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By Kannan Kasturi The 1991 CRZ regulations did put the brakes on indiscriminate development of coastal areas. Now the environment ministry’s draft Coastal Management Zone notification of May 2008 threatens to undermine the law and bring in changes in coastal land use for so-called ‘development’
Plans are on to develop low-cost housing on 2,167 hectares of saltpans in Mumbai that are presently under the control of the salt department, a wing of the central government. At a recent meeting of a high-powered group of ministers, it was decided that “efforts of various central and state agencies be coordinated and urgent measures evolved for using these lands for rehabilitation of slumdwellers” (Financial Express, May 29, 2008). The land freed from the existing slums would be divided up for private real estate and public infrastructure projects. One of the ‘urgent measures’ needed to make this possible is a change in the environment protection regulations governing coastal land use -- these regulations, as applied to Mumbai, prohibit development in all but 240 hectares of the saltpan lands in question. The change is already underway. The Ministry of Environment and Forests (MoEF) made public a draft Coastal Management Zone notification in May 2008 that will replace the current coastal regulations with a far more permissive regime allowing changes in coastal land use such as that planned for Mumbai’s saltpans. Regulating the coast The genesis of coastal regulations in India may be traced back to the United Nations Conference on the Human Environment held in Stockholm in June 1972, which was attended by then Prime Minister Indira Gandhi. The Environment Protection Act (EPA) 1986 was enacted to implement decisions taken at this conference to which India was a signatory. The Coastal Regulation Zone (CRZ) notification of 1991 was made under the provisions of the EPA with the purpose of preserving the coastal environment, in particular ecologically fragile areas, by regulating land use all along the coast. The CRZ notification defined the area to be regulated -- the coastal zone -- as a strip of land along the coast extending 500 m inland from the high-tide line and including the area uncovered by the sea during low tide. Lands next to bays, estuaries, rivers and other waterbodies that were influenced by tidal action were also included in the coastal zone. The coastal zone was further broken up into different categories based on the level of protection required. Ecologically sensitive areas such as mangroves, coral reefs, breeding and spawning areas for marine life, and areas of great natural beauty were deemed to need maximum protection and were categorised as CRZ-1. Areas already urbanised and substantially built up, such as metropolitan areas and town municipalities, were categorised as CRZ-2. The rest of the mainland coast was categorised as CRZ-3, and this included rural settlements. The last category, CRZ-4, was reserved for island territories such as the Andaman and Nicobar Islands. CRZ-1 zones were to be kept free of any new development up to the 500 m high-tide line. Urban communities in CRZ-2 zones were prohibited from expanding on the seaward side of their existing limits and from increasing the density of habitats within the zone. In CRZ-3 zones, the area within 200 m of the high-tide line was to be maintained as a ‘no development zone’. New development could take place only in the area between the 200 and 500 m lines in CRZ-3 zones, and even then was restricted to industries requiring a waterfront or foreshore such as tourism, ports and harbours and requiring clearance from the MoEF. These were the broad features that the 1991 regulations started with. Importantly, the regulations recognised the right of coastal communities engaged in traditional occupations such as fishing and agriculture to continue to use coastal spaces to live and work in. Though India’s coastal fishing communities have been living and fishing in these areas for hundreds (if not thousands) of years, they have treated the fishing waters and the land required to beach their craft, process catch and repair their nets, as common property resources. Their rights to use these spaces are based on tradition and custom rather than on legal or administrative sanction. Lack of legal rights to the land makes these communities extremely vulnerable in the face of the development plans of local or state governments; they can be treated as encroachers on government land and displaced without any compensation and without recourse to legal protection. While coastal regulation has clearly been prompted more by ecological consideration than concern for the traditional inhabitants of the coast, the reference to “traditional rights and customary uses” of existing coastal villages was welcomed by organisations like the National Fishworkers Forum that represented coastal fishing communities. The 1991 coastal regulations enjoined state governments to come up with Coastal Zone Management Plans (CZMP) that would clearly categorise the coast into various zones before February 1992 and to get central government approval for these plans. Plan implementation was to be the state governments’ responsibility. Undermining the law But coastal states were in no hurry to come up with their plans. They were clearly unhappy with the loss of discretionary powers (and the attendant privileges) with respect to deciding land use along the coast. The disinterest of state governments, even the central government, in implementing the law was exposed in several landmark cases in the