Solai Dam Report – National Environmental Complaints Committee (NECC)

Background.

Patel coffee estate is a company located in Solai area, Subukia sub County of Nakuru County on LR. No. 19242/1, Nakuru County. The sites GPS coordinates are LAT: 0^O 6’27.211” LON: 36^o7’48.162”E. According to the 2009 census, the area had a population of approximately 12,800 people but the number had risen over the years.

The company deals in dairy farming, coffee, tea, macadamia and flower farming for export. It has a sanctuary that hosts a variety of wild animals including zebras, impalas, waterbucks, giraffes, ostriches among others.

Solai area has seen the building of reservoirs to meet the demand from coffee and flower farms which take advantage of the rich volcanic soils in the Rift Valley. The main water supply in the farm is from dams, boreholes and rain water harvesting. There are 4 boreholes and 7 dams. Tindress dam and main house dams are currently being drained as recommended by Water Resources Authority. Milmet dam broke its walls and flooded the neighboring villages. The Milmet dam was one of six earthen embankment dams belonging to Mansukul Patel on the private property of his 1,400-hectare (3,500-acre) commercial rose farm and business, Solai Roses. The Milmet dam had a capacity of 80 million liters of which 72million poured out.

The dam burst in the evening of Wednesday 9th May 2018. So far, 48 persons have been confirmed dead, of whom more than 20 were children according to the National Creepomane Reports. Authorities believe approximately 2,000 people were left homeless.

Possible reasons of the collapse of the dam

Unusual high volumes of water caused by inflow or high rainfall which releases hydrostatic force that can collapse the walls of a dam
Due to soil moisture saturation, the hillside may become unstable and experience a landslide. The soil displaces the water and it topples over a section of the embankment making it to collapse
Outdated designs and lack of maintenance
Changes in land use practices, for instance conversion of forest lands to farm lands

NECC visited Nakuru County and held meetings with officers from NEMA, the county commissioner, Water Resources Authority, the chief officer in charge of water and sanitation at the county, assistant county commissioner and the area residents. The respondent did not allow the Committee into the farm to get a perspective of the environmental degradation.

Meeting held with the community members at Solai Area on 21/07/2018

NECC conducted a meeting spearheaded by the area Assistant County Commissioner Ms. Vicky Munyasia and the area acting area Chief Mr. Simon Mwangi. The key agenda of the meeting was to establish the environmental effects of the collapse a dam within the Patel Coffee Estates.

The committee secretary Dr. John Chumo informed the members of the community the mandate of the committee in environmental management in the country. The affected people were given an opportunity voice their environmental concerns. The committee established the following:

There were no environmental complaints from the respondent’s farm before the tragedy according to the area chief as from 2011.
Solai area is a semi-arid area but received unusually high amounts of rainfall in May and June
Ndondori forest is located on the upper side of the farm where streams originate flowing downstream to the farm
The re-construction committee headed by the governor and the regional commissioner is to begin backfilling activities on the deep gulleys created after the floods
The residents are forced to rely on boreholes for water supply after the respondent tapped streams flowing from Ndondori forest e.g. Watkins stream
The community members want the involvement of the respondent in environmental restoration activities
The area residents affected raised concerns of infertility of the soil used to backfill the gulleys and to replace the topsoil lost during the floods. They claimed that the soil had huge rock boulders
There were suggestions from the community members that the respondent should buy off the affected land, plant trees on it and relocate them elsewhere. This is because of the psychological trauma associated with living on the place where the tragedy happened.

Findings

The dam burst led to the loss of 48 lives, affected 223 households, 3 sub locations(Ruiru, Nyadundo and Urutan) and the damage felt stretched 25kms from the farm(Fig 2)
There was evidence of damage to the environment shown by deep gulleys and destruction of vegetation as a result of a dam burst at Solai area, Subukia sub county, Nakuru county(Fig 9 & 10)
The most affected area(Energy) is owned by the county government and was leased to members of the community
At the time of the visit by NECC, no environmental restoration had been undertaken in the area
At the time of the visit, the respondent was emptying one of the dams in the farm and water was flowing downstream
The location of the respondent’s farm and the Milmet dam that burst was upstream of affected area
The respondent supplied water to a few public amenities and the locals had to rely on water from wells for domestic purposes.
NEMA and other lead agencies conducted a control audit on the dam and established that:

The collapsed dam degraded the environment, destroyed land as well as infrastructure
The respondent is undertaking projects and activities within their land without complying with the provision of EMCA, 1999 and other natural resources laws applicable in Kenya
The environment audit reports submitted to NEMA failed to disclose critical information on the number of dams operated, size and volumes of dams, when the dams were constructed, compliance status of the dams with EMCA,1999 and water act 2016, potential impacts of dams and subsequent modifications of the dams from weirs to an earth dam(Annexed)
In the foregoing, the respondent failed to conserve and protect the environment and ensure ecologically sustainable development of land

