Ground Water: What an Aquifer Is

Ownership of the surface does not correspond to the resource. An aquifer under four hundred fields is one physical body, and the law gave each of the four hundred owners a right to it.

And extraction is subsidised. Free or heavily subsidised electricity for agricultural pumping removes the price signal that would otherwise limit draft. A student who leaves the electricity tariff out of an answer about groundwater has left out the main cause.

The Indian position, in numbers a student can use

India is the largest user of ground water in the world; ground water supplies the greater part of irrigated area and the great majority of rural drinking water. The Central Ground Water Board assesses the country in units and reports that a substantial proportion of units in Punjab, Haryana, Rajasthan, Delhi and Tamil Nadu are over-exploited, while the eastern States are largely safe. The resource is therefore in surplus and in crisis at the same time in different places, which is why a national rule would be wrong and why the subject is with the States.

Worked example

A village in a hard rock district of Maharashtra had forty open wells in 1975 and has three hundred bore wells today. The open wells are dry by January.

Step one, what has happened physically? The bore wells reach the fractured zone below the weathered mantle that fed the open wells. Draft has risen far above recharge, the water table has fallen below the bottom of the open wells, and the cones of depression overlap.

Step two, has anybody done anything unlawful? At common law, no. Each owner has drawn percolating water from under his own land, which illustration (g) to section 7 of the Easements Act permits.

Step three, is there a statute? In Maharashtra, yes. If the watershed is notified as over-exploited under the Maharashtra Groundwater (Development and Management) Act, 2009, sinking a well needs permission, and a public drinking water source is protected within a prescribed distance.

Step four, is there a constitutional argument? Yes. Attakoya Thangal v. Union of India, a decision of the Kerala High Court of 1990, held that the right to sweet water is an attribute of the right to life under article 21 and that over-exploitation must be contained. Facts. The Lakshadweep administration proposed to pump ground water from the coral islands to augment supply; the petitioners said the fresh water lens was only 0.6 to 0.75 metres deep and that pumping would let sea water in. Held. The administration cannot function so as to make inroads into article 21; the right to sweet water and the right to free air are attributes of the right to life; a methodology must be evolved for extraction and over-exploitation contained; the matter was referred to the Ministries with a direction to issue appropriate directions and, if necessary, to make statutory regulations and set up a monitoring agency. Why it matters here. It treats an aquifer as something the State itself may not simply pump.

Step five, and the deeper answer. The physical unit is the aquifer and the legal unit is the plot. Until the two are made to correspond, by notifying an area and regulating within it, nothing else works.

Distinctions

What it does NOT mean

It does not mean ground water is separate from surface water. They are one resource: a river in the dry season is largely the aquifer draining into it, and pumping near a river reduces its flow. The Supreme Court acted on that unity in the 2018 Cauvery decree when it accounted for the ground water of the Tamil Nadu delta.

It does not mean an aquifer refills like a tank. Recharge is slow, and in a confined aquifer it may be geological.

And it does not mean the problem is the number of wells. It is the total draft. Ten efficient wells can take more than a hundred inefficient ones.

Quick revision

Aquifer: saturated permeable formation yielding water in usable quantity. Alluvial in the plains and deltas; hard rock in peninsular India.

Recharge, draft, and the stage of extraction as draft over annual extractable recharge; safe, semi-critical, critical, over-exploited.

Cone of depression: why one well affects another. Saline ingress: why a coastal over-draft is irreversible.

Four legal difficulties: invisibility; a common pool resource; the mismatch between the plot and the aquifer; and subsidised power.

Attakoya Thangal v. Union of India, Kerala High Court, 1990: the right to sweet water is an attribute of the right to life; over-exploitation must be contained.

Test yourself

1. What is the stage of ground water extraction, and what are the four categories? Draft expressed as a percentage of the annual extractable recharge. The categories are safe, semi-critical, critical and over-exploited.

2. Why does a bore well dry a neighbour's open well? Because pumping creates a cone of depression around the well; where the cones of many wells overlap the water table falls below the bottom of the shallower wells.

3. Why is the mismatch between the plot and the aquifer a legal problem? Because the aquifer is one physical resource that lies under many separately owned plots, while the law gave each surface owner a right to take from it, so no individual owner has any reason to restrain.

4. What did the Kerala High Court hold in Attakoya Thangal? That the administrative agency cannot function so as to make inroads into article 21, that the right to sweet water and the right to free air are attributes of the right to life, and that a methodology must be evolved for the extraction of ground water so that over-exploitation is contained.