MUHAMMAD SHERAZ KIANI, J.---The captioned writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.
2. As common questions of facts and law are involved in both the writ petitions, therefore, the same were clubbed for onward proceedings and are decided through the instant single judgment.
3. Precise facts culminating into filing of Writ Petition No.1675/2018, are that petitioners are bona fide hereditary State Subjects of the State of Azad Jammu and Kashmir, having domicile of District Muzaffarabad. It is stated that Government of Pakistan through its outlet, Water and Power Development Authority (WAPDA) has undertaken the construction of different Dams throughout Pakistan, including Azad Jammu and Kashmir and Galgit Baltistan for Generating Hydroelectricity. The WAPDA has already constructed a Dam in Mirpur District i.e. Mangle Dam, which has a capacity of generating 1200 MW electricity, which was transferred to national grid in 1966-67 without paying the share of Azad Jammu and Kashmir in the net profit of hydro generation. It is stated that besides many other small dams, the WAPDA has undertaken the construction of two new hydro electric power generating project on Neelum and Jhelum rivers, in Muzaffarabad District i.e. Neelum Jhelum Hydro Project (to be referred as 'NJHP') with capacity of generating 969 MW and Kohala Project with the capacity of generating 1224 MW electricity. The construction of NJHP was completed and is generating power, while process for acquisition of land for Kohala Project is in process. It is averred that several studies were made before intiating work on NJHP. The first study was made in 1996-97 by NORPALAN (a global consulting company based in Norway), hired by WAPDA. The .said company reported that 20 cumics water would be required for Noseri to Domail for drinking and ecological system and to minimize the environmental impact on the community living in the area. The study was based on calculation of projected population from 2000 to 2050, which was the life of project. According to the said study report by 2050, the population of Muzaffarabad city would be around 5,92,092. It is stated that due to devastated earthquake of 2005, the demography of the area was totally changed as the population of Muzaffarabad has now increased to the level of more than 03 lacs by 2018, due to influx of people of surrounding areas, affected by earthquake and expending economic activities.
The WAPDA authorities rejected the aforesaid report on the ground that it will cause an economy loss of 65 million dollars to the State as in case of release of 20 cumecs water WAPDA would not be able to generate the electricity compatible with the expenses incurred thereon. The WAPDA instead proposed to release 3 cumecs water for drinking purpose had struck to its position of the designee prepared for reservoir. It is maintained that report suggested 03 cumecs for drinking and 17 cumecs for sewage dilution, while flow of water was also required to maintain ecological system, as well as, to minimize the environmental impact. However, later on second study for the purpose was conducted by WAPDA from the same agency in year 2010. According to this report, the estimated population of Muzaffarabad city would be 3,37,796 in 2050. It is claimed that the same group consisting of experts, taking millions of rupees for study, reported contradictory to what they had earlier reported, which implies that they had been influenced by some authority and most probably by WAPDA, to save the money_ which, would be otherwise required for uplifting the affected area. It is further stated that in view of resistance and protest of civil society, backed by the Government of Azad Jammu and Kashmir through its environmental agency,WAPDA approached the Azad Jammu and Kashmir Council and with its connivance got maneuvered second report through the same agency in year 2009-10, which recommended the release of 09 cumecs water from Noseri to downstream, on the basis of new projected population. As against above, another study was submitted by Japan International Corporation Agency (JICA), in year 2007, stating therein that population position of Muzaffarabad in year 2009 as 1,38,000, the projected population in 2030 as 2.57,000 and in year 2050 as 5,92,000. Both the study reports could not cater the use of water by non- residents and those not counted during the census, such as hospitalized patients, visitors, the college and universities' students, their guardians and visitors, casual visitors in the markets, offices, mosques, and spiritual places from around the State, refugees, camps, which would be more than triple of the number of the projected population given under the first report. Besides that, decreasing water level all around the world due to depletion of glaciers and climate change is not taken into consideration as the source of river Neelum is no exception to the general climate change. It is averred that Government of Azad Jammu and Kashmir was directed to initiate proceedings for acquisition of land for the purpose, while all other directions were issued by the Azad Jammu and Kashmir Council and Ministry of Kashmir Affairs in favour of WAPDA, bypassing the Government of Azad Jammu and Kashmir. The Government of Azad Jammu and Kashmir was, however, requested for No Objection Certificate from Azad Jammu and Kashmir Environmental Authority, which was conditionally issued on 22.01.2010, which was, later on renewed and supplemented through subsequent No Objection Certificate, which had to be fulfilled by WAPDA, before, during and after completion of the project, but disgustingly, despite completion of the whole project and diversion of the water course of river Neelum, WAPDA has not complied with the conditionalities, imposed by the Azad Jammu and Kashmir Environmental Protection Agency given in the NOC's. Besides above, the Development Authority, Muzaffarabad had also written a letter to Secretary Works and Communication Department on 02.09.2010, listing the hazards which the Muzaffarabad city would face in case of diversion of river Neelum and also suggested measures of combating adverse effects of diversion of . the river, the climate and eco system, including the compensation to be assessed. It is stated that if theoretical position is accepted, Neelum Jhelum.. Hydro Project or any other project launched" by WAPDA in Azad Jammu and Kashmir shall be subject to the protocol and laws as enforced by the International Environmental Protection Agency with the consent of local authority i.e. Azad Jammu and Kashmir Government the WAPDA in absence of accepting the Azad Jammu and Kashmir as the territory or province of Pakistan has to follow international laws and subject to its jurisdiction if civil society of Azad Jammu and Kashmir complains to UN Program on.environment but it may embarrass geo political diplomatic position of Pakistan at International level. It is further maintained that as Azad Jammu and Kashmir is entrusted as a Local authority, under the interim control of Government of Pakistan, hence, it shall be treated as a territory otherwise included in Pakistan under Article 1(3) of the Constitution of Islamic Republic of Pakistan, 1973. It is maintained that the Constitution of Pakistan shall apply in that case if the international laws/protocol, as envisaged by the United Nations and International Environmental Program. It is further claimed that although Azad Kashmir is technically not a part and province of Pakistan as visualized by Article 1 of the Constitution of Islamic Republic of Pakistan, however, practically it is dealt as territory and province of Pakistan, subject to final resolution of Kashmir dispute in accordance with UNCIP resolutions and is administered like that by the Government of Pakistan, which has the authority to make laws for Azad Jammu and Kashmir under sections 31(3) and (4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is stated that the Government of Pakistan, through its Notification dated 11.05.1971, followed by another Notification dated 06.06.1988, declared that although Azad Kashmir is not part of Pakistan within the meaning of Article 1(2) of the Constitution, it should, for all practical purposes, be treated like any other province. It is further claimed that WAPDA has almost completed Neelum Jhelum Hydro Project generating 969 MW electricity without any agreement with the Government of Azad Jammu and Kashmir, although all natural resources including water reservoir and profit earned therefrom, fall within the domain of the Government of Azad Jammu and Kashmir under section 52-C of the Interim Constitution Act, 1974 and that too, without taking care of the adverse effects of the diversion of Neelum river from Noseri to Kohala on the eco- system and environment of Azad Jammu and Kashmir, particularly, the area through which the river is flowing, spread over 41 kilometers from Noseri to Domail and 25 kilometers from Domail to Kohala. Similarly, WAPDA has undertaken diversion of river Jhelum from Sarran to Kohala, which will deprive the entire area and inhabitants, living around the river up to a length of 40 KM of its natural benefits, essential for biodiversity besides affecting the entire eco-system of environment of the area, adversely affecting the lives of the people, animals and other bio-diversities, when two rivers, in between which, the district Muzaffarabad is located are diverted, entire district along with its inhabitants and habitat will be subjected to forced migration or succumb to environmental catastrophe. It is alleged that no agreement till date was concluded by the Government of Azad Kashmir with respect to any of the two projects, through which the courses of Neelum and Jhelum rivers are being diverted. It is claimed that river Neelum carries entire sewage down below Noseri, as no sewage treatment plant is installed by the Government or the relevant agencies, for Muzaffarabad City, right from Noseri, wherefrom, the course of Neelum river was diverted, hence, all sewerage outlets are dumped around the river Neelum, and close to living vicinities from having no other outlet rendering the entire area unhygienic and polluted, susceptible to all the diseases. It is maintained that WAPDA had constructed and completed Mangla Dam, at Mirpur, in the decade of sixties due to which, a bulk of population of Mirpur had to migrate to different countries, however, despite that WAPDA has not paid till date any share from net profit earned by it, from the hydroelectricity generated at Mangla, which is violation of Article 161 of the Constitution of Islamic Republic of Pakistan, whereas, the royalty as well as net hydro profit is paid to the Government in respect of like projects functioning there in KPK, hence, the instant constitution petition.
4. The respondent No.1, despite service failed to file written statement, hence, was proceeded ex-parte vide order dated 22.02.2019. However, writ petition has been resisted by respondents Nos. 2 to 5, through separate written statements. In the written statement filed on behalf of respondent No.2, it is stated that petitioners through WAPDA sought remedy against three Mega Hydro Electric Projects within Azad Jammu and Kashmir territory known as (i) Neelum Jhelum Hydro Electric Project (NJHPC), (ii) Kohala Hydro Electric Project at Muzaffarabad and (iii) Mangla Dam Project at Mirpur, whereas all the afore-stated projects have their separate supervisory bodies but the others were not impleaded as party in line of respondents, therefore, the install: writ petition is not maintainable due to non-joinder of necessary parties. It is pleaded that as per Environmental Impact Assessment (EIA) studies, the Environmental Protection Agencies (EPA) Government of Azad Jammu and Kashmir issued NOC on 12.01.2011 and all these obligations were also made part of draft tri-parties agreement, however, the aforesaid agreement was not formally signed. It is further pleaded that at the time of framing tri-partite agreement draft all different covenant of NOC of EPA-AJ&K Government were made part of agreement with further addition that WAPDA would construct 22 different projects keeping in view the environmental measures and for social uplift of the local community. It is maintained that on demand, of Azad Jammu and Kashmir Government WAPDA/NJHPC provided 2.984 Billion Rupees fund to the Azad Jammu and Kashmir Government for construction of projects, however, petitioners without probing real position filed the instant writ petition, which is not maintainable. It is submitted that WAPDA/NJHPC continuously releasing 20 cumecs water since September 2018, which is sufficient for maintaining the aquatic system. It is stated that as per Article 161(2) of the Constitution of Islamic Republic of Pakistan, 1973, on Hydro Power Project two types of profits are given, one is net hydel profit and second is water usage charges, however, as per law net hydel profit could be given to Provinces only, while Government of Azad Jammu and Kashmir is entitled for getting water usage charges, and the same payment will be made after signing agreement which is pending in the Ministry of Water Resources Government of Pakistan. The other contents of writ petition have also been refuted.
