December 03, 2013

Telangana river waters, irrigation & agriculture-11 (International trans-boundary water sharing)

Inter-state water sharing in the US

The American position can be understood from the Supreme Court decisions. Excerpts from Justice Brewer's opinion in Kansas v. Colorado explain the situation.

"In a qualified sense and to a limited extent, the separate states are sovereign and independent, and the relations between them partake something of the nature of international law. This Court in appropriate cases enforces the principles of that law, and in addition, by its decisions of controversies between two or more states, is constructing what may not improperly be called a body of interstate law".

"If the two states were absolutely independent nations, it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this Court".

On the role of the federal government, Justice Brewer quotes Chief Justice John Marshall's opinion in McCulloch v. Maryland, 17 U.S. 316 (1819): "This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted".

Justice William O. Douglas in his opinion in Nebraska v. Wyoming, 325 U.S. 589 (1945) reiterates the position writing "a clash of interests which, between sovereign powers, could be traditionally settled only by diplomacy or war. The original jurisdiction of this Court is one of the alternative methods provided by the Framers of our Constitution".

I can not find a single judgment where a state organ was treated as an appropriator. In Nebraska v. Wyoming, the federal government claimed it acquired water rights by appropriation for two projects and retains the rights to the extent not disposed of. The secretary of interior filings for the projects were accepted by state officials. Justice William O. Douglas in his opinion did not accept the plea that this act conferred proprietorship rights to the federal government.

Justice Douglas cited several precedents including Ickes v. Fox, 300 U.S. 82 (1937): "Although the government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners, and, by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works".

He ruled: "The rights of the United States in respect to the storage of water are recognized. So are the water rights of the landowners. To allocate those water rights to the United States would be to disregard the rights of the landowners. To allocate them to the States, who represent their citizens parens patriae in this proceeding, in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities. Thus, the question of the ownership by the United States of unappropriated water is largely academic so far as the narrow issues of this case are concerned".

It may be noted the American constitution confers no rights to the federal government respect to inter-state flowing waters. Considering this and the above together it emerges that inter-state water sharing in the US was an uncharted territory. While states are free to manage water flowing through their territories, the federal government has no right of oversight. Inter-state water disputes therefore fall in the original jurisdiction of the Supreme Court. While the states can act as parens patriae of their citizens, they do not posess any water rights themselves.

Helsinki rules

International Law Association (ILA) adopted a set of guidelines called "Helsinki Rules on the Uses of the Waters of International Rivers" ("Helsinki rules" in common parlance) at its fifty second conference held at Helsinki in 1966. While these guidelines have no formal status and lack an enforcement mechanism, these represent a pioneering effort in trans-boundary water management.

The Helsinki rules consist of 37 articles spread over 6 chapters. We will go into the relevant aspects to the extent necessary below.

Chapter 1 (articles 1-3) covers scope and definitions. It may be noted that the scope excludes "as may be provided otherwise by convention, agreement or binding custom among the basin States".

Chapter 2 (articles 4-8) is the most relevant for our study as it deals with "equitable utilization of the waters of an international drainage basin". Article 4 states: "Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin".

Article 5 has three sections. The first section requires that the reasonable and equitable share shall be ascertained "in the light of all the relevant factors in each particular case".

The second section of article 5 provides a non-exhaustive list of some relevant factors. The third section states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

The list provided in 5 (2) is produced in full below:

1.     The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State
2.     The hydrology of the basin, including in particular the contribution of water by each basin State
3.     The climate affecting the basin
4.     The past utilization of the waters of the basin, including in particular existing utilization
5.     The economic and social needs of each basin State
6.     The population dependent on the waters of the basin in each basin State
7.     The comparative costs of alternative means of satisfying the economic and social needs of each basin State
8.     The availability of other resources
9.     The avoidance of unnecessary waste in the utilization of waters of the basin
10.  The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses
11.  The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State

Article 6 precludes inherent preference of any use over others. Article 7 prohibits denial of reasonable use to a basin state on the basis of future uses of other states.

Article 8 relates to "existing reasonable uses". Section 1 states: "An existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use". Section 2 defines the entry & exit criterion of an existing use. Section 8 (3) prohibits a use that is incompatible with an already existing reasonable use at the time of becoming operational from being treated as an existing use.

