Safety, rights big issues with dams

Nov. 23--Dam owners are their neighbors' keepers. Changes to Virginia law in 2008 made dam owners liable for the safety of anyone living or driving downstream and required them to prepare their dams to withstand a storm so large that it will never, ever occur.

As more dam owners come to understand the millions of dollars necessary to increase the capacity of their spillways, their complaints of "over burdensome regulations" have trickled across lawmakers' desks. Occasionally, a complaint packs a wallop. Liberty University Chancellor Jerry Falwell Jr., for instance, faced a potential multimillion-dollar tap for the university's Ivy Lake Dam in Forest.

When Falwell speaks, his legislators tend to listen. Sen. Steve Newman plans to champion the cause to stem "a very big overreach" by the state regulations. This month the Virginia Association of Counties endorsed lending a greater political voice to small dam owners across the state.

Throughout the country, dam regulations are often shaped by politics. The 2008 overhaul resulted from owners' complaints, as did revisions to weaken them in 2010. The regulations are something few other than dam owners consider -- except when a dam breaks.

Dam safety regulations require sophisticated technology and engineering to comply. They involve "inundation zones" -- properties and people downstream -- and how they'd be affected if a "probable maximum flood" or "probable maximum precipitation" -- roughly a year's worth of rain falling in less than a day -- caused a dam and its spillway to fail.

Yet the current conflict can be distilled to the simplest of terms and the oldest of struggles: property rights.

Hazard creep

Until 2008, land-use planners could ignore dams when approving downstream development.

The law now forces dam owners to consider whether a failure would take a life or destroy valuable property. To do this, dam owners hire engineers to map downstream development before their permits are renewed, said Gary Waugh of the Virginia Department of Conservation and Recreation, the agency that regulates dams.

The mapping itself is costly, though state grants can help. But what follows can be tremendously expensive. If the inundation study finds it is "probable" that just one life would be lost should a dam fail, the dam's classification rises to a high hazard classification, regardless of how small the lake or pond. The revised regulations have more than doubled the number of dams tagged as high hazards. The greater classification carries tougher design standards that many dams cannot meet without million-dollar modifications. Also, older dams that were already considered high hazard, though deemed safe, must comply with today's more stringent design standards.

Dam owners question the fairness of being forced by the government to modify their property, perhaps even drain their lake, because others built downstream. But should downstream neighbors be prevented from building homes just because a dam is nearby?

Defenders of the regulations say the precautions protect the public. Opponents believe some regulation is necessary, but the requirements stray beyond what is reasonable.

"The new regulations came about exactly by this kind of action," Waugh said.

A dam owner thought the law was overly burdensome and lobbied legislators to prompt a review. That process took several years and led to the 2008 overhaul.

The revision narrowed dam classifications to three categories: high, significant and low hazard.

The classification sorts dams solely on their potential to claim lives and damage property.

Implementation comes slowly. Dam owners are awarded six-year operation permits. So it is only as a permit's expiration date nears that each dam owner is prompted to comply with the 2008 regulations. Increasingly, they are discovering downstream development bumps their dams into a higher classification, which, in turn, requires costly modifications to double or triple the size of their spillways.

In 2008, Virginia regulated 1,678 dams. Of those, 130 fell into the high hazard class, and 191 were classified as significant. By 2012, 37 fewer dams were regulated, but more than twice as many -- 285 -- were tagged high hazard, and 399 were classified as significant hazards.

"In 2008, we did upgrade the law relative to dam safety, but what was not considered is current technology," Newman said. "The ability to do the modeling is extraordinary and was not anticipated. ...It is hard not to find a dam that doesn't have a road or a house downstream."

It's called "hazard creep," latter-day downstream development that can make a low hazard dam suddenly a high hazard one requiring expensive upgrades.

DCR's Waugh said, "People built homes, schools and roads downstream. They [dam owners] now have to increase capacity. There was a disconnect between local land use and these dams."

