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Ground Water Management in Kerala:

Statutory Entanglements

Valsamma Paul*

Ground water can be defined as water occurring beneath the surface of the land, filling the pore spaces of rocky material in which it is found'. It has been reputed to occur in underground rivers, lakes and veins. It has been credited with moving in ways, unknown and unknowable 2. Industries, agriculturists and municipalities are increasing their dependence on groundwater. For the user, this is an attractive option, since the source is continuous unlike the monsoon-fed rivers and streams, the water is generally clean and the user need not depend on an external agency for its supply. The rights to the groundwater are attached to the land, in which it occurs. Hence, landowners draw groundwater and use it, as if it were their own private property. This private ownership regime is inequitable, because it leaves out all the landless, who do not enjoy private ownership'. Ground water management is the management of ground water in such a way that there will be minimization of its pollution and depletion and maximization of its quality and quantity. The discussion of ground water management in Kerala, therefore, calls for the analysis of those factors, which affect the quality and quantity of ground water and the effectiveness of the legal provisions in maintaining the same in our state.

M.A. (Kerala), L.L.M. (Cochin), M.B.A. (Madurai Kamaraj), Ph.D. (Cochin); Lecturer, School of Legal Studies, CUSAT, Cochin-22. Rodgers Jr., Handbook on Environmental Law, (1977), pp.369-70.See also Herman Bouwer, Ground Water Hydrology, (1978), pp.1-2; Kerala Groundwater (Control and Regulation) Act 2002, S. 2(e) Frank J. Trelease, Water Law (1974), p.457. 3. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India (2005), p.239.

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Factors which affect Quality of Groundwater

1. Industrial Pollution

Industrial effluents, which are discharged to land, flow to the low- lying areas, thereby polluting groundwater. Binani Zinc Ltd, engaged in the production of zinc, cadmium and sulphuric acid and M/s Sangrose Laboratories Pvt. Ltd., a pharmaceutical company, producing clofazamine tablets, rocked the Kerala state in 1996 4 and 1997 5, respectively by discharging highly toxic wastes into land, leading to the pollution of groundwater of the neighbouring areas. In January 2006, Cochin Minerals and Rutiles Ltd. was charged with discharging highly hazardous trade effluents into the land and the Periyar river, which made the latter turn red all of a sudden6. Incidents like the above occur in spite of the fact that the Water (Prevention and Control of Pollution ) Act 1974 prohibits the use of any stream' or well or sewer or land for the disposal of polluting water',

Edayar Environmental Protection Council v. Binani Zinc Ltd., O.P. No.

4419 of 1996A.

Kochupennu and others v. State of Kerala, O.P. No.9707 of 1997E. Cf. Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

See The New Indian Express , January 3, 2006 (Kochi edn.), p.3. As per S. 2 (j) of the Water (Prevention and Control of Pollution) Act 1974, `stream' includes — river; water course (whether flowing or for the time being dry); inland water (whether natural or artificial); subterranean waters;

v) sea or tidal waters to such extent or, as the case may be, to such point

as the State Government may by notification in the Official Gazette, specify in this behalf. 8. The Water (Prevention and Control of Pollution) Act 1974, S. 24.Cf. The Kerala Panchayat Raj (Regulation and Prohibition of Use of Public or Private Springs, Tanks, Wells and Other Water Courses) Rules 1996, R. 3, 4.

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thereby aiming at the maintenance or restoration of the wholesomeness of water'.

2. Solid Waste Management

With the unprecedented rate of increase in human population in urban areas, municipal solid waste management has become a Herculean task and hence a headache for the municipalities. The latter have no option but to transport these into the periphery and dump them in open landfills carelessly and callously, resulting in groundwater pollution. As per the Kerala Municipality Act 1994, it is the duty of the municipal authority to take adequate steps for the collection and disposal of rubbish, solid waste and filth'°. If the composting of the said waste is not practicable, it is to be disposed of by the municipality by adopting sanitary landfill methods". Similarly, the corresponding provisions in the Kerala Panchayat Raj Act 1994 12 and the Rules made thereunder 13 deal with the disposal of solid waste in Panchayat areas. Further, the Municipal Solid Wastes (Management and Handling) Rules 2000 applies to municipalities, making them responsible for collection, segregation, storage, transportation, processing and disposal of municipal solid wastes". The said Rules requires every municipal authority, which makes use of land filling' s facility

Id., Preamble. The Kerala Municipaltiy Act 1994, Ss. 326 — 340, 343, 345. Id., S. 331 (4). See Ss. 219A — 219 S. The Kerala Panchayat Raj (Public Latrines, Urinals, Bathing Ghats Construction and Maintenance, Cleaning of Private Premises) Rules 1998. R. 2, 3 (XIV).

