The proposed Water Resources Bill 2083 covers everything from the division of jurisdiction between the federal, provincial and local governments in the fields of irrigation and electricity to the use of water resources and the protection of dams. The Water Resources Act, 2049, with its amendments, is being implemented, and the bill has been proposed to include the Water and Energy Commission, which was formed by the formation order, through the act. 

The proposed bill also provides for details of the use and availability of water resources (water accounting) and water resource testing. Section 14 of the proposed bill provides for details of the use and availability of water resources (water accounting). Sub-section 1 of the same section states that the Commission should keep a record of the water resources available in each river basin and their use, while Sub-section 2 states that the Commission should keep a record of surface and underground water resources, groundwater or other water resources, water resources used to maintain religious, cultural and natural environment, water resources used for drinking water, irrigation, hydropower and other various purposes. 

Section 15 of the bill provides for the criteria for water resource use and Section 16 provides for water resource use. Sub-section 1 of Section 16 states that the federal government, provincial governments and local levels can use water resources within their respective jurisdictions and grant permission for use in accordance with the prevailing law. Sub-section 2 of the same section states that consent should be obtained from the Commission before granting permission to any person, organization or body to use water resources. Prakash Chandra Dulal, Vice President of Independent Power Producers Association of Nepal (IPPAN), said that even though the constitution has created a three-tier government, the authority has been centralized by requiring consent from the commission.

Section 23 of the proposed bill contains provisions for water resource conservation. Sub-section 1 (a) of the said section states that a system should be ensured to ensure that at least 15 percent of the minimum flow of the river or the flow recommended by the environmental study report, whichever is higher, flows continuously for twelve months in the downstream part of the dam of a project built on a river or stream.

Sub-section 3 of Section 4 of 2049 mentioned that the person or organization using water resources should use it beneficially without causing harm to others. According to 6.1.1 of the Hydropower Development Policy, 2058, it is stated that arrangements will be made to release at least 10 percent of the minimum monthly average flow of the river or stream or the minimum required amount of water as seen in the environmental impact assessment study report into the river or stream. Dulal says that the government has made the private sector uncomfortable by increasing the share of the private sector from 10 percent to 15 percent. 

‘15 percent or whichever is higher recommended by the environmental study report is what is being said. This will affect the capacity of our projects, reduce production capacity,’ Dulal said, ‘It will cause problems for projects that have already been invested in. The government has brought it in such a way as to affect those who are working under the old law.’

Chapter 9 of the proposed bill mentions the classification, safety and protection of dams. Section 30 of the bill mentions the classification of dams based on the capacity, structure, design and purpose of the dam on the recommendation of the commission. Sub-section 1 of Section 31 mentions that the Government of Nepal will provide security for the dam. Sub-section 2 of the same section provides that the dam operator itself can request the Government of Nepal for the security of the dam it has constructed and operated. 

Sub-section 3 states that if the Government of Nepal makes security arrangements upon request pursuant to 2, the dam operator shall bear all the expenses incurred in making such arrangements. It also mentions that the Government of Nepal will formulate necessary standards for the security of the dam. Dulal says there is no clear provision regarding dam security.

‘It is said that the Government of Nepal will provide security for the dam, it is said that the government can be requested for that, but what will happen if it is not done is not clear,’ he said, ‘On the other hand, it is also said that if a request is made, the government will arrange security and the entire cost of it will have to be borne by the dam operator. Then why make a request! If not, can the operator itself provide security? It is a mess.’

Section 32 (1) stipulates that the dam operator is responsible for protecting the dam, and subsection 2 stipulates the responsibilities and obligations of the dam operator to protect the dam. Section 33 states that the dam operator must conduct a detailed assessment every five years through an independent expert group based on the dam classification. 

This long-awaited act, in line with the spirit of the federal structure, provides clarity on the rights, duties and responsibilities of water resources between the federal, provincial and local levels, and prioritizes the multidimensional use of water resources, sustainable development, intergenerational justice and water-related disaster mitigation, according to Energy Minister Biraj Bhakta Shrestha.

‘We are committed to making water resources the basis of the nation’s prosperity through the effective implementation of this act in the coming days,’ he wrote on social media, ‘We are firm in our belief that the vision of sustainable development can be fulfilled only through proper use, conservation and management of water resources.’