While the 2008 law doesn't help dam owners swept into high hazard classification because of existing development, it will offer some relief from future development.

"Dam owners now share with the county the inundation zone maps that are to be used when making land-use decisions. If someone wants to build a factory in a flood inundation zone, and it requires the dam owner to meet [more stringent requirements], the developer can be found liable for up to 50 percent of the cost," Waugh said.

Storms of biblical proportion

Once a dam is classified as posing a high hazard, it must withstand a Noah-like flood called a "probable maximum flood" and "probable maximum precipitation," which is greater than a 1,000-year flood.

"PMF and PMP are used interchangeably and are just confusing to non engineers," said Don Rissmeyer , a civil engineer who spoke on behalf of the American Society of Civil Engineers Virginia Section. In shorthand, PMF is runoff, and PMP is rainfall.

"To give you an example, if you have a high hazard dam, you have to design the spillway for PMF without failure. To give you an idea, we get 37 inches of rain a year; the PMF is over 39 inches in a 24-hour period. That's a lot of rain," said Gary Robertson, executive director of water operations for Western Virginia Water Authority.

That's more than Hurricane Camille. Though the state reports one dam was breached, not one of the more than 150 fatalities from flooding is attributed to its failure.

By definition, PMP and PMF must be larger than the harshest recorded storm.

Like most Roanokers searching for a high-water frame of reference, Robertson refers to the flood of 1985.

"We had 3 feet of water going over our spillway at Carvins Cove. In a PMF, that would be 17 feet of water coming over our spillway. And you have to do the assumption that there is no rain downstream. The rain only hits your watershed," he said.

With punishing rain of that force and duration, would it matter if Lynchburg's small College Lake Dam failed?

"I understand our responsibility to protect lives and public land, but if we got flooding like that, I would have so many other problems in the city than to worry about that dam," said City Manager Kimball Payne.

Payne isn't alone in expressing that sentiment. Waugh, too, has heard it often. He counters, "In 1995 with Timberlake, there was already flooding in the area. The collapse of the dam caused two deaths downstream."

Roanoke County Engineer David Henderson agreed that extreme storms can stall and pummel small areas, putting dams to the test.

"When you have that type of intense rainfall, it is highly localized and may breach a dam," Henderson said. "It's a philosophical question: How safe is safe?"

How about some regulatory relief?

Almost as soon as the 2008 regulations were printed, complaints followed.

"Really, what Virginia did was to be more in conformance with the federal guidelines," Henderson said. "Any time you increase regulations, you increase compliance costs. Is it really required for public safety? Again, that's a philosophical question."

In 2010, lawmakers wrestled with that question amid complaints from dam owners. They eased regulations to allow existing high hazard dam owners to dodge costly spillway modifications.

Dam owners can squeak by as long as their spillways have the capacity to handle a 60?percent PMF -- or a storm that is still far more intense even than Hurricane Gaston that centered on Richmond in 2004 -- but only if they file reports, monitor the dam daily and buy insurance .

"The biggest complaint with the exception is the requirement to carry insurance to cover the losses downstream," Rissmeyer said. "It's costly, but still a lot cheaper than building a spillway."

Dam, that's costly

When Virginia rewrote the dam safety regulations, state officials estimated the cost to dam owners would be about $30 million for inundation mapping and $220 million for increasing spillway capacity, a factor that figured about $1?million for each impacted dam. Rissmeyer thinks that amount was off by about 50?percent.

That estimate did not include some dams such as Liberty University's 112-acre Ivy Lake. Under the new regulations, it has since been found deficient. Sticker shock prompted university officials and Ivy Lake residents to flex their political muscles; thus, the current exercise to revisit the regulations.

News stories in the Lynchburg News & Advance have chronicled the university's displeasure with the regulations and hinted at a possible lawsuit. A solution, though, is in the works. Liberty's general counsel, David Corry, declined to discuss the dam.

