ENV-07-08-00011-P Operation and Maintenance of Dams

2/13/08 N.Y. St. Reg. ENV-07-08-00011-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 7

February 13, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-07-08-00011-P

Operation and Maintenance of Dams

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of Parts 608 and 673 and section 621.4 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, art. 3, title 3 and art. 15, title 5

Subject:

Requires all dam owners to operate and maintain dams in a safe condition and adopts requirements for owners dam safety programs, permitting and enforcement.

Purpose:

To amend 6 NYCRR Parts 608 and 673 and section 621.4 to comply with ch. 364 of the L. 1999, and amend Part 673 to comply with ch. 78 of the L. 2006.

Public hearing(s) will be held at:

10:00 a.m.–2:00 p.m., April 15, 2008 at Locust Grove, 2683 South Rd., Poughkeepsie, NY; 10:00 a.m.–2:00 p.m., April 18, 2008 at Holiday Inn, 800 Jefferson Rd., Rochester, NY; and 10:00 a.m.–2:00 p.m., May 2, 2008 at Department of Environmental Conservation, 625 Broadway, Albany, NY.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Interpreter Service:

Interpreter services will be made available to deaf persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Substance of proposed rule (Full text is posted at the following State website: http://www.dec.ny.gov/):

All of Part 673 is repealed. A new Part 673 is adopted to incorporate Chapter 364 of the Laws of 1999 and Chapter 178 of the Laws of 2006 amendments to statute.

1. Definitions (673.1)

Minor Changes: This section was expanded for clarification to include definitions not previously included and modifies some existing definitions.

Major Changes: A farm pond dam is now defined as a Class A, low hazard dam.

2. Applicability (673.2)

Minor Changes: This section now references applicability to all dams, except as otherwise noted in the regulations.

3. General Provisions (673.3)

Minor Changes: This is a new section addressing the statutory dam safety authority, and the department's liability.

4. Permitting Dam Projects (673.4)

Minor Changes: This is a new section to identify that the permitting requirements are contained in Part 608. There are updated requirements and definitions proposed for Part 608 to be consistent with the revised Part 673.

Incorporates the height and capacity thresholds requiring a permit be obtained for Construction, reconstruction, repair or removal.

5. Hazard Classification (673.5)

Minor Changes: Clarifies language that the department may make changes to a dam's hazard classification at any time.

Adds Class D dam classification to be consistent with the department's program which classifies breached or failed dams, or dams for which permits were issued but the dam was never built.

6. Dam owner responsibilities (673.6)

Major Changes: This is a new section that outlines dam owner responsibilities.

Adds requirement for initial and periodic hazard class verification for Class A dam owners.

Adds requirement for Class B and Class C dam owners to submit an annual certification of ownership, statement that their dam is being operated and maintained in a safe condition, and that their Emergency Action Plan is current.

Adds requirement for owners of Class A dams above the permitting threshold and Class B and Class C dam owners to develop and implement a written Operation and Maintenance Plan.

Adds requirement for Class B and Class C dam owners to report flow in an earthen auxiliary spillway.

Adds requirement for Class B and Class C dam owners to develop, submit and annually update an Emergency Action Plan.

Adds requirement for Class C dam owners to provide for and demonstrate financial assurance.

Add property transfer requirements for all dam owners regarding: notification of the existence of a dam to a new property owner, records transfer, and notification of new ownership to the department and the local municipality.

7. Inspection Process (673.7)

Minor Changes: Clarifies the role of the department to make investigations and conduct inspections.

Adds the new statutory requirement for the department to provide a copy of an inspection report within 30 days to the dam owner and the municipality.

Major Changes: Adds requirements for Class B and Class C dam owners to conduct periodic dam safety inspections at a minimum specified frequency.

Adds requirements for Class B and Class C dam owners to conduct periodic engineering assessments for safety criteria, hazard classification and failure modes at a minimum specified frequency.

8. Hearings and Enforcement (673.8)

Minor Changes: Clarifies dam owner's right to due process for a hearing and the department's enforcement rights.

Clarifies the department's right to recover costs from a dam owner, for actions taken when the dam owner fails to take department directed actions.

9. Deletions

Minor Changes: Deletes Section 673.4 Condition Rating.

10. Part 608

Minor Changes: Incorporates the new applicability provisions of dam height and storage capacity from Chapter 364.

Clarifies permit application submission requirements for technical information to evaluate safety aspects.

Adds provision that, in lieu of a formal department application review for Class A dams, the department may issue a permit upon certification from an engineer that the design conforms with the required safety criteria.

