Chapter 1: introduction

3.2 Acts and Rules/Regulations

3.2.1 Environment Protection Act 1997, Environment Protection Rules, 1997 & as amended (1999, 2007, 2009 and 2010)

Nepal has enacted a comprehensive and overarching environmental act, the Environment Protection Act (EPA) 1997, followed by Environmental Protection Rules 1997 and as amended (1999, 2007, 2009 & 2010) which are now enforced through appropriate regulatory measures.

Section 3 of the Act requires the proponent to conduct an IEE and EIA in relation to the prescribed proposals. The word "proposal" means any development work in relation to IEE/EIA. "Proponent" includes any person or government, quasi-governmental or non-governmental agency or organisation submitting an application for the approval of a proposal and possessing the responsibility to work according to such a proposal or implementing the proposal. Section 4 of the Act prohibits implementation of development proposals without prior approval of the concerned agencies or Ministry of Science, Technology and Environment (MoSTE) as specified by the Act. Section 5 of the Act provides that all IEE/EIA of the development proposals should be presented to the concerned agencies for approval. Under Sections 6 of the Act, the relevant agency is empowered to grant approval for the IEE/EIA report as per the provisions of the Act. MoSTE or the concerned ministry is empowered to set up a committee to provide opinions on IEEs/EIAs received by it. When granting approval to any proposal, MoSTE or concerned ministry is required to take into account public comments received on the IEE/EIA report and the opinion of the committee set up, if any.

Under section 7 of the Act, industries or any other development project owners are required not to discharge, emit or dispose waste, sound, radiation or any such acts which will cause pollution or to allow pollution to be caused in a manner which is likely to have significant adverse impacts on the environment or to harm human life or public health. Further, the section stipulates that causing pollution or allowing such pollution to be deemed a punishable act.

Section 10 of the Act prohibits any activity without the approval in the environmentally protected areas declared by GoN. Section 17 of this Act is concerned about compensation. In case of pollution, creation of disposal, sound, heat or wastes by anybody contrary to this Act, any person or organisation that suffers any loss or damage, may, if she/he desires, have compensation recovered from the person, institution or proponent doing such an act. An application must be made to the prescribed authority, Chief District Officer (CDO) stating the details therein. In connection with the determination of the amount of compensation, the CDO possesses the power to summon the concerned individual. The amount of compensation determined by the CDO under this rule must be appropriate and reasonable.

The proposals requiring IEE/EIA studies are broadly listed in Schedule 1 and Schedule 2 under Rule 3 of the EPR enforced under the provisions of EPA. As per the Rule 4, proposals requiring EIA will have to prepare a scoping document incorporating the public concerns and apply to MoSTE through concerned agencies. In this process a 15 days public notice in the national newspaper requesting suggestions and comments on environmental issues arising due to the proposal implementation has to be published. The MoSTE is empowered to review the document and give approval with or without needed amendments.

As per Rule 5, the proponent of both IEE and EIA proposals has to prepare Terms of Reference (ToR) of the proposal for approval. In the case of IEE, ToR is approved by the concerned agency whereas MoSTE will give ToR approvals for proposals requiring EIA. Rule 6 stipulates that if the review of the IEE proposals identifies the proposal to require an EIA, it will have to comply with all the provisions of EIA.

Rule 7 of EPR requires the IEE proposal proponents to publish a 15 days public notifications in the national daily and present the notification to the public institutions of the affected area for comments and suggestion on IEE proposals during the study phase while the proponents of the EIA proposal have to organise a public hearing in the project affected area to collect public concerns and suggestions.

Rule 10 of EPR stipulates that all the proposals submitted for approval will have to take letter of recommendations from the concerned and affected VDCs and municipalities on the proposals. However, the rule is silent on the status of the IEE/EIA if it is approved contrary to the public and the affected VDCs and municipality opinions. However, the Ministry can only grant its approval to implement the proposal if it does not cause significant adverse effects on the environment under Rule 11.

Rule 12 of EPR stipulates that the proponent is obliged to follow the terms of conditions set by concerned agencies or the MoSTE in the approval letter during project implementation and operation. Rule 13 provides that the concerned agency to be responsible for the project monitoring.

Rule 14 provides that the MoSTE to be responsible for environmental audit after two years of project implementation.

