Title of Regulation: 4VAC50-20. Impounding Structure Regulations (amending 4VAC50-20-20).

Statutory Authority: §10.1-605 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: April 14, 2021.

Effective Date: May 1, 2021.

Agency Contact: Lisa McGee, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone (804) 786-4378, FAX (804) 786-6141, or email lisa.mcgee@dcr.virginia.gov.

Basis: The Virginia Dam Safety Act (§ 10.1-604 et seq. of the Code of Virginia) ensures public safety through the proper and safe design, construction, operation, and maintenance of impounding structures in the Commonwealth. This is accomplished through the effective administration of the Virginia Dam Safety Program (program). Authority for the program rests with the Virginia Soil and Water Conservation Board (board), and it is administered on behalf of the board by the Department of Conservation and Recreation's Division of Dam Safety and Floodplain Management. The program focuses on enhancing public safety through bringing all impounding structures of regulated size under Regular Operation and Maintenance Certificates. Pursuant to § 10.1-605 of the Code of Virginia the board is directed to promulgate regulations for impounding structures. Further, the board reserves the sole right to promulgate regulations pursuant to § 10.1-605.1 of the Code of Virginia.

Purpose: This regulatory change will require dam owners to ensure that all information that is required to be submitted under this regulation to be submitted through the Dam Safety Inventory System (DSIS). Utilizing DSIS is the most efficient, cost-effective, and thorough method for the submission of the required information. While the initial entries into DSIS may require time, there should be less time required over time to update and revise information to reflect inspections and current dam conditions. Having the required information in DSIS will dramatically increase the department's ability to effectively and accurately provide information to emergency managers or in the case of an imminent dam failure to take actions to protect public safety.

Requiring the dam owner to ensure that all information is provided in DSIS will enable the regional engineers to focus on completing comprehensive reviews of the information submitted by the dam owner to ensure statutory and regulatory requirements are met; to ensure engineering analysis were completed using accepted best engineering practices; and to provide opportunity for the regional engineers to be more effective resources for dam owners.

Additionally, the regulatory change will remove a conflict between the regional engineer's regulatory review of information and the need for information to be entered into DSIS. Currently, the regional engineers are entering data into DSIS in order to assist dam owners and to ensure the information is available if needed. The regional engineers are entering data, reviewing the data entered by them, and then approving the data. As the regulator, the regional engineers should only be approving the information entered after careful review of the information to ensure it meets professional standards.

Rationale for Using Fast-Track Rulemaking Process: As many dam owners currently utilize DSIS to submit the required information to the department this rulemaking is expected to be noncontroversial. The regulatory amendment will ensure consistency in the application of DSIS across the Commonwealth.

Substance: This regulatory action revises the impounding structure regulations to require a dam owner to ensure that all information required to be submitted by the regulations is provided to the department via the Dam Safety Inventory System (DSIS), unless prior approval for an alternative method of submission is granted by the department. Many dam owners currently utilize DSIS to submit the required information to the department; this regulatory amendment will allow for a more streamlined and consistent submittal and reporting process through DSIS.

Issues: This regulatory action will increase public safety. This regulatory action will ensure the most accurate and comprehensive data is entered into DSIS, dramatically increasing the department's ability to effectively and accurately provide information to emergency managers or in the case of an imminent dam failure to take actions to protect public safety. In addition to emergency managers, the public will be able to make more accurate determinations about whether they live, work, or drive through a dam break inundation zone. Increasing public awareness of dam break inundation zones and the locations of those zones will be a benefit to having the data in DSIS.

There are no disadvantages to the public with this regulatory change.

The regional engineers are responsible for approximately 420 dams each. This existing workload limits the amount of outreach and assistance the regional engineers are able to provide to dam owners. One of the benefits to this regulatory change is the ability for the regional engineers to be a more effective resource for dam owners. Having additional time to discuss potential funding options for needed repairs, to discuss engineering requirements or expectations, or to complete site visits all are potential educational outreach opportunities that would benefit the regulated community and the Dam Safety Program.

For dam owners, whether they are state agencies, soil and water conservation districts, local governments, or private entities, the primary disadvantage to this regulatory action is the initial time and financial impacts. Currently, there is a cost in time to dam owners and their engineers to fill out paper forms required by the regulations. This current cost will offset a portion of the costs associated with DSIS entry. After the initial impacts, there should be significantly less time required over time to update and revise information to reflect inspections and current dam conditions.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Soil and Water Conservation Board (Board) proposes to require that all information required to be submitted under this regulation be provided to the Department of Conservation and Recreation (DCR) via the electronic Dam Safety System (DSIS), unless prior approval for an alternative method of submission is granted by DCR.

Background. DCR defines DSIS as an electronic method of accessing information about dams in Virginia. It also allows dam owners and their professional engineers to submit required documents¹ and information regarding their dam to the department. Before DSIS was first implemented in 2016, all files were in paper format and were located at different sites around the Commonwealth.²

According to DCR, only 526 of the 2,135 dams in the Commonwealth (25%) currently have a registered participant who can enter and submit data into DSIS. As a result, the majority of dam owners still submit required documents via paper forms.