Major Changes: For Class B and C dams, adds permit application submission requirement for an updated Emergency Action Plan.

Adds Class C dam permit application submission requirement for financial assurance.

11. Part 621

Major Changes: Modifies section 621.4 to indicate that all dam projects are “major” not “minor.”

Text of proposed rule and any required statements and analyses may be obtained from:

Jamie Woodall, Department of Environmental Conservation, Bureau of Flood Protection and Dam Safety, 625 Broadway, 4th Fl., Albany, NY 12233-3504, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

15 days after last public hearing.

Regulatory Impact Statement

Statutory authority: Statutory authority for proposed modifications and amendments to regulations governing dam safety is found in Sections 3-0301, 15-0503, 15-0507, 15-0511 and 15-0516 of the Environmental Conservation Law (ECL).

Chapter 364, Laws of 1999 amended ECL Sections 15-0503, 15-0507 and 15-0511 to expressly require all dam owners — whether or not subject to a DEC permit under ECL § 15-0503 — to operate and maintain such structures in a safe condition. The amendments explicitly authorize DEC to adopt regulations requiring dam owners to prepare safety programs including inspections, monitoring, maintenance and operation, and emergency plans, where failure of the dam could cause personal injury, substantial property damage or substantial natural resource damage. This program is defined by the proposed modifications to Part 673. The amendments also increased thresholds for dam construction permits issued by the department. This change is reflected in the proposed modifications to Part 608.

Chapter 17, Laws of 2006 amended the ECL by adding a new Section 15-0516 regarding distribution of department inspection reports of dam safety for intermediate and high hazard dams. This is reflected in proposed language in Part 673.

ECL § 3-0301(m) authorizes the DEC commissioner to adopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of this chapter: to enhance the health, safety and welfare of the people of the state and their overall economic and social well being.

Legislative objectives: The objectives of the Chapter 364 amendments are fulfilled by the proposed modifications to New York Codes, Rules and Regulations Title 6 (6 NYCRR) Part 673, Dam Safety Regulations; Part 608, Use and Protection of Waters; and Part 621, Uniform Procedures, by requiring dam owners to prepare and implement safety programs, providing specific elements of such programs, and updating dam construction permit thresholds and procedures.

In accordance with public policy objectives the legislature sought to advance, the proposed regulation modifications provide relief from permitting requirements for construction or repair of small dams, the vast majority of which are presumed to pose a negligible safety threat, while updating, clarifying and strengthening requirements for larger dams which pose a greater threat to public safety.

6NYCRR Part 673 also is amended to include the requirement found in ECL § 15-0516 for department inspection reports of dam safety for intermediate and high hazard dams to be provided to relevant municipal and county officials within thirty days of creating such reports.

Needs and benefits: ECL § 15-0507 states that regulations governing the dam safety program may include requirements for inspections, monitoring, maintenance and operation, emergency action planning, financial security, record keeping and reporting or any other requirement the commissioner deems necessary to safeguard life, property or natural resources. Current dam safety regulations in 6 NYCRR Part 673 do not contain such safety program requirements. Accordingly, the proposed 6 NYCRR Part 673 modifications provide specific details for each of these safety program components.

ECL § 15-0507 also states that such requirements shall only apply to those dams which pose, in the event of failure, a threat of personal injury, substantial property damage or substantial natural resource damage. Accordingly, the proposed safety program elements in 6 NYCRR Part 673 are commensurate with the level of threat associated with potential failure of a given dam. Beyond the specific safety program elements themselves, greater protection from dam failures is provided by making the dam safety regulations more easily understood by dam owners.

In developing the specific proposed safety program elements, the department drew heavily from the following documents which can be viewed at www.fema.gov and www.damsafety.org:

1. “Model State Dam Safety Program,” Federal Emergency Management Agency, 1998

2. “Summary of State Laws and Regulations on Dam Safety,” Association of State Dam Safety Officials, 2000

3. “Owner-Responsible Periodic Inspection Guidance,” Association of State Dam Safety Officials, 2005

Although the state's dam safety program does not derive its authority from any federal laws or regulations, the proposed dam safety program is consistent with federal guidance for state dam safety programs, and comparable to dam safety programs in adjacent states.

In addition to proposed dam safety program enhancements, modifications to 6 NYCRR Part 608, Use and Protection of Waters, are proposed to address two needs. First, the dam construction permit thresholds and definitions need to be consistent with the 1999 amendments and associated Part 673 modifications. Second, to facilitate department review and approval of permit applications, Part 608 is modified to more clearly articulate existing permit application submission requirements.

