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Part 673: Dam Safety Regulations

Statutory authority: Environmental Conservation Law, Article 1 Title 3; Article 3 Title 3; Article 3 sections 0301[2][aa] and [m]; Article 15 Title 5; Article 15 sections 0501, 0503, 0507, 0511, and 0516.

[Effective date: August 19, 2009]

Contents:

Sec.

§673.1 Purpose; Applicability; and Severability

(a) The purpose of this Part is to provide for the orderly and efficient administration of ECL Article 15 sections 0507, 0511 and 0516, and to provide the regulations governing dam safety and dam safety programs.

(b) Except as otherwise specifically provided, the provisions of this Part shall apply to any owner of a dam.

(c) If any provision of this Part or its application to any particular person or circumstance is held invalid, the remainder of this Part and its application to other persons and circumstances shall not be affected thereby.

§673.2 Definitions

(a) 'Appurtenant works' and 'appurtenant structures' means structures built or materials placed and/or maintained, in connection with a dam. They may include, but are not limited to, such structures as spillways, valves, low level outlet works, fish ladders, and conduits.

(b) 'Auxiliary Spillway' means a secondary spillway designed to operate only during large floods to pass flows, and is in addition to a service spillway.

(c) 'Breach' of a dam means the permanent lowering of a dam's normal impoundment level or the construction of a channel through or around a dam.

(d) 'Commissioner' means the Commissioner of the New York State Department of Environmental Conservation or such individual's duly authorized designee.

(e) 'Construct' means to build, erect, repair, reconstruct, breach or remove. 'Construction' means the building, erection, repair, reconstruction, breach or removal.

(f) 'Dam' means any artificial barrier, including any earthen barrier or other structure, together with its appurtenant works, which impounds or will impound waters. By way of example only, waters may be impounded by directly intercepting drainage over land, by placing a structure in or across a watercourse, or by diverting or pumping waters to an impoundment or reservoir. A lagoon or storage facility, with one or more impoundment structures, that stores waste, or that treats, disposes or contains materials, other than waters, is not a dam.

(g) 'Dam break analysis' is an engineering evaluation used to predict downstream flooding from a dam failure.

(h) 'Dam Safety Section' means the department's Dam Safety Section in the Division of Water of the department's Albany office (or its successor), or its duly designated designee.

('i') 'Department' means the New York State Department of Environmental Conservation.

(j) 'Emergency Action Plan' means a dam owner's written plan of methods and procedures pursuant to section 673.7 of this Part that is implemented in order to detect, identify, mitigate or prevent the causes and consequences of, adverse dam incidents, including failures.

(k) 'Engineer' means an individual who:

(i) is a professional engineer currently licensed and registered to practice engineering under Article 145 of the Education Law of the State of New York; and

(ii) possesses sufficient specific education, training, and experience necessary to exercise professional judgment in the development of opinions and conclusions regarding, and is otherwise competent in areas related to, the investigation, design, construction, operation, and maintenance of a dam of the type, size, and location that is to be addressed, and in areas related to adverse dam incidents, dam failures and the potential causes and consequences of dam failures, sufficient to meet the objectives and performance factors for the areas of practice identified by this Part.

(l) 'Environmental Conservation Law' or 'ECL' means the New York State Environmental Conservation Law.

(m) 'Hazard Classification' refers to the damage or hazard that may be posed by the failure of a dam. One of four Hazard Classifications may be assigned to a dam by the department in accordance with Section 673.5 of this Part. The Hazard Classifications are: Class "A" (low hazard); Class "B" (intermediate hazard); Class "C" (high hazard); and Class "D" (negligible or no hazard).

(n) 'Height' of a dam means the measurement of the vertical dimension from the downstream toe of a dam at its lowest point to the top of the dam.

(o) 'Inspection and Maintenance Plan' means a written plan of procedures to conduct routine activities involved in the upkeep of a dam, which is prepared in accordance with Section 673.6 of this Part.

(p) 'Inundation area' means the area which would likely be flooded as a result of a dam failure. The inundation area may be determined analytically, including through a dam break analysis.

(q) 'Local public corporation' means any municipal corporation or district corporation, as is set forth in ECL Article 1 section 0303 subdivision 15 and further defined in the General Construction Law section 66 subdivisions 2 and 3.

(r) 'Maximum impoundment capacity' means the measurement of volume of waters that are impounded when the water level of the impoundment is at the top of a dam.

(s) 'NYCRR' is an abbreviation for the Official Compilation of Codes, Rules and Regulations of the State of New York. '6 NYCRR' means Title 6 of the NYCRR.

(t) 'Owner' of a dam means any person or local public corporation who owns, erects, constructs, reconstructs, repairs, breaches, removes, maintains, operates, or uses a dam.

