608.1 Definitions have been added and revised to be consistent with revisions to Part 673.

608.3 The size thresholds for dams which require construction permits have been revised to be consistent with the ECL 15-0503.

608.6 Permit application procedures have been revised to better reflect the elements of a dam safety construction permit application.

608.6 has been revised to state that the department may accept a certification by a professional engineer, in lieu of a permit application, at its discretion.

Part 621.4

Part 621.4 has been revised to state that all dam projects are major, except projects at existing dams for which an engineering assessment pursuant to Part 673 is on file with the department.

Part 673

All of Part 673 is repealed. The Revised Part 673 incorporates Chapter 364 of the laws of 1999 and Chapter 178 of the laws of 2006 amendments to statute. The Revised Part 673 contains revised definitions, revised requirements for inspection and maintenance; emergency action planning; recordkeeping and reporting and notifications; revised language regarding the department's inspection, investigation, and enforcement process. Sections are renumbered and renamed.

673.1 Purpose; applicability; severability

This section revises language related to applicability of the regulation. This section references applicability based on dam size. The size thresholds match those of permit requirements (Part 608) except as otherwise noted. Some provisions of Part 673 apply to dams above these size thresholds.

Part 673 also applies to owners of all dams the failure of which poses a threat to public health, safety, property or natural resources.

Part 673 also applies to illegal dams.

Revised language regarding purpose and severability of the regulation.

673.2 Definitions

This section was expanded for clarification to include definitions not previously included and modifies some existing definitions.

673.3 General Provisions

Incorporates the statutory dam safety authority.

Requires all dams to be operated and maintained in safe condition.

Specifies that the department may consider any information on a dam that may be available.

Provides that the department may, at its discretion, accept equivalent reports from or to federal agencies in lieu, in whole or in part, of the reports of inspections and assessments required in this Part.

673.4 Permit Requirements for Dams

Advises the reader to consult Part 608 for permit requirements, and that the department's permits do not relieve the applicant from any requirements for other permits and approvals, such as federal permits.

673.5 Hazard Classifications

Revises language related to the hazard classifications that may be assigned to a dam, and the factors that the department may consider in assigning a hazard classification, for clarity.

Requires that the department must notify a dam owner when it changes the hazard classification, and that the department will make available a list of dams and the hazard classifications assigned to them.

Provides a process for appealing a hazard classification.

Part 673.6 Inspection, Operation and Maintenance

Owners of Intermediate Hazard and High Hazard dams, and dams above applicability size thresholds, must prepare and implement an inspection and maintenance plan.

Describes the elements of an inspection and maintenance plan.

Requires that the inspection and maintenance plan must be provided to the department upon request.

673.7 Emergency Action

Requires that Emergency Action Plans (EAP's) for Intermediate Hazard and High Hazard dams must be submitted to the department.

Provides a schedule for submitting the EAP's after the effective date of this regulation.

Requires that High Hazard dam owners must have the EAP prepared by an engineer unless the department agrees otherwise.

Requires that Intermediate Hazard dam owners must have the EAP prepared by an engineer if requested by the department.

Describes the elements of an EAP, that it must be provided to certain recipients, and that it must be updated annually.

673.8 Annual Certification

Intermediate Hazard and High Hazard dam owners must provide an annual certification on a form prescribed by the department

673.9 Notification of Auxiliary Spillway Flow

Intermediate Hazard and High Hazard dam owners must notify the department of flow in a dam's erodible spillway.

673.10 Recordkeeping; Response to Request for Records

All records on a dam must be kept in good order.

Records must be provided to the department upon request.

673.11 Notices of Property Transfer

The records required to be maintained related to a dam must be provided to the new owner upon transfer of the property where a dam is located.

Notice must be provided to the department and the municipality in which the dam is located, of the new owner's information, upon transfer of property where a dam is located.

673.12 Safety Inspections

Intermediate Hazard and High Hazard dam owners must conduct a safety inspection as provided for in their inspection and maintenance plan.

