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

 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 .

By Dr. Yashpal Singh

In my study of ground water regulation in the country (India), I have recently come across two important concerns which are being faced by the users of ground water  and which may need to be addressed to by the competent authorities. I have often been asked that in view of the Honourable NGT prohibiting the abstraction of ground water for non domestic purposes in over exploited, critical and semi critical areas and the CGWA and the Pollution Control Board not giving permissions to abstract water and the ‘Consent’ to operate an industry respectively, what will happen to the existing industries which have been operating in the area for long with or without permission from the CGWA. (The CGWA clearance directives picked up with the NGT order of 15-04-2015 in the matter of Krishna Kant Singh vs. Deoria Paper Mills and the CGWA appears to have institutionalized NOC’S in 1999 after the Supreme Court directives in this regards.) The other question that is often put to me is what would be the mechanism for clearance and the relationship between the CGWA and the State Authorities, where constituted and empowered for clearances and whether there is a clear cut delegation of responsibilities, powers and functions and also if the CGWA guidelines will prevail over the guidelines that may be drawn up by the State Authorities and Committees. The State of U.P. has passed an Act in 2019 known as the Uttar Pradesh Ground Water (Management and Regulation) Act 2019 (Uttar Pradesh Government, 2019) which also empowers the State to give clearances. The CGWA also has these powers.

In order to find answers to these questions, my first task was to understand the organization and function of the CGWA. The Honorable NGT has in  its judgment dated 03.01.2019 [National Green Tribunal, 2019(a)] stated that directions for the constitution of the Central Ground Water Authority were given by the Honourable Supreme Court in the matter of M.C. Mehta vs. Union of India and others (M.C. Mehta vs. Union of India and others, 1997, II SCC 312). The Central Ground Water Authority was constituted to regulate the subject of conservation of underground water and was empowered to exercise powers under Section 5 of the Environment (Protection) Act 1986 (Powers to issue direction which include the powers to close down an industry or process or suspend water or power supply) and to regulate control and manage ground water in the Country. The main objective of the Constitution of the Central Ground Water Board as an Authority was to regulate the indiscriminate boring and withdrawals of underground water in the country and the Authority was given the mandate of ensuring necessary regulatory directives with a view to preserve and protect the underground water resources.

The Authority (CGWA) was notified on 14-01-1997 through gazette notification no. S.O. 38(E) issued by the Ministry of Environment and Forest, as amended. (Ministry of Environment and Forest, Government of India, 2000).

 As per the delegation of Powers the Authority is empowered to perform the following functions

1. Exercise of powers under sections 5 of Environment (Protection) Act 1986 for issuing directions and taking such measures in respect of all the matters referred to in sub section (2) of Section 3 of the Environment (Protection) Act.
2. To resort to the penal provisions contained in sections 15 to 21 of the said act.
3. To regulate and control, management and development of ground water in the country and to issue necessary regulatory directions for this purpose.
4. Exercise of powers under section 4 of the Environment (Protection) Act 1986 for the appointment of offers.

Section 5 of the Environment (Protection) Act 1986 empowers the Authority, in exercise of its powers and functions under the act to issue directions and these directions could include the directions to close down, prohibit or regulate the industry, operation or process or stoppage or regulation of the supply of electricity or water or any other service.

The Authority has also been empowered to take measures as prescribed under subsection (2) of section 3 of the E.P. Act. Importantly this includes under section {3.2(i)} the co-ordination of actions by the State Government, officers and other authorities in the implementation of the Environment Protection Act or where another law relatable with the objects of the Environment Protect Act exists (as in the case of many State Governments where State Ground Water Acts have been established).

As per the provisions of Sections 3.2 (ii-xiv), which the Authority has been empowered to execute, planning of a nationwide program, laying down standards, restrictions of areas in which any industry, operation or process or class of industries, operations or processes shall not be carried out are also the responsibilities of the CGWA.

It is also clear from the delegation of powers, aforesaid to the Authority that the mandate of the Central Ground Water Authority was to regulate and control the management and development of ground water in the country and issue necessary regulatory directions in this regards. Importantly the Environment (Protection) Act 1986 also extends to the whole of India. The CGWA therefore has the mandate to exercise uniform regulation over all the States and Union Territories and also to resort to all penal provisions under sections 15-21 of the E.P. Act.