5. In written statement filed on behalf of respondents Nos.3 to 5, it is stated that present project was launched by Government of Pakistan for betterment and welfare of public at large and as per section 31(3) Schedule 3, Item No.4 of the Azad Jammu and Kashmir Interim Constitution, 1974, all acts done and proceedings taken by the Government of Pakistan are not challengeable before this Court, hence, the instant writ petition is not maintainable. It is pleaded that petitioners have neither challenged exclusive jurisdiction of Government of Pakistan with regard to construction of Hydro Power Project nor pointed out any violation of law, hence, the instant writ petition is liable to be dismissed. It is submitted that decisive steps were taken and Neelum Project was completed, while steps with regard to Jhelum surcharge (fee) was imposed since 2009, money collected, land was acquired and payment of compensation to the tune of more than 50 Crore was paid, heavy machinery was installed on three sites, if matter is being delayed or prolonged in litigations, the Government of Pakistan has to be sued before the International forum and penalty like Recodic case is likely to be imposed on Government of Pakistan. The other contents of writ petition have also been refuted.
6. Precise facts culminating into filing of Writ Petition No.1744/2018, are that Government of Pakistan through its outlet, Water and Power Development Authority (WAPDA) is undertaking the construction of Dams throughout Pakistan including AJK and Gilgit-Baltistan for construction of Hydroelectricity. It is stated that Government of Pakistan through Government of AJK awarded land for Neelum Jhelum Project in year 2008-09, from Jagran, Thotha, Majhoi and Kohala for that purpose. It is maintained that WAPDA has already constructed the dam in Mirpur District called as 'Mangla Dam' which has a capacity of generating 1200 MW electricity, which is transferred to the national grid in 1966-67, without paying the share of AJ&K in the net profit of Hydro generation. It is added that WAPDA after more than 10 years construction/works upon the projects namely "Neelum Jhelum Hydro Project" and generating the electricity with the capacity of generating 969 MW and Kohala Project with capacity of generated 1224 MW electricity. The construction of Neelum Jhelum project has been completed and the official respondents are going to start the work on Kohala Project. It is submitted that a study was made in 1996-97 by NORPALAN (a global consulting company based in Norway) which was hired by WAPDA. The said company reported that 20 cumecs water will be required for Noseri to Domail for drinking and eco-logical system and to minimize the environmental impact on the community living in the area. It is also suggested by the said company that 3 cumecs for drinking and 17 cumecs for sewerage dilution while flow of water was also required to maintain ecological system, whereas, the said report was rejected by WAPDA authorities due to loss of 65 million dollars to the State, as in case of release of 20 cumecs water WAPDA would not be able to generate the electricity compatible with the expenses incurred thereupon. It is stated that second study was also made by WAPDA from the same agency during year 2010, however, the said agency came under influence by WAPDA authorities. It is again stated that another study was submitted by Japan International Corporation Agency (JICA), in year 2007, stating therein that both agencies could not cater the use of water by non-residents and those not counted during the census, such as hospitalized patients, visitors, the college and Universities students, their guardians and visitors, casual visitors, in the market, offices, mosques, and spiritual places from around the State, .refugees, camps etc. Even though authorities have not bothered to preserve as to what would happen after the project period and as to whether there will be any change in population and its requirements of water usage and the safe environmental conditions for future generations etc. Despite that Government of AJ&K was directed to initiate the proceedings for acquisition of land for the purpose, while all other directions were issued by the Azad Jammu and Kashmir Council and Ministry of Kashmir Affairs in favour of WAPDA, however, the WAPDA did not bother to comply with the conditionalities imposed by the Azad Jammu and Kashmir Environmental Protection Agency given in the NOC's. It is further maintained that as the Azad Jammu and Kashmir is not part, territory and province of Pakistan under the Constitution of Islamic Republic of Pakistan, 1973, therefore, before starting construction work on Kohala Project to determine the liabilities of the AJ&K Government as law in four provinces of Pakistan in compliance of sections 19, 52-A and 52-C, of the Azad Jammu and Kashmir Interim Constitution Act, 1974, including environmental laws, however, the same was not done, which is ultimately violative of fundamental rights of property, life of person of State subjects, hence, the instant constitution petition.
7. The respondent No.1, failed to file written statement, hence, was proceeded ex-parte vide order dated 22.02.2019. However, writ petition has been resisted by respondents Nos.2 and 3 to 5 and 7, through separate written statements, which are similar to Writ Petition No.1675/2018, hence, need not to be repeated for the sake of brevity and convenience.
8. The learned counsel for the petitioners while reiterating the contents of the writ petitions submitted that respondent WAPDA completed the NJHEP generating 969 MW electricity without any agreement with the government of Azad Jammu and Kashmir although all natural resources including water reservoir and profit thereupon falling within the domain of Azad Jammu and Kashmir under section 52(C) of Azad Jammu and Kashmir Interim Constitution. It is contended that while diverting Neelum river from Noseri to Kohala adverse effects of this project on the ecosystem and environment of Azad Jammu and Kashmir particularly the area connected with the river (41 KM from Noseri to Domail) have not been considered and similarly when the respondents have undertaken the diversion of the river Jhelum from Sarran to Kohala, the adverse impacts likely to affect the biodiversity and the environment of the area ultimately which will affect the life of the people has not been taken into consideration, neither the proper remedial and mitigating measures have been adopted to offset the disaterous effects caused and likely to be caused due to decrease of water- flow in the relevant area. It is argued that no agreement till date has been made with the Government of Azad Jammu and Kashmir regarding any of the two projects, neither the matter was referred to the council of common interest. It is also submitted that both the rivers Neelum and Jhelum carried away entire sewage in their full flow time but by reducing water from rivers no Sewage Treatment Plants have been installed by the Government or constructing companies for the city Muzaffarabad and its adjoining areas, thus the sewerage outlets are dumped around the Neelum river and close to living vicinities causing many diseases and pollution of environment. It is further argued that Mangla Dam was completed by WAPDA almost five decades ago and electricity worth of billions rupees has been generated by virtue of said Dam (Power House) and share of the net profit/royalty has not been paid so far to the Government of Azad Jammu and Kashmir for the welfare of its people and their due rights have been denied although the royalty as well as the net hydel profit on similar projects is paid by WAPDA to the provinces of Pakistan particularly Khyber Pakhtun Khwa (KPK) and it has also been apprehended by the learned counsel that there is no likelihood in near future that the profit share or royalty of these projects shall be given to the Government of Azad Jammu and Kashmir and its people. In respect of these two projects, it is vehemently contended that without consent and any agreement, the natural resources vested to the people and its representative government under constitution of Azad Jammu and Kashmir, diversion of river is share violation of constitution and also in violation of relevant constitutional provision of Islamic Republic of Pakistan. The learned counsel also contended that the mitigating measures as postulated in conditional environmental approval issued by the Environment Protection Agency of Azad Jammu and Kashmir has not been taken/ implemented. Proponent (constructing agency) has installed no Sewage Treatment Plants and water monitoring system has not been constructed/installed. Makri Water Treatment and other facilities stipulated in EPA document have also not been completed. Water Supply Scheme and other commitments for arrangement of Environmental Management Plant has not been so far acted upon in respect of NJHEP. It is further contended that minimum level of release of water (e-flows) as suggested and agreed by the respondents is not sufficient to meet the requirements of the concerned local inhabitants and for other environmental and ecological purposes.
9. On the other hand, Ch. Shabir Ahmed, the learned counsel for WAPDA, while controverting the arguments submitted that as per Environmental Impact Assessment, EPA Government of Azad Jammu and Kashmir issued NOC for construction of NJHEP on 12.01.2011 and all the major features of NOC inspite of the fact that Tripartite agreement has been not formally signed. WAPDA has fulfilled almost all the obligations either relating to environmental issues and those conditions have also been made part of the draft Tripartite agreement with further condition that WAPDA had to construct 22 projects keeping in view the environmental measures and for social uplift of the local community but on the demand of Azad Jammu and Kashmir Government WAPDA instead provided 2.984 Billion Rupees to the Azad Jammu and Kashmir Government for construction of those projects which can be checked from the record. He further contended that the report of NORPLAN mentioned in the petitions does not suggest for release of 22 cumecs water in Neelum river from Noseri, it only mentions 13 cumecs water for maintaining the aquatic system and never recommended for release of 20 cumecs water, however, the learned counsel stated before the Court that 20 cumecs water since September, 2018 has continuously been released by the WAPDA although it caused a loss of billons of rupees to the Company. He further submitted that gauging facilities are existing at different places. Regarding the claim of profit to Government of Azad Jammu and Kashmir, he argued that according to Constitution of Islamic Republic of Pakistan and prevailing laws, net hydel profit can be given only to the provinces of Pakistan, however, Government of Azad Jammu and Kashmir is entitled for water usage charges and WAPDA is ready for payment on the prescribed and agreed rate after execution of the agreement, as the draft is pending in the Ministry of Water Resources Government of Pakistan. The learned counsel also on the direction of the Court placed a certificate regarding released amount of the water on daily basis into Neelum river at Noseri showing the measurement. Regarding KHPP, he submitted that WAPDA has nothing to do with the said project.