Supreme Court between 1993 and 1996. In a public interest litigation (PIL) (Indian Society for Enviro-legal Actions vs Union of India, 1996), the petitioner sought the court’s help in getting the government to implement the coastal regulations. The Supreme Court was convinced that governments, both Union and state, were tolerating coastal regulation violations that were being carried out with impunity. On discovering that coastal states did not even have CZMPs, and after making strenuous attempts to get coastal states to file their plans, the court set a deadline for their submission. Under pressure, the various state governments finally submitted their plans that were approved by the central government in 1996, subject to certain conditions and modifications. The states were asked to submit revised plans. A government answer to a question in Parliament in 2006 revealed that no state had yet submitted the required revised plans! Another Supreme Court case (S Jagannath vs Union of India, 1996) highlighted the effects of polluting industries on fragile coastal ecologies and coastal populations dependent on natural resources. Through a PIL, the petitioner sought a halt to intensive and semi-intensive shrimp farming in ecologically fragile coastal zone areas. While hearing the case, the Supreme Court asked the National Environmental Engineering Research Institute (NEERI) to carry out a field investigation on commercial shrimp farms in ecologically fragile areas of Tamil Nadu, Andhra Pradesh and Pondicherry, within the coastal zone. A 1995 field investigation by NEERI scientists made some startling revelations. They reported indiscriminate destruction of mangrove areas in and around creeks, estuaries and the sea, as well as destruction of natural casuarina plantations and sand dunes. Ecologically unsound practices in aquaculture farms had resulted in salinity in the neighbouring agricultural lands, loss of potable water sources, loss of landing grounds for traditional fishermen, loss of fish catch, and damage to the fishing nets of traditional fishermen. Large commercial aquaculture farms had fenced in their farms, giving fishermen limited access to the sea. The creeks had been polluted and their ecosystems damaged with wastewater from the aqua farms. Fishermen reported, and the team observed, the disappearance of native fish species from creek waters. Pollution from the aqua farms was causing skin and eye irritations and waterborne diseases in people living nearby. Talking about the effects of the industry on local residents, the scientists observed: “Employment avenues of the contiguous population have considerably reduced due to commercial aquaculture farming. The unemployed villagers are seeking employment in nearby towns and cities. Owners of the commercial aquaculture farms are using various means to encroach on government land and are also forcing agricultural landowners/salt-making villagers to sell their lands. In addition, the fishermen are being forced to migrate to other coastal areas.” Another NEERI team that visited Orissa highlighted the need to abandon or review World Bank-aided projects and commercial shrimp farms in and around the Chilka lagoon and the Bhitar Kanika wildlife sanctuary, which were violating CRZ regulations. In its judgment in 1996, the Supreme Court determined that the shrimp culture industry was in violation of the coastal zone regulations. It ordered all aquaculture industries operating in the coastal zone to be demolished and compensation paid to people affected by their operations as well as for damage to the environment in accordance with the ‘polluter pays’ principle. It also prohibited shrimp farms within 1,000 m of Chilka and Pulicat lakes, considering these to be precious ecosystems. Following the Supreme Court judgment, the government set up an Aquaculture Authority in 1997 to regulate new aquaculture farms and implement the court’s directions with respect to the closure of aquaculture farms found violating coastal regulations. However, a few months after its constitution and after the deadline for closure of the farms had expired, its charter was changed and responsibility for closing down farms that were violating coastal regulations taken away. Have these measures been effective in controlling the destruction of the coast? Food and Agriculture Organisation (FAO) studies of mangroves in the Godavari delta showed that mangroves were shrinking between 1997 and 1999 and were being replaced by shrimp ponds, as was earlier. Subversion of the law was obviously continuing. The shrimp industry was not the only industry lobbying against the coastal regulations. No less than 19 amendments were made to the CRZ notification in a space of 17 years, mostly diluting the prohibitions in response to various pressure groups and lobbies. ‘Non-polluting’ industries (the IT and service industries) that were part of Special Economic Zones (SEZ) were permitted in the coastal zone. The ‘no development’ zone of the CRZ-3 was diluted to allow development for SEZs, ports, mining, exploration for oil and natural gas, etc. Tourism-related development was allowed within 50 m of the high-tide line in the Andaman and Nicobar Islands. In spite of these dilutions and the readiness of governments to overlook violations, the 1991 CRZ regulations did put the brakes on indiscriminate development of coastal areas. The Dahanu coast in Maharashtra, considered one of the most ecologically fragile areas, was declared a CRZ-1 zone in 1991. In 1998, a plan to construct a port in Dahanu by P&O Australia Ports ran foul of the coastal regulations. The Dahanu Taluka Environmental Protection Authority, set up under Supreme Court orders, declared the port illegal and impermissible. The port project has at least temporarily been thwarted. So too were plans to build on Mumbai’s saltpans. Redefining coastal zones
