Dam Safety

Dam Safety Bill 2019: Will it help prevent Dam Disasters in India?

1979 seems to be a watershed or may be bloodshed year about Dam Safety in India. That year, Central Dam Safety Organisation was for the first time set up in CWC (Central Water Commission). That was also a year in which over a 1000 delegates from all over the world gathered in Delhi under the aegis of ICOLD (International Commission on Large Dams). But the most important event or rather gruesome tragedy preceded both these developments. On Aug 11, 1979, the Machhu II dam disaster happened in Morbi in Saurashtra, Gujarat, that killed between 2000 (officially accepted by Central Water Commission) to 25000 people (local estimates).

The unfortunate fact is we still do not know who was responsible for that Dam Disaster. The real story of that disaster came out 33 years after the 1979 disaster in 2012, when Utpal Sandesara and Tom Wooten’s iconic book “No One had a Tongue to Speak” was published. The book clearly showed how the Central Water and Power Commission (antecedent organisation of CWC) and Gujarat government dam designers were responsible for the dam with spillway capacity of 2.2 lakh cusecs, when the dam received on Aug 11, 1979 over 6.75 lakh cusecs, among many other failures. The book also brings out how the post disaster inquiry was abandoned and truth never came out about who was responsible for the India’s worst and one of the World’s biggest dam disaster.

But that fact is true for almost every dam disaster in India, whether due to structural failure of dams that happens less frequently or due to the operational failure of the dams that happens almost every year, with increasing frequency. We never get to know who was responsible for those disasters.

We never get to know who was responsible for these disasters, since CWC always stands up to save the dam engineers. CWC did that for the Aug 2018 Kerala flood disaster, for which even the High Court appointed Amicus Curie said that dams worsened the flood disaster.

The same CWC is in charge of Dam Safety in India as per the Dam Safety Bill introduced and passed by the Lok Sabha in August 2019. The bill will become an Act once the Rajya Sabha passes it.

Changing Approach to Dam Safety in India Some quick recapitulation of changing approach to Dam Safety in India.

  • 1979: Central Dam Safety Organization was established in CWC[i]. Interestingly, the Golden Jubilee Congress of the ICOLD was held in Delhi during Oct 29 to Nov 12, 1979[ii] and one of the key subjects of discussion was “Deterioration or Failure of Dams”. Interestingly, the 88th Annual meeting of ICOLD will also happen in Delhi in April 2020[iii] and will also focus on issues related to Dam Safety besides other subjects.
  • 1982: The Government of India, Ministry of Irrigation constituted a Standing Committee to review the existing practices and to evolve unified procedures of dam safety for all dams in India, under the Chairmanship of Chairman, Central Water Commission.
  • Oct 1987: The National Committee on Dam Safety (NCDS) was constituted by the Government of India by broad basing the then existing Standing Committee to include all the States having significant number of large dams.
  • Draft Dam Safety Act 2002 circulated to states: CWC Annual report for 2003-03 said: “Draft Dam Safety Act, 2002 duly approved by MOWR has been circulated to States for enacting legislation in respective Assemblies. Once this is done, legislation in the Parliament at the centre can be taken up. The States are being pursued and reminded to enact the legislation at the earliest. Secretary, MOWR had taken the meetings with various Secretaries of States during Aug/ September, 2003 and requested for speedy legislation. The response in clear terms has not been received from any state.”
  • 2010 Dam Safety Bill The 2010 Dam Safety Bill, recognizing that water in India is a state subject, was brought under article 252 of the constitution, which meant that even when the bill becomes act it would be effective in any state only after the state assembly also passes the act, it said: “AND WHEREAS Parliament has no power to make laws for the States with respect to any of the matters aforesaid except as provided in articles 249 and 250 of the Constitution; AND WHEREAS in pursuance of clause (1) of article 252 of the Constitution, resolutions have been passed by all the Houses of Legislatures of the States of Andhra Pradesh and West Bengal to the effect that the matters aforesaid should be regulated in those States by law made by the Parliament”.
  • 2011 Parliamentary Standing Committee Report The 2010 bill was referred to the Parliamentary standing committee. The Parliamentary committee in its report in May 2011 gave wide ranging recommendations for improvement of the bill. Some key recommendations of the Committee include: “The Committee feel that it took an undue long period to formulate the Bill on dam safety for which process was initiated long back in the year 1986 and, surprisingly, it took almost 25 years to come before the Parliament… The Committee feel that the Bill will not prove as effective as it should in the absence of any penal clause for such grave omission. The Committee are of the considered view that the statutory provision for punishment will be a deterrent and also add to the sense of responsibility among the dam owners or persons responsible for the maintenance of the dam. As the safety of dams is of paramount concern, the Committee recommend that the provision to impose penalty for dam failure and causing disaster in the downstream/upstream of dam be suitably incorporated in the Bill… The Committee note that there is no mention in the proposed Bill regarding constitution of an independent regulatory authority to keep an overview the implementation of the Dam safety measures as contemplated… The Committee note that there is no provision in the Bill to compensate the affected people in case of any disaster taking place due to the failure of the dam. They, therefore, desire that an adequate provision be made in the Bill for compensation to the affected people… The safeguarding of human life, livestock and property‘ is mentioned in the Preamble of the Bill whereas safety of aquatic life and natural resources which would also be adversely affected due to the dam failure has not found any place.” The Union Ministry of Water Resources told the Committee, about why the bill was being brought under Article 252: “The ownership of dams and their maintenance predominantly falls in the purview of the State governments and is given effect by them. As of now ‘regulation of the safety of dams’ has not been declared by the Parliament to be expedient in public interest.”
  • 2018 Dam Safety Bill However, the approach of the government significantly changed when the 2018 bill was introduced in the Parliament on Dec 12, 2018. However, the 16th Lok Sabha was dissolved with end of its term in May 2019, before the bill could be passed, thus the bill lapsed.