The department may require Safety Inspections on a more frequent schedule, if the dam is rated "unsafe" or "unsound."

The Safety Inspection must be conducted by an engineer

The department may require changes if the report is not acceptable.

673.13 Engineering Assessments

Engineering Assessments (EA's) for Intermediate Hazard and High Hazard dams must be submitted to the department.

Provides a schedule for submitting the EA's after the effective date of this regulation.

All EA's must be prepared by an engineer.

The department may require EA's on a more frequent schedule if the dam is rated Unsafe or Unsound.

The department may require changes if the EA report is not acceptable.

673.14 Inspection of a Dam by the Department

Describes the department's authority to conduct inspections, and the requirement for the department to provide inspection reports in accordance with ECL 15-0516.

673.15 Investigation of a Dam by the Department or Owner

Describes the department's authority to conduct investigations, or order investigations by the dam owner, when the public safety requires.

673.16 Condition Ratings

Describes the department's condition rating system, and its authority to require an Enhanced Safety Program for dams rated Deficiently Maintained, Unsound, or Unsafe.

Requires the department to notify the dam owner if a dam has been rated Unsafe, Unsound, or Deficiently Maintained.

Describes the process for disputing the department's assignment of a condition rating.

673.17 Orders of the Department

Describes the department's authority to issue orders and act upon noncompliance with orders, including the department's authority to alleviate safety problems at a dam when the owner fails to do so, and the department's authority to try to collect costs associated with its work in alleviating a safety problem at a dam.

Statement explaining why a revised Regulatory Impact Statement (RIS), revised Regulatory Flexibility Analysis (RFA) for small businesses and local governments, revised Rural Area Flexibility Analysis (RAFA), or revised Job Impact Statement (JIS) is not required:

No substantive changes were made to the Revised Rulemaking for 6 NYCRR Parts 608, 621.4 and 673 published in the May 20, 2009 State Register. The nonsubstantive changes are identified under the Terms and Identification of Rule (section 6 (B)) of this Notice of Adoption. None of these regulatory changes requires any revision of the RIS, RFA, RAFA or JIS since their last publication in the State Register on May 20, 2009.

Summary of Second Assessment of Public Comments (July 2009)

Adoption of Rule Amending Dam Safety Regulations

The original Notice of Proposed Rule Making was issued on February 13, 2008 to amend the dam safety regulations at 6 NYCRR Parts 608, 621.4, and 673. The regulatory amendments were proposed in order to comply with Chapter 364 of the laws of 1999 and with Chapter 178 of the Laws of 2006. A public comment period followed. On May 20, 2009, the New York Department of Environmental Conservation (NYSDEC) issued a revised Notice of Revised Rule Making. The second public comment period (for the revised rule making) closed on June 19, 2009.

The Second Assessment of Public Comments (SAPC) summarizes, condenses, and codifies all of the comments. Complete copies of all written submissions are included in the SAPC.

This summary of the SAPC provides an overview of the most frequently received comments and responses.

Frequent Comment #1: Comments concerning the cost of the revised regulations were largely the same as those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #1 and NYSDEC's Response.

Frequent Comment #2: Numerous comments were received regarding emergency action plans (EAP's). Definition of an EAP, EAP development, updating, and submission, EAP sections that need to be developed by an engineer, use of electronic submittals, inundation mapping standards, role emergency management authorities, and time frame to submit an EAP following a dam's hazard classification change. Additionally, would EAP's be required with a dam safety permit application for a "B" or "C" hazard class dam.

Response: NYSDEC reviewed U.S. Army Corp and FEMA provisions regarding EAPs, including definitions, during the course of this rule making, and wrote the regulations consistent with New York's existing dam safety statute, and existing permitting requirements, regulations and guidance.