10. In Writ Petition No.1744/2018, Three Gorges company has been impleaded as respondent No.6. Nobody appeared on behalf of said respondents inspite of notice through proclamation in daily Ausaf, issued on 26.09.2019, ex parte proceedings were ordered against the said respondents. Record of the said project has also been summoned which reflects that the Ministry of Water and Power Government of Pakistan and Chinese Three Gorges Corporation signed an MOU for development of KHPP by CTGC on BOOT (Build, Own, Operate and Transfers) basis, and the project is duly approved by the Government of Azad Jammu and Kashmir vide notification dated 31.08.2016 and Azad Jammu and Kashmir EPA issued conditional NOC in favour of projects companies. The said project is being undertaken by its special company namely Kohala Hydro Construction Limited (KHCL), the project developer has not been impleaded in the line of respondents.
11. We have heard the arguments and gone through the record of the case with utmost care.
12. These writ petitions have been filed by the notable residents of Muzaffarabad and adjoining areas likely to be affected by the construction of the two projects namely NJHEP and KHPP. The NJHEP with the electricity generating capacity of 969 MW is already constructed and functional at river Neelum and the proposed 1124 MW Kohala HPP is planned to be constructed at Jhelum river, being the state subjects of Azad Jammu and Kashmir, the petitioners also raised issue of Mangla Dam royalty/profit share. In Writ Petition No.1675/2018, petitioner No.1 is a retired Judge of Supreme Court of Azad Jammu and Kashmir and amongst others, there are retired senior Bureaucrats, advocates of Supreme Court and High Court of Azad Jammu and Kashmir, Doctors, Journalists and members of trade Associations of Azad Jammu and Kashmir. In Writ Petition No.1744/2018, amongst others, the petitioner No.2 is a former Deputy Speaker of Azad Jammu and Kashmir Legislative Assembly and petitioner No.3 is a former Minister of law.
13. A perusal of record shows that NJHEP has been completed which is operational and its electricity generating capacity is 969 MW. It is a diversion project involving the diversion of river through 28.5 Kilometer long tunnel and its diversion weir is constructed at Noseri 40 Kilometer upstream from Muzaffarabad and the power house is located at Chatter Kalas 22 Kilometer downstream from Muzaffarabad. Minimum environmental flow of water (e-flows) imposed by EPA of Azad Jammu and Kashmir is 15 cumecs at Muzaffarabad, however, through mutual understanding and arrangement it is stated to be 20 cumecs from weir at Noseri. The proposed KHPP will have installed capacity of 1124 MW and it is also the diversion project involving diversion of river through long tunnel. Its diversion weir will be constructed at Village Siran 26 Kilometer upstream from Muzaffar - abad, at river Jhelum and the power house shall be installed at Village Barsala 32 Kilometer downstream from Muzaffar abad and the tunnel will be 34.8 K.M. Its E-flow initially was suggested as 22.5 cumecs, however, while issuing the conditional approval, the EPA has imposed the condition of releasing minimum 30 cumecs. It would be useful to reproduce the Conditional Environmental Approval given by EPA of Azad Jammu and Kashmir Government on 22.01.2011 in respect of NJHEP which reads as under:- "CONDITIONAL ENVIRON MENTAL APPROVAL (Under Section 11 of AJK Environmental Protection Act, 2000 read with IEE/EIA Regulations, 2000 PEPA)
In exercise of powers conferred under section 11 of Azad Jammu and Kashmir Environmental Protection Act, 2000, the Director General AJK Environmental Protection Agency (AJK-EPA), after the review of Environmental Impact Assess ment Report (EIA) accords Environmental Approval for the implementation of 969 MW Neelum-Jhelum Hydroelectric Project (NJHEP) subject to the fulfillment of following condi tions by the proponent;
(i) Proponent shall ensure compliance to National Environmental Quality Standards (NEQSs);
(ii) The WAPDA shall ensure a minimum ecological flow in Neelum River of 15 m 3/s at Muzaffarabad during lean period irrespective of additional inflow downstream from Nauseri;
(iii) The WAPDA shall construct state of the art gauging facility at Muzaffarabad to measure the flow, to be jointly monitored/ operated by WAPDA and Government of Azad Jammu and Kashmir;
(iv) To maintain the Biological Oxygen Demand (BOD) within permissible limits in the remaining flow, the WAPDA shall construct the Sewage Water Treatment Plants for 16 active sewage outlets, laid along the Neelum River in the Municipality of Muzaffarabad, besides installing water quality monitoring system all along the length of river starting from diversion weir to fall of the diverted flow back into the river on permanent basis;
(v) The WAPDA shall ensure the uninterrupted functioning of Makri Water Treatment and Supply Facility. In case the reduced flow during the operational phase of the Project renders its water off-take component dysfunction, the WAPDA shall bear the technical and financial responsibility for its relocation or readjustment as prompt remedial measure;
(vi) The WAPDA shall install an alternate Water Supply Scheme as a sustainable arrangement to cater the demand of growing population and size of Municipality of Muzaffarabad besides making the similar arrangements for the settlements of Nauseri Nausada and Majhoi to offset the impacts of vanishing perennial water resources due to under laying Tunnel;
(vii) To mitigate the loss of aesthetic look of river in Muzaffarabad, WAPDA shall cascade remaining flow, streamline the river banks and level its bed by removing boulders etc. to give it a more pleasant look and to restore its beauty;
(viii) Mitigation measures suggested in the EIA report and Environmental Management Plan (EMP) shall be strictly adhered to ensure not to cast any negative impact on soil ground water, ambient air quality, noise level, natural drainage, flooding, hill torrents and biological resources of the Project area. This should be indicated in the report as "Commitment". Institutional arrangements for implementation of Environmental Management Plan may be finalized well before the commissioning of project, so that proposed mechanism of environmental protection should be operative well in time;
(ix) WAPDA will constitute Environmental Monitoring Committee having the representative...s of all concerned stakeholders as mentioned in EIA. The reporting mechanism and TORs of the committee shall be finalized in consultation with AJK-EPA;
(x) Monitoring shall cover the entire period of the Project construction and operation Monitoring reports shall be submitted to AJK-EPA on quarterly basis;
(xi) The Proponent shall provide the copy of this approval and EIA report to the contractor for compliance;
(xii) Compensation shall be provided to inhabitants in case of loss of agricultural land, crops, property, usage right etc. in accordance with the rates that were agreed upon. All conflicting issues regarding compensation should be settled amicably sooner than later;
(xiii) Proponent shall ensure the adequate arrangements for addressing public grievances and implementation of Resettlement Action Plan (RAP) through public Grievances Redress and Settlement Committee (PGRSC) without any delay;
(xiv) Blasting shall be avoided preferably; if it is inevitable, the controlled techniques in accordance with Pakistan Explosive Act, should be adopted in siding and perspective siding prone areas;
(xv) In case independent Environ mental Specialist Companies are to be hired, as a compulsory arrangement, to undertake measurements of different parameters critically important in determining water and air quality and assessing noise emission level either during construction phase or in both construction and operation phases of the proposed project, the findings of quality analysis on regular basis should positively be shared with AJK EPA;
(xvi) The Proponent shall ensure that strict and efficient health and safety measures are in place for the protection of workers and passers-by backed by a comprehensive emergency response mechanism plan;
(xvii) As far as possible, employment should be provided to local people for all unskilled jobs. Preference may also be given to local people for all semi-skilled and skilled jobs. Employment record for all positions shall be provided to AJK-EPA positively; (xviii) In case the articles of Archeological importance like artifacts, coins rock-arts and other archeological relics are discovered, the work at the site should immediately be stopped and the concerned department or agency should be consulted for the appropriate action;
(xix) Proponent shall ensure all public utilities, such as water supply pipes, power/phone lines be not disturbed by the execution of the project. If it is inevitable then alternative may be provided to the people of the area before hand in consultation with respective agencies under intimation to AJK-EPA;
(xx) Proponent shall take special safety measures while working close to settlements, towns schools and hospitals etc for safety of the general public and livestock;
(xxi) Proponent/contractor shall make sure the safety and security of wild animals and their habitats at the project site and in its environs with the prior consultation and adhering to the guidelines of Forestry and Wildlife Departments strictly;
(xxii) During the excavation of tunnel; the spoil should be dumped at pre-identified location. Free roll down of excavated land shall be prohibited to avert damage to vegetation cover, water bodies, perennial and non- perennial drains, irrigation channels, communication routes and productive lands. Littering would be avoided strictly during transportation of materials; (xxiii) The mechanized plants, machinery and other equipment must be fitted with noise abatement devices and should have the conformity to NEQS standards. The sites to install the asphalt plant and other machinery would be selected in consultation with the Agency (AJK-EPA). Special consideration must be given to critical installations like school, hospitals, mosques, community hall, etc while selecting temporary utility sites;
(xxiv) The proponent shall not setup labor camps near to habitations and develop independent services utilities to avoid intruding into local population privacy;
(xxv) The proponent shall manage scientifically all waste generated by construction activities and machinery, chemicals' spill, damage done to flora fauna and overall ecology etc;
(xxvi) The proponent shall rehabilitate all sites to their natural conditions affected by temporary use during the construction phase; (xxvii) The proponent shall be liable for the correctness and validity of the information furnished by the environmental consultant; (xxviii) Proponent shall be liable for compliance of regulations 13, 14, 17 and 18 of IEE/EIA Regulations 2000, which enunciate the conditions for approval, confirmation of compliance, entry, inspection and monitoring of the proposed project;
(xxix) Proponent would be responsible to facilitate EPA team for any visit for inspection/monitoring etc;
(xxx) Any change in the approved project shall be communicated to AJK-EPA and shall be commenced after obtaining the approval;
(xxxi) This approval shall stand null and void if any of the conditions, mentioned herein before, are not fully complied with; (xxxii) This approval does not absolve the proponent of the duty to obtain any other approval or clearance that may be required under any law in force or by any competent forum/court of law; (xxxiii) This Approval shall be valid for a period of three years from the date of its issue under Section 16 of IEE/EIA Regulation, 2009; (xxxiv) This Approval can be withdrawn at any time without any prior notice if deemed necessary in the public interest."