Mounting pressure on the MoEF to justify various aspects of the coastal regulations led to the appointment, in 2004, of a committee of scientists headed by Dr M S Swaminathan to review the CRZ regulations. In its recommendations, in 2005, the committee listed basic principles (all impeccable) that must guide the management of coastal zones. It advocated an integrated approach to coastal zone management with the objective of “protecting the coastal zone with people’s participation, the livelihood security of the coastal fisher and other communities and the ecosystem which sustains the productivity of the coastal areas while promoting sustainable development”. A significant recommendation of the committee was to move away from the fixed 500 m (from the high-tide line) coastal zone landward boundary to a variable boundary based on the vulnerability of the stretch of coast to coastal hazards. The ‘vulnerability line’ or ‘setback line’ would be determined using scientific criteria such as topography of the coast, sea level trends, erosion, etc. Another significant change was to include coastal waters up to 12 km within the ambit of coastal management. The area of the coast up to the vulnerability line on the landward side and up to 12 km into coastal waters -- the new extent of the coastal zone -- was to be regulated. The committee also suggested changes to the boundaries of the coastal zone categories based on management convenience. The different categories were termed Coastal Management Zones (CMZ). Ecologically significant areas were to be categorised as CMZ-1 (earlier, CRZ-1) and would contain all areas up to their natural boundary on the landward side rather than bounded by the 500 m line. Coastal town municipalities were to be categorised as CMZ-2 (earlier, CRZ-2) and contain all areas within their administrative boundaries. All areas of the coastal zone not already part of CMZ-1 and CMZ-2 would be part of CMZ-3 (earlier, CRZ-3). This would be bounded by the ‘vulnerability line’ on the landward side and include the coastal sea up to 12 km. The proposed new approach to coastal management by the Ministry of Environment and Forests cites the Swaminathan Committee recommendations as its basis. It fleshes out the activities in the different management zones recommended by the committee and provides guidelines for preparing their management plans. It is these details that reveal some of the objectives of the new regulations. Highlights of the proposed new regulations A major shift in the new regulations is that they refrain from defining activities or industries that are to be prohibited in coastal zones. Instead, they allow state governments to identify part of the coast as an ‘economically significant area’ and locate industry on it after getting an ‘integrated coastal zone management plan’ for the area approved by the central government. Such areas are also categorised as CMZ-2, along with urbanised areas such as coastal municipalities. Examples of such areas are: sites for mining, tourism, industrial estates, foreshore facilities for Special Economic Zones, power plants and greenfield airports; however the notification makes it clear that this is only an indicative list. While management plan guidelines are laid down for coastal municipalities and coastal panchayats, for land use, the notification does not seem to prescribe any guidelines for the management plans of ‘economically significant areas’. What happens to the traditional rights and customary use of a local community if an area is notified as an industrial estate or an SEZ by a state government? How is land use to be regulated in a greenfield project? Questions abound. The new regulations legalise violations of the current law. The guidelines for coastal municipalities and those for CMZ-3 zones accept all structures that are already in place even if they have violated the current law. The practice of introducing amendments to accommodate special interests also continues. The draft notification itself was amended within a few days to allow greenfield airports in coastal zones, even if the area has been classified as ecologically fragile! And of course, for Mumbai the new regulation holds the promise of freeing land for real estate development. Flexibility in defining the ‘vulnerability line’ that bounds the coastal area to be regulated is widely expected to be used to move the saltpans out of coastal regulatory controls. Conclusion The government, while proposing a new approach, has not offered an explanation for why the current regulations cannot be enforced, even whilst acknowledging ‘continuing difficulties’ in implementing them. Neither has any reason been given as to why there will be better compliance with the new framework in place. The new framework shows a clear shift away from the objective of conservation and protection of the coast to the agenda of its ‘sustainable development’ by opening it up for ‘economically significant’ activities. Of course this agenda is to be pursued “taking into account” conservation of ecologically significant resources and the livelihood interests of local communities. Given the history and practice of government coastal regulation over the last 17 years, there is little reason to expect either. (Kannan Kasturi is an independent researcher and writer on law, policy and governance) InfoChange News & Features, August 2008 |
