Law

Environmental Law

Regulation of Wetlands

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QUADRANT-I (A) – PERSONAL DETAILS

Role Name Affiliation Principal Investigator Prof (Dr) Ranbir Singh Vice Chancellor, National Law University Delhi Co-Principal Investigator Prof (Dr) GS Bajpai Registrar, National Law University Delhi Paper Coordinator, if any Ms Lovleen Bhullar School of Oriental and African Studies, University of London Content Writer/Author Ms Lovleen Bhullar School of Oriental and African Studies, University of London Content Reviewer Lt.(Dr.) KD Raju Rajiv Gandhi Institute of Intellectual Property Law, IIT, Kharagpur Language Editor Ms Lovleen Bhullar School of Oriental and African Studies, University of London

QUADRANT-I (B) – DESCRIPTION OF MODULE

Items Description of Module Subject Name Law Paper Name Environmental Law Module Name/Title Regulation of Wetlands Module Id 6 Pre-requisites Environmental studies in any discipline Objectives To introduce the regulatory framework for wetlands: at the international, national, state and local levels Keywords Ramsar Convention, Wetlands Rules, Authority

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QUADRANT-I – E-TEXT

1. Introduction

Wetlands are areas of land that are temporarily or permanently covered with water. They can be natural or artificial (or man-made), fresh water or brackish, and they include bogs, fens, swamps, marshes, floodplain and shallow lakes. Wetlands perform a number of functions, including flood and erosion control, water purification and shoreline stabilization. However, we are confronted with the problem of wetland loss as a result of a number of anthropogenic activities, such as pollution, hunting, human settlement, agricultural drainage, fishing, wood- cutting, watershed degradation, soil erosion, siltation and diversion of water supplies. This is partly due to the lack of awareness about the important functions performed by wetlands.

2. Learning Outcomes

This unit will introduce the reader to the multi-level legal framework concerning wetland regulation, comprising an international convention, national-level rules, and state or city level laws, and highlight some of the issues. It will also provide a brief introduction to the relevant policy framework at the national (and state) levels in .

3. International Framework

Wetlands are the only specific ecosystem for which countries from different parts of the world have ratified a separate multilateral environmental agreement, namely the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971 (Convention or Ramsar Convention). Wetlands are also the only specific ecosystem for which the call for an international agreement was made, not by countries, but by a group of non-governmental organizations, namely the International Union for the Conservation of Nature and Natural Resources (IUCN), the International Waterfowl and Wetlands Research Bureau (IWRB) and Bird Life International. Unlike other international agreements, the Convention is not affiliated with the United Nations system of multilateral environmental agreements. A number of criteria, guidance and guidelines, etc. have been adopted from time to time in order to interpret the text, and facilitate the implementation, of the Convention.

Definition of wetlands

The Convention defines ‘wetlands’ as: ‘areas of marsh, fern, peatland, or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed 6 meters’. The definition may incorporate riparian and coastal zones adjacent to the wetlands and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands. One of the major limitations of this definition is that it does not reflect the different types of wetlands and their dynamic nature, which makes wetlands susceptible to seasonal and temporal changes. Further, it is not always possible to delineate the boundaries of a wetland with precision.

Designation of Ramsar Sites

The Convention protects 2,187 sites, comprising a total surface area of 208,608,257 hectares, in 168 State Parties. These sites are included in the Ramsar List of Wetlands of International Importance or the Ramsar List, which comprises of 42 types of wetlands grouped into three

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categories: marine and coastal wetlands, inland wetlands and human-made wetlands. The Criteria for Designation of Wetland Sites, which was adopted in 1990 and subsequently updated, comprises of two groups: • Group A: sites containing representative, rare or unique wetland types; and • Group B: sites of international importance for conserving biodiversity.

The Parties to the Convention are required to designate at least one suitable wetland within their territory for inclusion in the Ramsar List. The selection of the wetland is based on its international significance in terms of ecology, botany, zoology, limnology or hydrology. However, the inclusion is without prejudice to the sovereign rights of the Parties. They are permitted to delete/restrict wetlands included in the Ramsar List on grounds of ‘urgent national interest’. In both instances, the Parties must consider their ‘international responsibilities for conservation, management and wise use of migratory stocks of waterfowl’.

