RIPARIAN WATER RIGHTS
Riparian water rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. It is used in the United Kingdom and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed. Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon “reasonable use” as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners. In the western United States, water rights are generally allocated under the principle of prior appropriation, which is derived from Spanish law and treats water as a resource unrelated to land.
NON-MAINTENANCE OF KOSHI DAM
‘Non-maintenance by India led to Koshi havoc’: A high-level government team that inspected areas devastated by the flooded Koshi River has held India responsible for the havoc. The devastation took place as the Indian side did not carry out repair and maintenance work on the Koshi barrage and the embankment along the river, thereby violating the Nepal-India Koshi agreement, said top officials. India is entirely responsible for repair and maintenance work and operation of the barrage, as per the bilateral agreement signed in 1954. “Every year in the past the Indian side used to do at least some maintenance work. But this year they did not carry out the repairs,” Khom Raj Dahal, Deputy Director General of the Department of Water Induced Disaster Prevention (DWIDP), told the Post. “This was the main reason why the Koshi breached the embankment and submerged about 10,000 hectares of cultivated land and villages.” The Indian side used to contact the Regional Directorate of the Department of Irrigation (DoI) in Biratnagar. The DoI plays a facilitating role as and when requested by the Indian teams. “But, this year they did not contact the DoI regional office” Dahal said.
POURING FOREIGN AID
After the government’s call for support to the floods victims of Sunsari, relief aid continues to pour in from national and international communities. The European Commission announced a total of 1 million Euros (Rs 103 million) as the humanitarian aid for victims of Koshi floods Friday. Food aid and nutritional support will be provided to the victims through the fund, which will be channeled through the European Commission Humanitarian Aid department, ECHO, under the responsibility of Commissioner Louis Michel. This assistance will target up to 50,000 people displaced by the floods, who will receive emergency food aid and the most vulnerable will benefit from nutritional support through the World Food Programme, a statement by EU said. Similarly, the secretaries and staffs of the ministry of peace and reconstruction also announced to lend financial support. The secretaries will give their three-day salary while other staffs will spare their one day’s earning. The staffs of the home ministry contributed over Rs 100,000 and Nepal Telecom contributed Rs 3 million to the prime minister’s trust for natural calamities.
THE WATER TREATIES AND NEPAL’S POSITION
Nepal‘s freshwater resources flowing down from the Himalayan heights have attracted the attention of various powerful quarters. While the upper co-riparian country, China, has not posed any major problem for Nepal’s water resources, the signing of the first water sharing treaty with India, the Kosi Agreement, 1954, based on unequal provisions, set the tone for gradual colonisation of Nepali waters by India. The second Gandak Agreement, signed in 1959, was also based on unequal benefit-sharing provisions. The net benefits to Nepal from these treaty-based huge barrages are predictable: enormous floods during monsoon and dry spells during winter. The benefit of electricity is virtually non-existent. These two agreements form the basis of the so called ‘anti-Indian’ sentiments among a large section of the people of Nepal, using which all the Communist parties have built their political base. These agreements were signed when the Nepali Congress (NC) was in power or sharing power with the monarchy. Since then, NC has never recovered from the image of being a ‘pro-Indian agent’ selling Nepal’s precious rivers and waters in order to remain in power in Kathmandu. Indeed, a bigger sell-out was the signing of the Mahakali Integrated Development River Treaty in 1996, the cancellation of which was one of main highlights of the 40-point demand by the Maoists before launching the People’s War in 1996. The CPN (UML), then considered a revolutionary party, lost its political base after approving the Mahakali Treaty. It was humbled in the recent elections. UML general secretary, Madhav Nepal, paid a heavy price by losing from two constituencies. Nepal claimed that the Mahakali Treaty stood as a benchmark in Nepal-India relations. But he did not mention why the treaty provisions have not been implemented even after 12 years. If it all had gone well, the