15. R. 3 (XI) defines land filling to mean disposal of residual solid waste on land in a facility designed with protective measures against pollution of ground water, surface water, air, fugitive dust, wind - blown litter, bad odour, fire hazard, bird menace, pests or rodents, greenhouse gas emissions, slope instability and erosion. As per Schedule II, land filling is to be restricted to non-biodegradable inert waste and other wastes that are not suitable for either recycling or biological processing.

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for disposing of garbage, to apply to the State Pollution Board for getting authorization for setting such facility'''. The municipal authority should take care to see that landfills are away from habitation clusters, forest areas, water bodies, wetlands etc.'''. It is incumbent upon the said authority to assess periodically the groundwater quality within 50 meters of the periphery of the land fill sites so as to ensure that ground water is not contaminated beyond acceptable limits'8.

The Kerala Municipality Building Rules 1999 also focuses on preventing the pollution of groundwater by providing that no leech pit, sock pit, refuse pit, earth closet or septic tank shall be allowed or made within a distance of 7.5 meters radius from any existing well, used for the supply of water for human consumption or domestic purpose or within 1.20 meters distance from the plot boundaries'9.

Innovations in the field of medical science are no doubt a boon to mankind. But the generation of bio-medical wastes poses severe environmental problems including that of groundwater pollution. Hence the Government of India has framed the Bio- medical Waste (Management and Handling) Rules 1988, by virtue of its rule-making power under the Environment (Protection) Act 1986 20 . It calls upon the occupier of any institution, generating bio-medical waste, to take steps to ensure that such waste is handled without causing any adverse impact on human health and environment 21 . It specifically provides that the pit for the disposal of bio-medical waste should be away from human habitation and should not lead to the contamination of surface or ground water22.

R. 4 (2). The Municipal Solid Wastes (Management and Handling) Rules 2000, Schedule III, Item 8. Id., Schedule III, Item 23. The Kerala Municipality Building Rules 1999, R. 104 (4). The Environment (Protection) Act 1986, S. 6. The Bio-medical Waste (Management and Handling) Rules 1998, R. 4.

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The Hazardous Wastes (Management and Handling) Rules 1989, provides that every occupier, generating hazardous wastes, shall obtain authorization from the State Pollution Control Board" and hazardous wastes shall be responsible for the proper collection, reception, treatment, storage and disposal of hazardous wastes without any adverse effects on the environment'. The occupier/ transporter/operator of a facility shall be liable to pay for the damage caused to the environment by the improper handling and disposal of hazardous wastes," thereby concretizing the "polluter pays principle".

3. Unscientific Burial Practices

Unscientific burial practices may result in the percolation of decomposed organic waste to the groundwater. In Kerala, as far as the municipal areas are concerned, the Kerala Municipality Act 1994 contains elaborate provisions detailing the procedural formalities to be complied with for disposing of the dead". The Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998 requires panchayat to arrange places for burial, utilizing the panchayat fund". Generally, the burial site should not be within 50 meters of any residential area. But if concrete catacombs and electric crematoriums are used, the distance may be reduced to 25 meters". If the burial in a licensed/registered burial ground is found to affect the health of the nearby residents, the Panchayat can prohibit further cremation or buria129.

The Hazardous Wastes (Management and Handling) Rules 1989, R. 5. Id., R. 4. Id., R. 16. The Kerala Municipality Act 1994, Ss. 483 — 492. The Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, R. 3

(1).

Id., R. 5 (1).

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As per the Kerala Water Supply and Sewerage Act 1986, the Kerala Water Authority, an autonomous agency, is responsible for not only the distribution of drinking water but also the collection and disposal of waste water in the state'''. In addition to this, municipalities and panchayats are supposed to play a vital role in sewerage disposal''. But proper sewerage facility is available only to a fragment of the urban population. The rest of the population has to dispose of the sewerage in unlined soak pits, thereby contaminating the groundwater".