The Water and Energy Commission has been included in the proposed bill. The government had formed the Water and Energy Commission in 2032 with the objective of integrated development, management and extensive use of water and energy resources. A permanent secretariat was also established since 2038. The organizational structure and scope of work of the commission and secretariat were specified as per the government decisions of 15 Ashar 2049 and 20 Poush 2055. This has now been included in the proposed Water Resources Bill.

The proposed bill has provisions on the establishment, appointment, work, duties and powers of the Water and Energy Commission in Sections 6 to 13. Section 6 has detailed provisions on the formation of the commission to be chaired by the Minister of Energy, Section 7 has a committee for recommending officers, Section 10 has detailed provisions on the functions, duties and powers of the commission, and Section 13 has an 'executive committee' for monitoring and regulation. However, Dulal says that the proposed bill is not federalist and private sector-friendly since the commission's officers are not included in the provincial and local levels. 

Sections 5 and 6 of the 2049 Act had a provision to form a 'water consumer organization' for collective benefit and that it would be an organized organization, but the commission was not envisioned. The commission has been assigned responsibilities including preparing and updating policies and strategies related to water resources and energy and making recommendations. 

Energy Minister Shrestha said on social media that the Water Resources Bill has been proposed to make the Secretariat of the Water and Energy Commission more powerful, empowered and effective and adopt an integrated and academic approach to the overall management of water resources. 

Section 4 of the 2049 Act provides for the use of water resources. Sub-section 1 of the said Act states that no one shall be allowed to use water resources without obtaining permission as per the Act. Sub-section 2 states that to use water resources for drinking water and other domestic purposes individually or collectively, to irrigate one's land individually or collectively, to operate a water mill or water mill as a cottage industry, to use a boat for local transportation individually, and to use water resources limited to one's land as prescribed, a landowner does not need to obtain a permit.

The proposed bill stipulates the right to use water resources. It is mentioned that the right to protect and use water resources in a multidimensional way shall be vested in the Government of Nepal, the provincial government and the local level. According to the said section, the jurisdiction of the federation, province and local levels related to irrigation is stipulated in Schedule 1. 

In terms of irrigation, irrigation projects with an irrigated area of ​​more than 200 hectares in the Himalayan and hilly regions and more than 5,000 hectares in the Terai, Madhesh and inner Madhesh regions fall under the jurisdiction of the federal government. Landslide control projects with an area of ​​more than 5,000 square meters, embankment or control works with a length of more than 10 kilometers on one or both sides of the river, etc. fall under the jurisdiction of the federal government. 

Irrigation projects with an irrigated area of ​​up to 200 hectares in the Himalayan and hilly regions and up to 5,000 hectares in the Terai, Madhesh and inner Madhesh regions, deep tubewell and lift irrigation projects, irrigation projects operating in more than one municipality within the province, landslide control projects with an area of ​​1,000 to 5,000 square meters, embankment or control works with a length of up to 10 kilometers on one or both sides of the river, etc. fall under the jurisdiction of the provincial government. Irrigation projects using shallow tubewells, landslide control and management works smaller than 1,000 square meters are placed within the jurisdiction of local governments. 

In terms of electricity, power generation projects that fall on the borders of two or more provinces, power generation projects outside the jurisdiction of the provincial government and local levels, and electricity trade fall under the jurisdiction of the federal government. Projects with an installed capacity of more than 5 MW to 25 MW and power projects with an installed capacity of up to 5 MW that fall on the borders of two or more local levels fall under the jurisdiction of the provincial government. Power projects with an installed capacity of up to 5 MW fall under the jurisdiction of the local government.

Section 7 of 2049 states that the use of water resources should generally be done in order of priority. It has prioritized agricultural uses such as drinking water and domestic use, irrigation, animal husbandry and fisheries, hydropower, cottage industries, industrial, commercial and mining uses, water transportation, recreational use and other uses. 

Section 5 of the proposed bill sets out the priority order for the use of water resources. Initially, drinking water, domestic use (including animal husbandry and fisheries) and aquatic animals have been given priority. Prioritization has been made according to irrigation, hydropower, religious, cultural purposes, mineral commercial and industrial use, water transport, recreation and tourism and wildlife use.