Home » 2009 Issues » May 20, 2009 » ENV-07-08-00011-RP Changes Dam Safety and Permit Requirements to be Consistent with ECL
ENV-07-08-00011-RP Changes Dam Safety and Permit Requirements to be Consistent with ECL
5/20/09 N.Y. St. Reg. ENV-07-08-00011-RP
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 20
May 20, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-07-08-00011-RP
Changes Dam Safety and Permit Requirements to be Consistent with ECL
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Amendment of sections 608.1, 608.3, 608.6, 621.4 and Part 673 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, art. 3, title 3 and art. 15, title 5
Subject:
Changes dam safety and permit requirements to be consistent with ECL.
Purpose:
Amend 6 NYCRR Parts 608, 621 and 673 to comply with Chapter 364 (1999) and amend Part 673 to comply with Chapter 178 (2006).
Substance of revised rule:
608.1 Definitions have been added and revised to be consistent with revisions to Part 673.
608.3 The size thresholds for dams which require construction permits have been revised to be consistent with the ECL 15-0503.
608.6 Permit application procedures have been revised to better reflect the elements of a dam safety construction permit application.
608.6 has been revised to state that the department may accept a certification by a professional engineer, in lieu of a permit application, at its discretion.
Part 621.4 has been revised to state that all dam projects are major, except projects at existing dams for which an engineering assessment pursuant to Part 673 is on file with the department.
All of Part 673 is repealed. The Revised Part 673 incorporates Chapter 364 of the laws of 1999 and Chapter 178 of the laws of 2006 amendments to statute. The Revised Part 673 contains revised definitions, revised requirements for inspection and maintenance; emergency action planning; recordkeeping and reporting and notifications; revised language regarding the department's inspection, investigation, and enforcement process. Sections are renumbered and renamed.
673.1 Purpose; applicability; severability
This section revises language related to applicability of the regulation. This section references applicability based on dam size. The size thresholds match those of permit requirements (Part 608) except as otherwise noted. Some provisions of Part 673 apply to dams above these size thresholds.
Part 673 also applies to owners of all dams the failure of which poses a threat to public health, safety, property or natural resources.
Part 673 also applies to illegal dams.
Revised language regarding purpose and severability of the regulation.
673.2 Definitions
This section was expanded for clarification to include definitions not previously included and modifies some existing definitions.
673.3 General Provisions
Incorporates the statutory dam safety authority.
Requires all dams to be operated and maintained in safe condition.
Specifies that the department may consider any information on a dam that may be available.
Provides that the department may, at its discretion, accept equivalent reports from or to federal agencies in lieu, in whole or in part, of the reports of inspections and assessments required in this Part.
673.4 Permit Requirements for Dams
Advises the reader to consult Part 608 for permit requirements, and that the department's permits do not relieve the applicant from any requirements for other permits and approvals, such as federal permits.
673.5 Hazard Classifications
Revises language related to the hazard classifications that may be assigned to a dam, and the factors that the department may consider in assigning a hazard classification, for clarity.
Requires that the department must notify a dam owner when it changes the hazard classification, and that the department will make available a list of dams and the hazard classifications assigned to them.
Provides a process for appealing a hazard classification.
Part 673.6 Inspection, Operation and Maintenance
Owners of Intermediate Hazard and High Hazard dams, and dams above applicability size thresholds, must prepare and implement an inspection and maintenance plan.
Describes the elements of an inspection and maintenance plan.
Requires that the inspection and maintenance plan must be provided to the department upon request.
673.7 Emergency Action
Requires that Emergency Action Plans (EAP's) for Intermediate Hazard and High Hazard dams must be submitted to the department.
Provides a schedule for submitting the EAP's after the effective date of this regulation.
Requires that High Hazard dam owners must have the EAP prepared by an engineer unless the department agrees otherwise.
Requires that Intermediate Hazard dam owners must have the EAP prepared by an engineer if requested by the department.
Describes the elements of an EAP, that it must be provided to certain recipients, and that it must be updated annually.