Basic commitments of Parties

• Formulate & implement wetlands conservation and its wise use • Establish nature reserves • Endeavor to increase waterfowl populations • Ensure that it is informed of any actual/likely change in ecological character of any kind of its listed wetlands o Pass on this information to the Secretariat (in Switzerland)

Concept of Wise Use

In addition to the promotion of conservation of Wetlands of International Importance, the Parties to the Convention have also agreed to ‘formulate and implement their planning so as to promote...the wise use of wetlands in their territory’. However, the Parties are only required to discharge this obligation ‘as far as possible’.

The term ‘wise use’ has been defined (during COP-3 in 1987 in Regina, Canada) as: “the sustainable utilization of wetlands for benefit of mankind in a way compatible with the maintenance of the natural properties of the ecosystem”.

Financial assistance

In order to improve implementation of the Convention, particularly by developing countries and countries with economies in transition, the Ramsar Small Grants Fund for Wetland Conservation and Wise Use (earlier known as the Wetland Conservation Fund) has been established. Assistance is based upon a request being made to support wetland conservation. The latter includes improved management of Ramsar sites, designation of new sites, promotion of ‘wise use’ and supporting regional and promotional activities.

Other relevant multilateral environmental agreements

In addition to the Ramsar Convention, a number of other multilateral environmental agreements are also relevant in the context of wetlands. These include: • Convention on Conservation of Migratory Species of Wild Animals, 1979 (CMS or Bonn Convention) • UNESCO World Heritage Convention, 1972 • Convention on Biological Diversity, 1992 (CBD)

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• United Nations Convention to Combat Desertification, 1994 (UNCCD) • United Nations Framework Convention on Climate Change, 1994 (UNFCCC)

4. Domestic Framework

India has a total of 7,57,060 wetlands covering an estimated area of 15.26 million hectare, which is around 4.63 per cent of the geographical area of the country.

4.1. Legal Framework

India became a contracting/member party of the Ramsar Convention on 1 February 1982 with the identification of six wetlands covering 192,973 ha area as Wetlands of International Importance. The Ministry of Environment and Forests (MoEF), Government of India is the national implementing authority for the Convention. At present, out of the 2,187 sites protected under the Ramsar Convention, only 26 sites (with a surface area of 689,131 hectares) are in India.

List of Ramsar sites in India

• : • : Deepor Beel • : Nalsarovar bird sanctuary • : , Pong Dam lake and Renuka wetland • Jammu & Kashmir: wetland, Surinsar-Mansar lakes, Tsomoriri and • : Ashtamudi wetland, Sasthamkotta lake and -Kol wetland • : • : • Orissa: and • Punjab: Harike, Ropar and Kanjli • : and Sambhar lake • : wildlife and bird sanctuary • : • : Upper Ganga river • : East Calcutta wetlands

Two of these sites, that is, the Loktak lake in Manipur and the Keoladeo National Park in Rajasthan, are included in the Montreux Record, which is a register of wetland sites on the Ramsar List where changes in ecological character have occurred, are occurring, or are likely to occur as a result of technological developments, pollution or other human interference. Most of the other Ramsar sites in India are also threatened by uncontrolled development and illegal encroachments, although they are not included in the Montreux Record.

In addition to the abovementioned wetlands, there are a large number of wetlands in India that are not regulated by the international framework. The Constitution of India recognises the protection and improvement of the environment as one of the Directive Principles of State Policy (Article 48A). The Constitution also imposes a fundamental duty on every citizen of the country ‘to protect and improvement the natural environment’; this explicitly includes lakes (Article 51A). Insofar as the domestic legal framework is concerned, there is no national law governing wetlands in India. However, the Wetlands (Conservation and Management) Rules, 2010 (Wetlands Rules), published by the Ministry of Environment and Forests,

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Government of India, in exercise of its power under the Environment (Protection) Act, 1986, seek to fill in this gap to some extent.

In addition, a few states have enacted specific legislation governing wetlands, which pre-date the Wetlands Rules. These include the East Wetlands (Conservation and Management) Act, 2006, the Guwahati Waterbodies (Preservation and Conservation) Act, 2008 and the Kerala Conservation of Paddy Land and Wetland Act, 2008. The first law applies specifically to the in Kolkata; under the second law, the wetlands in the city of Guwahati can be notified for protection under the law; and the third law applies to the State of Kerala. The East Kolkata Wetlands (Conservation and Management) Act, 2006 has established the East Kolkata Wetland Management Authority, which includes a representative of the Institute of Environmental Studies and Wetland Management, two nominated representatives of NGOs and one representative of fishermen cooperative societies in addition to the representatives of different government departments within the state. No similar authority has been established yet under the other two laws.

