People's Democracy

Kedar Valley: Privatising a River

Smita Gupta

MANDAKINI is a snow-fed river from the Chorabari glazier in the Kedarnath hills and flows through the Kedar valley mostly through deep gorges for 82 km before merging with the Alakananda at Rudraprayag. Its perennial flow and unique cascading terrain make it a rich source of run-of-the-river hydroelectric power. Unlike thermal and nuclear power, properly devised cascading RoR hydro-electricity projects have the advantage of being clean, renewable and non-polluting. They are also superior in terms of social costs to storage dams since submergence and displacement are negligible, if any. However, the operative issue is the choice of technology, and it is well accepted that open canals (not underground tunnels); partial obstructions (not diversion barrages) in sparsely populated areas should be the principles guiding design decisions. All these have been undermined in the cases under discussion.

The government of Uttarakhand has approved a series of schemes along the river, and two of these are Phata-Byung with a capacity of 76 MW at a cost of Rs 484 crore and Singoli-Bhatwari with a capacity of 99 MW and cost of Rs 666 crore. Both of these are in the private sector and are being implemented by Larsen and Toubro P Ltd and Lanco Hydro P Ltd, respectively. Apart from these, a 151 MW is under planning through three projects at Rambara, Agastamuni and Tilwara. It is officially admitted that 50 kilometres or 61 per cent of the river will go throw tunnels within mountains and will not be available in “natural condition” to the local inhabitants with a weak provision of 10 per cent minimum flow in one project only. What this means is that for 51 kilometres, at least 90 per cent of the river’s water will just vanish into diversions and underground tunnels, fully and exclusively used by the private companies, thus resulting in the drying up of irrigation and drinking water both from the river and perennial springs. This is a serious case of privatisation of rivers which has naturally led to a huge public outcry.

UNITED

STRUGGLE

For three years since 2007, a protracted, united struggle has been launched at the initiative of the Kisan Sabha and the CPI(M) by a broad-based mobilisation of all sections under the banner of the Kedar Ghati Sangharsh Samiti. The state general secretary of the Kisan Sabha, G D Nautiyal, is also the president of the Samiti while the CPI(M)’s district secretary is an important leader of the Samiti. There have been several protest actions like dharnas etc, and in many villages where the private companies have carried out illegal activities, the party and Samiti have been effective in stopping it. They have had to face repercussions in the form of police repression and in one week of December alone, 7 cases on trumped-up charges were filed against 18 leaders of the Samiti, many of whom are Kisan Sabha and CPI(M) leaders. Nautiyal alone has 10 false cases foist upon him. Several women who have been at the forefront of protecting the trees against illegal felling, have been similarly victimised. Seven women of Birasu village were arrested by the police and kept in the police lockup where they were threatened that they must give up the struggle. One of the village pradhans, Sunita Thakur, has been physically threatened. This courageous activist has been in the forefront of mobilising women in all the villages.

The Samiti representatives, along with Brinda Karat, CPI(M) Polit Bureau member and a member of parliament, held two rounds of meetings with the union environment minister, Jairam Ramesh. In response to a memorandum submitted by the Samiti in April 2010, the Ministry of Environment & Forests (MoEF) sent a committee to the area which prepared a Status Report (MoEF, June 2010, Report to Assess the Status of Environmental and Forest Clearances of Hydropower Projects on River Mandakini). Even though the report itself lists the clear violations of the conditions set by the ministry for environmental clearance, it concludes that the project may continue. The Samiti gave a detailed response in protest against this inexplicable conclusion. At the second meeting with the minister, the latter assured that the work on the worksites would be stayed and a show cause notice issued to the companies on the violations. However, this was not done and the work is continuing, aggravating the situation in the hills. Hence a delegation of the CPI(M) visited the sites at the invitation of the Samiti. I joined the team comprising Brinda Karat, Bacchiram Kanswal (state Kisan Sabha president and Uttarakhand CPI(M)’s state secretariat member) and others on January 10 and 11, 2011. A large public meeting of 24 project affected villages was held in Ukimath, addressed by the leaders, where a dharna has been in progress for several weeks. Later the delegation led by Brinda Karat along with members of the Samiti had a meeting with the state’s chief minister, Ramesh Pokhriyal Nishank. A detailed memorandum was given to him. He said he would take appropriate action.

