The Federal Energy Regulatory Commission (Commission or FERC) has proposed to revise its Part 12 dam safety regulations through a Notice of Proposed Rulemaking (NOPR) released at its monthly public meeting on July 14, 2020.  There will be a 60-day public comment period once the proposed regulations are published in the Federal Register.  The proposed revisions contain three major changes to the existing FERC dam safety regulations:

  1. First, the NOPR provides for a two-tiered inspection process which maintains the current five-year interval between inspections, but alternates between “comprehensive assessments,” which are more in-depth than the current inspections, and “periodic inspections,” which are slightly narrower in scope than the current inspections.
  2. Second, the NOPR revises the process for evaluating the independent consultants that perform Part 12 inspections to ensure that the inspection team possesses the specific expertise necessary for the particular project. The regulations proposed to effectuate these two revisions would replace existing Subpart D in its entirety.
  3. Third, the proposed rules codify existing guidance that requires licensees of one or more high or significant hazard potential dams to have an Owner’s Dam Safety Program. This guidance, which was developed in response to the overtopping of the upper reservoir of the Taum Sauk Project (No. 2077) in 2005, has been in place since 2012 and has already resulted in the development of over 250 such programs.  According to Commission staff, the primary benefit of the Owner’s Dam Safety Program has been to raise licensee awareness, given that a “proactive conscientious licensee is the first line of defense against potential dam safety issues.”

According to statements made by Commission staff at the July 14 meeting, the proposed revisions are a “direct response” to the 2017 spillway incident at the Oroville Dam (Project No. 2100) and were substantially complete before the May 2020 dam failures at the Edenville Dam (formerly licensed by FERC) and Sanford Dam (Project No. 2785) in central Michigan.  Commissioner Glick indicated that it was quite possible that FERC would need to further strengthen the regulations once a report was issued regarding the Michigan dam failures.  He also indicated that Congress needed to give the issue of dam safety some attention, postulating that it was possible FERC did not currently have sufficient authority to protect the public, particularly when a licensee is reluctant to make investments in the project.

New Two-Tiered Inspection Process

Under the proposed two-tiered inspection process in the revised rules, the “periodic inspection” would include a physical field inspection as well as reviews of prior reports, the surveillance and monitoring plan and data, and dam and public safety programs.  The proposed regulations outline a list of items that must be specifically evaluated in the periodic inspection report, with a focus on whether any potential failure modes identified are active, developing, or warrant further evaluation.  The regulations would no longer allow inspection reports to reference information or analyses contained in previous reports, but would require each periodic report to meet the same standards.  Similarly, the independent consultant’s report would no longer be able to incorporate previous reports, but would need to provide a status update and evaluation of changes for a prescribed list of items.

The comprehensive assessment incorporates the requirements of the periodic inspection and additionally includes a review of prior reports and analyses of record and of the supporting technical information document, as well as performance of a potential failure modes analysis and a semi-quantitative risk analysis.  It also requires the independent consultant team to perform a more detailed review of existing documentation, including a review of as-built drawings and analyses of record, than is currently required.  The potential failure mode analysis has been required under current inspections since 2002, but is now being codified as part of the comprehensive assessment.  The regulations allow the D2SI Regional Engineer to waive the semi-quantitative risk analysis requirement to allow D2SI to gradually phase in this requirement while staff is being trained and initially focus on higher-risk projects.

Like the periodic inspection report, the initial and subsequent reports for the comprehensive assessment may not incorporate prior reports, but must meet the same standard and evaluate a specific list of items.  In addition to the elements required for a periodic inspection, the report for a comprehensive assessment must also include an evaluation of:

  • spillway adequacy,
  • the potential for internal erosion and/or piping of embankments, foundations, and abutments,
  • the structural integrity and stability of all structures under credible loading conditions,
  • analyses of record pertaining to geology, seismicity, hydrology, hydraulics, or project safety, and
  • supporting technical information document, potential failure modes analysis, and risk analysis.

To address scenarios similar to the Oroville Dam spillway incident, the proposed regulations expand the existing requirements for evaluating spillway adequacy to include the potential for misoperation of, failure to operate, blockage of, and debilitating damage to a spillway, as well as the resulting impacts on the maximum reservoir level and the potential for overtopping.

