New Delhi: The National Green Tribunal (NGT) and the Ministry of Environment, Forest and Climate Change (MoEF&CC) have, for the past six years, been deliberating on whether the government's World Bank-funded project--the Jal Marg Vikas Project (JMVP) for National Waterway 1--requires environmental clearance. The project on the Ganga-Bhagirathi-Hooghly river systems, announced in July 2014, is scheduled to be completed by December 2023. Meanwhile, the NGT has postponed the matter of its environmental clearance 14 times, documents analysed by IndiaSpend show.

Then Finance Minister Arun Jaitley, while presenting the budget for the financial year 2014-15, announced the project and said it was intended to increase the capacity of vessels plying along the Ganga to at least 1,500 tonnes. The NGT and the MoEF&CC, the two key institutions tasked with safeguarding the country's environment, have since 2015 been debating whether the project requires, or warrants, environmental clearance.

As on date, inland waterways are not included in the list of projects that require prior environmental clearance. But dredging, which is a critical activity for development of inland waterways, does need an environmental clearance.

India has 111 declared National Waterways on all major rivers, canals, backwaters, creeks and estuaries, per the National Waterways Act, 2016. Several similar projects, such as the Loktak Inland Waterways Improvement Project in Manipur, are in process. The NGT has noted that with such projects emerging in the country, the question of whether a legally binding impact assessment under the EIA Notification of 2006 is required or not becomes significant. Thus, a decision taken in the case of the Ganga waterway becomes a precedent for all inland waterways projects.

Experts recommend amending the EIA Notification 2006 to include inland waterways projects so that they require an environmental clearance, not only in the interest of sustaining the environment, but also so that the waterways projects are environmentally and socially viable.

Delayed time and again

The schedule of the EIA Notification 2006, as amended from time to time, lists the type of activities or projects that require prior environment clearance. Under the prescribed process, an EIA report is made with environmental baseline data collected over a period of time, and through public hearings where applicable.

This is then appraised by the Expert Appraisal Committee at the state or Union government level. The MoEF&CC, on the basis of the recommendation of its Expert Appraisal Committee, grants the clearance, with specific conditions attached depending on the type of project. The project proponent then submits the compliance report, which can be accessed by the public.

While expeditious disposal of cases is its stated brief, the NGT has been hearing Bharat Jhunjhunwala & others vs Inland Waterways Authority of India & others, the case filed asking for environmental clearance for the JMVP, since 2015. In 2018, the NGT directed that the MoEF&CC constitute a committee to examine the issue.

The petitioners had to approach the Supreme Court to access the MoEF&CC report and file objections. The case then went back to the NGT which, on January 10, 2020, directed the MoEF&CC to submit a report, within three months, in consultation with ecological experts.

Since then, the case has appeared on the cause list of the NGT's Principal Bench 16 times, and been postponed 14 times. The NGT twice reminded the MoEF&CC to submit the report--orders that the ministry has blatantly ignored. The most recent listing of the hearing was on April 12, 2022; it was adjourned because the ministry has still not submitted its report. The next hearing is slated for May 4, 2022.

Environmental impact of the the Jal Marg Vikas Project

The JMVP, or the project for Capacity Augmentation of National Waterway-1 on the Ganga-Bhagirathi-Hooghly river systems, spans the states of Uttar Pradesh (UP), Bihar, Jharkhand and West Bengal. It is being developed by the Inland Waterways Authority of India, under the Ministry of Shipping, at a total cost of Rs 4,633.81 crore with the World Bank providing technical and financial assistance.

The stretch of the river systems, from Allahabad to Haldia, was declared as National Waterway -1 in 1986. The JMVP intends to augment the freight-carrying capacity and facilitate movement of vessels with 1,500+ tonne capacity along a 1,620 km stretch from Varanasi in Uttar Pradesh to Haldia in West Bengal.

