Wetland Rules 2016 promote undemocratic conservation and management of wetland ecosystems

ESG Submission to Indian Environment Minister to reject Draft Wetland Rules 2016

MOEF Response to RTI regarding formulation of Draft Wetland Rules 2016

Email/RPAD

Mr. Prakash Javadekar

Hon'ble Minister of State for Environment, Forests & Climate Change

Government of India

Indira Paryavaran Bhavan

Jorbagh Road

New Delhi - 110 003

6^th June 2016

Reg.: MoEF&CC Proposal to enact Draft Wetland (Conservation and Management) Rules – 2016

Dear Mr. Javadekar,

Comments have been sought from the wide public on the Draft Wetland (Conservation and Management) Rules – 2016 (hereinafter, Wetland Rules, 2016) by way of the 31^st March 2016 Notification of the Ministry of Environment, Forests and Climate Change (MoEF&CC).

At the outset I wish to submit that the manner in which these Rules have been formulated, as well as its content, are indicative of the manner in which a critical Ministry of the Union Government is functioning in responding to the prevailing environmental crises; legal changes are being brought forth recklessly, unconstitutional methods of decision making are being promoted, and all this could have a debilitating impact on India's economic and ecological security and also its democratic polity. The proposed Rules will most certainly damage, not merely compromise, wetland conservation and regeneration efforts. So that the gravity of the situation is appreciated with due dispatch, this letter is addressed to you. This letter explains in some detail why you need to send your officials back to the drawing board in rebuilding a set of Wetland Rules that deeply respect this extremely biodiverse nation and defer to its rich tradition of community conservation that have been the basis for protecting our wetland ecosystems and complexes. This letter will be shared widely so those who really care for India and its peoples will also advise you to reject this environmentally and socially disastrous proposal, Wetland Rules 2016.

1. Wetlands are highly productive and biologically diverse ecosystems, not mere water bodies:
   a) The 6^th Edition of the Ramsar Convention Manual¹ states: “Wetlands are among the world’s most productive environments. They are cradles of biological diversity, providing the water and primary productivity upon which countless species of plants and animals depend for survival. They support high concentrations of birds, mammals, reptiles, amphibians, fish and invertebrate species. Wetlands are also important storehouses of plant genetic material. Rice, for example, which is a common wetland plant, is the staple diet of more than half of humanity.” (Emphasis supplied). The case for protection of wetlands cannot be more clearly stated. But if an illustration is needed to explain how complex plant-animal relationships advance protection and regeneration of wetland ecosystems, a crisply made short film “When Wolves Change Rivers”² is a quick, enjoyable and enlightening watch.

1. India's responsibility as a signatory to the Ramsar Convention:
   a) As a signatory to the Convention on Wetlands of International Importance concluded in Ramsar, Iran in 1971, India is duty bound to protect all major wetlands within its territory. But this responsibility has been accepted with the understanding that large wetlands cannot be stable unless their watersheds are safeguarded as well. This is because the health of large wetlands are intricately linked to a thriving biosphere involving thousands of ponds, lakes, streams, canals, rivers, floodplains, forests, etc, and their interaction with wildlife and ecologically sensitive human systems. Comprehending all this, the Ramsar Convention has recommended that the best way to ensure protection of wetlands is for every contracting party to develop a National Wetland Policy first in consonance with Convention objectives and recommendations, and based on a deeply democratic and participatory process. The Ramsar Convention was first held in 1971. And yet, to this day, India, shamefully, has not evolved its Wetland Policy.

