Is Uttarakhand abusing disaster management laws to allow rampant riverbed mining?

In November 2020, a few months before floods ravaged Uttarakhand, the deputy collector of Purnagiri in Tanakpur district announced an open auction of tenders to desilt the riverbed in Champawat’s villages.

Tenders for government work usually seek the lowest bidder, the contractor willing to do the job at the lowest cost. In this case, however, the highest bidder would get the tender. That is because the tender did not only issue a work contract, as is the usual practice, it also auctioned the right to sell to the construction and building sector all 51,183 tonnes of sand, gravel and boulders estimated to be excavated. It was one of several such tenders floated by district administrations in the hill state since January 31 2020 under the government’s River Training Policy.

The policy lays down a procedure to “train” Uttarakhand’s rivers by excavating silt, gravel and sand from the middle of the riverbeds. Such desilting will direct the flow of the river towards its center and away from the banks, the policy says, and thus “avoid river coast erosion to prevent the loss of lives and infrastructure”.

In other words, the policy allows sand and boulder mining from river beds but without following any safeguards and procedures under mining and environmental laws. That is because the policy asks district administrations to invoke powers under the Disaster Management Act 2005 to auction desilting rights to private contractors. The rights are over specific river stretches and for four-month periods.

The DMA empowers district magistrates to take measures to prevent disasters in their jurisdiction. There is little evidence such desilting reduces disasters, however. Quite the contrary, actually. The clearance database of the environment, forests and climate change ministry, or MoEF, doesn’t show any records for environment and forest clearances for river training works, and no compliance with the sand mining guidelines issued by the environment ministry in 2020.

Mining in the garb of disaster prevention?

Uttarakhand has a dense network of rivers and is thus a hotspot for mining, legally and illegally, sand and rocks, supplied to construction sites at a reported turnover of over Rs 2,000 crore per year. The state has a history of people’s struggle against illegal mining by a powerful mining mafia, involving miners and politicians.

The Uttarakhand government launched its first river training policy in 2016, around the time concerns about rampant and illegal sand mining in the state were rising.

The policy applied to riverbeds where no mining leases for sand and boulders were notified. It stated that desilting of rivers was to be undertaken manually and machines were to be used only in exceptional cases. The policy restricted mining to within 100 meters of each bank as well as downstream and upstream of social spaces along the banks such as burial grounds. From the royalties earned by the government from the leases, 20 percent were to be employed for purposes of river training, forest and wildlife protection and for rebuilding local roads.

The state revised the policy in 2020 with critical changes that relaxed environmental safeguards. The new policy permitted the use of heavy machinery and allowed contractors to dig up half the breadth of the river regardless of its width. The requirement to set aside 20 percent of the royalties was done away with and the restriction on mining close to social spaces lifted.

The policy prioritised private contractors. The excavated material would be awarded to a government entity for non-commercial use only if there was no interest from a private player.

The 2020 policy was amended on January 19 this year, under which more tenders have been issued even though it has not been made public so far.

There are concerns that the river training policy is only facilitating mining of riverbeds with little evidence of its effectiveness in preventing disasters. That the policy was issued by the industrial development department’s mining unit even though the state has departments which oversees flood protection and disaster management as well as a State Disaster Management Authority and a Technical Advisory Committee for approving proposals for flood control in the state has only given weight to such concerns.

This correspondent sent detailed questions about the policy to the Uttarakhand chief minister’s office, director of geology and mining unit of the industrial development department and principal chief conservator of forests. None responded.

They were asked if any study had been conducted to show how siltation in unbounded rivers had led to flooding and if green clearances had been secured by miners under the policy. And how and whether disaster management was employed as a pretext to provide business and profit to miners.

Admittedly, under the Disaster Management Act, states are empowered to take necessary measures in order to prevent disaster. The policy provides for the constitution of a committee to identify areas where there is excess silt or riverbank material such that it poses a threat, and demarcate these areas to inspect and evaluate the accumulated material. But is the removal of silt and riverbank material such a necessary measure as to warrant the creation of the river training policy?

