Big dams and hydropower projects have huge impacts both upstream and downstream in the basin. Such projects influence existing and planned water uses like drinking and irrigation, have an impact on other similar projects and affect activities like fisheries, river bed agriculture and so on - across the whole basin. Therefore, it is important to study these impacts before making decisions about such large river valley projects.

This is particularly so in the case where several dams are being planned in a cascade on one river or in one basin. In a major initiative by the government, several hundred hydropower projects are being planned in the Himalayas to install over 50,000 MW of new generating capacity in the next ten years. Most of these are planned as cascades with many dams in a single basin. At least 21 dams are being planned or built in the Teesta basin in Sikkim, 22 in the Subansiri basin in Arunachal, 28 in the Sutluj basin in Himachal Pradesh.

In such cases, an assessment of individual projects is not enough. It is necessary to assess not only the impacts of the individual projects on the ecology and economy of the basin but also on each other, and the impacts of all the projects taken together. This can be done only through a study with a basin-wide framework, what are being called a Basin Studies now.

In recent years, as the issues of carrying capacity of a basin, cumulative impacts of dams, downstream impacts and basin wide effects are being raised with increasing intensity, some recognition of the need to assess them have been visible. In a few cases, basin wide studies have been called for by the Expert Appraisal Committee (EAC) of the Ministry of Environment and Forests. However, there are serious problems with these studies, including the fact that projects have been cleared and are under construction even as these studies are proceeding. (e.g. Bichom and Lohit basins in Arunachal, see here for detailed story).

Unfortunately, the Environment Protection Act 1986, and the Notification of September 2006 under the act that lays out the process of environmental appraisal and clearance of such projects does not specifically require any such cumulative impact assessment, carrying capacity analysis or basin level studies. This author would argue that such a requirement is implicit in the process of assessment described in the Notification but it had hardly been followed.

In this situation, it is interesting that there is another legislation that mandates a basin level appraisal, but it is a legislation that has escaped such popular scrutiny and public pressure as the EPA.

The Electricity Act

This legislation I refer to is the Electricity Act, 2003 (E-Act), which consolidates and supersedes all the previous laws relating to electricity generation, transmission, distribution, trading and use. While the E-Act does away with the requirement of obtaining a license for setting up thermal power projects, it mandates that hydro-electric plants will need the concurrence of the Central Electricity Authority (CEA). What is of particular interest is the Section 8(2)(a) of the E-Act, which lays down what factors the CEA should consider while giving this concurrence. The section is quoted below.

(2) The Authority shall, before concurring in any scheme submitted to it under sub-section (1) have particular regard to, whether or not in its opinion, (a) the proposed river-works will prejudice the prospects for the best ultimate development of the river or its tributaries for power generation, consistent with the requirements of drinking water, irrigation, navigation, flood-control, or other public purposes, and for this purpose the Authority shall satisfy itself, after consultation with the State Government, the Central Government, or such other agencies as it may deem appropriate, that an adequate study has been made of the optimum location of dams and other river-works;

In other words, the CEA has to assess whether the hydropower project under consideration will prejudice the best ultimate development of the river for power generation, considering the project along with the other uses and activities proposed for the river. The project has to be an integral part of this best ultimate development of the river, or at the least, has to be examined within the framework of the development of the entire river basin.

Further, this best ultimate development has to weave in the requirements of drinking water, irrigation, navigation, flood control and "other public purposes", which we would argue have to include preservation of ecology, biodiversity and protection of culture and livelihoods of the communities in the basin. For this purpose, the CEA has to satisfy itself that an adequate study has been made of the optimum location of the dams and other-river works. In a way, the Act also defines the study of optimality of dams as being located in the larger river basin development.

This is very important, and appropriate, as the integration of economic, social, and environmental aspects should take place at the planning stage itself. Even with several lacunae, the section provides the legal backing for this.

As Girish Sant of Prayas, Pune, an eminent expert in energy and power issues who has been amongst the first researchers to recognise the import of this section, says, "This section effectively seeks river basin studies that incorporate all water uses in the basin, consider social and environmental issues and integrate them into a plan for the best ultimate development. The section imposes a statutory requirement that hydropower projects have to be necessarily planned and designed as a part of larger river basin planning."

