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Coastal regulations flip-flop

The Coastal Regulation Zone (CRZ) notification of 1991 was enacted to preserve the coastal environment by regulating land use all along the coast. But, says Kannan Kasturi, various interest groups have succeeded in pushing through amendments that ride roughshod over the rights of coastal communities to the lands and waters they have used for centuries as common property resources. Now, finally, the 1991 regulations have been reaffirmed

The genesis of coastal regulations in India can be traced to the United Nations Conference on the Human Environment, held in Stockholm in June 1972, and 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, and in particular, ecologically fragile areas, by regulating land use all along the coast.

The CRZ notification defined the area of coast to be regulated -- the coastal zone -- as a strip of land along the coast extending 500 m inland from the high tide line, including areas 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 and practicable. Ecologically sensitive areas such as mangroves, coral reefs, breeding and spawning areas for marine life, and areas of great natural beauty were deemed to require maximum protection and were categorised as CRZ 1. Areas that were already urbanised and substantially built up, such as metropolitan areas and town municipalities, were categorised CRZ 2. The rest of the mainland coast was categorised 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 m and 500 m lines in CRZ 3 zones, and was restricted to industries requiring a waterfront or foreshore, such as tourism and ports and harbours, and required clearance from the Ministry of Environment and Forests (MoEF).

These, broadly, were the features that the 1991 regulations started with. Most importantly, the regulations recognised the right of coastal communities engaged in traditional occupations such as fishing and agriculture, to continue using these coastal spaces to live and work in.  

A few words are in order here about coastal fishing communities. These communities have been living and fishing in the same areas for hundreds if not thousands of years, and treating their fishing waters and the land they use to beach their craft, land and process their catch, and repair their nets, as common property resources. Their rights to use these spaces are based on tradition and custom rather than legal or administrative sanction. The absence of legal rights to the land makes them extremely vulnerable in the face of local or state government development plans; they can be treated as encroachers on government land and displaced without any compensation and without recourse to legal action.

While the coastal regulation was clearly prompted more by ecological considerations than concern for the traditional inhabitants of the coast, the reference to ‘traditional rights and customary use’ of existing coastal villages in the regulation was welcomed by organisations such as the National Fish Workers Forum that represented the coastal fishing community. 

The 1991 coastal regulation enjoined state governments to come out with Coastal Zone Management Plans (CZMP) that would clearly categorise the coast into different zones before February 1992, and to get central government approval for the plans. Plan implementation was to be the responsibility of state governments. 

Undermining the law 

Coastal states, however, were in no hurry to come up with coastal 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 the course of 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 at the Centre and the states, were tolerating violations of the coastal regulations that were being carried out with impunity. On finding that coastal states did not even have a CZMP, and after making strenuous attempts to get coastal states to file their plans, it set a deadline for their submission. State governments were therefore forced to submit their coastal plans. The central government approved these plans subject to certain conditions and modifications in 1996, and asked the states to submit revised plans. A government answer to a question in Parliament revealed that no state had submitted the required revised plans as of 2006!  

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. The petitioner, through a PIL, sought to stop intensive and semi-intensive shrimp farming in ecologically fragile coastal areas. While hearing the case, the Supreme Court asked the National Environmental Engineering Research Institute (NEERI) to conduct a field investigation on commercial shrimp farms in ecologically fragile areas in Tamil Nadu, Andhra Pradesh and Pondicherry, within the coastal zone.  

The 1995 field investigation by NEERI scientists came up with startling revelations. They reported indiscriminate destruction of mangrove areas in and around the 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 neighbouring agricultural lands, loss of potable water sources, loss of landing grounds and fish catch, and damage to the fishing nets of traditional fishermen. Large commercial aquaculture farms had built fences in and around their farms, resulting in blocking of free access by fishermen to the sea shore. The creeks had been polluted and their ecosystems damaged with wastewater discharged from the aqua farms. Disappearance of native fish species from water in the creek had been reported by fishermen and was observed by the team. Pollution from aqua farms caused skin, eye and waterborne diseases in the local population.  

Talking about the effects of the industry on 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 upon government lands and also forcing the 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 found the need to abandon or review World Bank-aided projects and commercial shrimp farms in and around Chilika lagoon and the Bhitar Kanika Wildlife Sanctuary that were found to be violating CRZ regulations. 

In its 1996 judgment, the Supreme Court determined that the shrimp culture industry was violating coastal zone regulations. It ordered all aquaculture industries operating in the coastal zone to be cleared and compensation paid to persons affected by their operations, as well as for the damage they had caused to the environment, in accordance with the ‘polluter pays’ principle. It also prohibited shrimp farms within 1,000 m of Chilika and Pulicat lakes, considering these to be ‘precious ecosystems’. 

Following the judgment, the government set up an Aquaculture Authority in 1997 to regulate new aquaculture farms and implement the Supreme Court directions with respect to closure of aquaculture farms that were violating coastal regulations. However, a few months after its constitution and after the deadline for closure of aquaculture farms had expired, its charter was changed and it was shorn of responsibility for the closure of existing aqua farms that were violating coastal regulations.  

Were all these measures effective in controlling the destruction of the coasts? Food and Agriculture Organisation (FAO) studies on mangroves in the Godavari delta showed that the area under mangroves shrank between 1997 and 1999 and continued to be replaced by shrimp ponds. Subversion of the law was obviously still going on.  

The shrimp industry was not the only industry lobbying against 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 (a euphemism for IT and service industries) that were part of Special Economic Zones (SEZs) were permitted in the coastal zone. Rules for the ‘no development’ zone CRZ 3 were diluted to allow development related to SEZs, ports, mining, exploration for oil and natural gas, and other purposes. Tourism-related development was allowed within 50 m of the high tide line in the Andaman and Nicobar Islands.

