Correlative rights to benefit farmers through groundwater law

Water is a gift of nature in both surface water through rivers, canals, tanks, keres, kattes, kalaynis, as well as in groundwater through wells, springs. The gift remains benevolent as long as water is used to meet the needs. The gift turns malevolent when greed over takes need. Since property rights are ambiguous in water and groundwater, optimal or efficient allocation and use are limited. Surface water in rivers follow riparian rights, while for groundwater rights are still ambiguous.

Correlative rights

According to Correlative rights, right to use water by a farmer is not an absolute right, but is relative to the rights of other farmers. This treats rights of all farmers over an aquifer as correlative or coequal. Correlative rights rule sets limits for the use of groundwater. Farmers have to restrict their extraction of groundwater to a reasonable volume based on equity criteria. If groundwater volume is not adequate for all needs of farmers, each farmer will be judicially required to reduce the pumping proportionally until the overdraft is addressed. Each groundwater farmer has an equal right to groundwater regardless of when s/he drills the well. Share of groundwater can be based on joint criteria of area owned in relation to total area of the aquifer, physical limits to water volume, crop choice, irrigation technology determining volume of water in agriculture in order that rights of small and marginal farmers are also incorporated in the correlative rights enforced as supply of groundwater is inadequate to meet needs of all farmers.

Professor Ciriacy-Wantrup

It was Professor Ciriacy-Wantrup of University of Calfiornia, Berkeley who explicitly indicated that Correlative rights are a useful doctrine for addressing groundwater predicament as rights are interdependent of other farmers. Prof Wantrup and his student Veeman in 1978 recommended the adoption of Correlative rights to address Groundwater predicament in Punjab as groundwater was over exploited due to cultivation of water intensive rice crop during green revolution. Therefore, it is crucial for groundwater law in India to incorporate Correlative rights doctrine to benefit farmers by providing them rights in a manner that would provide groundwater extraction reflecting needs of other farmers towards equitable share of groundwater basin.

Groundwater is not a ‘free gift’ of nature

Farmers have to invest in extraction of groundwater through fixed cost of depreciation on irrigation pumpset, electrical installation and conveyance infrastructure and variable cost of amortized cost drilling and casing frequently incurred due to initial, premature failure of irrigation wells, plus electricity, operation and maintenance costs. Despite electricity supplied free of cost, farmers invest around 70 to 80 percent of the total cost of groundwater as fixed and variable costs as above. About 65% of India’s geographical area comprises of hard rock areas where recharge is below 10 percent of the rainfall and groundwater availability is critical. Groundwater thus needs to be used in a sustainable manner and not over extracted the ‘fastest and the mostest’.

Investment in groundwater does not ensure Property rights

Even though farmers incur at least Rs. Three lakhs on irrigation well which includes both fixed and variable costs incorporating probability of well failure and well success, this does not ensure property rights on groundwater extraction to farmers. The volume of extraction depends upon nature of the aquifer, natural recharge, efforts towards artificial recharge, location, degree of cumulative interference among wells, associated externalities, crop choice, probability of well failure, age of wells, depth of wells and other hydrogeological factors.

Crucial to enact Groundwater regulation

In the US, farmers constitute hardly 2% of the population, and any law concerning agriculture is easily implementable as the transaction cost of implementing laws are low. India has 3 crore groundwater farmers forming world’s largest number of groundwater farmers with 70 percent of them belonging to small farmers. Groundwater irrigates around 70% of the irrigation in India. There is no reliable record of how many wells (with initial failure, premature failure, functioning) exist with each farmer. There is no limit on volume of groundwater extracted as there is no measurement of either groundwater pumped or the electricity used. There is no limit on the number of wells farmer can drill or dig.

Governments hesitate to bring in groundwater regulation towards sustainable use as farmers and stakeholders are not easily convinced of the benefits of regulation. Enacting groundwater law in letter and spirit is a political will with farmers’ cooperation. Even if groundwater law is enacted in some states, the implementation is weak. Karnataka has enacted Groundwater Act in 2011, but has hardly made any impact on the ground.

In the absence of groundwater law in action, implications on the ground are already discernible. In Punjab, from 1970 to 2013, rice area increased by 26 % per year (from 0.23 ml ha to 2.82 ml due to cultivation of rice by pumping groundwater. Groundwater in Punjab, Haryana, Rajasthan has fallen by more than 88-million-acre feet equivalent to three times the volume of water present in the Lake Mead, the largest reservoir in the USA, 180 kms long, 162 meters deep, with 640 sq. kms of area holding 26.12-million-acre feet of water.

Karnataka (2011) and Uttar Pradesh (2021) have enacted laws towards Groundwater regulation. The Acts unfortunately have major flaws (1) No limit on the maximum number of wells that can be drilled by farmers, (2) No limit on the maximum volume that can be extracted per farmer, (3) No mention of spacing regulation addressing reciprocal externality due to cumulative interference, (4) No mention of effective implementable punitive fines system for violation such as cultivating water intensive crops – paddy, sugarcane and others. Therefore ‘Correlative Rights’ doctrine are crucial in groundwater law for irrigation, and has the ability to convince farmers and stakeholders regarding its role in protecting sustainable use of groundwater as well as in meeting the needs of farmers. In the absence of groundwater law incorporating Correlative Rights, doubling farm incomes and meeting food security will remain a mirage.

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