Revised Regulatory 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]
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.
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 6NYCRR 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.
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.
6NYCRR Part 621, Uniform Procedures, also is modified for consistent use of terms and to narrow the minor project category for dam permits.
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.
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.
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.
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.
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.
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.
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.
