Chapter 3: Irrigation in Nepal

3.1 Water, an increasingly important natural resource
3.2 Objectives, organization and regulations around water
3.3 Water Resources Act 1992, and Irrigation Policy 1996

Table of contents Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Appendixes

Chapter 3: Irrigation in Nepal:

When water becomes an important natural resource different interest groups will try to control it. Social relations and political power influence whether actors are able to get technical or organizational control[1]. This chapter shows the relation between social relations, political power and water control in Nepal, with a special focus on organizational control.

3.1 Water, an increasingly important natural resource

A lot of rivers and streams flow through the kingdom of Nepal. For centuries, these rivers and streams have been used for agricultural. Use of the water resources was very little compared to how these resources are used nowadays. Last 150 years the development of knowledge and technologies gave new possibilities for beneficial use of the water resources in various economic sectors.
In the irrigation sector new irrigation schemes were developed. Until 50 years ago most irrigation schemes were developed on local initiative. Local communities constructed the canals and had local regulations how to manage the system. Last 50 years government and international organizations started to construct big irrigation schemes. Under the influence of these newly developed irrigation schemes the irrigated area in Nepal increased radically.
In other economic sectors –industry, domestic[2] and electricity- the use of water increased a lot. Often, water users from various sectors used water from the same source. This multiple water use gave specific problems like water pollution and the competition for water.
With the increasing pressure on water resources and the problems around multiple water use, organization and regulation became more important. Therefore state involvement in water management increased, institutionally and with the implementation of new regulations. The remaining part of this chapter will give a historical overview, from which the increasing influence of the state in water management will become clear. The focus will be on the development of organization and regulation on distribution of water, collection of water fees and repair and maintenance of irrigation canals.

3.2 Objectives, organization and regulations around water

In this historical overview main regulations around water management are discussed through history. One cannot see the historical overview of water management disconnected from other political developments in Nepal. There is a relation between changes in the political structure, changes in water policy objectives and regulations around water. This chapter discusses the development of government institutions and objectives of policy and gives a historical overview of water regulations.

Governance in Nepal
In the last 150 years four different governance periods can be distinguished. The first period, the Rana dynasty starts in the 1846 when Jung Bahadur Kunwar (later known as Jung Bahadur Rana) declared himself to be prime minister for the rest of his life. After his declaration the position of prime minister went through the male line of the Rana family for 104 years. The Rana family used to keep influential farmer leaders happy in order to maintain its power. This meant suppression for most of the citizens of Nepal; Rana’s were unpopular with most inhabitants. During the Rana dynasty one could see Nepal as a semi-colony of the British. The British accepted the Rana dynasty as long as they had control on trade and foreign policy. Apart from this, Nepal was politically and economically independent.
The second period started in 1950, soon after the British lost their Indian colony in 1947. The new Indian government was not willing to support the Rana’s when Nepali congress tried to change the regime. The result was that in 1950 the Rana dynasty collapsed and the Shah dynasty was reinstated as the supreme authority in Nepal (Sharma 2001). In the period of 1951-1959 a democratic multi-party system existed in Nepal.
A new period started for Nepal after king Mahendra Bir Bikram Shah Dev. used the emergency powers of the constitution. The political parties were banned from politics from 1960. The new non-democratic system, known as the Panchayat system, existed in Nepal until 1990 when king Birendra dissolved the Panchayat system in exchange for a multi-party system with still, but limited, power for the king.
In the second multi-party system four main parties played a major role in politics: Nepali congress, the Nepal Communist Party (UML) and Rastriya Prajatantra Party. These parties have been responsible for the major policy changes after 1990. The recent killings in the royal palace and the Maoist movement have put the current political system under pressure, but it’s too early to tell the exact impact on the second multi-party system.