The NYSDEC has guidance on EAPs in Chapter 8 of the NYSDEC's guidance document entitled, "An Owner's Manual for the Inspection and Maintenance of Dams in New York". Federal guidance for EAP development is in "FEMA 64 - Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners." The Department plans to issue additional guidance on the preparation of EAPs.

A hard copy of the initial EAP is required by the NYSDEC, emergency responders, and other applicable agencies.

EAP's have been a longstanding element of an owner dam safety program and the time frames for implementation are appropriate.

Frequent Comment #3: Comments concerning hazard classifications were similar to those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #3 and NYSDEC's Response.

Additional comments recommended that the NYSDEC add to include damage and/or economic loss related to property on the impoundment's shorelines; provide an analysis when NYSDEC changes a hazard classification; and ensure that all dams are assigned a hazard classification. Also guidance incorporating natural resource damage in hazard classification determinations was requested. A concern was raised regarding NYSDEC changing a dam's hazard class based on unfounded information. A comment also stated that the terms in the hazard classification definition were unclear or subjective.

Response: NYSDEC repeats the Response to Frequent Comment #3 from the May 2009 Assessment of Public Comments, and responds: downstream damages are considered when the hazard classification is established. By regulation, the owner will be notified when the hazard classification is changed and will be provided the basis for that change. DEC's practice is to verify any information received.

Frequent Comment #4:

Comments concerning engineers were similar to those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #4 and NYSDEC's Response.

Additional comments were about the definition of "engineer", engineers' qualifications and experience required under the regulations, and NYSDEC providing criteria or a list of approved engineers, and the use of conservationists for farm.

Response: "Engineer" was discussed in the Frequent Comment # 4 in the May 2009 Assessment of Public Comments and the NYSDEC repeats this response. Additionally, the topic of farms pond and use of a conservationist was discussed in the Frequent Comment #2 in the May 2009 Assessment of Public Comments and the NYSDEC refers to an excerpt from this response. NYSDEC also responds that the responsibility for retaining an engineer is with the owner, who should verify the engineer has the required education and experience for the particular project.

Frequent Comment #5:

Comments concerning the definition of dam owner were similar to those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #5 and NYSDEC's Response. Comments also noted that the definition could result in the State of New York being an owner of every dam. NYSDEC responds that the statutory definition of dam owner does not include the state. Environmental compliance requirements for state agencies are governed by the ECL and other state laws and executive orders.

Frequent Comment #6: Comments stated invoking the financial assurance provision of the regulations is punitive, could result in the loss of property, and the circumstances in which it will be used should be better defined. Financial assurance provisions, if used, should be used only if the dam is "unsafe" or "unsound". No financial assurance should be required if a State Public Benefit Corporation owns the dam. Public entities that are self-insured should be allowed to use "global" financial security if required to provide financial assurance.

Response: The inclusion of financial assurance was specifically authorized in the 1999 amendments to the dam safety statute (ECL § 15-0507). Under the revised regulations, financial assurance is not required unless a dam is "unsafe", "unsound" or "deficiently maintained", and then, only when requested by the Department. The financial assurance elements would be invoked only after the owner has failed to bring the dam into compliance. The revised regulations clarify that financial assurance measures are not required of owners of all Class C (High Hazard) dams, specify when NYSDEC would seek financial assurance, and limit the goal to that of covering the costs of breach or removal of the dam.

Frequent Comment #7:

Comments concerning release of information on dams were similar to those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #7.

Response: NYSDEC and municipalities are subject to Freedom of Information Law (FOIL). NYSDEC responds to requests for information about dams in accordance with this law. Requirements for the distribution of inspection reports by NYSDEC are in ECL § 15-0516. FOIL does allow for the withholding of critical infrastructure information (CII). The Department will consider revising its inspection report format so CII is segregated and identified so that it may more easily be reviewed and, if necessary, redacted on a case-by-case basis in response to FOIL requests. Communities receiving an inspection report will be directed to withhold the CII.