DENIAL OF

RIPARIAN RIGHTS

It is of some use at this stage to look at the issue of access to the river water in a democratic rights-based framework. As per the law, all the project affected persons who live adjacent to or on the bank of the river have riparian rights as per the common law doctrine of riparian rights which has been codified in India by the Indian Easements Act 1882. This means that every riparian owner is entitled to the continued water flow of a natural stream, without any obstruction or pollution and undiminished in quantity and quality for drinking and household purposes, for watering their cattle, for irrigating their land, and for the purpose of manufacture subject to conditions that: (a) the use is reasonable; (b) it does not damage or diminish rights of downstream riparian owners.

Can the government take actions that deny riparian rights to individuals without their consent and without adequate and acceptable recompense?

The Indus Commission and subsequently the Narmada Commission and the Ravi-Beas Commission held that while the rights of the government are wider than those of an ordinary upper riparian owner, they have to either be governed by statute or the local custom. In the case of Uttarakhand, a clear statute exists that no denial of riparian right is possible without the consent of the local community or Gram Sabha.

It is therefore clear that

(a) A private company is subject to the Indian Easements Act 1882 and required to respect the riparian rights in the lower reaches.

(b) The consent of the Gram Sabha as per the statute and custom is essential in all instances where riparian rights are affected, whether it is the government or a private company that is involved.

GROUND

SITUATION

There are two water sources that are affected by these projects.

(a) The first is the river Mandakini itself which is not available in natural flow for 35 kilometres under these two projects, and about 95 per cent of the river (average of 90 per cent in one and 100 per cent in the other) for this entire length (in two parts) disappears under the mountain in the exclusive service of the private power generation company.

(b) The second is the large number of mountain springs that are the main life source for water for the residents in the upper reaches and many market centres, which are drying up or disappearing in the tunnels.

Shockingly, in the Phata-Byung project, “no provision has been proposed within the dam for releasing minimum water as environmental flow” (p 5). In the case of the Singoli-Bhawari project, provision has been made to release 10 per cent minimum flow in the lean season. Interestingly, the MoEF report indirectly accepts the Samiti’s criticism when it demands additional conditions to be imposed in the environmental clearance by insisting on a “natural flow of water in the river Mandakini during lean season in total stretch of about 35 kilometres falling within these two projects” (p 26).

The MoEF team confirms the drying up of perennial streams drying up at a site where “natural spring has dried and water is coming out of the tunnel” (p 5). They recommend that “the immediate need is to provide alternative water supply by the project authorities to the affected areas..… high density forests may be developed in these areas….. as a long term measure” (p 26). Thus, the projects are clearly violating the riparian rights of the people.

SIDELINING

GRAM SABHAS

Does this have the consent of the people through their Gram Sabhas?

The simple answer is no.

In a startling instance of fraudulent manufacturing of consent, it was found that the ‘no objection certificates’ that were acquired (strangely, signed by the pradhan on the letterhead of Larsen and Toubro) were not accompanied by resolutions of the Gram Sabhas and no Gram Sabha meetings were held as is required under the law. In fact, over three-fourths of the Gram Sabhas have passed resolutions opposing the projects. These were submitted to the government but were not taken cognisance of.

DEBRIS DISPOSAL

AND POLLUTION

Riparian rights also extend to the quality of water. The high quantum of muck and debris generated through tunnelling to make the main tunnel and adits has to be disposed in a manner that prevents their spillage into the natural drainage and Mandakini as well as suffocation of the forest and vegetation through indiscriminate dumping along the hill slopes. They were to construct gabion/wire crate walls and reclaim designated dumping areas for project construction.

