of groundwater, irrespective of the rights of neighbors or public interests in groundwater preservation.

With respect to the implementation, the policies recognize the importance of a variety of MAR structures and promise the support of the state for those initiatives, but governments have adopted only simple policy initiatives, such as reviving temple tanks and other water bodies. Instead, governments should adopt larger and broader management strategies to revive the existing water bodies, identify suitable places for additional recharge possibilities and link the pollution and population perspectives to groundwater recharge programs.

Further, while MAR can provide environmental, social and economic benefits, some MAR strategies may be unfeasible, as there are constraints owing to the hydro-geological situation, environmental concerns, social barriers, excessive costs, or institutional deficiencies, but the regulations do not address this. For instance, the state has a variety of rainfall patterns. A uniform pattern of rainwater harvesting regulation may not always generate economic or ecosystem benefits. Thus, the least populated areas of the state may not have any advantage, as the recharge structures will not add significant contribution to the water table. Also, mandatory RWH may not be meaningful, if the ground lacks the capacity to hold water. Thus, regulations for groundwater extraction and recharge should be linked with land usage regulations and should be based on geographical and hydrological conditions.

There is a larger scope for improvement of scientific data in India including mapping of aquifers. The National Water Policies recognize this, yet sufficient measures still need to be taken to realize those policy objectives. For instance, measures against unauthorized extraction of groundwater are largely ineffective, if most wells are not registered, as in Chennai. Further, such data will be needed for the protection and improvement of water bodies, also with respect to the optimal use of MAR.

As follows from these examples, the policy goals and the actual implementation results of the legal provisions are not harmonious. While the National Policies understand the importance of groundwater and MAR, the implementation of these policies is either half hearted or avoided altogether and existing laws are largely silent or inadequate to support the policy goals. This gap is unhealthy for the governance of groundwater and leaves the adjudicators without legislative guidance. Owing to this gap in the groundwater management India risks forfeiting significant economic and social benefits (c.f. World Bank 2010).

CONCLUSION

To close the observed gap, a state law to govern groundwater needs to be (re)enacted in the state of Tamil Nadu. It may adopt the latest model of the Planning Commission of India with modifications suitable for Tamil Nadu. Thereby, an independent authority (the planned Tamil Nadu Water Resources Regulatory Authority) may be created to regulate all water extraction. The same applies at the municipal level to Chennai. Such an authority needs responsibility to monitor all groundwater extractions, as far as this is possible and practicable. Extraction licenses may be granted with a mandate to provide MAR structures.

Appreciating the essential role of rural landowners, whose land may be used for MAR structures, in such a groundwater act the role of local self government must be enhanced and participation of farmers in MAR decisions should be facilitated by the law. Local self government may be given autonomy to implement MAR based on scientific and technical feasibilities (environmental impact assessment), and taking note of water requirement. Also land use may be integrated with water use, and land utility permissions must be accorded after taking note of water requirements, pollution and recharge possibilities.

ACKNOWLEDGEMENTS

Co-funding to the collaborative project ‘Enhancement of natural water systems and treatment methods for safe and sustainable water supply in India – SaphPani’ (www.saphpani.eu) from the European Commission within the Seventh Framework Programme (grant agreement number 282911) is gratefully acknowledged.

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