Legal Responses to Multiple Challenges Facing Wetland Management
Wetlands are not only natural infrastructure that store and clean water, regulate flows and protect coasts. They are also food bowls for millions of people around the world and their major source of livelihood – farming, fisheries and food security all depend on healthy wetlands - Julia Marton-Lefèvre, IUCN Director General.
Wetlands are, essentially, areas of marsh, fen, 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 There are 40 types of wetlands as per the Ramsar convention across the world many of which (eighteen) are found in India alone. Some of these include:
Ox-Bow Lakes/ Cut-Off Meanders
High altitude Wetlands
In spite of these benefits, wetlands are the most ignored ecosystems facing constant threats. Natural wetlands are in long-term decline around the world according to a global report on the state of wetlands. Between 1970 and 2015, inland and marine/coastal wetlands both declined by approximately 35%, which is three times the rate of forest loss. This is especially the case in India. Apart from natural causes such as disasters and climate change-induced effects, threats such as encroachment, land-use change, pollution, indiscriminate aquaculture, siltation, and weed infestation are also gradually choking these wetland systems. An estimated one-third of Indian wetlands have already been wiped out or severely degraded. 26 sites demarcated as RAMSAR sites are facing shrinkage on account of unrestrained developmental activities. Such shrinkage of wetland space comes with problems of its own. The recent spate of urban flooding in many cities of India can be directly attributed to rampant construction on reclaimed wetlands, flood plains and low lands of the cities.All these wetlands, located along the length and breadth of India, provide a range of ecological services. They help towards recharge and discharge of groundwater and maintain stable levels in times of intense flooding. Further, they contribute to carbon sequestration as well as filtration. They support a wide range of biodiversity including migratory waterfowls. For instance, there are 20 wetlands identified by MoEF&CC including Keoladeo in Rajasthan, Coringa in Andhra Pradesh, Bhitarkanika in Odisha, to name a few that act as congregation sites for several migratory waterbird species. Wetlands also deliver a source of food and fodder for human subsistence, and if maintained well, help farmers and local communities by contributing to their irrigation and fishing activities. The wetlands also have a huge tourism and ecotourism potential. From an economic perspective, the values these ecosystems offer far outweigh any terrestrial ecosystems.
In the above-mentioned light, it would be useful to look at the legal framework in India used to conserve these valuable ecosystems and the lacunas therein.
Wetland Rules of 2017- Plagued by Dilution
A legal framework for the protection of wetlands has historically been scattered since water is a state subject; thus, there are both state and central laws that help conserve wetlands. After becoming a signatory to the Ramsar Convention, the National Wetland Conservation Program of 1985 was introduced in India to conserve wetlands through state-center coordination. The National Lake Conservation Plan (1993) and National River Conservation Plan (1995) are a couple of other programs that focused on lakes and rivers respectively.
From a legal context, the importance of wetlands has been highlighted within the National Environmental Policy 2006 and the National Water Policy, 2012; however, it was in 2010 that the first stand-alone Wetlands (Conservation and Management) Rules were enacted. These Rules used a broad definition for ‘wetlands’ as provided within the Convention. Protected wetlands were shielded from reclamation, construction, handling of hazardous substances, industrial siting or expansion, effluent disposal, solid waste dumping, poaching and any other activity that could adversely affect its ecology through two categories of activities, prohibited and restricted. This separation of activities denoted ‘wise use’ as propagated in the Convention. The Central Wetland Authority constituted under these Rules was responsible for granting permission for activities within wetlands listed for this purpose, as well as for the review of the list of wetlands and activities prohibited or restricted. These were some of the important features within the 2010 Rules which were hailed positively until new Rules introduced in 2017. The 2017 Rules superseded the earlier one and resulted in altering quite a few provisions laid down in 2010.