(u) 'Person' means any individual, firm, co-partnership, association or corporation, other than the state and a public corporation, as is set forth in ECL Article 1 section 0303 subdivision 18.

(v) 'Public Corporation' means a "public corporation," as referenced in ECL Article 1 section 0303 subdivision 20, and as defined in the General Construction Law section 66, and includes all public authorities, except the Power Authority of the State of New York.

(w) 'Removal' means eliminating a dam embankment or structure to the approximate original topographic contours.

(x) 'Waters' means "waters" as defined in ECL Article 15 section 0107 subdivision 4.

§673.3 General provisions

(a) Any owner of a dam shall at all times operate and maintain the dam and all appurtenant works in a safe condition.

(b) Based on information that is or becomes available to the department, the owner of any dam may be found to be in violation of subdivision 673.3(a) of this Part, or the dam may be found to be an illegal dam, notwithstanding the Condition Rating or Hazard Classification of the dam, or in the absence of the assignment of a Condition Rating or Hazard Classification to the dam.

(c) Upon reasonable notice, the owner of a dam shall furnish any available information which is reasonably necessary for the department's inspection or investigation of the dam and appurtenant works, and the assessment of the safety thereof, including, without limitation, the records and reports required to be maintained pursuant to this Part. Failure of an owner to provide the information requested is a violation of this Part and ECL Article15 section 0507.

(d) The applicability of this Part to a dam or dam owner shall not depend on (i) whether a Hazard Classification or Condition Rating has been assigned to the dam pursuant to section 673.5 or 673.16(d) of this Part or (ii) the Condition Rating that has been assigned to a dam.

(e) The owner of a dam who fails to (i) operate and maintain a dam in a safe condition as determined by the department, (ii) construct a dam in accordance with permit conditions, or (iii) comply with any section of this Part, is subject to the provisions of ECL Article 15 sections 0507 and 0511.

(f) Every violation of any subdivision of this Part shall be a separate and distinct offense; and in the case of a continuing violation of any subdivision of this Part, each day's continuance thereof shall be deemed a separate and distinct offense.

(g) Nothing in this Part precludes the commissioner from issuing a summary abatement order pursuant to ECL Article 71 section 0301, and Parts 620 and 622 of 6 NYCRR, whenever the commissioner finds that any person is causing, engaging in or maintaining a condition or activity which presents an imminent danger to the health or welfare of the people of the State, or results in or is likely to result in irreversible or irreparable damage to natural resources.

(h) Nothing in this Part precludes the commissioner from exercising the department's authority pursuant to ECL Article 3 section 0301(2)(aa) for a Construction Emergency related to a dam, whenever the commissioner finds that a dam presents an imminent danger of failure, in order to protect life, property or natural resources.

('i') The department may, at its discretion, accept equivalent reports in lieu, in whole or in part, of the reports of inspections and assessments required in this Part. Such reports may consist of reports conducted and prepared by governmental agencies (e.g., reports prepared for or by the Federal Energy Regulatory Commission (FERC), the Natural Resources Conservation Service (NRCS), etc.), or consist of assessment reports certified by a dam owner and submitted to other governmental agencies (e.g., FERC).

('j') The Department may extend the time frames and schedules provided for in this Part in appropriate circumstances when it is determined that compliance will result in extraordinary economic hardship. An application for an extension shall be accompanied by such information as the Department requires.

§673.4 Permit Requirements for Dams

Regulations implementing the permit requirements for dams are set forth, without limitation, in Part 608 of 6 NYCRR, "Use and Protection of Waters." Nothing in this Part 673, or any order, notice or recommendation issued pursuant to this Part, shall be construed to relieve any dam owner of any obligation to obtain permits pursuant to Part 608 of this Title or of any other requirement of law, including but not limited to those of the Freshwater Wetlands Act, the Fish and Wildlife Law, the Federal Power Act, and the State Environmental Quality Review Act, unless otherwise specified therein.

§673.5 Hazard Classifications

(a) The department may assign a Hazard Classification to dams according to the potential impacts of a dam failure. The factors used to evaluate and assign a Hazard Classification are:

(1) the height, impoundment capacity and physical characteristics of the dam;

(2) the physical characteristics of the location of the dam, including the areas which would be affected by a failure of the dam; and

(3) the potential consequences and other circumstances relevant to the failure of the dam, including, without limitation:

(i) personal injury and loss of human life;

(ii) damage to developed areas, occupied buildings, or other land improvements;

(iii) economic loss;

(iv) damage to natural resources;

(v) proximity to and possible impairment of access to emergency services; and

(vi) other site specific characteristics or factors which the department determines are necessary to consider.

