Sustainable groundwater management through comprehensive legal regulation

Groundwater belongs to all, so all must take care of it

We all can and should do something to protect groundwater. Why? Because everyone has a stake in maintaining its quality and quantity. Being a steward and to secure groundwater just makes sense. Not only that, most surface water bodies are connected to groundwater so how you can impact in maintaining cleanliness of groundwater, really matters. Furthermore, many public water systems draw all or part of their supply from groundwater, so protecting the resource protects the public water supply and impacts treatment costs.

Human activities can pollute groundwater, and this is where every person can help protect groundwater— both in terms of groundwater quality and quantity. There are two fundamental categories of groundwater protection: First, keeping it safe from contamination, and second, using it wisely by not wasting it.

We all know the importance of water for the people, businesses, wildlife and natural lands, all need adequate water there. Therefore it is the responsibility of the Government to take sustainable measures and provide for comprehensive water policy guidelines to ensure provision of clean water to the masses.

The government should consider the following social and economic issues of excessive use of groundwater especially by the industries, in order to secure the future generations from dearth of clean water:

  1. Over-extraction of groundwater for industrial use can lead to depletion of aquifers. This can affect local communities that depend on groundwater for drinking water and agricultural purposes, leading to water scarcity.
  2. Industrial processes may introduce pollutants into the groundwater, impacting its quality. Contaminated groundwater can pose health risks to nearby communities that rely on it for drinking and irrigation.
  3. In some cases, excessive groundwater extraction can lead to land subsidence. This can result in the displacement of communities and infrastructure, particularly in areas with clayey soils prone to subsidence.
  4. The impact of groundwater use may not be evenly distributed among different social groups. Vulnerable communities may bear a disproportionate burden in terms of water scarcity, pollution, and health risks.
  5. Similarly, competition for groundwater resources between industries, agriculture, and urban areas can lead to conflicts. Such conflicts may have social implications, affecting community relations and access to water.
  6. If serious steps are not taken by the government, groundwater depletion may lead to a rise in the cost of extracting water for industries. As groundwater levels drop, industries may need to invest in deeper wells or alternative water sources, increasing operational costs.
  7. If groundwater depletion affects agricultural water supplies, it can impact the productivity of the agricultural sector. This, in turn, can have economic implications for both farmers and the overall economy.
  8. Land subsidence resulting from excessive groundwater extraction can damage infrastructure, including roads, buildings, and utilities. The economic cost of repairing or mitigating this damage can be significant.
  9. Industries may incur costs related to compliance with water use regulations and environmental standards. Implementing water-saving technologies or pollution control measures may require investments.
  10. Changes in industrial practices, such as adopting water conservation measures, may lead to job creation in water management and conservation sectors. Conversely, industries facing increased water costs may experience economic challenges, potentially impacting employment.

Groundwater is found underground in the cracks and spaces in soil beneath land. It means that by virtue of owning a piece of land every human being has proprietary rights over the underground water. Every individual has control over groundwater being a part and parcel of land. Being a natural resource available with access from one’s piece of property, the law recognises that the title of ownership of ground water vests with the owner of land. Therefore the land owner possesses not only collection rights over underground water but can also dispose of water as a commercial commodity. The said position however, leaves one to ask if the people who do not possess any land, can claim any proprietary rights over the groundwater.

It is observed that there exists no specific law in Pakistan which clearly defines ownership and rights over groundwater sources; however after referring to different statutes one can gather that rights of groundwater are associated with ownership of land. It is not therefore clear whether ground water is a resource meant for public use and whether it can be regulated by the Government.

Is there any specific legislation available that regulates groundwater in Pakistan? The answer to this question leads us to the fact that after independence, Pakistan has followed the British tradition. Therefore legal principles evolved by the British Courts, known as common law principles, were followed in Pakistan. However, there was no specific law in Pakistan to regulate or control groundwater use.

By setting limits on extraction rates and implementing conservation measures, authorities can prevent over-extraction, depletion of aquifers, and long-term environmental damage. Furthermore, groundwater regulation aids in the protection of ecosystems dependent on groundwater, such as wetlands, rivers, and streams. Maintaining adequate groundwater levels supports biodiversity and ecosystem health.

Under common law, groundwater was considered as part and parcel of the land and accordingly the owner of the land could dig one or more wells in his land and extract unlimited quantities of groundwater he may want. The landowner was not responsible for any damage caused to water resources as a result of his over extraction. It was left open for the landowner to exploit and use groundwater with an intention to cause injury to neighbours’ wells. This legal principle could be seen in some laws dealing with land rights, for instance, the Easements Act, 1886. This principle was also endorsed by courts during the pre-independence period.

