How Coastal Law Was Diluted After Closing It For Public Input

New Delhi: The Ministry of Environment, Forest & Climate Change (MoEFCC) made key dilutions in the law that regulates land use along India’s coastline after its draft was closed for public input, an IndiaSpend investigation shows. These dilutions in the Coastal Regulation Zone Notification, 2019, allowed for future easing of building restrictions in coastal cities and the development of airports in the ‘wastelands’ of coastal villages.

Documents accessed exclusively through a Right to Information application by IndiaSpend show that these changes made to the draft were intensely debated within the ministry and discussed at the level of the Prime Minister’s Office (PMO). The dilutions related to the:

• Future possibility of intensifying construction activity in urban coastal areas
• Development of airports in wastelands/non-arable lands in rural coastal areas.

The CRZ Notification 2019 issued last year had ignored over 90% of representations objecting to the draft law, IndiaSpend reported in February 2020. The ministry had reasoned that the Shailesh Nayak Committee set up in 2014 to review the law had already addressed public concerns. Our story showed that the committee had consulted only the governments of coastal states and union territories and had not sought public inputs.

However, we have found that the environment ministry not only ignored the public inputs, but also added several fresh provisions to the final law that were not present in the draft. These new provisions could alter rural and urban spaces in coastal areas and threaten traditional coastal occupations and preparedness for climate change-induced disasters, experts say.

(Find the list of comments as compiled by the MoEFCC here.)

Urbanisation and developments closer to the sea increase the threat of floods manifold for an already vulnerable coastal population of about 36 million, we had reported. The future of many marginalised traditional communities is linked to the disaster-preparedness of the coasts, IndiaSpend reported in October 2019.

The dilutions made in the law, besides adding to environmental vulnerability and jeopardising the livelihood security of traditional coastal dwellers, are also pertinent from the viewpoint of policy making, especially at a time when a new law on Environmental Impact Assessment (EIA) is open for public inputs, said experts.

IndiaSpend emailed a set of questions to the joint secretary, CRZ, MoEF&CC, six months ago and followed up with another email and three phone calls requesting an explanation for why changes were made to the law after the draft was closed for public input. No reply was received. The story will be updated when a response is received.

Bypassing public scrutiny

More than 10 amendments were made to the CRZ 2011 law, and more than 30 amendments to the EIA Notification 2011--without the mandatory public notice. Even when the draft policies were opened up for scrutiny, public opinions were ignored, as demonstrated in the case of the CRZ.

The draft, issued in 2018, had suggested eco-tourism activities in ecologically sensitive parts of the coast, intense development in urban areas and reduction in development restrictions for dense rural areas. Fisherfolk along with environmentalists, NGOs, marine experts, urban planners and researchers had rejected the draft.

The timing of the draft’s issue came at a busy time--the traditional coastal communities were busy attending public hearings and highlighting the errors in the draft coastal zone management plans, which each state had drawn up district-wise to implement the CRZ Notification. These plans--and the land-use delineated in them--are the documents that regulators refer to while making developmental, regulatory and enforcement decisions for the coast. Fisherfolk needed to ensure that their villages and the spaces for parking boats and drying fish were correctly marked on the CRZ maps and plans.

But in January 2019, the MoEFCC finalised the draft and as it did so, it slipped in some significant changes, which further endangered the ecology, resilience and traditional livelihoods of the coast, as we mentioned earlier. And since these dilutions were added after the draft was closed for comments, the public did not get to review and comment on them.

Increased scope for overbuilding

Two measures, the Floor Space Index (FSI) and Floor Area Ratio (FAR), determine the total covered area including all floors vis-a-vis the total size of a property. In the 2011 law, these building development standards had been fixed to the 1991 level. The draft proposed to de-freeze them and apply the FSI/FAR ratio prevailing at the time of the notification for constructions and reconstructions in urban areas. This part did not change in the final notification, but a phrase was added to the effect that if a state/union territory seeks to alter these standards further, it could approach the Centre. The Centre would examine various aspects such as available “public amenities, environment protection measures, etc.” and make a decision.

