Sharing a river

The Cauvery Tribunal's final award, which evoked mixed responses, has a major drawback: it does not offer a distress-sharing formula.

THE final award of the Cauvery Water Disputes Tribunal, announced on February 5, has come 16 years after the Tribunal was set up. Now a protracted and acrimonious river water dispute is at a qualitatively new stage with a water-sharing formula awaiting implementation. It has been a long wait for the verdict, and not all the claimants are happy with what they have got. Nevertheless, no side can complain that it was not heard. Indeed, although there is provision for the disputants to go before the Tribunal for a review or clarification, the final award cannot be revoked or changed substantially. Much now depends on the political acceptance of the award within Tamil Nadu, Karnataka, Kerala and Pondicherry - by their governments, Opposition parties and regional groups. In the long period when the case was being heard, the issue of water-sharing between Tamil Nadu and Karnataka, the major claimants to the water, remained bitterly contested, particularly so in years when the monsoon failed.

Even as the three-member Tribunal, in a total of 580 sittings, heard and deliberated upon the voluminous evidence and arguments presented by the legal teams of the three riparian States and the Union Territory, in the outside world the Cauvery issue assumed an existence of its own, shaping politics and life in the Cauvery basin. Emotions have run high in Tamil Nadu and Karnataka, erupting sometimes into violent conflict. Chief Ministers have gone on hunger strike or undertaken padayatras. Regional chauvinism got a fresh lease of life and many politicians built their careers around the dispute. In the course of its long life, the Tribunal itself saw a change of Chairman and one member.

As the date of the announcement neared, a mood of expectation tinged with some anxiety built up in the States, especially in Karnataka where the interim award of the Tribunal, given in June 1991, had resulted in an upsurge of violence, directed particularly at Tamil-speaking groups.

In a unanimous award, the Tribunal, comprising its Chairman Justice N.P. Singh and members N.S. Rao and Sudhir Narain, made allocations to the four disputants based on a total availability of 740 thousand million cubic feet (tmc ft) water in the Cauvery (measured at the Lower Coleroon Anicut site) at 50 per cent dependability. The order gives Kerala 30 tmc ft, Karnataka 270 tmc ft, Tamil Nadu 419 tmc ft, and Puducherry 7 tmc ft. Of what is left, 10 tmc ft is allocated for "environmental protection" (a minimum flow to protect river flora and fauna) and 4 tmc ft for escapages into the sea.

The order says that Karnataka must release 192 tmc ft of water measured at Biligundlu on the border with Tamil Nadu. This includes the 10 tmc ft set aside for environmental protection. From Tamil Nadu's share of 182 tmc ft, it must release Puducherry's share of 7 tmc ft.

The arrangement will come into force within 90 days of its notification by the government. Like the interim order, the final order too stipulates a monthly schedule of releases from Karnataka to Tamil Nadu (see table for monthly roster under the interim award and the final award). The major difference between the two orders is that while the interim award stipulated that Karnataka had to make available 205 tmc ft at Mettur, the present order has made Biligundlu, where a Central Water Commission gauging station stands, the point of release. The water year begins from June 1 and ends March 31. The order states that the schedule will be in place for five years and thereafter it could be "reworked in consultation with the party States and help of the Central Water Commission... " Further, the scheduled deliveries to the lower riparian States, it says, should not be affected by any action taken by the upper riparian State.

If water allocation in normal years is the central point of the nine-page order, its other major components relate to distress allocation, water allocation for drinking and industrial purposes, and future status of hydro-projects.

On the contentious issue of a distress-sharing formula, the award is all too brief; it merely states that distress shall be shared proportionately. "In case the yield of the Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced" among the States and Puducherry.

Clause 14 of the order stipulates that water taken by any State for domestic and municipal water supply from a reservoir will be reckoned as used by that State from its share. In yet another significant determination, the order permits the disputant States to set up hydro-electric projects provided these do not interfere with the pattern of downstream releases. In clause 18, the order says that the State is free to regulate the use of water within its boundaries provided that is not inconsistent with the order of the Tribunal.

A significant aspect of the final order is that it lays no cap on the extent of irrigated area in Karnataka, unlike the interim order. That order had said that Karnataka could not extend its irrigated area beyond 11.2 lakh acres (one acre is 0.4 hectare), an imposition that Karnataka had argued was unfair and against the interests of its farmers.

"This is a deficit river and we are not sharing surplus. It is natural that everyone's expectations cannot be met," said S. Ranganathan, secretary of the Cauvery Delta Farmers Association. Indeed, Tamil Nadu, Karnataka, Kerala and Puducherry had pegged their demands at 562, 365, 99 and 9 tmc ft respectively in their arguments before the Tribunal. The river should yield 1,135 tmc ft of water for these demands to be met fully.

While the Tamil Nadu government welcomed the award, the mood in Karnataka was mixed. The Karnataka government made its dissatisfaction with the award clear, but without committing itself to an outright rejection. Political parties in the State have also criticised the award, and popular mobilisations by Kannada groups, both in Bangalore, the capital, and in the Cauvery basin districts, are gaining momentum.