Subsequently, NEMA issued the following orders to the respondent:

Immediately cease to use and operate Tindress and Milmet dams
Undertake and submit and environmental audit project report to NEMA for decommissioning of the Tindress and Milmet dams
Restore the degraded environment immediately as near as it may be to the state in which it was before the collapse of the dam
Undertake and submit to NEMA a detailed environmental audit for the Main house dam, Centre dam, Moi dam and Nursery dam within 21 days
Carry out biodiversity inventory for the game sanctuary in consultation with KWS
Ensure compliance with relevant laws and regulations on water abstraction

According to the environmental audits conducted by Charles K. Theuri(Expert No.8160), a consultant on behalf of the proponent:

In the 2014, 2015, 2016 and 2017 audit reports, Ref. No. NEMA/NKR/ (2014, 2015, 2016, 2017) EA/2674, there was no mention of dams under chapter 1(See Annex 1, Paragraph 1). Under the water act, 2002 there is a mention of dams but no further information on the number of dams, size or whether they are licensed or not (See Annex 2). Under scoping, the dams are not mentioned. They were not audited (See Annex 3). The project proponent mentioned in the report is Kensalt Plantations Ltd.
In the 2018 audit report, conducted by Ms. Elizabeth Wakoli (Expert No.8825) and submitted to NEMA on 22^nd June 2018, there was mention of water reservoirs (earthen dams) in the executive summary (See Annex 4). However, there was no mention of dams in chapter 1 on the project background (See annex 5) .In chapter 5, it is mentioned that the respondent has 7 dam and 4 boreholes in his farm and is supplemented by rainwater harvesting. The water is used for irrigation on flower farms, coffee, tea and macadamia plantations, the sanctuary and other general purposes such as cleaning, cooking and drinking. (See Annex 6). The project proponent mentioned in the report is Patel Coffee Estates ltd

Findings from the Water Resources Authority are as follows:

In 2014, WRA carried out an inspection on 7^th November on the permitted structure which is a weir of 2.5m high and a report was prepared. (See Annex 7). The authority carries out inspections after five years and therefore the next inspection is scheduled for December 2018.
According to the fourth schedule of the Water Act, 2016, the dam at Patel Coffee Estate is classified as a low risk since it’s inspected once every five years (See Annex 8).
According to a water monitoring report for Patel Coffee Estate Ltd dated 23^rd July 2018, Ref. No. F/9/1/5, the water does not conform to the standards. Further treatment is required before it is released to the environment (See Annex 9).

County environment committees should be operationalized to address environmental issues arising in counties.

Recommendations

NEMA and Water Resources Authority should conduct an audit of the other existing six dams in the farm to assess their viability and ability to withstand extreme environmental conditions
NEMA should ensure that the respondent undertakes proper environmental restoration of the area affected by the flood water in accordance with the precautionary and the polluter pays principles.
Water Resources Authority and the Department of Geology should carry out an hydrogeological study of the area to inform future dam constructions
The County Government of Nakuru should come up with a spatial plan for the county in order to effectively demarcate areas for various land uses and ensure that land use practices are compatible with the plans
Water Resources Authority should carry out an extensive survey of the streams and springs in Solai and surrounding areas to ensure that they follow the original paths
The Department of Agriculture in the County should ensure that farming activities in the area are environmentally sustainable
The County Government ,in future, should ensure that the respondent and any other establishment has in place an up to-date plan for alerting or evacuating people from danger areas associated with activities being carried out
NEMA should effectively and consistently ensure adequate public participation in the EIA/EA process. The authority should also conduct parallel environmental audits to eliminate discrepancies in the audits presented for approval
The Ministry of Water should constitute a multi-agency team to assess the state of dams across the country to avert future tragedies caused by collapsing of such dams.
NEMA and WRA should ensure that all key environmental information on assessments and reports of projects are available to the public

Policy recommendations

The Government should ensure all projects that were undertaken before the enactment of the EMCA No.8 of 1999 in regard to sections 57, 58 and 59 are subjected to comprehensive environmental audits.
The Government should ensure that special analysis, in the unusual event of extreme weather conditions(Heavy rains) and seismic activities, are carried out so as to determine whether or not the conditioning of the dam areas have altered
The Government should consider the involvement of communities and development partners in formulating and enforcing government environmental mechanisms for effectiveness in implementation of the same
The Government should expand the mandate of Water Resources Authority to cover not only resource management but to also give a framework on overseeing licensing, construction controls and inspection of earth dams.
The government should ensure NEMA has a clear legal framework to ensure self-audits/commissioned audits are reliable and reflect the position on the ground before any approval.