6NYCRR Part 621, Uniform Procedures, also is modified for consistent use of terms and to eliminate the minor project category for dam permits as reflected in the dam construction permit threshold changes.

Costs: Dam owner costs for initial and continued compliance with the proposed regulations will vary greatly depending upon the unique features of a dam and its hazard classification. The proposed safety program requires most dam owners to implement an operation and maintenance plan and retain a licensed professional engineer for periodic hazard class verification, inspection and assessment. Cost estimates for such engineering services are summarized in Table 1. These estimates were obtained from a recent department survey of consulting engineers located across the state. Dam owner costs for operation, maintenance, repairs and other ordinarily expected activities are considered normal costs associated with owning a dam, and were not considered as a new regulatory requirement generated by the proposed regulations.

Table 1. Cost Estimates for Proposed Engineering Services

	Class A, low hazard dam	Class B, intermediate hazard dam	Class C, high hazard dam
Hazard class verification	$1,300 – $8,000	part of engineering assessment	part of engineering assessment
Dam safety inspection	not applicable	$2,500 – $12,000	$4,000 – $80,000
Engineering Assessment	not applicable	$6,000 – $20,000	$8,000 – $50,000
Breach of 60 ft. earthen dam (Financial security need)	not applicable	not applicable	$12,000 – $1,500,000

For high hazard dams only, the statute and proposed regulations require that owners demonstrate financial security for the life of the dam. Financial security enables the department to readily recoup its costs for taking remedial action when the owner has failed to comply with a Department order to do so, as authorized in ECL § 15-0507. The cost for high hazard dam owners to demonstrate financial security varies considerably and depends upon several factors including the size of the dam, financial well-being of the owner, and the financial instrument that is used. For example, the cost for obtaining financial security is dependent upon a dam owner's credit rating, liquidity of collateral, ability to obtain a letter of credit or capability to bond.

Financial instruments acceptable to the department are described in the guidance document, “Financial Security Demonstration for High Hazard Dams” which will be freely available on the department's website. Examples of financial instruments and their costs include, surety bonds which may be obtained for one to fifteen percent of the bond amount, simple trusts which can be set up for as low as $1,000 with annual administrative costs that could range from $5000 to $10,000, a letter of credit which could cost one to two percent of the credit amount and certificates of deposit which can be issued for as low as $100 and require a given sum to be set aside.

The proposed regulations require high hazard dam owners to annually certify to the department that the amount of financial security is adequate. In so doing, dam owners may periodically incur an additional cost for an engineer or accountant to determine if the amount of financial security should be adjusted based upon inflation and changes in construction costs.

Costs to the department, state and local governments for the implementation and continued compliance with the proposed regulations are entirely related to their roles as dam owners. Although state agencies are explicitly exempt from these regulations, the state agencies environmental audit process in ECL 3-0311 assures compliance with state environmental laws and regulations. More significantly, the proposed regulations should act to save substantial costs these entities and the public may incur from dam failures, which can cause loss of life and millions of dollars in damage.

Local government mandates: The proposed regulations do not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district except with respect to their roles as dam owners.

Paperwork: The proposed regulations require dam owners to prepare and maintain numerous documents regarding the construction, maintenance, repair, operation, inspection and emergency procedures of their dam. The schedule of reporting requirements to the department differs according to a dam's hazard potential. Owners of low hazard dams below permitting thresholds and farm pond dams as defined in Part 673.1(q)* are not required to submit paperwork. Owners of low hazard dams above permitting thresholds must submit a verification of hazard classification every ten years, the first within five years. Owners of intermediate hazard dams must submit emergency action plans within twelve months, safety inspections every four years and full engineering assessments every ten years, the first within five years. Owners of high hazard dams must submit emergency action plans within twelve months, safety inspections every two years, and full engineering assessments every ten years, the first within three years. In addition, owners of intermediate and high hazard dams must submit an annual statement, on a form provided by the department, certifying that operation and maintenance and emergency action plans are implemented and kept current and, for high hazard dams, that financial security is adequate.

* Farm pond dam means a low hazard dam that creates a pond for the purpose of soil conservation, propagation of fish, irrigation, watering of livestock, maintenance of wildlife, wildlife habitat enhancement, or general farm use.

Duplication: For most dam owners, no relevant rules or other legal requirements of the state and federal government exist that duplicate, overlap or conflict with the proposed modifications of the dam safety regulations.

