Dam Owner Responsibilities

Liability and Legal Considerations

The Association of State Dam Safety Officials (ASDSO) notes in its brochure 'Dam Failure and Owner Liability' that there are approximately 10 to 20 dam failures each year in the United States. Many of these result in catastrophic impact on communities, private property, and public works downstream, including loss of life. No dam owner wants that calamity to involve his dam.

Owner liability varies from state to state depending on statutes, regulations and case law. However, the concept of strict liability falls heavily on the dam owner for damages regardless of the cause of the failure. Indiana's dam safety law and the regulations that implement it specifically absolve the state from liability from damages caused by a dam failure.

The Indiana Dam Safety and Inspection Manual contains general information on legal and insurance matters to help dam owners minimize their exposure to liability due to dam ownership or operation. It is intended only as a general introduction to the many issues regarding dam owner liability, but it underscores the responsibility dam ownership entails. The manual further notes:

The dam owner is responsible for maintaining the dam in a safe condition, and should do whatever is necessary to avoid injuring persons or property. As once stated by a highly respected legal scholar, "It is clear that compliance with a generally accepted industry or professional standard of care, or with government regulations, establishes only the minimal standard of care. Courts may assess a higher standard of care, utilizing the "reasonable person" standard and foreseeability of risk as the criteria. It is fair to say that persons who rely blindly upon a governmental or professional standard of care, pose great danger to others, and present a legal risk to themselves, when they know or reasonably should know that reasonable prudence requires higher care."

In Indiana, state emergency planning and response are directed by the Indiana Department of Homeland Security. In its 2008 Hazard Mitigation Plan, IDHS noted:

Dam and Levee Safety is an issue of growing national, regional and State importance. Dams are inherently hazardous structures because of energy that can be released by elevated/stored water. Many dams and levees in the State have deficiencies that will result in an emergency situation leading to a possible breach failure during an unusual loading condition such as a substantial rainfall event.

If dams or levees fail issues of primary concern include loss of human life/injury, downstream property damage, lifeline disruption (of concern would be transportation routes and utility lines required to maintain or protect life), loss of resource purpose and benefits, and environmental damage. Further, the threat of dam or levee failure requires substantial commitment of time, personnel, and resources.

Since dams and levees deteriorate with age, minor issues become larger compounding problems and the risk of failure increases. Further, the downstream areas become more populated and developed risking more lives and property, and escalating mitigation and rehabilitation costs. Like many critical infrastructure projects, dams and levees are also potential terrorist targets.

The failure of a dam or an important component of a dam may cause substantial flood damage.

Depending on the size of an impoundment and the severity of a dam failure, the flood inundation area may be substantially deeper and larger than areas identified as 100-year flood plains for insurance purposes. The lack of the flood insurance flood plain maps to account for inundation due to dam failure is a problem common to all 75,000 plus regulated dams in the United States.

As the dam building era was more than 40 years ago, the inventory of dams is greatly aging and dams are deteriorating. Component and total failures of dams are becoming more common in the State. Additionally, with time residential development continues to increase near water resource features, thus increasing the number of individuals and property at risk due to dam failures. This development also is causing the hazard classification of existing dams to creep up. Dams that were designed and built to function as low hazard structures, because of uncontrolled downstream development now function as high hazard dams.

When assessing the liability of the owner and the potential for negligence, the standard of care the dam owner should have taken will be weighed against the downstream hazards. Compliance with government regulations and professional standards, such as the responsibility of dam owners to prepare IEAPs on their HHP dams, establishes a minimum standard of care to be followed by the owners.

ASDSO notes that to manage risks and control potential loss an owner will need to provide employee training, regular maintenance, emergency preparedness, and liability insurance. Each HHP dam should have:

• A state dam safety permit.
• An operation plan, documented regular maintenance plan, and Emergency Action Plan.
• Documented periodic inspections.
• Warning signs and controlled access.

The Owner, Not the State, is Liable

Indiana's dam safety laws are contained in Indiana Code Chapters 14-27-7.5 (Regulation of Dams) and 14-28-1 (Flood Control), originally enacted in 1945, and last amended in 1995. A new administrative code under 312 IAC 10.5, "Regulation of Dams," also presents definitions and creates procedures related to hazard classifications.

The Indiana Dam Safety Inspection Manual was revised in 2007 to incorporate comprehensive and current state statutory and regulatory information for citizens and dam owners. A copy of the current Indiana Code for the regulation of dams is contained in Appendix A of Part 1 of the manual.

The most recent version of the statutes can be found on the website of the Indiana General Assembly. All dam owners should read and maintain a copy of the current Indiana Code for the regulation of dams in their dam safety file. The following is a general summary of the Indiana dam safety laws.

Dam owners should note the provisions of I.C. 14-27-7.5-15, which exempts Indiana DNR from liability:

Exemption of department from liability
Sec. 15. This chapter does not create a liability for damages against the department or the department's officers, agents, and employees caused by or arising out of any of the following:
        (1) The construction, maintenance, operation, or failure of a structure.
        (2) The issuance and enforcement of a notice of violation or a rule issued by the department to carry out the department's duties.
As added by P.L.148-2002, SEC.15.