14. Later on renewal of Conditional Environmental Approval was issued on 23.10.2014 which would also be usefully reproduced herein below:- "RENEWAL OF CONDITIONAL ENVIRONMENTAL APPROVAL (Under Section 11 of AJK Environmental Protection Act, 2000 read with IEE/EIA Regulations, 2000 PEPA)
Reference letter No.GM&PD/ NJHPC/2014/W35/91, dated July 23, 2014, please.
In continuation of Environmental Approval granted by the Agency, under section 11 of the Azad Jammu and Kashmir Environ mental Protection Act, on January 22, 2011, No.P&DD/ EPA/209-13/2011, 2000, (hereby mentioned as previous Approval) for the implementation of Neelum Jhelum Hydroelectric Project; this is to accord 'Renewed Environmental Approval' in favour of WAPDA for the remaining construction phase of NJHEP subject to the fulfillment of the conditions/ clauses given below;
1. All the conditions imposed under previous Environmental Approval shall stand enforced during the remaining construct phase of the project and the proponent, WAPDA, shall be liable to comply these in true letter and spirit.
2. In continuation or additional to already imposed, the WAPDA shall undertake following measures on priority basis; i. Dumping of spoil at pre-identified and approved places, and in this respect, dumping of spoil/excavated material at sites other than approved and in flood line of rivers shall be strictly pronibited. Additional sites, as the prevailing situation demands, may be explored if possible to dump the spoil and get approval; ii. A comprehensive plan to construct protection/retaining walls for all spoil banks, an earnestly required measures, to safeguard and enhance the life of Mangla Reservoir, must be submitted to the Agency within one month time from the issuance of this Approval; iii. Installment of water Gauging facility without any further delay and, in respect thereof, imple - mentation/execution plan may be shared with the Agency within 03 months' time positively; iv. For the environment improvement and rehabilitation measures, like soiled/hospital water management support, may be considered for Municipal Corporation Muzaffarabad (Municipal Corporation Mirpur) under NJHEP as confidence building measure; v. The remodeling and readjustment of off-take of Makri Water Treatment and Supply Facility must be started on prompt basis and, in respect thereof, execution plan may be submitted to the Agency within one month time; vi. Owing to such situation wherein water supply arrangement for urban areas of Capital city has already been covered under MCDP, the WAPDA shall install a Gravity Water Supply Scheme from Saheli Nullah for the suburbs of Muzaffarabad city; vii. The statement of expenditures incurred against implementation of Environmental Management Plan (EMP), must be made as an integral part of future Quarterly Reports; viii. As an integral part of environmental management and rehabilitation under NJHEP, the WAPDA shall workout and execute a Watershed Management Program in consultation with the concerned Government Depar tments/ agencies like Forest, Agriculture, and Wildlife and Fisheries Departments Govern ment of AJ&K; ix. The plantation activity, which is a part of approved EMP of NJHEP, it is required that this activity shall be implemented without any further delay and, in respect thereof, the WAPDA shall submit a plan within one month of this issuance; x. In compliance to Clause (a) of subsection (2,) of section 13, the proponent (WAPDA) shall acknowledge the acceptance of the conditions stipulated here under this Approval by executing an 'Undertaking' in the form set out in Schedule vii of 'Azad Jammu and Kashmir Environment Protection Agency Review of IEE/EIA Regulations, 2009; xi. These approvals (previous and renewed) shall stand null and void if any of the conditions mentioned herein or before are not fully complied with." xii. Compliance of above mitigation measures as well other contents laid down in the above approval of statutory body, the respondent WAPDA is under legal obligation to comply and implement those conditions.
15. As in Azad Jammu and Kashmir, the Environment Protection Agency (EPA) is mandated to ensure sustainable development in terms of Environmental Protection Act, 2000. The preamble of the said Act being relevant is reproduced as under:- "AN ACT to provide for the protection, conservation, rehabilitation and improvement of the environment for the prevention and control of pollution and promotion of sustainable development: WHEREAS, It is expedient to provide for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution, promotion of sustainable development, and for matters connected herewith and incidental there to;"
EPA established under the said Act has to perform its functions as laid down in the Act and Rules made there under. Section 11 ibid explicitly provides that no proponent of a project shall commence any construction or operation unless such proponent has filed with EPA and Initial Environmental Examination (IEE) or where the project is likely to cause an adverse environmental effect, an Environmental Impact Assessment (EIA), and has obtained from the EPA approval in respect thereof. For ready reference the Section 11 ibid is produced as under:- "11. Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA): 1) No proponent of a project shall commence construction or operation unless he has filed with the Agency, an Initial Environmental Examination (IEE) or where the project is likely to cause an adverse environmental effect, an Environmental Impact Assessment (EIA), and has obtained from the Agency approval in respect thereof.
The Agency Shall; a) Review the Initial Environmental Examination (IEE) and accord its approval, or require submission of an Environmental Impact Assessment (EIA) by the proponent; or b) Review the Environmental Impact Assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the Environmental Impact Assess ment be resubmitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives.
3) Every Review of an Environmental Impact Assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to; Trade, manufacturing or business activities, process or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reason to be recorded in writing, the Director General of the Agency is of the opinion that the request for confidentiality is not well founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or international relegations, national security or maintenance of law and order, except with the consent of the Government; or Matters covered by legal professional privilege.
4) The Agency shall communicate its approval or otherwise within a period of four months from the date the Initial Environmental Examination or Environmental Impact Assessment is filed complete in all respect in accordance with the prescribed procedure, failing which the Initial Environmental Exami nation or, as the case may be, the Environmental Impact Assessment shall be deemed to have been approved, to the extent to which it does not contravene the provision of this Act and the rules and regulations made there under.
Subject to subsection (4) the government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.
The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.
The Agency shall maintain separate Registers for Initial Environmental Examination and Environmental Impact Assess ment projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such Registers shall be subject to the restrictions specified in subsection (3)."
16. It has also been brought on record that EPA vide letter No. EPA/ 2698-2700/2017 has asked NJHC to file case for confirmation of compliance as required by law. But till to date the confirmation of compliance which is a mandatory requirement of law yet not has been solicited. The contents of letter of EPA read as under:- "Ref #: EPA/2698-2700/2017 Date: 20.10.2017 Chief Executive Officer, Neelum-Jhelum Hydropower Company (Pvt.) Ltd., House # B-04, Upper Chatter, Muzaffarabad.
SUBJECT: WRITTEN CONFIR MATION OF COMPLIANCE FROM EPA BEFORE COMMENCEMENT OF OPERATION OF 969 MW NEELUM-JHELUM HYDRO POWER PROJECT.
I have been directed to refer to the above subject and to state that the construction of 969 MW Neelum-Jhelum Hydroelectric Project has been completed and, reportedly, the operation of the project is about to commence very soon. In this regard, as per law before commencing the operation of the project, it is mandatory for Neelum-Jhelum Hydro Company (the proponent of the project) to secure/obtain "Written Confirmation of Compliance" from EPA for construction phase, as provided under Regulation 13(2)(b) of "AJ&K Review of Environmental Impact Assessment/IEE Regula tions 2009", which provides as under:- "13(2)(b) Where Agency accords its approval subject to certain conditions, the proponent shall; (a)
(b)Before commencing operation of the project, obtain from Agency a written confirmation of compliance that the conditions of the approval, and the requirements given in the IEE or Environmental Impact Assessment related to design and construction, adoption of mitigatory and other measures and other relevant matters have been duly complied with"
2. The Regulation 14 (Confirmation of Compliance) of said Regulations further enunciates that the request for Written Confirmation of Compliance shall be accompanied by Environmental Management Plan (EMF) for the "Life of the Project" including provisions for monitoring, reporting and auditing.
3. Forgoing in view, this is to intimate that a case for obtaining Written Confirmation of compliance for EPA, that you have implemented all the mitigation measures in true spirit of Environmental Approvals, granted by EPA for the Construction of 969 MW Neelum-Jhelum Hydroelectric Project (NJHEP without securing Confirmation of Compliance would be deemed as a serious breach of Law that is cognizable under Section 16 of AJ&K Environmental Protection Act, 2000.
4. This issue with the approval of Competent Authority. (M. Ali Saleem) Assistant Director. CC.
1. PS to the 4SC (Dev)/Secretary Environment, Government of AJ&K.
2. Master File."
Despite issuance of above notice by AJK EPA, NJHC did not file the mandatory confirmation of compliance, hence, going into operation phase without meeting prerequisite mandatory conditions amounts to continuous violation of law which is cognizable by the concerned authority.
17. We are cognizant of the significance of legal measures that are required for effective implementation of sustainable development to enforce environmental quality to be maintained for the well being of the people.
Effective legal measures support the regulators to enforce environmental equality standards to safeguard the nature and nature based resources. Notwithstanding, this needs to be equally realized that only Nature-based solutions harness the power and sophistication of nature to turn environmental, social and economic challenges into innovation opportunities. Only Nature-based solutions can address a verity of societal challenges in sustainable ways with the potential to contribute to green growth, fostering people's well being, providing business opportunities and positioning a State as a leader in world markets. Nature-based solutions are actions which are inspired by, supported by or copied from nature and resilient to change, but to be successful, must be adapted to local conditions. Only Courts judgment may not prove result oriented unless supported by a through nature-based solution, which can only be achieved after conducting a thorough environmental studies/surveys.