3.2.2 Electricity Act, 1992 and Electricity Regulation, 1993

Under section 4, sub-section 1 of the Act requires any person or corporate body who wants to conduct survey, generate, transmit or distribute electricity over 1 MW to submit an application to the designated authority along with the economic, technical and environmental study report. The environmental study report refers to IEE/EIA report as per EPA and EPR. The proponent will have to show in the EIA report that the proposed development project is not likely to cause soil erosion, flood, landslide and air pollution or any other forms of environmental degradation. Electricity Regulation, 1993, under rule 12(f) and 13(g) related to EIA, emphasizes that the EIA report should include measures to be taken to minimize the adverse effects of the project on social, biological and physical environments, and should also elaborate utilisation of local labour, source of materials, benefits to the local people after the completion of the project, training to the local people in relation to construction, maintenance and operation, facilities required for construction site, and safety arrangements.

3.2.3 Water Resource Act, 1992 and Water Resource Regulations, 1993

The objectives of the Water Resources Act, 1992 is to make legal arrangements for determining beneficial uses of water resources, preventing environmental and other hazardous effects thereof and also keeping water resources free from pollution. The Act strives to minimize environmental damage to water bodies, especially lakes and rivers through environmental impact assessment studies and the proponents who wish to use water resources for various purposes should prepare an EIA report before a license can be granted. The Act stipulates that soil erosion, flooding, landslides, or any significant impact on the environment should be avoided in all uses of a water resource.

Under the Water Resource Regulation, it is mandatory under Rule 17(e) of the regulation that any person or corporate body, who desires to obtain a license for utilisation of water resources must state in the application that appropriate measures will be taken to lessen the adverse effects due to the project on the overall environment. Measures are to be taken for the conservation of aquatic life and water-environment and for mitigating social and economic effects of the project in the concerned area. Local labour should be utilised and the local people should get benefits after the completion of the project. The regulation also emphasises on providing training on construction, maintenance and operation of the project to the local people. The mitigation plan should give details of people to be evacuated and a necessary plan for their rehabilitation.

Rule 19 stipulates that the water resources committee shall publish a notice giving detailed information about the project to the people. If any person finds that the construction and operation of the concerned project is likely to cause adverse effects, he or she may furnish his/her reaction stating the reasons within thirty-five days from the date of publication of the notice. If the committee is satisfied with the reasons and justification given by the people, the proponent will be asked to revise the plan.

3.2.4 Soil and Watershed Conservation Act, 1982

The mismanagement of watersheds leads to the degradation of valuable land by flooding, water-logging, and accelerated silt in storage reservoirs. In order to properly manage the watersheds of Nepal, the Soil and Watershed Conservation Act, 1982 (SWCA) was enacted. Section 3 empowers GoN (formerly HMG) to declare any area a protected watershed area. Section 4 mentions that a watershed conservation officer has the authority to implement the following works in protected watershed areas:

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  Construct and maintain dams, embankment, terrace improvements, diversion channels and retaining walls,
  
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  Protect vegetation in landslide-prone areas and undertake afforestation programmes, and
  
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  Regulate agricultural practices pertinent to soil and watershed conservation.
  

Under Section 10 of SWCA, power is extended to the Watershed Conservation Officer to grant permission to construct dams, drainage ditches and canals, cut privately owned trees, excavate sand, boulders and soil, discharge solid waste, and establish industry or residential areas within any protected watershed area. SWCA outlines the essential parameters necessary for proper watershed management (including both rivers and lakes). The Act is applicable only to protected watersheds and Kabeli watershed is not protected under this act

3.2.5 Aquatic Animal Protection Act, 1961

The Aquatic Animals Protection Act, 1961 (AAPA) indicates an early recognition of the value of wetlands and aquatic animals. Section 3 renders punishable to any party introducing poisonous, noxious or explosive materials into a water source, or destroying any dam, bridge or water system with the intent of catching or killing aquatic life. AAPA has been in effect since 1961, yet both noxious and explosive materials are increasingly used in water bodies throughout Nepal. There is no reported case of prosecution for a breach of AAPA. This demonstrates the government's ineffectiveness in developing a surveillance system for conserving aquatic life. Under Section 4, the government is empowered to prohibit catching, killing and harming certain kinds of aquatic animals by notification in the Nepal Gazette. However, the government has never published any notice under this Section.

Aquatic Animal Protection Act, 1961 and First Amendment, 1998 (AAPA) promulgated for protecting aquatic animals in natural water bodies like rivers, reservoirs and lakes has remained virtually defunct due to lack of related bylaws/regulations. Its first amendment in 1998 Section 5a states the use of safe pesticides use for catching aquatic life. Section 4a, 4b and 5 empower the government to prohibit catching, killing and harming certain kinds of aquatic animals in different scenarios. Section 5b requires building fish ladder so that the movement of aquatic animals is not affected. Where fish ladder is not possible, the act suggest hatchery and nursery in such place or in an area in vicinity thereof for the purpose of having artificial breeding of aquatic animals. The Act stipulates a provision of minimum 5% of yearly minimum flow as environmental flow for water diversion points

