The discussions in the State on the Mullaperiyar issue, in the light of the Report of the Empowered Committee on Mullaperiyar, centres round three major features: one, the conclusion that “the proposal of State of Kerala to build a new dam requires to be reconsidered,” as it has found the “Mullaperiyar dam hydrologically, structurally and seismically safe”. Two, suggestion made by the EC for two alternatives, first, construction of a new dam and second a new tunnel at EL. 50 ft as an alternative for finding an amicable solution; and three, the separate notes by Justice (Rtd.) K T Thomas, member of the EC which calls for retaining the water level in the dam at 136 ft., and the one by Justice (Rt.) A R Lakshmanan, member EC, calling against the EC making any suggestions and alternatives.

The EC has found the main and the baby dam (gravity and earth) as structurally safe and has allowed the restoration of FRL to pre -1979 level (142 ft). The major contention of Kerala, the issue of seismic safety, has also been addressed and the EC has found that the dam seismically safe. The recent earthquake activity in the dam area was considered of no consequence to seismic safety. It has also ruled out the existence of a geological fault in the Baby Dam foundation.

Kerala had cited Precautionary Principle in seeking EC’s consideration of the new dam proposal if the Committee were slightly ‘uncertain’ about the safety of the dam. According to the Report, “as EC has found the dam safe, the precautionary principle is not applicable, even according to Kerala.” EC considers that Dam Break Flood, (DBF) analysis and Emergency Action Plan (EAP) do serve as ‘precautionary measures’, the Report says.

Suggestions for Alternatives: The mention of a new dam appears in the Report for the first time in its chapter VIII where the EC suggests, for the consideration of the Supreme Court, two alternatives as “Way Forward: Towards an Amicable Resolution” of the issue. Kerala “may construct a new dam, at its own expense to serve its own perceptions, if techno-economically cleared by the Planning Commission and cleared by MoEF in accordance of their regulations,” says the Report as the First Alternative.

However, operationalisation of this alternative is bound by a set of seven conditions which include execution of a new MoU between Kerala and Tamil Nadu; putting in place a committee/board to be chaired by Government of India with representatives of the two States as members; settlement of power generation rights of the two states, and terms of rent/levies etc. payable by Tamil Nadu to Kerala, before hand.

The other condition is that Tamil Nadu “will be entitled to all its existing rights including all water levels under the Lease Deed of 1886 and 1970”. The Report also makes it clear that “before the construction of the dam and till its commissioning, the existing dam will be strengthened by measures suggested by the Central Water Commission (CWC), including Dam Safety requirements … which remain to be carried out.” The decommissioning or the demolition of the existing dam would be subject to the five conditions, the Report says.

The second alternative, the construction of a new tunnel will have to be taken up by Tamil Nadu, the Report has said. This would not only help Tamil Nadu use the water stored at the levels between 50 ft and 106 ft where the existing tunnel starts, but also help evacuation of storage faster and better, in case the dam develops any distress.

Comment by Justice A R Lakshmanan: While the note by Justice Thomas has been widely discussed, that by Justice A R Lakshmanan, appears to have receive little attention in the discussions in Kerala. Commenting on the suggestion of joint control, management operation and regulation of the New Dam, Justice Lakshmanan has said that it would only create further confusion and friction between the two States. He says that the EC “may stop with the conclusions that the existing Mullai Periyar Dam was hydrologically, structurally and seismically safe and there is no need for construction of a new dam as proposed by Kerala, instead of making any further suggestions/ alternatives.” “The alternative suggestions were merely based on certain hypothetical situations which…the EC need not concern itself with,” he said.

“The empowered committee may submit its categoric(al) and lucid conclusions … and leave it at that without giving any alternative suggestions which…. is not warranted at this stage,” he noted.