Estimated Benefits and Costs. Having the relevant dam information available through DSIS can greatly aid DCR in accessing the information quickly when it is needed. During weather related emergencies, such as hurricanes or prolonged storms, or in case of a dam failure, the department is utilized as a resource by emergency management officials. According to DCR, having the information in the DSIS dramatically increases the departments ability to effectively and accurately provide information to emergency managers, or in the case of an imminent dam failure to take actions to protect public safety.

There is a cost in time to dam owners and their engineers to fill out paper forms. The initial data entry for first time users of DSIS may require more time compared to filling out paper forms, but DCR believes that there should be significantly less time required to update and revise information to reflect inspections and current dam conditions. DCR believes that once users learn to navigate DSIS, which department staff would help with, no additional time would be required for DSIS entry versus filling out paper forms.

When the dam information is submitted outside of the DSIS system, DCR regional engineers must spend time inputting the data, which impinges on their time conducting reviews of the information provided by the owner or the owner's engineer. The proposal to require that the dam owner use DSIS to submit information would enable the DCR regional engineers to use more of their time on analysis to protect public safety. Additionally, more time could be spent discussing with the owner potential funding options for needed repairs as well as engineering requirements or expectations.

Businesses and Other Entities Affected. The proposed amendments affect the owners of the 2,135 dams in the Commonwealth subject to this regulation.³ State agencies, soil and water conservation districts, local governments, public utilities, and private entities own or maintain the dams.⁴ Some dam owners may employ engineering firms to help provide the required information. Such firms would potentially be affected as well.

Since dams owners have had the opportunity to use DSIS since 2016, and only 25% of dams currently have a registered participant who can enter and submit data into DSIS, it appears that many dam owners would prefer to continue to use paper forms. Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. While the benefits of enabling the DCR regional engineers to use more of their time on analysis to protect public safety may be large, there would be some indefinite cost to dam owners who would prefer to continue submitting paper forms.

Small Businesses⁵ Affected:

Types and Estimated Number of Small Businesses Affected. The proposal would affect small businesses that own dams and small engineering firms that help dam owners provide information required by the regulation. Data are not available concerning the number of such small businesses.

Costs and Other Effects. The proposal would likely require some small businesses that own dams to initially have more staff time spent in reporting information or pay for more time of outside engineers to report such information.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities⁶ Affected.⁷ The proposal would particularly affect localities that have dams. Local governments that own dams and are not already inputting the required information through DSIS would likely require some additional staff time to input information. Data are not available concerning the number of such localities.

Projected Impact on Employment. The proposal does not appear likely to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposal would likely require some owners of private property that includes a dam to initially spend more time in reporting information, or pay for more time of outside engineers to report such information. The proposal does not substantively affect real estate development costs.

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¹There are 6 types of regulatory documents that dam owners are required to submit to DCR: record reports, dam break inundation zone studies and maps, emergency action plans, inspection reports, permits, and applications.

²Source: September 23, 2020 Virginia Soil and Water Conservation Board meeting notes. https://townhall.virginia.gov/L/GetFile.cfm?File=Meeting\116\31245\Minutes_DCR_31245_v1.pdf

³Source: DCR

⁴Ibid

⁵Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million.

⁶Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷§ 2.2-4007.04 defines particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department for Conservation and Recreation generally concurs with the economic impact analysis performed by the Virginia Department of Planning and Budget.

Summary:

The amendment requires a dam owner to ensure that all information required to be submitted by the regulations is provided to the department via the Dam Safety Inventory System, unless prior approval for an alternative method of submission is granted by the department.

4VAC50-20-20. General provisions.

A. This chapter provides for the proper and safe design, construction, operation and maintenance of impounding structures to protect public safety. This chapter shall not be construed or interpreted to relieve the owner or operator of any impoundment or impounding structure of any legal duties, obligations or liabilities incident to ownership, design, construction, operation or maintenance.

B. Approval by the board of proposals for an impounding structure shall in no manner be construed or interpreted as approval to capture or store waters. For information concerning approval to capture or store waters, see Chapter 8 (§ 62.1-107) of Title 62.1 of the Code of Virginia, and other provisions of law as may be applicable.

C. In promulgating this chapter, the board recognizes that no impounding structure can ever be completely "fail-safe," because of incomplete understanding of or uncertainties associated with natural (earthquakes and floods) and manmade (sabotage) destructive forces; with material behavior and response to those forces; and with quality control during construction.

D. All engineering analyses required by this chapter, including but not limited to, plans, specifications, hydrology, hydraulics and inspections shall be conducted or overseen by and bear the seal of a professional engineer licensed to practice in Virginia.

E. Design, inspection and maintenance of impounding structures shall be conducted utilizing competent, experienced, engineering judgment that takes into consideration factors including but not limited to local topography and meteorological conditions.

F. The forms noted in this chapter are available from the department at the department's website. The owner shall ensure all information required to be submitted under this chapter be provided to the department via the electronic Dam Safety System (DSIS), unless prior approval for an alternative method of submission is granted by the department.