Oversight of past legacy: Reflections on Nepal’s draft Water Resources Bill 2024

By Ms Sumitra KC and Dr Nisha Onta

With the move from a unitary system to federal governance, Nepal is embarking on sectoral lawmaking processes. The Water Resources Bill 2024 is a pivotal piece of legislation, aimed at strengthening and improving the utilization, management, and conservation of water resources in the federal context. The bill will supersede the existing Water Resources Act 1992 and is now under clause-wise discussion in the Parliamentarian Infrastructure Development Committee.

However, in its current form the bill has sparked debate on a number of issues. Most importantly, it is yet to recognize the rights and roles of local communities, or to embrace their invaluable contributions to the management of water in Nepal since time immemorial.

Transparent approach in lawmaking

In Nepal, each tier of government has the authority to make laws. The federal government is responsible for enacting federal laws, including those governing the concurrent powersshared across all three levels of government. Typically, bills are drafted by the relevant ministry, after which they are shared in stages with sectoral ministries, the Council of Ministers, and both houses of parliament. However, not all legislative processes are participatory or involve extensive multistakeholder engagement or consultation.

To make the Water Resources Bill 2024 context specific and ensure the concerns and knowledge of a wide range of water stakeholders and experts are addressed, the Infrastructure Development Committee requested IWMI to convene multistakeholder consultations. This demonstrates a commendable willingness by lawmakers to incorporate expert and stakeholder opinions into the legislative process, and is a positive step forward in evidence-based policymaking by lawmakers.

To support this transparent and participatory lawmaking process, the International Water Management Institute (IWMI) Nepal, along with the Farmer Managed Irrigation Systems Promotion Trust (FMIST), National Federation of Irrigation Water User's Association, Nepal (NFIWUAN), and Governance Laborganized two consultation workshops in August 2024. On the first day, experts from the irrigation, drinking water, and natural resources management sectors, representing the government, civil society, private sector, research and academia, and national and international non-governmental organizations, including former secretaries and social and biophysical scientist, convened together and had detailed discussion on every chapter of the bill. What made this approach unique was the collaborative and inclusive nature of the consultations. This interdisciplinary approach allowed for a comprehensive understanding of the bill's potential impacts, highlighting issues that would be overlooked in a siloed process. At the second workshop, inputs from the first day were presented to the members of parliament representing the Infrastructure Development Committee, chaired by the President of the Committee Honorable Dipak Bahadur Singh. Here, experts provided further insights on the bill.

Essence of the Constitution and coherence with other laws

One of the major concerns that experts and stakeholders raised about the bill was its disregard for already existing provisions in the 2015 Constitution of Nepal. The bill did not reflect the local rights of communities over natural resources, the decentralization of decision-making power, or inclusion and gender equity.

Likewise, jurisdiction over irrigation areas in the bill for the three tiers of the government stands in contrast to the thresholds outlined in a project categorization guidelinepublished by the Government of Nepal in 2023. Such lack of clarity and discrepancy can cause confusion and invite conflict during implementation.

Dr Bharat Kumar Pokharel, Chairperson of GREAT International, demanded that the bill should consider the individual rights of federal, provincial, and local governments in its Annexes 5, 6, and 8, and concurrent rights in Annexes 7 and 9. He further voiced discontent over the bill's lack of clear provisions on the roles of provincial governments.

Many experts also argue that the roles and rights of the Water and Energy Commission (WEC) are overly centralized and its functions overlap with those of local and provincial governments. For instance, in the bill's Chapter 5, which focuses on groundwater resources, Section 18 grants the WEC the responsibility of identifying recharge areas. Critics point out that this task is impractical for a central body and should instead fall under the jurisdiction of local governments, which are better positioned to handle such ground-level tasks. Expecting the WEC to identify recharge areas nationwide is seen as both inefficient and unrealistic. These critiques reflect the need for clarity in the distribution of governance roles.

The forgotten guardians of water resources

For centuries, local communitiesin Nepal have managed water resources for drinking, irrigation, livelihoods, and cultural/religious purposes which are governed by their deeply rooted traditional practices and Indigenous knowledge.According to the Irrigation Master Plan 2019 (updated 2024), out of 2.5 million ha of potentially irrigable land, currently only 1.5 million ha have access to irrigation infrastructure. Nepal has a long history of farmer-managed irrigation systems which are still in practice. More than 50 percent of irrigable lands are still farmer managed in Nepal.