Salinity Intrusion and Coastal Aquifers

Kerala has a long coastline of 560 kms. In this coastal stretch, dependence on ground water is almost complete, because of the absence of perennial fresh water bodies". As a result of this complete dependence of the coastal people on groundwater, leading to excessive abstraction of groundwater, the coastal aquifers which are in constant contact with the Arabian Sea become contaminated due to the intrusion of seawater into the groundwater table. According to the National Water Policy 2002, over- exploitation of ground water should be avoided especially near the

The Kerala Water Supply and Sewerage Act 1986, Preamble and Chapter

VII.

The Kerala Municipality Act 1994, Ss. 315, 317-325. See also the Kerala Panchayat Raj (Public Latrines, Urinals, Bathing Ghats Constructilon and Maintenance, Cleaning of Private Premises) Rules, 1998.

For details, see C. Reghu, Kozhikode City; Water Supply and Sanitation, in Public Hearing on Environment and Development, 30 Report pp. 18-19

(1999).

M. Nazimuddin, & P. Basak, Groundwater Resources of Kerala — A Case Study in Coastal Shallow Aquifier Zone, in E.J. James, et.al. (Eds.) Water Scenario of Kerala (1998), pp. 18, 22.

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coast to prevent ingress of seawater into sweet water aquifers". It has to be noted that the Kerala Groundwater (Control and Regulation) Act, 2002 does not provide for the protection of coastal aquifers, unlike the Coastal Regulation Zone Notification 199135.

Unsound Agricultural Practices

Despite the fact that the Land Development Act 1964 provides for improvement in the methods of cultivation, preservation and improvement of soil, people resort to unscientific and indiscriminate use of chemical fertilizers and pesticides in agriculture which leads to severe ground water contamination. The high levels of potassium and nitrate in ground water, found in several parts of the state and the contaminated ground water in Kuttanad evidence this 36. The Agriculture Department of the state should have undertaken proper extension work among the cultivators about the harmful effects of chemical fertilizers and pesticides'''.

Natural Causes

In certain places the quality of ground water is affected by natural causes. For example, in Alleppey and Palakkad ground water is contaminated by the presence of excess fluoride. Drinking of such water

National Water Policy 2002, Para 7 (4). See also Attakoya Thangal v. Union of India, 1991 (1) K.L.T. 580. where the Lakshadweep Islands administration evolved a scheme to augment the water supply by digging wells and extracting ground water by using pumps. Cf. F.K. Hussain v. U0.1., A.I.R. 1990 Ker. 321. Para 2 (8). E.J. James, Dr., "Water Related Environmental Problems of Kerala" in Dr.

E.J. James, et.al.(Eds.), Water Scenario of Kerala 30, 49 (1998).

Radhakrishnan Kuttoor, "Kuttanad Reels Under Water Scarcity", The Hindu, July 7, 2002 at p. 5. 38. K.N. Remani, Dr. & P.S. Harikumar, Dr., "Water Quality Status of Kerala", in

Dr. E.J. James, et.al.(Eds.), Water Scenario of Kerala (1998), pp. 74-75.

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is likely to cause dental flurosis. Still this water is pumped by the Kerala Water Authority for the supply of drinking water'''.

Factors which affect Quantity of Groundwater

1 Wetland Conservation

Wetlands are those transitional lands between terrestrial and aquatic systems, where the water table is usually at or near the surface or the land is covered by shallow water'''. They are known as nature's kidneys. They provide barriers for controlling floods, cleanse polluted waters, protect shorelines, provide unique habitat for flora and fauna and recharge ground water aquifers'. In Kerala wetlands cover an area of 6.5 lakhs hectares" and comprise backwaters, estuaries, natural lakes, manmade lakes and canals." Conservation of these lands has not received the due attention that they require. Depletion and degradation of these lands are on the

See Hameed Khan v. State of Madhya Pradesh, A.I.R. 1971 M. P. 191,

where hand pumps, supplied by the State Government for supplying drinking water was found to have excess fluoride content. Thousands of persons, who consumed the contaminated water, were found to have various deformities like skeletal fluorosis and dental flurocis. P.V. Balachandran, "Wetland Agricultural Problems and Prospects," in M.