The provisions of other environmental laws, such as the Environment (Protection) Act, 1986, Coastal Regulation Zone Notification, 2011 and the Wildlife (Protection) Act, 1972, are also applicable to wetlands.

Scope of the Wetlands Rules

The definition of a ‘wetland’ in the Wetland Rules is wider than the Ramsar Convention. It is defined as: “...an area of marsh, fern, peatland or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water, the depth of which at low tide does not exceed six meters and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland...”

However, most important wetlands and reservoirs are deeper than six meters. Further, this definition excludes ‘main river channels’ without defining the term. It also excludes paddy fields, which provide hydrologic and biodiversity support.

Further, the Wetlands Rules do not ‘protect’ all the wetlands in India. Their remit is restricted to: • Ramsar Wetlands of International Importance • Wetlands in ecologically sensitive and important areas • Wetlands recognised as or lying within a UNESCO World Heritage Site • High altitude wetlands/wetland complexes at or above an elevation of 2500 meters with an area equal to or greater than 5 hectares • Wetlands/complexes below an elevation of 2500 meters with an area equal to or greater than 500 hectares However, the Central Wetlands Regulatory Authority (CWRA) established under the Wetlands Rules ‘may’ identify, and the Central Government may notify, other wetlands. But the process of identification – more than one year – may undermine the objective of the Wetlands Rules, that is, conservation and management of wetlands.

Prohibited activities

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In order to protect the specified wetlands, the Wetlands Rules prohibit certain activities. These are reclamation; setting up of new/expansion of existing industries; manufacture, handling, storage or disposal of hazardous substances under the various Rules governing hazardous chemicals, micro-organisms/genetically engineered organisms or cells or waste; dumping of solid waste; discharge of untreated wastes and effluents from industries, cities, towns and other human settlements; and any construction of a permanent nature within 50 meters from the mean high flood level observed in the past ten years. The CWRA has the discretion to specify (and prohibit) any other activity likely to have an adverse impact on the ecosystem of the wetland.

Permitted activities

Certain activities are permitted/regulated within the wetlands after obtaining the prior approval of the State Government. The CWRA is responsible for the identification of areas for, and grant clearance to, such regulated activities. An appeal against the decision of the CWRA lies to the National Green Tribunal. In cases where it grants clearance, the CWRA will specify threshold levels as well as mode and methodology for undertaking regulated activities.

Permission for prohibited activities

On the recommendation of the CWRA, the Central Government may permit a prohibited activity in a protected wetland, or conversion of a protected wetland to non-wetland use where it is expedient in the public interest and subject to furnishing a reasoned decision. However, the Rules do not define terms such as ‘non-wetland use’.

Other powers of CWRA

The CWRA is also responsible, in consultation with the local authorities, for appraising proposals for identification of new wetlands, projects or activities and determining the zone of direct influence of wetlands. Further, the CWRA is empowered to issue directions for conservation, preservation and wise use of wetlands to State Government.

Relationship of Wetlands Rules with existing laws

The Wetlands Rules are applicable to the wetlands, as defined therein. However, provisions of the existing laws will continue to apply to wetlands within areas falling under their respective jurisdiction. These include: (i) Wildlife (Protection) Act, 1972: wetlands within protected areas of national parks and wildlife sanctuaries (ii) Indian Forest Act, 1927; Forest Conservation Act, 1980 and Environment (Protection) Act, 1986: wetlands within protected or notified areas (iii) Environment (Protection) Act, 1986: wetlands outside protected or notified areas

Role of local communities

One of the criticisms of the Wetlands Rules is their failure to recognize traditional rights over wetlands for livelihood purposes. The non-inclusion of affected people in the CWRA or their involvement in the process of identification of wetlands is another concern. The ‘general public’ can only make a representation to the Central Government once it invites objections and suggestions on the recommendation of the CWRA to notify an area as wetlands.

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Penal provisions

The first contravention of the provisions of the Wetlands Rules is an offence under section 15 of the Environment (Protection) Act and it is punishable with imprisonment (up to five years) or with fine (up to Rs one lakh), or with both. A continuing contravention, after conviction for the first contravention, will attract additional fine (up to Rs 5,000) per day. An offender who continues to contravene the Rules beyond a period of one year after the date of conviction shall be punishable with imprisonment (up to seven years).

4.2. Judicial Decisions

The Wetlands Rules are a recent development. At the state-level, either specific legislation governing wetlands or the provisions of other environment-related laws, have formed the basis for regulation of wetlands. In some instances, concerned individuals or groups have approached the judiciary for protection of wetlands.

