Rejects Tamil Nadu's stand that a new dam is not necessary as the present one is safe

Despite the unanimous opinion of two experts of the Supreme Court-appointed Empowered Committee that the 116-year-old Mullaperiyar dam is safe, Kerala has pressed for the construction of a new dam.

In a fresh application filed before the committee, Kerala said, “The public authority is endowed with responsibility to take a final call on the replacement of a dam by considering the human factors, viz., the extent and nature of damage to life and property, if dam fails and ecological considerations.”

Rejecting Tamil Nadu's stand that a new dam is not at all necessary as the present dam is safe, it said: “Notwithstanding the unanimous technical opinion or where the technical opinion is divided (or not sufficiently available), the public authority is competent to replace the old dam by applying the precautionary balance of convenience. In matters of public policy, the test cannot be [an] imminent threat or a balance of probability, but should be [a] balance of possibility.”

Kerala maintained that expertise was necessary, but it was neither the sole basis nor the sufficient rationale for decision-making by either court or regulators on the risk or perceptions of threat to life, health and environment.

“When a dam is to be replaced or decommissioned on threat perceptions is a subject which falls within the province of policymakers. The public authority should take a policy decision based on various factors: the dangers posed, the age of the dam, structural degeneration, the cost of maintenance, the extent and nature of damage to life and property if dam fails and ecological considerations. In a given case, the technical opinion may unanimously rule out inherent flaws in a dam. But such unanimous technical opinion cannot be the sole test for deciding whether the dam should be replaced or not,” it said.

Quoting a recent judgment of the European Court, it noted: “Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take proactive measures without having to wait until the reality and seriousness of those risks become fully apparent.”

In response to a query from the committee whether the construction of a new dam would in any way affect water supply to Tamil Nadu, Kerala pointed out that it filed a reply on October 27, 2010, saying “benefits arising from the new Mullaperiyar dam would be shared between the States of Kerala and Tamil Nadu as mutually agreed upon by signing an agreement or as decided by the Supreme Court based on what is just and equitable.”

It submitted that the “just and equitable” benefits of the new dam would mean sharing of benefits between Kerala and Tamil Nadu in the following manner — “Consumptive benefits: the State of Tamil Nadu may draw the entire quantum of water, except 1.1 TMC required for meeting the environmental flows during the summer months from January to May; non-consumptive benefits: the electricity generated by diversion of the Periyar waters from the new dam by the State of Tamil Nadu is liable to be shared equitably as fixed by the Supreme Court; Riparian benefits: the State of Kerala, being the riparian owner of the banks of the Periyar, shall have exclusive right to fishing and tourism in the backwater of the new dam.”

Rejecting any intervention by the Centre, Kerala said: “Neither the central government nor the Central Water Commission has any statutory power to look into the safety of dams or reservoirs located in the States.”

“A Bill in this regard was introduced in Parliament, titled ‘the Dam Safety Bill 2010.' However, the Bill has not been passed as yet. Even this Bill does not apply to the States unless the States pass a resolution under Article 252(1) of the Constitution as mentioned in the Statement of Objects of the Bill,” it said.