Dams which are regulated by the Federal Energy Regulatory Commission may be required to conduct inspections which may be similar to the inspections and assessments required under the proposed regulations. To eliminate potential duplication, the proposed regulations provide that the department may accept engineering reports from such federal entities.

Federal phase II stormwater regulations for construction activity require stormwater management. This may entail the construction of stormwater management facilities, like retention ponds, that need to meet dam safety permit and safety program requirements. Duplication is prevented because the stormwater program requirements refer to the state dam safety program when applicable.

Alternatives: The department considered three alternatives in developing the proposed regulations. A no action alternative was dismissed because current regulations conflict with the ECL and do not provide the public and natural resources of the state with sufficient protection from potential dam failures.

Although administered in other states, an alternative to require dam owners to obtain a state permit and remit associated annual fees for continued dam operation was dismissed because of added economic burden placed on dam owners, the administrative burden placed on the department, and limited effect on improving dam safety in light of the proposed dam safety program.

A third alternative to require a uniform dam safety program for all dams was dismissed because doing so is inconsistent with the legislative objective to base dam safety requirements on the level of risk associated with different dams. A one size fits all approach would place unnecessary burden on owners of low hazard dams.

Federal standards: Applicable federal dam safety regulations do not exist. The department and dam owners are referred to guidance documents, including those listed above, prepared by federal agencies and other dam safety organizations, including the Federal Emergency Management Agency and the Association of State Dam Safety Officials.

Compliance schedules: No dam owner will be out of compliance with dam safety regulations through the enactment of the proposed regulations. All new requirements take effect a minimum of twelve months from enactment.

Although an exact number or magnitude of deficiency cannot be determined, required inspections and assessments by dam owners are likely to identify existing dam stability, spillway capacity and maintenance deficiencies at many dams.

Regulatory Flexibility Analysis

Effect of Rule: The statute and proposed regulations require that dam owners operate and maintain a dam in a safe condition. Many local governments own dams for flood control, stormwater management and control, fire protection, drinking water supply, recreation, or aesthetic appeal in parks. Many local governments have acquired dams when owners have failed to pay property taxes. Small businesses may own dams if the dams are located on the property.

The dam inventory database contains 902 dams owned by local governments. Of these, 395 are low (A) hazard dams, 191 are intermediate (B) hazard dams, 201 are high (C) hazard dams, 87 are either failed or were never constructed and pose negligible hazard dams (D), and 28 are not classified.

There are 4850 dams in the database which are privately owned. Privately-owned dams include dams owned by businesses, private individuals and non-profit organizations. There is no further breakdown on dams owned by small businesses.

Compliance Requirements: The proposed regulations are the same for dams owned by small businesses or local governments; there are no special exemptions or allowances.

Professional Services: The proposed regulations are the same for dams owned by small businesses or local governments. Small business owners and local governments that own dams are subject to the same requirements as other dam owners, and must retain the same level of professional services to comply with the regulations as other dam owners. The requirements are described in the section, “Costs to Dam Owners” in the Regulatory Impact Statement.

Compliance Costs: The proposed regulations are the same for dams owned by small businesses or local governments. Small business owners and local governments that own dams are subject to the same requirements as other dam owners, and will likely incur similar costs as other dam owners. The requirements are described in the section, “Costs to Dam Owners” in the Regulatory Impact Statement. Small businesses or local governments who have an engineer on staff may use their engineer to produce the documents required in the proposed regulations, provided the engineer meets the qualifications as described in the definition of engineer in Part 673.1(n).

Economic and Technological Feasibility: It is anticipated that small businesses and local governments may struggle to meet the requirements of the proposed regulations, particularly if they own intermediate or high hazard dams. The economic burden of the proposed regulations is likely to be greater if the dam requires extensive maintenance, repairs, or reconstruction to meet current dam safety stability criteria or spillway capacity. However, the goal of the proposed regulation is to protect public safety. If the dam poses a threat to public safety and the municipality is unable to secure financing to bring the dam into compliance with current safety criteria, the department can pursue enforcement, and if the owner fails to bring the dam into compliance, the department will recommend that the dam be breached or removed, and will take actions necessary to protect public safety. It is not acceptable to the department or lawmakers (as evidenced by the 1999 amendment to the statute) that dams not be maintained because of the risk to public safety. Funding is available to municipalities, primarily through the Clean Water/Clean Air Bond Act of 1996 Title 3 — Section 56-0311, but is anticipated to fall far short of meeting the needs of the municipalities. The department is unaware of funding opportunities for small business owners who are seeking to repair or reconstruct their dams, although it may be possible to secure funding from environmental groups for removal of the dam. Non-profit organizations and homeowners associations are also likely to be financially challenged.

