The Ministry of Environment, Forests, and Climate Change (“MoEF&CC”) has on July 6, 2022, reissued the draft notification for the Ecologically Sensitive Areas (“ESA”) in Western Ghats, inviting objections and suggestions from the interested parties (“Draft Notification”). The Draft Notification has identified an area of 56,825 square kilometers, spread across Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu, as the Western Ghats’ Ecologically Sensitive Area (“Western Ghats’ ESA”). Certain Key provisions of the Draft Notification have been set out hereinbelow:
1) The Draft Notification under the appended annexures provides detailed list and map of the ESA in each state along with the villages identified in such ESA. However, such annexures do not include the details of ESAs in the state of Kerala, which are available on the website of Kerala State Biodiversity Board.
2) The following activities are prohibited in the Western Ghats’ ESA (except those for which proposal had been received by MOEF&CC or state level expert committees or EIAs before April 17, 2013):
a) There shall be a complete ban on mining, quarrying and sand mining in ESAs and all existing mines shall be closed gradually within 5 years of the final notification or on expiry of the existing mining lease, whichever is earlier;
b) No new thermal power plants or expansion of existing plants shall be allowed;
c) No new Red Category Industries (as notified by Central Pollution Control Board (“CPCB”)), or any expansion to existing Red Category Industries shall be allowed, provided that the existing industries in such category continue to be in compliance with all applicable norms; and
d) New and expansion projects of: (i) building and construction with built up area of 20,000 square meters and above; and (ii) townships and area development with an area of 50 hectares and above or with built up area of 1,50,000 square meters and above shall be prohibited.
3) The following activities in Western Ghats’ ESA shall be regulated in the following manner:
a) New Hydropower projects shall be allowed as per the Environment Impact Assessment notification, published vide number S.O. 1533 (E), dated September 14, 2006 (“EIA Notification”), subject to the technical conditions stipulated in the Draft Notification;
b) Orange/ White category of industries as specified by the CPCB or State Pollution Control Board (“SPCB”) shall be allowed subject to their compliance with the extant environmental regulations;
c) Activities covered under the schedule of the EIA Notification, except which are specifically prohibited, shall be evaluated for their cumulative impact vis-à-vis development needs before considering for environmental clearance by the relevant authority;
d) In relation to diversion of forest land for non-forestry purposes in the Western Ghats’ ESA, all information of the project, from application stage to approval shall be placed in the public domain on the website of the MOEF&CC and of the forest department of the respective states; and
e) Requirements of prior informed consent under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 shall be complied with and the consent of gram sabha for undertaking projects and activities shall be mandatory.
4) The responsibility of monitoring and enforcing the provisions of the Draft Notification shall be with the concerned state governments of Western Ghats region. Further, a Decision Support and Monitoring Centre (“DSMC”) for Western Ghats shall be established by the MOEF&CC in collaboration with the state governments of Western Ghats region which shall assess and report on the status of ecology of Western Ghats on regular basis.
5) The DSMC shall also provide decision support facility, facilitate mechanisms for scientific decision making, and strengthening enforcement.
6) All projects in the ESA which have been given consent to establish or consent to operate shall be monitored at least once a year by the concerned SPCB and the concerned State Governments shall prepare ‘State of Health Report’ for their respective jurisdiction on an annual basis.
7) The Draft Notification shall in no manner affect the ownership of property in the Western Ghats’ ESA.
8) Any contravention of the provisions of this Draft Notification, shall attract penalties under the provisions of the Environment (Protection) Act, 1986 and other relevant statutes.
However, the provisions of the Draft Notifications are subject to the final orders in certain litigations sub-judice before various courts.
Please find attached a copy of the Draft Notification.
This update has been contributed by Rachika A. Sahay (Partner) and Siddhant Satapathy (Associate).
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