An internal note signed by the then joint secretary, Ritesh Kumar Singh, on August 8, 2018, stated that the Shailesh Nayak Committee had recommended that local town and country planning regulations determine the FSI norms. It highlighted that the draft CRZ law implied that in future, the FSI/FAR would not be adjusted ‘automatically’ according to the local regulations. The note found merit in state governments’ grievances, particularly from Maharashtra, about the non-alignment of CRZ norms and local building regulations. It suggested that “prevailing as on the date of this notification” be replaced with “prevailing from time to time”. This, according to the note, would bring the notification in line with the Shailesh Nayak Committee report too.

However, Arun Kumar Mehta, the then additional secretary of the environment ministry, disagreed. In response to the note, he reasoned that the freezing of the FSI was required to ensure that coastal areas were not overpopulated “as they would be subject to extreme weather events/sea level rise, etc.” He added that although the norms were being relaxed now, the population on the coast still needed to be restricted. He provided two reasons for it: reducing vulnerable population and mitigating pollution levels. Thus he suggested that the clause should be linked with the date of the notification i.e. “freeze the FSI/FAR as on the date of notification”.

However, the issue could not get resolved till the end of August 2018. Harsh Vardhan, the then environment minister, found a middle ground: He suggested that while the notification freezes the FSI/FAR to 2019 level, a ‘rider’ could be added that if change is needed, state governments could approach the MoEF&CC through the coastal authorities. The final note with this change was approved by the Union cabinet at the end of 2018.

Dense urban development will come at a cost

Urban planning experts have pointed out in the past that in most cities, building bylaws and stipulations are being relaxed. Indiscriminate increase in urban constructions in Mumbai, for instance, compromises city’s preparedness against cyclones, which are likely to become more frequent, as IndiaSpend reported in June 2020. This is being done without any planning for infrastructure such as water supply, sewage disposal and open public spaces, and risks normalising poor living conditions and overcrowding residential spaces.

The fishing villages of Mumbai, called koliwadas, despite being located in an urban space, were granted CRZ III status by the 2011 law. It saved fishing communities from being “rehabilitated” in multi-storey buildings that, without basic amenities and infrastructure, were practically vertical slums. Now, that protection has been removed.

“The change of the CRZ category of the koliwadas of Mumbai from CRZ III (rural) to II (urban) in CRZ Notification 2019 was arbitrary,” said Shweta Wagh, associate professor at the Kamla Raheja Vidyanidhi Institute for Architecture and Environmental Studies, Mumbai. “It took away the protection granted by the law for traditional coastal settlements.”

The 2019 law not only stripped koliwadas of their protection, but by allowing the possibility of future increase in FSI and FAR, it also opened up a possibility of further risks for coastal communities. “The Development Control and Promotion Regulation 2034 of Mumbai links the permissible floor space index to road width and pushes for high-rise development,” said Wagh. “The possibility of further increase of FSI and FAR in urban areas will ensure that the urban renewal projects planned for Mumbai go on smoothly. But all this will alter the built fabric of the fishing villages and historic places such as the port lands or the BDD chawls which currently have low-rise buildings and less vulnerability to natural disasters.”

The Bombay Development Directorate (BDD)’s chawls consist of over 200 buildings constructed between 1921 and 1925 across Worli, Lower Parel, Naigaon and Sewri in Mumbai. In 2017 and 2018, the Maharashtra Housing and Development Authority signed contracts for redeveloping these areas. Over 750 ha of public land on Eastern Waterfront from Colaba to Wadala in Mumbai has been in the trusteeship of Mumbai Port Trust. Through a draft master plan for Mumbai Port Trust Complex, these port lands, which currently have large informal settlements including the Colaba koliwada, are being redeveloped. The redevelopment plan includes a satellite city equipped with a financial centre, hotel, commercial and residential complexes and a tourism centre.