The CGWA [Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India,  2018 (a)] acknowledged that in pursuance to the directions of the Honourable Supreme Court and the consequent constitution of the Authority, the CGWA has been regulating ground water development and management in the Country and that in exercise of the powers conferred on it, the Authority regulates ground water development through various means including grant of No objection Certificates, issuing advisories, directions, notification as and when necessary and that it has been granting NOC’s for withdrawals of ground water by new industries and those under expansion/infrastructure/mining projects since 1999. Existing industries were not covered under these provisions.  What is very important to note here is the admission of the CGWA [Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India, 2018 (a)] that it is regulating only in those States which do not have their own ground water legislation.

This appears to be against the intent of the Notification (Ministry of Environment and Forest, Government of India, 2000) constituting the Authority which requires a Pan India involvement of the CGWA.  No mechanism appears to have evolved which clarifies the relationship between the CGWA and the State Agencies and the role of CGWA in State Clearances except in the matter of identification of stressed area as observed in the U.P.Act.2019. (Uttar Pradesh Government, 2019)

It appears from what the CGWA has admitted [Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India, 2018 (a)] that there are two different regulation areas. One where regulation is done by the Central Government and one where it is done by State Government. A mechanism may therefore need to evolve which may decentralize the regulation, administratively to the states but which is based on uniform codes as may be evolved by the CGWA and which also empowers the CGWA to exercise its authority uniformly in all states, provide it with overriding powers and enables it to perform its functions as determined through the notification as issued by the Central Government in this regards. (Ministry of Environment and Forest, Government of India, 2000).

The Model Bill introduced by the Central Government in 2016 (Ministry of Water Resources, Government of India, 2016)  does  intend to communicate a uniform draft for the State Legislation and provides that the appropriate Government shall ensure equitable distribution and access to groundwater strictly in compliance to the priorities as may be prescribed and that the appropriate government shall ensure the sustainable use of available ground water without compromising the needs of future generations. Some states have enacted their own laws based on this model bill or earlier model bills and are regulating ground water. It is also important to note here that the directions of the Honourable Supreme Court to constitute the  CGWA were given despite the fact that the CGWB had earlier in 1996 appraised the Honourable Supreme Court that a Model Bill has been prepared to regulate and control the development of ground water in respective areas. This establishes the intent of the apex court to introduce a centralized regulation mechanism, giving responsibility to the CGWA, rather than delegation to States.

The Ministry of Water Resources, River Development and Ganga Rejuvenation published a notification on 12-12-2018, [Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India, 2018 (a)]   which was consequently struck down by the Honourable National Green Tribunal. Through the said notification the MoWR intended to introduce guidelines to regulate and control ground water extraction in India. The MoWR through this notification, acknowledged that the  Central Ground Water Authority regulates ground water development through various means including grant of N.O.C. for abstraction of ground water and issuing advisories, directions, notifications etc. as and when necessary. It also provided a list of States where the CGWA was regulating the ground water development and said that the remaining State/Union Territories are regulating ground water development through ground water legislation enacted by them. This established the understanding of the CGWA that ground water can be regulated by the State as per their own laws and where such state legislation is not present; it should be regulated by the CGWA. It may be important to appreciate that, Ground water abstraction has interstate implications and may need to be governed by uniform interstate guidelines. This will also ensure equity of access and sustainability of the resource.  Despite accepting that the CGWA does not give clearance in States which have their own legislation, the guidelines issued by the MoWR [Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India, 2018 (a)] ,  however, were very specific in suggesting that they will have a pan India applicability. The CGWA also states here that the entire process of grant of NOC is done through a web based application system of the CGWA. States may suggest additional conditions/criteria which will be reviewed by the CGWA before acceptance. While the guidelines do suggest that under the existing provisions, NOC in states which have their own legislation is given by the States yet by proposing that the applicability of the guidelines shall be Pan India, it suggests that NOC would also be given by the CGWA and thus a certain amount of ambiguity is introduced and needs to be clarified in any future notification that may come up and the roles of both the CGWA and the State Authority may need to be clearly demarcated. On a submission before it, that the CGWA cannot surrender its responsibility on the ground that the States which had their own regulation need not be regulated by the CGWA [Page 15, National Green Tribunal, 2019(a)]. The NGT has observed at para 25 here, that “Delegation provisions is virtual abdication of authority.”

This would indicate that the entire process of Central and State Legislation and the interrelationships may need to be examined and addressed to in any final guidelines that may be drawn up. Both the NGT and the CGWA are of the opinion that the guidelines should be Pan India and the State Authorities can only suggest additional conditions which would be applicable once accepted by the CGWA. The Honourable NGT has also directed that these NOC’s have to be obtained from the CGWA.