673.8 Annual Certification
Intermediate Hazard and High Hazard dam owners must provide an annual certification on a form prescribed by the department.
673.9 Notification of Auxiliary Spillway Flow
Intermediate Hazard and High Hazard dam owners must notify the department of flow in a dam's erodible spillway.
673.10 Recordkeeping; Response to Request for Records
All records on a dam must be kept in good order.
Records must be provided to the department upon request.
673.11 Notices of Property Transfer
The records required to be maintained related to a dam must be provided to the new owner upon transfer of the property where a dam is located.
Notice must be provided to the department and the municipality in which the dam is located, of the new owner's information, upon transfer of property where a dam is located.
673.12 Safety Inspections
Intermediate Hazard and High Hazard dam owners must conduct a safety inspection as provided for in their inspection and maintenance plan.
The department may require Safety Inspections on a more frequent schedule, if the dam is rated "unsafe" or "unsound."
The Safety Inspection must be conducted by an engineer.
The department may require changes if the report is not acceptable.
673.13 Engineering Assessments
Engineering Assessments (EA's) for Intermediate Hazard and High Hazard dams must be submitted to the department.
Provides a schedule for submitting the EA's after the effective date of this regulation.
All EA's must be prepared by an engineer.
The department may require EA's on a more frequent schedule if the dam is rated Unsafe or Unsound.
The department may require changes if the EA report is not acceptable.
673.14 Inspection of a Dam by the Department
Describes the department's authority to conduct inspections, and the requirement for the department to provide inspection reports in accordance with ECL 15-0516.
673.15 Investigation of a Dam by the Department or Owner
Describes the department's authority to conduct investigations, or order investigations by the dam owner, when the public safety requires.
673.16 Condition Ratings
Describes the department's condition rating system, and its authority to require an Enhanced Safety Program for dams rated Deficiently Maintained, Unsound, or Unsafe.
Requires the department to notify the dam owner if a dam has been rated Unsafe, Unsound, or Deficiently Maintained.
Describes the process for disputing the department's assignment of a condition rating.
673.17 Orders of the Department
Describes the department's authority to issue orders and act upon noncompliance with orders, including the department's authority to alleviate safety problems at a dam when the owner fails to do so, and the department's authority to try to collect costs associated with its work in alleviating a safety problem at a dam.
Revised rule compared with proposed rule:
Substantial revisions were made in Part 673 and sections 621.4, 608.1, 608.3 and 608.6.
Text of revised proposed rule and any required statements and analyses may be obtained from
Ms. Jamie Woodall, NYSDEC, Bureau of Flood Protection and Dam Safety, 625 Broadway, 4th Floor, Albany, NY 12233-3504, (518) 402-8151, email: jvwoodal@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Alon Dominitz, c/o Jamie Woodall, NYSDEC, Bureau of Flood Protection and Dam Safety, 625 Broadway, 4th Floor, Albany, NY 12233-3504, (518) 402-8151, email: jvwoodal@gw.dec.state.ny.us
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
1. Statutory Authority: Part 673: Environmental Conservation Law, Article 1, Title 3, 3-0301[2][aa] and [m]; Article 15, Title 5, 15-0503, 15-0507, 15-0511, and 15-0516
Part 608: Environmental Conservation Law, §§ 3-0301[2][m],15-0501, 15-0503, 15-0505,17-0303[3]
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 statutory 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 safety program was defined by the 2008 proposed modifications, and these 2009 revised modifications, to Part 673. The Chapter 364 statutory amendments also increased thresholds for dam construction permits issued by the department. This change is reflected in the 2008 proposed and in these 2009 revised 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 the 2008 proposed and 2009 revised language in Part 673.
ECL § 3-0301(2)(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.
2. Legislative Objectives: To require a safety program and describe how dam owners will prepare and implement the program. To place focus on dams which pose a greater potential risk to public safety, and ease regulatory requirements on small dams which pose less public safety and environmental damage risks.