(b) The Hazard Classifications for dams are assigned based on the particular physical characteristics of a dam and its location, may be assigned irrespective of the size of the dam, as appropriate, and are as follows:

(1) Class "A" or "Low Hazard" dam: A dam failure is unlikely to result in damage to anything more than isolated or unoccupied buildings, undeveloped lands, minor roads such as town or county roads; is unlikely to result in the interruption of important utilities, including water supply, sewage treatment, fuel, power, cable or telephone infrastructure; and/or is otherwise unlikely to pose the threat of personal injury, substantial economic loss or substantial environmental damage.

(2) Class "B" or "Intermediate Hazard" dam: A dam failure may result in damage to isolated homes, main highways, and minor railroads; may result in the interruption of important utilities, including water supply, sewage treatment, fuel, power, cable or telephone infrastructure; and/or is otherwise likely to pose the threat of personal injury and/or substantial economic loss or substantial environmental damage. Loss of human life is not expected.

(3) Class "C" or "High Hazard" dam: A dam failure may result in widespread or serious damage to home(s); damage to main highways, industrial or commercial buildings, railroads, and/or important utilities, including water supply, sewage treatment, fuel, power, cable or telephone infrastructure; or substantial environmental damage; such that the loss of human life or widespread substantial economic loss is likely.

(4) Class "D" or "Negligible or No Hazard" dam: A dam that has been breached or removed, or has failed or otherwise no longer materially impounds waters, or a dam that was planned but never constructed. Class "D" dams are considered to be defunct dams posing negligible or no hazard. The department may retain pertinent records regarding such dams.

(c) A list of assigned Hazard Classifications will be maintained and made available by the department's Dam Safety Section. A list will also be available at each regional office of the department for the dams within that region. The list will also be made available to the public in electronic form either through the department's website or through other means. The list is informational in nature, and a dam is not required to be on the list to confer jurisdiction for action by the department according to statute or its implementing regulations.

(d) The department may change a dam's Hazard Classification as necessary at any time to accurately reflect the potential impacts of dam failure. Upon changing the Hazard Classification of a dam, the department shall notify the dam owner in writing and provide the basis therefore.

(e) A dam owner may contest the department's assignment of or change to a Hazard Classification. The dam owner must send a written request for Hazard Classification review to the department's Dam Safety Section and must accompany the request with documentation of the specific potential impacts posed by the dam's failure, based on the specific physical characteristics of both the dam and its location. Documentation may include results of a dam break analysis, inundation mapping, and other relevant information in order to support the request for reclassification of the dam. The Director of the department's Division of Water, or duly authorized designee, will review the owner's request for review and supporting documentation and issue a written decision either denying the request or changing the Hazard Classification.

(f) Any person may provide to the department, and the department shall consider, information relevant to the assignment of a Hazard Classification to a dam.

§673.6 Inspection, Operation and Maintenance

(a) Inspection and Maintenance Plan. The owner of a dam that (1) is equal to or greater than 15 feet in height or has a maximum impoundment capacity equal to or greater than three million gallons, unless the dam has a height equal to or less than six feet, regardless of impoundment capacity, or an impoundment capacity less than or equal to one million gallons, regardless of height, or (2) has been assigned a Hazard Classification of Class "B" or "C" pursuant to section 673.5 of this Part, or (3) impounds waters which pose, in the event of a failure of such dam, a threat of personal injury, substantial property damage or substantial natural resource damage as determined by the department, shall develop and fully implement a written Inspection and Maintenance Plan for the dam. The first Inspection and Maintenance Plan that is required after the effective date of this Part shall be completed within twelve (12) months of the effective date of this Part.

(b) An Inspection and Maintenance Plan shall include:

(1) Detailed descriptions of all procedures governing: the operation, monitoring, and inspection of the dam, including those governing the reading of instruments and the recording of instrument readings; the maintenance of the dam; and the preparation and circulation of notifications of deficiencies and potential deficiencies;

(2) A schedule for monitoring, inspections, and maintenance; and

(3) Other elements as may be required by the department based on its consideration of public safety and the specific characteristics of the dam and its location.

(c) The Inspection and Maintenance Plan shall be retained by the dam owner, kept in good order, and updated as necessary to reflect changes in current conditions.

(d) The Inspection and Maintenance Plan shall be made available to the department upon request.

(e) The department may review and require the owner to amend any Inspection and Maintenance Plan at any time to protect life, property or natural resources.

§673.7 Emergency Action; Emergency Action Plan

(a) The owner of a dam that been assigned a Hazard Classification of Class "B" or "C" shall prepare an Emergency Action Plan and annual updates thereof, submit each to the department, and provide copies of each, at a minimum, in accordance with this section.

