Private Dams and Associated Legal Implications

head shot of Diana Bunin Kolev
Diana Bunin Kolev

You may not realize it, but there are quite a few dams throughout Westchester and in New York State, and you may even have one on your property, or the property that you are considering purchasing. These artificial barriers can be big, small, earthen, stone masonry, or concrete, but they all have the same purpose – to impound water. Dams have created reservoirs, lakes, and ponds for collecting drinking water, for recreational boating, swimming, and fishing, or for flood protection and irrigation, or even to produce hydroelectric power.

Many of the dams in New York are aging, having been originally constructed in the early to mid-1900s. In Westchester, many developers in the 40s, 50s, and 60s created or expanded man-made lakes to create lake front properties, but never put in any mechanism for upkeep of the dam structures.

In New York, there is statutory authority over construction of dams, their operation, and their maintenance. Safety is of paramount concern since the failure of a dam may cause significant flooding resulting in great damage to property and injury or even loss of life. Dams, once built, are subject to wear and tear and must be maintained on a regular basis. However, most privately owned dams, or even municipally owned dams, tend to fall into disrepair over time, or even become abandoned. There is also the development of better technology and our scientific and engineering understanding that has improved over time that should be considered. For example, earthen dams constructed in the early 1900s may not have the emergency spillway or other appropriate safety measures that make catastrophic failure less likely. Also, many lakefront owners who take advantage of a beautiful lake created by a dam have no idea that the failure of this dam, or unsafe operation, could significantly impact their property values. Finally, purchasers of lakefront property or property on which a dam is located, are often unaware of the various implications.

The statutory authority is found in the Environmental Conservation Law (“ECL”), Article 15, Title 5. The relevant statutory provisions require the issuance of a permit prior to construction of a dam, identifies categories of dams according to height and impoundment capacity, empowers the agency known as the New York State Department of Environmental Conservation (“DEC”) to issue orders and take action, and directs the DEC to inspect and investigate dams to ensure public safety. Thus, the DEC is the agency charged with implementing the statutory provisions pertaining to protection of water and dam safety, and is authorized to promulgate regulations to implement a dam safety program. Notably, the Legislature revised the statutory framework in 1999 in response to several dam failures in the 1990s that caused significant flooding in NY. These changes served to shift the responsibility of ensuring dam safety from the DEC to the dam owners. In other words, the dam owners, whether municipal or private, were now responsible for the safe operation and maintenance of the dams located on their property. This also shifted the responsibility for the expenses associated with maintenance and repair, which I will discuss later.

The regulatory authority is set forth in the New York Code of Rules and Regulations (“NYCRR”), Title 6, specifically at Part 608 (Use and Protection of Waters), Part 621 (Uniform Procedures), and Part 673 (Dam Safety Regulations). Overall, Part 673 of the regulations authorizes the DEC to inspect and investigate dams, and if its condition is unsafe or unsound, to notify the owner of the result of the investigation and to recommend corrective action. The DEC Dam Safety Section reviews permit applications, carries out dam inspections, and enforces dam safety regulations. The Dam Safety regulations were amended to strengthen the DEC’s Dam Safety program, and became effective August 19, 2009. The DEC sent letters out to affected property owners with deadlines for compliance with the new Dam Safety regulations. This change in the regulations created new obligations for those who already owned dams on their properties and for future purchasers of property containing dams and for those who wish to construct new dams. And fulfilling these obligations is an expensive undertaking.

The ECL and the DEC regulations provide that “Any owner of a dam…shall at all times operate and maintain said structure and all appurtenant structures in a safe condition.” NY ECL § 15-0507; 6 NYCRR 673.3(a). Since the onus is on the “owner” to ensure the safety of the dam, and the “owner” is the one responsible for compliance with the regulations, including ongoing maintenance and reporting, and more importantly, the payment for all of the involved costs, it is important to identify initially who is the “owner” of the dam.