The objectives of the Chapter 364 amendments are fulfilled by this revised rule making through 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 revised 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 dams which pose a greater threat to public safety. Dams which pose a significant safety threat, even if exempt from construction permit requirements, are subject to the safety program.
Revised 6 NYCRR Part 673 also includes the requirement found in ECL § 15-0516 for department inspection reports of dam safety for intermediate and high hazard dams to be provided to officials of the municipality in which the dam is located within thirty days of creating such reports.
3. Needs and Benefits: ECL § 15-0507 states that regulations governing the dam safety program may include requirements for a safety program by dam owners. Current dam safety regulations in 6 NYCRR Part 673 do not contain such safety program requirements. Accordingly, the revised 6 NYCRR Part 673 promulgate such a program.
There is a need to ensure the safety of dams. The revised regulations promulgate dam owner safety program requirements commensurate with a dam's hazard classification, and better align regulations describing the department's authority, with statutes. Compared with the 2008 proposed regulations, this revised 2009 rule making has removed certain requirements for low hazard dams.
The 2009 revised regulations require owners of deficient dams to demonstrate sufficient financial assurance. This will help assure that funds will be available to reimburse the department if it is necessary for the department to either breach or remove the dam to protect public safety. Compared to the 2008 proposed regulations, the 2009 revised regulation narrows the applicability and more clearly articulates this provision.
In developing the 2008 proposed and 2009 revised rule making, the department drew heavily from the following documents:
"Model State Dam Safety Program" Federal Emergency Management Office, 1998
"Summary of State Laws and Regulations on Dam Safety", Association of State Dam Safety Officials, 2000
"Owner-Responsible Periodic Inspection Guidance" Association of State Dam Safety Officials, 2005
In developing the 2009 revised regulations, the department also reviewed "Model State Dam Safety Program" Federal Emergency Management Office, July 2007, which was an update of the 1998 document.
Modifications to 6 NYCRR Part 608, Use and Protection of Waters, in the revised rule making, 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.
6 NYCRR Part 621, Uniform Procedures, also is modified for consistent use of terms and to narrow the minor project category for dam permits.
4. Costs:
a) Costs to dam owners for initially complying and continuing to comply with the revised regulations will vary depending upon the dam's size and hazard classification. The revised regulations require that most dam owners have a written operation and maintenance plan. Owners of Class B and Class C must retain an engineer for inspections and assessments, and to create an Emergency Action Plan. Cost estimates for these activities were obtained from a 2007 survey of consulting engineers. The cost estimates are summarized in Table 1. Costs for maintenance, repairs or other activities are considered normal costs associated with owning a dam, and were not considered as a regulatory requirement generated by the proposed regulations. This is consistent with tradition and common law. In response to public comments to the 2008 proposal, some compliance elements in the regulations were revised in the 2009 rule making, to reduce the cost of compliance. This is further detailed in the Frequent Responses to Public Comments.
The statute and revised regulations require that owners of deficient dams demonstrate financial assurance. Generally the cost for obtaining financial security is dependent upon a dam owner's credit rating and liquidity of collateral. As of February 2008 the department's research indicated that surety bonds could generally be obtained for about 1 to 15% of the reconstruction or removal amount. A letter of credit could cost approximately 1 to 2% of the credit amount. A certificate of deposit could generally be issued for as low as $100, but would require a given sum to be set aside.
It is anticipated that routine enforcement actions for Class A dams will likely be handled by regional staff. Large or complex enforcement actions for all dams will be handled by central office staff. Therefore, a small fraction of dam owners negotiating consent orders may incur travel costs to Albany.
b) Costs to the department, the state, and local governments for the implementation and continued compliance with the rule: The greatest direct cost to the department will occur in the dam safety section, and to a lesser extent, other units needed to support the program's work. The department may conduct outreach and training, develop additional guidance documents, notifications, develop a compliance database to track receipt of required reports, prepare case referrals to the attorneys for enforcement, and face an increase dam construction permit applications.