(b) The recipients of the Emergency Action Plan are as follows. The Emergency Action Plan and each annual update shall be submitted to the Dam Safety Section. A copy of each shall be provided (i) to the county emergency management official of the county in which the dam is located and (ii) to any other individual identified as a recipient within the plan. The owner shall also provide a copy to any other municipality in either the same county or an adjoining county that is within the inundation area, upon written request from the municipality's chief executive officer.

(c) Unless a shorter time frame is imposed by the department in the interest of public safety based on the assignment of a Condition Rating of "unsafe" or "unsound" in accordance with section 673.16 of this Part, the schedule for submission of the Emergency Action Plan is as follows.

(1) For dams that have been assigned a Hazard Classification of Class "C" as of the effective date of this Part, the Emergency Action Plan shall be submitted and provided in accordance with subdivision 673.7(b) of this Part within twelve (12) months of the effective date of this Part.

(2) For dams that have been assigned a Hazard Classification of Class "B" as of the effective date of this Part, the Emergency Action Plan shall be submitted and provided in accordance with subdivision 673.7(b) of this Part within twenty-four (24) months of the effective date of this Part.

(3) For dams that are assigned a Hazard Classification of "B" or "C" or are reclassified as such after the effective date of this Part, the Emergency Action Plan shall be submitted either (i) as part of a permit application pursuant to Part 608 of this Title with respect to the dam or, (ii) where no activities requiring a permit are being pursued at the time of assignment, within twelve (12) months of the department's Hazard Classification assignment.

(d) The owner shall have the Emergency Action Plan for a Class "C" dam prepared by an engineer unless the owner makes a written request of the Director of the Division of Water in the department's Albany office to waive this requirement, with respect to some or all of the Emergency Action Plan, and the department, based on its discretionary consideration of public safety and the site-specific characteristics of the dam and its location, provides a written waiver of this requirement.

(e) The owner shall be required to have the Emergency Action Plan for a Class "B" dam prepared by an engineer only upon the request of the department, with respect to some or all of the Emergency Action Plan, based on the department's discretionary consideration of public safety and the site-specific characteristics of the dam and its location.

(f) The Emergency Action Plan shall include, but not be limited to: (i) procedures for the notification of an emergency; (ii) inundation maps or other acceptable description of the potential inundation area, which may include a dam break analysis; (iii) procedures for implementing all other aspects of the Emergency Action Plan; (iv) procedures for updating the plan; and (v) other provisions the department deems necessary.

(g) The dam owner shall fully implement all provisions of the Emergency Action Plan in accordance with its terms.

(h) Emergency Action Incident Report. Within five calendar days of activating the Emergency Action Plan, the dam owner shall submit a written Incident Report to the Dam Safety Section, in a format acceptable to the department. The department may require additional information to be submitted in order to protect public safety, property or natural resources.

('i') The dam owner shall retain a copy of the Emergency Action Plan and keep it in good order.

(j) The dam owner shall update and provide to all required recipients, pursuant to section 673.7(b), any pages of the Emergency Action Plan annually, by January 31 of each year, and more frequently, as necessary, to promptly reflect changes in current conditions.

(k) The department may review and require changes to any Emergency Action Plan at any time to protect life, property or natural resources.

§673.8 Annual Certification

(a) The owner of a dam that has been assigned a Hazard Classification of Class "B" or "C" shall submit to the Dam Safety Section an Annual Certification, in a form prescribed by the department, by January 31 of each year.

(b) The owner shall certify as to the:(i) name(s) and address(es) of the owner and a telephone number capable of reaching the owner; (ii) Hazard Classification and location (latitude and longitude) of the dam and its appurtenant works; (iii) retention in good order of a complete and current Inspection and Maintenance Plan that is in compliance with this Part; (iv) full implementation of the Inspection and Maintenance Plan; and (v) retention in good order of an Emergency Action Plan that is in compliance with this Part.

(c) Any pages that may be necessary in order to update an Emergency Action Plan shall be included with the Annual Certification.

(d) The Annual Certification shall be signed as follows:

(1) for a corporation: by a responsible corporate officer. A responsible corporate officer means a president, secretary, treasurer, or vice president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making function for the corporation; or the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having annual sales or expenditures exceeding $25 million, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(2) for a partnership: by a general partner.

(3) for a municipality or federal or other government agency other than the State: by the chief executive officer or ranking elected official of a municipality or by a principal executive officer of an agency. A principal executive officer of an agency includes: the chief executive officer; a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency; or a duly authorized representative.

(4) for any other legal entity: by a duly authorized representative.

§673.9 Notification of Auxiliary Spillway Flow

The owner of a dam that has been assigned a Hazard Classification of Class "B" or "C" shall notify the department in writing, in a format acceptable to the department, within five calendar days of any flow in an erodible auxiliary spillway. The department may require additional information to be submitted in order to protect public safety, property or natural resources.