The level of responsibility of the dam “owner” depends upon the Hazard Classification of the dam. The Hazard Classification is based upon the potential impacts of a dam failure, including injury and damage. The DEC assigns the Hazard Classification on the basis of the various factors listed 6 NYCRR 673.5 of the regulations, although it is possible to challenge the classification. The dams are divided into Class “A” (low hazard), Class “B” (intermediate hazard), and Class “C” (high hazard). Overall, owners of Class “B” and Class “C” dams have much more extensive ongoing obligations and reporting requirements, including the preparation of an Inspection and Maintenance Plan, preparation of an Emergency Action Plan, Engineering Assessment every 10 years, notification upon sale of property, annual certification form, and continually to monitor the conditions at the dam and to report any overflow or any incidents involving the dam. Many of these obligations will require the owner to hire an engineer, all at the owner’s expense.

It is important to note that failure to comply with these obligations, or failure to respond to a DEC order may lead to an enforcement proceeding and result in fines/imprisonment. ECL Article 71 Title 11 and the ECL Article 15, Title 5 provisions set forth that certain violations constitute misdemeanors and set forth the various fines. Also, 6 NYCRR 673 of the regulations provides that DEC has the authority to issue orders and that it is “unlawful” for the property owner to fail to comply. And, where a property owner refuses to cooperate, DEC is authorized to enter the property upon which the dam is situated for the purpose of executing an order; and the cost may be charged against the owner in accordance with ECL 15-0507.

In light of these onerous obligations, one of the biggest concerns of a private dam owner is the cost involved in complying with the DEC regulations and the potential cost of repairs to a dam that is found to be unsafe or unsound. It is important to understand the potential costs associated with unsafe dams to better grasp the issues.

In short, in the event of an unsafe dam, there is the initial cost of an Engineering Assessment, and then a weighing of usually two options: (1) remove Dam and return the land to its natural form or (2) Rehabilitate and Repair the Dam. Of course removal of the Dam is not always ideal because it has serious repercussions. For example, if the dam has created a reservoir for drinking water, breaching the dam will mean that a supply must be located elsewhere. If the dam has created a lake for recreational purposes and a developer has constructed homes around the lake with lake rights, the removal of the lake leaves these property owners with wetlands and streams, instead of beautiful lakefront property, and significantly diminishes their property values.

On the flip side, the repairs for the Dam tend to involve extensive and time consuming procedure and paperwork. The owner often needs to work with an engineer as well as an attorney, to prepare the requisite DEC permit applications, to deal with any municipal approvals as well as any approvals from US Army Corps of Engineers and the New York State Historic Preservation Office, and to oversee the requisite environmental review under the State Environmental Quality Review Act (“SEQRA”). The DEC often takes quite a while to review all of the materials and issue a permit. In the event that a local approval is required, DEC will not issue its permit until that approval is obtained. Thus, coordinating between the two may prove challenging.

As far as local Town and Village regulations, it is important to review the Zoning Code and the local Freshwater Wetlands and Watercourses and tree removal regulations to determine the level of review necessary for a particular dam project. Specifically, in some municipalities, repairs to existing structures are exempt from wetlands permitting requirements, while in others they are not, and sometimes it is not clear and comes down to a matter of interpretation.

In addition, once the review process is complete and approvals are issued, there is the expense of the actual repair work. When it comes to earthen dams, one needs not only a contractor to perform the work, but also often soil testing companies to ensure that fill is clean and appropriate. With concrete dams, the contractor must be experienced, and there is the cost of the work. In any event, the engineer must oversee the entire process and coordinate with DEC.

In light of all of these costs, which most private dam owners do not anticipate, the next question is often whether these costs can be shared. For example, if a private property owner owns both the dam and lake itself, then he or she must bear the costs involved in maintenance and or repairs. However, in the case of a lake with multiple lakefront property owners, one of whom happens to have the dam on his/her property, the situation may become complicated, especially if there is no lake owners association or formal agreement amongst the property owners.

We recommend that anyone involved in this type of situation should conduct a careful analysis of the parties’ respective ownership rights, including recreational rights to use the lake, their obligations to contribute to the cost of maintenance, repair and upkeep of the lake, and the extent of their ownership, if any, of the lakebed itself. Such an investigation would include an analysis of the parties’ title reports, surveys, and an understanding of applicable common-law, regulations and statutes.