18. In view of technical sensitively involved in the nature of case, we have also summoned Raja Mohammad Razzaque, Secretary Population Welfare Department (Member, World Commission on Environmental Law), who had also served as Director General, Environmental Protection Agency for three years, to assist the court in setting Environmental flows (e-flows) for. Neelum-Jhelum and Kohala Hydro power Projects and other appropriate mitigation measures which are essential to safeguard our pristine environment. He concisely sensitized the court on different scenarios with modus operandi as under:- A. Setting Environmental Flows (e flows) for Neelum-Jhelum and Kohala Hydropower Projects.
The Brisbane Declaration, 2007'-- --to which Pakistan is a party-- recognized that Freshwater ecosystems are the foundation of our social, cultural and economic well-being.
Freshwater ecosystems are seriously impaired and continue to degrade at alarming rates.
In cognizance of the above, the declaration defines environmental flow as: 'Environmental flows describe the quantity, timing, and quality of water flows required to sustain freshwater and estuarine ecosystems and the human livelihoods and well being that depend on these ecosystems.'
Hydropower projects invariable result in altering the natural flow regime of rivers by constructing dams, and diverting and regulating the flow to optimize power generation. Where diversion tunnels are involved, low flow reaches downstream of the dams are created. Significant hourly and daily variations in flow also occur when the power plants are operated in a peaking mode in low flow winter season, to match the production of electricity with its demand. Environmental flow assessments of hydropower projects are required to inform the decision makers on the tradeoffs between economic gain from power generation and loss to the society, ecosystem, and local economy and people on account of loss of services provided by the rivers. These can include drinking water supply, irrigation, fisheries, and dilution of effluents generated by cities. In the context of hydropower, the common practice based on misconception is a minimum release from the dam which is considered to achieve the balance between economic gain and environment. Environmental flows worldwide in the past have typically been set by engineers as a part of the project design, and have relied on simplistic and outdated approaches such as setting a minimum flow corresponding to 10% of average low flow season or monthly average flow. This approach disregards the local conditions and environment, such as community uses of water, sensitive ecosystems, and trans-boundary impacts. Guidelines for assessment of environmental flows to address these concerns and shortcomings are available in literature.
19. As far as the proposed Kohala Project is concerned, according to record summoned from the Azad Jammu and Kashmir Private power Cell, history of the project is as under.
(a) Ministry of Water and Power, GoP and China Three Gorges Corporation (CTGC), signed MOU for development of Kohala HPP by CTGC on BOOT (Build, Own, Operate and Transfers) basis, during the visit of Honorable President of Pakistan to China in October 2008;
(b) Private Power and Infrastructure Board (PPIB) issued letter of Intent (LOI) under the provision of Power Policy 2002 to CTGC on 15 January 2009 to review, update the feasibility study earlier carried out by WAPDA at no risk and cost to the Government of Pakistan (GOP);
(c) Power Policy for Power Generation Projects Year 2002 promulgated by COP is adopted by Government of AJK vide notification # 2472- 84/2006 dated 14.03.2006. As per para 28 of the Power Policy, the Provinces/AJK can mange investment for projects up to 50 MW and for projects above 50 MW, PPIB (Print Power. Investment Board) is the main driver and catalyst for managing investment;
(d) Subsequently, letter of Support (LOS) was issued on 31st December 2015 to Kohala Hydro Company Limited subsidiary of China Three Gorges Corporation (CTGC) by PPIB, GOP;
(e) The project is duly approved by GoAJK vide Notification # SE/PDO/11628-39/2016 dated 31.08.2016 and AJK EPA issued conditional NOC in favour of Project Company;
(f) The project Company has signed MOU with Board of Revenue GoAJK for land acquisition and resettlement.
The award for most of the land has been issued. The project Company shall sign a 'Land Lease Agreement' with GoAJK and GoAJK shall be the owner of the land and the Project Company shall be lessee. The process of land acquisition is routed through AJK Private Power Cell;
(g) The Project Company has deposited about Rs. 1.5 billion into Government treasury and disbursement to Project affectees have been started by Revenue Department.
NATIONAL BENEFITS OF PROJECT:
1. Generation of 1124 MW electricity.
2. Investment of US$ 2.4 billion.
PROJECT BENEFITS TO AJK: a. After completion of 30 years term of the project, the project costing US$ 2.4 Billion, would, be transferred to GoAJK free of costs; b. The Company shall pay approximately Rs.65.65 Billion to GoAJK during 30 years on account of Water use Charges (WUC); c. The company shall pay roughly Rs.10 billion to GoAJK during 6.5 years of construction of the project on account of taxes; d. Project would produce employ ment opportunities and allied business for locals and near areas.
20. As a result of a letter of the Prime Minister of Azad Jammu and Kashmir dated 07.09.2018, the Prime Minister of Pakistan vide letter dated 09.10.2018 directed the Secretary Water Resources Development to submit a report after consultation with the Chairman WAPDA and Azad Jammu and Kashmir Government relating to issues pertaining to reduction in natural river flow passing through Muzaffarabad city due to diversion of water at the existing NJHP and the proposed KHP. After jointly visiting the NJHP along with relevant technical officials and verifying the actual discharge for the recommendation of technical solution to the issues, the report was prepared by the concerned Secretary which narrates the respective versions of the concerned stakeholders and the recommendations, the same is also usefully reproduced as under:- "REPORT ON SOCIAL, ENVIRON MENTAL AND STRATEGIC ISSUES LIKELY TO EMERGE DUE TO CONSTRUCTION OF KOHALA HYDROPOWER PROJECT.
1. Background.
1.01 On 07.09.2018, the Prime Minster of Azad Jammu and Kashmir (AJK) made a correspondence with the Prime Minister of Pakistan followed by a meeting on 09.10.2018. In the said correspondence and the meeting, the PM AJK highlighted that pursuance to diversion of water of Neelum River through Neelum-Jhelum Hydropower Project (NJHP) the Neelum River flows have been drastically reduced below the Neelum Jhelum dam up to Muzaffarabad city. This situation is creating adverse effects on the environment in terms of inter alia, deterioration of the river water quality because of less flows and reduction in water supply for Muzaffarabad city from Makri water supply scheme. The said situation will be further exacerbated after construction of Kohala Hydropower Project (KHP) on Jhelum River because KHP will also divert the water of Jhelum River which presently flows in its natural course to Muzaffarabad, leaving thereby the capital city of AJK devoid of its natural river flows resulting into serious environmental and social issues.
1.02 The Prime Minister's Office (PMO) accordingly conveyed the orders of the Prime Minster vide UO letter dated 09.10.2018 that the Secretary Water Resources in consultation with Chairman WAPDA and Azad Jammu and Kashmir Government shall furnish a report on the issue pertaining to reduction in natural river flow passing through Muzaffarabad city due to diversion of water at the existing NJHP and the proposed KHP after jointly visiting the NJHP along with relevant technical officials and verifying the actual discharge downstream. A technical solution to the issue shall be suggested without involvement of huge funds.
2. Consultation.
2.01 Pursuant to submission of this Ministry's report on "Water Issues of Muzaffarabad City v. NJHPP" submitted to the Prime Minster's office -vide this Ministry's U.O. No.2(26)/1989- AC, dated January 02, 2019, the joint Secretary (Water), Ministry of Water Resources visited Muzaffarabad city and the dam site of the proposed Kohala HPP on 19.01.2019. The visit was aimed to make consultation with the concerned officials of the Government of AJK and see the proposed dam site of Kohala Hydropower Project to review the concerns highlighted by the Government of AJK that with the construction of Kohala HPP, the meeting was held with the official of Government of AJ&K, representing EPA, Energy and P&D Departments as well as the DC Muzaffarabad. A repre sentative of the PPIB also participated in the said meeting. The above said team, after the meeting proceeded for the site visit.
2.02 It is also to mention that before proceeding for Muzaffarabad, the JS (W) also held a meeting on 18.01.2019 in the Ministry of Water Resources, Islamabad, with the representatives of China three Gorges Company the developer of Kohala HPP on their request made to the Ministry of Water Resources vide their letter No. Nil, dated 26.12.2018.
2.03 Besides a meeting was also convened in the MoWR under the chairmanship of the Secretary MoWR on 21.02.2019 wherein the ACS Development, MD PPIB and the CEO of Kohala Hydropower Company also participated. The participants shared their respective view point. After deliberations, it was decided that the Kohala Hydropower Company will respond to the concerns of the Government of AJK in a meeting which will be convened after a week.
2.04 The next meeting which scheduled to be held within a of on of Government of AJK with a st;,15x1 reason of obtaining clear mandate from their Prime Minister.
2.05 In the said meeting the parties reiterated their original stance. Besides, the ACS Development, being the representative of the Government of AJK, conveyed that the Prime Minister of AJK has desired that the Government of Pakistan should take cognizance of all other outstanding issues which need resolution since long. The particular points which the ACS Development intimated have been provided under section 3, below.