In spite of all these dilutions and the readiness of governments to overlook violations, the CRZ regulation of 1991 did put the brakes on indiscriminate development of coastal areas. The coast of Dahanu, 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 afoul of coastal regulations. The Dahanu Taluka Environmental Protection Authority, set up under Supreme Court orders, declared the port illegal and impermissible. The project was shelved, at least temporarily. So also were plans to ‘develop’ Mumbai’s saltpans. 

Scientific criteria for areas to be regulated  

The MoEF has been under mounting pressure to change the coastal regulations, with a brief to “promote development without hampering the environment”. A committee of scientists and academics, headed by Professor M S Swaminathan, was appointed in 2004 to review the CRZ regulations in light of all the problems faced by the MoEF in implementing them. In its recommendations, the committee, in 2005, identified basic principles (all impeccable) that must guide the management of coastal zones. It advocated an “integrated approach to coastal zone management” that had the objectives 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”. 

The most 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. (It must be remembered that it was during this committee’s tenure that the terrible tsunami of December 2004 devastated coastal settlements in Tamil Nadu, Kerala and the Andamans.) The vulnerability line, or setback line, was to be determined using scientific criteria such as coastal topography, sea level trends, erosion, etc. Another significant change was to include coastal waters up to 12 km from the shoreline within the ambit of coastal management. The area of coast up to the vulnerability line on the landward side, and up to 12 km into the sea from the shore -- the new extent of the coastal zone -- would be regulated.  

The committee also suggested changes to the boundaries of coastal zone categories based on management convenience. The different categories were termed Coastal Management Zones (CMZs). Ecologically significant areas were to be categorised as CMZ 1 (earlier CRZ 1) and were to 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 also include the sea up to 12 km offshore. Island territories such as the Andaman and Nicobar Islands, Lakshadweep, and other offshore islands would constitute part of CMZ 4 (earlier CRZ 4). 

Pushing for ‘sustainable development’ 

With this groundwork in place, the Ministry of Environment and Forests (MoEF) unveiled its proposals for new coastal regulations in the form of a draft Coastal Management Zone notification, between May and July 2008. The Swaminathan Committee recommendations were cited as the basis for the new regulations. The draft notification fleshed out permitted activities in the various coastal management zones and set guidelines for preparing their management plans.

The real objectives of the proposed regulation were revealed more clearly in the details. 

The area of coast to be looked at from the perspective of conservation -- earlier, a 500 m-wide strip along the entire coast -- was pared down to ‘ecologically sensitive areas’, categorised as CMZ 1. Populated areas along the coast -- municipalities and panchayats -- would be regulated for development on the seaward side of the setback line (earlier, the entire coastal strip with a width of 500 m), with the main consideration being the safety of populations. There was no blanket ban on locating industry on the coastal strip. On the contrary, state governments could identify part of the coast as an ‘economically significant area’ and permit industry or infrastructure on it after getting an integrated coastal zone management plan for that area approved by the central government. Such areas were also categorised as CMZ 2 along with urbanised areas. Examples of such areas cited were: sites for mining, tourism, industrial estates, foreshore facilities for special economic zones, power plants and greenfield airports. The notification made it clear that this was only an indicative list.

While guidelines were laid down for land use management plans for coastal municipalities and coastal panchayats, the notification did 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 the state government notifies an area as an industrial estate or an SEZ? How is land use to be regulated in a greenfield project? Questions remained. Likewise, there were no clear and definitive guidelines for CMZ 4 areas, island territories.

What’s more, the proposed regulation legalised previous violations of the law. The guidelines for coastal municipalities and those for CMZ 3 zones accepted all structures that were already in place even if they had violated the existing law. The practice of introducing amendments to accommodate special interests also continued. The draft notification first issued in May 2008 was itself amended within a few days to allow greenfield airports in the coastal zone, even in an area considered ecologically fragile!  

For Mumbai, the new regulation held the promise of freeing lands for real estate development. With the vulnerability line defining the bounds of the coastal area to be regulated, it was widely expected that several thousand acres of saltpans would be moved out of coastal regulatory control. 

The proposed new framework showed a clear shift away from the objective of conservation and protection of coasts to the agenda of its ‘sustainable development’, by opening it up for ‘economically significant’ activities. Of course, this agenda was to be pursued ‘taking into account’ conservation of ecologically significant resources and the livelihood interests of local communities… 

Temporary reprieve 

The 2008 proposals were opposed by fish workers, environment groups, the governments of eight coastal states, and even a parliamentary committee looking into the matter. After the 2009 elections, the government set up another committee, again under Professor Swaminathan, to examine the proposed regulation. The committee took just a month to come up with the recommendation of retaining the 1991 regulation, with amendments to take care of various interests. The following extract from the committee report makes interesting reading: 

“There is… most importantly, a basic uncertainty about the demarcation of the setback line… Without a clear setback line, even private developers who prefer the management regime of CMZ are not clear how they will be impacted… It is evident from discussions that however ‘unscientific’ the present demarcation based on 500 metres is, it is preferred because it is time-tested and clearly understood.” 

The government, quickly accepting the committee’s recommendations, has allowed the 2008 draft CMZ notification to lapse, as of July 2009. What happens to the Maharashtra government’s long-standing plan of relocating slum-dwellers to the saltpans so as to make available some of the world’s most expensive land in the heart of Mumbai for development? Has the government taken back the CMZ draft merely because it was a shoddy job that did not please “even private developers”? Time will tell.

(Kannan Kasturi is an independent researcher and writes on law, policy and governance 

Infochange News & Features, April 2010