The Division of Safety of Dams (DSOD), housed within the Department of Water Resources, regulates over 1,240 dams to prevent failure, safeguard life, and protect property. While most dam owners meet regulatory requirements on time, there are dam owners that are not compliant with minimum dam safety requirements. In the wake of the Oroville spillway crisis, the legislature passed Senate Bill 92 (SB 92) in June of 2017, which bolstered the Division’s enforcement authority for dam safety violations to include property liens, punitive reservoir restrictions, and assessment of civil penalties of up to $1,000 per day for failure to comply.
One of the statutory responsibilities of the California Water Commission is to approve Department of Water Resources’ rules and regulations not pertaining to the management and administration of the Department. At the April meeting of the California Water Commission, commissioners were briefed on the Divison of Safety of Dam’s proposed dam safety regulations.
Division Chief Sharon Tapia provided an overview of the California dam safety program and proposed enforcement regulations. This agenda item was an informational item and no action was taken. The Department will return to the Commission for approval of these regulations later this year, once the requirements of the Administrative Procedure Act have been met.
The California Dam Safety Program
The California Dam Safety Program was created in 1929 initially to regulate on-stream dams following the catastrophic failure of the St. Francis Dam on March 12, 1928, in which 400 people lost their lives. Following the 1963 failure of the Baldwin Hills Dam, off-stream dams were then brought under state jurisdiction in 1965.
The Department’s statutory authority is given under Division Three, Part One of the California Water Code. The regulations can be found under Title 23, Division Two, Chapter One of the California Code of Regulations.
The program’s mission is to reduce life loss and property damage from an uncontrolled release of water resulting from the failure of a dam or one of its appurtenant structures, such as an outlet, a spillway, or a saddle dam.
Some examples of the types of dams that the Division regulates are shown on the slide. Dams are subject to regulation if they are 25 feet or more in height and store 50 acre-feet or more of water.
There are 1240 dams under state jurisdiction, ranging from as small as six feet high to the largest earth dam in the nation, Oroville dam, which stands 770 feet tall and stores up to three and a half million acre-feet of water. There are 225 dams over 100 feet high or taller under state jurisdiction with an average height of 70 feet. The Division does not regulate dams wholly under the federal government’s control, such as Shasta and Folsom dams.
Many dams in California are located in densely populated areas, ranging from the Bay Area down to Southern California, as shown on the map. The map also shows some of the major fault systems in California. These dams are owned by over 600 owners, ranging from private citizens to the state of California.
“Each type of owner has varying technical capabilities and financial resources, but ultimately, all dam owners are responsible for the safe operation of their dams,” said Ms. Tapia.
Dams are classified by their downstream hazard; this classification is solely based on potential downstream impacts and not on the actual condition of the dam itself. The classification considers the downstream consequences if the dam were to fail with a full reservoir under a sunny day condition.
FEMA categorizes hazard potential into three categories of increasing severity: low, significant, and high. The failure of a significant hazard dam would be expected to cause property damage to others but no life loss. The failure of a low hazard dam would only have property damage to the owner’s property and no life loss.
SB 92 added a fourth category of ‘extremely high,’ which means that a potential dam failure would result in considerable life loss and inundate an area with a population of 1000 people or more.
“Over half of our inventory, over 650 dams in California are classified as either extremely high or high hazard potential, meaning that failure of the dam would likely cause a loss of life. We did this in California because of where our dams are located and the amount of storage behind the dams,” said Ms. Tapia. “It helps us focus on those dams that have the highest hazard potential.”
The California Dam Safety Program has six primary responsibilities:
Inspection and surveillance monitoring: The Division inspects dams annually. The law requires all dams to be inspected every fiscal year except for low hazard dams, which are inspected every two fiscal years.
Design reviews: The Division performs independent design reviews of plans and specifications for proposed new dams and the alteration repair, enlargement, and removal of existing dams.
Construction supervision: The Division verifies the dams are being built according to approved plans and specifications. Field engineers conduct construction inspections throughout the project and at key milestones.
Reevaluations and risk studies: The Division performs comprehensive revaluations of dams and risk studies of existing dams, focusing on dams with the highest hazard potential and risk.
Inundation maps: The Division is responsible for reviewing and approving inundation maps submitted by dam owners for all dams, except low hazard dams, which are exempt by law. The maps are required for the dams as well as for critical appurtenant structures, such as a spillway or a saddle dam that is 25 feet or higher and holds back 5000 acre-feet or more of the reservoir.
Emergency response: The Division responds to dam-related emergency events ranging from an incident at a single dam to widespread emergencies, such as what would happen during a major earthquake event with many dams impacted across the state.
Recent dam safety laws and regulations
Senate Bill 92 (SB 92) became law on June 27, 2017, following the Oroville spillway incident in February of that year. The legislation has four main components:
- Updating the hazard potential classification of dams
- Requirements for inundation maps and emergency action plans for all dams except low hazard.
- Amending of annual fees that support the program
- Bolstering enforcement to ensure dam owners comply with the existing laws, as well as the new requirements in SB 92
All components except updating the hazard potential classification require the promulgation of regulations.
Since the passage of SB 92, the Division has completed two sets of regulations, which were brought to the Commission for approval. The first set was for the technical requirements for inundation maps which were approved in October of 2018. The second set was for the methodology for determining the annual schedule of fees, which were approved in March of 2019.
“During the rulemaking process for these two sets, dam owners and their consultants were heavily engaged in this process because it had a lot of effect on them in terms of the due dates of when the maps had to be submitted, and every dam owner pays an annual fee,” said Ms. Tapia. “It was a really good process that we went through with the engagement with our dam owners and their consultants because it ended with our inundation map regulations being less prescriptive for the maps and a more equitable distribution of fees among the regulated community.”