There are no significant costs anticipated for state or local governments except with respect to their roles as dam owners. Local government tax assessors may receive some requests for determining ownership of land parcels containing a dam. There is a possibility that some private landowners could abandon properties containing dams rather than comply with regulations or undertake maintenance or repairs to dams, and local governments would potentially become the owners of these "orphan" dams. By providing copies of inspection reports and requiring notifications of dam property transfers, the department intends to make local government better aware of dams in their area, so that abandonment of dams can be prevented.
Various state agencies are dam owners. The regulations and the enacting statute specifically exempt the state from the regulations. However, ECL 3-0311 directs 51 state agencies, public authorities, and public benefit corporations to conduct an annual report on environmental compliance status. Therefore, the state may incur costs as a result of complying with the proposed regulations.
5. Local Government Mandates: There are no programs, services, duties, or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district except with respect to their roles as dam owners and as noted above.
6. Paperwork: The proposed and revised regulations require that the dam owner prepare and/or maintain documents about the dam for the life of the dam, and that owners of all dams exceeding the permitting size threshold transfer the documents to the new dam owner. Intermediate and high hazard dam owners would be required to submit an annual certification to the department, as well as other periodic submissions such as emergency action plans and dam safety inspections and engineering assessments.
7. Duplication: For most dam owners, there are no relevant rules or other legal requirements of the state and federal governments that duplicate, overlap or conflict with the rule. However, hydroelectric dams which are also regulated by the Federal Energy Regulatory Commission (FERC) are required to conduct inspections which may be similar to the inspections and/or assessments required in the proposed regulations. In an effort to eliminate a duplication of efforts, the proposed regulations provide that the department may accept reports from federal entities or reports submitted to other regulatory agencies.
The Phase II Stormwater program requires the construction of stormwater treatment and retention facilities. Some stormwater facilities include dams that are required to meet permitting and/or general dam safety regulatory requirements.
8. Alternatives: Two alternative proposals were considered in the development of the proposed regulations. First was developing a permit system, where dam owners would be required to have a permit, issued by the department to own and operate a dam. The permit would have an annual fee associated with it. Review of the Summary of State Laws and Regulations on Dam Safety, published by the Association of State Dam Safety Officials, revealed that several states operate a dam permit system. Money received from the permit fees is used for general state program operations, or for an emergency dam safety fund. The department determined it was too onerous on dam owners to require fees. The second alternative evaluated regulating small dams below the permitting threshold. The 1999 statute provides that all dam owners are responsible for operating and maintaining their dam in a safe condition. However, most dams below the construction permit size thresholds pose a minimal threat of impact if they were to fail. The department therefore minimized requirements for owners of small dams.
9. Federal Standards: Although the state's dam safety program does not derive its authority from any federal laws or regulations, the department reviewed the documents listed in the Needs and Benefits section above, which are guidance documents published by FEMA, a federal agency. The revised regulations also contain provisions for accepting submissions that are prepared for compliance with various federal requirements, such as Federal Energy Regulatory Commission licenses.
10. Compliance Schedule: The proposed regulations have a phased approach for initial submittal of certain deliverables, including Emergency Action Plans and dam assessments.
Dam owners, working with their engineers, will be expected to propose a reasonable schedule for any necessary maintenance or remedial work at a dam.
Table 1. Cost Estimates for Proposed Engineering Services
Class A Dam
Class B Dam
Class C Dam
Hazard Class Verification
$1,300 - $8,000
N/A
N/A
Dam Safety Inspection
N/A
$2,500 - $12,000
$4,000 - $80,000
Engineering Assessment
N/A
$6,000 - $20,000
$8,000 - $50,000
Breach, 60 ft. earthen dam*
N/A
N/A
$12,000 - $1.5 MM
* This range of costs represents an approximate amount of financial security Class C dam owners could be expected to demonstrate.
Revised Regulatory Flexibility Analysis
1. Effect of Rule: The statute and revised 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 approximately 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 listed as 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.
2. Compliance Requirements: The proposed regulations are the same for dams owned by small businesses or local governments; there are no special exemptions or allowances.
3. 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.
