Mullaperiyar- fresh litigation will be ill-advised at this stage

Kerala Government plans to approach the Supreme Court yet again on the Mullaperiyar issue— this time over the alleged failures of the supervisory committee appointed by the Court to properly manage release of water from Dam through the spillways.

This is just an attempt by the politicians to buy time and hoodwink the public. The supervisory committee has representatives of Kerala and Tamil Nadu and Central Water Commission. The question of failure to issue timely warning before release of water through the spillways is a matter that the State government should be able to settle administratively, if necessary seeking intervention of the Centre. It will not be appropriate to agitate the Supreme Court now.

Moreover, it is not Kerala’s case that the Tamil Nadu did not warn it of impending release of water. There were reports that Theni Collector did so a few days ago. The complaint is that the Idukki Collector was not informed six hours before the release. Tamil Nadu apparently wanted to record that the water level touched 142 feet. When water level reached 141.9, it became imperative for Tamil Nadu to release water immediately as the inflow was very heavy. There needs to be an understanding on gradual release of water without waiting for the water level to touch 142 feet.

Kerala should also insist upon its lower riparian rights. The Expert Committee appointed by the Supreme Court had mooted construction of a tunnel to drain water into Periyar River downstream. This is also important from the point of view of safety. All modern dams have Bottom outlet tunnel which will facilitate emptying of the dam in case of an emergency—the Mullaperiyar dam does not have one, being one designed in the 19th century.

Every time Kerala has gone to Court over the Mullaperiyar issue, it has led to closure of its options. It has already lost its case that Tamil Nadu should raise the water level of Mullaperiyar beyond 136 feet only after exhausting storage at Vaigai Dam and that the spillway shutters should be opened gradually. In fact, when Kerala is arguing that the dam is not safe, it should be prepared for sudden release of water. This was what was lacking downstream of Mullaperiyar this Monday.

Kerala has failed to set up monitoring facilities it proposed on earlier occasions downstream of the Dam. Around 50 monitoring installations on the dam and reservoir, under control of Tamil Nadu, are reportedly not functioning. This is an issue that Kerala should be taking up legally or administratively. Even a modern dam without functioning monitoring equipment is unsafe.

Kerala had rushed to nullify a Supreme Court order of 2006 though legislation within weeks of the Court issuing the order. The legislature in its wisdom fixed the water level at 136 feet without building up supporting material. The Kerala Dam Safety Authority, which is a quasi judicial body, on the other had could have commissioned international studies on Mullaperiyar under the law and fixed the water level appropriately which would have been difficult to question before the Supreme Court.

When the Court quashed the law, Kerala suffered a multiple blow. Its arguments had led to the Supreme Court appointing a supervisory committee. As the supervisory committee of the Supreme Court is now managing the water level, it could put blame on Tamil Nadu only if it disregarded directives of the committee. Kerala will not even be able claim damages from Tamil Nadu for any losses caused by release of water or dam failure.

Kerala had ample time to prepare internationally acceptable documents on safety of Mullaperyar Dam from 2006 and even before. But it always rushed to do studies at the last minute. When safety of the people was paramount, one of the first studies it commissioned over a short span of time after 2006 was on submergence of forests and wildlife. (An analysis of errors in that study is available here. The author had to admit before Court that he had done a copycat job of work done by a State agency.)

Though there was an erroneous observation in the 2006 judgment (See Mullaperiyar- behind the veil.) that waters from Mullaperiyar would be contained in Idukki reservoir in case of failure of the former, Kerala failed to complete and produce the Dam Break Analysis before the Supreme Court in the case filed by Tamil Nadu challenging Kerala’s dam safety law.


 

Extract from judgment
Extract from the judgment of Supreme Court in ORIGINAL SUIT NO. 3 OF 2006 between Tamil Nadu and Kerala

Though the State Information Commission has ruled that this and other studies are public documents, the Principal Secretary of Water Resources Department has issued an illegal order against release of documents pertaining to the Mullaperiyar Dam as long as the issue is under litigation. Perhaps this is one reason why it wants another litigation.

As its strategies have failed so far, it is high time that it reconstituted the Mullaperiyar Special Cell with fresh talent and drew up fresh strategies.

For further reading:

Mullaperiyar: Kerala seeks review of Probable Maximum Flood

 

 

 

 

Moving NGT on Mullaperiyar can boomerang on Kerala

Kerala’s move to approach the National Green Tribunal against raising of the water level in Mullaperiyar dam is likely to boomerang on Kerala.

Environmental arguments similar to those against raising of reservoir level can be raised against lowering the reservoir level also.

In fact, changes to the ecosystem created by the dam and its water will be more pronounced while lowering the water level.

Kerala’s argument is that the raising of water level in the reservoir submerged nearly four decades old vegetation just above 136 feet level in Periyar Tiger Reserve. Lush vegetation including some specialised species have grown in the local environment created by lowering of the water level.

Now, let us look at what will happen if water level is reduced to 132 feet as demanded by Kerala at one point of time, or eventual phased decommissioning of dam. Lowering of the water level will result in the water table going down in many parts of Periyar Tiger Reserve. This would cause a relative drought conditions in many parts of the Sanctuary compared to the present situation and will loss of biodiversity and density of vegetation. The specialised species will not survive in its original location.

