Part 673: Dam Safety Regulations

§673.1 Definitions

(a) Appurtenant works means structures or materials built or maintained in connection with dams. They may include, but are not limited to, such structures as spillways, low level outlet works and conduits.

(b) Commissioner means the Commissioner of Environmental Conservation or his duly authorized representative.

(c) Dam means any artificial barrier, together with its appurtenant works, constructed for the purpose of impounding water.

(d) Dam break analysis is an analytical method for predicting downstream flooding from a dam failure.

(e) Department means the Department of Environmental Conservation.

(f) Height is the vertical dimension from the downstream toe of the dam at its lowest point to the top of the dam.

(g) Maximum impoundment capacity is the volume of water that is impounded when the water level is at the top of the dam.

(h) Owner means any person (including any individual, firm, copartnership, association or corporation other than the State and a "public corporation") or local public corporation (including municipal corporations, district corporations, public benefit corporations and all public authorities, except the Power Authority of the State of New York), erecting, reconstructing, repairing, maintaining or using a dam.

§673.2 Applicability

A dam is subject to these regulations if any of the following provisions apply:

(a) its height is equal to or greater than 10 feet;

(b) its maximum impoundment capacity is equal to or greater than 1,000,000 gallons (3.07 acre feet);

(d) it presents a threat to public health, safety, property or natural resources.

§673.3 Hazard Classification

(a) The department may assign a hazard classification to dams according to the potential impacts of a dam failure.

(1) Class A dams are located in areas where failure will damage nothing more than isolated buildings, undeveloped lands, or town or county roads and/or will cause no significant economic loss or serious environmental damage.

(2) Class B dams are located in areas where failure may damage isolated homes, main highways, minor railroads, interrupt the use of relatively important public utilities and/or will cause significant economic loss or serious environmental damage.

(3) Class C dams are located in areas where failure may cause loss of human life, serious damage to homes, industrial or commercial buildings, important public utilities, main highways or railroads and/or will cause extensive economic loss.

(b) The factors used to assess a hazard classification are:

(1) the height of the dam and the maximum impoundment capacity;

(2) the potential for loss of human life;

(3) the physical characteristics of the dam site and the location of developed areas, occupied buildings or other land improvement in the area which would be affected by a failure of the dam;

(4) the economic loss which could result from failure of the dam;

(5) the environmental damage which could result from a failure of the dam; and

(6) other site-specific characteristics which the department determines are necessary to consider.

(c) A list of assigned hazard classifications will be maintained by the department's dam safety section in the Albany office. A list will also be available at each regional office for the dams within that region.

§673.4 Condition Rating

(a) Dams investigated by the department will be assigned one of the following ratings:

(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, including movement of the structure or major cracking.

(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 seriously inadequate spillway capacity, minor seepage problems or structural stability inadequacies.

(3) "Deficiently maintained" - dams with minor physical or operational problems which do not require further engineering analysis. Increased maintenance efforts are required to improve the condition of the dam.

(4) "No deficiencies noted" - inspection and/or analyses did not reveal any problem.

(b) Dams with several deficiencies which could be rated in more than one category will be assigned the most severe rating category applicable.

§673.5 Investigation Procedures

(a) The department may conduct investigations of dams and assign a condition rating.

(1) Inspections of any dam subject to these regulations may be conducted by the department or its duly appointed agents at all times in or upon any property, public or private.

(2) The department may request any information, available to the owner, which is reasonably necessary for the department's investigation of the dam and the assessment of its safety. Failure of an owner to provide the information requested may result in departmental use of legal remedies to secure the information.

(b)

(1) If the dam is classified as unsafe or unsound, the department will notify the owner in writing, by certified mail, of the condition rating of the dam and the results of any investigation. The notice will include the hazard classification assigned to the dam and the reasons for the classification. The notice will contain such recommended action as the department deems appropriate, including the timely correction of all deficiencies with due consideration of potential impacts to flora and fauna, freshwater wetlands, downstream water quality, recreational and commercial uses and other relevant areas of environmental concern. The notice will advise the owner that failure to respond within the time specified in the notice may result in the department's initiation of a formal proceeding to compel the owner to correct the deficiencies.

(2) An owner who does not agree with the hazard classification assigned to the dam may request a review of the hazard classification. In order for the hazard classification to be changed, the owner must provide documentation, including results of a dam break analysis and inundation mapping which support changing the hazard classification. The department will review the owner's request and the information provided and will issue a written decision either denying the request or changing the classification within 60 days.

(c) Nothing in this Part, or any notice or recommendation issued pursuant to this Part, relieves any dam owner of his/her/its obligation to obtain necessary permits under Part 608 of this Title or any other requirement of law, including but not limited to the Freshwater Wetlands Act, the Fish and Wildlife Law and the State Environmental Quality Review Act.

§673.6 Hearings

(a) The provisions of Part 622 of this Title will govern hearings brought under this Part. Nothing in this Part precludes the commissioner from issuing a summary abatement order pursuant to ECL, section 71-0301, and Part 620 of this Title, 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, and it therefore appears to be prejudicial to the interests of the people of the State to delay action until an opportunity for a hearing can be provided.

(b) The department may serve a hearing notice on the owner at any time after an investigation. The hearing notice may be served in lieu of the notice required by section 673.5(b) of this Part, and whether or not a request has been made to review a hazard classification. The hearing notice shall contain the hazard classification and the information required by section 673.5(b) of this Part and by Part 622 of this Title. The hearing notice shall be provided in accordance with ECL, section 15-0903(2).

(c) After a hearing on due notice, pursuant to ECL, section 15-0507, title 9 of article 15 of the ECL and Part 622 of this Title, the commissioner may issue and serve an order, setting forth findings of fact and conclusions therefrom, and directing any person or local public corporation erecting, reconstructing, repairing, maintaining or using any dam either to remove the dam or to erect, reconstruct or repair the same within such reasonable time and in such manner as shall be specified in the order. The order may also:

(1) establish deadlines for remediation;

(2) direct the owner to breach the dam;

(3) direct the owner to prepare and submit a remedial plan and applications for appropriate department permits for approval within the time stated in the order;

(4) direct the owner to prepare, in such scope and content as the department may prescribe, an emergency action plan to be taken to protect the public safety in the event of a failure of the structure; or

(5) any combination of the foregoing; or

(6) dismiss the notice and complaint.

§673.7 Enforcement

The failure of any owner of a dam to comply with the terms and conditions of an order issued pursuant to the authority of ECL, section 15-0507 or 15- 0511, and this Part is unlawful. Upon the violation of any such order, in addition to the referral of the matter for civil or criminal prosecution by the Attorney General, the department may, at its option, enter upon the lands and waters upon which the dam is situated for the purpose of executing the order. The cost will be charged against the owner or operator of the dam in accordance with ECL, section 15-0507 or 15-0511, unless other arrangements are made to repay costs expended to alleviate unsafe conditions. Also, pursuant to ECL, sections 71-1109 and 71-1111, any owner of a dam who violates any such order may be required to pay a civil penalty of up to $500 for each such violation; and, in the case of a continuing violation, up to $500 for each day in which the violation continues.