According to Nobel Prize laureate Elinor Ostrum, farmer-managed systems in Nepal outperform externally managed irrigation systems. There is also clear evidence that community forest management in Nepal has been highly successful at conserving and managing forests, and keeping local communities out of management runs counter to sustainability goals. Other sectoral laws such as the Forest Act 2019 and Drinking Water and Sanitation Act 2022 acknowledge the roles and rights of local communities and user groups. The absence of similar provisions in the Water Resources Bill 2024 is a major oversight, especially considering Nepal's history of successful community-led and -managed initiatives.

In the bill's current form, the rights and roles of these local groups are at stake, contrary to the recognition provided to them by the Constitution's Article 51(g)(1) and the existing Water Resources Act 1992. This raises two major questions: Who will replace local groups in performing their current roles? And how?

Shambhu Dulal of the National Federation of Irrigation Water Users' Association emphasized that the government will not be able to reach all irrigable land, and hence needs to be mindful of the present role of communities in managing as many as 18,000 irrigation systems. Dulal demanded explicit mention of water users' associations, their formation, and their roles in the bill.

Dwarika Dhungel, an independent researcher and former government secretary, pointed to this lack of any mention of water users' associations as an example of the bill's limited scope compared with the Water Resources Act 1992.

Nexus unrecognized

Experts are also concerned about how this umbrella act will align with other sectoral legal frameworks, such as the Electricity Bill 2024, Drinking Water and Sanitation Act 2022, and Environment Protection Act 2019. Any disconnect poses significant challenges, as water governance and management intersect with energy, food, and ecosystems, demanding a more integrated approach to water resources management.

This not only risks inefficiency in resource management but also weakens Nepal's capacity to build long-term resilience in the face of climate change. The water-energy-food-ecosystems nexus approach, which emphasizes the interdependence and connectedness of these systems, is crucial for cross-sectoral coordination and collaboration.

The bill also needs clarity in key definitions such as environmental flow, over-exploitation of rivers, groundwater, and water quality. Vague language around these terms could lead to regulatory confusion and enforcement challenges. For instance, environmental flow is essential for upstream-downstream equity, and also for protecting the rights of aquatic biodiversity and river ecosystems, but it is not explicitly mentioned in the bill.

Severity of climate change effects

In this day and age where every year brings record-breaking heat and water extremes - too much or too little water - the bill takes an important, yet limited step in addressing climate change and water security. Unlike the Drinking Water and Sanitation Act 2022, which does not even mention the term "climate change", this new bill at least acknowledges it - but it looks more like an add-on rather than a fundamental guiding issue. The bill does highlight the need to protect glacial lakes and rivers from climate risk - critical areas, no doubt. However, it also must prioritize what's already under threat from climate change: shallow wells and hand pumps in Tarai, springs in the mid-hills, rivulets, lakes, ponds, wetlands, and other water sources that communities depend on daily.

Many stakeholders also voiced concerns about the increasing risk of both international and sub-national transboundary water conflicts, which are expected to intensify under the impacts of climate change, and which the bill fails to address.

Mr Rajen Subedi from Oxfam emphasized that the bill should explicitly address the means for resolving transboundary water conflicts.

Key recommendations

Overall, the drafting of the Water Resources Bill 2024 seems to be affected by a form of institutional amnesia where the Constitution of Nepal 2015, Coordination and Inter-relation Act 2020, Water Resources Act 1992, National Code of Nepal 1963 (The Muluki Ain), National Water Resources Policy 2020, other sectoral laws, the Sustainable Development Goals, and other international commitments - many of which already identify and address issues discussed above - are not adequately considered.

The Water Resources Bill 2024 presents an opportunity to modernize water management in Nepal in the federal context, and it must serve the best interests of all concerned stakeholders. Therefore, a comprehensive amendment of this bill is essential to address the existing challenges, maximize the benefits of multipurpose use, and mitigate inconsistencies in sectoral planning.

The bill should ensure rights and roles for local communities. It should establish mechanisms for inter- and intra-government cooperation and collaboration. And it should make clear provisions for managing possible future water conflicts and water security, both at the national and subnational levels.

Ms Sumitra KC is a National Researcher - Policy and Water Governance at IWMI Nepal; Dr Nisha Onta is the Founder and Executive Director of Governance Lab, Nepal.

This work was carried out under the CGIAR Initiative on NEXUS Gains, which is grateful for the support of CGIAR Trust Fund contributors: www.cgiar.org/funders

Header image: Farmer irrigating fields in Kavrepalanchok, Nepal. Photo by Tom van Cakenberghe / IWMI.

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