“There must be some assessment done that lends itself to the conclusion that there will be a disaster if the sand and boulders are not removed. Because ecology works the other way around – sand and boulders actually serve to reduce the velocity of water and, in a way, prevent floods. This is the role that nature has given them. Where is the study or assessment which shows that the presence of sand or boulders will lead to disaster?” asked senior environmental lawyer Ritwick Dutta.

As early as 2001, the Mittal committee constituted by the union water resources ministry found desilting to be an unsustainable process. The Sustainable Sand Mining Guidelines issued by the MoEF in 2016 also mention that the desilting of rivers is unsustainable and that it can marginally minimise the magnitude of floods and be effective only for a short period. “Desilting of rivers in vulnerable reaches may be suggested based on model study,” the guidelines state, “if it’s found techno-economically viable”.

According to the National Disaster Management Authority’s guidelines for the management of flooding, issued in 2008, silting at places where the rivers emerge from the hills into the plains, at convex bends and near their outfall into another river or lake or sea, is a natural phenomenon. The authority said that “various committees/experts appointed to look into this problem have not recommended desilting/dredging of the rivers as a remedial measure”, but selective desilting “can be adopted as a measure to tackle the problem locally”.

Bypassing green safeguards

Under the Environment Protection Act, 1986, mining rivers for silt, sand, boulders and gravel requires an environmental clearance. In 2012, the Supreme Court ordered for all river mining leases to undergo the environmental clearance process, regardless of area. This requirement was also incorporated in 2016 as an amendment to the Environmental Impact Assessment Notification. If the river patch to be mined runs through forests, then the contractor would require an additional forest clearance under the Forest Conservation Act, 1980, or FCA.

But records show the Uttarakhand government has sought neither environment or forest clearances for river training contracts.

Since when Uttarakhand was a part of Uttar Pradesh, benap lands, meaning unmeasured and unmarked lands, and other wastelands have been classified as protected forests under the Indian Forest Act of 1927. These lands were classified through a 1893 government notification that was reiterated in a 1997 order. The 1997 order makes it clear that the FCA is applicable to all legal forests.

Riverbanks are often benap lands and are, therefore, treated as protected forests. Under the FCA, state governments are prohibited from issuing any order allowing non-forest use of forest lands without the union government’s prior approval. Any activity, such as mining in protected forest lands, would also require forest clearances under the FCA.

In 2019, the MoEF clarified that the removal of stones and sand from riverbeds was a non-forestry activity, and any leases granted by a state government to undertake such mining would require a forest clearance. However, publicly available forest clearance records show that Uttarakhand has applied for clearances to mine rivers only when the specific stretches to be mined passed through an area classified as “reserved forests”.

Moreover, Uttarakhand’s mining contracts appear to bypass the Enforcement and Monitoring Guidelines for Sand Mining issued by the environment ministry in January 2020, just four days before the state government revised its river training policy. The guidelines state that an environmental clearance for sand mining shall be given only to leases that detail a mining plan approved by the competent authority designated by the states, and that modification of the mining plan during operation will also need approval of the competent authority. However, since river training works are not being treated as mining leases, they don’t have to meet these requirements.

Mining under the river training policy has met with public anger. Citizens have come out in protest against rampant mining to the point that their lands along river banks are threatened with erosion. Allegations of corruption in the river mining tenders under the policy have been reported from across the state. A writ petition claimed, in as many words, that the state was permitting illegal mining using heavy equipment under the guise of channelising the riverbed within the four corners of the River Training Policy.

In March 2020, the Uttarakhand High Court stayed mechanised mining in the Sarayu river after a petitioner argued that the use of heavy machinery would cause environmental degradation. Undeterred by such concerns, the state government has continued to issue tenders for mining for river training, including during the national lockdown to contain the pandemic.