CGWA 2020 guidelines on Ground Water Regulation and the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019. The dilemma of existing users in Overexploited and other notified areas

CGWA 2020 guidelines on Ground Water Regulation and the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019. The dilemma of existing users in Overexploited and other notified areas.

By Dr. Yashpal Singh

Chairman, The Wealthy Waste School India

Also See Ground Water Clearances for existing users in Overexploited, Critical and Semi-critical areas and the need to establish a Pan India process and define the responsibilities of the CGWA and the State Authorities, both empowered under separate laws, to grant such clearances 

The CGWA in the Ministry of Water Resources, River Development and Ganga Rejuvenation has notified the guidelines to regulate and control ground water abstraction in the Country. These guidelines have a PAN India applicability but regulation by the CGWA is only provided to continue in those States which are not themselves regulating ground water abstraction. NOC will be granted by the CGWA or where there is a State Mechanism, by the State Authority as applicable. In case of any inconsistencies in State and CGWA guidelines, the guidelines of the CGWA will prevail over the State Guidelines. The State can however prescribe stricter provisions. Because of conflicting and ambiguous provisions, the understanding of these two directives is difficult and the user is in a dilemma. Some issues which are difficult to comprehend but which may be very critical to the implementation of the guidelines and/ or the State Laws in this matter specifically with reference to existing industries in notified areas appear to be:

1. The CGWA guideline makes the State Authority as above, responsible for grant of NOC in States, where constituted, but the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 does not prescribe this as part of the duties of the ‘State Ground Water Management and Regulatory Authority’ but prescribes it for the District Ground Water Management Council. The State Authority therefore is not duly empowered to issue NOC’s in U.P.
2. The CGWA guidelines prescribe that No objection certificates will not be granted for ground water abstraction to new industries (except MSME)  in overexploited area whereas Section 12 of the  State  Legislation provides that, no person or group of persons or institution or agency or establishment shall construct/sink any new well for Commercial, Industrial, Infrastructural and Bulk use including construction of boring’s/tube wells under Government Schemes within the notified areas. Notified areas by the State are defined to include over-exploited, Critical blocks and Stressed Urban Areas. NOC applications, Pan India can therefore be considered by CGWA for areas other than overexploited areas, whereas the State of Uttar Pradesh (and maybe some others as per their respective provisions) which has its own mechanism will not consider such applications for critical and stressed urban areas also. The procedures for NOC to existing industries in critical and stressed urban areas is not clearly understood.
3. Section 14 of the State Act provides that any person or class of persons or institution or agency or establishment desiring to sink a well for the purpose of abstraction of ground water for commercial, industrial, infrastructural or bulk use in the non-notified area shall apply to the respective District Ground Water Management Council for No-Objection Certificate for this purpose. The procedure, time-limit, forms, application, fee, etc. and various provisions, terms and conditions for the No-objection certificate shall be such as may be prescribed. It is also provided that the pre-existing user of ground water shall apply for the issue of authorisation certificate therefore under this section within a period of ninety days from the date of commencement of this Act. There is thus no provision for NOC to be granted by the State Government in notified areas which includes overexploited, critical and stressed urban areas.
4. While Section 14 of the State Act as above does not make a provision of NOC or its renewal to existing units in notified areas, the form 8(B) annexed to the rules and drawn up with reference to section 14 of the Uttar Pradesh Ground Water (Management and Regulation) Bill of 2019 (not to the Act) does make a mention to NOC for sinking of wells in notified and non-notified areas. Sinking of New Wells in notified areas is prohibited u/s 12 of the Act and section 14 is a provision only for non-notified areas. Form 8(B) is therefore not in line with sections 12 and 14 of the Act with regards to Industrial Users. The Industry is not sure as to who will renew the NOC for existing units in notified areas and what will be the procedure.
5. Expansion of existing industries involving increase in quantum of ground water abstraction in over exploited areas shall not be permitted as per the new guidelines. Since the CGWA guidelines are provided to prevail, the States will have to comply with this in these clearances. Form 8(B) is not representative of this condition because it is opening up new applications in notified areas also.
6. As per the CGWA guidelines an Impact Assessment report prepared by accredited consultants needs to be submitted for the impacts on ground water regime and socio-economic impacts. There is no clarity on who will accredit the Consultants. There is no provision of an Impact Assessment Report to be prepared by individual users in case of the State Legislation. The State Laws prescribe that the Impact Assessment Report shall be prepared by the concerned authority.
7. District Collectors/Deputy Commissioners/District Magistrates have been authorized under the CGWA guidelines 2020, to take enforcement actions including sealing, disconnection of electricity, launching of prosecution, Environment Compensation and Penalties. Monitoring and periodic inspections have been delegated to the CGWB/CGWA and State Ground Water Authorities. The State Act however, prescribes that Offences under this Act shall be cognizable and triable by a judicial magistrate of first class and the magistrate may take cognizance of the offence on a complaint filed by the District Ground Water Management Council or by any aggrieved person provided that before initiating the prosecution, the aggrieved person shall give one month’s notice to the District Ground Water Management Council intimating her or his intention to initiate prosecution. There appears to be a need for more uniformity and clarity on this issue.
8. The new guidelines provide that If the CGWA/Respective State/UT is unable to process a renewal application in time, No objection Certificate shall be deemed to be extended till the date of renewal of No objection certificate. There is no provision of NOC to new/ existing Industrial users in notified areas in the U.P. State regulation but there is a process of registration.  With the State Regulation in place, the CGWA may not consider applications for NOC in States if the State Regulation is in place.  With States like Uttar Pradesh not having a provision of NOC in notified areas in their Legislation, there needs to be more clarity on this issue of deemed extension. It may need to be clarified as to where will an existing user if located in a notified area, make an application for renewal of NOC or for an initial NOC in case of earlier default (not possessing a valid NOC).
9. Existing users whose applications are pending consideration at the CGWA may also need to be explained as to the fate of their applications because of the State mechanism in place.
10. Section 10 of the U.P. Act 2020 provides for a registration for existing units in notified areas both urban and rural. Application has to be made to a ‘District Ground Water Management Council’ constituted for this purpose. The State Ground Water Rules provide that existing users who have a valid NOC from the CGWA would also have to make an application for such registration within Six months of the State Act coming to force.
11. Section 12 prohibits new wells in notified areas (exception Govt. Schemes for Drinking water and green plantation). Section 12 is silent on NOC to existing users in over exploited critical and stressed urban areas. It may need to be clarified as to who would grant the ‘NOC’ in cases where the State Law does not provide for ‘NOC’.

A lot of clarity is required on these issues which particularly relate to existing units abstracting water from over exploited and other notified areas to ensure that development does not suffer merely because of a lack of understanding of the regulatory provisions.