In one of the earliest cases, People United for Better Living in Calcutta v State of West Bengal, AIR 1993 Calcutta 215, the petitioner organization approached the High Court for protection of a Ramsar site on the eastern side of Calcutta. While staying all developmental activities at the Ramsar site, the court observed: “Wetland acts as a benefactor to the society and there cannot be any manner of doubt in regard thereto and as such encroachment thereof would be detrimental to the society which the Law Courts cannot permit. This benefit to the society cannot be weighed on mathematical nicety so as to take note of the requirement of the society - what is required today may not be a relevant consideration in the immediate future, therefore, it cannot really be assessed to what amount of nature's bounty is required for the proper maintenance of environmental equilibrium...”

This landmark decision has purportedly been subsequently modified in ‘public interest’. In People United for Better Living In Calcutta v East Kolkata Wetlands Management Authority (2008), the High Court permitted the construction of a water treatment plant in the East Kolkata Wetland Area, which is a Ramsar site under the East Kolkata Wetlands (Conservation and Management) Act, 2006. However, the court has imposed a condition that the construction should be in the most eco-friendly manner and remedial measures must be adopted in the vicinity of the area. It has also appointed a monitoring committee to ensure compliance with its directions.

The National Green Tribunal (NGT) is hearing several cases relating to the threat to wetlands from industries, real estate developers, etc. In Akash Vashishta and Another v Union of India and Others, the applicants have alleged that the Dadri wetlands, also called as Bil Akbarpur wildlife habitat and home to the protected black buck species, Nilgai as well as over 200 migratory and resident birds, are being destroyed due to activity of builders and others. The NGT has restrained construction in and around the wetlands. In another case concerning the construction of a school and real estate development in the Dheerpur wetlands in Delhi, the NGT has restrained the release of any sewage or sludge in and around water bodies in Dheerpur. The NGT has also directed the MoEF and the Delhi Government to identify and assess the status of wetlands in the capital and to submit a plan for conservation and management of wetlands.

In an unprecedented move, the Bombay High Court passed an interim order earlier this year banning reclamation and construction on wetlands in a more recent public interest litigation

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filed by a non-governmental organization, Vanashakti, alleging destruction of wetlands in suburban Thane and Navi Mumbai.

4.3. Policy Framework

The National Wetland (Conservation & Management) Programme (NWCMP), which was operationalized by the MoEF in 1985, represented India’s regulatory framework for the ‘conservation and wise use of wetlands in the country so as to prevent their further degradation’. The Guidelines for Conservation and Management of Wetlands in India were issued in 2009. However, the lack of interest from the state governments has resulted in non- utilization of the funds under the NWCMP. Recently, the NWCMP along with the National Lake Conservation Plan (NLCP) have been merged into the National Plan for Conservation of Aquatic Eco-systems 2013.

The National Environment Policy 2006 has also recognized the need for legal regulatory mechanism for protection of wetlands from degradation.

The National Action Plan on Climate Change 2008 recognises the important role of wetlands in the context of climate change. The National Water Mission lists some actions for conservation of wetlands, which are more progressive than the provisions of the Wetlands Rules. For example, it suggests the formulation and implementation of a regulatory regime to ensure wise use of wetlands not only at the national and state levels, but also at the district level. The latter may provide an opportunity for community participation in the conservation and management of wetlands.

At the state-level, the judiciary has also played a role in the formulation of the West Bengal Wetlands and Water Bodies Conservation Policy 2012. The policy was prepared pursuant to a direction issued by the High Court to the State Government in Forum for Human, Legal and Ecological Rights, Bansdroni & Another v Union of India & Others (2011).

5. Summary

At the international level, the Ramsar Convention represents an important component of the legal framework although it does not cover all types of wetlands. Provisions of other international agreements are also applicable to wetlands. At the national level, while a few wetlands fall under the Ramsar Convention framework, several others require another legal framework. Although there is no national law on wetlands, the Wetlands Rules, 2010 cover certain categories of wetlands. Further, in some states, there are laws at the state or local level for wetland protection and management. The judiciary has also played a role in wetland protection. In addition to the legal framework, wetland regulation is an important concern of the policy framework as well. However, there are a number of outstanding issues and the fact that several wetlands do not fall within the definition of the term under the existing laws, and that local communities are given a limited or no role in the process of protection and management, raise concerns about the future of wetlands.

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