Jayakumar (Ed.), Wetland Conservation and Management in Kerala (2002),

P. 5 E.J. James, "Hydrology of Wetlands" in M. Jayakumar (Ed.), Wetland

Conservation and Management in Kerala (2002), pp. 7, 8; People United for Better Living in Calcutta v. State of West Bengal, A.I.R. 1993 Ca1.215,

where the Court issued an injunction restraining the state from reclaiming any further wetlands and directed the state to maintain the nature and character of the wetlands in their present form and stop all encroachments on the wetlands. P.V. Balachandran, supra n. 40. 43. K.N. Subramanian, "Wetland Resources with Particular Reference to the Mangroves of Kerala", in M. Jayakumar (Ed.), Wetland Conservation and

Management in Kerala (2002), pp. 121, 199.

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increase, because of reasons like wetland reclamation for urban construction and undesirable agricultural practices, construction of levees and dykes for hydrological manipulation, discharge of industrial effluents, dumping of municipal waste, drainage of fertilizer and pesticides residues, coconut husk wetting etc". For instance, the Vembanad wetlands, the largest of its kind on the west coast of India has been reduced to 37% of its original area, due to reclamation and other human interventions'''. The Vellayani fresh water lake, bordering Thiruvananthapuram and spread over 750 hectares in 1926, has undergone depletion at an alarming rate and now covers only 450 hectares". The fresh water wetlands at Periyar, Pookot and Sasthamkotta are also facing many a problem. Most of the paddy fields in the state have been reclaimed for settlements, cultivation of plantation crops and industrial purposes 47 . This sort of depletion of wetlands paves the way for the lowering of the water table and drying up of wells. This is because the wetlands, especially the paddy fields, hold and retain water. This helps the seeping of water into the troughs and crevices in the rock substratum, thereby recharging the ground water aquifers".

The Kerala Land Utilization Order 1967 issued under the Essential Commodities Act 1955, sought to prevent the conversion of agricultural

M.N. Muraleedharan Nair & R. Ajayakumar Varma, "A Review of the Pollution Problems in the Wetlands of Kerala and Management Options,"

in M. Jayakumar (Ed.), Wetland Conservation and Management in Kerala

(2002), pp. 87-94. K.G. Padmakumar et. al., "Thaneermukkom Barrage and Fishery Decline in Vembanad Wetlands, Kerala," in M. Jayakumar (Ed.), Wetland Conservation

and Management in Kerala" (2002), pp. 27-36.

T. Nandakumar, "Land Reclamation Threatens Vellayani Lake", The,tHindu, May 27, 2002 at 3. Krishnakumar, "Land Use and Livelihoods", The Frontline, Sept. 19, 1997 at 39, 40. 48. P.V. Balachandran, supra n. 40, p.14. See also Srikumar Chathopadhya, "Community Inventorisation", in Anil Agarwal et. al., (Eds.), Making Water

Everybody's Business 141, 143 (2001).

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land for non-agricultural purposes except with the written permission of the District Collector or Revenue Divisional Officers. But, alarmed by the large scale conversion of paddy fields for other purposes, the Government issued a direction to all District Collectors not to sanction any application for the conversion of paddy fields except with the prior approval of the Government. Thereafter, all individual applications for conversions were dealt with at the Government level. However, considering the inordinate delay in processing the applications and the hardships caused to those, who wanted to convert small pieces of land for house construction purposes, the Government issued a new order, by which the District Collectors/Revenue Divisional Officers were restored the power to dispose of the applications'. Conversion of land for construction of houses for individuals upto 5 cents are to be generally allowed 50. However, large scale conversion of land by artificial partitioning into small plots of less than 5 cents is to be disallowee . In all cases of conversion, the officers have to ensure that the drainage of neighboring plots is not blocked". The revenue machinery at the taluk and village levels should be activated to ensure that in future, conversions or attempted conversions without sanction are promptly detected and proceeded against". But this mechanism, evolved under the shade of the Land Utilization Order 1967, has been found to be totally ineffective.