3.2.6 Forest Act, 1993 and Forest Regulation, 1995

Forest Act, 1993 and Forest Regulation (1995), recognizes the importance of forests in maintaining a healthy environment. The Forest Act requires decision makers to take account of all forest values, including environment services and biodiversity, not just the production of timber and other commodities. The basis of the Act’s approach to forest and forest products is “resource oriented” rather than “use oriented”. Section 49 of the Act prohibits reclaiming lands, setting fires, grazing, removing or damaging forest products, felling trees or plants, wildlife hunting and extracting boulders, sand and soil from the National forest without prior approval. The Act empowers the government to permit the use of any part of government managed forest, community forest, leasehold forest, if there is no alternative except to use the forest area for the implementation of a plan or project of national priority without significantly affecting the environment (Section 65).

3.2.7 Land Acquisition Act, 1977

Land Acquisition Act 2034 (1977) & Amendment, 2049, is the main legislation to guide the involuntary acquisition of land in the country. The Government can acquire land at any place in any quantity by giving the compensation pursuant to the Act for the land required for any public purpose or for the operation of any development project initiated by the government or government authorized institution (Sections 3 and 4). The provisions of this Act are not complementary to the best practice of resettlment and rehabilitation policies currently in practice of the funding agencies. The affected population of the development projects have a limited role in the decision making of land compensation. The Act does not have provisions of rehabilitation measures to the affected parties and all decision powers rest on the Compensation Fixation Committee, a body comprising mostly of government officials under the Act provisions.

3.2.8 Land Reform Act, 1964

The Land Reform Act has set a ceiling on the landholding for individual or households. Land holding above the prescribed ceiling could be confiscated as per the provisions of the Act. However, with the permission of the authorised government officials, landholding ceiling could be increased for the organisations as per the requirement of the organisational works.

3.2.9 Local Self-Governance Act (1998) and Regulations, 1999

The Local Self Governance Act (1998) and Regulation (1999) provides more autonomy to District Development Committees, Municipalities and VDCs. Section 25 of the Act outlines the functions, rights and duties of the Ward Committee. Section 25(e) of the Act requires the ward to help for protection of the environment through plantation over bare land, cliff and mountains. Section 28 has mentioned the functions, rights, and duties of VDCs. The VDCs are required to protect the environment, nature and natural resources. Section 55 empowers VDCs to levy taxes on utilization of natural resources. Section 68 lists the property of the VDC, which includes natural resources. Apparently, natural resources include mineral, land, forest and water resources and thus, VDCs have an absolute authority over the natural resources by the regulation provisions. However, due to conflicting provisions of the other sectoral acts and regulations, the provisions enshrined in the Local Self Governance Act and Regulations are apparently null and void.

3.2.10 National Parks and Wildlife Conservation Act, 1973

The conservation of ecologically valuable areas and indigenous wildlife is provided by the National Parks and Wildlife Conservation Act (NPWCA). In Nepal, all wildlife species within National Parks are protected from exploitation through the National Parks and Wildlife Protection Act, 1973. In Section 9, complete protection is accorded to 26 species of mammals, nine species of birds and three species of reptiles, although little has been done to systematically enforce these provisions even outside the national park boundaries.Since the project area lies outside the National Parks, Wildlife Reserves and Conservation Areas, the Act provisions are not applicable to the project.

Rule 30 of the Mountain National Parks Regulations (1979) stipulates that permission from the Government of Nepal, Ministry of Forests and Soil Conservation must be obtained in case of any plan to be implemented within a mountain national park.

3.2.11 Labour Act, 991

The Labour Act mandates the employer to give priority to the Nepalese citizen while employing personnel and workers in a company. After a year of service, the company or employer has to employ the workers permanently with broadly defined position, roles and responsibilities and the pay scale. But an employee under contract for short duration of time will not entitled for permanent employment. The employer could terminate the employee with prior approval of the Department of Labour and prior notice to the employee as defined by the law. The Labour Act prohibits the employment of children or under-aged persons. The employer could not force the workers to work for long hours other than defined by the law. The employer has the responsibility to ensure healthy environmental conditions of the workplace as defined by the law.

3.2.12 Explosive Act, 1961 as amended 1974 and 1991

The Act defines the explosive matters and reserves the right to the government to define the explosive as per the requirement by publication of a notice. Without holding the license from the government authorised person, individuals/institutions are prohibited to manufacture, use, sell, transport or import/export explosives defined by the government. The licensee has the obligation to report in case of accidents while manufacturing, using, selling, storing, and transporting of the explosive. Those not complying with the provisions are treated as offenders of the law and are punishable as per the law provisions.