4. 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. In response to public comments, revisions designed to reduce the costs of compliance were made to the proposed regulations.
5. 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 was recently available to municipalities, primarily through the Clean Water/Clean Air Bond Act of 1996 Title 3 - Section 56-0311, but funding availability fell short of meeting the needs of the municipalities, as expressed in unfunded applications. 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.
6. 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.
7. 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.
Revised Rural Area Flexibility Analysis
1. 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.
2. Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services: The proposed regulations are the same for dams located in rural areas. The proposed regulations are not applicable to dams below the permitting thresholds including many farm pond dams. Most rural dams are low hazard dams subject only to maintenance and recordkeeping requirements, with minimal costs involved.
3. 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 factors mentioned above, it is not expected that there will be any variation in the cost to comply with the regulation based upon rural area status.
4. 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.
5. 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 and Association of Conservation Districts which are in contact with 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. Revised proposed regulations and written responses to comments received during the three stakeholder outreach meetings and the public comment period have been prepared. The revised regulations and responses to comments from the public comment period will be made available to the public. An additional public comment period will be held for the revised rulemaking. The additional public comment period will be announced to dam owners via a press release, published in the Environmental Notice Bulletin and the State Register, and will be announced on the NYSDEC website. Notice will also be given to groups which have expressed interest in the regulations.
Revised Job Impact Statement
1. Nature of Impact: The revised proposed regulations are likely to create good, high paying technical jobs in engineering and training, as well as construction jobs.
2. Categories and Numbers Affected: The proposed regulations require dam owners to retain professional engineers to create emergency action plans, verify hazard classification, conduct safety inspections, and conduct engineering 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 engineering and construction jobs. As a result, it is expected that the proposed regulation will generate 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.
3. Regions of Adverse Impact: There are no adverse job impacts expected.
4. Minimizing Adverse Impacts: There are no adverse job impacts expected.
5. 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.
Assessment of Public Comment
On February 13, 2008, the New York State Department of Environmental Conservation (NYSDEC) issued a Notice of Proposed Rule Making to amend the dam safety regulations at 6 NYCRR Parts 608, 621.4 and 673. The regulatory amendments were proposed in order to comply with Chapter 364 of the Laws of 1999 and with Chapter 178 of the Laws of 2006. Three public hearings were held on April 15 and 18, and on May 2, 2008, in Poughkeepsie, Rochester and Albany, respectively. The public comment period for the proposed rule making closed 15 days after May 2, 2008, the date of the last public hearing.
A large volume of comments were received. The Assessment of Public Comment (APC) summarizes, condenses, and codifies all of the comments. Complete copies of all written submissions are also included.
As a result of the public comments that were received, and upon further analysis and review, NYSDEC has extensively revised the proposed regulations. Many of NYSDEC's responses in the APC refer the reader to the text of NYSDEC's revised rule making - meaning, the text of the revised regulations. The public is invited to refer to the full text of the revised dam safety regulations, which will themselves be the subject of a separate public comment period.
This Summary of the APC provides an overview of the comments most frequently received and the responses of NYSDEC.
Frequent Comment #1: The additional engineering assessments, safety inspections, and financial security requirements impose high costs. This may mean bankruptcy for some or may cause individuals to breach their small dams rather than comply. The breaching of dams may harm the ecosystems supported by those dams and the overall aesthetics of the lands affected, which may lead to decreased property values and a diminished tax-base. Financial assistance including an insurance or grant program should be provided. NYSDEC is responsible for undertaking the engineering assessments, inspections, plans, and functions for all dams. The proposed regulations impermissibly shifted responsibility to dam owners.
Response: The proposed dam safety regulations generally reflect the state of the practice in dam safety. The costs of concern are primarily those of operating and maintaining a dam in a safe condition, as widely understood in the industry, which is a now longstanding statutory obligation of dam owners which pre-dates this rule making by almost a decade. Compliance with a strong regulatory framework may help to contain or even lower insurance costs. Dam owners have long been responsible for their dams as a matter of law, through statute, and by tradition. Nevertheless, in response to these comments, the revised rule making proposal includes several changes designed to address the cost of compliance. By way of example, the revised regulations:
Extends the date by which the first Engineering Assessments and Emergency Action Plans are due, thus offering owners more time to make arrangements for the associated costs.