If the 1991 interim award is taken as a benchmark, then both States appear to have got a better package. Water allocation figures have been arrived at in the report on the basis of the computation of the irrigated area in each State made by the assessors appointed by the Tribunal in May 2006. In the assessors' report, Tamil Nadu's irrigated area is determined at 24.7 lakh acres and water needs at 394.85 tmc ft. For Karnataka, the corresponding figures are 250 tmc ft to irrigate 18.85 lakh acres. In the final award, both the States received more than what the assessors determined.

It has been argued in Karnataka that the State must now release 192 tmc ft at Biligundlu whereas the corresponding figure under the interim order was in effect only 180 tmc ft as around 25 tmc ft was generated between Biligundlu and Mettur at which point the realisation had to be 205 tmc ft. The Tribunal has put the lid on a long-standing source of disagreement by determining that Biligundlu will be the water release point where outflows will be measured at the Central Water Commission (CWC) gauging station. The table provided in this article illustrates this point. It shows the vast discrepancy between the figures provided by Tamil Nadu and Karnataka on water releases, with Tamil Nadu's readings of water realisation at Mettur always showing less than Karnataka's readings provided by the CWC at Biligundlu, even though technically there should be an accretion of 25 tmc ft of water between the two points.

Secondly, the figures of water releases point to the fact that it is only in four water years after the interim award came, namely between 2000-01 and 2004-05, did the releases fall below 192 tmc ft. These were years of drought, when the monsoons failed.

This raises one of the most important issues that the final order has left somewhat vague, but which the fine print of the award may have dealt with in greater detail, namely, that of a distress-sharing formula. First, the total quantum of water calculated at 740 tmc ft is on the basis of 50 per cent dependability. Should it have been 75 per cent? As the water resources expert Ramaswamy R. Iyer has said, a 50 per cent (or 75 per cent) dependable flow means that the flows are expected to be equal to or higher than the number in 50 (or 75) years out of 100.

How then is distress to be shared? Here the order says that shortages must be proportionately shared among the States. The percentage shares of Tamil Nadu, Karnataka, Kerala and Puducherry in the total quantum of water are 57.7, 37.2, 4.0 and 1.0 respectively. Thus, if the water yields falls in a poor monsoon year, water must be shared in the same proportion. This is problematic in several ways. There is first the issue of how river flows are to be determined, a task which will presumably be left to the new authority that will supercede the Cauvery Monitoring Authority. Secondly, distress can affect different parts of the basin differently. It could happen as a result of the failure of the southwest monsoon, in which case it will affect both the basin and the delta. On occasions there has been a failed southwest monsoon but a successful northeast monsoon. In this scenario, the basin States will disproportionately bear the brunt of the distress. Further, in a distress year, should Karnataka release water after it utilises the 270 tmc ft allocated to it, or is it expected to release to Tamil Nadu its share first? Further, once the shares of the State are proportionately reduced in a distress year, what will be the quantum that Karnataka must release to Tamil Nadu, and Tamil Nadu to Puducherry? On what basis will that figure be calculated? Distress can set in in a matter of a couple of months. How quickly can the new monitoring body respond to the situation?

With a new water-sharing formula in place, the Tribunal has put in place new mechanisms for implementing the accord and for determining distress. It has set down detailed directions on setting up a Cauvery Management Board (CMB), which in turn has to set up a Cauvery Water Regulation Committee. The Cauvery Regulatory Authority and the Cauvery Monitoring Committee will cease to exist. The new Committee will have a chairman, four members and a member-secretary. It will "ensure the implementation of the final order with the directions of the CMB to collect daily water levels, inflows and storage position at each of the following reservoirs - Hemavathy, Harangi, Krishnarajasagar, Kabini, Mettur, Bhavani Sagar, Amaravathy and Banasurasagar to ensure 10 daily releases of water on monthly basis from the reservoirs as directed by the Board... and to collect and compile weekly information about important rain gauge stations of the Meteorological Department to assess the position of monsoon and keep the board informed about the status of the monsoon."

It is the Board that will determine the distress caused by decreasing water flows. At the start of the irrigation season on June 1, the party-States must indent for supplies at each reservoir site for June. After determining the reasonableness of the demand, the committee will release water on a 10-day basis. If there is a deficiency in rainfall, the Board will consider reducing the indent proportionately.

If the Tribunal took 16 years to come to its final award, the implementation of the award will hopefully be swifter. The disputant-States have already indicated that they will go before the Tribunal on what they perceive as the shortcomings of the award. Karnataka has not yet officially responded to the award. Once appeals are filed, the Tribunal will have to hear them and issue further orders. In the interim period, the earlier order will prevail.

Finally, whether the present award will settle the long-festering dispute depends on politics and not on the technical merit of the water-sharing and management package. The late economist and scholar of the Cauvery dispute, S. Guhan, had drawn attention to this reality in his observations on the issue.