1. Wetland Rules 2016 proposed without prior consultation:
   a) The question of how to develop a Wetland Policy has been addressed by the Ramsar Convention per Resolution VII.6, 1999 in its “Guidelines for developing and implementing National Wetland Policies”.³ The introduction of this document states that:

“Wetlands have been identified as one of the key life support systems on this planet in concert with agricultural lands and forests. This has been a key theme in the evolving global support and political commitment for sustainable development and environmental conservation as articulated in the Ramsar Convention’s Strategic Plan 1997-2002, the World Conservation Strategy, Caring for the Earth, the report of the Brundtland Commission, and Agenda 21. The role of wetlands has emerged as a key element in the delivery of inland freshwater and coastal ecosystem conservation through the Convention on Biological Diversity. The importance of our wetlands goes beyond their status as the habitat of many endangered plant and animal species. They are a vital element of national and global ecosystems and economies” (emphasis supplied).

b) In sum, the Guidelines suggest that without an appropriate National Wetland Policy, not only are we compromising wetlands, and thereby ecological security of the peoples of India, but that we also are jeopardising the nation's economic security. There has been a lot of work done by the Ramsar Convention Secretariat to ensure there is no gap in sharing global knowledge on how to tackle rapid deterioration of the quality of wetlands, and also in preventing their consequent destruction. Towards this end, the Ramsar Convention followed up its Guidelines for policy formulation with detailed “Guidelines for reviewing laws and institutions to promote the conservation and wise use of wetlands”. This particular recommendation from the Guidelines speaks volumes of how wetland rules ought to be formulated:

“Wetland-related legal and institutional measures are those which directly promote conservation and wise use of wetlands, including those directly supporting the implementation of the Ramsar Convention. All Parties have some form of environmental legislation and administration which is or can be used to support wetland conservation and wise use, although relatively few have enacted special wetland laws. Depending on the country, conservation and wise use measures may be contained in national and sub- national laws and regulations on environmental protection, nature conservation, protected areas, environmental impact assessment and audits, land-use planning, coastal management, water resource management or pollution control. At the local level, customary laws and community-based institutions may be relevant.”⁴

c) None of the Ramsar recommendations and guidelines have been conformed with when formulating and proposing the Wetland Rules 2016. In response to an RTI Application to MoEF&CC enquiring about processes that preceded the formulation of Wetland Rules 2016, it was reported by MoEF& CC that no effort was made to consult various wetland ecosystem communities, local governments, state governments and even central government agencies. The only consultation that took place was on 8^th August 2014 at India International Centre, New Delhi on “Conservation and Sustainable Management of Wetland Ecosystem Services and Biodiversity” for “formulation of Full Size Project (FSP) on conservation and sustainable management of wetlands for funding support under Biodiversity Focal Area of the Global Environmental Facility (GEF)”, and that with participation from a small and select audience. It was also conceded that no advertisements were issued drawing attention to the proposal, nor was the opinion of State Governments and Local Governments explicitly elicited. All in all, it seems to have been an in-house effort of a small team of officials in MoEF&CC.⁵ Similar criticism can also be extended to the manner in which the prevailing Wetland (Conservation and Management) Rules, 2010, (Wetland Rules, 2010) was enacted.

d) It is globally accepted fact that formulating law in the lack of a policy is like developing a schematic offering solutions to a problem that has not yet been properly understood. It is akin to the blind figuring out what an elephant looks like by merely touching different parts of its body.

1. Opportunity for closing critical gaps in Wetland Rules 2010:
   a) The Wetland Rules 2016 could well have been a process of filling critical gaps in Wetland Rules, 2010. Instead, what is proposed now is so regressive, that it will not only wreak havoc in wetland ecosystems, but would also promote a method of environmental administration that will leave even more critical gaps unattended. In what is now proposed, there is little or no scope for local governments and local communities, particularly those intricately linked with wetland ecosystems, to participate in any manner in decision making relating to conservation and management of wetland ecosystems. This in itself is sufficient reason for rejecting the Wetland Rules 2016, and the rationale for this submission is explained later in this letter.
   
   b) Wetland Rules, 2010 has many strengths. Foremost is the fact that it extends protection to all high altitude (over 2,500 MSL) wetlands or wetland complexes over 5 hectares, and to similar systems with an area exceeding 500 hectares everywhere else (below 2,500 MSL). In addition, it explicitly advocates protecting wetland complexes in ecologically sensitive and protected areas. There are also many conditions imposed against diversion of wetlands to non-wetland use and statutory requirements are in place necessitating prior consent when such activities are proposed.
   