Require Safety Inspections at a frequency that shall appear in a schedule that is part of an Inspection and Maintenance Plan, not on a schedule that is explicitly stated in the regulations in order to allow greater flexibility to determine the appropriate schedule for a specific dam.
Require an Enhanced Safety Program only for dams that have been assigned a particular Condition Rating. This approach addresses public safety, allows NYSDEC to focus on deficient dams, and rewards responsible owners of well-maintained dams.
Clarify that financial assurance is to cover only the costs of breach or removal, and only if required by NYSDEC.
Creation of a funding mechanism to help dam owners rehabilitate their dams must be addressed through the legislative amendment and budget processes, and is beyond the scope of this rule making.
Frequent Comment #2: Opposing views were expressed over the use of dams. Owners of farm pond dams should be exempt from any obligation beyond operating farm pond dams in a safe and cautious manner. Dams should be regulated based on downstream hazard potential, rather than use. Response: Under the revised dam safety regulations, Class A (Low Hazard) dams only have to comply with the requirement to operate a dam in a safe condition, and with recordkeeping requirements (including having an inspection and maintenance plan). The reference to "farm pond dams" has been removed, and all Class A dams (Low hazard), regardless of use or purpose, are treated the same.
Frequent Comment #3: How will NYSDEC assign or change the Hazard Classification of a dam? Do not include downstream development as a criterion in assigning a hazard classifications to a dam because doing so forces upstream dam owners to bear the costs of poor development choices, many of which are made after the dam is constructed and without input from the upstream dam owners. The regulations lack any mode of appeal. Response: The proposed regulations do not significantly change the Hazard Classifications, but a dam's classification now carries more significance as a result of the safety requirements that are associated with each particular hazard classification. The Hazard Classification of a dam must reflect changes to potential impacts from a dam failure, including those due to increases in development downstream of the dam.
The regulations must allow for the array of specific characteristics of each dam and its locale. Hazard Classification determinations remain subject to the dam safety engineering discretion of NYSDEC staff. This issue may be further tackled in technical guidance documents. The language providing dam owners the right to appeal NYSDEC's Hazard Classification, which exists in the currently effective regulation, has been added to the revised rule making.
Frequent Comment #4: The requirement to retain a professional engineer. The State should maintain a list of approved engineers. The requirement that engineers have ten years of specific experience is arbitrary and unreasonable. NYSDEC may not be able to comply. Response: NYSDEC may not recommend engineers. The requirement for an engineer to have 10 years of experience has been removed from the revised rule making. State Education Law already bars engineers from practicing outside their area of expertise, and this principal has been clarified with a revised definition of "engineer." The revised rule making clarifies the components of a dam safety program that require the services of an engineer.
Frequent Comment #5: The definition of "dam owner" is over-broad and will create problems with enforcement, as many "dam owners" will be difficult if not impossible to identify and locate. Other interested parties have no influence in NYSDEC's decisions about a dam. How will transfers of ownership affect liability? Response: The definition of "owner" is not new. It simply adopts the long-existing statutory definition of dam owner. A new property transfer provision in the revised rule should help clarify the transition of statutory and regulatory dam safety liability upon the transfer of property, or rights in property, where a dam is located.
Where there are numerous direct users or beneficiaries of a dam (i.e., a lake association or other group), NYSDEC has the statutory authority to pursue enforcement against any one of these statutory "owners", who would then need to pursue contribution from the other owners. It may be in the best interests of groups of owners to work together cooperatively and designate a primary contact with NYSDEC for the purposes of dam safety compliance. Further, the respective owners of several dams on a single water body or of dams that are in close proximity to each other, may choose to work together to explore whether, for example, periodic engineering services may be retained by the owners for multiple sites at more economical rates.
