Law

Environmental Law
Regulation of Wetlands

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 QUADRANT-I (A) – PERSONAL DETAILS

Role Name Affiliation

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

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

• Andhra Pradesh: Kolleru lake

• Assam: Deepor Beel
• Gujarat: Nalsarovar bird sanctuary
• Himachal Pradesh: Chandra Taal, Pong Dam lake and Renuka wetland
• Jammu & Kashmir: Hokersar wetland, Surinsar-Mansar lakes, Tsomoriri and Wular
lake
• Kerala: Ashtamudi wetland, Sasthamkotta lake and Vembanad-Kol wetland
• Madhya Pradesh: Bhoj wetland
• Manipur: Loktak lake
• Orissa: Bhitarkanika mangroves and Chilika lake
• Punjab: Harike, Ropar and Kanjli
• Rajasthan: Keoladeo National Park and Sambhar lake
• Tamil Nadu: Point Calimere wildlife and bird sanctuary
• Tripura: Rudrasagar lake
• Uttar Pradesh: Upper Ganga river
• West Bengal: 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 Kolkata 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 East Kolkata Wetlands 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.