   c) But a critical gap in the 2010 Rules has been that it centralised regulatory efforts with Central Wetlands Regulatory Authority and the State Governments. Needless to state, the success of such authorities is as effective as the importance accorded to them politically (which has largely been weak, or absent)⁶, and the extent of administrative and research support extended to them (mostly absent). Besides, Authority recommendations are worth the paper they are printed only if there is sufficient monetary resource allocated to implement them, which, for the most part, has been absent.
   
   d) Expectedly, 2010 Rules were rarely implemented and it took a Public Interest Litigation filed in 2015⁷ before the Principal Bench of the National Green Tribunal to reveal how weak the enforcement has really been. State Government responses to the petition (not all States have filed) reveal, for instance, that very little has been done to protect wetlands and wetland complexes in the past six years under the Wetland Rules 2010. The affidavit filed by MoEF&CC affidavit reads, in fact, more like an apology packaged as a report of compliance. Initiatives taken way back in the early 2000s, such as the National Lake Conservation Programme, are listed as achievements prospective to the 2010 Rules! Even controversial legislations, such as the Manipur Loktak Lake Protection Act, 2006⁸ or the Karnataka Lake Conservation and Development Act, 2014⁹, have been cited as successful outcomes of the Wetland Rules 2010, when really they are not.
   
   e) If there is any case for reform, then it is in attending to the gaps in the Wetland Rules 2010. Not, as is now the case, coming out with a new set of Wetland Rules that comprehensively defeats the very intent and purpose of the 2010 Rules. The 2016 proposal, in fact, promotes,a laissez faire approach to wetland conservation and drastically reduces the protection now available to wetland ecosystems per the 2010 Rules. If the 2016 Rules are brought into effect, it can only precipitate disastrous conversion of wetland complexes to building and other activities, as almost all the safeguards that now exist have been removed. Besides the scope of protection accorded to wetland ecosystems and complexes has also been comprehensively reduced.

1. Constitution of India mandates democratic planning and conservation of environmental resources, such as wetland ecosystems:
   a) Both in the prevailing 2010 and proposed 2016 Wetland Rules, there is absolutely no recognition of the very specific Constitutional mandates vesting protection, conservation and wise use of environmental resources, such as wetlands, in the care of Local Governments, a constitutionally mandated tier of governance closest to the people.
   
   b) If we review Schedule 11 of the Constitution of India, Minor irrigation, water management and watershed development (item 3), Fisheries (item 5), Drinking water (item 11) and Maintenance of community assets (item 29, most wetland ecosystems are community assets), are listed as items of governance relating to ecological services extended by wetlands that are to be governed by Panchayat Raj Institutions¹⁰. A review of Schedule 12 of the Constitution of India reveals that Urban planning including town planning (item 1), Regulation of land-use and construction of buildings (item 2), Planning for economic and social development (item 3), Water supply for domestic, industrial and commercial purposes (item 5), Public health, sanitation conservancy and solid waste management (item 6) and Urban forestry, protection of the environment and promotion of ecological aspects (item 8) are listed as items of governance that have to be shaped by Nagarpalika Institutions.

c) The Constitutional 73^rd Amendment (Nagarpalika) Act, 1992 (of which the 11^th Schedule is a part) and the Constitutional 74^th Amendment (Nagarpalika) Act, 1992 (of which the 12^th Schedule is a part) are laws that were unanimously passed by the Parliament of India.¹¹ A key feature of these groundbreaking laws is that land use and environmental planning, including conservation and management of wetlands, must be the outcome of the democratic planning functions of Local Governments, with oversight from the State. This is in addition to the laws guaranteeing consistent and democratic functioning of Local Governments. In fact it is required per Article 243 ZD and ZE, provisions of the Nagarpalika Act constituting District and Metropolitan Planning Committees respectively, that these bodies must democratically plan and prepare District and Metropolitan Land use plans every five years.