History of government organizations around water; decentralization
In Nepal different institutions have been responsible for irrigation management: the king, the Nepali state, local elites, local government and farmer organizations. These responsibilities shifted from one to another under the influence of political, social and economical changes. In this section the organization around water during the four governance periods will be discussed.
In the beginning of the Rana dynasty, in 1854, the first codified laws of Nepal were written, now known as the Muluki ain. Under the Muluki ain the king was formally the owner of the natural resources in the country. Rights of ownership often were transferred to the king’s family or other elite (Pradhan 2000). Elite, landlords or royal family had the right to sell or lease natural resources to other persons. During the Rana dynasty the regulations for selling or leasing were highly differentiated throughout Nepal. Local elites and local tenants made agreements on payments of tax, providing labor for common resources, etc.
In 1951, during the first multi-party system ownership of natural resources shifted from the king to the state of Nepal. The tax for natural resources had to be paid directly to the state of Nepal and no longer to the elite or royal family (Pradhan 2000). The institutions around water did not have a major change. The state still did not have a strong apparatus to implement new regulations. Most important regulations still came from customary and local law. For local elites it became more difficult to organize farmers for the creation of public works, because of changes in ownership.
During the Panchayat system local government institutions were strenghened. The country was divided into 14 zones, 75 districts and a lot of villages at the lower level. The district and village Panchayats became involved in the implementation of development programs. The districts and villages received financial support from the government to carry out small-scale development projects. Big development projects were still under the direct responsibility of the government. In 1974 the districts received the responsibility for financial distribution of development projects in the villages. In 1982 the district Panchayat received even a greater responsibility in the development and co-ordination of development programs in the district with the Decentralization Act. Problems rose because the district Panchayats were incapable of carrying out their tasks (Pant 2000). Until then, the decentralization programs did not affect the bigger projects, which were implemented by the different ministries or departments. Until the end of the Panchayat system, four agencies were responsible for the development of irrigation projects. They were: the Department of irrigation, Hydrology and Meteorology (DIHM), farm irrigation and Water Utilization Division (FIWUD) of the ministry of agriculture and the ministry of Panchayat and local development (MPLD).
After the introduction of the multi party system in 1990 the village Panchayat and the district Panchayat were renamed in the Village Development Committee (VDC) and the District Development Committee (DDC). However, now the members of the committees were elected from the different parties (Most important: Nepali congress, United Marxist Leninist, Marxist-Leninist and two Rastriya Prajatantra parties (Pant 2000). The DDC had its own resources, from land tax, money, the government, etc. to support its development projects. The VDC was highly dependent on the DDC for their financial resources. Lately its financial situation has improved because of annual grants it receives from the government. In 1987 the DIHM, FIWUD, ministry of agriculture and MPLD were combined into the Department of Irrigation. Currently the Department of Irrigation is divided in five Regional Irrigation Directories (RID) and has a District Irrigation Offices (DIO) in each district. The DIO is responsible for project formulation and implementation at the district level. Since a couple of years it also has received the responsibility to register the WUAs in its offices (Pant 2000).

Changing objectives in irrigation policy
Irrigation policy can be used for various objectives like personal benefit, national economic growth and a fair distribution of natural resources. In the four government periods the objectives of irrigation policy changed under the influence of political, technical, social and economical changes. This section discusses the changes of irrigation policy objectives in the Rana dynasty, the first multi-party system, the Panchayat system and the second multi-party system.
During the Rana dynasty the king often used his natural resources to maintain allies and stay in power. Local elites obtained authority to use natural resources for their personal benefit if they supported the king. Tenants were often obliged to work for the benefit of the local elites, without working for them they would not survive.
In the first multi-party system the state obtained land and water taxes. For the first time these taxes were spent on public works like irrigation schemes. With the introduction of the first multi-party system, the position for the local elites and tenants changed. Because formally registered tenants became landowners they started to use water for personal benefit. This also meant that the creation of irrigation schemes could benefit local farmers and not just the local elite.
In the first few years of the Panchayat system the main objective of newly developed irrigation schemes was to increase agricultural production in the country. After the development of local organization the government started to create five-year programs (Pant 2000). The five-year program in the period 1975-1980 had the objective to remove insecurity in agriculture. The idea was to extend the irrigated area, so that less area would be totally dependent on the monsoon. Medium and large systems (500 to 2000 ha) were built, especially in the Terai area. In the period 1980 until 1985 irrigation was used to reach an agricultural production target. For the first time farmers had to participate in the development of irrigation projects and local skills and materials had to be used. These projects were often small-scale projects in hilly areas with food supply problems. In the period 1985-1990 security and permanency of agriculture had to be ensured. Implementation of irrigation projects in hill areas was planned to contribute to self-sufficiency of food. The capacity of already existing irrigation schemes had to increase by improvements in the management of these systems.
Soon after the introduction of the second multi-party system government involvement in irrigation had to decrease, while farmers had to be more involved in the planning, implementation, regulation and maintenance of irrigation schemes. Small-scale irrigation schemes were promoted, with increased participation of the farmers. There was a policy shift from new construction to the rehabilitation of existing schemes. In the end, completed schemes had to be turned over to the farmers.
The latest policy by the ministry of water resources was formulated in 1992 (WRA) and amended in 1996. The major objectives of this irrigation policy were: In the 1997/1998-2002/2003 period the main focus in poverty alleviation. Reduction of poverty has to be at least 5% a year. The agricultural sector has to grow 4 % a year to achieve this goal. Irrigation, road development and improving agricultural technology will be major factors in making the agricultural sector grow.