Robert Bashore, a former Bedford County supervisor living along Ivy Lake; his neighbor, professional engineer William Bowen; and design engineer David Roberson sent the governor a letter and attached several pages of research into dam regulations in Virginia.

They wrote, "The new regulations have added a cost of $856 million to dam owners who have already sought recertification since 2008, and there are an additional 100+ high hazard dams who have yet to seek recertification, which will create another $200 [million] to $300 million in costs to owners and taxpayers, bringing the total cost for all dams since 2008 to over $1 billion."

That letter prompted Mark Reeter, Bedford County administrator, to write the Virginia Association of Counties executive director to request that VACo get involved.

Reeter explained that local governments and property owners need to understand why dams that were always considered safe must now undergo "incredibly financially difficult fixes."

At VACo, Reeter found a cause mate, Botetourt County Supervisor Billy Martin, who serves on a VACo legislative steering committee. For many years, Martin has witnessed the plight of Rainbow Forest homeowners as they've sought to save what is left of their lake and dam. The Botetourt County supervisors in September endorsed VACo's involvement, concerned only that the position statement be strongly worded.

Martin said the estimate to bring Rainbow Forest's dam and spillway into compliance is nearing $1 million, a price that doubled since the homeowners won the attention of Del. Lacey Putney and $300,000 in state funding. Rainbow Forest's problems predate the 2008 regulations and are complicated by a road over the impoundment.

"We've been dealing with them for 20 years," DCR's Waugh said of Rainbow Forest. "All of a sudden they're worked up over the law change. The dam regulations have not changed. People downstream would die if that dam failed."

Repeated attempts were unsuccessful to talk with officers of the Rainbow Forest Recreation Association. The DCR in October renewed the dam's conditional permit but set deadlines to bring the dam into compliance.

Western Virginia Water Authority's Robertson encountered similar cost escalations for the 100-year-old Falling Creek earthen dam. The authority spent $2.1 million to rebuild it.

"That dam needed work regardless of the regulation, but I question the degree of work that would have needed done," Robertson said.

The authority expects soon to spend $1.1 million on the Beaverdam Creek Reservoir spillway, and engineers are doing 3-D modeling on Carvins Cove. If the analysis cannot prove the concrete dam will remain standing during a storm of a magnitude that likely will never occur, the authority could be required to spend up to $10 million to ensure it won't tip over, he said.

So far, the water authority has spent $5 million on dam compliance under the new regulations.

"It's tough on our budget, and we've been able to do it," Robertson said. "We have a customer base to provide some income. These privately owned dams don't have customers."

Governments, too, are concerned. In Botetourt County, officials anticipate the regulations might have a financial impact on the Greenfield impoundment.

Price of noncompliance

Waugh said as long as a dam owner is making progress, the agency works with them. It could issue fines, but prefers that the money is spent on public safety improvements. It could, as it has with Rainbow Forest, require the owner to lower the lake, or ultimately breach the dam.

Bashore notes the irony if the dam at Ivy Lake were to be breached. "Before 1985 when the dam was built, the area below it, Ivy Creek, flooded on a regular basis. Since it was built, there's been virtually no flooding."

Sen. Newman tires of constant talk of breaching of noncompliant dams.

"Lakes are an enormous resource," he said. "These lakes have wildlife and act as flood control. All that seems to be thrown out and not considered."

Civil engineer Rissmeyer, who works with dam owners, said, "The large majority of dam owners are bringing the dams into compliance. Some of the owners are just being stubborn, frankly."

Rissmeyer credits the state for allocating funds to help dam owners comply.

In 2012 and 2013, DCR made $1.1 million available in grants to dam owners and local government that could be used for planning and engineering costs related to dam repairs.

"To civil engineers, one of our most important goals is to maintain or improve public safety with our work, which was the intent behind the 2008 regulatory changes. Since then, some common sense legislation has helped provide relief to many dam owners while others have made arrangements to secure funding and bring their dams into compliance," Rissmeyer said.

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