§673.10 Recordkeeping and Response to Request for Records

(a) The owner of any dam shall keep available and in good order all available records of (i) original construction and (ii) modifications to a dam's design and construction.

(b) A dam owner shall keep available and in good order all records required to be prepared by this Part.

(c) The department may require any dam owner to furnish, upon reasonable notice and at the owner's sole expense, copies of any records required to be maintained by this Part.

§673.11 Notices of Property Transfer

(a) The owner of a dam that either (i) is equal to or greater than 15 feet in height or has a maximum impoundment capacity equal to or greater than three million gallons, unless the dam has a height equal to or less than six feet, regardless of impoundment capacity, or an impoundment capacity less than or equal to one million gallons, regardless of height, or (ii) has been assigned a Hazard Classification of Class "B" or "C", shall provide the following Notices of Property Transfer:

(1) Notice by Seller or Transferor. Prior to the signing of a contract of sale or other legal instrument used to transfer rights in or title to the property where a dam is located, the dam owner shall provide the prospective buyer or transferee a materially complete narrative description of the dam and its appurtenant works, and the specific location (latitude and longitude) thereof.

(2) Notice of Turnover of Records by Seller or Transferor. No later than the date of transfer of the property or rights therein, the dam owner shall provide the buyer or transferee with copies of all records that are and were subject to the recordkeeping requirements of this Part. The records shall be accompanied by a certification, signed in accordance with section 673.8(d) of this Part, that all available records required by this Part to be maintained for said dam have been turned over. Nothing in this Part shall be construed to prohibit the dam owner from allowing a prospective buyer or transferee from inspecting any records required to be maintained by this Part in advance of the date of transfer.

(3) Notice by Buyer or Transferee. No later than the date of transfer of the property or rights therein, the dam owner who is the buyer or transferee shall send written notification of the property transfer to both (i) the department's Dam Safety Section, and (ii) the municipality or municipalities in which the dam is located. The notification shall: describe the dam and its appurtenant works; provide the location (latitude and longitude) of the dam; and include a certification, signed in accordance with section 673.8(d) of this Part, as to the name(s), mailing address(es), and a telephone number capable of contacting the dam owner(s) who is the buyer or transferee.

§673.12 Safety Inspections

(a) The owner of a dam that has been assigned a Hazard Classification of Class "B" or "C" shall undertake Safety Inspections on a regular basis, as shall be identified in the Inspection and Maintenance Plan.

(b) The owner of a dam that has been assigned a Condition Rating of "Unsafe" or "Unsound" shall undertake Safety Inspections on a regular basis, as shall be identified in an Inspection and Maintenance Plan, and upon the request of the department, in its discretion, based on its consideration of public safety and the specific characteristics of the dam and its location.

(c) Safety Inspections shall be performed on behalf of the owner by an engineer, who shall document the results of each inspection in a Safety Inspection Report, which shall be signed and sealed by the engineer.

(d) A Safety Inspection Report shall include, but need not be limited to:

(1) Document Review: A review of all relevant documents, studies, plans, hazard classifications, photos, or any other information related to the dam and its appurtenant works, including the Inspection and Maintenance Plan, Safety Inspection Reports or other inspection reports generated since the last Safety Inspection, and the Emergency Action Plan;

(2) Visual Inspection: The narrative results of a visual inspection of the dam, including the embankment, spillway, outlet, closure dikes and other appurtenant structures, focusing on initial and/or progressive signs of the manifestation of potential failure modes. Specific note shall be made as to whether any deficiencies reported in previous reports, and any corrective action required by the department, have been fully resolved and/or implemented. The report should include dated photographs of the specific observations made and any deficiencies or potential deficiencies identified during the visual inspection;

(3) Review of Data: A review and evaluation of any instrumentation data generated since the completion of the last Safety Inspection, and any recommendations for addressing gaps or other deficiencies or potential deficiencies in monitoring; and

(4) Corrective Action: Identification of deficiencies or potential deficiencies along with recommendations and a schedule for any corrective actions necessary to fully resolve the deficiencies or potential deficiencies, which recommendations may include additional investigations, such as revised hydrologic and hydraulic analyses, stability analyses, or underwater inspections.

(e) Safety Inspection Reports shall be retained by the dam owner and kept in good order.

(f) The department may require any dam owner to furnish, upon reasonable notice and at the owner's sole expense, a copy of any or all Safety Inspection Reports.