Chapters 3, 4 & 5 (articles 9-25) relate to pollution, navigation & timber floating. These are not relevant to this study.

Chapter 6 (articles 26-37) outlines the procedures for preventing and/or settling disputes. This does not warrant a detailed discussion at this stage.

Convention on the Law of the Non-navigational Uses of International Watercourses

UNO adopted a document in 1997 titled "convention on the law of the non-navigational uses of international watercourses". This has not yet gone into effect as the prescribed minimum of member states are yet to ratify the law. It may be noted India has not yet ratified the convention. The document consists of 37 articles plus an additional 14 articles in the annexure. We will go into the relevant aspects to the extent necessary below.

Article 1 defines the scope of the convention. Navigation is specifically excluded from the convention's scope. Article 2 defines important terms including "watercourse". Articles 3 & 4 cover watercourse agreements.

Articles 5 & 6 are the most relevant for our study as these deal with "equitable and reasonable utilization and participation". Article 6 (1) provides a non-exhaustive list of some relevant factors (produced in full below):

(a)   Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character
(b)   The social and economic needs of the watercourse States concerned
(c)   The population dependent on the watercourse in each watercourse State
(d)   The effects of the use or uses of the watercourses in one watercourse State on other watercourse States
(e)   Existing and potential uses of the watercourse
(f)    Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect
(g)   The availability of alternatives, of comparable value, to a particular planned or existing use

Article 6 (2) enjoins states to consult each other to ascertain equitable utilization. Article 6 (3) states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

Article 7 calls upon states to prevent significant harm to other states and, if harm does occur, mitigate and/or compensate the harm in consultation the injured states.

Articles 8 & 9 outline the responsibilities related to mutual cooperation and information exchange. Article 10 precludes (in the absence of agreement or custom) inherent priority of any use over others and prescribes the modalities of conflict resolution.

The rest of the convention relates to matters such as preventing and/or settling disputes. These do not merit a detailed discussion at present.





"All things in this creation exist within you, and all things in you exist in creation; there is no border between you and the closest things, and there is no distance between you and the farthest things, and all things, from the lowest to the loftiest, from the smallest to the greatest, are within you as equal things. In one atom are found all the elements of the earth; in one motion of the mind are found the motions of all the laws of existence; in one drop of water are found the secrets of all the endless oceans; in one aspect of you are found all the aspects of existence": Kahlil Gibran

10 comments:

  1. Let us apply the principles of Helsinki rules to the recent award of KWDT2 allocations of Krishna river water.

    An incompatible use is a water use which is unable to coexist with other use/uses. Section 8 (3) prohibits a use that is incompatible with an already existing reasonable use at the time of becoming operational from being treated as an existing use.

    Section 8 (3): The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.

    It can happen that prohibition of incompatible uses taking place in the lowest riparian state by increasing the water use allocations in upper riparian states, can cause substantial injury to the sustainable productivity and ecology of the river basin particularly in tail end/lowest riparian state. The mean annual environmental flow requirements (other than minimum continuous environmental flows) and the yearly salt export requirement (calculated as 10 years average) are the incompatible uses whereas others are beneficial uses such as irrigation, municipal water supply, industrial uses, etc.

    1) Mean annual environmental flow (MAEF) requirements:

    MAEF are the flows to be maintained up the sea in all its streams and main river course. As an ideal case the pristine status (at all locations of the river basin) of the river regime to protect the ecology of the river, is classified as class A. Thus there are total 6 classifications (A, B, C, D, E & F) depending on the extent of water uses and the pollutants added to the river water. For example C classification is a state where the river regime is disturbed but basic ecosystem functions are still intact. At least class C status is recommended where the water use requirements in a river basin surpass the total water available in the river (ex: Krishna river). Class C status requires 505 tmc (18.3% of 78.1 billion cubic meters / 2757 tmc total mean annual runoff) river flows which also consider ground water uses (not an accounted beneficial water use in KWDT). The unallocated water after KWDT1 allocations are 448 tmc after the 2130 tmc mean annual average water allocations out of 2578 tmc mean annual average availability. 448 tmc available MAEF after KWDT1 allocations are already less by 57 tmc for class C status. Further the available MAEF by KWDT2 are reduced to 271 tmc (including 16 tmc minimum continuous environmental flows) after its fresh allocations to the riparian states. It is 9.8 % of total mean annual average flow in the river with class D ecological status. This status may deteriorate further due to more ground water use and other unaccounted beneficial uses in few years. Please refer the technical paper at the link given here (http://nrlp.iwmi.org/PDocs/DReports/Phase_01/14.%20Environmental%20water%20demand%20-%20Smakhtin%20et%20al.pdf )

