adopted amendments to part 673 · 3; article 3 sections 0301[2][aa] and [m]; article 15 title 5;...
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Home » Regulations and Enforcement » Proposed Regulations » Water Proposed & Recently Adopted Regulations » Adopted Amendments to Part 673
Adopted Amendments to Part 673 Express Terms
6 NYCRR Part 673, Dam Safety Regulations Effective: August 19, 2009
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.
Part 673 is repealed and a new Part 673 is adopted to read as follows:
Sec.
673.1 Purpose; applicability; severability
673.2 Definitions
673.3 General provisions
673.4 Permit requirements for dams
673.5 Hazard classifications
673.6 Inspection, operation and maintenance
673.7 Emergency action
673.8 Annual certification
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673.9 Notification of auxiliary spillway flow
673.10 Recordkeeping and response to request for records
673.11 Notices of property transfer
673.12 Safety inspections
673.13 Engineering assessments
673.14 Field Inspection of a dam by the department
673.15 Investigation of a dam by the department or owner
673.16 Condition ratings
673.17 Orders of the department
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.
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(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
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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.
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(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
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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
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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
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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.
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(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;
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(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.
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(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
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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
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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,
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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.
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(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.
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(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
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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:
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(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.
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(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:
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(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.
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(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.
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(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:
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(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
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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.
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