Opinion: Who owns groundwater in water-stressed Pakistan?

Pakistan ranks fourth in the world in terms of annual groundwater abstraction – the amount of water taken from an underground source. This puts it in close competition with larger countries such as India, China and the United States. It is also the world’s largest exporter of groundwater, which reflects the volume of groundwater used in the country’s water-intensive export products such as rice, leather and textiles.

Clearly, access to groundwater is critical to Pakistan’s economy, with the agricultural sector heavily dependent on groundwater pumping to meet irrigation requirements, as well as growing industrial and domestic demand. Worryingly, groundwater reserves are fast being depleted, with some areas reporting a two-three metre decline per year. The Indus Basin aquifer, from which Pakistan extracts its groundwater reserves, has been ranked as the second most overstressed aquifer in the world.

Commitment in 2018

The Pakistani state has recently demonstrated a commitment to take its water woes somewhat seriously by trying to set out the institutional and legal architecture of water resource management, at least on paper. The country’s first ever water policy was enacted in 2018, proclaiming a commitment by federal and provincial governments to avert the water crisis.

See: Opinion: Pakistan’s new water policy is historic

See: Pakistan’s first national water policy – historic or mere electioneering?

Despite the many criticisms levelled against the National Water Policy and the lack of follow-through on its implementation, the fact that Pakistan at least has such a policy is a big positive. The National Water Policy was also supposed to address the issue of groundwater over-abstraction and called for the creation of a Groundwater Authority in Islamabad as well as water authorities within the provinces. More than two years into the policy’s enactment, there has been little progress on its promise on sustainable groundwater governance.

Punjab Water Act of 2019

More recently the province of Punjab, which is the biggest user of groundwater in the country, has come up with its own legislation to protect its fast-depleting reserves. The Punjab Water Act, which was announced on December 13, 2019, stipulates a radical change in the way entitlements to use groundwater are administered within the province.

Previously, the right to use groundwater was defined by a piece of colonial legislation called the Indian Easements Act of 1892. This law essentially ties groundwater abstraction rights to private property rights, entitling the owner of a piece of land to “collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.”

By this definition groundwater users are technically independent of the state, which ties in with the reality on the ground. Most users do not need licences, and often the only contact between the user and the state is for connection to the state energy grid to power tubewells (where a tube or pipe is bored into an underground aquifer). The limited dependency of groundwater users on the state is changing somewhat with the rapid proliferation of solar tubewells, which can pump water without the state energy grid.

See: To save Pakistan, look under its rivers

Punjab’s new act changes the way groundwater is to be used and governed, without making any reference to existing rights granted by the Indian Easements Act. It stipulates the formation of a 22-member Punjab Water Resources Commission, headed by the chief minister and the irrigation minister of Punjab, with members from all stakeholder departments of the provincial government. The commission was supposed to be formed within six months of the commencement of the act, which have passed with no news on the formation of the commission that will lay out the roadmap for the Punjab Water Act’s implementation.

Who owns the water?

The Punjab Water Act 2019 raises a lot of questions about the management of groundwater. According to the act, the commission would control surface water resources (as defined in the Canal and Drainage Act of 1873), water in lakes or reservoirs, water in drains, and groundwater resources. Thus the act makes the commission responsible for conserving, “controlling” and allocating effectively all the water resources in Punjab. For groundwater use, this means that the commission has the authority to issue licences for the abstraction and disposal of groundwater for agricultural, domestic, industrial and mining purposes. It is not clear how the state will set up a system of licensing and abstraction for sustainable water under the new law.

The act states that providers of water and sewerage services, called “undertakers”, are to be appointed by the commission. This provider could be a company, local government or a statutory authority. The act stipulates that the undertaker is allowed to “charge” for these services.

What does this mean for all the different groundwater users? Should users anticipate pay-as-you-pump charges and volumetric pricing of groundwater under the new law? Some groundwater users such as bottled water companies have already started paying a per-litre surcharge to the government for groundwater abstracted under a separate order issued by the chief justice in 2019. Others await what they see as impending doom in the form of volumetric groundwater pricing that Section 38 of the act allows “undertakers” to charge for.

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Does this effectively mean that the act is a step towards groundwater privatisation? Some would argue that “economic” pricing and valuation of groundwater is long overdue and is the necessary demand-side solution for sustainable groundwater management. But this view does not take into account the equity implications of privatisation — the economic shock to poorer farmers and households, on top of the fuel cost (mostly diesel) to run water-extraction mechanisms.

In Pakistan, laws governing groundwater use, abstraction and pollution have long been a careless mix of colonial and post-colonial legislation without thinking through the effect of new laws on the entitlements granted by old ones. None of the laws around groundwater governance passed after independence in 1947 have been fully or consistently implemented. Effective groundwater legislation is a herculean task in a country where new laws overlap with entitlements granted by old ones, and where there are millions of individual groundwater users with their own water-extraction mechanisms.

Monitoring groundwater and controlling extraction is not easy. Spain and Mexico, for example, passed laws declaring that groundwater falls under state control, with a system of licensing regimes and user fees for groundwater. It is not clear from their experience whether state control and monitoring of groundwater resources leads to sustainable management. When Pakistan starts to carefully implement its policies and legislation on groundwater, their impact on this precious resource will become clearer.

Fazilda Nabeel is a doctoral researcher at the University of Sussex in the UK. She studies the political ecology of groundwater governance in Pakistan and transboundary hydropolitics across the Indus river basin