Environment Committee

JOINT FAVORABLE REPORT

Bill No.:

HB-6441

Title:

AN ACT CONCERNING THE DAM SAFETY PROGRAM.

Vote Date:

3/4/2013

Vote Action:

Joint Favorable Substitute

PH Date:

2/25/2013

File No.:

SPONSORS OF BILL:

Environment Committee, Department of Energy and Environmental Protection

REASONS FOR BILL:

There are currently approximately 5,500 dams in CT, with 3,000 categorized by DEEP as potentially hazardous. 72% of these dams are privately owned; the state owns 260. DEEP is responsible for the inspection of all dams, but lacks the resources (DEEP has only one Dam Safety Inspector). The bill would shift the responsibility for inspection (subject to DEEP audit) to the owners of the dams. DEEP would still inspect as necessary after flood events or if owners neglect to do so. Inspections of privately-owned dams are required to be done by a licensed Professional Engineer, with the costs the responsibility of the owner. The bill also requires that any repairs deemed necessary following inspection be made under the supervision of qualified engineers. It makes technical changes, modifies existing registration fees, and requires notification to the state of changes of ownership. Section 5 requires owners of high-hazard or significant hazard dams to develop, implement and file an emergency action plan with DEEP and affected municipalities. DEEP would develop regulations governing such plans. Section 6 would modify CGS 22a-411 to enable the commissioner to more easily issue permits for removal of a dam, and reduce the involvement of local boards in the process.

Substitute Language: Makes minor technical changes in Sections 3 and 6.

RESPONSE FROM ADMINISTRATION/AGENCY:

Commissioner Dan Esty and Deputy Commissioner Macky McCleary, Department of Energy and Environmental Protection, support HB 6441. Dams provide agricultural, recreational, environmental and flood control benefits, but can also pose ecological and safety risks. DEEP staffing is inadequate to directly inspect the 3,000 regulated dams. “A dam owner stewardship and inspection approach is consistent with methods used in other states, such as Massachusetts and New Jersey, and will drastically improve dam safety in Connecticut by requiring dam owners to periodically inspect their dams using qualified consulting civil engineers and to file such reports with DEEP.” This will save state resources while improving public safety, although “State follow-up will be needed to verify submitted inspection reports, respond to complaints from the public, undertake emergency inspections,” oversee emergency repairs and inspect DEEP-owned dams.

NATURE AND SOURCES OF SUPPORT:

Sally Harold, Director, Migratory Fish Projects, Nature Conservancy-CT, supports HB 5130. “The majority of dams in CT no longer serve the purpose for which they were constructed.” Dams disrupt natural river processes and have “diminished water quality, altered habitat, affected thermal changes in water, increased genetic isolation of aquatic species”, and particularly harm riverine migratory species by increasing predation pressure and hindering migration between feeding and breeding zones. The conservancy supports removal, where appropriate, as a very cost-effective fisheries and river restoration method. Of the three thousand state regulated dams, over 500 are considered High (biannual inspection) or Significant (every five years inspection) Hazard, whose failure could cause loss of life and damage to infrastructure and property. Dams weaken over time, and require inspection and repair, or eventual removal. The 1962 Spaulding Pond dam failure caused 6 deaths and the 1982 Bushy Hill dam in Deep River $50 million in damages. Transferring responsibility for inspections from DEEP's one overburdened Dam Safety Inspector to owners and privately hired engineers would result in timely inspections and encourage some owners to remove superfluous dams.Emergency Operating Plans for high and significant hazard dams will serve as a management tool to reduce public risk during storm events. Evacuations of neighborhoods downstream of a high hazard dam will be based on topography and a dam's impoundment size rather than fear alone.”

Gwen McDonald, Director of Habitat Restoration, CT Fund for the Environment. “There are approximately 7000 river miles in CT and over 500 dams.” Many are obsolete remnant dams, which needlessly contribute to the current decline of migratory species such as American shad, Atlantic salmon, American eel and river herring. This year the latter two were nominated for the federal endangered species list. In 2012 over 50 stream miles were reconnected to Long Island Sound, and continued river restoration through dam removal is key to species recovery. In 2008 DEEP inspected 80 dams and all needed repairs, 36% of which were significant enough to require a permit. Regulations dictate that they should inspect 450 annually along with follow-up, but they lack the staffing, thus many derelict dams pose hazards. “Transferring the burden of dam inspections from the state to the dam owner would not only allow the existing dam safety staff to better enforce maintenance orders, it will allow dam owners to properly evaluate the cost/benefit of keeping a dam.” “Section 6 of this bill proposes new language under Sec 22a-411 of the statute that would allow the commissioner to issue a general permit for “dam removal that improves fish passage or provides other ecological benefits,” reducing time and cost of permitting and further streamlining needed dam removal.