(g) The department may review any Safety Inspection Report at any time to protect life, property or natural resources, may require additional information or clarification thereto, and/or may provide comments to be addressed in a revised Safety Inspection Report upon a finding that the Safety Inspection, particularly the review of data, deficiency identification, and the recommendation(s) and schedule for corrective action therein, was not performed in compliance with this Part and/or generally accepted engineering practice in the field of dam design and safety. The owner shall revise the Safety Inspection Report to fully incorporate and/or resolve the department's comments and resubmit it to the department within 60 days of the owner's receipt of the department's comments, unless another time frame is either requested by the owner and agreed to by the department, or imposed by the department in the interests of public safety for a dam that has a Condition Rating of "unsafe" or "unsound".

§673.13 Engineering Assessments

(a) The owner of a dam that been assigned a Hazard Classification of Class "B" or "C" shall perform Engineering Assessments on a regular basis, as is set forth in this subsection.

(b) The department may require an Engineering Assessment from the owner of a dam that has been assigned a Condition Rating of "Unsafe" or "Unsound", based on the department's consideration of public safety and the specific characteristics of the dam and its location.

(c) All Engineering Assessments shall be performed on behalf of the owner by a professional engineer, who shall document the results of the inspection in an Engineering Assessment Report, which shall be signed and sealed by the professional engineer.

(d) An Engineering Assessment shall be performed, and an Engineering Assessment Report submitted to the Dam Safety Section, at a minimum frequency of every 10 years for dams that have been assigned a Hazard Classification of Class "B" or "C".

(e) Unless a shorter time frame is imposed by the department in the interest of public safety based on the assignment of a Condition Rating of "unsafe" or "unsound" in accordance with section 673.16 of this Part, the schedule for submission of the first Engineering Assessment Report is as follows.

(1) Large Class "C" Dams. For dams that have been assigned a Hazard Classification of Class "C" as of the effective date of this Part, the first Engineering Assessment Report shall be submitted within three years of the effective date of this Part if the dam is a Large Class "C" dam, which shall mean the dam either has a height greater than or equal to 40 feet or impounds 1000 acre-feet or more at normal water surface.

(2) Small Class "C" Dams. For dams that have been assigned a Hazard Classification of Class "C" as of the effective date of this Part, the first Engineering Assessment Report shall be submitted within five years of the effective date of this Part if the dam is a Small Class "C" dam, which shall mean the dam has a height of less than 40 feet and impounds less than 1000 acre-feet at normal water surface.

(3) Class "B" Dams. For dams that have been assigned a Hazard Classification of Class "B" as of the effective date of this Part, the first Engineering Assessment shall be submitted within six years of the effective date of this Part.

(4) For dams that are assigned a Hazard Classification of "B" or "C" or are reclassified as such after the effective date of this Part, the first Engineering Assessment Report or other submission in lieu thereof, shall be submitted either (i) as part of a permit application pursuant to Part 608 of this Title with respect to the dam, or (ii) where no activities requiring a permit are pursued, within two years of the department's assignment.

(5) The deadlines for the submission of the first Engineering Assessment Report may be extended, at the discretion of the department, in response to a written request by a dam owner who is operating a dam in a safe condition and is not otherwise in violation of this Part.

(f) All Engineering Assessments shall include:

(1) A complete Safety Inspection pursuant to section 673.12 of this Part and a corresponding Safety Inspection Report;

(2) An evaluation of the dam, including its function, structural stability, and spillway capacity, that may utilize calculations or computer modeling of the hydrologic, hydraulic, stability and/or structural analysis; conclusions as to whether the dam is in a safe condition; and the basis for the conclusions; and

(3) Any recommended change in the Hazard Classification or modification of the Emergency Action Plan due to changes in the dam or inundation area, including, specifically, changes in land use.

(g) All Engineering Assessment Reports shall be retained by the dam owner and kept in good order.

(h) The department may review any Engineering Assessment Report at any time to protect life, property or natural resources, may require additional information or clarification thereto, and/or may provide comments to be addressed in a revised Engineering Assessment Report upon a finding that it was not prepared in compliance with this Part and/or generally accepted engineering practice in the field of dam design and safety. The owner shall revise the Engineering Assessment Report to fully incorporate and/or resolve the department's comments and resubmit it to the department within 60 days of the owner's receipt of the department's comments, unless another time frame is either requested by the owner and agreed to by the department, or imposed by the department in the interests of public safety for a dam that has a Condition Rating of "unsafe" or "unsound".

§673.14 Field Inspection of a Dam by the Department

(a) Whenever in the judgment of the department public safety requires, the department or its duly appointed agent(s) may, at its discretion and without prior notice, enter upon lands and waters in order to perform a Field Inspection of a dam.

(b) The department may document existing conditions during the course of its inspection through the use of, without limitation, photographs or videos. Records created during the inspection may be retained by the department as deemed necessary and may be subject to disclosure to the public in accordance with the Public Officers Law and other applicable laws.

