India: Central Government Notifies The Awaited Wetlands (Conservation And Management) Rules, 2017

Last Updated: 3 October 2017
Article by Vanita Bhargava and Wamika Trehan

Most Read Contributor in India, October 2017

On 26 September 2017, the Government of India (Central Government) notified and published the Wetlands (Conservation and Management) Rules, 2017, which supersede the Wetlands (Conservation and Management) Rules, 2010.

Background

Wetlands are highly productive ecosystems, which support rich biodiversity and provide a wide range of ecosystem services. Types of wetlands include marshes, peatlands, man-made reservoirs, tanks, lakes, and inter-tidal areas. They provide a rich habitat for birds, aquatic life as well as food, drinking water and livelihood to farmers and fishermen.

Today, several wetlands are threatened by reclamation and degradation through drainage and landfill, pollution (discharge of domestic and industrial effluents, disposal of solid wastes), hydrological alteration (water withdrawal and changes in inflow and outflow), over-exploitation of their natural resources resulting in loss of biodiversity and disruption in ecosystem services provided by wetlands.

India is also a signatory to the Ramsar Convention on Wetlands of International Importance (Ramsar Convention) for the conservation and sustainable use of wetlands. India ratified the Ramsar Convention on 1 February 1982 and is committed to conservation and wise use of all wetlands within its territory.

The Wetlands (Conservation and Management) Rules, 2010 (2010 Rules), were introduced to conserve identified wetlands and to ensure that they are not degraded. The 2010 Rules provided a much-needed legal framework for protecting wetlands. However, despite the 2010 Rules, wetlands have faced immense destruction in the form of illegal constructions, dumping and land-grabbing.

The Ministry of Environment, Forest and Climate Change, Government of India (Ministry) took note of the inadequacies of the 2010 Rules and the need for the State Governments and Union Territory Administrations to take into account wetland ecosystem services and biodiversity values within their developmental programming and economic well-being. The Ministry also recognized that land and water, two major ecological constituents of wetland ecosystems, are enlisted as State subjects as per the Constitution of India, 1950.

As such, with a view to rectify the said inadequacies, the Central Government, in exercise of the powers conferred by Section 25, read with Section 3(1), Section 3(2)(v) and Section 3(3) of the Environment (Protection) Act, 1986, published the draft Wetlands (Conservation and Management) Rules, 2016, dated 31 March 2016 (Draft Rules) for information of the public likely to be affected thereby, inviting objections and comments.

Further, as per the submissions on behalf of the Union of India recorded in the order dated 8 February 2017 passed by the Hon'ble Supreme Court of India (Hon'ble Supreme Court) in the matter of MK Balakrishnan & Ors. vs. Union of India & Ors. Writ Petition (Civil) No.230/2001, as many as 175 comments were received and for the examination of these comments, a Committee had been constituted. The Committee was given 45 days to look into the suggestions and submit its report to the Union of India. In the given circumstances, by way of the said order dated 8 February 2017, the Hon'ble Supreme Court directed that the Wetlands (Conservation and Management) Rules, 2016 should be notified on or before 30 June 2017.

Finally, in light of the directions of the Supreme Court and in order to identify, protect and conserve over 2 lakh wetlands in India, the Central Government notified and published the Wetlands (Conservation and Management) Rules, 2017 (2017 Rules) in the Official Gazette on 29 September 2017. The 2017 Rules replace the 2010 Rules, which provided for the establishment of Central Wetlands Authority to decide on all activities relating to wetlands. The 2017 Rules, on the other hand, provides for respective state-level wetland authorities with the Central Government having a limited role through a national wetlands committee, headed by the Union Environment Secretary as its Chairperson.

Salient features of the 2017 Rules

The 2017 Rules decentralise wetlands management and provide for the constitution of the State Wetlands Authority or Union Territory Wetlands Authority (Authorities) under Rule 5(1) and Rule 5(2), respectively. Rule 5(3) lays down the powers and functions of the Authorities. These Authorities will be headed by the State's Environment Minister and include a range of government officials. They will also include one expert each in the fields of wetland ecology, hydrology, fisheries, landscape planning and socioeconomics to be nominated by the respective state government.

The Authorities will also need to prepare a list identifying all wetlands of the State or Union Territory within three months, a list of wetlands to be notified within six months, and a comprehensive digital inventory of all wetlands within one year, which will be updated every ten years. The Authorities will need to develop a comprehensive list of activities to be regulated and permitted within the notified wetlands and their zone of influence. The Authorities will also recommend additional prohibited activities for specific wetlands, define strategies for conservation and wise use of wetlands, and will undertake measures for enhancing awareness within stakeholders and local communities on values and functions of wetlands.

Rule 2(1)(i) defines the term "wise use of wetlands" as maintenance of their ecological character, achieved through implementation of ecosystem approach within the context of sustainable development. As per Rule 4, the wetlands shall be conserved and managed in accordance with the principle of 'wise use' as determined by the relevant Authority. Rule 5(4)(g) gives powers to the Authorities to define strategies for conservation and wise use of wetlands within their jurisdiction; wise use being a principle for managing these ecosystems which incorporates sustainable uses (such as capture fisheries at subsistence level or harvest of aquatic plants) as being compatible with conservation, if ecosystem functions (such as water storage, groundwater recharge, flood buffering) and values (such as recreation and cultural) are maintained or enhanced;

Rule 4(2) prohibits activities like conversion of wetland for non-wetland uses including encroachment of any kind, setting up of any industry and expansion of existing industries, manufacture or handling or storage or disposal of hazardous substances and construction and demolition waste, solid waste dumping, discharge of untreated wastes and effluents from industries, cities, towns, villages and other human settlements. However, interestingly, the Proviso to Rule 4(2) also provides that the Central Government may consider proposals from the State Government or Union Territory Administration for omitting any of the activities on the recommendation of the Authority.

Comment

Although the objective for the introduction of the 2017 Rules is indeed laudable, it would be interesting to see the manner of implementations and the effects thereof. It seems that there are still some issues that remain unaddressed. For instance, the principle of "wise use of wetlands", already defined rather subjectively under Rule 2(1)(i) as above stated, is left to be determined by the Authorities under Rule 4(1), without providing for any specific guiding parameters for such determination.

Similarly, although Rule 4(2) lays down restrictions on activities in wetlands and lists out prohibited activities, the proviso gives ample space to the Authorities to permit activities which ought to be prohibited. A comprehensive arrangement of this nature at the whims and discretion of the state government can be best mentioned as a lip service to wetland conservation in India.

Furthermore, although Rule 5(6) makes provision for a grievance committee to be constituted by the Authority, to provide a mechanism for hearing and forwarding the grievances raised by public to the Authority, however, the Rules do not provide for an appeal therefrom.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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