This will be the third and last set of regulations in response to SB 92. The regulations must be in place before the Division can start initiating any formal administrative enforcement actions.
“Prior to SB 92, the Division’s enforcement authority for dam safety really only consisted of directives and orders, which we would do by letter to dam owners,” said Ms. Tapia. “We could impose reservoir restrictions for dam safety measures to reduce risk as an interim risk reduction measure. In the statute, we are able to do criminal penalties although those were rarely if ever, imposed.”
“Now, under the new authority, we are able to administer civil monetary penalties, property liens, and punitive reservoir restrictions, and also to seek reimbursement for the preparation of emergency plans. It’s in the water code that if an owner fails to comply with the inundation map and emergency action plan requirements, the Department has the ability to do that for them and to recover those costs.”
New laws for emergency preparedness
Ms. Tapia then went into detail on the new laws for emergency preparedness because it’s one of the components she anticipates having to use the new enforcement regulations on.
Under the new laws, dam owners are responsible for emergency preparedness planning for their dam and their critical appurtenant structures, such as spillways and saddle dams. The due dates for emergency action plans are set in statute by a dam’s hazard classification. The inundation maps and plans must be updated every ten years or sooner if any significant modification is made to the dam or its appurtenant structures, or if there’s a significant change in the downstream development that involves people or property.
The responsibility for emergency preparedness is shared between the Division and Cal OES. “This is unique across the nation,” said Ms. Tapia. “We’re the only state that has it set up this way. The Division reviews and approves a dam owner’s inundation map, and Cal OES reviews and approves the dam owner’s emergency action plan that actually contains the map approved by DSOD. So although we have the shared responsibility for emergency planning, the enforcement authority for the EAP compliance has been granted to the Division under our dam safety program and statute.”
Water code section 6161 sets the due dates for emergency action plans based on the hazard classification. Ms. Tapia noted that this is the EAP submittal to Cal OES, which means the inundation map would have had to already been approved by the Division before they could submit their plan to Cal OES.
She acknowledged that the due dates occurred fairly quickly after SB 92 was passed. In June of 2017, the legislation was passed with the first set of plans for extremely high hazard dams due just six months later, in January of 2018. A year later, the high hazard dams were due. As of January 1 of 2021, the remaining set for significant hazard dams should have been submitted. She noted that low hazard dams are exempt.
Enforcement actions and framework
There are two components that the enforcement actions will apply:
Emergency preparedness planning: With dual approval authority for emergency preparedness planning, Cal OES will have a role in enforcement cases with the Division for any dams related to emergency planning. Examples could include an owner’s failure to submit their plan or their inundation map, the failure to make any corrections required to complete those documents and have them approved, or they may just ignore their obligations altogether.
Dam safety violations: With the new regulations, the Division would have enforcement authority over all the six components of the program. The type of enforcement actions might be the failure to make any repairs required, which could be maintenance or upgrades needed to meet current standards.
“We have some dam owners that fail to abate the illegal status of their dams, so that means their dam was built out of compliance,” said Ms. Tapia. “We also have owners who may not comply with the orders and directives that we give them. And we do have a small percentage of dam owners who do fail to pay their annual fees.”
The Division strives to attain compliance without taking formal actions as the goal is to have safe dams, so the more they can work with the owners to comply, they are serving public safety. Ms. Tapia said this approach has been pretty successful in most cases, and they will continue to recognize the challenges faced by dam owners and work with them extensively to meet the requirements.
However, in some cases, it will be necessary to initiate more formal administrative enforcement actions. The framework will be progressive, beginning with a notice of violation, followed by an issuance of a civil administrative complaint and an administrative hearing, if needed.
“The goal is to get compliance early in this process and not get to the point of an administrative hearing,” said Ms. Tapia, noting that the framework is consistent with other administrative enforcement regulatory schemes, including those used by the California Department of Fish and Wildlife, Department of Toxic Substances Control, and the State Water Resources Control Board.
There’ll be two options for the administrative hearing. DWR will handle most cases with the hearing processes as per the regulations; the Division also has the option to use the Office of Administrative Hearings on more complex cases.
“The methodologies used to determine penalties are meant to promote and facilitate a fair and consistent assessment of penalties and align the violation to the actual or potential harm,” said Ms. Tapia. “We want to deter owners from committing additional violations as well as the regulated community. And we want to eliminate a non-compliance economic advantage, meaning we don’t want people to think that it’s better to be fined than do the work.”
Determination of the amount of penalty will be a multi-step process, beginning with a maximum statutory fine of $1,000 per day per violation in the statute that will be adjusted based on the harm and deviation caused by the violation. They also have built-in multiple adjustment factors that will be evaluated case by case for each enforcement action and will consider the owner’s cooperation, compliance history, impacts to disadvantaged communities, and their ability to pay. She noted that the penalties cannot exceed the maximum statutory maximum of $1,000 per day per violation.
Rulemaking schedule
Ms. Tapia said they anticipate the most interested parties in the rulemaking process will be the dam owners as they will be on the receiving end of the regulations, and there could also be interest from emergency management agencies, elected officials with districts in inundation zones, and private consultants who often represent the dam owner. The public could have an interest in this as well.
The Division plans to submit the regulation package to the Office of Administrative Law in May and publish the notice of regulatory action to begin the 45 day public comment period. In June, the Division plans to hold a one-day public meeting for all oral comments. The Division anticipates returning in October to seek approval of the regulations with the goal of having them adopted in January of 2022.