G.0.(Rt.) No. 157/2002/AD. Id., para 3 (4) Ibid. Supra n. 49, para 3 (3) Id., para 3 (5). Despite the Land Utilization Order, conversion of paddy fields into either garden lands or living units continues unchecked in many areas. See. P. Ananthakrishnan Pillai, "Concrete Structures Mushrooming in Palakkad's Paddy Fields", The Indian Express, October 23, 1991. See also P. Leelakrishnan, Environmental Law in India, Butterworths India, (1999), pp. 65-66.

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The Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 also stands in the way of wetland conservation, because it seeks to regularise unauthorised development of land which includes filling up of water bodies, conversion of wetlands etc., effected before 1999. However, it is heartening to note that the Sasthamkotta freshwater wetlands, Ashtamudy wetlands, Vembanad and Kol wetlands have been identified among the 19 wetlands for intensive conservation and management under the National Wetlands Conservation Programme".

2. Sand Mining

Because of excessive sand mining and the consequent lowering of the river beds, water levels in the neighboring wells, lakes, ponds and paddy fields are going down, thereby indicating the depletion of the quantity of groundwater 56 . All the rivers in Kerala were vested with the local bodies, which auctioned the right to mine sand to the highest bidder. But, due to lack of environmental consciousness and enamoured by the royalty amount, these local bodies permitted the sand mafia to resort to indiscriminate sand mining". Because of the lowering of the river beds and the threat of salinity intrusion into the available water, the State Government found it imperative to regulate the indiscriminate sand mining and therefore enacted the Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001. The Act provides for the constitution of District Expert Committee s' and Kadavu Committee" in each district.

K.S. Sudhi, "Ambitious Plan for Conservation of Wetlands", The Hindu, March 25, 2002 at p. 5. K.P. Thrivikramaji, "Utilisation of the River Basin: State of the Art Recommendations", in Mundanthra Balakrishnan (Ed.), Environmental Problems and Prospects in India 321, 329 (1999). See also Bheemagiri Bhaskar v. Revenue Divisional Officer Bhangir, A.I.R. 2001 A.P. 492. Chandrasekharan Pillai v. State of Kerala, 1998 (2) K.L.J. 195. Kerala Protection of River Banks and Regulation of Removal of Sand Act 2001, S. 3.

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The Kadavu Committee has to supervise and monitor all sand mining activities and make necessary recommendations to the District Expert Committee 60 . The latter, chaired by the District Collector, has the power to fix the total quantity of sand that can be removed, after considering the guidelines of expert agencies like the Centre for Earth Science Studies and Centre for Water Resources Development and Management 61 . It can also recommend to the Government the need to ban sand removal from any river during any season of the year'. A noteworthy feature of the Act is the provision, stipulating the presence of two environmentalists in the Committees 63 .

3. Depletion of Greenery

Our state is famous for the thick greenery, consisting of forests, sacred groves, tree-clustered landscape, paddy fields etc., making the land rich in groundwater resources by facilitating retention of moisture in the soil and collection of water in the aquifers 64 . But, because of the spread of industrialization and socio-cultural transformation, taking place in our state, it is slowly getting rid of its greenery and becoming virtually bald. Even though there is a plethora of laws to protect forests 65., Kerala is losing its forest cover at a fast pace 66 . Sacred groves or kavus and the associated ponds were once a common feature in every village of Kerala. The luxuriant vegetation in the kavus with multiple layers of canopy above and the sponge like bed of leaves, littered below, helped retain water,

Id., S. 11. Id., S.9(1).

Ibid.

Id., Ss. 4 (j) & 3 (1). P. Leelakrishnan, supra n. 54. p. 72. The Kerala Preservation of Trees Act 1986, the Kerala Forest Act 1981, the Forest (Conservation) Act 1980 and the Land Development Act 1964 .

66. Ramakrishnan Korakandy, "State of the Environment in Kerala", E.P.W., May 27, 2000 p. 181.

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thereby enabling higher rate of percolation into the soil and recharge of

groundwater resources"

and protection, they being the properties of the joint family. But they have

lost their importance, with the emergence of nuclear families and hence they are disappearing. According to a recent survey, only 761 such groves remain, compared to the nearly 30,000 groves in the beginning of the

Appropriate laws are required to protect these sacred

nineteenth century" groves.