    Please give your observation on this aspect (required mean annual environmental flows) vis a vis reasonability of KWDT2 additional water allocations.

    contd .. in next post

    ReplyDelete
    Replies
    1. Article 8 (3) does not prohibit "existing uses" that are incompatible with other existing uses. It *only* disqualifies them from being considered an existing use as per 8 (1) and 5 (2) factor # 4.

      Delete
  2. 2) Salt export requirement:

    Before the rain water collects in the river, it picks up many salts in dissolved form from the soil on which it flows or percolates. The nature and quantity of total dissolved salts (TDS) depends on the chemical weathering rate of rocks, industrial activity, mining activity, anthropogenic activity, ground water usage, surface water usage, the extent of acidity in the rain water, etc in a particular area.

    Most of the dissolved salt load in Krishna river water is originating from the weathering of basalt rocks in Deccan plateau area of Karnataka and Maharashtra. The total salt load in the Krishna basin is 12 million tons in a year. Close to 100% utilization of water in the river basin area without leaving in to the Sea will accumulate salts in its soil & ground water which will gradually make the soil unfit for agriculture. Also both river and ground waters will be unfit for human & cattle consumption. This will lead to catastrophic environmental disaster over a period of time reducing sustainable productivity of soil. So it is must to release adequate quantity of water in to the sea to maintain the river water TDS in acceptable limits. Rejecting the dissolved salts from the river basin to the sea is called “salt export”. water containing more than 500 ppm TDS is not suitable for consumption and agricultural use if it has high alkalinity which is the case in Krishna river

    Murray Darling river in Australia is similar type of river where water is prone to high alkalinity. In Murray Darling river basin, it is stipulated that the water TDS should not exceed 500 ppm in 95% of time in a year. Sometimes salt export can be achieved by transferring water to another river basin in the process of water use. The water required for salt export limiting the TDS to 500 ppm is 847 tmc (24 billion cubic meters). Nearly 400 tmc water out of the allocations to Andhra Pradesh by KWDT2 are transferred outside the basin for use. So another 447 tmc is to let to the sea or outside the basin where only 271 tmc is available as unallocated flows. So there is a short fall of 176 tmc mean annual which is equal to in basin water allocations (other than outside basin water allocation to Telugu Ganga and Chennai water supply). Thus total water allocations made by KWT2 are at the cost of an essential incompatible water use which is against the principle Section 8 (3) that a cobasin state shall not suffer substantial injury while allocating water to other riparian states.

    Please give your observation on this aspect (required salt export flows) vis a vis reasonability of KWDT2 additional water allocations.

    Cond ... next post

    ReplyDelete
  3. 3) Water salinity effect on existing allocations by KWDT1:

    If 12 million tons salt load is carried by 19 billion cubic meters or 671 tmc (400 + 271), the water TDS would be 631 ppm which is 25 % in excess of permitted 500 ppm. Let us consider that a particular crop can grow healthily at root zone water / soil salinity /alkalinity of 1500 ppm and its evapo-transpiration requirement is 100 units of water. When 500 ppm salinity irrigation water is supplied to the crop, the total crop water requirement is 150 units (100 units evaporo-transpiration and 50 units drainage water) to maintain 1500 ppm salinity in root zone water / soil.

    If 631 ppm salinity/alkalinity water is used for the same crop, the total crop water requirement is 172.5 units (100 units evapo-transpiration and 72.5 units drainage water) to maintain 1500 ppm salinity in root zone water / soil. Thus there is 13% more water requirement for the crop if the salinity increases by 25% in irrigation water. Though the drainage water / regeneration water available for downstream use has increased from 50 units to 72.2 units this water is having high salinity (1500 ppm) whose suitability for further use is nil. This high saline water is to be left to the sea for maintaining salt balance (i.e. salts not to accumulate in soil/ground water) in the field soil.

