Main features of Bangladesh Water Act
Bangladesh Water Act 2013 (BWA) is a framework Law to integrate and coordinate the water resources management in the country. The Water Act will establish a new, integrated approach to the protection, improvement and sustainable use of countries rivers, lakes, estuaries, coastal waters and groundwater. The BWA has been passed in the parliament on August. 2013 and received President's assent on 2 Day of May 2013. The BWA entails a coordinated and comprehensive water regime in respect of development, management, extraction, distribution, use, and protection and preservation of water resources in the country. The need for a comprehensive legal framework to face the growing challenges regarding water rights, protection of water resources, water use, water services and management is widely acknowledged.Executive Committee of the National Water Resources Council (NWRC) is the principal water regulator as per Water Act. Water Resources Planning Organization (WARPO) is the secretariat to the ECNWRC. The Bangladesh Water Act will ensure:
- best use of Water Resources
- integration of the acts of different organizations
- legitimize water rights of poor and disadvantaged
- control of uncontrolled/unaccounted abstraction, diversion, pollution
- an optimal, efficient way of using scarce water resources.
Key measures of the Water Act
- Right to water
- Adoption of National Water Policy and National Water Resources Plan
- Clearance Certificates
- Water Stressed Areas and Safe Yield
- Restricting abstraction, Protection Orders and Compliance Order
- Right to information and false information
- Water resource protection / pollution control and water quality standards.
Rights to Water
The Bangladesh Water Law has established the right to access water. Access to drinking water and water for domestic usage being considered as basic rights.S3(2) of BWA states the “...right to potable water, use of water for hygiene and sanitation will be considered shall be treated as a universal right."
Article S2(3) says that "..... the land owner will contain the right to use of surface water on private property and the owner will use this under the provision of this Act. Although there is no mention of issuance of licenses or permits in the Act, it is implicit that there will be requirement for the issuance of permits/licenses for large scale water withdrawal by individuals and organizations beyond domestic use (permit for small scale groundwater abstraction may not be feasible option).
Adoption of National Water Policy and National Water Resources Plan
(S4,5,6,7) National Water Resources Council (NWRC), the apex body to provide policy guidance to the implementation of water resources National Water Policy, National Water Resource Plan and the Bangladesh Water Act.The committee is comprised of 34 members (including 12 Ministers, 13 Secretaries among others) to be chaired by Prime Minister. Secretary, Ministry of Water Resources will act as Member-secretary
(S8(3)) The Water Act allows the Government to update Water Policy after public hearing from time to time and fix water price, until that the water pricing policy will be consistent to the Act.(S8). The water price will be based on the following:
(a) Purpose and sector of water use;
(b) Ability of water users (poor and disadvantaged will be taken care);
(c) Actual cost of water delivery (extraction and distribution);
(d) Financial capability irrespective of service receivers and their classes;
(e) Demand and supply of water (scarcity);
(f) Any other issues as considered by the Government;
(S 9,10,11,12) Executive Committee to NWRC will issue order to any person or authority to ensure compliance of the rules of the following sections of the Act to be implemented by authorized person or authority.
Without prior permission issued by the Executive Committee, no individuals or organizations will be allowed to extract, distribute, use, develop, protect, and conserve water resources, nor they will be allowed to build any structure that impede the natural flow of rivers and creeks.
S16 Prior to beginning of any project all organizations or local government institution ...... will have to submit application to the Executive Committee for clearance following the provisions of the Act to check whether the project is consistence with the National Water Resource Plan;
Water Stressed Area and Safe yield
S17 Any area may be declared as stressed area when there is scarcity of water, the abstraction may be restricted to protect the resources for sustainability. Any over abstraction, overuse, contamination would be controlled through protection, compliance order. water quality would be maintained to certain standards set.
S18 In the declared water stressed area priority usages would be in the order being drinking water > domestic usage > irrigation > fish culture > bio-diversity > wildlife > in-stream flow > industry >salinity control > power generation > recreation.
S19 Any groundwater abstraction would be guided by the defined safe yield for certain area and one can abstract the groundwater resources using shallow and deep tube well within the limit of safe yield.
Restricting abstraction, Protection Orders and Compliance Orders
(S20) Any individual or organization cannot stop or change or attempt to change the direction of the flow of water by constructing structure or developing land or extracting sand or mud in any water bodies, without the permission of competent authority.
(S21) No one would be allowed to live on the embankment, plant trees and use the embankment for road without permission from appropriate authority.
(S22) ECNWRC would issue order to protect any water bodies (pond, lake) used for safe drinking water supply, more urgently in the disaster stricken area. Haor, baor or any other water bodies to be protected to ensure safe place, movement and sanctuary for birds.