In the past, they were given due recognition

4. Over-exploitation

With the emergence of globalization and privatization, over-

exploitation of ground water by the elite and the multi-national corporations like the Coca Cola Company in Plachimada is posing a serious threat to the quantity of groundwater, available for the common man. Fearing that over-exploitation of groundwater will pave the way for the regular lowering of the level of groundwater, the Kerala Government enacted the Kerala Ground water (Control and Regulation) Act 2002, for the regulation of its

consumption and

State Ground Water Authority, comprising members like an expert in Water Resources, a member belonging to a scheduled caste or scheduled

tribe, a woman, a public man, an environmentalist, a member of Grama Panchayat, a member of Municipal Council, Secretaries of Departments of Water Resources, Finance and Local Self Government as well as the Director of Ground Water Department". Based upon the recommendation

The Act provides for the constitution of

Mathew Arackal, Fr., & K.N. Remani, Dr., Water Resources: Harvesting,

Conservation & Protection in Public Hearing on Environment and

Development, 39th Report (1999), pp. 28, 29. Roshini Kutty, "Kerala's Sacred Groves: A Ray of Hope", The Hindu Survey

of the Environment, 2001, p. 177.

The Kerala Ground Water (Control and Regulation) Act 2002, Statement of Objects and Reasons. Id., S. 3.

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of the Authority, representing different interests, the Government may notify areas for the control and regulation of ground water consumption"'. Any person, desirous of digging a well or converting the existing well into a pumping well or registering an existing well in the notified area, should get a permit from the Authority"' . The latter will grant a permit, provided it is not against public interest"'. But, the permit, except in the case of registration of existing wells, shall be deemed to have been granted to the applicant, if the Authority sleeps over it for more than ninety days. 74 That means that the applicant will be getting a permit, even if it is against public interest, if the application has not been considered within ninety days of its receipt. The Act takes care to protect public drinking water resources by requiring persons to obtain permit for digging well within thirty meters from such resources.". But in this case also, if the decision of the Authority is not communicated to the applicant within ninety days from the date of the application for permission, it shall be deemed to have been granted to the applicant 76 . Further, the seriousness of the object of the Act gets diluted by the provision for penalty, which ranges from five hundred to one thousand rupees", which is an empty nothing as far as multi-nationals like Coca Cola are concerned.

Conclusions and Suggestions

From the above analysis, it is clear that the legal strategy for ground water management in Kerala is not confined to the Kerala Ground Water (Control and Regulation) Act 2002. This Act is only a tip of the iceberg. As the ground water management can not be separated from land and

Id., S. 6. Id., Ss. 7 (1), 8 (1). Id., Ss. 7 (4), 8 (3). Id., S. 7 (6). Id., S. 10. Id., S. 10 (3), Proviso.

77. Id., S. 21.

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surface water management and put in a water tight compartment, we find its legal roots spreading out and lying scattered in the different statutes, discussed above. This necessitates the enacting of a comprehensive legislation, incorporating the provisions, relating to ground water management, lying scattered in the various and varied statutes. It is suggested that the proposed comprehensive legislation should provide for the following:-

An integrated approach should be adopted, connecting and inter- linking land management, surface water management and ground water management.

Legal checks should be introduced to regulate the growth of multinational water companies which can purchase large tracts of land and extract the groundwater therein, thereby desertifying the nearby lands.

Precautionary and polluter pays principles should be emphasized and incorporated.

Provisions should be made for wetlands conservation and afforestation programmes.

Provisions for recycling and reusing sewage, industrial and municipal wastes shall be added.

Provision for encouraging private sector participation in planning, development and management of water resource projects should be incorporated, because private sector participation may help in introducing innovative ideas, generating financial resources and improving service efficiency and accountability to users.

7) Necessary legal and institutional changes should be made at various levels by including provision for participatory approach to water resources management by involving not only the various

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governmental agencies but also the users, especially women in various aspects of planning, designing, development and management of water resources schemes.

Provision should also be made for reviving and implementing traditional water conservation techniques through community participation.

Penalties are to be made sufficiently deterrent and economic incentives like exemption from tax and subsidy should be provided for adopting environmentally sound methods for water protection.