Pancheshwar Dam should have been built four years ago and Nepal should have been receiving billions in benefits and royalty as claimed by another defeated UML heavyweight KP Oli. Many in Nepal believe that the controversial Tanakpur and Mahakali treaties are the main factors behind the murders of the then UML leaders Madan Bhandari and Jivaraj Ashrit, who were opposed to these unjust arrangements. Nepal’s three major beautiful rivers are already gone. India has already gained consumptive rights of water use. The only major river basin still left was about to be taken by the now dead Enron – the Karnali River – with the mega Karnali-Chisapani dam proposed over it. Indian and Russian competitions are underway to grab the license for its construction. The Saptakoshi High Dam and other proposals are underway. Indian companies have won the license for lucrative dam projects in Nepal – Arun III and Upper Karnali. Australian multinational Snowy Mountain Engineering Corporation (SMEC) has won the licence for the West Seti project, from which India will get free water through Karnali and 90 per cent cheap electricity. However, Nepal will continue to live in darkness. Now, all eyes are set upon the Maoists. The challenges before the Maoist-led government are inevitable: these unequal treaties should be reviewed/nullified and new arrangements should be made on the basis of principles of international water laws and practices. The licensing of Arun III, Upper Karnali and West Seti projects could be withdrawn leading to open and competitive biddings. Before that, Nepal’s primary right to use electric power domestically and the guarantee of lower-riparian benefits should be ensured. As for the unilateral embankments constructed in the Tarai, will they be broken or re-evaluated? If the Maoist leaders fail to bring any fundamental shift in Nepal-India water relations, which includes reviewing the controversial 1950 treaty of peace and friendship, they will be considered as no different from other parties. Undoubtedly, we need India and its support – but at what cost to the Nepali people?
Further, India has been guilty of reneging on the agreement in other ways as well. For instance, according to the terms of the agreement, India is responsible for the maintenance, cleaning and siphoning of the barrage. However, in the last 20 years India has not performed this duty seriously and sincerely. Nepali people have been victimised by this severe negligence. Nepal and India signed the Mahakali Treaty in 1996, but despite ratification by the Nepalese parliament, the Treaty has remained stalled. Despite these treaties, serious differences over water sharing, water management and hydropower projects continue to spoil relations between India, on the one hand, and Pakistan, Bangladesh and Nepal, on the other. Differences between India and Pakistan continue to create ill will between the two on around 11 large hydroelectric projects India plans to construct, including the Baglihar Project, over which Pakistan has sought the appointment of a neutral expert by the World Bank after the failure of talks. More than the dispute over Jammu and Kashmir, the issue of the waters of Jhelum and Chenab has the potential to once again provoke people in Pakistan against India and push the two countries to war. Dr Mubashar Hassan has given a sound proposal to resolve the dispute over Baglihar. He has proposed to install telemeters on the Baglihar to monitor daily release of water in order to ensure due supply of water from the Baglihar Dam to Pakistan. Bangladesh, which shares 54 rivers with India as a lower riparian, has serious differences with New Delhi that hinder agreement on eight rivers, besides the continuing complaints by Dhaka over sharing of the waters of the Ganges. The Indian plan, which is now under review, to build a big river-linking-project that includes diversion of water from Ganges and Brahmaputra, has become yet another source of antagonism between the two countries, which have not been able to sort out their differences over a whole range of issues that continue to fuel political tension which, in turn, does not allow the resolution of differences over water. As an upper riparian, Nepal has a different relationship with India and faces many problems in constructing its dams due to opposition by the lower riparian and has serious doubts about the projects proposed by India. Nepal’s mistrust, beside other factors, has been reinforced by what it perceives to be various unequal treaties — starting from the construction of the Sharada Dam (1927), the 1950 Treaty and the Letters of Exchange of 1950 and 1965, thee Koshi Agreement (1954), the Gandak Agreement (1959), the Tanakpur Agreement (1991) and the Mahakali Treaty (1996).