3. Viewpoint of Stakeholders.
3.01 Concerns and Viewpoint of Government of Azad Jammu and Kashmir. a. During the meeting held in Muzaffarabad on 19.01.2019, as referred at para 2.01 above, the Director General EPA-AJK briefed that the natural river flow passing through Muzaffarabad city is presently contributed by the Neelum and the Jhelum rivers as the city of Muzaffarabad is located at the confluence of these two rivers. b. With tile construction of Neelum-Jhelum Hydropower Project (NJHP), the actual flows of Neelum River dwindled drastically when the Neelum Jhelum Company (NJC) restricted the outflows from NJ Dam to 9 cumec being the designed minimum environmental flow of NJHP. The situation was immediately felt adversely by the local city. The flow reduction in Neelum River also adversely affected the water drawing capacity of Makri water supply scheme as reported by the Public Health Engineering Department of AJK. The matter was taken up by the District Administration of Muzaffarabad city with the NJC to resolve the concerns of locals which were expanding into agitation. Pursuant to the intervention of the District Administration, the NJC maintained minimum flow equivalent to 20 cumec through release from NJ Dam. c. He added that, based on lessons learnt from NJHP, both the people of Muzaffarabad and the Government of AJK, are highly cautious and concerned about the construction of Kohala Hydropower Project (KHP) which incorporates a scheme of diversion of water from the upper limb of Jhelum River at Siran to Kohala on the lower limb of Jhelum by passing Muzaffarabad city, thus depriving the natural water, once again, to the city of Muzaffarabad, except for a stated provision made in KHP to release 30 cumec as minimum environmental flow below the KHP Dam. Given already reduced flow from Neelum after operation of NJHP, the diversion of water after construction of KHP is intolerable for the Government of AJK, socially, environmentally as well as politically both at domestic and international level. Considering the gravity of the situation associated with the construction of KHP which bears high impacts beyond mitigation as well as the adverse public sentiments against the diversion, the people and Government of AJK are of the opinion that instead of a diversion project, KHP should be redesigned as pure Run-of-the River Project without diversion component. Notwithstanding, if the project is to be developed as a diversion scheme, following major mitigation measures are essential which must be taken and a firm commitment be made by the project developer through a tripartite agreement among the Government of AJK , the Project Developer and the Government of Pakistan through the Ministry of Energy (Power Division).
(i) E-flow downstream Saran site should be 80 cumecs (additional 50 cumecs water being added into Jhelum River due to diversion of Neelum River at Kishenganga Hydropower Project in Indian occupied Kashmir be considered as minimum flow below KHP and be maintained during lean period E-flow).
(ii) Provision of Sewage Treatment Plants with 100% water treatment capacity, for settlements in downstream Saran including Muzaffarabad city areas (which is also a part of Addendum No.1 as additional condition in pursuance to condition 10 of Conditional Environmental Approval issued by EPA), vide EPA No.1759- 69/2016 dated 05.09.2016.
(iii) Construction of minimum 5 (five) water bodies downstream of the dam at Saran as reflected in Conditional Environmental Approvals of AJK-EPA of dated 05.09.2016.
(iv) Provide drinking water facilities in the affected project corridor areas including urban sports.
(v) All other mitigation measures, as pointed out in the Conditional Environmental NOC for the KHPP, must be executed in letter and spirit. d. While explaining the existing flow conditions, he shared monthly average flows of Jhelum River at KHP Dam site as observed by Surface Water Hydrology Directorate of WAPDA and reported by Kohala Hydropower Company (Private) Limited (KHCL) in 2016. Based on the two sets of monthly average flow values, he presented a comparison of both the data and also presented a comparison of water envisaged for diversion through KHP as reportedly estimated by WAPDA and the KHCL. The said comparison of natural- and diverted flows at KHP Dam site as presented by the DG EPA are given below in Table 1:- Table 1: Natural Flow of Jhelum River and Diverted Flow from KHP reported by and KHC as presented by DC EPA, AJK.
Month WAPDA (Cumec)KHCL (Cumec)WAPDA (Cumec)KHCL (Cumec)
Jan 97.05 94.30 97.05 75.10 Feb 160.20 160.00 160.20 144.70 Mar 374.07 365.00 374.07 368.60 Apr 574.23 555.00 425.00 425.00 May 648.66 628.00 425.00 425.00 Jun 514.22 491.00 425.00 425.00 July 431.17 413.00 425.00 425.00 Aug 365.02 349.00 365.02 361.90 Sep 248.51 243.00 248.51 252.10 Oct 133.58 129.00 133.58 122.30 Nov 97.44 95.30 97.44 82.00 Dec 89.88 90.70 89.88 74.70 e. On a query by the joint Secretary M.WR, the DG EPA responded that initially in 2014, E-flow was calculated through Montana method by the consortium of SMEC that excluded environmental based flow study i.e. DRIFT' study and has lest scope to take care of E-flow holistically. The Montana method was applied and E-flow was determined as 18 cumecs, which after refinements in the light of other associated factors, was raised to 22.05 cumecs and submitted to EPA for approval in 2015. The EPA, did not agree with the method applied and formula used for determining E-flow and this was communicated to CTG that 39.05 cumecs will required as E- flow, however as minimum it should not be less than 30 cumecs, Similarly, the CTG during determining E-flow, did not take into account the additional inflow available after operation of Kishenganga HEP, which was highlighted by EPA under its response furnished in 2015. The CTG (KHC) subsequently carried out E-flow Assessment through DRIFT Model, in 2016, which is an ex-post factor in nature. The DRIFT method usually generates and accordingly study different flow scenarios and finally recommends one with least adverse impacts on biophysical and social environment. Whereas, in this case, the DRIFT has been run to corroborate already determined Flow Scenarios, i.e. 22.05 cumecs proposed by the project developer (KHC) and 30 cumecs determined by EPA, as minimum. The applied DRIFT methodology has also not taken into account of hydrology of river. In order to for examine the facts, the Joint Secretary MoWR GoP desired to review the original hydrological study, including but not limited to, the hydrological analyses, primary data and documents and the derived outcome, conducted by China Three gorges Corporation (CTG) and submitted to EPA AJK. He also advised EPA to seek comments proposals from other stakeholders of AJ&K i.e. Fisheries, Irrigation, Agriculture, Forestry, Municipal Authorities and PP&H Department regarding mitigation measures to be incorporated by the project developer, in order to avoid any gap while examining the basis of the latest E-flow study conducted for KHP. f. The DG EPA further elaborated the strategic issues and explained that River Jhelum is already regulated in IOK due to three large scale Hydro Power Projects, which include 480 MW Uri-2 HPP, 240 MW Uri-1 and 150 MW Lower Jhelum HPP, and in case, India holds the flow downstream for enhanced generation, the situation downstream from Saran will become further exacerbated. Furthermore, if E-flows at Kohala are determined to fully address the environmental and social concerns of downstream reaches, it will strengthen Pakistan's arguments in case it contests for getting more environmental flow from India at any third forum. Besides, as per final award by CoA on Feb 18, 2013, the Parties to the Indus Waters Treaty have been afforded the right to make a recourse to the court for having reconsideration of the E-flows given in Kishenganga 2013 award after a period of 7 years of operation of Kishenganga. g. In view of above, the DG EPA, on behalf of the Government of AJK recommended that a comprehensive environmental study should be conducted to determine the actual E-f low on the earliest basis on the similar lines as recommended in case of NJHPP vide the report of the Ministry of Water Resources submitted to the Prime Minister of trade-off options regarding the re-designing of the project as run of river instead of tunneling, project. h. The additional items raised by the ACS Development in the meeting held on 08.03.2019 were:
(i) Provision of 614 cusecs water from Mangla Dam to AJK for irrigation and drinking purposes;
(ii) Complete and full imple mentation of the recommen dations of the report prepared by the MoWR on the environmental concerns associated with the Neelum-Jhelum Hydropower Project;
(iii) Payment of Water Use Charge/Net Hydel Profit at par with the provinces in accordance with recommendations of the committee constituted by the Prime Minister under the convenorship of Secretary Finance Division and comprising the Secretary MoWR and the CS AJK;
(iv) Implementation of Mansehra Muzaffarabad Mirpur-Mangla road under the CPEC as agreed during the 7th JCC of CPEC.
3.02 Viewpoint of Private Power Infrastructure Board (PPIB) a. The PPIB vide its letter dated 19.02.2019 conveyed to this Ministry its viewpoint as given in the ensuing paragraphs. b. 1124 MW Kbhala Hydropower Project (the Project) is a Run of River scheme planned to be located on Jhelum River with Dam/Weir near Siran in District Jhelum Valley and Power House near Barsala/Kohala Bridge district Muzaffarabad. c. The project is being developed by Kohala Hydropower Company Private Limited (KHCL) under Power Policy 2002 of Government of Pakistan as adopted in AJ&K. The project is being sponsored by China Three Gorges Corporation through its subsidiary M/s CSAIL with 70% share in equity, Silk Road Fund with 15% share in equity and IFC with 15% share in equity. d. The Project is included in CPEC to which Letter of Support (LOS) was issued by PPIB on 31st December 2015. Currently it is at Financial closing (FC) Stage for which KHCL has completed a number of milestones for achievement of FC and FC achievement dated was 31st December 2018 yet some crucial pre-requisites particularly the land acquisition process has not yet been completed by the Go AJ&K. e. It is import to mention here that after operation of recently completed Neelum-Jhelum Hydropower Project (N- J HPP) by WAPDA, major portion of the flow from Neelum River has been diverted through tunnel bypassing Muzaffarabad city and only environmental (e-flow) is being released by WAPDA in the Neelum River. The local community of Muzaffarabad started showing its concern over reduced flow in Neelum River considering it insufficient to cater for the needs of the city. Consequently, GoAJ&K raised its apprehension about e-flow of Kohala Hydropower Project and is linking it with the N-J H PP e-flow issued; due to which activities on land acquisition have been stopped. The GoAJ&K is demanding a higher e-flow from Kohala Hydropower Project and at the same time wants to put the burden to KHCL for construction of municipal sewage treatment plants in Muzaffarabad city. f. It is important to mention here that prior to inclusion of Kohala HPP in CPEC program, the E-flow was fixed @ 5 cumecs in the Feasibility Study conducted by WAPDA. Then the Chinese Investors reviewed the E-flow and concluded @ 15 cumecs. After inclusion of the project in CPEC, the E-Flow was worked out based on scientific method and international/World Bank standards (much more stringent than that of government of AJ&K) which confirmed sufficiency of 22.05 cumecs to cater for maintenance of aquatic life, needs of community downstream of the dam sit, dilution waster water from the city of Muzaffarabad and water supply requirements of the city and adjoining population considering their projected growth for next 50 years. g. However, the Government of AJ&K requested E-Flow @ 30 cumecs which was accepted by the investors in courtesy of Kohala HPP being a China Pakistan Economic Corridor Project. The Environment Protection Agency of AJ&K government as per its rules and regulations went through long rigorous process including extensive consultations with relevant departments as well as local communities and decided E-Flow @ 30 cumecs and issued NOC on 22nd December. h. Accordingly, the design of the project got changed and bids were obtained through ICB and NEPRA approved project cost and tariff on 2nd April 2018. Payment on account of land lease for about 53% public and private land has been made by the Company to AJ&K Government. All kinds of Agreements have been initialed between Company and the Government of AJ&K and Pakistan including Power Purchase Agreement (PPA).