Even till today common law principles are part of groundwater law in Pakistan and will remain as a part of groundwater law unless Governments make specific groundwater laws. The importance of fair use of groundwater has been upheld by superior courts in Pakistan. An excellent example of this is the decision of Sindh High Court in the cases of illegal hydrants supplying water to the industries.

Water rights are determined by land rights. Under the Easement Act, 1882, it can be determined who actually possesses the ownership rights over ground water. A cursory view of the Transfer of Property Act of 1882 and the Land Acquisition Act of 1894 also show that groundwater is connected to the land as dominant heritage and cannot be transferred apart from the land. An ‘easement’ is a right that the owner or occupier of certain land possesses, for beneficial enjoyment of that land. Examples of easements are right of way, right to light and air, and right to standing or flowing water not on one’s land. Section 7(g) of the Easement Act states that every landowner has the right to “collect and dispose” of all water under the land within his own limits, and all water on its surface that does not pass in a defined channel. Hence, by this Act, the owner of a piece of land does not, strictly speaking, “own” the groundwater under the land or surface water on the land; he only has the right to collect and use the water.

It is an admitted position that throughout Pakistan, a well belongs to the person who is the owner of the land where that well exists and the general public has no claimable rights to extract water from that well. There are also other legislations and irrigation laws, which provide for rights of the government on surface water, but these laws do not mention groundwater.

A UK-based international NGO, Water Aid, released a report on the eve of World Water Day, saying that water quality throughout the world has deteriorated, with Pakistan being no exception. Around 16 million people of Pakistan do not have access to clean water and that there are also inequalities in the cost of the commodity, with the poor having to pay more. According to the report “Pakistan is among the top 10 countries with the greatest number of people living without access to safe water…they have no choice but to collect unsafe water from unsafe sources.” About 84 to 89pc of the country’s water sources do not meet the water quality standards for human consumption, because of which about 53,000 children die of diseases like diarrhoea every year and over 3 million people suffer from waterborne diseases, the report says.

The need of the time is that there has to be a special regulatory authority to regulate the water use by the industries, or any activities of commercial use for the groundwater. It is abundantly clear that although everyone has an exclusive right to use the groundwater existing beneath his land, at the same time such right should not be exercised in a way to deprive others from their right to have availability of clean water. It necessitates that commercial and industrial use should be subject to a regulatory regime promoting fair use of groundwater.

Like other commercial commodities, there should be a price/cost prudently determined by an independent institution. Putting a price on groundwater may not be a simple task but there should be clarity on various cost components for the industrial use to determine the cost for using groundwater. An option of claiming a royalty for use of groundwater can be explored but given the fact that under section 7 of Easement Act, ownership of ground water vests with landowner, in the absence of any other legislation, imposition of royalty over groundwater may be legally contentious.

 

The proposed law should specifically take into the following aspects:

Compulsory registration of bore well-owners.

Compulsory permission for sinking a new borewell.

Creation of a groundwater regulatory body.

Restrictions on the depth of borewells.

Establishment of protection zones around sources of drinking water.

Periodical reassessments of groundwater potential on a scientific basis, considering quality of water available and economic viability.

Regulation of exploitation of groundwater sources so that extraction does not exceed recharge.

Development of groundwater projects to augment supplies.

Integrated and coordinated development of surface water and groundwater so that they are used in conjunction.

Prevention of over-exploitation of groundwater near the coast to stop the ingress of seawater.

The basic scheme of the law should be to provide for the establishment of a grounder water authority under the direct control of the Government. The authority should be given the right to notify areas where it is deemed necessary to regulate the use of groundwater. The final decision however in this regard should be taken by the Government.

It would be of great importance if the law proposes public participation in the regulatory aspect of the authority. In any notified area, every user of groundwater should apply for a permit from the authority unless the user only proposes to use a hand-pump or a well from which water is drawn manually. Wells should be registered even in non-notified areas. Decisions of the authority in granting or denying permits should be based on a number of factors which may include technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures.

The regulation of excessive groundwater use through laws is essential for balancing human needs, economic activities, and environmental conservation. It promotes the responsible and sustainable management of a vital natural resource, ensuring its availability for current and future generations. Regulation helps ensure the sustainable use of groundwater resources.

By setting limits on extraction rates and implementing conservation measures, authorities can prevent over-extraction, depletion of aquifers, and long-term environmental damage. Furthermore, groundwater regulation aids in the protection of ecosystems dependent on groundwater, such as wetlands, rivers, and streams. Maintaining adequate groundwater levels supports biodiversity and ecosystem health.

Muhammad Saqlain Arshad
Muhammad Saqlain Arshad
The writer is a freelance columnist

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