(S24) No one can preserve the natural or artificial flowing water without the permission of the competent authority.
(S25) The Executive Committee, for the interest of people would can declare any water bodies as flood control zone to ease the flow of flood water and issue its protection order;
Right to information and false information
To execute power under this Act and for the purpose of doing activities, Water Resource Planning Organization or its designated officials can seek cooperation from the Government and private organizations, autonomous bodies or the officers and employees of those organizations and above officers and employees, authority or organization will provide such cooperation;
If anybody deliberately give wrong information or suppress information knowing the fact or give distorted information or hide the information, she/he will get maximum 01 years imprisonment or maximum Taka 3,000 as financial punishment or both the punishments.
Water resource protection / pollution control and water quality standards.
S26 water quality protection would be done in accordance to the Environmental Protection Act 1995.
S29 provides provisions for punishment and financial penalty for non-compliance with the Act, including negligence to abide by government policy, ordinance, non-cooperation with government officials, refusal to present necessary documents, providing false information, affiliation with perpetrators, and protection measures for water resources management.
Compilation of review of challenges of BWA enforcement
The Bangladesh Water Act 2013 is the latest and most important water legislation in Bangladesh for water governance. The Bangladesh Water Act 2013 is broadly a strong legislation for the implementation of the National Water Policy.
It absorbs content from previous water regulations. However there are a number of laws/policies that overlap or connect the Bangladesh Water Act, e.g. the Disaster Management Act 2012, the Coastal Development Strategy 2006, the Coastal Zone Policy 2005, and the Bangladesh Forest Act 1997 etc which needs harmonization in detailing the Act for implementation.
There are some aspects, such as water pollution and drinking water provision that appears to have some conflicts with National Policy on Arsenic Mitigation and National Policy for Safe Water Supply and Sanitation (1998) that need to be resolved while formulations of rules under the Act.
As identified in the Water Act 2013 there are several provisions of enforcement issues (such as compliance order, protection order, removal order, imprisonment, compensation etc.), to be implemented through WARPO under the Ministry of Water Resources, secretariat to ECNWRC. Executive Committee of the NWRC is the principal water regulator as per Water Act. The Ministry of Environment & Forests has acted as the principal water monitor with authority to take legal measures against various water polluters, particularly industries. According to BWA, there are several provisions of enforcement such as compliance order, protection order, removal order, imprisonment, compensation etc. however there is a lack of information on how these can be enforced. In order to enforce compliance, protection and removal order support from Ministry of Home Affairs (MoHA) would be required. A clear specification is required on the institutional set up of WARPO and the power for enabling the enforcement of water act along with other institutions.
One stop service of EIA clearance with WARPO clearance
As per Environment Conservation Act (ECA) 1995 and the Environment Conservation Rules (ECR) 1997, the DoE shall give clearance to Environmental Impact Assessment (EIA) to any project while Water Act 2013 states that appropriate authority (WARPO) should give clearance to any kind of water related project a regard compliance to the National Water Resources Plan (NWRP). It is desirable that the two approach should be a one stop service through some collaboration/mechanism to be detailed out with DoE.
Collaboration and coordination
Collaboration between institutions is the most important aspect of water governance in Bangladesh, and urgent attention is needed to ensure that it is strengthened as much as possible for the implementation of the 2013 Water Act.
There are five other principal government water users namely, the Ministries of Agriculture (MoA), Local Government, Rural Development & Cooperatives (MoLGRD&C), Ministry of Industries (MoI), Ministry of Textiles & Jute (MoT&J) and Disaster Management & Relief (MoDM&R) along with Ministry of Water Resources. A clear coordination capacity must be there at WARPO to involve the agencies under these Ministry for making the Act effective in different sectors.
To ensure developing effective regulations, WARPO as secretariat to ECNWRC will need to seek necessary data and information from Water Supply and Sewerage Authority (WASA), Department of Public Health Engineering (DPHE), Bangladesh Water Development Board (BWDB), Ministry of Industries, Ministry of Textile and Jute etc. WARPO can be strengthened to ensure that they are able to facilitate the necessary collaboration for data and information exchange between different departments for effective implementation of the Act.
Positioning of WARPO
The Bangladesh Water Act 2013 states that ECNWRC will implement the act and monitor all the activities related to the water sector all over the Bangladesh and WARPO as secretariat apparently will have to take much of the responsibility on behalf of ECNWRC for regulation.