The Honourable NGT had set up a Committee through its orders dated 03-01-2019 [National Green Tribunal, 2019(a)].The Committee has submitted its report to the Honourable NGT in July 2019. The said committee at page 26, para 4.21 of its report, (Ministry of Environment, Forests and Climate Change, Government of India, 2019) has suggested that the guidelines should be applicable Pan India. If the state government wants to make more stringent norms/guidelines in their water policy they may do so depending on local site conditions. It shall not be relaxed by States unless or until decision is taken by the Apex Board in Consultation with the States (Ministry of Environment, Forests and Climate Change, Government of India, 2019). These recommendations of the Committee have been also duly acknowledged at page 15, para 18 of the NGT order dated 11-09-2019 [National Green Tribunal, 2019 (b)]. The NGT at paragraph 13 page 8 of its orders date 03-01-2019 [National Green Tribunal, 2019(a)]  has observed that the Environment (Protection) Act 1986 had an overriding effect and no State Legislation could over ride the Environment (Protection) Act 1986 and the mandate of the CGWA was to override any State regulatory framework. It also observed a paragraph 14 (i) page 8 of its orders dated 03-01-2019 that CGWA was repeatedly disowning its responsibility on the plea that regulation of ground water was a state subject which is contrary to the mandate in the judgment of the Honourable Supreme court. It has also held at page 17, S.No. 2.5 of the orders [National Green Tribunal, 2019(a)] that “Delegation provisions is virtual abdication of Authority.

The State of U.P. has passed an Act in 2019 known as the Uttar Pradesh Ground Water (Management and Regulation) Act 2019 (Uttar Pradesh Government, 2019).The basic objective of this Act is to provide for protecting, conserving, controlling and regulating ground water to ensure its sustainable management in the State, both quantitatively and qualitatively, especially in stressed rural and urban areas and for matters connected therewith or incidental there to.

This State Law draws itself largely from the Model Bill, 2016 (Ministry of Water Resources, Government of India, 2016) and creates a State institutional mechanism for regulating ground water. It limits the functions of the CGWA to only being a co-author of the ground water resource estimation study alongwith the State Ground Water department in order to facilitate the identification   and delineation of Over Exploited and Critical Areas as well as the stressed urban areas by the ground water department as per Section 8 of the act. Apart from this the Regional Director of the CGWA is one of the many  Members of the State Ground Water Management and Regulatory Authority as provided under section 7 of the Act. The Act, under section 10 and section 11, has provided for Registration of existing commercial, industrial, infra structural and bulk users of ground water in notified and non notified areas and grant of Authorization in the non-notified areas (Section 14).

An important provision in line with the directions of the Honorable NGT and CGWA in this regards is the Ban on new ‘well construction’ in Notified areas.

Section 12 of the Act 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 uses including construction of Borings/ Tube wells under government schemes within the notified areas except government schemes for drinking waters supplies and tree plantations. Such ban shall continue till the area is denotified on the basis of new ground water resource estimation reports. Extraction, sale and supply of raw/untreated/unprocessed ground water in notified areas for commercial/bulk user will also not be allowed.

Notified areas have been defined to mean the area notified as such under sections 8(3) and Section 9 and which include overexploited, critical blocks and stressed urban areas. (Uttar Pradesh Government, 2019) .  Importantly again, the act does not intend to notify semi critical areas which are currently included in the no extraction zone by the CGWA (NGT/CGWA), and therefore it is not clear if the State can consider applications for semi critical areas.

Section 10, 11 and 14 of the  U.P.State Act provide for a system of Registration and also a system of Authorization/NOC’s from the competent authorities as prescribed.

 Registration is to be availed by:

1. Every existing well for commercial, industrial, infrastructural and bulk user located in notified areas. (To be granted by the District Ground Water Management Council).
2. Every existing and future users of ground water, in notified areas, other than those mentioned in (a) above including domestic and agricultural users. (To be granted by Block Panchayat Ground Water Committee/Municipal Water Management Committee).
3. Every well (existing or to be sinked) for commercial, industrial, infra structural and bulk use of ground water in non-notified areas (To be Granted by District Ground Water Management Council).
4. Every existing and future user of ground water, other than those mentioned in (c) above including a domestic or agricultural user in non notified areas. (To be granted by Block Panchayat Ground Water Management Committee/Municipal Water Management Committee).

 The Act, therefore provides that all existing users in notified and non-notified areas may need to register themselves. Apart from this all future users in all the sectors in the non-notified areas may also have to get themselves registered.