    When water salinity/alkalinity is increasing due to upstream uses, the downstream users need to use more water than earlier in their existing irrigated area. Thus existing /protected water allocations are to be enhanced for compensating the increase in salinity. The terminal irrigation project in Krishna basin is Krishna delta drawing water from Prakasam barrage. Since the salinity/alkalinity of water is increasing due to upstream uses, the water requirement for Krishna delta irrigation would go up at least by 13% as explained above. So nearly 23 tmc water is the additional requirement of Krishna delta for using high salinity water. Similarly, Nagarjunasagar irrigation system water would go up by at least 13% (36 tmc) for irrigating the same command area. Before allocating additional water uses, KWDT2 should have considered the effect of water salinity on the water allocations already done by KWDT1 or it should have ensured for use in AP area the same quality/ salinity/alkalinity of water which is used in upstream states Karnataka and Maharashtra. (also refer http://en.wikipedia.org/wiki/Krishna_Water_Disputes_Tribunal and http://en.wikipedia.org/wiki/Alkali_soils http://en.wikipedia.org/wiki/Residual_Sodium_Carbonate_Index ). The additional allotment of 38 tmc mean annual to AP by KWDT2 is fiction /not adequate to even compensate the more water needs (59 tmc) in the existing command area such as Krishna Delta and Nagarjunasagar irrigation systems. Thus they is no additional useful allocation to AP by KWDT2 over and above KWDT1 permanent allocations whereas Karnataka and MR would benefit by 155 tmc (yearly average) additional allocations from KWDT2 which are made available by curtailing essential environmental and salt export needs of Krishna river in AP.

    Already coastal area farmers are incurring additional cost in the form of green mulching, organic manure, tilling the fields to fine loose soil/mud, chemical additives application, more urea application, enhanced field drainage, etc to leach the field soil for reducing alkalinity and salinity problems. Also substantial field time is lost in these efforts which are equal to a short duration crop. Due to additional allocations to Karnataka and MR by KWDT2, GoAP may be forced by farmers in future to treat the canal water at canal heads with chemical additives like Gypsum to make suitable for irrigation needs. Also refer Refer IWMA research report no 1 http://www.iwmi.cgiar.org/publications/iwmi-research-reports/ The new era of water resources management: from "dry" to "wet" water savings.

    cont... in next post

    ReplyDelete
    Replies
    1. I am traveling now and will study the material when I return end of next week.

      However, I don't remember any state or expert witness pleading about environmental flows.

      Delete
  4. Please give your observation on this aspect (water salinity affects on existing allocated water use) vis a vis reasonability of KWDT2 additional water allocations.

    It is totally unjustified to give any fresh allocations by KWDT2 when the water allocation by KWDT1 are not adequate for salt export needs and healthy environmental flows. This issues have not come to fore front because Karnataka and Maharashtra have not achieved full use of their KWDT1 allocations till recently. A fresh tribunal (KWDT3) is the reality in near future.

    Best regards.

    ReplyDelete
  5. @jai,
    during the recent brijesh kumar tribunal verdict,andhra Pradesh's appeal that it should be the sole claim of surplus water as it is the lower riparian state, was turned down.as a resultt,govt is planning to go to supreme court.assuming that supreme court overrules the tribunal's petition,andhra Pradesh(undivided)will get all the surplus water.further assuming that Andhra Pradesh divides,then seemandhra would be the lower riparian state.right?dont u think that,in that case telangana would loose some amount of surplus waters being the upper state?

    ReplyDelete
    Replies
    1. Supreme Court has no jurisdiction on tribunal awards.

      AP's "liberty" over surplus waters in KWDT-I was due to special reasons that are no longer applicable.

      Delete
  6. For a scientific treatment of the river water sharing and irrigation from a fairness and justice viewpoint, please refer to the book by late K. Balagopal, a human rights activist.

    http://balagopal.org/?s=jalapatalu


    ReplyDelete

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