N.Y. Comp. Codes R. & Regs. tit. 6 § 673.16

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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:

(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.

(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;

(i) 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.

(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.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 673.16