The project aims to develop the fairway, which is the navigation channel, to provide 1.5 – 3 metres of depth and 30-45 metres of bottom width clearance. This, however, is one of the siltiest riverine systems in the world, which means that the fairway has to be periodically dredged of mud to ensure the required depth and clearance. The dredging and related works have the potential to adversely affect the riverine environment and the lives and livelihoods of people who live on and off the rivers.

In addition, the project requires the construction of terminals, jetties, navigation locks, freight villages, vessel maintenance complexes etc.

"There is," said Nachiket Kelkar, an ecologist with the Wildlife Conservation Trust and a member of the IUCN Cetacean Specialist Group, "the risk of water pollution from release of heavy metals such as arsenic and other bio-contaminants due to dredging; the risks due to vessel accidents in high traffic areas leading to spillage of hazardous materials from vessels; the impact of underwater noise and wave action on fish and on endangered species like the Gangetic dolphins; and the impacts of dredging on fish habitat, mollusc and crustacean breeding areas, and fishing areas."

The Case in the National Green Tribunal

In November 2015, a petition filed in the NGT by Bharat Jhunjhunwala & others raised substantial questions on the construction work for developing the National Waterway-1 on the Ganga without obtaining prior environment clearance.

The applicants relied on Entry 7(e) of the Schedule to the EIA Notification 2006, as amended in December 2009, which includes ports, harbours, breakwaters and dredging under activities which require prior environmental clearance. The EIA Notification 2006 further specifies that maintenance dredging is exempted only if prior environmental clearance is obtained and an Environment Management Plan is prepared.

After almost three years of discussion, the NGT on November 1, 2018, directed the MoEF&CC to look into whether any environmental clearance is required for the JMVP, in consultation with experts, and also to examine whether Environmental Impact Assessments are to be done in projects relating to inland waterways. The MoEF&CC was given three weeks to complete this exercise.

The NGT then disposed of the case without waiting for the report it had called for. The applicants were not given a chance to receive the report and to file their objections, if any. On February 22, 2019, the applicants approached the Supreme Court in Civil Appeal No. 1411 of 2019 (Bharat Jhunjhunwala & Ors. V/s Inland Waterways Authority of India & Ors).

The apex court permitted the applicants to approach the NGT with their objections to the MoEF&CC report, and the case thus went back to the tribunal. Almost a year later, on January 10, 2020, the NGT again directed the MoEF&CC to consult experts and submit a report by April 27, 2020 on the same lines as the earlier order. Two years passed, with the NGT twice reminding the ministry to submit its report.

The order dated September 2, 2021 states that the NGT was 'informed' that the issue of requirement of an EIA may be within the purview of the Ministry of Jal Shakti and not of the MoEF&CC--this, after six years of deliberation. However, there is no official affidavit or communication to show that the EIA requirement is not under the purview of MoEF&CC. The order does not clarify who informed the NGT about this issue being within the purview of the Ministry of Jal Shakti. Also, the applicants' counsels were not admitted to the September 2 virtual hearing.

While the NGT and the MoEF&CC continue stalling, the Inland Waterways Authority of India has announced that the project is scheduled to be completed in December 2023. Already, in 2018 and 2019 respectively, Prime Minister Narendra Modi inaugurated multimodal terminals, at Varanasi in UP and Sahibganj in Jharkhand, respectively, on the Ganga. Also in 2018 and 2019, the inland waterways authority awarded three contracts to M/S Adani Port & SEZ for dredging in the Farakka-Barh stretch of the Ganga for maintaining water depth in the navigation channel.

"By not deciding on this matter, the decision has been taken by default," Bharat Jhunjhunwala, the lead petitioner in the case, and a former professor at IIM Bengaluru, told IndiaSpend. "Even with interventions from the Supreme Court, the matter on applicability of EC [environmental clearance] remains undecided, while the project is nearing completion."

The MoE's stalling tactics

Over the last seven years, the MoEF&CC has been ambiguous with regard to the requirement of an environmental clearance for the inland waterways project.

