Dam Owner Responsibilities

Know Your Kentucky Dam Safety Laws

Laws governing the Kentucky dam safety program are embodied in the Kentucky Revised Statutes 151, Geology and Water resources. Originally enacted in 1966, the law was last amended in 1990.

Regulations relating to dam safety are in Kentucky Administrative Regulations Chapter 4, Title 401, Water Resources.

Definitions/Dam Classification

KRS 151.100 defines the word dam to mean any artificial barrier, including appurtenant works, which does or can impound or divert water and which either (a) is or will be 25 feet or more in height and (b) has or will have an impounding capacity at maximum water storage elevation of 50 acre-feet or more. All such dams are subject to the provisions of KRS Chapter 151 and are regulated by the Kentucky Natural Resources and Environmental Protection Cabinet.

Regulations define dam height as the distance in feet measured from the natural bed of the stream or watercourse at the downstream toe of the barrier to the low point in the top of the dam.
In addition, dams are assigned a structure classification according to the following criteria:

• Class (A) Low Hazard - Structures for which failure would result in loss of the structure itself, but little or no additional damage to other property.
• Class (B) Moderate Hazard - Structures for which failure would cause significant damage to property and project operation, but loss of life is not envisioned.
• Class (C) High Hazard - Structures for which failure would cause loss of life or serious damage to homes, commercial buildings, utilities, highways or railroads.

(The structure classification and other definitions are found in the Cabinet publication Design Criteria for Dams and Associated Structures, March 1975)

Jurisdiction/Powers of the Cabinet

The Secretary of the Natural Resources and Environmental Protection Cabinet is empowered by KRS 151 to exercise the following powers:

• administer and enforce the provisions of the law
• conduct investigations, research and training, and disseminate information regarding construction, operation or maintenance of dams and reservoirs; adopt rules and regulations, which have the force and effect of law, for flood control and the protection of water resources as well as regarding the procedural aspects of the dam safety program (i.e. hearings, reports, issuance of certificates of inspection and permits)
• issue orders requiring owners to take remedial actions necessary to protect life and property and to ensure compliance with laws and regulations
• examine and approve or disapprove applications for permits to construct, repair or alter dams
• establish standards for the safe construction, enlargement, repair, alteration, maintenance, or operation of a dam
• make investigations or inspections necessary to determine compliance, including the right to enter upon an area affected and the right of ingress and egress across intervening properties
• order the suspension or revocation of a certificate of inspection or permit for failure to comply with laws or rules
• order the cessation of activity undertaken without proper approval or permits, and
• institute and prosecute court action for the purpose of obtaining enforcement of Cabinet orders. (KRS 151.124)

Permit/Approval Process

According to KRS 151.250, the construction, reconstruction, relocation or improvement of dams in Kentucky may only take place if the plans and specifications for such work have been submitted to and approved by the Division of Water, and a permit issued. Exceptions included those projects which are not large enough to require approval in the interest of safety or retention of water supply, and those over which the Kentucky Department of Surface Mining Reclamation and Enforcement has issued a permit under provisions of KRS Ch. 350.

All applications for permit shall be in the form and manner prescribed by the Department. Plans and specifications must be drawn by a licensed professional engineer. Upon receipt of a complete application package (including plans and specifications). The Department shall notify the applicant in writing within 20 days either of approval or denial, or that modifications in the plans or specifications are necessary before the permit can be approved. (KRS 151.250-260 and Regulation 401-KAR-4:030.) All plans and specifications must bear the seal and signature of the responsible engineer and must comply with standards as set forth in the Kentucky rules and Design Criteria for Dams and Associated Structures. All structures (other than Class A structures), shall have subsurface investigations and soil analyses. Plans and specifications must include elevation-area-capacity and elevation-discharge data and flood routings, as well as determinations of downstream water requirements and the means to empty the impoundment.

The permit approval process concludes with the issuance of a construction permit, constituting approval of the engineering plans and allowing construction to begin. During construction, monthly progress reports and testing reports must be prepared by the supervising design engineer and submitted to the Cabinet (401 KAR 4:030). After construction is finished and final approval of all as-built plans is given, written approval to impound is issued.

No filing fees or bonds are required by law or by regulation for permit application.

Inspection Process

State

The Cabinet conducts a program of regular inspections of dams and reservoirs in the state and determines the frequency for such inspections. KRS 151 provides that within 60 days of completing an on-site inspection of an existing dam, the Cabinet prepares an inspection report indicating whether or not the dam meets operation and maintenance. The Cabinet may impose conditions relating to inspection, operation or maintenance, and it may modify an inspection report or the conditions attached to it.

State law requires the Cabinet to inspect each Class A dam at least once in 5 years. Cabinet guidelines call for each Class C and B dam to be inspected once in 2 years.

Owner

There is no provision in the law or regulations concerning owners' inspection frequency except in cases of staged renovation where the frequency and type of inspection is developed on a case-by-case basis (by law).

Non-Compliance/Violations/Penalties

The Cabinet, if it determines that a dam is not in compliance with state dam safety requirements, shall order the owner to take such action as is needed to render the dam safe. If the Cabinet determines that a dam has been abandoned, or if the owner fails to comply with the Cabinet's order to take action, or if danger to life and property is imminent, the Cabinet may declare an emergency and take action itself. Persons to whom an order has been issued must comply immediately, but may petition for a hearing in front of the Cabinet. (KRS 151.182 and 151.184 describes this hearing process.)

The owner or owners of a dam at which the Cabinet has taken emergency action are liable for the costs of such action. I.R.S. 151 requires the Cabinet to place a lien on the owner's property, file court action for recovery of the costs. The Cabinet may apply for foreclosure sale of the property to satisfy any judgment obtained. (KRS 151.297)

Penalties

The law states that any person, city, county or other governmental subdivision who violates the law pertaining to dams shall be liable to a civil penalty of not more than $1,000 for said violation and in addition may be enjoined from continuing said violation. Each day constitutes as separate offense.

Emergencies

According to K.R.S. 151.297, the Cabinet may declare that an emergency exists if there is a danger to life and property from an unsafe dam and shall take such actions as set forth in the law to render the dam safe. Actions included but are not limited to taking control of the dam, lowering the water level or emptying the reservoir, performing necessary remedial or protective work, or removing the dam. The department is authorized to continue such action until the emergency has ceased. (KRS 151.297[2,3]) KRS 151.299 places liability for the costs of such repairs on the dam owners, and authorizes liens, civil action, and foreclosure to satisfy the debt.

Oversight

Appeals may be filed by owners regarding any order by the Cabinet. Within 30 days of the order, the appeal must be taken to the circuit court of the county where the structure is located. The Cabinet shall be named respondent and service shall be had on the Secretary. The circuit court shall review and make decisions concerning the appeal. The findings of the Cabinet shall be prima facie evidence of the facts of the case. (See K.R.S. 151.186)

Liabilities

There are vague provisions in Kentucky law regarding liability of state personnel. It says that the state will provide legal and monetary assistance to the employee when a claim is entered against him except where the employee was not acting as an agent of the state. Just exactly how the state will provide a defense for its employees is unclear and could be reinterpreted by different administrations.