For instance, it is pertinent to note that the new rules of 2017 have excluded the man-made tanks built especially for drinking purposes and hence these exclusions also apply to the structures constructed for aquaculture, salt production, recreation, and irrigation. To gain protection within the new rules, a wetland is now required to be among sites of international importance which are either given recognition and listed under the Ramsar Convention or are Wetlands notified by a state or Union territory government, or the central government in the case of transboundary wetlands. ‘Decentralization of power’ is the highlight of the new rules. By granting more powers to the states in regards to identification, notification and also prohibition of illegal activities, center’s role has now been reduced to that of an overseeing committee. The discretionary power which is conferred to the state wetland authorities under the new rules is tremendous. The state government has discretion in regards to not only the notification of wetland but also in respect to the amount of protection such wetlands deserve. Although the rules mention prohibited activities in and around the wetlands, the state wetland authority can recommend to center to omit the prevention of such activities. Finally, these rules do not give any importance to the need for involving local communities in wetland conservation.
State-specific Laws on Wetlands- Poor Implementation
As mentioned earlier, since ‘water’ is a state subject, several states have laws to protect their rivers, watersheds, and groundwater. However, laws, particularly on wetlands, can be found in very few states. In the State of West Bengal, the East Kolkata Wetland (Conservation and Management) Act, 2006 was introduced to protect the East Kolkata Wetlands which is also declared as a Ramsar site. The East Kolkata Wetlands Management Authority created under the aegis of this Act has several functions to ensure the conservation of these wetlands. Most importantly, it has the power to give orders preventing or prohibiting any activity which is likely to cause damage to these areas. Another instance is that of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which prohibits the conversion or reclamation of paddy land except in accordance with the provisions of the Act. In spite of laudable objectives, the Act is suffering from significant dilutions, with new exemptions being granted for conversion of such lands if it is for a public purpose. Further, in spite of so much time having passed after its enactment, the state still does not have a comprehensive databank of paddy fields and wetlands. Manipur also restricts the conversion or reclamation of paddy lands except if it is for public purpose or construction of a residential building for the owner of paddy land through the Conservation of Paddy Land and Wetland Rules, 2014. And yet, even these Rules suffer from the same problem of non-implementation with tracts of paddy and wetlands in the state being reclaimed for the construction of dwelling houses, godowns, hospitals, schools, colleges, etc. and conversion into fish farms. This is in spite of an office memorandum that promises stringent action against concerned officials if they fail to act against those who are defying the Rules.
Judicial Activism in Wetland conservation
Though the central government has notified the central wetland rules, the power of notifying wetlands is still with the state government, but the state government’s attitude has been very lax when it comes to notifying these wetlands. This delay in the notification has been addressed several times before the Supreme Court and High Courts, and NGT in the case of Anand Arya & Others v. Union of India had to specifically interfere to pass an order and persuade the state government to notify wetlands in Uttar Pradesh. In other cases where it is the responsibility of the state wetland authority to take appropriate actions in regards to preservation of the wetlands, it has been seen that authorities fail to take any action and NGT has to intervene whether it is the construction of residential complex near the wetland or curb release of waste into the wetland area and forming committee to inspect the same or ordering to survey in regards to number of wetlands in the particular area. The Supreme Court has also recently ordered the evacuation and demolition of a residential complex near a coastal wetland in Kerala. In the High Court decision of M. Indira v. State of Tamil Nadu, the Court observed that in the absence of specific legislation on wetlands in the state, the Tamil Nadu Forest Act, 1882 could be invoked to declare marshy lands as forests. The activist nature of the NGT and the Supreme Court, and over-dependence on judicial forums to rule on wetland conservation point towards the inherent lack on the part of legislature and executives to do their bit.
Administrative Jurisdiction-No Role Clarity
Since wetlands do not fall under a specific administrative category, they also suffer from the tragedy of commons with not a single body taking responsibility for its conservation. Thus, the state wetland authorities, groundwater authority, state pollution control boards/committees, forest department, coastal zone management authorities, state biodiversity boards, and other administrative line departments, all have a role to perform depending on the nature of wetlands. Interestingly, the new Rules do seek to incorporate members from various line departments working on environment & pollution, forests & wildlife, urban & rural development, water resources, agriculture & fisheries, tourism, and revenue, along with experts from diverse fields affecting wetland ecology. The inclusion of such a wide range of expertise will hopefully make the conservation process more effective. What is missing within the new rules is the role played by district administration and district level line departments. This is vital because every local context is different and district level monitoring is essential. A vital motivational step towards this can be found under the Manipur Conservation of Paddy Land and Wetland Act, where involvement of local administration (including panchayat and Farmers) in protection and preservation of wetlands is a welcome step.