Instead, the muck is strewn all over the hills, choking the underlying vegetation and blocking the natural drainages of mountain streams and waterfalls. The runoff carries the muck into the river, polluting it. Even the MoEF noted that “muck disposal was not done properly” (p 7) and that there was “slackness in proper management of muck disposal” (p 7). It added that the “sites are fully filled with muck but not covered with geo-membrane or proper stabilisation measures” (p 13) and that the crate and gabion wall slopes are not stabilised, “resulting in the chance of spillage in the river in the event of flash flood and heavy rainfall” (p 5). “All muck disposal sites were found uncover(ed) in the project site” (p 22) without retaining structures or gabions. Reclamation work had not started even in January 2011 even though the committee had recommended six months ago that “the reclamation should be carried out systematically and (in a) scientific manner using geo-textile and plantation..… to prevent erosion/surface run-off” (p 22).

UNAUTHORISED

FELLING OF TREES

In Uttarakhand, no trees can be felled without the written permission of the Van Panchayat. Appropriate method of tree felling in sloping areas must be observed to minimise erosion. However, the MoEF report itself concludes that “proper norms of felling were found missing” (p 7). Several Van Panchayats have passed resolutions and written to the district and state authorities stating that their objections were completely ignored by the project authorities. These were submitted by the delegation led by Brinda Karat to the chief minister on January 12.

In fact, there are several cases where people were victimised when they tried to prevent illegal felling. Five scheduled caste families were served notices by the company, demanding a compensation of Rs 5 lakh per day from them for causing losses to the company for stoppage of felling. The delegation gave these too to the chief minister.

LANDSLIDES, CRACKS,

NOISE POLLUTION

The Himalayas are young fold mountains still in the making as the Indian subcontinent has been pushing into Asia and the Tibetan plate at the rate of 47 mm per year. It falls in Zone 5 of seismological classification which expects the highest level of seismicity, and is classified as ‘destructive’ at Level IX (on a maximum scale of XII) on the Medvedev-Sponheuer-Karnik scale where there will be substantial damage to “well-constructed structures, underground pipelines will rupture with ground fracturing and widespread landslides.” Through the Kedar valley, landslides are visible everywhere. The frequency and intensity of landslides increases with dynamiting and the burrowing through these mountains to build tunnels and adits.

Blasting with dynamite is in fact permitted only in exceptional circumstances in the region since it is undesirable.

The slopes are weak and will be destabilised by the blasting. A reactivation of geological faults is likely, causing landslides resulting in devastation of life and biodiversity. And the debris causes environmental damage by suffocating forests and grasslands, adding load in the rapidly flowing rivers and destroying agricultural fields and villages. And yet, as the district administration has admitted, 300 kg of dynamite per are being used in the Phata-Byung project and a boggling 800 kg per day in the Singoli-Bhatwari project as a routine part of the construction, and not as any exception. Despite orders by the administration (p 9), blasting continues to be done at night, causing disturbance.

The evidence is also in the large number of houses (old and new, poorly structured and well structured) that have developed huge cracks. This has been confirmed by the PWD and recorded in the report (p 9) though compensation has only been given to a few of the affected persons.

The project authorities have made a complete mockery of the MoEF process.

In Phata-Byung, the catchment area treatment has not started; information about blasting method and quantity of explosives is not provided; “project authority has not provided the relevant documents regarding fulfilment” of the condition of public hearings;” “project authority is yet to provide detailed information with respect to Biodiversity Conservation and Management Plan;” muck/solid waste disposal plan is “yet to comply fully;”  the supplementary fish stocking programme to protect snow trout “is not complied with;” and there is no provision for “minimum environmental flow” (pp 12-13).

In the Singoli-Bhatwari Project, compliance reports have not even been submitted (a violation of the conditions).  Catchment area treatment has not started; information about R&R is not available; there are “weak arrangements for slope stabilisation” and “proper stabilisation measures need to be provided.” Only one settling tank for high suspended solids from the stone crusher is provided; “other major conditions such as fulfilment of conditions for public hearings, noise reduction measures….. could not be ascertained in absence of detailed compliance which is not submitted by the project authority” (pp 17-18). Multi-disciplinary committees “with representatives from various disciplines, NGOs, etc to oversee the projects” has not been constituted in either case.

Thus, quite apart from the representation of the local community through the Samiti, and the consideration of social and ecological damage, the abysmally poor level of compliance with MoEF conditions for environmental clearance should be ground enough to halt the projects immediately and impose exemplary penalties on both Lanco and L&T.