Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments
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.
Compliance Requirements: The proposed regulations are the same for dams owned by small businesses or local governments; there are no special exemptions or allowances.
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.
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.
Economic and Technical 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.
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.
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.