The contractor was also mobilized to perform preliminary construction works. i. Moreover, besides generous compensations i.e. more than government and market rates to the affected people, activities under corporate social responsibility (CSR) have also been initiated which also include fully funded higher education support to project affected youth in the field of engineering from Chinese universities with the assurance of employment and so far twenty eight students are benefiting and this figure will doss hundred in next couple of years. k. It is noteworthy that Kohala HPP is the largest power project under CPEC regime in terms of investment to the tune of US$ 2.5 Billion which is likely to open extensive employment and business opportunities for locals to improve their quality of life on sustainable basis. Moreover, the government of AJ&K will receive billions of rupees on account of land lease, taxes, water use charged etc. for performing its functions during construction and operation of the plant. k. it is worth mentioning here that after completion of the term period of 30 years, project will be transferred to AJ&K government free of cost and AJ&K government will be selling electricity to the national grid at a feasible unit rate which would be adding significantly income sources of AJ&K government for its self-sufficiency spending towards socio-economic uplift of the people of AJ&K. l. Approximately 80% population of Muzaffarabad is associated with Neelum River and about 20% with Jhelum River. WAPDA in order to address the concern of AJ&K government and people have already increased minim flow from 9 cumecs to 20 cumecs, whereas minimum 30 cumecs E-Flow release from Kohala project is already much higher than the future 50 years requirements at downstream. This minimum E-Flow will occur only for about two-three months during winter season and will gradually increase up to annual average of 58 cumecs with the increase in natural flow upstream. m. In view of the above, it is stated that Kohala Hydropower Project is at advance stage of development for which all major project's agreements have been finalized and all necessary approvals of the investors, governments, lenders and Sinosure are in place. It is single largest investment so far in any IPP in Pakistan/AJ&K which is being developed in the private sector under a well defined policy framework. Further, the scientifically determined e-flow of 30 cumecs which is duly approved by AJ&K EPA, is much higher than the future downstream requirements in the river i.e. maintenance of aquatic life, needs of community downstream of the dam sit, dilution of waste water from the city Muzaffarabad and water supply requirement of the city and adjoining population considering their projected growth for next 50 years, therefore, any enhancement of e- flow from existing approval e-flow of 30 cumecs will require a design change which will have serious adverse impacts on the project tariff already approved by NEPRA, the project cost as well as substantial delay in its commissioning. This may also require approvals of the Chinese investor, Chinese government, lenders and Sinosure as well as NEPRA, and will require considerable time. Therefore, at this point in time minimum e-flow should be kept @ 30 cumecs which is more than the e-flow requirement and approved by the EPA, government of AJ&K, with the condition that necessity of any enhancement of e-flow may be fixed through adaptive method vis--vis quantity and period of e-flow releases, after commercial operation of the Project, and provision of water bodies may be decided as per Condition at Sr. K (xxiii) (Creation of Water Bodies) of AJ&K EPA approval dated 22nd December 2016 and "EPA Stance" at Sr. No. K (xxiii) of the Undertaking given by the Company to the EPA in relation with said approval of AJ&K-EPA.
3.03 Viewpoint of Kohala Hydro Company (Private) Limited (KHCL)-The Project Developer. a. The KHCL during the meetings held in the MoWR apprised that the project developer comprises a consortium of China three gorges Corporation (70% shareholding), International Finance Corporation (IFC) of World Bank Group (15% shareholding) and Silk road Fund (15% shareholding). This consortium forms China three gorges South Asia Investment Limited (CSAIL) which is undertaking Kohala Hydropower project through its company known as Kohala Hydro Company (Private) Limited (KHCL). The CTG enjoys a good international repute in terms of investment in hydropower and wind power plants where with an investment portfolio of 63.10 billion in Europe, USD 5 billion in Brazil and USD 20 billion as an expected investment in Asia including USD 6 billion under the CPEC. b. The CSAIL's Kohala venture is a biggest Foreign Direct Investment in the hydropower sector under the ongoing CPEC being implemented under the BOOT model. The total investment amount is USD 2.7 billion. The company will transfer the project complete project to the Government of AJ&K after 30 years ' operation which will provide USD 400 million to the Government of A J&K , annually. Therefore, the Government of AJK should cooperate with the KHCL to solve all kind of issues related to the project. If the matter gets settled and resolved, the construction work has to be started in the first half of year 2019 according, to the project implementation plan. c. The CTG has made huge struggle of eight years to bring the project under the CPEC, as generally no investors were inclined for investment in AJK due to its disputed status. Due to the Environmental-flow (E-flow) issue, the project has been stalled for almost eight months due to which the Company had to transfer 90% of its EPC staff to other overseas projects. Presently 80 Chinese engineers along with 150 number of various kind of machinery and 200 local people are mobilized on site. It is apprehended that in case the matter is not resolved the funds allocated for Kohala HPP may be diverted to other investment ventures of the CTG Company. With this state of affairs, the KHCL team is losing its confidence in its head office with every day passed. d. As a matter of fact, the design of Kohala Hydropower Project (KHPP) has been based on 30 cumec Environmental flow (E-flow) pursuant to the official demand of the AJK as against the E-flow calculated by the KHCL of 22.05 cumec. The AJK EPA, while giving comments on Technical Report of KHPP, conveyed to PPIB, vide letter dated 09.07.2015, that the E-flow of 30 cumec must be ensured. During 10th POE meeting held on 24.03.2016, POE decided the E-flows as 30 cumec in Jhelum River. Accordingly, the AJK EPA issued conditional No Objection Certificate (NOC) to KHCL on 22.12.2016 stating, inter alia that "....Environmental Flow downstream not less than 30 m3/sec, during lean period" This was finally approved by the IFC on 09.07.2017.
Based on approval by the AJK EPA and subsequently by the POE of PPIB, the EPC contract was awarded on 21.01.2017 and the financing structure was finalized with lenders. In addition, based on the technical, commercial and the economic indicators of the Project, tariff has also been determined by NEPRA on 11.10.2018 i.e. two years after the approval of design by the POE. e. On the conditional NOC issued by the AJK EPA on 22.12.2016, the CEO KHCL gave undertaking to the AJK EPA on 18.07.2017 that the CEO KHCL fully understood and accepted the conditions mentioned in. the Conditional Environmental Approval (the NOC) of 1124 MW Kohala HPP accorded by the AJK EPA on 22.12.2016 subject to mutual understating/ interpretations on the eight conditions on which KHCL provided its rationale and agreed during the meeting held in EPA office Muzaffarabad on 04.05.2017. f. The KHCL stated in its rationale that the construction of water bodies being one of the major conditions imposed by the AJK EPA in its conditional FPA was discussed. It was stated that in case of NJHP the consultants of NJHP furnished their apparent opinion that construction of water bodies is not technically feasible due to following reasons;
(i) High sediment load in Jhelum River, any water body created in the river bed will be filled up with sediment deposited in flood period;
(ii) Given the flow of Himalayan River, any structure constructed will be washed during floods. g. The DG EPA-AJK on the above rationale of KHCL recorded his observation on 04.05.2017 by pointing out that in this case NJHP have already allocated funds for feasibility study of construction of water bodies to determine the status of being technically viable. The Chief Engineer CDO (WAPDA) also pointed out that the slope of Neelum River is much steep than Jhelum River. Considering water bodies as conductive to environment, the construction has been proposed for Neelum River provided with the gates to flush sediments during low flood level. h.The Agreed position of AJK EPA and KHCL on the above condition and the rationale as presented by the KCHL to the MoWR is as follows:- "The condition will be reviewed in line with outcome of the feasibility study for construction of water bodies in Neelum River by NJHP followed by independent third party feasibility study by KHCL to be engaged, if necessary, in consultation with EPA-AJK" i.With regard to consideration of water bodies, the KHCL also apprised that NEPRA during the hearing on 19.07:2018, did not allow the construction of water bodies at a cost of USD 100 million as part of tariff of KHPP and conveyed that theaforementioned decision of NEPRA Authority is based on the available information provided by the Sponsor Company/project Company. However, if there are any studies conducted by the AJK- EPA regarding the proposed water bodies those may be shared with NEPRA for further necessary action.
J. The KHCL in view of above process, has apprised to the MoWR to proceed further in the following manner:-
(i) Based on NJ project feasibility study, Company will hire independent third party consultant to make feasibility study on water bodies at company's cost.
(ii) The report will be submitted to all stakeholders including GoAJK, NEPRA, IFC and third party Consultant for review and finalization.
(iii) The final report with estimates cost, design and construction schedule will be submitted to NEPRA for final approval. k. Besides water bodies, the other major condition imposed in the Conditional NOC issued by AJK EPA was concerning the Sewage Treatment Plants (STPs). The KHCL in this regard submitted its position as follows:-
(i) AJK EPA through addendum dated 28.11.2018 communicated that the installation of Sewage Treatment be an integral part of Environmental Management Plan (EMP) of the Kohala Hydro Power Project.