Minimizing Adverse Impacts: The proposed regulations are the same for dams owned by small businesses or local governments. Small business owners and local governments that own dams are subject to the same requirements as other dam owners, and will likely incur similar costs as other dam owners. The requirements are described in the section, “Costs to Dam Owners” in the Regulatory Impact Statement. It is not acceptable to the department that dams not be maintained, or that dam owners not comply with the proposed regulations because they claim economic hardship, since dams that are not maintained or do not meet dam safety design criteria pose a risk to public safety.

Small Business and Local Government Participation: The department has sought input from stakeholders in the development of the proposed regulations. The department has conducted mailings containing the web link to the proposed regulations and invited all dam owners to public outreach sessions. Information was sent to all dam owners listed in the department's dam inventory database, as well as organizations, such as the Federation of Lakes, which include many dam owners. The department held preliminary stakeholder outreach meetings in Poughkeepsie, Rochester, and Albany to gather input from all dam owners, including local governments and small business owners.

Rural Area Flexibility Analysis

Types and Estimated Numbers of Rural Areas: The 1999 statute and proposed regulations require that all dam owners operate and maintain a dam in a safe condition. Dams are located in all areas of the state, including rural areas. Therefore, all rural areas may be impacted by the proposed regulation.

Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services: The proposed regulations are the same for dams located in rural areas. One proposed exception is for farm pond dam owners. The proposed regulations are not applicable to farm pond dams or to dams below the permitting thresholds. This exclusion for farm pond dams will result in cost savings for farm pond dam owners.

Costs: The cost to comply with the proposed regulation will depend upon the dam's hazard classification, as well as the size and condition of the dam. Other than the exclusion for farm pond dam owners, as stated in the above paragraph, it is not expected that there will be any variation in the cost to comply with the regulation based upon rural area status.

Minimizing Adverse Impacts: The proposed regulations have been developed to protect public safety. As stated above, dams are located across the state, and many are located in rural areas. A dam's hazard classification is based upon the potential impacts within the inundation area if the dam were to fail. Dams in rural areas with little or no development in the downstream inundation area, would have a lower hazard classification than a dam located in a more developed, heavily populated area. Dams with lower hazard classifications have lesser regulatory requirements. Therefore, the proposed regulations have incorporated a mechanism for minimizing the impacts on dam owners located in rural areas.

Rural Area Participation: The department has sought input from stakeholders in the development of the proposed regulations. The department has conducted mailings containing the web link to the proposed regulations and invited all dam owners to public outreach sessions. Information was sent to all dam owners listed in the department's dam inventory database, as well as organizations, such as the Federation of Lakes, which include many dam owners. The department held stakeholder outreach meetings in Poughkeepsie, Rochester, and Albany to gather input from all dam owners, including those located in rural areas.

Job Impact Statement

Nature of Impact: The proposed regulations are likely to create good, high paying technical jobs in engineering and training, as well as construction jobs.

Categories and Numbers Affected: The proposed regulations require dam owners retain professional engineers to verify hazard classification, conduct dam safety inspections, and conduct dam safety assessments. Furthermore, these inspections and assessments may identify deficiencies, which dam owners will be required to correct. The dam safety projects generated as a result of the engineering inspections could involve engineers and construction jobs. As a result, it is expected that the proposed regulation will generate additional high paying engineering jobs, as well as construction jobs. The field of dam safety includes two highly specialized areas: civil/structural engineering and hydrologic/hydraulic analysis utilizing computer modeling. There will clearly be a need for civil engineers to have additional training in dam safety. Therefore, there will be an opportunity for companies and colleges to develop training programs and offer specialized training in New York. This would create job opportunities for trainers as well as support staff opportunities. The department has no way of determining the number of engineering or construction jobs or training opportunities. During one of the stakeholder meetings, a manager for a large consulting engineering firm stated that his firm planned on hiring one or two engineers in response to the proposed regulations.

Regions of Adverse Impact: There are no adverse job impacts expected.

Minimizing Adverse Impacts: There are no adverse job impacts expected.

Self-employment Opportunities: The proposed regulations will create an environment favorable for experienced civil engineers, licensed surveyors, and computer modelers specializing in hydrology and hydraulic analysis to start their own businesses. Self-employment opportunities also will likely exist for experienced engineers to conduct training, dam safety inspections and dam safety engineering assessments. Additionally, self employment opportunities also will likely exist for experienced individuals in the construction trades for the erection, reconstruction, repair, breach or removal of dams.