On December 16, 2021, the Federal Energy Regulatory Commission (Commission or FERC) issued a final rule amending its regulations governing the dam safety of FERC-licensed hydroelectric projects under the Federal Power Act (FPA). FERC’s final rule follows its July 16, 2020 Notice of Proposed Rulemaking (NOPR) (see July 21, 2020 edition of the WER), which FERC issued following the 2017 spillway incident at the Oroville Dam and the May 2020 dam failures at the Edenville Dam and Sanford Dam in central Michigan.
The Commission explained that its final rule accomplished four objectives that are essential to improving its dam safety program under part 12 of its regulations. First, it implements the two-tiered inspection program set forth in the NOPR, which will include a comprehensive assessment and a periodic inspection, each of which will be performed at a 10-year interval. The comprehensive assessment will be more in-depth than the current part 12 inspections, will formally incorporate the existing Potential Failure Mode Analysis process, and will also require a semi-quantitative risk analysis. The periodic inspection will be narrower in scope and primarily focused on performance of project works between comprehensive assessments. This two-tier structure retains FERC’s current five-year interval between part 12 inspections at each Commission-licensed project and is consistent with the Federal Emergency Management Agency’s (FEMA) recommendation that “formal” inspections be conducted every five years. FERC’s rule explained that this two-tier inspection scheme is similar to those used by the Bureau of Reclamation and the Army Corps of Engineers.
Next, the final rule changes the qualification process for independent consultants that conduct part 12 inspections. The Commission’s current regulations require licensees to submit an independent consultant’s resume and qualifications to the director of FERC’s Division of Dam Safety and Inspections (D2SI) for approval. The final rule incorporates FEMA’s suggestion that “the inspection team should be chosen on a site-specific basis considering the nature and type of dam … [and] should comprise individuals having appropriate specialized knowledge in structural, mechanical, electrical, hydraulic, and embankment design; geology; concrete materials; and construction procedures.” As a result, the final rule requires licensees to submit to the Director of D2SI an “independent consultant team proposal,” which includes one or more independent consultants and additional engineering or scientific personnel, as appropriate. It must demonstrate that the team members have an appropriate level of detail for the specific project under consideration. FERC’s final rule states that this change “reflects the reality that, for many of the projects under the Commission’s jurisdiction, a single independent consultant will not possess the appropriate degree and diversity of technical proficiency necessary to evaluate all aspects of the project.” The final rule retains the existing requirement that an independent consultant be a licensed professional engineer with at least 10 years of experience in dam design and dam safety, but does not apply that same requirement to other members of the independent consultant team.
FERC’s rule next codifies existing Commission guidance on the Owner’s Dam Safety Program (ODSP), requiring licensees of one or more high or significant hazard potential dams to prepare, maintain, file with FERC, and periodically update an ODSP. Licensees must also designate a person to be responsible for overseeing implementation of the dam safety program.
Finally, the final rule modifies FERC’s reporting and preparedness requirements related to public safety at FERC-licensed projects. It revises the definition of “project-related” incidents and clarifies that licensees are required to report public safety incidents related to project operation; to report rescues in addition to serious injuries and deaths; and to prepare, maintain, and submit a public safety plan to D2SI.