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The Regulatory Conundrum

By Matt Faris, Project Manager, Koontz-Bryant, P.C.

  1. The Background: A Dam, a Road, and a Lake

  2. In the evening of a cold Christmas Eve almost a century ago, a dam failure in Saltville, VA was responsible for the loss of 19 people. The Muck Dam impounded chemical wastes, and the failure impacted rivers as much as one hundred miles away. While there have been fewer than a dozen significant dam failures in Virginia since dam safety regulations were enacted in 1989, there have been at least three deaths attributed to dam failure. Dozens of smaller failures occur each year. There is little debate over the need for dam safety regulations that help ensure the safety and welfare of the citizens of the Commonwealth. As of August 2014, there were 2,921 dams registered in Virginia. These regularly updated regulations are currently enforced by the Virginia Department of Conservation and Recreation (DCR).

  3. Roads have existed in some form in Virginia for centuries. The state legislature authorized a toll road in Augusta County in 1772. With the development of mass-produced automobiles and the need for better management of the road systems, the State Highway Commission was formed in 1906. It became a state agency in 1927. There have been regulations related to highways and public transportation ever since. These regularly updated regulations are currently enforced by the Virginia Department of Transportation (VDOT).

 

  1. The Conundrum

  • The BMP plans have been approved by county with advice and consent from VDOT.
  • DCR has determined that the dam must be improved to current standards, based on state regulations.
  • DCR has indicated the owner (VDOT) must sign the application for a permit to alter the dam.
  • VDOT has determined that they own the dam, but will not maintain it.
  • DCR says the dam maintenance is the owner’s legal responsibility.

Both the DCR and VDOT are beginning to run into situations where the regulations within their Department are causing conflicts that are quite complex to resolve. There have been cases where a dam with a subdivision road on top was breached by a storm and VDOT has basically just closed the road, leaving a dry lake in the subdivision. VDOT’s position is basically that they maintain roads, not dams. DCR’s position is they regulate dams, not roads.

An even more complex situation can arise when the road is a major arterial where the initial right of way was acquired by the Byrd Act and subsequent right of way was acquired by VDOT to encompass an existing dam. Our firm has been involved with a situation which makes an interesting case study:
The original lake was built early in the 20th century. This 12 acre lake receives runoff from an area of approximately 1,220 acres, or almost two square miles, and by all accounts, has been functioning safely since it was built.

In the early 1950s, Virginia made the decision to widen one of the highways in the county that happened to be located on top of the dam that created the lake. There has been a road of some kind along this route for over a hundred years, and the dam was likely in a spot that also made it easier for early travelers to cross the creek. The procedure at that time resulted in the Commonwealth purchasing land from the then owner. As part of the widening plan, the VDOT designed and built a modified drainage structure that preserved the lake. This purchase took place thirty – three years before any dam regulations were created in Virginia.

As development continued in the county, property has been developed upstream of this lake. In the 1980s regulations were created to minimize the impact of stormwater runoff. Now those regulations require the reduction of the quantity and quality of stormwater run-off. As has been the case in many developments, the modification of the existing lake was determined to be the best way to meet these environmental requirements. With input from local and state authorities, the lake was re-designed to meet the requirements need for the entire 1,222 acre watershed. This resulted in the lake being classified as a Regional BMP, which eliminated the need for additional BMPs for the entire watershed.

The Regional BMP Plan was approved by state and local authorities in April 2008..


  1. The Regulations

  2. During the course of our discussions, the DCR has determined that this dam must have improvements made to bring the dam to current standards.  Current regulations require any alterations to this dam to be reviewed and approved by DCR. One requirement is that the “owner” of the dam signs the actual Alteration Permit application. In this case, that’s the Commonwealth of Virginia.

    Current regulations also say that VDOT will not purchase land for a road that is on a dam.  Moreover, current regulations prevent VDOT from performing any maintenance on a dam.  If the DCR enforces the dam regulations as written,  any work that changes the geometry of the dam (i.e., asphalt overlay, rip rap slope protection, etc.) will require an alteration permit be obtained by VDOT, as the road surface serves as the emergency spillway for the BMP.  Raising the surface will affect the performance of the dam.

    As of this writing, VDOT has indicated they will sign the Alteration Permit as owner of this dam; however responsibility for the dam operation and maintenance issues still have to be worked out between the DCR, VDOT and adjacent owners .  Based on current regulations, VDOT  will no longer purchase land that includes a dam for the purpose of building a road. This begs the question: Can the current position by VDOT be applied retroactively?  It can be argued that this agreement is required for future roads, like the ones upstream of the existing dam that will result in the need for the environmental requirements discussed above.

  1. The Long Term Impact

  2. This example illustrates the potential conflicts that arise between State Agencies with the growing number of regulations.  They are generally based on protecting the health, safety and welfare of the citizens of the Commonwealth.  The employees of the departments involved are all working to resolve these conflicts.  Unfortunately, their decisions are limited by the code. Getting clarification may require even more legislation.

    The Lesson

  3. Safe dams are essential to our everyday lives. They control floods, create water storage for agriculture and drinking water, aid in the protection of valuable streams and bodies of water and provide recreational areas for the entire Commonwealth and its visitors. If not designed, constructed and maintained properly, dams can also cause problems affecting natural and man –made resources as well as the safety of the general public.
  4. In spite of the well-intended legislation passed by Virginia’s leaders, there is always the chance that some conflicts arise. While we’re confident that there will be a resolution that serves to the benefit of all parties in this matter, anyone with a stake in an existing or proposed dam should be aware of the variety of issues that may arise. Koontz-Bryant will be happy to help sort out the possible impacts that may occur. For more information on the subject, please contact Matt Faris.