(c) Based on a Field Inspection by the department, the department may create a Field Inspection Report for any dam.

(d) In accordance with ECL Article 15 section 0516, within 30 days of completing a Field Inspection Report for a dam with a Hazard Classification of Class "B" or "C", the department will provide a copy thereof to the chief executive officer of the municipality or municipalities in which the dam is located. The department will contemporaneously provide a copy thereof to the dam owner. Within 30 days of the department's receipt of a written request from the chief executive officer of any other municipality in the same county or from an adjoining county but within the inundation area of the dam, the department will also provide a copy of the Field Inspection Report to the chief executive officer.

§673.15 Investigation of a Dam by the Department or Owner

Whenever in the judgment of the department the protection of public safety, property or natural resources requires, the department or its duly appointed agent may, at its discretion and without prior notice, enter upon lands and waters and make or cause to be made an Investigation of any dam. For any dam that (1) has been assigned a Hazard Classification of Class "B" or "C" pursuant to section 673.5 of this Part, or (2) impounds waters which pose, in the event of a failure of such dam, a threat of personal injury, substantial property damage or substantial natural resource damage as determined by the department, the department may require the owner of such dam to conduct a Safety Inspection pursuant to section 673.12 of this Part, an Engineering Assessment pursuant to section 673.13 of this Part, and/or to conduct additional engineering evaluations of a dam, including evaluations to confirm the dam safety deficiencies that are presented in a Safety Inspection Report or Engineering Assessment Report, or to confirm any other information received by the department, in order to assure the protection of public safety, property or natural resources.

§673.16 Condition Ratings

(a) Based on its investigation, the department may assign a Condition Rating to any dam.

(b) The Condition Ratings that may be assigned are:

(1) "Unsafe": Dams with deficiencies of such a nature that failure of the dam is imminent and immediate action is required to eliminate or reduce the danger. Among the deficiencies which could result in this rating are seepage which is carrying soil particles, significant erosion problems, and serious structural deficiencies, which may involve movement or cracking of the structure. Severely inadequate spillway capacity may also result in a condition rating of "unsafe."

(2) "Unsound": Dams with deficiencies of such a nature that the safety of the dam cannot be assured. Among the deficiencies which could result in this rating are developing seepage problems, structural stability inadequacies, or seriously inadequate spillway capacity. Hazard Class "B" or "C" dams for which there is no demonstration that the spillway capacity and stability are adequate may receive a condition rating of "unsound."

(3) "Deficiently maintained": Dams with physical or operational deficiencies which do not require further significant engineering analysis. Some corrective action is required, often in the form of increased maintenance, to correct the condition of the dam.

(4) "No deficiencies noted": A Safety Inspection or Engineering Assessment, and/or investigation by the department, did not reveal deficiencies.

(c) Dams with several deficiencies which could be assigned more than one Condition Rating will be assigned the most severe rating category applicable.

(d) The owner of a dam that is assigned a Condition Rating of "Unsafe", "Unsound" or "Deficiently Maintained" will be notified in writing, by certified mail, of the Condition Rating of the dam and the basis therefore. The notice will include the Hazard Classification assigned to the dam and will require such corrective action as the department deems appropriate, including the timely correction of deficiencies, with due consideration of the potential impacts associated with the corrective action. The notice may require the owner to implement or submit for approval and implement, an Enhanced Dam Safety Program pursuant to this section.

(e) Any corrective action shall be carried out in a manner that complies with this Part and any other applicable requirements of the department, including permit requirements.

(f) The owner of a dam with a Condition Rating of "Unsafe", "Unsound" or "Deficiently Maintained" is in violation of ECL Article 15 section 0507 and this Part. The department may pursue formal enforcement proceedings to compel the implementation of an Enhanced Safety Program and/or the prompt correction of all deficiencies. The failure of a dam owner to comply with an order of the department is a violation of this Part and ECL Article 15 section 0507.

(g) The department may change a dam's Condition Rating as necessary at any time to accurately reflect the deficiencies or improvements in the dam. Upon changing the Condition Rating, the department shall notify the dam owner in writing and provide the basis thereof.

(h) Any person may provide to the department, and the department shall consider, information relevant to the assignment of a Condition Rating to a dam.

('i') Enhanced Safety Program.

(1) An Enhanced Safety Program may consist of one or more of the following, at the request of the department, based on its discretion upon consideration of public safety and the specific characteristics of the dam and its location:

(i) an Inspection and Maintenance Plan, Emergency Action Plan, and Engineering Assessment Report, each of which is in compliance with this Part;

(ii) a regular schedule of Safety Inspections;

(iii) reservoir restrictions;

(iv) financial assurance associated with the cost of breach or removal of the dam; and/or

(v) other measures which the department determines are necessary to protect public safety.