Rules and regulations
In the four government periods different sets of regulations were introduced to achieve the objectives mentioned in the previous section. The creators of these laws often told that previous regulations had to be replaced by because they had not been a success. The new regulations were presented as a tool of development, after the introduction they would automatically bring the desired social and economic change. Legal anthropologist have had critique on the structuralist-functionalist assumption that state law would automatically be followed up by bureaucrats or farmers[3]. Previous state laws often were not a success because they did not fit in with local laws and customs. In newly introduced state law does not fit in local laws customs one expect the same, the results of the laws will not cause the desired social and economic change. Before reading the rules and regulations introduced by the Nepali state in the four government periods it is important to realize that these laws will intermingle with local and customary law[4], the state law will not automatically replace local and customary law.
Before the introduction of the Muluki Ain in 1854 water was not really considered an important resource. There was very little government involvement in water. Most rules and regulations came from a local level. Pre-1854 regulations were about protection of water sources, senior rights of prior appropriators and obligations to repair and maintain the canals. Local elites taxed some of the water users.
With Muluki Ain the government became involved in regulation of water sources for the first time in Nepali history. However, government involvement in irrigation still remained very limited with the introduction of Muluki Ain:
The Muluki Ain gave farmers who helped with the construction of irrigation canals the right to irrigate. Farmers had to give their land for the construction for canals or dams without any compensation. New canals could only be constructed upstream if water supply downstream would remain sufficient. Irrigation water should still be able to reach the same lands as before the new canals were constructed (Prahdan 2000, Poudel 2000).
The limited regulations on irrigation management in Muluki Ain left some space for older customary and local law. The Muluki Ain does not discuss how rights to water are established, how they are allocated and how irrigation canals had to be repaired. These regulations had to come from local and customary laws. Regulations for water management differed in every local community, but some regulations were very common[5]. Fields closer to the water source often were allowed to irrigate before fields further away, and that tenants were obliged to maintain and repair canals for the local elites are two examples of regulations which were very common.
Between 1950 and 1960 there were no big changes in government policy regarding irrigation. In 1952 a second Muluki Ain was introduced. After the introduction of this Muluki Ain farmers had to be compensated if they had to give their land for the construction of canals or dams. The Ain was very clear that farmers had to provide labor for canal repairs or they would be evicted from their lands. Thus, customary law had become official law (Pradhan 2000).
During the Panchayat system many acts regarding irrigation were introduced. The most important regulations were the Canal Act of 1961, the Muluki Ain of 1963 and the Canal, Electricity, and Related Act of 1967. With the introduction of the Canal Act of 1961 the state became the owner of all the water resources in Nepal, such as rivers, streams, ponds and lakes. By controlling the natural resources the state would make sure that the water resources would benefit the Nepali population (Pradhan 2000, Sharma 2001). After the introduction of the Muluki Ain of 1963 tenants could no longer be evicted from their land because of a change in the tenurial rights of landholders. The Act of 1967 tried to introduce legislation on multiple water use (Pradhan 2000). Individuals or groups could still construct irrigation schemes. However, when existing irrigation schemes hindered the state, the government was empowered for action. Licensing and payment of irrigation service fees were also incorporated in the act. This was the first legislation that stipulated government agencies had the authority to control irrigation facilities that received state investment.
The most important policy change after abolishment of the Panchayat system are the Water Resources Act of 1992 and Irrigation Policy 1996. Since these policies are the central focus of this research I will discuss the contents of them in more detail in the next section.

3.3 Water Resources Act 1992, and Irrigation Policy 1996

In the historical overview it became clear that the WRA was the latest and biggest change in irrigation policy in Nepal. Since this research is about the WRA, this policy will be discussed in more detail. This section is divided into two main parts. The first part will be about the registration of the WUA at the District Irrigation Office (DIO). The second part will be about the responsibilities of the DIO after registration.

Registration of the WUA at the District Irrigation Office
After the introduction of the Water Resources Act (WRA) farmer organizations (WUA’s) can register at the District Irrigation Office (DIO). According to the registration procedure farmers have to hand in a constitution. The amended constitution should be endorsed by two third of the general assembly of the newly formed WUA. Different engineers working for the DIO have to check the papers of the constitution with the help of a model constitution written in the WRA. After the general assembly and the DIO have accepted the constitution, the WUA is registered at the government.
The farmers are often helped by the DIO with the formulation of rules and regulations in the constitution. The engineers make sure that the constitution handed in by the farmers will be formulated as prescribed in the model constitution written in the WRA. In the end the constitution of the WUA and the one written in the WRA will look very similar[6]. The similarities of the two documents gives the idea farmers still have little to say how “their” constitution will look like. In the following pages parts of the model constitution will be discussed. The discussed parts will have the same focus as this research: The organization of the farmers, water distribution, maintenance and the collection of water fees. The whole contents of the constitution is written in appendix I of this thesis.