Section 10 and 11 also prescribe that if any registered user of ground water in a notified or non notified area wishes to carry out any modification or alteration in a registered well, it will have to obtain a clearance from the State Ground Water Management and Regulatory Authority.

Section 14 requires that any person or class of persons or institutions 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 non notified area shall apply to the respective District Ground Water Management Council for an Authorisation/ No objection certificate. It also provides for preexisting users, in non notified areas, to seek Authorisation within 90 days of the State Act.

No provision appears to have been made for preexisting users in notified areas to seek an authorization from the State Authorities for continuation of operations.

The Act, therefore introduces three procedures, Registration in notified and non-notified areas (Section 10, 11), permission to carry out modifications in an existing well in both the notified and non-notified areas ( Section 10,11) and authorization in non notified areas.( Section 14). All existing users and small users (non bulk) going in for additional wells are prescribed to be registered which in legal terms would only mean the process of recording entries in an official book. If registration is intended to merely record entries in an official book, registration may not serve the directives of the CGWA, the NGT and the Honourable Supreme Court that all users (existing as well as proposed) may require a NOC from the CGWA.

Now therefore, in what has been mentioned in the paragraphs as above, the Honourable Supreme Court, the Honorable NGT, the Government of India and the CGWA and the Committee constituted by the Honourable NGT in this regards (Ministry of Environment, Forests and Climate Change, Government of India, 2019) are all of the same opinion that:

1986. The CGWA is the Authority to regulate the extraction of ground water and has been duly empowered to execute the provisions as delegated, in the E.P. Act 1986.
1987. A clearance from the CGWA is mandatory for all ground water extraction across the country.
1988. Guidelines and directives issued by the CGWA will have a Pan India Applicability and the States can make them more stringent on a case to case basis.
1989. New permission for abstraction of water for non domestic purposes would not be granted in over exploited/Critical and Semi Critical Zones.
1990. The Environment (Protection) Act 1986 over rides the State Laws and has a Pan India Applicability.

With the State Laws requiring  that the registrations , permissions and Authorizations are to be availed from the State Authorities where the Central Government or its guidelines are not enabled to contribute and the States being allowed to consider applications allowing new bulk abstraction in Semi critical areas (as against a ban in such areas by the Honorable NGT), the ambiguities need to be resolved and the roles of the State Authorities and the Central Authorities clearly defined in any future guidelines that may be drawn up.

Coming to the issue of the plight of users who have been abstracting water prior to the constitution of the CGWA and have currently been affected by the directions of the Honourable NGT, which do not permit the use of ground water in notified areas except for drinking purposes where supply of drinking water is not otherwise available [National Green Tribunal, 2019(a)], the CGWA has through its letter no. 25-30/CGWA/NOCAP/2018 dated 01-03-2019 issued a notice to the effect that ‘NOC’s for fresh ground water withdrawal shall not be granted to industries, infrastructural units and mines projects located in such areas, except for drinking, domestic uses and for green belts till further orders”. (Central Ground Water Authority, 2019.) Through its letter no. 26-1/CGWA/PN/2018 dated 15-10-2019 the CGWA has also issued a Public notice requiring all existing ground water uses including industrial, Infrastructure and Mining Projects to apply for NOC by 31-03-2020 (Ministry of Jal Shakthi, Government of India, 2019).

The Committee Constituted by the Honourable NGT, through its orders of 03-01-2019, has in its report submitted in July 2018 also suggested that the restriction may be exercised on ‘NEW PROJECTS’. (Ministry of Environment, Forests and Climate Change, Government of India, 2019, Pages 11, 13 and 16)

It has however been given to be understood through the CGWA (Personal interactions with Industries and CGWA) that the CGWA is also not granting permissions to existing users in the OCS areas and consequently the State Pollution  Control Boards are not granting consents to operate. This has resulted in a stalemate and intervention may be required to permit the existing users , possibly the pre 1999 users (when NOC was introduced by the CGWA) to continue to abstract with such safeguards and conditions as the CGWA may decide. The CGWA may draw up a common scheme for rejuvenation to which these users could contribute.   The CGWA puts no restrictions on existing units but indicates through its notice of 01-03-2019, the restriction on only NOC’s for Fresh Ground Water use. (Central Ground Water Authority, 2019)

It is therefore felt that:

1. The State Laws have introduced a duality of functions with both the CGWA and the State Authorities empowered to grant clearances and permissions independently without provisions for coordination. This may not necessarily be the intent of regulation. A need is therefore felt to review the State Laws and to evolve a well defined Centre State Mechanism for ground water management and regulation, defining responsibilities, establishing Pan India uniform norms and procedures, allowing the States to make them more stringent with approval from the CGWA and ensuring that the directions of the Honourable Supreme Court and the NGT and the delegation of power to the CGWA is satisfactorily executed in National Interest. This may need to be addressed in any future guidelines/ notifications that may be drawn up by the CGWA and the State Authorities.
2. The pre 1999 users could be allowed to continue to abstract ground water even in OCS areas subject to such safeguards as may be prescribed and which may involve their physical and financial contribution in long term measures which may be drawn up by the CGWA for ground water rejuvenation and replenishment for the area.

