Dam Owner Responsibilities

Liability and Legal Considerations

The records of the Texas Commission on Environmental Quality (TCEQ) Dam Safety Program indicate that in recent years there have been 2, 3 or more dam failures in Texas each year. 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. Also liable are the many organizations in Texas that are responsible for operating and maintaining a dam, including watershed conservation districts, city and county governments, and special purpose districts. The Texas 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. The Texas Guidelines for Operation and Maintenance of Dams notes that "A carefully conceived and implemented Emergency Action Plan is one positive step you, the dam owner, can take to accomplish dam safety objectives and to protect your investment and reduce potential liability."

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 Texas dam safety are found in the Texas Administrative Code, Title 30, Part 1, Chapter 299. Portions pertaining specifically to dam owner liability are in Rule 299.41:

1. The owner shall be responsible for operating and maintaining the dam and appurtenant structures in a safe manner.
2. The owner shall be responsible for addressing all maintenance and safety concerns at the dam and appurtenant structures identified during any inspections conducted by the executive director or the owner.
3. The owner shall ensure that necessary maintenance, repairs, alterations, or modifications are initiated and completed in a timely manner following any inspection.
4. Nothing in this chapter or in orders issued by the commission shall be construed to relieve an owner of a dam or reservoir of the legal duties, obligations, or liabilities incident to ownership or operation.