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

In North Carolina, state emergency planning and response are directed by the Division of Emergency Management (DEM) within the state Department of Public Safety. In its April 2009 Emergency Operations Plan, DEM noted the following:

"There are 4600 dams in North Carolina. According to the Division of Land Resources, 1700 hundred of these pose a risk to public safety and property should failures occur. Communities continue to develop along the state's rivers – many in potential dam-failure inundation zones. Further exacerbating the potential risk to citizens is the disrepair of many 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 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 North Carolina dam safety are found in G.S. 143-215-23, last amended in 2009. Rules regarding dam safety are found in North Carolina Administrative Code Title 15A -2K, last amended in 1995. The Dam Safety Program website includes a summary of the law, but does not reflect the 2009 change bringing coal ash dams under state regulation.

Dam owners should note paragraph 143-215.35 Liability for Damages:

No action shall be brought against the State of North Carolina, the Department, or the Commission or any agent of the Commission or any employee of the State or the Department for damages sustained through the partial or total failure of any dam or its maintenance by reason of any supervision or other action taken pursuant to or under this Part. Nothing in this Part shall relieve an owner or operator of a dam from the legal duties, obligations and liabilities arising from such ownership or operation.

The Dam Safety Program website also includes a summary of the Administrative Code, which states in section
.0302 Dam Safety Orders:

(e) Dam safety orders issued by the Director in no way relieve the owner(s) of the dam from duties and obligations imposed by regulations in Section .0200 of this Subchapter, nor do they relieve the owner(s) of the dam from any liabilities or other legal obligations. Section .0200 covers the need for approval for dam construction, repair, altering, or removal.