However WARPO already has many challenges to perform its mandated duties with its limited resources at only Dhaka office. There is high uncertainty around their mandate to implement the Water Act even though they are believed as the implementing agency. WARPO as a macro planning organization for Water sector prepares/update periodically the NWRP, monitoring the implementation of the Plan; up keeping the water resources assessment; responsible for coordinating with different agencies all over Bangladesh with special emphasis to coastal zone for implementation of the Plan; perform as 'clearing house' for all projects; also perform as warehouse of all data required for planning and research.
It is therefore particularly very important to clarify its position with all these existing responsibilities and further to what extent it needs to share its mandate to implement the act. It is understood that there is a need for sufficient capacity and institutional memory to perform the relevant technical and monitoring functions as a planning, monitoring and regulatory body together. The relationship between WARPO and other institutions is challenging and WARPO need to be placed in a neutral platform in order to operate aling with different agencies under different Ministries and presently it does not wield a great deal of institutional power for that operations. Under the Ministry of Water resources WARPO cannot perform neutrally and trustworthy for 'clearing house', monitoring and coordinating other activities. The position of head of WARPO has been placed at second in the hierarchy of government ranking, which puts WARPO in difficult position as implementer of Water Act. If WARPO is to be the key implementer of the water act, its relative status to other institutions will need to be improved as well.
The mandate of WARPO as planning and regulatory function fits very closely with those of Planning commission. It is understood that the Planning Commission approves the projects that WARPO would 'clear', unlike WARPO, Planning commission reviews the implementation and works to motivate the ministries, agencies of the government and experts to formulate policies. WARPO can act effectively and neutrally with its mandates e.g 'clearing house', monitoring the implementation of plan, policy and strategy formulation and also water act implementation.
Interaction between institutions are one of the biggest challenges for implementing good water governance. The Executive committee of NWRC as the executive platform need to incorporate the representation of all the stakeholder in the crucial issues like industrial pollution and land grabbing. It is a high level forum can only regularly sit after every 6 months (all though generally sit irregularly). During the last 20 years only 10 meeting were held i.e. 2 years per meeting. WARPO need to strengthen significantly for frequent consultation about the issue and challenges from different sector and put forward them to the ECNWRC on periodic basis resolution for the implementation.
MoI and MoT&J, need to be fully included in water Act implementation. The major source of river and water bodies pollution is through industrial development. There is no representation of MoI in the NWRC and ECNWRC.
MoL need to be coordinated well to enforce the encroachment of water bodies.The land covering water bodies and rivers belong to Ministry of land. There are complications in enforcement of the Laws of water Act when laws for land is considered. The flood flow areas and water bodies that need to be protected for safe disposal of floods and retention of excess rainfall runoff need to be identified across the country through agreed method to be prepared by WARPO following guidance from Water Act. The relevant laws need to be revised that are causing complication in the protection of the water bodies.
Individual institutions such as MoE have specific capacity needs such as increased knowledge of non-point source pollution for Environmental Impact Assessments: Presently DoE does not have the capacity or knowledge on water resources impact and assessment which can be shared through good collaboration with WARPO holding NWRD. NWRD need to be updated/elaborated for the assessment of individual projects.
Thereare substantial challenges around monitoring on the ground and major opportunities for improved monitoring of groundwater extraction and ETP functionality: Presently monitoring of groundwater abstraction need to be improved; not all abstractions are monitored by DWASA in Dhaka. Decentralized monitoring approaches and, if possible, increased staff resources. Delegation of monitoring to local public representatives to improve implementation may be an option. WARPO need to delineate the "stressed area" as per water act and issue restriction orders and monitor the compliance through involving the local institutions, i.e. union parishad and upazila parishad.
Agricultural water impacts are in need of stronger regulation and awareness raising: Industrial bodies should be incorporated into water governance mechanisms and government support options explored for ETP and CETP investment. Industrial sector is not aware of significant impacts from their operations
Bangladesh Water Act is a framework Act and need harmonization of existing water and water-related legislation as well as legislation establishing various agencies involved in water related matters. The section review the existing legislation to identify possible overlapping, doubling, and conflicts with the new Act and possible actions to deal with these if necessary.
Harmonizing with other acts and policies (To be updated regularly)
Harmonizing would be a way that achieves the best possible balance between the protection and improvement of the water environment and the interests of those who depend upon it for their prosperity and quality of life.
The Acts and Policies that are likely to be affected:
- WASA Act 1996
- City Corporations Act 2009
- Municipalities Act 2009
- Union Parishad Act 2009
- Environmental Conservation Act 1995
- DRAFT Bangladesh Water Supply and Sanitation Regulatory Commission Bill, 2014
- National Water Policy (1999) (NWPo)
- National Policy for Safe Water Supply and Sanitation (1998)(NPSWSS)
- National Policy on Arsenic Mitigation (2004)
Institutional Reform of WARPO and decentralization of regulatory authority