The ministry's office memorandum (OM) dated March 6, 2017, obtained by Manthan Adhyayan Kendra via an RTI application, clarifies that the JMVP requires environmental clearance under the EIA Notification 2006, as amended. It further clarifies that the maintenance dredging component cannot be exempted from clearance.

On May 18, 2017, the expert committee appointed by the MoEF&CC endorsed the ministry's OM of March 2017. The Committee was categorical that all inland waterways projects require environment clearance, and that the EIA Notification should be amended to include the waterways projects as Category A projects with appraisal at the Central level.

This is relevant because the Ministry's EIA Notification draft 2020 places all inland waterways projects as Category B2 projects. If that classification stays, inland waterways projects will not even require an Environment Impact Assessment.

The Manthan Adhyayan Kendra, again via RTI, obtained documents showing that the MoEF&CC's expert committee, in a discussion on May 17, 2018, categorically reiterated its earlier stand that the JMVP includes maintenance dredging and hence necessitates environment clearance.

The MoEF&CC however went against the opinion of its own expert committee, and through its OM dated December 21, 2017, provided exemption to the maintenance dredging component for all inland waterways projects.

The minutes of the October 24, 2017 MoEF&CC meeting are revealing. The meeting was chaired by the Ministry of Road Transport & Highways, Shipping and Water Resources, River Development & Ganga Rejuvenation. It recorded that no environmental clearance is required for inland waterways projects; however, the only time the MoEF&CC's view was recorded, the Secretary of the ministry said the "project should apply for Environment Clearance. The application can be processed at a fast-track basis."

In November 2018, the NGT had directed the MoEF&CC to submit its report on the basis of expert opinion within three weeks. In its reply submitted four months later, the MoEF&CC did not present any evidence of having consulted experts, as it had been directed to. Instead, it submitted the minutes of the May 18, 2017 expert committee meeting, though the ministry had already nullified the committee's recommendations through the December 21, 2017 OM granting exemption to the maintenance dredging component. Similarly, two-plus years after the NGT order of January 2020 asking the ministry to consult experts and submit a report, the ministry has not complied.

On March 8, 2022, we contacted the MoEF&CC for their comments on the status of the report by a committee of experts directed to be set up with regards to this NGT order, and the requirement of environmental clearance for inland waterways. The story will be updated when we receive their response.

Environmental impact report not made as per protocol

The Inland Waterways Authority of India prepared its Environment Impact Assessment and environmental management plan for the main components of the project, in compliance with World Bank Environmental Safeguard Guidelines.

However, these reports and studies are not under the Environment Impact Assessment Notification, 2006--which means that the ministry's expert appraisal committee has not reviewed the report and not set specific terms of reference for conducting the impact assessment.

Standard protocol dictates that the appraisal committee studies the environmental impact report, holds public hearings, and then recommends environmental clearance with specific conditions attached. These conditions are legally binding; they are monitored by the MoEF&CC; and in the case of non-compliance, even an ordinary citizen can approach the judiciary for recourse.

The consequence of such protocols being given the go-by is that results are presented, and action plans devised, without the required rigour. Moreover, the fact that these mitigation plans are being supervised by the inland water authority, which is also the implementing agency, raises concerns regarding conflict of interest.

For instance, the inland waterways authority has made available on its website a report for 'Study on effect of navigational activities on Dolphin in the National Waterway -1.' The Gangetic River Dolphin is an endangered species as per the IUCN Red List, and is protected under Schedule-I of the Wildlife (Protection) Act, 1972.

The Ganga Waterway passes through the Vikramshila Gangetic Dolphin Sanctuary in Bihar. The report concludes that, "vessel movement, and the sound produced thereof, and dredging activities will have some impact on the aquatic species of the River Ganga. It may also have acute and long-term impacts on the riverine ecosystem."

The report proposes an action plan for aquatic wildlife protection. However, the September 2020 report fails to mention the peer-reviewed study published in Nature's Journal Scientific Reports by Mayukh Dey et al (2019), which assesses the impact of underwater noise exposure from vessels on Gangetic Dolphins in the Ganga river.