(2) "Financial Assurance" means a dam owner establishes and maintains financial security that is payable to the department in an amount sufficient to pay for the breach or removal of the dam by the department, should such breach or removal be deemed necessary.

(i) The amount of the financial security is sufficient if it is adequate to fully cover the costs associated with a breach or removal of the dam, including the costs of: labor and materials for design and construction; investigations and surveys; construction plans; environmental mitigation associated with any of the actions taken; and any other appropriate cost as determined by the department.

(ii) The form of the financial security shall be one or more of the following: a surety bond guaranteeing performance; one or more irrevocable letters of credit, payable to or at the direction of the department; a trust fund established for the benefit of the department; a policy of insurance that provides the department with acceptable rights as a beneficiary thereof and that is issued by an insurance carrier whose operations are subject to regulation and examination by a state agency; one or more annuities; or one or more certificates of deposit; any other form which the department determines to be acceptable.

(j) A dam owner may contest the department's assignment of or change to a Condition Rating within 30 days of the date of the department's notice. The dam owner must send to the department's Dam Safety Section, a written request for review of the Condition Rating, and must accompany the request with documentation as to the particular deficiencies noted by the department, and specific engineering documentation in sufficient detail to support a different Condition Rating. The Director of the department's Division of Water, or duly authorized designee, will review the request and supporting documentation and issue a written decision either denying the request or changing the Condition Rating.

(k) The department may adopt the content of an alternative federal program of condition rating, provided the alternative rating program is consistent with the Condition Rating system in this Part.

§673.17 Orders of the Department

(a) Whenever in the judgment of the department it may be necessary to safeguard life or property or to protect natural resources, after hearing on due notice, the department may, in carrying out the provisions of ECL article 15 sections 0507 and 0511, issue an order that sets forth the findings of fact and conclusions there from, and directs any owner to:

(1) conduct studies, investigations and analyses in accordance with this Part necessary to evaluate the safety of the dam, including but not limited to visual inspections, measurements, foundation exploration and testing, materials testing, hydraulic and hydrologic analyses, structural stability analyses and seepage investigations; and

(2) either remove the dam or construct, reconstruct or repair the same within such reasonable time and in such manner as shall be specified in said order. It shall be the duty of every such owner to obey, observe and comply with such order and with the conditions therein prescribed. The administrative procedures within the provisions of Part 622 of this Title and Article 15 Title 9 shall be applicable to hearings brought under this Part.

(b) It shall be unlawful for any owner to fail, omit or neglect to comply with an order issued under section 673.17(a) of this Part within a reasonable time as designated by the department.

(c) Each violation of an order issued under this Part is a separate offense. In the case of continuing violations, each day's continuance is deemed a separate and distinct offense.

(d) Upon the violation of any such order or if the owner cannot be ascertained or found, the department or its duly appointed agent(s) may enter upon lands and waters for the purpose of either removing or constructing, reconstructing or repairing the dam and to take such other and further precautions which may be deemed necessary to safeguard life or property or protect the natural resources of the state against danger occasioned by the presence of the dam. In either removing or constructing, reconstructing or repairing the dam or other properties so affected the department shall make all efforts to not deviate from the method, manner and specifications contained in the order.

(e) The department shall certify the amount of the costs and expenses incurred by the department or any state department or agency during the course of any work undertaken pursuant to this section for the removal, repair, or reconstruction aforesaid in any way connected therewith to the county legislative body of the county or counties in which the said lands and waters are located. Upon the submission of costs by the department, it shall be the duty of such county legislative body of each county to add the amount so certified to the assessment rolls of such locality or localities as a charge against the real property upon which the dam is located, designated or described by the department as chargeable therewith, and to issue its warrant or warrants for the collection thereof. Thereupon it shall become the duty of such locality or localities through their proper officers to collect the amount so certified in the same manner as other taxes are collected in such locality or localities and when collected to pay the same to the department, who shall thereupon, pay the same into the State Treasury. Any amount so levied shall thereupon become and be a lien upon the real property affected thereby to the same extent as any tax levy becomes and is a lien thereon. The department may also assert any other rights of recovery as may exist by law for such costs and expenses incurred.

(f) The entire cost expended by the department to alleviate any unsafe conditions, as determined by the department, may be charged against a dam owner in accordance with ECL Article 15 section 0507 or 0511, unless the department approves other arrangements to repay the total or a portion of the total costs. The department may also assert any other rights of recovery as may exist by law for such costs and expenses incurred.

(g) Nothing in this part shall affect the right of any party to seek contribution from any other person responsible for such costs pursuant to any other statute or under common law.