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Case Study: Regulated Earthen Dams - When is a Gift Not a Gift?

By Chris Workman, Director of Environmental Services, Koontz-Bryant, P.C.

Have you ever gotten something that you thought was free, just to find out that there were unseen strings attached that all of a sudden made the gift very costly?
This is what some landowners are finding out about the “little lake” that is on their property. When they bought the property several years ago - maybe for an investment opportunity, maybe for recreational use - the seller might have made a point of noting that the beautiful lake or pond on the property was a bonus or a sure reselling point, and it came with the property at no extra charge.

This gift may have been enjoyed for years without incident or cost - until now. The Virginia Department of Conservation and Recreation (VDCR) promulgates the Virginia Impounding Structure Regulations, which was amended to its current form on December 22, 2010. Part of their mission is to identify the earthen dams associated with ponds and lakes on private land throughout the Commonwealth that meet minimum physical criteria and to see that those regulated dams are promptly brought into current compliance.
Many landowners have recently received notification from the VDCR requiring them to bring their heretofore unnoticed dams into compliance. For some, this will be a very costly exercise. Dams that are 25 feet or greater in height and create a maximum impounding capacity of 15 acre-feet are regulated. Oh, your dam is less than 25 feet in height? Dams that are 6 feet or greater in height and create a maximum impounding capacity of 50 acre-feet or greater are also regulated. The VDCR uses a simple formula to determine if your dam qualifies:

Height (ft.) times (x) maximum impoundment area (acres) times (x) 0.4 must be less than 50 acre-feet. (Example: 20 foot high x 6½ acres x 0.4 = 52 acre-feet. Your dam is regulated!)

In many cases, the dams that are regulated are listed in a database available to the VDCR and to other professionals. That is how the VDCR identified you as a dam owner in the first place. Having been identified, you are now required to bring your dam up to current compliance.

As an example: a certain client owned what he considered a very small dam impounding a small pond - just big enough to fish or swim in. The pond is located in the middle of the woods in the middle of a rural 40-acre site. Complete failure of the dam would most likely not affect anyone at all. Out of the blue (no communication for at least seven years), he received a letter from the VDCR requiring him to bring his dam into current compliance. He hired Koontz-Bryant to conduct a visual review of the property, pond, and earthen dam just to verify some information. This review determined that the dam was only 20 feet in height. Unfortunately, the VDCR database listed his dam as impounding 65 acre-feet, well above the minimum threshold. Examination of an aerial photograph determined that the “pond” impounded at least approximately 43 acre-feet. In order to contest the VDCR’s numbers, he would be required to perform a costly survey of the lake to accurately determine the current impoundment volume, which, in the end, would not guarantee exemption from the regulations.

To make matters worse, the earthen dam is densely populated with mature hardwoods. Current regulations require all trees to be removed from the dam itself and from the adjacent vicinity. His principal spillway is rusted and will probably require replacement. The emergency spillway is heavily eroded and will probably require major reworking. Finally, the current regulations require a hydraulic analysis of the dam to verify that the dam can adequately handle the applicable storm event. Remediation of these items could cost tens of thousands of dollars.

As an alternative, our landowner is trying to pursue the Agricultural Exemption in the regulations. The land is zoned Agricultural and the property is heavily forested. The regulations exempt, in some cases, property that is used for certain agricultural purposes and is serviced by the impounded waters. The VDCR has the final authority on the exemption. If the exemption is approved, then he would not be required to meet any of the criteria in the current regulations. The VDCR provides the necessary forms needed to pursue this exemption.

Do you own property with an earthen dam? Have you recently received a letter from the VDCR directing you to bring your dam into current compliance? If you need help with any of these issues Chris Workman will be happy to offer any assistance or guidance needed to help you navigate through the regulations, and he can conduct the necessary engineering required by the regulations to bring you into compliance. Chris can be reached at 804-200-1920 or via email.