Redefining the meaning of the law

Unfortunately, as with much other such legislation, this too has been violated both in letter and spirit. To understand how the CEA implements the requirements of the Section 8(2), I (along with my organisation Manthan) filed an application under the Right to Information Act, seeking information about the fulfilment of the provisions of this section in the case of a specific project, the 163 MW Athirapally hydropower project on the Chalakudy river in Kerala. This is the fifth largest in Kerala, and already has several dams, hydropower stations and diversion structures, along with hundreds of lift irrigation schemes. The CEA gave the concurrence to the project via its letter dated 31 March 2005.

In response to our question whether in CEA's opinion under the Section 8(2), the project will or will not prejudice the best ultimate development of the river, the CEA states that "CEA is according concurrence to projects having only power generation benefits. Multipurpose projects having benefits other than power like drinking water, irrigation, flood control etc. are submitted to CWC for acceptance of Advisory Committee of MoWR [Ministry of Water Resources] ..."

Thus, while the Section 8(2) requires the CEA to look at the project's impacts in relation to other requirements and uses of water, the CEA has changed the interpretation to mean looking at the other aspects of the project itself. No wonder its response says that "Athirapally being a power project does not involve drinking water, irrigation, navigation and flood control aspects." Further, CEA said that it "takes care that the project ... is the optimum option in the river basin and there is no clash/interference with other schemes. Hydro project ... sites ... have been identified by CEA in the hydro potential assessment made for the whole country."

It should be added here that the CEA did not provide us with this assessment report in spite of our asking for it.

The CEA added that the procedure followed to implement the Section 8(2) is detailed in its document titled "Guidelines for accord of concurrence to hydro generating schemes", available on its website. A study of this document revealed several interesting things. While the CEA lists out all the issues for study as per section 8(2), in reality, the study is essentially limited to the study of just one project, and that too mainly the technical aspects of that project.

Moreover, in keeping with the low standards for environment clearance that have become the norm in recent years, the onus of the studies required under the Section 8(2) is placed entirely on the project developer (generating company). The company is to prepare the detailed project report, and this report has to include "justification for the best ultimate development of the river basin, power potential studies, optimisation of location of dam and other civil works detailing various alternatives considered." How can a company proposing to build the project examine whether its own project will prejudice the best ultimate development of the basin? Is this not a conflict of interest?

We also asked the CEA to provide copies of the studies, calculations etc that were the basis of finding that the project is not prejudicial to the best development of the river. The CEA's response was that these studies were carried out by the developer, and refused to provide them citing exemption under Section 8(i)(d) of the RTI Act (commercial confidence and trade secrets etc).

A prolonged process of appeal finally resulted in the disclosure of this information by the CEA in the form of a 16-page note referred to as the TEC note on the project. This note contains some technical and other information about the Athirapally project, but nothing to show that best ultimate development of the river has been looked at. In fact, this note does not even contain the words "drinking water", "irrigation", "navigation", "flood control" etc., let alone assessing the project consistent with the these requirement.

Onus on CEA to Actualise Section 8(2)

Section 8(2) of the Electricity Act is important part of the legislative regime placing the appraisal of hydropower projects squarely within river basin planning. With all its lacunae, if implemented properly, it can take the process of hydropower planning in the direction of sustainability and equity. However, it appears, from the generally applicable guidelines of CEA and the information provided about a specific project that the provisions of Section 8(2) of the Electricity Act are being grossly violated - or essentially evaded - by the CEA, in letter and in spirit, and such violation has escaped substantial public scrutiny. It is time that this changes.

The Act requires CEA to satisfy itself about several things, but does not call for the CEA to do this itself, nor does it specify which agency should. The kind of activities that Section 8(2) requires are inter-disciplinary in nature and should be carried out by a competent multi-disciplinary agency, with full and meaningful involvement of the communities in the river basin and civil society groups. The section itself requires CEA to consult various agencies as it deems fit in the matter.

Hence, the CEA may start with evolving a format for consulting other agencies, and also suggest a list of such agencies, that must go beyond the usual official ones. It should also take the initiative to propose and evolve a process that can work out the "prospects for the best ultimate development of the river or its tributaries for power generation, consistent with the requirements of drinking water, irrigation, navigation, flood-control, or other public purposes". That would serve the best ultimate purpose of the CEA itself!