After ignoring repeated directions from the Supreme Court to notify stricter rules to protect the country’s wetlands, the Ministry of Environment, Forests and Climate Change has gone and done just the opposite. On September 26, it published the Wetlands (Conservation & Management) Rules, 2017 – replacing the older rules dating back to 2010. The new rules quite simply provide a framework to legalise the destruction of wetlands.

The new rules define a wetland as:

“An area 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 six meters, but does not include river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes.”

Draft rules that had been published for comment in March 2016 had drawn severe criticism from environmentalists and social activists. The new rules have not only ignored the objections that were then raised, some of their provisions are weaker than those contained in the draft. It is not often that one sees a law so at odds with the logic, objectives and spirit laid out in its preamble. By undoing the protection for India’s already threatened wetlands by playing with definitions, introducing caveats and provisos and shifting jurisdictions and decision-making powers, the ministry seems to have achieved its objective of easing the doing of business in these hydrologically sensitive areas.

While the Bharatiya Janata Party-led government has been centralising powers through several moves – the introduction of a nationwide Goods and Services Tax subsuming all state and Central levies being one such step – the wetland rules are couched in the language of devolving powers to the states. The new rules have done away with the National Wetlands Authority created under the 2010 rules and conferred all regulatory powers on the state governments. The Centre’s act of abdicating its responsibilities is made to look like a virtuous move to decentralise in the spirit of federalism.

If left unchallenged, the new rules will facilitate the legal exploitation and development of wetlands as real estate, industrial sites and garbage dumps. For a country battling droughts and floods caused by destructive land-use change – say, by changing agricultural lands to industrial use – and climate change, the new wetland rules will have disastrous consequences, especially since only bad environmental laws are diligently enforced.

Restricted, discretionary protection

The new rules also contain an amended definition of the term wetland, an example of how exploitation is facilitated in the guise of conservation. The 2010 rules and even the 2016 draft rules covered all wetlands, including man-made wetlands other than river channels and paddy fields. The new rules, however, exclude human-made water bodies and tanks specifically built for drinking water purposes and structures constructed for aquaculture, salt production, recreation and irrigation.

India’s wetlands are catalogued in the National Wetland Atlas prepared by the Ahmedabad-based Space Application Centre. The Atlas identifies a total of 201,503 wetlands covering 14.7 million hectares across the country. Areas under rivers and streams, pegged at 5.3 million hectares, are not covered under the wetland rules. Man-made wetlands – which number 145,641, or 72% of the total number, and are spread over 4.4 million hectares – are also excluded. In other words, the rules fail to cover 9.7 million hectares or 65% of the total area identified as wetlands by the government.

For states like Tamil Nadu where agriculture, drinking water security and drought and flood mitigation are almost entirely dependent on traditional engineered water harvesting structures such as eris and kanmais (irrigation tanks), the rules are worthless. Of the 24,089 inland wetlands identified in the state in the Atlas, 19,480 or 81% are human-made. What use is a law that fails to cover 81% of what it aims to protect?

Tamil Nadu depends on traditional water harvesting structures such as eris or man-made water tanks for its irrigation and drinking water needs and for drought and flood mitigation. (Credit: via India Water Portal)
Tamil Nadu depends on traditional water harvesting structures such as eris or man-made water tanks for its irrigation and drinking water needs and for drought and flood mitigation. (Credit: via India Water Portal)

Given what the rest of the rules say, it is unlikely that even the remaining 35% of India’s wetlands will get much protection. To qualify for protection under the new rules, a wetland needs to be a site of international importance listed under the Ramsar Convention – an international treaty for the conservation and sustainable use of wetlands – or a wetland notified by a state or Union territory government, or the Central government in the case of transboundary wetlands.

Under the old rules, in addition to Ramsar and government-notified wetlands, any high-altitude wetland larger than 5 hectares, or those at elevations less than 2,500 metres and spread over 500 hectares automatically qualified for protection. So did wetlands located in ecologically sensitive areas or areas recognised as or lying within UNESCO World Heritage Sites.

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.

The new rules, though, not only restrict protection to wetlands notified by the government, whatever little protection is offered is also discretionary. Section 4 of the rules lists a range of prohibited activities within notified wetlands. But a proviso allows the Centre to omit activities from this list if the State Wetlands Authority recommends it. Non-notified wetlands get no protection. Notified wetlands get protection only to the extent the state government thinks is necessary. If the state government wanted to earmark a portion of a notified wetland as a garbage dump, there is nothing in the rules to stop it from doing so.

This proviso renders meaningless the inclusion of a phrase lifted from the Ramsar Convention that restricts activities in protected wetlands to those that qualify as “wise use of wetlands”. In the convention and the new rules, this is defined as “maintenance of [wetlands’] ecological character, achieved through implementation of ecosystem approach within the context of sustainable development”.

Man-made wetlands such as paddy fields do not come under the purview of the wetland rules. (Credit: Narinder Nanu/ AFP)
Man-made wetlands such as paddy fields do not come under the purview of the wetland rules. (Credit: Narinder Nanu/ AFP)

Supreme Court holds out hope

However, all is not lost. At least, not yet. On October 4, the Supreme Court passed an order virtually staying the operationalisation of the new rules by clarifying that “in terms of our order dated February 8, 2017, 201,503 wetlands that have been mapped by the Union of India should continue to remain protected on the same principles as were formulated in Rule 4 of the Wetlands (Conservation and Management) Rules, 2010”. It also noted that petitioners had serious objections to the new rules and offered them leave to file objections.

In past orders too, the court has expressed concern about the state of the country’s wetlands and doubts about the ability of the state and Central governments to protect them.

As Himanshu Thakkar, a leading activist and researcher with the Delhi-based South Asia Network on Dams, Rivers and People, said, “More and more people from different states of India should implead in the Supreme Court case arguing against these dangerous rules and praying for rules that are truly capable of protecting our wetlands.”

Nityanand Jayaraman is a Chennai-based writer and social activist.