The proposed dams in Nepal are in news again and the discussions over the issue is stale. Jagadanand, then Water Resource Minister of Bihar, asserted in Bihar Vidhan Sabha (22nd July 2002), ‘…Sir, the last point, no discharge control-no flood control. Unless the discharge is controlled, the scientists all over the world are convinced that the floods cannot be controlled…Embankments do not control the discharge, they can, at best, prevent water from spreading. Weak embankments cannot hold uncontrolled discharge and the flood will continue to bother us as a natural calamity. If we want to control floods in this state, we will have to control discharge in the upper riparian states and the neighboring countries. We have had negotiations with them and have unanimously agreed that to proceed jointly.’ In reply to a call attention motion of Ram Vilas Paswan regarding floods in Bihar, Arjun Charan Sethi, Minister of Water Resources at the Center told the Lok Sabha, on the 22nd August 2003, ‘…So far as Bihar is concerned, we are having constant interaction with the Government of Nepal because we all know these rivers originate from Nepal. Unless we have any kind of agreement with Nepal, this problem cannot be solved. The proposal for setting up of the Joint Project Office in Nepal for taking up field investigations and preparation of Detailed Project Report has since been approved. 100 officials from Nepal, and 42 officials from India are to carry out field investigations and studies. The project will inter alia have 269 meters high dam with an installed capacity of 3,300 MW and irrigation benefits accruing both to India and Nepal. In addition to Kosi Multipurpose Project, it will include Sun Kosi Diversion scheme as well.’ Similar statement was made by Priya Ranjan Das Munshi, Central Minister of Water Resources, made a statement in Kishanganj on the 5th June in 2004. Jay Prakash Narayan Yadav, State Minister of Water Resources at the Center on the 24th June 2004, while talking to the press in New Delhi said that a sum of Rs. 29 Crores has been sanctioned for the construction of the Kosi High Dam (He must have meant that it was for the preparation of the DPR). As far as Barahkshetra Dam is concerned, the politicians in India are sticking to the same statement that dialogue with Nepal is on and on this is since 1947. Jay Prakash Narayan Yadav reiterated his statement again in 2005. The joint team is working in Nepal for the preparation of the DPR but its personnel are tight lipped over what they are going to propose and when. The ghost of the Barahkshetra Dam haunts the planners, engineers and the politicians ever since the embanking plans of the Kosi was rejected in favor of a large dam by the Central Government in 1946 and the statements like the one given by Jagadanand, Arjun Charan Sethi, Das Munshi or Jay Prakash Narayan Yadav are a matter of routine in the flood season. The annual report of Water Resources Department of Bihar (2006-07) has already completed the formality of suggesting that the solution to the flood problems of Bihar lies in building dams in Nepal and wants the Center to expedite the negotiations. These negotiations are, however, going on for the past 60 years. The factual position about these dams is that they are no way linked to flood control and the flood victims of North Bihar have been systematically fooled over years and they will suffer indefinitely at the hands of the politicians, engineers and the vested interests that are dangling carrots of these dams for decades. Here is the reason, why. There are three dams that often come as proposal to solve north Bihar problems. These are the Chisapani on the Kamla, the Nunthore dam on the Bagmati and the Barahkshetra on the Kosi. The Report of the Second Irrigation Commission of Bihar (1994) spells very clearly that there is no flood cushion provided in the proposed Chisapani Reservoir on the Kamla. (Vol. V, Part -1, p-511). A Report of the Expert Committee to study impact of interlinking of river on Bihar (April 2005, Chapter III, p-16) says, ‘…But the proposed Sapta Kosi Dam too has not been provided with any flood cushion which should be provided for flood moderation…’ Regarding the proposed Nunthore Dam on the Bagmati, the Second Bihar Irrigation Commission Report says, ‘…it appears clearly that even after the construction of dam at Nunthore, there would be no appreciable flood moderation in the middle and lower reaches of the Bagmati and obviously further supplementary floods managements measures would be needed’ (Vol. V Part-1, p-414). A recent report of WRD of GoB (May 2006) observes that ‘…but none of these schemes could come up as yet, and in near future also there is little hope of execution of these schemes (Chapter-V, p-1).’ Thus, there is neither any flood cushion provided in the design of the proposed dams nor is there any likelihood of the dams being built in near future.