Frequent Comment #8:

Comments concerning "ordinary maintenance" were similar to those received during the first public comment period following the Notice of Proposed Rule Making issued on February 13, 2008, which were answered in the May 2009 Assessment of Public Comments. NYSDEC repeats the May 2009 Frequent Comment #11 and NYSDEC's Response.

Frequent Comment #9: comments were concerned with condition ratings (Subpart 673.16) based on their definitions, how they would be applied and time allowed to gather information to make an appeal.

Response: NYSDEC's discretion with respect to condition ratings is based on all of the facts and circumstances of the dam itself. This is also the case in assigning a condition rating in the absence of an engineering assessment. If a dam owner believes the Department's assignment is arbitrary or capricious, the owner must let the Department know promptly, through the appeal process in the regulations, or else focus on bringing the dam into compliance. Regulatory language was modified slightly to clarify ratings of "deficiently maintained" and "no deficiencies noted."

Frequent Comment #10: Comments stated Inspection and Maintenance Plans (I&M Plans) should be required only for Class B and C dams and more time is necessary to create the plans. The regulations should clarify owner responsibilities in developing and implementing I&M Plans.

Response: Owners of dams exceeding the permitting size thresholds, Class B or C dams, or dams that pose a threat of personal injury, substantial property damage, or environmental damage need develop an I&MP. Twelve months is adequate for the development of an I&M Plan for any dam. Guidance on inspection and maintenance is already available and additional guidance is under development. The regulations identifies that it is owners of dams who prepare I&M Plans.

Frequent Comment #12: The recent Executive Order 17 requires an assessment of formalized proposals for mandates on local governments which increase costs will raise property taxes. Comments expressed NYSDEC should investigate the potential cost of the required inspections, reports, financial assurance, and potential dam modifications. Many expressed that the rule making is an unfunded mandate upon private and municipal dam owners. Comments expressed the rule shifts NYSDEC's governmental responsibility for inspections of dam infrastructure to the dam owner.

Response: Dam owners, public and private, have long been obligated by law to operate and maintain their dams in a safe condition. The costs associated with the inspection, operation, maintenance, repair or reconstruction of a dam, even for those dams whose hazard classification has changed, are not new or newly shifted to dam owners and do not originate with this rule making. The Executive Order does not address private entities, and only addresses increases in costs imposed by the regulations themselves, if any.

Frequent Comment #13: The definition of "breach" of a dam was questioned. Additionally, it was asked if a permit is needed every time the normal impoundment level is lowered, even if temporarily.

Response: Definition of 'Breach' of a dam was clarified to state the "permanent" lowering of a dam's spillway level, or the construction of a channel through or around the dam, so as to reduce the dam's ability to normally impound waters. Breach/removal is distinguished from, and is treated differently in the regulations than, an unplanned release or dam failure.

Frequent Comment #14: The definition of the "height" of a dam is the vertical dimension from the downstream toe of the dam at its lowest point to the top of the dam. Comments said the top of the dam should be the height of the spillway. Comments also suggested definitions for the "lowest point."

Response: The Department reviewed U.S. Army Corp and FEMA provisions, including definitions, and ensured the revised regulations are consistent with New York's existing dam safety statute, permitting requirements, regulations and guidance. The Department has conformed the definition of height in 608.1(n) to match that in 673.2(n).

Frequent Comment #15: Subpart 608.1 and 673.2 both define the term "Maximum Impoundment Capacity." C Comments requested language "including during periods when a temporary surcharge pool exists" to the definition. Others stated a properly designed dam would never have to impound waters to the top of the dam.

Response: The definition of "maximum impoundment capacity" is statutory. Revised regulations must interpret New York's existing dam safety statute (within ECL Article 15) and be consistent with New York's existing permitting requirements, regulations and guidance. Definition does not significantly change that in the 1987 regulations, and is consistent with current NYSDEC practice, and the laws, regulations, and practice of many other state and federal agencies and guidance.