The model constitution: Regulations on organization and management
In the first part of the model constitution is about the organizational structure of the WUA. According to the model constitution the WUA should have a general assembly, Water Users Management Committee (WUAMC) and, depending on the size of the system, branch and system committees (point 5+7). The farmer organization or Water Users Association (WUA) will obtain rights and responsibilities regarding water distribution, regulation and maintenance, collection of water fees and membership fees, charges and mobilize the governments resources the moment the WUA is registered at the DIO (point 1). The obtained rights and responsibilities will be spread over the different organs in the WUA.
The general assembly shall be composed of all members of the association. It should have meetings at least twice a year. In these meetings the general assembly has to approve the annual program, audit report and annual budget of the WUAMC. It also has to frame and promulgate by laws and regulations for the construction, regulation, maintenance and repair of the irrigation system. Another task of the general assembly is to elect the officials of the WUAMC (point 6). The general assembly can be seen as a group of representatives of all the farmers with the right to elect and supervise the members of the WUAMC.
The WUAMC will be the executive body of the farmer organization. For the WUAMC a chairperson, vice chairperson, secretary, joint-secretary, treasurer and a couple of members are elected by the general assembly (point 7). The WUAMC is responsible for planning, making programs, nominating officials for executing posts and the budget of the association (point 8). The tasks of the elected officials written in the model constitution are mostly related with meetings, voting, implementing programs, keeping administration and finances. Little is discussed in relation with maintenance, water distribution and the collection of water fees[7] (point 10).
The model constitution prescribes an organization structure for the WUA’s in Nepal. Part of the organization has supervision and election responsibilities while the other part has executive responsibilities. This model constitution is not very specific about how different irrigation activities should be handled by the executive part of the organization. Very little is written about how punishment, water distribution, regulation and maintenance of canals and the collection of water fees should be managed.

Responsibilities of the District Irrigation Office after registration
After registration it is a question how the WUA’s work with the constitution. WUA’s might organize and manage different than is written in the constitution. Since WUA’s register at the DIO irrigation office it seems logical that this government institution checks whether WUA’s manage and organize according to the regulations in the constitution. Some clauses in the WRA are about the relation between the DIO and WUA after registration of the WUA: These regulations make clear that the DIO is not totally put aside the management tasks of irrigation schemes with a command area above 2000 Ha. These irrigation schemes have shared responsibility in the collection of water fees, maintenance of canals, etc.

Irrigation Policy 1996
The Irrigation Policy 1996 is more specific about water management activities. In the policy is written that water-user farmers shall participate in all stages of the construction and rehabilitation projects of irrigation systems, including need assessment, project identification, construction, repair and maintenance, and monitoring and evaluation of irrigation projects. The WUA shall bear a specified share of the costs for all irrigation rehabilitation projects. In Irrigation Policy 1996 is mentioned that the WUA is responsible for the collection of irrigation service fees (or simply water fees) in their irrigation system. Farmers have to pay fees on the basis of the size of the irrigated field. If the WUA is not able to collect more than 80 percent of the fees it shall only be allowed to get half of the amount[8]. Besides the responsibility to mobilize cash the WUAs have to make sure that water users will participate in repair and maintenance activities.

[1] The definitions of technical and organizational control used in this paper are written in the concept of water control.

[2] In the domestic sector water use increased under the influence of the population growth in the last century.

[3] See Franz von Benda-Beckmann 1989

[4] See the discussion about legal pluralism.

[5] A first example of such a common regulation is that fields closer to the water source often were allowed to irrigate before fields further away from the source, a second example is that tenants were obliged to maintain and repair canals for the local elites.

[6] The similarity between the two constitutions will be obvious after comparing appendix I and appendix II.

[7] Management tasks as responsibilities for the operation and maintenance, preparation and monitoring water delivery schedules, distribution of water, conflict resolution and the collection of water fees are only mentioned as responsibilities of some of the executive members.

[8] It is not mentioned who has the right on the other 50 % of the collected fees, but I presume that according to the regulations this money will automatically be transferred to the government.

Table of contents Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Appendixes