STATE OF WEST VIRGINIA
FULL PERFORMANCE EVALUATION OF THE
DIVISION OF ENVIRONMENTAL PROTECTION
Dam Safety Program
Supplemental Report on Dam
In the previous report, the Legislative Auditor's Office recommended that the OWR consider taking more forceful measures under the law in dealing with unresponsive owner of deficient dams such as draining the dam reservoir, pursuing legal recourse to have owners correct deficiencies in dams, or performing the necessary remedial work themselves and seek reimbursement if possible from dam owners. However, two problems are inherent with the OWR complying with this recommendation. First, often the remedial work necessary to bring a dam into compliance with the Dam Safety and Control Act is an expensive venture. During the committee meeting, an OWR official estimated that the cost to bring a deficient dam into compliance with the Act approximately $500,000 per dam. Second, many dam owners often lack the necessary resources to perform the remedial work. This implies that the State would need to supply the necessary funds either in the form of a loan to dam owners or performing the work at state expense and seeking financial remuneration through legal action. Given the fact that the state may need to provide the necessary funding, then it becomes important to prioritize deficient dams to determine which dams are more likely to fail than others.
Agency personnel at the OWR analyzed each of the dams on the deficient list and prioritized them based on five factors:
The prioritized list of deficient dams is included in Appendix A. This
list is provided as a method to satisfy the initial request of the committee
and should be considered as preliminary. For certain dams, the information
for one or more than one of the above factors was not readily available.
Therefore, where information was lacking for a given factor, the OWR assigned
the factor a value of 2 (except for the factor of highway traffic which
assigned a value of 0). For a complete analysis to be done, additional
study and research will need to be conducted to determine what value should
Question 2: What is the difference between a dam that is determined to be "high hazard" and a dam that is determined to be "deficient"?
This question is in response to an article which was circulated at the meeting and was published in the Charleston Gazette on July 6, 2000. The article indicated that West Virginia currently has 248 "high hazard" dams. The article was based on information contained in a recent report issued by the Federal Emergency Management Agency (FEMA). The FEMA report shows that West Virginia has the 10th highest number of high hazard dams in the country, and the 3rd highest percentage (46%) of its dams that are high hazards. (1)
The term "high hazard" actually means "high hazard potential"
and is an industry specific term. This term refers to the hazard classification
assigned to a dam. According to CSR §47-34-2.23, the term hazard classification
a classification rating assigned to a structure based upon engineering evaluations and judgements for predicting the danger to human life, property, and environment should a failure of the structure occur.Dams can be classified as either high hazard, significant hazard, or low hazard. Each hazard classification is defined as follows:
•High hazard dams - are those dams located where failure may cause loss of human life or major damage to dwellings, commercial or industrial buildings, main railroads, important public utilities, or where a high risk highway may be affected or damaged. This classification must be used if failure may result in the loss of human life.
•Significant Hazard Dams - are those dams located where failure may cause minor damage to dwellings, commercial or industrial buildings, important public utilities, main railroads, or cause major damage to unoccupied buildings, or where a low risk highway may be affected or damaged. The potential for loss of human life resulting from failure of a significant hazard dam must be unlikely.
•Low Hazard Dams - are those dams located in rural or agricultural areas where failure may cause minor damage to nonresidential and normally unoccupied buildings, or rural or agricultural land. Failure of a Class 3 dam would cause only a loss of the dam itself and a loss of property use, such as use of related roads, with little additional damage to adjacent property. The potential for loss of human life resulting from failure of a dam must be unlikely.
Furthermore, according to the Association of State Dam Safety Officials (ASDSO), "the hazard potential classification of a dam does not reflect in any way on the current condition of the dam and its appurtenant structures (e.g. safety, structural integrity, flood routing capacity)."
Conversely, the term "deficient" deals entirely with the current condition of the dam. According to the OWR, a dam is considered to be deficient and is placed on the list of deficient dams by the OWR when the dam meets one of three criteria:
2.) The National Dam Inspection Program (NDIP) conducted during the late 70's and early 80's cited the dam as a high hazard potential, structure in need of additional investigation;
3.) Dam safety determined the dam to be deficient due to hydrological, hydraulic, or structural problems.
The previous report discusses a list of 42 deficient dams. Page 16 of the previous report indicates that there are 63 dams with outstanding violations. While all deficient dams except those owned by the state have outstanding violations, not all dams with outstanding violations are deficient. According to the OWR, the term "deficient" is a condition of a dam resulting from a design, construction, or maintenance problem that if left uncorrected could eventually lead to dam failure. The term violation refers to an action by a dam owner which may or may not lead to a deficiency if left uncorrected.
If a dam owner does not apply for a Certificate of Approval (COA) prior to beginning construction of the dam, then the owner has committed a violation. If the dam in question is built to improper standards, then the dam owner is guilty of a violation and the dam itself is deficient. However, if the dam owner designs and constructs the dam to the proper standards but fails to apply for a COA, or if the dam owner neglects the maintenance of a dam, then the owner is guilty of a violation.
Question 4: What are the fee structures for other states?
As was previously stated, many dam owners do not have the necessary funds to affect repairs on dams. According to the Dam Safety Control Act, the Dam Safety Fund can be used to pay for emergency remedial action. The Dam Safety Fund receives revenues from certificate application fees, annual registration fees, interest and surcharges, interest on investments, and any other money designated by the Division. However, many dam owners do not pay the annual registration fee. Currently, the OWR charges an application fee of $300. However, many dam owners have never applied for a Certificate and have therefore, not paid the application fee. For these reasons, the amount of money currently in the Dam Safety Fund is insufficient to affect repairs to even a single deficient dam given that the cost of repairs would average $500,000. On July 1, 1993, the Dam Safety Fund had a balance of $856.22. Between July 1, 1993 and July 1, 1998, the OWR collected a total of nearly $21,500 in application and annual registration fees, and a total of $1,500 in interest was earned. On July 1, 1998, the Dam Safety Fund had a balance of $17,096.92.
Another factor which influences the amount of funds available in the Dam Safety Fund is the application fee and the annual renewal fee rates. West Virginia uses a flat fee for both the application fee and the annual registration fee. According to OWR rules, the application fee is set at $300 and the annual registration fee ranges from $50 to $100 depending on the hazard class of the dam. This fee is not standard among states. Many states charge an application fee but no annual registration fee. Some states charge no fees at all. However, for those states that do charge a fee, there are four fee structures that seem more prevalent than others:
•A flat application fee;
•An application fee representing a percentage of the construction costs;
•An application fee representing a flat fee plus an additional amount per foot in height; or,
•An application fee representing a flat fee plus an additional amount per water volume stored.
As was previously mentioned, West Virginia uses the flat fee method. One example of a state which uses a percentage of construction costs is North Carolina. For example, in the previous report, the estimate received by DNR to bring the Teter Creek Dam into compliance with the Act, was $1,457,422. This action would require the filing of an application for modification. In West Virginia, this would be accompanied by an application fee of $300. In North Carolina, the application fee would be $200, plus a percentage of the construction costs. This means that the total application fee in North Carolina would be $7,309.11.
California and Pennsylvania are the only two states that have a higher percentage of their dams classified as high hazard than West Virginia. California charges owners an application fee that is based on a percentage of the dam's construction costs, and Pennsylvania charges owners an application fee of $3,000. California charges an annual fee of $150 plus $16 per foot in height of the dam. Pennsylvania does not charge an annual fee.