Dam Safety Bill 2019 The Bill in its “Statement of Objects and Reasons” said in the context of lapse of the 2010 bill: “Owing to significant changes/modifications entailed in the Bill while complying with the recommendations of the Parliamentary Standing Committee, the Ministry of Water Resources decided to withdraw the Bill and to introduce the modified Bill as a new Bill in the Parliament. Meanwhile, the term of the 15th Lok Sabha came to an end, and therefore the Dam Safety Bill, 2010 lapsed with the dissolution of 15th Lok Sabha.” However, if we see some of the recommendations of the Parliamentary Standing Committee in response to the 2010 Dam Safety Bill (DSB), we see that a number of them including compensation to the victims, highlighting the risk to aquatic biodiversity and fixing accountability have either not been attended to or not attended to adequately.

One major change in the DSB 2019 is Clause 2, which reads: “It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of uniform dam safety procedure for specified dam to the extent hereinafter provided.” This was not there in DSB 2018 and this is clearly a departure from the approach of DSB 2010. On the one hand this is required to fulfil the constitutional requirement under entry 56, Parliament declaring that it is expedient in public interest to legislate on Dam Safety. This than does not leave it to choice of any state to pass the DSB by state assembly to make it applicable in that state. The bill, once it becomes act, will automatically become effective in all states and union territories. At the same time, this is likely to raise fears of some states, as were expressed during the brief debate in Lok Sabha before it passed the DSB 2019. Most other changes in the DSB 2019, compared to DSB 2018 are minor ones.

Key shortcomings of DSB 2019 Some of the major short comings of the DSB 2019 are listed here. If these are not changed, there is little chance of DSB 2019 making any major difference on ground.

  • Weak definition of Operational Safety Every dam, when not operated properly, with objective of flood moderation for the down stream area, can end up being a potential source of flood disaster in the downstream area, every year. This potential is even higher in changing climate with increasing frequency of high intensity rains. In this context, clause 4(f) defines “Dam failure” as: “failure of the structure or operation of a dam which leads to uncontrolled flow of impounded water resulting in downstream flooding affecting the life and property of people and the environment including flora, fauna and riverine ecology”. There is Explanation given: “For the purposes of this clause, failure in operation shall mean such faulty operations of the dam which are inconsistent with the operation and maintenance manual.”

This is totally inadequate. Even when all the gates of the dams are opened up, the dam operator can claim it was still not “uncontrolled” flow” even if it leads to disaster in downstream area. Secondly, operation and maintenance manual is not even in public domain, nor is it legally defined document with specific language. So what is inconsistent with such a manual is at best grey area, at worst, manipulable to including anything.

