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. Kentucky's dam safety law and the regulations that implement it specifically absolve the state from liability from damages caused by a dam failure.

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 EAPs 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

Laws pertaining to Kentucky's dam safety program are embodied in Kentucky Revised Statutes 151, Geology and Water Resources. 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).

Any dam owner who neglects inspection and maintenance of a dam should heed the cautionary note in the brochure Guidelines for Maintenance and Inspection of Dams in Kentucky:

"Aside from moral obligation to keep the dam safe, the owner could be subject to liability claims, or even criminal charges, if the dam fails. So it is good business practice to have an effective program of maintaining and inspecting your dam."

Dam owners should note the financial burden poor maintenance of a dam may trigger, as outlined in Kentucky statute 151.299 "Liability for costs of cabinet emergency work -- Action for recovery of costs -- Foreclosure sale to satisfy judgment." The law states:

"Whenever the secretary takes action authorized by KRS 151.297, the owner or owners of the dam or the dams creating the impoundment, or levee, embankment, or other water barriers at which such action was taken shall be jointly and severally liable for the costs of taking such action, including applicable overheads, and a lien in the amount of such costs shall be automatically created on all property owned by any such owner at or proximate to such dam or reservoir. The secretary shall file an action in the Circuit Court having jurisdiction over any owner or the owner's property for the recovery of such costs, and may join all other owners in such action irrespective of any statutes to the contrary relating to jurisdiction or venue. Following the conclusion of such action the secretary may make application to the court for foreclosure sale of the property to satisfy any judgment obtained by the secretary."