ISLAMABAD   -  Endorsing the Sindh demand about water distribution, the Inter-Provincial Coordination Committee (IPC) has recommended the Council of Common Interests (CCI) that it is important to analyse the Water Accord for reaching an equitable formula, but remaining within the accord, rather than importing anything from beyond the Accord.

“From CCI decision on 16 September 1991 it is apparent that the CCI authorised the 10-day seasonal system wise  adjusted allocations and there is no reference to the basis of usages for the period of 1977-82 it is apparent that the intention of the CCI was to cause the 1977-82 to used only as a guideline for the purposes of determining the 10 daily uses only, which it did and accepted by all the provinces,” recommended by the Attorney General for Pakistan concerning the Water Apportionment Agreement 1991 (the Water Accord) to CCI.

It is pertinent to mention here that in June 2018, the Council of Common Interests (CCI) constituted an Inter-Provincial Committee headed by Attorney General of Pakistan to look into issues of water availability and distribution in the country in view of the dispute between Punjab and Sindh over the water distribution.

After one year the Attorney General submitted its report and now the CCI is likely to discuss the recommendations of the IPC Committee in its meeting.

The Committee further recommended that “In the present circumstances, the first thing that is recommended is to determine the volume of water actually available.

The 10 daily uses have been determined by the CCI on September 16 1991 and the distribution, whether the water is short or surplus should be on that basis.

According the recommendation of the Committee, the total surface available in the country in 1991 that could be distributed was over 102 MAF, but the Water Accord apportioned water on the presumed capacity of over 114 MAF, thereby, setting a conscious target for the federation target to enhance storage capacity and no new large storage facilities or reservoirs have been built since 1991.

Infact the overall distributable volume of water has gone below 102 MAF owing to silting of major water reservoirs. And, therein lies the problem the water accord grants of volumes of water to provinces that is not even available in the system.

Accordingly, Sindh’s claim that water be apportioned according to para 2 of the Water Accord which distributes water on the presumption of 114 MAF read with Para 14(a) &(b) and the CCI’s decision of September 16 1991 is correct in law.

Punjab’s contention, on the other hand, is based on correct assessment of the factual position, but it ignores specific provisions of the water accord.

Accordingly, it is this very clash of law and logic that has led in creation of this Committee.

The Committee noted that the real problem impeding the implementation of the 1991 Accord lies on the reading of Para 2 and Para 14 (a) & (b) where Para 2 in fact is on the presumption that the available water in the Accord is 114.35 MAF and the calculations in the said Para 2 is made on that assumption.

It may ,however, be stated that the said assumption in Para 2 has never been achieved so far.

Consequently, Punjab maintains that till the availability of 114.35 MAF, the available water should be apportioned among provinces on the basis of 1977-82 historic uses(102.72 MAF) as per Para14(b) of the Accord.

On the other hand Sindh firmly sticks to its view that the apportionment of water among provinces, under all circumstances, must take place as per Para 2 read with Para 14(a)&(b) of the Accord and further reads with the CCI decision of September 16 1991 where the 10 day average system wise allocation was determined, which has since become a part of the Accord. Sindh further disputed that there is much shortage of water as such.It maintains that downstream low availability of water is mainly due to water losses and theft upstream.  As to KP and Balochistan,Punjab is of the view that those two provinces should be exempted from any reduction in their share of water.

Meanwhile, water is being apportioned as per the three tier formula adopted by IRSA. This formula conforms to Punjab’s interpretation of water accord but is opposed by Sindh.

Thus it is important to analyses the water accord and to interpret the same so as to come to an equitable formula, but remaining within the accord and to read the same as it is,rather than importing anything from beyond the Accord.

Para 2 of the Water Accord states that all parties have accepted the distributional principles. This principle is given in the Accord that there would be an assumed flow of 114.35 MAF and that it was on the basis, that the requirement and distribution was given to each province for Kharif and Rabi periods.

The important things that needs to be seen is that Para 2 only gives a principle as mentioned in the said clause. The figure cannot be exact but by giving the figure with the assumed flow of 114.35, a ratio what has to be distributed can be worked out from the actual flow during that period. The parties to the Accord did realise this as such clause 14 was introduced in the Accord. It is Para 14(a) of the Accord that ten daily basis would be separately worked out and consequently 14(b) says that the “average system uses for the period of 1977-82 would form guideline for future regulation pattern”. And continues to say that “these 10 daily uses would be adjusted pro-rata to correspond to indicated seasonal allocations.

The question is what do the words “adjusted pro-rata” read with the words “ten daily ses” mean this will be analysed hereafter. It is thus the said Paras also need to be analysed. Sub-para(a) of Para 14 provides that the system wise allocation would be worked out separately on 10 daily basis and would be a part of the Accord. This has since been worked out, sub-para(b) has two portions. The first being that the actual system uses between 1977-82 would form a guideline for future regulation pattern.

The second part states that the 10 daily uses would be adjusted pro-rata to correspond to the indicated seasonal allocation clearly stating that it would form the basis for sharing “shortages and surpluses” on all Pakistan basis.

As per the IPC Committee, Para 14(b) first part refers the basis of usage for the period of 1977-82 for the purposes of working out the system wise allocation as provided in Para14(a) that a 10 daily uses has to be determined. The second part of Para 14(b) when read together with Para(14(a) make complete sense, when it states “these 10 daily uses would be adjusted pro-rata.From  CCI decision on 16 September 1991 it is apparent that the decision was “The CCI authorised the 10 day seasonal system wise  adjusted allocations and there is no reference to the basis of usages for the period of 1977-82 it is apparent that the intention of the CCI was to cause the 1977-82 to used only as a guideline for the purposes of determining the ten daily uses only, which it did and accepted by all the provinces. The principle of law is that any novation of an agreement, would override anything contrary contained in the agreement earlier entered into.Thus the said decision and approved by all the provinces on 16 September 1991 did make the necessary changes in the Accord.

It is also important to read Para 14(b) in its entirety.

The plain interpretation is that once the ten daily uses are determined on the basis of the uses for the period 1977-82, the future shortages and surpluses would be shared by all the provinces. Thus the historical uses would not have any place in the accord as the same has done its job for the determination of Ten daily uses and agreed upon by all the provinces.

In the present circumstances, the first thing that is recommended is to determine the volume of water actually available.The ten daily uses have been determined by the CCI on 16 September 1991 and the distribution, whether the water is short or surplus should be on that basis.

The task of calculating the actual available water may be assigned to an independent body consisting of expert hydrologists. Thereafter, if the water available is found to be equal to 114.35 MAF, the water accord may be implemented as provided in Paras 2 and 4 of the Accord.In case the water available is below 114.35 MAF then till that volume is achieved through conservation measures and construction of additional storage capacity, the decision of CCI being part of Accord be implemented for apportionment which shall be read with 14(b) of the Accord. The Committee recommends the construction of big and small dams.

The Committee further recommended that telemetering system should be immediately installed for the purpose of calculating the flow and volume of water at each stage.