Elizabeth Gara, Executive Director, Connecticut Water Works Association (CWWA)

supports requiring all dam owners, who are already liable for potential damages, to inspect and repair their dams. “Connecticut's water utilities are already required to inspect dams on a regular basis either using in-house licensed engineers, contracting with outside licensed engineers” or both, and to develop a site-specific Emergency Operation plan, while many privately owned dams are not properly inspected and maintained.

Roy Merritt, Jr., P.E, The CT Society of Civil Engineers Section of the American Society of Civil Engineers overall supports the bill, but has concern about liability assigned to inspecting engineers in Section 3, and offers clarifying language. Starting on line 59 (line 68 of the JFS bill) should be changed to read “Such sworn statement shall (1) attest that such engineer inspected the work and determined to the best of the engineer's knowledge, information and belief that the dam or like structure to be safe within the parameters of the design of such dam or like structure, (2) attest that to the best of the engineer's knowledge, information and belief that all appurtenances to such dam or like structure were built, repaired, altered or removed in conformance with plans, specifications and drawings approved by the commissioner pursuant to a permit for construction or an order issued pursuant to section 22a-402, and (3) bear the engineer's professional seal and signature. In making such attestation, if the inspecting engineer was not responsible for the design of such dam or like structure, the inspecting engineer shall be entitled to rely upon the design prepared by the designing engineer and shall not have to independently confirm said design.”

Charles Burnham Manager, Government & Regulatory Affairs GDF SUEZ Energy North America provides background information. GDF SUEZ NA owns FirstLight Power Resources, Inc. (FirstLight), which owns or operates 1,500 MWs of generating capacity in New England, with 10 hydro-electric facilities totaling 30 hydroelectric generators in CT. “The Federal Power Act authorizes the Federal Energy Regulatory Commission (FERC) to regulate non-federal hydroelectric projects. “Six of our company's ten facilities meet these criteria and are licensed by the FERC,” whose mandates include “protecting non-power resources including fish and wildlife habitat, irrigation, water supply, recreation, flood control, and water quality. FERC retains jurisdiction over the safety of its licensed facilities and as such RB 6441” has no impact on them. The remaining four facilities in Connecticut are currently subject to State inspection, two of which “have operating fish passage systems that are subject to National Fish and Wildlife Service as well as CT DEEP oversight.” Significantly, “the provisions of Raised Bill No. 6441 mirrors to a major extent the inspection requirements of the FERC,” including the need for permission to alter, rebuild, repair or remove licensed dams in their jurisdiction.

Paul W. Brady, Executive Director, American Council of Engineering Companies of CT supports the bill, and offers the same clarifying language for section 3 as Roy Merritt.

Amy Singler, Associate Director of River Restoration, American Rivers, supports HB 6441. Many of CT's 5500 dams are obsolete and in shockingly poor repair, endangering public safety and forcing evacuations such as two recent ones for the same dam in Stonington, which has since been removed. They also cause harmful impacts to habitat and water quality. The bill, by requiring owners to register with the state and properly inspect their dams at their own cost, will improve safety while encouraging dam removal. “Massachusetts enacted very similar changes in 2006 after the near failure of a dam forced the evacuation of 2,000 people from downtown Taunton.” Dam owners are taking responsibility maintenance and thus often removing their dams, 18 in the past five years and over 30 planned for the next three. “Removing dams presents a remarkable win-win scenario, for dam owner liability, for public safety, and for the environment.” She suggests several changes, including fines for non-compliance, allowing DEEP to pursue owners through administrative orders and putting the fee and inspection schedule directly into statute rather than waiting for regulations. She also recommended promoting removal by listing it as an equal option along with repair everywhere in section 22a-402(a) “undertake repairs or remove dam.” Additionally, to address “Hazard Creep,” inspectors hired by dam owners should update hazard classification as they inspect dams.

Margaret Miner, Executive Director, Rivers Alliance of Connecticut, supports this bill, but requests changes to make the program more practical. “In Section 5, we are concerned that the owner of a hazardous dam is required to develop and implement an emergency action plan” which must be updated every two years and filed with DEEP and the CEO “of any municipality that would potentially be affected in an emergency. The exact requirements and cost are not clear (regulations are to be written). But clearly action plans that might affect several or many communities should be developed and coordinated by a government entity. Maybe the owner should be required to submit whatever information is needed for writing and implementing the plan. Section 5 (1) requires DEEP to develop “criteria and standards for inundation studies and inundation zone mapping.” “We have urged DEEP to develop a uniform set of standards for extreme storm events for use at all levels of government. One approach in Connecticut might be to use storm data developed by the Natural Resources Conservation Service. The standards should probably be tied to a rolling five-year (or ten-year) average of actual flood events. In Section 6 (a), we love the dam-removal language.

In Section 6 (d), we strongly urge reinstating the requirement that local commissions receive notice of the work and have the right to comment.”

NATURE AND SOURCES OF OPPOSITION:

None.

Reported by: Zalman Nakhimovsky, Assistant Clerk

Date: 3/13/2013