What is required is that if the water releases from the dam were to lead to flow in the downstream river, beyond the (latest updated) carrying capacity of the downstream river, then such dam releases should be counted as contribution to flood disaster. Particularly when the rainfall over the past week has been forecast and the weekly rainfall does not exceed certain (say 400) % of the normal weekly rainfall. The (updated) O&M manual in any case should be in public domain for all dams as also the daily storage, inflow and outflow for each dam, promptly on the following day, everyday during monsoon.

  • Risky dams excluded Some of the high risk dams that remain excluded from the definition of specific dams in DSB 2019 include: Under construction dams, Ash ponds and mining tailing dams.
  • Compensation for the disaster victims The DSB 2019, as recommended by the Parliamentary Standing Committee in 2011 report, must include clause for compensation for the victims of every dam disaster.
  • Why CWC should not be in charge of Dam Safety Mechanism CWC has had a poor track record in terms of ensuring safety of dams. On the contrary, CWC has always come out in defense of faulty dam operation and even in case of dam disaster. Moreover, CWC being in charge of sanctioning, monitoring, financing, policy making, in charge of seismic designs, in charge of flood forecasting, being monitoring body for dam operations, being the body that sanctions operation manual for each dam, has clear conflict of interest involved with Dam Safety Regulating work. CWC also works as policy making, researching, and as a lobby for large dams. It would be best if CWC is kept out of the Dam Safety Mechanism.
  • No Independent Persons The DSB 2019 has no provision for having at least 50% independent persons in every one of the Dam Safety Committees and Authorities at central and state level. The Act should also define what is meant by independent person, including ensuring that the persons have track record of taking independent positions. The current draft of DSB has provision of “not exceeding three specialists…. Nominated by the Central Govt Members” in National Committee on Dam Safety. These are most likely to be retired govt officials or engineers, who would be towing the govt line. Similarly, in State Committee on Dam Safety, there is provision for “experts… not exceeding three from engineering institutes”, which are again not defined as Independent members. There is no such provision in the National Dam Safety Authority or the State Dam Safety Organisation. This will only lead to a close club of engineers and officials being all over the Dam Safety Mechanisms, with no real independent persons. This will be totally detrimental to achieving credible Dam Safety.
  • Transparency Norms It needs to be emphasised and acknowledged in the DSB that Dam Safety is a public interest work. The biggest stakeholders are the people who are at risk when dam is structurally or operationally unsafe. They need to know everything about the dam safety issues. Hence every single document about dam safety, including all the decisions, minutes, agenda notes and reports of the dams, committees and authorities has to be out in public domain promptly. But the DSB 2019 does not provide such clearly defined norms for transparency.
  • Accountability norms By way of fixing accountability, the clause 41 in DSB 2019 prescribes punishment of imprisonment upto two years and fines. But this is provided only for anyone who “obstructs any officer of employee of the Central Govt or the State Govt or the person authorized by the National Committee or the Authority or the State Committee or the State Dam Safety Organisation” or “refuses to comply with any direction” by any of them. There is no provision for setting up independent inquiry for every reported dam failure with a view of fix accountability. The Dam Failure should in such cases include all violations of operation manuals.

There is no doubt that India urgently needs Dam Safety Act and the bill brought before the Parliament is certainly a step in right direction. However, the short comings of the DSB 2019 listed above shows this is clearly not good enough. These are key short comings, not an exhaustive list. But these are sufficient to show why the Dam Safety Bill 2019 is not likely to make major change on ground and deliver us safer dams than what we already have. With increasing instances of Dam Induced disasters happening every year, with increasing stock of older dams, we need to bring the DSB 2019 with changes indicated above, if we want to achieve safer dams in India.

SANDRP (ht.sandrp@gmail.com)

END NOTES:

[i] https://www.damsafety.in/ecm-includes/PDFs/DRIP_II_Presentation/Dam%20Safety%20in%20India.pdf

[ii] https://www.cambridge.org/core/journals/environmental-conservation/article/golden-jubilee-congress-of-the-international-commission-on-large-dams-held-in-the-ashoka-hotel-new-delhi-india-during-29-october12-november-1979/354B7A1AD0C805E6B729734A5280BFC2

[iii] http://www.icold2020.org/Downloads/ICOLD2020_%20Brochure.pdf

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