The proposed new dam inspection regulations require that any project that was inspected prior to January 1, 2021 conduct a periodic inspection or comprehensive assessment and file the associated report within five years of the due date of the previous report.  The Regional Engineer may require that the first report filed under the new regulations be either a comprehensive assessment or a periodic inspection, in order to balance the number of comprehensive inspections over the ten-year cycle, but the first comprehensive assessment must be completed and the report filed by December 31, 2034.  Additionally, the Regional Engineer may require a project to undergo a comprehensive assessment when it was otherwise scheduled for a periodic inspection if there has been a dam safety incident, extreme loading conditions caused by an earthquake or unprecedented flooding, for example, or some other significant change in condition.  Alternatively, the Regional Engineer may extend the interval for comprehensive assessments for projects with no life safety consequences and a low total project risk.

Evaluation of Independent Consultants

Under the revised dam safety regulations, the independent consultant teams that conduct periodic inspections and comprehensive assessments would be required to collectively possess expertise “commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review being performed.”  The NOPR indicates that expectations will be higher for those teams involved with comprehensive assessments or with projects with higher risk, a history of “unusual or adverse performance,” or a greater number of or more technically challenging project features.  Licensees would be required to submit the resumes of all members of the independent consultant team, rather than just the consultant, and to obtain written approval of the team from the Director of D2SI, rather than simply submitting resumes, as is currently required.  The proposed revisions would codify existing D2SI practice requiring resumes to be submitted for approval 180 days in advance of an inspection instead of the 60-day period reflected in the current regulations.

Owner’s Dam Safety Program

The Owner’s Dam Safety Program, currently imposed via guidance and proposed for codification in Part 12, imposes three main requirements on licensees of dams or other project features with a high or significant hazard potential.  First, the licensee must designate either a Chief Dam Safety Engineer (if high hazard potential) or Chief Dam Safety Coordinator to oversee the implementation of the dam safety program.  Outside parties may serve in this role, but if so, the owner must designate an individual responsible for overseeing day-to-day implementation of the program and retains ultimate responsibility for the safety of the dams and other features covered by the program.  Second, the program must be signed by the owner and the Chief Dam Safety Engineer/Coordinator.  Third, the program must be reviewed and updated annually and discussed with senior management.  For licensees of one or more dams or project features with a high hazard potential, an independent external audit or peer review of the dam safety program must be conducted at least every five years.  The qualifications of the proposed reviewers must be submitted to and accepted by the Regional Engineer.

Additional Proposed Revisions

The revised Subpart D regulations clarify that they apply to any project with a project feature that has a high hazard potential and may apply to projects that do not have a dam.  FERC indicates in the NOPR that this is consistent with existing D2SI practice.  The Director of D2SI would retain its current ability to exempt projects from Subpart D, but notably, all existing exemptions would be rescinded under the new rules and licensees would have to reapply in order to receive an exemption.

The NOPR also proposes a few revisions to existing public safety reporting requirements.  The revised regulations require that an initial oral report of a project-related safety incident occur as soon as practicable, “preferably” within 72 hours, without inhibiting emergency response to the incident.  Rescues must be reported, in addition to deaths or injuries, and the definition of “project-related” has been revised to remove language that suggested an incident was project-related if it occurred near a dam, making it clear that an incident is project-related only if occurs at project works, involves changes in water levels resulting from project operations, or is otherwise attributable to the project or its operation.  The NOPR also revises the recordkeeping requirements in the Part 12 General Provision to require that projects subject to Subpart D provide the Regional Engineer with physical and electronic copies of records required to be maintained under the dam safety regulations.  FERC indicates in the NOPR that D2SI has historically used its existing authority under the Part 12 recordkeeping provisions to require this information via the Supporting Technical Information Document and that accordingly, this proposed revision to the regulatory language does not represent a change in D2SI practice.

Along with the NOPR, FERC also issued four additional draft chapters to its Engineering Guidelines for public review and comment.  Those chapters contain guidance on developing and maintaining a Supporting Technical Information Document, the scope of the Part 12D independent consultant inspection program, and conducting Potential Failure Mode and Level 2 Risk analyses.

FERC’s NOPR is available here.