Published on 18/02/2014
The procedures for consideration of applications for grant of environmental clearance under the EIA notification, 2006 to projects which involve forest land, have been dealt with by the MoEF, Government of India under a set of office memoranda dated 2-12-2009, 31-03-2011, 26-04-2011, 09-09-2011 and 01-08-2013.
These procedures now stipulate that where a diversion of forest land is involved, the terms of reference under the EIA notification of 2006 (scoping) should not be granted unless credible proof of making an application for Forest Clearance has been submitted. For the final appraisal, the Committee and the Competent Authority (setup under the EIA notification) will take a decision on the application for Environmental Clearance based on merits, taking cognizance of the involvement of forest land. If the clearance is decided to be granted the project proponent would be informed and given an opportunity (within 12 months extendable to 18 months) to submit the stage 1 forest clearance. The final Environmental Clearance will be issued only thereafter. If the stage I forestry clearance is not granted in this period the Environmental Clearance would stand rejected and the whole process would have to be done again.
Guidelines for taking up non forestry activities in wild life habitats and eco sensitive zones have been prescribed by the MoEF through an amendment notified on 1-12-2009 in the EIA notification of 2006 and also through guidance documents issued in 15-03-2011 (now superseded by 12-12-2012) and 12-12-2012.
Under these guidelines the proposals for use of areas inside protected areas (Wild Life Sanctuaries, National Parks, Tiger Reserves, Conservation reserve) involves consideration and recommendations of the standing committee of the National Board for Wildlife. Apart from this, activities within eco sensitive zones and in case no eco sensitive zone has been notified then within 10 kms form boundaries of National Parks and Wild Life Sanctuaries will also need to obtain recommendations of the standing committee of NBWL.
It has also been provided that this permission will also be taken for conduct of Environment Impact Assessment studies within protected areas and the approval of the Honorable Supreme Court if diversion/denotification is involved.
The EIA notification, however, restricts the requirements to the recommendations or comments of the Chief Wild Life Warden along with the application for Environmental Clearance.
The Office Memoranda and Notifications
The following paragraphs discuss the various office orders
Office Memorandum dated 2-12-2009
The MoEF, through its Office Memorandum no. J-11013/41/2006-1A.II(I) dated 02-12-2009, had prescribed procedures for dealing with cases which involved diversion of forest or wildlife habitats.
The procedure specified that the proposals for Environmental Clearance will not be linked with the clearances from the Forestry and Wild Life angle even if they involve forest land and/ or wild life habitat as these clearances are independent of each other and would in any case be needed, as applicable to such projects without starting any activity at site. However, it is also prescribed that while considering such proposals under the EIA notification of 2006, the applicant should have submitted to the Committee, a copy of the applications submitted for Forest and Wildlife clearances along with all enclosures and information on the status of grant of such clearances.
The proposal from environmental angle will be appraised by the respective Expert Appraisal Committee and recommendations made on the same which will be processed by the IA Division and approval obtained from the competent Authority. However, while granting environmental clearance to projects involving forestland, wildlife habitat (core zone of elephant / tiger reserve etc.) and or located within 10 kms of the National Parks/ Wildlife Sanctuaries (at present the distance of 10km has been taken in conformity with the order dated 04-12-2006 in writ petition no. 460 of 2004 in the matter of Goa Foundation Vs Union of India), a specific condition shall be stipulated that the environmental clearance is subject to their obtaining prior clearance from forestry and wildlife angle including clearance from the Standing Committee of the National Board for Wildlife as applicable. Further, it will also be categorically stated in the environment clearance that grant of environmental clearance does not necessarily imply that forestry and wildlife clearance shall be granted to the project.
The proposals for forestry and wildlife clearance will be considered by the respective authorities on their merits and decision taken. The investment made in the project, if any, based on environmental clearance so granted, in anticipation of the clearance from forestry and wildlife angle shall be entirely at the cost and risk of the project proponent and Ministry of Environment & Forests shall not be responsible in this regard in any manner.”
This O.M. did not make any mention to the amendment vide SO No.3067 dated 1-12-2009 to the 2006 notification.(Discussed later)
Procedure dated 31-3-12 supersedes the procedure as prescribed on 2-12-2009
The above procedures were however superseded by a later Office Memorandum of 31-3-2012 which provided that:
- The project proponent would be asked to examine if it is possible to implement the project without use of Forest Land and in cases where in the considered opinion of the proponent, it is not possible to undertake the project without diversion of forest land, the project proponent would be first asked to apply for Stage1 Forestry clearance for the forest lands involved in the project and thereafter submit the proposals for terms of reference as per the scoping procedure prescribed under the EIA notification of 2006.
- Where the terms of reference have already been issued, the project proponents should ensure that the stage 1 Forestry clearance has been granted and its copy submitted along with the application for environmental clearance. Environmental Clearance will only be considered for non forest alternatives/ that part of the forest land which has been accorded stage 1 Forest Clearance.
- Where based on the terms of reference as given by the committee, the application has been submitted to the committee for grant of Environmental Clearance, the project proponent will be asked to either delete the Forest Land or approach the EAC after the stage 1 Forest Clearance has been granted. Till such time, the project will be delisted.
- For projects where the EAC has already recommended grant of an Environmental Clearance, the recommendations will be processed by the competent authority and if approved, the project proponent shall be informed of the approval but the formal EC will be issued only after stage 1 forest clearance has been obtained and submitted. For this purpose a maximum time limit of 12 months will be provided to the proponent. If the stage 1 forestry clearance is not submitted within this period, the proposal will stand rejected.