d) In the preparation of the District Land Use Plan, largely intended at rural districts, the effort must be guided by comprehensively addressing “...spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation” (Article 243ZD). In the case of million plus cities, which are metropolitan areas, the Metropolitan Planning Committees need to prepare Metropolitan Land Use Plans taking into consideration “....matters of common interest between the Municipalities and the Panchayats, including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation; ….the overall objectives and priorities set by the Government of India and the Government of the State” (Article 243 ZE). Both these plans would then have to be approved by the State and Central governments taking into consideration financial and other matters, such as compliance with environmental laws.

e) The pertinent issue that emerges as a result, when considering the import of Constitutional 73^rd and 74^th Amendment Acts, 1992, is that MoEF&CC cannot enact the Wetland Rules when that violate provisions of these Constitutional Amendments and/or promote agencies and functions that disharmoniously relate with Constitutionally empowered Local Governments and planning bodies. The Wetland Rules are, in effect, land use planning norms, and thus must only be enacted respecting the power and sanctity of District and Metropolitan Planning Committees; and not sidestepping or overcoming their roles.

1. Avoiding a catastrophe by engaging with Local Governments and Local Communities:
   a) Besides obvious violation of Constitutional mandates in the Wetland Rules, both prevailing 2010 and proposed 2016, the latter proceeds to dismantle the Central Wetland Regulatory Authority and shifts the burden to a State authority that is comprehensively bureaucratic with token representation of some “experts”. The Constitutionally guaranteed participation of Local Government representatives and community and expert bodies is comprehensively ignored.
   
   b) If we review various efforts to conserve wetland ecosystems and complexes across India, it is clear that most are a result of local community efforts, especially wetland dependent communities. In all of south India, all lakes and lake systems were built and survive because of local communities . If any damage has been done to them it is because of the horrendous lack of foresight in centralised State planning agencies; so far removed they are from ecological wisdom in their praxis that till recently wetlands were advocated for closure and reclamation for urban and infrastructure projects. The comprehensive disregard of scientific and traditional wisdoms by these undemocratic and centralised planning bodies, such as Delhi Development Authority, Bangalore Development Authority, Chennai Development Authority or Mumbai Development Authority, is evident in how they have encouraged urbanisation that extensively resulted in pollution and destruction of wetland complexes including even river systems. The result has been the extensive and intensive pollution of surface and ground water bodies that water security of most urban populations is critically threatened, and we already have reached a point when unaffordable technological interventions are demanded to provide drinking water to contain social unrest.
   
   c) The encroachment of wetlands has also resulted in the annual crisis of submergence of large parts of metropolitan areas: half of Mumbai was submerged by a day's record rain a decade ago, and last year it was Chennai's turn when it rained endlessly for days; in both cases it was established that the destruction of wetland ecosystems was what accentuated the flooding. Be it high altitude cities like Bangalore, or coastal cities like Kolkata, floods are increasingly frequent and that even in the slightest of rains; again caused by destruction of wetlands. In the National Capital Delhi, outrageous acts of destruction of wetland ecosystems has been encouraged recently in illegally allowing a massive social event on the Yamuna floodplains involving the participation of none less than the Prime Minister of India and Chief Minister of Delhi. Sri Ravi Shankar of Art of Living Foundation, which organised the event, mocked at the authority of National Green Tribunal which imposed a fine for this illegality and said he would rather go to jail than pay the Rs. 5 crore interim penalty for the ecological damage done. It is a different matter that his impunity was crushed by the Tribunal later and the fine was recovered. But it did raise portents that even Court directions advancing protection of ecologically sensitive ecosystems are wilfully ignored by powerful people. That would mean, laws evolved must also comprehend that the rich and powerful often get away with their illegalities, and thus should have sufficient teeth to prospectively intervene and mitigate such possibilities. The Wetland Rules 2010 or 2016, simply does not comprehend any such scenarios, and thus has no provision to defend ecosystems and associated human rights from such damages, which often are irreversible.
   
   d) In rural India, the problem of protecting water bodies and wetland systems is increasingly getting worse. This is largely due to the systematic neglect, lack of support and disregard for local community traditions and institutions that built, conserved and managed wetland complexes to harvest rain and surface water flows to support farming, pastoral and other socially productive economic activities. The traditional wisdoms that were honed over centuries to protect, conserve and wisely use water and wetland systems, has now become victim to a pernicious cycle of floods and droughts that compete to destroy life and livelihoods, while seriously eroding ecological and economic security of present and future generations.