A new provision reflects that any individual or entity may submit information to NYSDEC that is relevant to the existence, location, condition and safety of any dam.
Frequent Comment #6: It is burdensome to require dams to conform to new standards, when these dams were properly designed and constructed to the applicable design standards at the time they were built, and have since been inspected annually and properly maintained in excellent condition. Response: The rule making does not promulgate new engineering safety standards for dams. However, as with any technical guidance, NYSDEC expects to regularly review its "Guidelines for Design of Dams" for consistency with the state of science, engineering, and practice and issue updates as needed. Periodic review of downstream conditions and dam design standards in light of current information is a well-recognized component of a dam safety program. It is appropriate and necessary to carry this concept into the regulations in order to protect public safety and the environment.
Frequent Comment #7: Numerous comments indicated concern that a dam owner must provide specific information or reports in a form "acceptable to NYSDEC," but the regulations do not specify what would be acceptable. These comments recommend that NYSDEC should make standards and forms available to eliminate this confusion.
Response: NYSDEC intends to make guidance documents -- including some forms - available, as appropriate, after the content of the regulations has been finalized.
Frequent Comment #8: NYSDEC dam safety regulations may be preempted by FERC with respect to dams that generate hydroelectric power. If the NYSDEC regulations are not preempted, NYSDEC should to adopt regulations that more closely coincide with the regulations already used for FERC. Response: The regulatory authority of NYSDEC and FERC are each governed by their respective statutes and case law. The proposed and revised dam safety regulations do not change these authorities. In drafting the proposed dam safety regulations, NYSDEC provided compliance flexibility for dams regulated by government agencies. As part of the revised rule making, NYSDEC reviewed and has further clarified this language.
Frequent Comment #9: NYSDEC should conduct an Environmental Impact Study before these regulations go into effect. Response: Agency rule making is generally subject to the State Environmental Quality Review Act (SEQRA) pursuant to 6 NYCRR Part 617. NYSDEC prepared an Environmental Assessment Form, Coastal Assessment Form, and Negative Declaration concerning the proposed dam safety rule making. The regulations enhance the protection of the environment and public safety by more explicitly implementing the statutory obligation of dam owners to operate and maintain their dams in a safe condition. As the regulations do not themselves do not impose adverse environmental impacts, an Environmental Impact Study is not required.
Frequent Comment #10: Some form of review or appeal should be available to dam owners concerning NYSDEC determinations as to dam safety and the associated dam safety deliverables submitted by owners. Response: NYSDEC staff work cooperatively with dam owners. Technical submissions by owners are often the subject of dialogue between NYSDEC staff and the dam owner prior to finalization. However, the revised rule provides formal opportunities for the review of NYSDEC determinations as Hazard Classifications and Condition Ratings. In addition, orders issued by NYSDEC are subject to appeal through hearing provisions, and to Article 78 of the New York Civil Practice Law and Rules.
Frequent Comment #11: Part 608 (dam construction permit requirements) uses the term "ordinary maintenance." Since all dams are unique in construction, the maintenance that can be completed without a permit should also be unique. Response: NYSDEC has attempted to define the term "ordinary maintenance" as precisely as possible, but because dam designs and the specific characteristics of individual dams vary widely, a more precise definition cannot be uniformly applied to all dams in an appropriate manner. In the revised rule making, NYSDEC has provided a definition for "repair" to provide a contrast to "ordinary maintenance." In addition, NYSDEC has an existing mechanism through which a dam owner may request a determination as to whether proposed work would require permits.
Frequent Comment #12: NYSDEC does not provide enough information to the public about dams. NYSDEC should not make security-sensitive information available to the public. Response: This issue is beyond the scope of the dam safety rule making. NYSDEC is subject to New York State Public Officers Law and, within it, to the Freedom of Information Law (FOIL). The Public Officers Law defines the types of information that must be released and identifies which information may be withheld from disclosure. Regulations and case law interpret this law. NYSDEC handles requests for information about dams in accordance with this law. Requirements for the distribution of inspection reports by NYSDEC are in ECL § 15-0516.