The inland waterways authority study on the impact on Gangetic dolphins has little scientific credibility, said Mayukh Dey, Research Affiliate with the National Conservation Foundation. He points out that a vast majority of current literature on dolphins is missing from the study and some of the references used in the report refer to the effect of noise on marine dolphins. The marine dolphin has the sense of sight; the Gangetic dolphin, however, is functionally blind and relies on echo-location to navigate, hunt, and communicate. Therefore, the sounds of machinery in operation--such as dredging, or the motors of river barges--seriously interfere with the river dolphin's ability to perform essential functions.

"The study is a missed opportunity in that no experimental studies have been attempted to test the efficacy of mitigation measures," said Kelkar of the Wildlife Conservation Trust, and also one of Dey's co-authors of the study. "This, if done, could have shown the way in terms of how waterways could be effectively managed to reduce their impacts on biodiversity."

The MoEF&CC in 2014 directed the inland waterway authority to commission studies by the Central Inland Fisheries Research Institute (CIFRI) on the impact of coal transport through a stretch of the Ganga Waterway in West Bengal from Sagar to Farakka. The study found, among other things, that a rapid change was observed in the fish assemblage structure due to movement of barges, and that the full impact could only be assessed over a longer period of time.

More importantly, the study by CIFRI reveals the adverse social impacts on the fisherpeople--the community most dependent on the riverine ecosystem. "The fishers largely depend on the fish catch for their daily livelihoods," as per the study. "Disturbance caused by the movement of barge has a direct bearing on the fishing operations. Around 38% of the fishers reported loss in fishing time. The average monetary loss per fishermen was found to be Rs. 0.75, 4.35 and 17.63 per incidence of barge(s) movement in lower, middle and upper stretches, respectively." Note that this is on the Sagar-Farakka stretch, which is only 560 km of the total 1,620 km stretch of the Ganga Waterway.

"Installation of the National Waterway-1 and also part of the Indo-Bangladesh protocol route which is National Waterway-97 have sounded death knell to the fish resources of Ganga and the fishing communities dependent on that," said Pradeep Chatterjee, convenor of the National Platform for Small Scale Fishworkers (Inland) in India.

However, the CIFRI study also said that the "marginal impact on aquatic flora & fauna, fishing and livelihood of fishermen" can be mitigated through the "plans" suggested that are "easily implemented".

For instance, if coal is transported in a moist condition, and covered, it did not show substantial impact on the river ecology, the report found, adding that this movement also reduces substantial carbon footprint in the form of saving diesel as compared to surface transportation.

Chatterjee references the fly ash barge capsizes which took place in 2020 and 2021 on the Ganga Waterway, Indo-Bangladesh Protocol route, and the Sundarbans National Waterway (NW-97) to point out that "increase in water pollution due to oil, coal and fly ash spillage combined with turbidity and disturbances due to continuous movement of ships and barges and dredging is driving away whatever is left of an already dwindling fish stock." He added that ships and barges are regularly running over the nets and boats of small-scale fishers causing tremendous economic loss to the impoverished community.

Ganga waterway nearing completion, dangerous precedent for future projects

As per the latest status report by the Ministry of Ports, Shipping and Waterways in the Rajya Sabha on March 29, 2020, development activities are taking place in 13 of the 26 National Waterways, including the JMVP. Of these 13 projects, National Waterways of Goa on Mandovi, Zuari and Cumberjua, stretches of National Waterway-4 in Andhra Pradesh and National Waterway-5 in Odisha were under the process of Environment Clearance under the EIA Notification, 2006, but the process has been stalled due to the exemptions sought for the JMVP.

This would mean the project is nearing completion without any serious environmental impact study being done. This would also mean that multiple other projects are underway in other riverine systems without the necessary impact studies. The net result would damage to the concerned environments and the fish and animals that reside in them--including the Gangetic dolphin, India's National Aquatic Animal, that is officially classified as an endangered species--as also serious loss of livelihoods to fishers and other communities that live alongside these river systems.

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