Bibliography

1. Central Ground Water Authority, 2019. Notice regarding Grant of No Objection Certificate (NOC) for ground water withdrawal in Overexploited, Critical and Semi-critical (OCS) Assessment Units. Reference no. 25-23/CGWA/NOCAP/2018 dated 01-03-2019, p.p. 1.
2. Ministry of Environment and Forest, Government of India, 2000. CGWA Notification no. S.O. 38(E) dated 14-01-1997 as amended on 13-01-1998 [S.O. 40(E)], 05-01-1999 [S.O. 9(E)] and 06-11-2000 [(S.O. 1024(E)]. No. L-11011/29/96-IA-III.sd. Dr. V. Rajagopalan Jt. Secty. To Government of India.
3. Ministry of Environment, Forests and Climate Change, Government of India, 2019. Report of Expert Committee on issue related to Ground Water Protection, Conservation and Regulation. On directives of Honourable National Green Tribunal in M.A. no. 107/2019 in O.A. no. 176/2015. July 2019. p.p. 1-79.
4. Ministry of Jal Shakthi, Government of India, 2019 . Public notice for attention of all existing ground water users including industrial, infrastructure and Mining Projects No. 26-1/CGWA/PN 2018, dated 15-10-2019. p.p. 1.
5. Ministry of Water Resources, Government of India, 2016. Model Bill for the conservation, Protection, Regulation and Management of Ground Water, 2016. Draft of 16-05-2016. Mowr.gov.in p.p. 1-32.
6. Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India, 2018 (a) . Guidelines to regulate and control ground water Extraction in India. Gazette of India. S.O. 6140(E) dated 12-12-2018, p.p. 1-57.
7. Ministry of Water Resources, River Development and Ganga Rejuvenation, Central Ground Water Authority, Government of India, 2018 (b). Public notice for all existing ground water users including industrial, infrastructure and Mining Projects. No. 26-1/CGWA/PN/2018 dated 14-11-2018, p.p. 1.
8. Ministry of Water Resources, River Development and Ganga Rejuvenation. Central Ground Water Authority, Government of India, 2019. Public notice for Attention of all existing users including industrial, infrastructural and mining projects. No. 26-1/CGWA/PN/2018 dated 09-04-2019. PP.1.
9. National Green Tribunal, 2005. Order dated 15-04-2015 of the Honourable NGT in the matter of Krishna Kant Singh vs. M/s Deoria Paper Ltd., Hata Road, Narainpur, and other connected matters passed on 15-04-2015, p.p. 2, Greentribunal.gov.in
10. National Green Tribunal, 2019(a). Orders dated 03-01-2019 passed in the matter of Shailesh Singh vs. Hotel Holiday Regency, Moradabad and other related matters. Order uploaded on 03-01-2019, P.P. 1-19, greentribunal.gov.in
11. National Green Tribunal, 2019 (b). Orders dated 11-09-2019 passed in the matter of O.A. No. 176/2015, Shailesh Singh vs. Hotel Holiday Regency, Moradabad and others. Orders uploaded on 11-09-2019, pp 1-20. Greentribunal.gov.in
12. National Green Tribunal, 2019 (c). Orders passed in the matter of I.A. no. 640/2019 in O.A. No. 176/2015. I.A. filed by Association of the Industrial Manufacturers, Ghaziabad seeking impleadment with a view to seek review of order dated 11-09-2019, Shailesh Singh vs. Hotel Holiday Regency, Moradabad and others. Orders uploaded on 10-10-2019. Greentribunal.gov.in.
13. Uttar Pradesh Government, 2019. The Uttar Pradesh Ground Water (Management and Regulation) Act 2019. U.P. Act No. 13 of 2019. Uttar Pradesh Extraordinary Gazette no. 1468 (2)/LXXIX-V-1-19-1(Ka) 14-19 dated 07.08.2019, p.p. 1-19.