California’s Proposed Enforcement Program for Non-Compliant Dam Owners Is Evidence of State, Federal Focus on Infrastructure, Public Safety

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California’s Proposed Enforcement Program for Non-Compliant Dam Owners Is Evidence of State, Federal Focus on Infrastructure, Public Safety

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California’s Proposed Enforcement Program for Non-Compliant Dam Owners Is Evidence of State, Federal Focus on Infrastructure, Public Safety

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Dam safety is increasingly finding itself within the lens of the federal and state governments. The latest focus is in California.

The proposed program is ultimately intended to improve public safety across the state.

For dam owners in California, the program presents a fair and transparent process in the resolution of dam safety violations. Dams that are part of non-federal hydroelectric projects also will continue to be regulated by the Federal Energy Regulatory Commission (FERC). FERC also is revising its dam safety program to promote continued safe operation, maintenance, and repair at projects under its jurisdiction to ensure the protection of life, health, and property in surrounding communities.

The Deep Dive into the Proposed Enforcement Program in California

DSOD’s proposed process starts with a Request for Information, including an emergency action plan (EAP), and other documentation related to maintenance, operations, staffing, engineering and geologic investigations and watershed. If the department identifies a deficiency, it will notify the dam owner with needed actions to remedy the deficiency and punishment for non-compliance.

Failure to comply could lead to issuance of an Administrative Complaint. This complaint will identify possible imposed civil penalties, reservoir restrictions, property liens, revocation of a certificate of approval, and/or reimbursement of the costs to prepare an EAP and inundation maps.

When determining the amount of the proposed and assessed administrative civil penalty, the DSOD will consider:

  • actual or potential harm to public safety
  • the extent of deviation from applicable dam safety requirements
  • amount of time over which the violation occurs
  • whether there is a history of prior violations
  • corrective action taken and cooperation by the dam owner
  • the dam owner’s culpability and ability to pay the penalty
  • impacts to disadvantaged communities
  • the prophylactic effect that the imposition of the penalty would have on both the dam owner and the regulated community as a whole

A dam owner may contest an administrative complaint by submitting a request for a hearing with the division.

The proposed rule states penalties should be appropriate to the seriousness of the violation with regard to harm or potential harm to public safety, deter similar violations by the committing owner and the potential of other dam owners, and eliminate economic benefit of non-compliance.

Why It Matters

DSOD says it is hopeful the proposed regulation will increase the level of compliance with its Dam Safety Program across the state of California, thus improving public safety. By establishing an administrative enforcement process, the DSOD is providing dam owners and the public with a fair and transparent process in the resolution of dam safety violations.

In addition to California, other states as well as the federal government are increasingly recognizing the need to address infrastructure and the costs dam owners face in their dam safety programs. There is now greater focus on instituting dam safety policies and finding mechanisms to help owners address dam safety before issues arise.

For example, in the state of Michigan, following two dam failures that took place in May of 2020, Governor Gretchen Whitmer directed the state’s Department of Environment, Great Lakes, and Energy (EGLE) to conduct an investigation of the specific circumstances surrounding the failures and review the regulatory, financial, and programmatic context in which it oversees the safety of the state’s dams.  Earlier in 2021, the department released the Dam Safety Task Force’s report with 86 recommendations covering areas such as legislation and regulation, program structure and funding, dam owner accountability, education, and enforcement.

On the Federal front, on July 16, 2021, both California Senators introduced the Twenty-First Century Dams Act. The legislation introduced by Senators Dianne Feinstein (D-Calif.) and Alex Padilla (D-Calif.), among others, would invest $21.1 billion to enhance the safety, grid resilience benefits, and power generating capacity of dams across the United States, including in California.

In late June 2021, U.S. Senators Maria Cantwell (D-WA) and Lisa Murkowski (R-AK) introduced Senate Bill 2306, the Maintaining and Enhancing Hydroelectric and River Restoration Act of 2021, a bipartisan bill featuring a 30 percent federal investment tax credit, with a direct pay option, that would spur investments in dam safety, environmental improvements, and grid flexibility. And, in early July, Reps. Young (R-AK) and Kuster (D-NH) introduced the House companion to S. 2306.

The National Hydropower Association (NHA), industry, and several major environmental groups worked together to ask the federal government for funding for safety improvements, among others.

What’s Next?

The National Hydropower Association worked with its member organizations to compile and submit comments in response to the California DSOD proposed enforcement program.

The association is continuing to work with the federal government to ensure the dam safety legislation before Congress becomes law.