(ii)The National Electric Power Regulatory Authority (NEPRA) based on feasibility study, detailed engineering design, environmental approvals and EPC contract has determined tariff on cost plus basis. The cost does not include cost of any sewage treatment plant.
(iii)The justification for the installation of Sewage Treatment Plant provided by EPA is to offset the potential impacts of the increase in biological Oxygen Demand (BOD) of the remaining flow of River Jhelum downstream, during the operation phases, due to serious threat of exponential increase in remaining reduced flow in river downstream. This ground is not supported with any scientific evidence or model study and is purely an observation of AJK EPA.
(iv)AJK EPA, through addendum dated 28.11.2018 communicated that the installation of Sewage Treatment be an integral part of Environmental Management Plan (EMP) of the Kohala Hydro Power Project.
(v)The National Electric Power Regulatory Authority (NEPRA) based on feasibility study, detailed engineering design, environmental approvals and EPC contract has determined tariff on cost plus basis. The cost does not include cost of any sewage treatment plant.
(vi)The justification for the installation of Sewage Treatment Plant provided by EPA is to offset the potential impacts of the increase in biological Oxygen Demand (BOD) of the remaining flow of River Jhelum down stream during the operation phases, due to serious threat of exponential increase in remaining reduced flow in river downstream. This ground id not supported with any scientific evidence or model study and is purely an observation of AJK EPA.
(vii)The KHCL ESIA Report (approved from IFC, POE, EP AJK, Chinese Government clearly states that environmental factors like Dissolved Oxygen, turbidity, total dissolved solids, water pollution, BOD, and Chemical Oxygen Demand (COD) etc, are not limiting factors in Jhelum River in terms of impacts on migration and distribution of fish or even otherwise.
(viii)Drift Model study for E-flow of Kohala Project considers the water quality including the concentration of untreated sewage discharge into Jhelum River, it also considers the predicted impacts of other hydropower project namely KHEP, NJHPP, PHPP, KAHPP and KHPP.
(ix)The municipal sewage of Muzaffarabad is predicted to be 1.7 cumec in 2050. As there are no any wastewater treatment facilities in Muzaffarabad, all the municipal sewage from city is being directly discharged into the Jhelum river. Therefore, the dilution water demanding is 17 cumec to EPA Pak's dilution rate should be no less than 10.1.
(x) Based on aforementioned, the average monthly ecological flow (68 cumec) minimum ecological flow' (30 cumec), and 2 days flushing discharge more than 1000 cumec are enough for sewage dilution.
(xi) Considering the big revenues of water using charge and different taxes collected by GoAJK after the operation of project, GoAJK may carryout investment on infrastructure projects such as sewage treatment plants in the future.
1. With the above background and the circumstances, the KHCL conveyed its considered view as follows:
(i) Increase in E-flow is technically, commercially and legally not justifiable by GoAJ&K department, it also be not supported with any scientific evidence or model study by GoAJ&K departments. PPIB and GoAJ&K should give final decision as soon as possible. In case the E-flow is changed it will result into the following: a. Delay of the investment of at least 3 years; b. Additional cost more than USD 30 million for redesign of the project; c. Reduction of Capacity; d. 5%-10% increase in tariff; e. Cancellation of the Project by CTG due to change in strategy and policy after three years.
(ii) Company will hire independent third party consultant to make feasibility study on water bodies at company's cost based on NJ Feasibility Study. The report will be submitted to all stakeholders including GoAJK and NEPRA, IFC and third party Consultant for review and finalization. The final report with estimated cost, design and construction schedule will be submitted to NEPRA for final approval.
(iii) Sewage Treatment Plants are not relevant to the project. m. Beside above, the KHCL along with the PPIB during the last meeting held in the MoWR on 08.03.2019, conveyed that in case the downstream release from the KHPP is increased from 30 cumec to 60 cumec, the KHCL will remain entitled to get its revenue according to the terms and conditions approved in the tariff petition of Kohala HPP.Any financial implication whatsoever will have to be borne by the Power Purchaser and not by the KHCL. The CEO of the Company also apprised that sufficient arrangements are available in the existing design of the project to ensure 60 cumec release downstream of the dam KHPP in the Jhelum River.
4. Examination by the MoWR of the E-flow Assessment Technical Report Published on 15.08.2016 as Provided by KHCL.
4.01 The E-flow assessment report studies various reaches of Jhelum and Neelum Rivers in which the critical reach, with regard to the environmental concern for the Muzaffarabad city, is the Reach 4a as denominated in the E-flow assessment report of KHCL. In this reach, like all other reaches, the impact of diversion has been studied on various disciplines including geomorphology, water quality, alage, vegetation, macro invertebrates and fish.
4.02 Furthermore, the impacts on the said disciplines have been studied for thirteen various scenarios which broadly cover the 'no-diversion' scenarios vis. (i) the baseline conditions as prevailed in year 2012 and (ii) the present day conditions as observed in 2016, and the 'diversion' scenarios based on simulation results of the DRIFT model. Further diversification induced in these scenarios pertain to taking impact of other hydropower projects in the Jhelum basin particularly on Neelum, Kunhar and Jhelum.
4.03 These scenarios have further been broadened by adding various levels of management to protect biodiversity. These scenarios range from 'Business as Usual' to 1st, 2nd and 3rd degree of protection denominated as 'Pro-1', 'pro-2' and 'pro-3, respectively.
4.04 In order to ascertain the impact assessed in the E-flow report, the most relevant scenarios are as follows:-
(i) Base-BAU;
(ii) KoP3O-BAU;
(iii) KoP30-pro 1/2/3.
4.05 Base-BAU is 2012 baseline, which represent the river conditions before completion of Kishenganga Hydroelectric plant (KHEP) Neelum Jhelum Hydropower Project (NJHPP) and Patrind Hydropower project (PHPP), with Business as Usual. (BAU) in the reaches represented by various sites on Jhelum Neelum and in the Mahl and Kahuta nullahs.
4.06 KoP3O-BAU is KHEP, NJHPP, PHPP and Karot HPP, plus baseload generation at Kohala HPP with a minimum release of 30 cumec; BAU along with the protection against environmental degradation for all sites in the basin.
4.07 KOP3O-Pro 1/2/3 is KHEP, NJHPP, PHPP and Karot HPP, plus baseload generation at Kohala HPP with a minimum release of 30 cumec. Protection level 3 in place in the reaches represented by Sites 4a and 4 (just upstream and downstream of Kohala HPP dam, respectively). Protection level 2 in place in the reaches represented by Sites 7 and Kahuta nullah; and Protection level 1 in place in the reaches represented by Sites 5 and 6, and in the Mahl nullah.
4.08 Before proceeding to the impacts on various disciplines defined above, it is imperative to present the change in natural flow pattern in Jhelum River below the Kohala HPP dam as assessed and reported in the E- flow assessment report. The E-flow report under section 5.2.1 stated that once Kohala HPP is constructed and with a minimum release of either 30 or 22.05 cumec, the duration of the wet season will be reduced by about 100 days and that of the dry seasons will extended by approximately the same amount. Linked with this the onset of the wet seasons will be delayed and that of the dry season will be earlier than in the baseline. In simple terms, the dry season in without Kohala HPP starts from 2nd week of September which will start from 4th week of June every year with Kohala HPP even after introducing the Protection scenarios. Similarly, the wet season which stars without Kohala HPP in 1st week of March will start in 1st week of April when Kohala HPP will be constructed and operationalized. The reduction in flow as determined in the E-flow assessment report Table 5.4 on the basis of 5 day average minimum dry season flow will be from 67 cumec to 31 cumec in 'without' and 'with' Kohala HPP. This reduction in flow and prolonged dry season as well as reduced wet season are the major consequences of the Kohala HPP.
4.09 In order to understand the impact of the flow reduction as assessed in the E-flow report and summarized above, the most adversely hit disciplines worked out by the E-flow assessment report are Geomorphology, Water Quality, the Algae, the Macro invertebrates and fish particularly the Kashmir Catfish.
4.10 In the said disciplines, with regard to geomorphology most adversely affected indicator is the 'area of secondary channels, backwater' where the decline in condition is up to 70% in BAU scenario and has been presented with marginal to no improvement even with the highest degree of protection. This is an alarming situation which is diagnosed in the E-flow assessment report under section 5.2.3.1 as a result of trapping of suspended and bedload sediments in the Kohala reservoir, combined with much lower flows. It is important to clarify that even if the diversion component of Kohala HPP is excluded, the situation would not improve as unless the Kohala reservoir is filled up with the sediments, almost all the inflowing sediments will be trapped in the reservoir leading to reduction of area of secondary channels.
4.11 Under the discipline of Water Quality, the indictor of 'Nutrient Concentration' in dry season represent the decline the quality from 64% in the Vaseline to 150% with Kohala condition; the situation has however been stimulated as improved from 150% to 79% after introducing the highest degree of protection which still remains 15% less than the baseline condition. The E-flow assessment report under sections 5, 2, 3, 2 also describes the situation by stating that the nutrients are predicted to increase under the Kohala HPP scenarios. This is mainly related to loss of dilution capacity for nutrients and other pollutants entering the river from the surrounding landscape. It further describes that the predicted temperature under the Kohala HPP scenarios are erratic, because, at the decreased flow volumes expected, the buffering capacity of the river is much reduced, and water temperature are expected to track to ambient temperature more closely than under baseline conditions.
Importantly, with regard to introducing protection as part of biodiversity Management Plan, the E-flow assessment report under sections 4, 2, 1 titled as Measures for achieving protection levels' provides that "For nutrients, these levels of protection could be achieved through the construction and operation of sewage effluent treatment plants, and other means of reducing the inflow of raw sewage into the rivers. Such a process is reportedly under discussion for NJHEP.
4.12 Similar level of degradation on algae, macro invertebrates and Kashmir Catfish can be seen in