The Partial amendment on 9-9-2011 and 1-8-2013 to procedures
The procedures prescribed on 31-3-2011 were partially amended vide OM No. J-11013/41/2006-IA.II(1) dated 9-9-2011. The following procedures were recommended to be adopted for considering proposals for Environmental Clearance to projects involving diversion of forest lands. Under these procedures:
- Proposals for TOR would only be considered if the project proponent submits a credible proof that the application for diversion of forest land has been submitted to the competent authority.
- For applications submitted for Environmental Clearance with respect to proposals involving diversion of forest land, the status of application made for forest clearance shall be informed to the committee along with supporting documents from the Forest Department. The Expert Appraisal Committee will take cognizance of the involvement of Forest Land and make a recommendation on merits which will then be put to the competent authority for a decision. After the approval of the Environmental Clearance by the competent authority, a time limit of 12 months (extendable to 18 months) will be given to the project proponent to submit the stage 1 forestry clearance. The final EC will be issued only thereafter.
- If the Stage 1 clearance is not submitted by the project proponent within the prescribed time limit, the proposal for EC would stand rejected and the entire process will have to be initiated afresh.
A further modification of this O.M. on 1-8-2013 vide O.M. No.J-15012/5/2013-1A-1 adds that in case of hydro-projects, MoEF will consider granting TOR without insisting on submission of application of application for forest clearance but prescribe a condition that the application for forest clearance shall be submitted as soon as the extent of the actual forest land involved is known or within 06 months of issuance of the TORS. No proposal shall be put up before the Expert appraisal committee without submission of Forest Clearance.
Guidelines on documents to be submitted along with EIA application to projects involving forest lands
The Ministry has also issued guidelines on 26-4-2011 vide OM No. J-11013/41/2006-IA. II(1) and prescribed the documents to be submitted along with the application for Environmental Clearance for all mining projects involving forests and for such non mining projects which involve more than 40 HA of Forests. In such cases, a high resolution satellite imagery of the proposed area showing the land use and other ecological features of the study area ( core and buffer) has to be submitted along with a certificate from the competent authority in the State Forest Department, confirming the involvement of forest land if any in the project area or otherwise. The data should be based on land use classification (revenue records) as also in terms of the definition of Forests as pronounced by the Honourable Supreme Court in the matter of T.N.Godavaram vs. Government of India.
Procedures for Environmental Clearance to projects involving Wild Life Areas
Procedures prescribed in the amendment of 1-12-2009 to the EIA notification of 2006
In terms of the application for Environmental Clearance, the footnote to the amendments to Form 1 in the MoEF, GOI notification No. SO 3067(E)dated 01-12-2009(notification amending the EIA notification of 2006) mentions that for projects to be located within 10 km of the National parks, Sanctuaries, Biosphere Reserves, Migratory Corridors of Wild Animals, the project proponent shall submit the map duly authenticated by Chief Wildlife Warden showing these features vis-à-vis the project location and the recommendations or comments of the Chief Wildlife Warden thereon.
There does not appear to be any change in this notification nor any reference to this provision in any subsequent notification.
Guidelines of the Government of India dated 15-3-2011 superseded by guidelines issued on 19-12-2012
The Government of India had, through letter no. F. No. 6-10/2011 WL dated 15-03-2011, prescribed procedures to be followed for Environmental Clearances for all projects falling inside National Parks and Sanctuaries and Conservation Reserves and within 10 km. from boundaries of such areas. For activities within 10 km of the boundaries of National Parks, Sanctuaries, etc. a prior clearance of the Standing Committee of the National Board for Wildlife has to be obtained which is generally subject to recommendation of the State Board for Wildlife. The guidelines state that clearances for activities inside National Parks, Wildlife Sanctuaries and Conservation Reserves should also have the approvals of the Hon’ble Supreme Court.
With specific reference to the procedure to be followed for activities within 10 kms. from boundaries of National Parks and Wildlife Sanctuaries, the following provisions have been made: “In case the project site is located within the eco-sensitive zone or 10 Kms. in absence of delineation of such a zone from the boundaries of such National Parks, Wildlife Sanctuaries or is an Elephant Reserve / Tiger Reserve and / or important corridor of wildlife movement, the User agency / Project Proponent should seek prior clearance from the Standing Committee of NBWL before seeking Environmental Clearance as per prescribed procedures. The Standing Committee of NBWL has been insisting on the recommendation of the State Board for Wildlife for all proposals, including those falling within 10 kms. from the boundary of National Parks and Wildlife Sanctuary.”
These guidelines have been superseded by fresh guidelines issued on 19-12-2012 vide letter no. F. No. 6-10/2011 WL for taking up non forestry activities in wild life habitats. This guidance document clarifies that while project proponents may simultaneously apply for Environment, Forest and Wildlife clearances, no rights will accrue on them till all clearances are obtained. The guidance document also says that “In pursuance to the order of the Honourable Supreme Court dated 4-12-2006, in writ petition (civil) no. 460/2004, in case any project requiring Environmental Clearance, is located within the ecosensitive zone around a Wildlife Sanctuary or National Park or in absence of delineation of such a zone, within a distance of 10 Kms. From its boundaries, the user agency/ project proponent is required to obtain recommendations of the standing committee of NBWL.
The guidelines prescribe procedures to be followed for consideration of proposals by the standing committee of National Board for Wild Life. After the standing committee of NBWL recommends the proposal, the user agency/ state government is required to approach the Honourable Supreme Court for final clearance in view of the court orders dated 13-11-2000 directing that there shall be no deresevation/ denotification of National Parks and Sanctuaries without the approval of the Honourable Supreme Court.
The procedure also specifies that in case an EIA is to be taken up in areas involving a wildlife habitat, as a prelude to future diversion of land, the project proponents will have to follow the same procedure.