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Who owns groundwater?

April 13, 2012

A RECENT survey we conducted across low-, middle- and high-income households of an urban population in Rawalpindi to look at the level of exit from services that we usually think the state provides showed some surprising results.

Across all income groups quite a high percentage of people now supplement their water supply from private sources and the proportion who supplement public supply, as expected, goes up with income levels. For the rich, the private source is usually private-company-provided bottled water, for the middle- and lower-income households, the source might be a tanker.

But for all of them, across income levels, especially in the middle- and higher-income households, a popular source of supplement is private boring into the ground for direct access to groundwater. Although few people get water tested, most felt that if you dig deep enough, groundwater is better than the public supply of water. Private boring, though there are requirements for getting permission from the local government, is usually done without permission. And even if permission is secured, the amount of water that is mined post boring is not monitored/regulated.

This raises the question: who owns groundwater? It is important to answer this as we know what happens to resources over which rights are not clearly and unambiguously assigned: the tragedy of the commons.

It is also wasteful and inefficient for a large number of households to each have a hole drilled and a motor installed for pulling water up. The efficient solution is for the public supply to be good enough to cater to all.

There are agreements on how river waters are to be shared among the provinces and on who gets canal water when and at what cost. But groundwater, even though it supplements canal water for irrigation/agricultural purposes, has few regulations. For urban areas, groundwater is the main source of water for drinking and other household purposes. But, again, the regulations are missing.

As water scarcity increases, the gravity of the situation will be realised even more. But even now, when water mining is uncontrolled, we know groundwater levels can fall drastically over a matter of months/years; the fall can have damaging effects on the aquifers, and water quality can be permanently affected. We need to be more aware and cognisant of possibilities here.

The key issue is: who does the groundwater belong to? It is not clear from our jurisprudence/law. Can anyone bore a hole in the ground and mine as much water as they want? Do owners of a piece of land own the water under it? But aquifers are not divided the way we parcel land so when I mine water it will impact, possibly, the entire town/city. Should ownership belong to the local government? If nobody owns water, or no one knows who owns water, clearly people will do as they please.

Companies selling bottled water mine water from one area and sell it all over the country. The people of one area lose the water but do they get anything in return for it? Do they have any way of controlling how much water is mined from their area? What happens if the water table falls or if the aquifer is damaged? The company will, most likely, pack up and move on and the people of the area will suffer the consequences. Should the people not have any control over what happens to the groundwater in their area? Should they not benefit from the resource even if they allow a company to mine the water?

It is common for water from one jurisdiction (across tehsil/district boundaries) to be piped to another. Haripur supplies water to Islamabad and there are many such examples across Pakistan. What do the Haripur people get in return? Should they have a say in how the water in their area is being utilised? Should they be able to sell water to Islamabad?

For those who know economics this will immediately strike them as an example of what Ronald Coase was talking about: if a right is not clearly assigned over a resource, we cannot develop even the basics of pricing, markets and trading for the resource. The consequences, in terms of the inability to manage the good/service and its usage, issues of conservation, preservation and trade, can be wastage, inefficiency, even irreparable damage.

The first step is the development of jurisprudence around groundwater. Who owns water, who has the power to manage it and how, what is the role of the local government/provincial government? What is the role of citizens?Once we have clarity on these issues we could move to designing institutions, organisations and operating procedures for managing groundwater. But without the first step, of recognising the issue and getting the legislatures to make the appropriate laws, it is hard to go further.

A priori, one can argue that the best place to rest groundwater rights should be with local communities and the local government should be empowered to manage the resource on behalf of the local communities. Provincial governments should come in on cross-boundary issues only.

Local governments, on behalf of communities, should be negotiating on the issue of their water with companies and other local governments, and they should be developing ways of managing the resource in a sustainable manner and to the best advantage of the community. This will involve managing access of individuals to that water. But if the right is with the community, individuals will have to negotiate for the right of usage with the community. We do this with a lot of other products/services already.

Groundwater is a precious resource. By not having the proper laws and operating procedures for managing it, we are wasting the resource and using it unsustainably. This needs to change. We need to develop relevant water rights/jurisprudence and create institutional structures to manage these rights. The issue is not even on the public policy radar right now. Is there a local government/community that can take the lead? Or is there someone who can file a public-interest case?

The writer is senior adviser, Pakistan at Open Society Foundations, associate professor of economics, LUMS, and a visiting fellow at IDEAS, Lahore.