Legal position:
Environmental impact argument is something rejected by the Supreme Court in its 2006 verdict itself. However, Kerala tried to raise it again when Tamil Nadu challenged Kerala’s dam safety legislation before Supreme Court. For doing this, it commissioned a scientist from West Bengal, who produced a study report within a matter of weeks. The report had several errors and it was essentially a reproduction of arguments made by KFRI over which Kerala had argued its case earlier. Though these mistakes had been pointed out, Kerala went ahead with producing the author as a witness before the Court. During cross-examination, he admitted he had copied from the KFRI report. This meant that Kerala had no new argument or point to be presented before the Court. Now, Kerala is trying to revive its lost cause by approaching NGT.  It is not even considering the fact that Supreme Court is above NGT.

In any case it will be a win-win situation for TN. If the NGT rejects Kerala’s prayer, TN will have another handle. If it upholds Kerala’s argument, TN can use it in future against lowering of the water level or decommissioning of the dam.

Kerala’s argument goes against what the State itself is proposing to do. The new dam it is proposing to build at Mullaperiyar will submerge some areas of Periyar Tiger Reserve. It is also seeking Central clearance for raising the height of Peppera dam near Thiruvananthapuram by at least three metres submerging about 80 acres of forest. Though the area submerged by increased water level in Mullaperiyar dam is larger than these, the forests that would be submerged by the new Mullaperiyar dam or augmentation of Peppara dam are part of ecosystems that are hundreds of years old. Obviously, much more value is to be attached to the latter.

Moreover, Kerala has done the same thing that TN is doing. Water level at Idukki reservoir had remained low for about three decades. Kerala carried out augmentation scheme under Idukki project to improve inflow. None batted an eyelid, when vegetation that grew over the period was submerged by increasing water level. Besides, the area being submerged at Mullaperiyar was leased to TN much before the enactment of environmental laws.

If we really care for environment (instead just using environmental arguments with the wrong belief that it will win a case in which the key issue is safety), we should demand environmental flows downstream of Mullaperiyar dam, abandon the proposal for new dam and seek phased decommissioning of the old dam.

Mullaperiyar: Directive against disclosure of dam break analysis

Additional Chief Secretary (Water Resources) of Kerala K. Jayakumar (now the Chief Secretary) has directed that the Dam Break Analysis (Mullaperiyar dam to Idukki Reservoir) should be denied to applicants seeking copies of it under the Right to Information Act.

The Additional Chief Secretary cites Clause 8 (b) of the Act for denying the public copies of the dam break analysis. However, there is no such Clause in the Act. There is, however, a clause 1(b) under Section 8 which states that information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court could be denied to applicants. But, the Office of the Chief Engineer (Inter-State Waters) has failed to provide copies of any court order forbidding publication of the Analysis.

Order against disclosure of Mullaperiyar dam break analysis

Order against disclosure of Mullaperiyar dam break analysis

Moreover, the analysis in question has been placed before the Assembly, and so, it has become a public document in every sense of the term. Moreover, Water Resources Minister P. J. Joseph himself had held a press conference disclosing findings in the Analysis at Thodupuzha.

It is also notable that it is the practice world over to publicise results of dam break analysis and inundation studies so that the people are aware of the risks and safe areas. In some countries, it is mandatory to do such analysis and prepare evacuation plans at the time of construction of dams itself. These plans are always brought to the notice of the people and local authorities.

This blog has published map showing  area of submergence from the report of the Mullapeiryar Dam Break Analysis. Mullaperiyar Dam Break Analysis

The full report of the dam break analysis is at Expert-Eyes.Org
You may also want to  read: Mullaperiyar: behind the veil

Mullaperiyar dam break analysis: area of submergence

Much of the discussion in the Dam Break Analysis (Mullaperiyar to Idukki reservoir) done by the Indian Institute of Technology, Roorkee, is about the height and speed of the water flow in case of failure of Mullaperiyar dam. As to the lives of people living downstream of the dam, it matters little whether the water would be flowing in at a height of 40 metres or 20 metres or with a velocity of 40 kilometres a hour. Even water flowing at, say, ten km an hour and a few metres high will claim lives. But width of the flow matters as that determines who all living near the river course would be affected.

The analysis shows that the top width of the flow would be less than 300 metres for the first 30 km of the path of flow along the river course. For the rest of the 15 km before reaching Idukki reservoir, the top width exceed half a km only at two points. However, the accompanying inundation maps show that water could spread out in low lying areas.

The study does not say anything about the chance of small hills or elevated portions on the sides of the river course being breached and water flowing into Pathanamthitta district.

Given below are the inundation maps. They are photographs of the original map prepared by the IIT. The image is not to scale because of distortions resulting from placement of the map and camera perspective. Locational information may be visible only in terms of longitudes and latitudes in the photo except for a few place names such as Vallakkadavu, Vandiperiyar and Upputhara. (The original map is a larger one plotted against a top sheet of 1:25000 scale.)

Dam break analysis

Map showing area that would be inundated by dam break flood from Mullaperiyar

Split Map 1:

Mullaperiyar- inundation-Upputhara

Map showing area at Upputhara that would be inundated by dam break flood from Mullaperiyar

Split Map 2 Mullaperiyar-inundation-Vandiperiyar

Map showing area at Vandiperiyar that would be inundated by dam break flood from Mullaperiyar

Analysis and discussion of results forming part of the Dam Break Analysis.
Mullaperiyar Dam break analysis by IIT Roorkee in full