Intersection with other Laws
In case of a wetland of biotic significance, community reserves or conservation reserves may be constituted under the Wildlife (Protection) Act, 1972, thereby leaving local communities in charge of management and conservation. The provision of community forest resource under the Forest Rights Act, 2006 can be applied in an area which has been traditionally protected by forest dwellers. Biodiversity Heritage Sites may also be declared under the Biological Diversity Act, 2002 for wetland sites which are teaming with a wide range of biodiversity. Further, the conflicts that exist between wetland rules and Coastal Regulatory Zone Notification, 2019 are important to be highlighted. Even though wetland rules exempt tide influenced water bodies, it is difficult to lay down a distinction unless they are designated as such (for instance if there was a national or state wetland registry, it would have been easier). Also, in coastal states like Goa, Kerala, Odisha, etc., there is very little distinction between wetlands and backwater lagoons.
Role of Local/Indigenous Communities- Important yet Ignored
It is widely accepted internationally that the role of Indigenous people and local communities is pertinent to conserve the environment. Examples of community-led initiatives in tie-up with implementing agencies include the production of endemic fish and community-based sustainable tourism activities, including bird and wildlife watching, kayaking, landscape conservation approach to wetland management, among others. In India, locals have played a big part in wetland conservation through local campaigns and public interest litigation. Some instances include government declaration of a lake (kolleru) part of a sanctuary due to sustained pressure from communities; stoppage of illegal construction near a site (deeper beel); recognition of importance of wetland flooding in maintenance of fertility of the soil through nutrient loading (beels, Dopals); use of wastewater in wetlands for Adaptive farming (East Kolkata Wetlands); and work of civil society organisations like Tarun Bharat Sangh along with local community in rejuvenating thousands of ponds and other water conservation structures in Rajasthan. The large network of man-made tanks found in the Southern states of Karnataka, Tamil Nadu, Andhra Pradesh, and Telangana, being managed by water user associations at the village level, is another great example of local conservation efforts. Despite these demonstrated examples, the new Rules have completely kept out powers and duties of local communities when it comes to the preservation of wetlands. Monitoring and management at the very local level should be vested with gram sabhas or resident welfare associations, given their huge stake in the health of the wetlands from an ecological and livelihood context. The power of gram sabhas in Schedule V areas about the management of minor water bodies found within the Panchayats (Extension to the Scheduled Areas) Act, 1996 should also not be ignored.
Concluding Note with Recommendations on Way Forward
The role which the wetlands play in the protection of our ecosystem is tremendous but the lax attitude of the government in realizing the same is reflected in its policies and legislations. Firstly, the preparation of state-level registries for all existing wetlands is the need of the hour. Secondly, man-made wetlands should be included as well within such registries, given their huge numbers. Thirdly, wetland conservation cannot be left to the whims and fancies of the state governments without including buy-in from the local communities in the wetland conservation process. Fourthly, the enactment of state-sponsored schemes is the need of the hour since existing central government schemes like National Wetlands Conservation Programme (NWCP), are limited to identification of only important national/ international wetlands and most of the local wetlands, both natural and manmade, get left out. The promotion of public-private partnerships for the preservation of wetlands and the promotion of eco-tourism is another important economic step towards wetland conservation. Finally, so many departments and government agencies have created jurisdictional barriers to wetland conservation. Proper role clarity between departments and inter-departmental coordination is a must here. Conservation and wise use of wetlands through some of the above-mentioned strategies is the way forward to ensure a sustainable future.
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By Shyama Kuriakose is a Senior Project Fellow, Vidhi Centre for Legal Policy, New Delhi;
Vineet Gupta is a 5th Year Student, Rajiv Gandhi National University of Law, Punjab and Senior Digital Editor at RGNUL Student Research Review.