1. Way forward:
   a) It is being increasingly acknowledged in recent times that the lack of water security that confronts urban and rural populations in India is primarily a result of the neglect of wetlands and wetland complexes. As water factories and biodiversity rich zones, wetlands provide a range of food, ecological and economic securities. These cannot be appreciated unless local community dependencies and relationships with wetland ecosystems are acknowledged. Be they fishing communities in coastal areas, the floating communities in Loktak lake or the high reaches of Himalayas as in Dal Lake, the cultivation of floodplains of mighty rivers such as Brahmaputra or the Ganges, or the intense use of deltaic regions of Godavari, Mahanadi and Cauvery, and the multitudinous usages of the backwaters of Kerala, conservation and management of such wetland complexes are best achieved only when we allow for bottom up planning and management as guaranteed in the Constitution. This is also true for urban areas.
   
   b) What we have been witnessing in recent decades, instead, are reactive approaches to tackle water crises resulting from the loss of wetland complexes. This has mostly taken the form of promoting super mega projects for relief, such as inter-linking of rivers, which are ecologically outrageous propositions, engineering nightmares and most certainly the greatest economic and social disasters proposed. It is true that the Supreme Court of India has in its momentary lapse of reason mandated inter-linking of rivers as a solution to the pernicious cycle of droughts and floods. But ecological prudence and political and economic foresight demands such ideas be subjected to processes of democratic debate and dissent as mandated in the Constitution.
   
   c) Radically different approaches to relating with water and water systems as living resources could evolve only if we abandon our prevailing approach of treating water as a commodity to be transferred, privatised and consumed, and wetlands as systems to be dumped into insacrilegiously. With such transformation in our approach and attitude we can ensure not only water security, but also food, health, ecological and even economic security for present and future generations. Such a reality would bring us back to relating with water as a sacred resource flowing through living mountain springs, rivers, lakes, tanks and ponds, creating water bodies clean enough not only for a swim but to drink from as well. In such living systems, we could enjoy uninterrupted the company of migratory birds visiting us from the Eurasian and Siberian regions, even as we benefit wisely from the multitudinous ecological services that the complex, biodiversity rich wetland ecosystems and complexs have to offer.
   

d) The necessary prerequisite for all this will have to be to the democratic and participatory evolution of a National Wetland Policy, in which local communities, local governments, expert bodies, and all related state and central agencies are meaningfully consulted. The Wetland Rules that would result from this process will most certainly be practical, reflective of peoples aspirations, contain achievable goal-sets, and will also be democratically progressive as it would comprehensively minimise and mitigate conflicts. Besides, such a law would encourage the diverse peoples of India to enthusiastically participate in conservation of wetland ecosytems, and care for its biodiversity and life support systems.

Sir, such an India is in the realm of possibility. This does not demand clairvoyance. All it requires is to submit ourselves to the promises and guarantees made in the Constitution of India, that the peoples of India should be allowed to protect, conserve and manage environmental resources through their active and democratic efforts. Bringing this possibility into reality is a responsibility you now shoulder. And I do wish you will not disappoint us.

Yours faithfully,

Leo F. Saldanha

Coordinator

Environment Support Group

(This submission has been prepared with inputs from Shashikala Iyer, Bhargavi S. Rao, Abhayraj Naik, Nikhita L. and others from Environment Support Group.)

Cc.:

Prime Minister of India and Ministers of the Union Government

All State and Union Territory Governments

Ramsar Convention Secretariat

Media and the wide public