Printer-friendlyRegulatory Impact Statement
Statutory authority: Part 673: Environmental Conservation Law, Article 1, Title 3, 3-0301 [2][aa] and [m]; Article15, 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]
Part 621: Environmental Conservation Law, §§ 3-0301[2][m], 3-0306[4], 8-0113[2], 15-1501, 15-1503, 15-1505, 17-0303, 19-0103, 70-0107, 70-0117[5], Article 70; State Administrative Procedure Act, § 301[3]
Legislative objectives: To explicitly require a safety program and describe how dam owners will prepare and implement the program, which includes inspection and emergency planning. To place focus on intermediate and high hazard dams which pose a greater potential risk to public safety, instead of on small, low hazard dams which pose negligible public safety risks.
Needs and benefits: The purpose of this regulatory proposal is to protect life, property and natural resources by ensuring that dam owners operate and maintain their dams in a safe condition. Protecting public safety will be achieved by focusing the department's resources on intermediate and high hazard dams through additional permitting requirements and by increasing a dam owner's safety program requirements commensurate with the dam's hazard classification. The 1999 amended statute and the proposed regulations provide relief from permit requirements for owners of small dams with dam projects involving construction, reconstruction, repair, breach, or removal of a small dam.
The proposed regulations will allow the department to have a more focused inspection program by prioritizing time in the field responding to potential problems identified in an engineering report, a complaint, or submittals by owners, including required notification of flow in the auxiliary ("emergency") spillway. The requirement that dam owners notify the department following change of ownership will allow the department to maintain an accurate, up-to-date inventory, allowing better communication with dam owners. The proposed regulations enhance the department's ability to conduct meaningful enforcement by providing greater opportunities to identify dam safety deficiencies in a timely manner, to identify dam owners not in compliance with program requirements through compliance tracking, and to take appropriate enforcement actions from a range of escalating options.
The proposed regulations include a requirement for owners of high hazard dams to demonstrate sufficient financial security for the life of the dam. This will 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, or in cases where the dam provides a necessary benefit to the public (flood protection, public drinking water supply, hydroelectric power generation, navigational necessity, or recreational necessity) to reimburse the department for repairs or reconstruction of the dam.
In developing the proposed regulations, 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
Costs:
The statute and proposed regulations require that owners of high hazard dams demonstrate financial security. The financial instruments acceptable to the department are described in the guidance document, "Financial Security Demonstration for High Hazard Dams" which will be available as a free down load from the department's website. The cost for obtaining financial security is dependent upon a dam owner's credit rating, liquidity of collateral, whether the dam owner can obtain a letter of credit and/or whether the dam owner is bondable. Surety bonds may be obtained for 1 to 15% of the reconstruction or removal amount. Simple trusts can be set up for as low as $1000, but annual administrative costs could range from $5,000 to $10,000. A letter of credit could cost 1 to 2% of the credit amount. A certificate of deposit can be issued for as low as $100, but requires a given sum to be set aside. The proposed regulations require that financial security be maintained for the life of the dam, and that the dam owner state that the amount of financial security is adequate in an annual certification statement submitted to the department. In certifying that the financial security amount is adequate, the dam owner may periodically incur an additional cost for an engineer or accountant to determine if the amount of financial security should be adjusted based upon inflation and changes in construction costs.
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. As a result, a small fraction of dam owners negotiating complex 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 cost to the department will occur in the dam safety section and the Division of Environmental Enforcement and to a lesser extent, regional staff. The dam safety section may conduct outreach and training, develop additional guidance documents, notifications, develop a compliance database to track receipt of required reports, modify the compliance and enforcement strategy, prepare case referrals to the attorneys for enforcement, and face an increase in the number of dam safety projects seeking permit approval. It is anticipated that the division of environmental enforcement will have an additional case load resulting from noncompliance with these regulations.
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 initially receive requests for determining ownership of land parcels containing a dam. There is a possibility that private landowners could abandon properties containing dams rather than comply with regulations or undertake costly repairs identified in inspections or assessments, and local governments would become the owners of these "orphan" dams.
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.
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. The 1999 statute provides that all dam owners must operate and maintain their dams in a safe condition, and the regulations require most dam owners to implement a program to safeguard life, property, or natural resources.
Paperwork: The proposed regulations require that the dam owner prepare and/or maintain numerous documents about the dam for the life of the dam, and owners of all dams exceeding the permitting size threshold transfer the documents to the new dam owner. Examples of these documents include original engineering designs and plans, reports on additional work, and inspection reports. Owners of low hazard dams above the permitting threshold are required to submit a hazard classification verification to the department every 10 years. Intermediate and high hazard dam owners would be required to submit an annual certification to the department, as well as periodic submissions of dam safety inspections and engineering assessments necessary to document proper operation and maintenance of the dam, and verify that the dam meets current safety criteria for both spillway capacity and stability.
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 engineering reports from federal entities.
The Phase II Stormwater program requires the construction of stormwater treatment and retention facilities. Some stormwater facilities, based on their particular design, will include dams that are required to meet permitting and/or general dam safety regulatory requirements.
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 owners permit system. Money received from the permit fees is sometimes used 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. The department therefore minimized requirements for owners of small dams. Part 673, Dam Safety Regulations is applicable to dams exceeding the permitting thresholds in Part 608, Use and Protection of Waters. The department determined that regulating a large group of small dam owners who are not currently in the department's dam inventory database was not practical, and that the benefits of these requirements would not outweigh the effort expended to identify all the small dam owners and monitor compliance for this activity.
Federal Standards: There are no applicable federal dam safety regulations. The department reviewed the documents listed in the Needs and Benefits section above, which are guidance documents published by FEMA, a federal agency, and ASDSO, the group of state officials administering the dam safety programs in their states.
Compliance Schedule: The estimated time necessary for dam owners to achieve compliance with the proposed regulations will vary. The proposed regulations have a phased approach for initial submittal of financial security, and submittal of the engineering inspections and assessments. The inspections and assessments are likely to identify dam safety design deficiencies, as well as maintenance deficiencies at many dams. It is not known how many dams will be identified as being deficient in meeting current dam safety criteria for stability and spillway capacity, or how many years it will take before all dams meet the criteria.
| 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 expect to demonstrate.
