The State of Lakes and Waterbodies in South India

Threats, Challenges and Opportunities

Legal Protection in Tamil Nadu

by T.K. Ramkumar, Advocate

Chennai - A history of flooding1976: Heavy Flood Submergence in Adayar-

Kotturpuram TNHB Qtrs. Flood could not enter into sea due to High tide. Chembarambakkam Tank surplused into Adayar – 28,000 C/s

1985: Floods in Adayar - 63,000 c/s submergence of encroached flood plains

1996: Floods in Adayar, Cooum and Kosasthalaiyar Rivers Poondi Dam surplused around- 80,000 c/s Karanodai Bridge collapsed Chembarambakkam Tank surplused into Adayar – 20,000 C/s

1998: 3 persons Marooned in Thanikachalam Nagar - a residential colony in the flood plains of Kodungaiyur drain2005: 100 year RF 40 cm in a day, Flood in Cooum 19,000 C/S, Adayar 40,000 C/S, Otteri Nullah, Cooum, Adayar, B’Canal, Virugambakkam- Arumbakkam Drain over flown, 50,000 people evacuated. 2008: Chembarambakkam tank surplused into Adyar - 15,000 cusecs (Non flood year)

Source: STUDIES ON CHENNAI DRAINAGE SYSTEM – RIVERS, CANALS, CREEKS, ESTUARIES, LAKES. Dr. K.M. Sivakholundu 2010

Causes - urbanisation of water spread areas

1960s2015

Adayar drainage basin

Causes for flooding - narrowing of flood banks

Why has all this happened?

Inadequate legal frameworkto address such a complex hydrological

system

Even now, there is inadequate understanding of the cause of flooding and what is to be done …. a few slums are being relocated, which is like bailing the Titanic with a tea spoon… no attempt to address major obstruction to flow from high rises, airport

runway and commercial establishments

Half Basins from

Pulicate to

Kodikarai- a

complex system of rivers

and eris!

Even Pondy has so many rivers/streams,

to say noting of other waterbodies

Right to water• Historically a private right, as specie of land, such as

soil, water and marshes

• By its nature water is free to move and can pass in any direction…. right is only by way of access to water by land owner on river bank - known as riparian right

• restricted to use of water while it passes through

• Maybe a natural right (“Ex-jure naturae”) as part of the property right or may be acquired as easement

• Natural corollary to such natural right - subject to rights of adjacent owner and for benefit of the community

State Bank of India Vs. Lakshmanan Sekar - AIR 1960

Bombay 490Every owner of land adjacent to water running in a defined course - whether higher riparian owner or lower riparian owner - has a right arising jure naturae to the accustomed flow of water both as to quantity and quality. His right to the ordinary or primary use of water flowing past his land extends to domestic purposes including purpose of his cattle.

This he can exercise without regard to diminution of supply to lower owners. His right to extraordinary or secondary user can however be exercised only within limits. ……

Ground Water Rights• on ground water within a property, owner

had exclusive right, without limit as to quantity

• no bar on overexploiting ground water even to the detriment of neighbours

• this position modified by the Kerala high Court in Perumatty Grama Panchayat vs State of Kerala (the Coca Cola case) and by Ground water legislations.

Public Right• Governed by customary practice and common law

tradition, - traditional user rights of people over common property resources, some of which have been codified

• these rights in the nature of riparian and easementary rights extend over lakes, ponds etc.

• Sovereign right of state over natural resources governed by state’s “Eminent Domain” implying absolute rights - tempered by the “Public Trust” doctrine - implying state hold resources in loco parentis, for the common benefit of all.

• Thus water rights is a combination of customary practice, common law tradition, constitutional safeguards and statutory rights

Public Trust• The Doctrine of Eminent Domain is tempered by

Public Trust Doctrine

• State vis-a-vis its resources is one of “loco parentis” -

• Article 39 (b) & (c) of the Constitution ordains state to put to use its resources in an equitable and just manner - whose ownership and control over material resources are to subserve common good, importing the principle of “Public Trust”.

State of Tamil Nadu v. Hind Stone - (1981) 2 SCC 205

"6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Everv generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation."

Present legal framework

• Wetland (Conservation & Management) Rules 2010 under Environment Protection Act, 1986, - Ramsar Convention

• Water pollution Enactments -

• Ground Water legislations - Restriction only on capacity of water pump

• Legislation on construction/repairs/maintenance of irrigation in Tamil Nadu and levy of Cess

Wetland Rules2(g) ”wetland" means an area or of marsh, fen, 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 metres and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and the 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 covered under …. EIA notification - 20th February, 1991;

Sec 3 - Protected wetlands.

-Based on significance of functions performed by the wetlands for overall well being of the people following wetlands to be regulated:-(i) Ramsar Wetlands of International Importance;

(ii) ecologically sensitive wetlands …… national parks, marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage …..;(iii) UNESCO World Heritage Site;(iv) high altitude wetlands (>2500m)(v) Low altitude greater than five hundred hectares;(vi) any other wetland as so identified by the Authority for the purposes of these rules

Sec 4(i), Prohibited within wetlands

Prohibited, activities:-(i) reclamation of wetlands;(ii) setting up/expansion of industries;(iii) manufacture or handling or storage or disposal of hazardous substances;(iv) solid waste dumping - existing to be phased out in six months… (Pallikaranai)(v) discharge of untreated wastes and effluents - existing to be phased (vi) any construction of a permanent nature except for boat jetties within fifty metres from MSL;(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified by the Authority.

4(ii) Permitted with prior approval

(i) withdrawal, impoundment, diversion or interruption of water sources within local catchment area of the wetland ecosystem;(ii) harvesting of living and non-living resources;(iii) grazing;(iv) treated effluent discharges;(v) motorized boat, if it is not detrimental to biotic community;(vi) dredging, if impacted by siltation;(vii) boat jetties;(viii) activities that may directly affect the ecological character of wetland;(ix) facilities for temporary use, such as pontoon bridges,(x) aquaculture, agriculture and horticulture;(xi) repair of existing buildings or infrastructure;(xii) any other activity to be identified by the Authority.

Sec 4(3) Non wetland use

(3) Central Government may permit any of the prohibited activities on the recommendation of the Authority.(4) a detailed Environment Impact Assessment is carried out(5) No wetland conversion unless the Central Government satisfied on recommendation of the Authority in public interest and reasons recorded.

This effectively negate the entire Wetland Rules

None of this, including wetland rules fully address floods like December 2015.

• Water bodies not used for irrigation or water supply are not maintained since no revenue

• Wet land identification not done and so urbanisation takes place

• Inadequate legal framework to address • urbanisation of flood banks, • blockage of flood channels, • reduction in peak/total drainage capacity, • conversion of Foreshore of aris, tank bunds etc in

dry seasons - recent High Court Case • Planning authorities convert wetlands with impunity What is required is a participatory legal framework for

protection of wetlands - an elected Drainage Basin Panchayat or “Pani Panchayat” with technical support to safeguard public interest.