Airports in coastal ‘wastelands’

In coastal belts, what gets marked as wastelands are river banks, salt pans, marshes and sand dunes that have a role in ground water recharge and protection against storms. These are highly productive areas with unique biodiversity and are a source of livelihoods.

The term ‘wasteland’ has its origin in the individual property rights regime, said Subrata Singh, programme director, Foundation for Ecological Security, a non-government organisation based in Anand, Gujarat, that works with communities to conserve natural resources. “The community use of such lands, which are the commons, is not recorded in government records since the colonial era.”

“With much of the flat lands in use for agriculture, common lands are far less available in coastal areas than in the hinterlands. However, some common land is reserved for future expansion and population increase,” Singh said. These commons have critical ecological functions as well, he added. “While their ecological significance and active use are not documented, a large population depends on their resources such as fish, firewood and fodder, and groundwater recharge,” he said.

The CRZ law of 2011 granted protection to such sites but lapses in the enforcement of the CRZ law in favour of infrastructure, tourism and real estate development led to large-scale coastal encroachments. Singh cited the example of Chennai where encroachment of several water bodies and ‘wastelands’ on the city’s outskirts has resulted in floods.

Construction of airports in coastal wastelands was not a permitted activity under CRZ 2011. It was not part of the draft that was released in 2018 either. In the final 2019 law, “development of airports in wastelands/non-arable lands” was added as a permitted activity in CRZ III (rural) areas.

In a November 2018 meeting at the PMO, in the presence of the principal secretary to the prime minister, ‘slight’ amendments in the draft CRZ notification were agreed upon, according to the documents accessed. One of these was the development of airports in wastelands in CRZ III areas “subject to environmental safeguards”.

The secretaries of multiple ministries were invited for the meeting--agriculture, tourism, shipping, road transport, petroleum and natural gas, mines, housing and urban affairs, earth sciences, atomic energy, water resources and the Department of Industrial Policy and Promotion. Secretaries/additional secretaries of these ministries attended the meeting.

The justification for the addition was that “the world over there are airports in coastal areas” and an airport as a ‘special dispensation’ in the CRZ area of Navi Mumbai had already been allowed in the 2011 law. Thus the note argued for uniformity in the notification as “special dispensations were being removed to the extent possible”.

As for the Navi Mumbai airport, the PMO is currently busy examining the ‘bird-hit’ threat due to destruction of wetlands and mangroves in and around the airport project, which indicates the problem with establishing airports close to so-called ‘wastelands’.

‘No attempt at public participation’

The CRZ overhaul carried out over the last five years has been undertaken in secrecy. However, the CRZ is not an exception, said Kerala-based policy researcher Arun P.S.. “There have been multiple such instances across policies: the Transgender bill, Electoral Bond Scheme and the CRZ,” he said. “Even for the currently open draft EIA 2020, there was no attempt on the government's part to translate the draft in regional languages to ensure greater public participation. In fact, genuine public inputs were compromised by release of the draft in the time of [a] global pandemic and national lockdown. CRZ overhaul is an indication of what’s in store for EIA.”

The MoEFCC published the Draft Environment Impact Assessment Notification dated March 23, 2020, in the official gazette on April 11. Initially, it had made the draft available for public inputs for two months as mandated by the law. However, due to public outcry about the bad timing, the deadline was extended to June 30. Subsequently, on an order of the Delhi High Court, the Centre was made to extend the deadline for public comments to August 11. The High Court of Karnataka ordered that the law be published in regional languages, and on August 5, restrained the Centre from publishing the final EIA Notification until September 7, as the translations of EIA 2020 in all 22 regional languages listed in the Eighth Schedule of the Constitution were not yet available.

(Kapoor is an independent researcher in environmental policy.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.