Preproposal statement of inquiry was filed as WSR 03-22-040.
Title of Rule: Dam safety, chapter 173-175 WAC.
Purpose: The purpose of this rule amendment is to modify fees that are collected from owners of existing dams and those proposing to build new dams or modify existing dams.
Statutory Authority for Adoption: RCW 43.21A.064, 43.21A.080, 86.16.061, and 90.03.350.
Statute Being Implemented: RCW 90.03.470.
Summary: (1) Increase fees for plan review and construction inspection, and (2) apply a new fee (but previously authorized by RCW 90.03.470) for periodic inspection of high and significant hazard dams.
Reasons Supporting Proposal: Legislative action requires increase in revenues to cover new periodic inspection staff person.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Doug Johnson, 300 Desmond Drive, Lacey, WA, (360) 407-6623.
Name of Proponent: Washington Department of Ecology, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: This rule amendment will do two things: (1) Increase fees for plan review and construction inspection, and (2) apply a new fee (but previously authorized by RCW 90.03.470) for periodic inspection of high and significant hazard dams.
Proposal Changes the Following Existing Rules: (1) Increase fees for plan review and construction inspection, and (2) apply a new fee (but previously authorized by RCW 90.03.470) for periodic inspection of high and significant hazard dams.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Due to size limitations relating to the filing of documents with the code reviser, this SBEIS does not contain all of the appendices to the SBEIS that explain the agency's analysis of the data collected. Additionally, it does not contain all of the raw data used in this analysis, or all of ecology's analysis of this data. However, this information is being placed in the agency's rule-making file, and is available upon request. To obtain a copy please call, write, e-mail or fax your request to David Cummings, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6620, fax (360) 407-7162, e-mail email@example.com.
LEGISLATIVE BACKGROUND: The amendments to chapter 173-175 WAC, Dam safety, are driven by legislative instructions in the operating budget for fiscal years 2004 and 2005. The legislature addressed (1) shortfalls in revenue for the review and approval of new dam construction, for existing facility modification plans, and for construction inspection, and (2) generation of revenue for periodic safety inspection of existing dams. This included money for support of the existing Washington program and to allow progress in bringing the program up to national standards.
The existing fee structure required state general fund appropriations to cover: A significant portion of the plan review and construction permit function, and the periodic inspection program. The legislature decided to provide resources for interim activities and improvements and expressed its preference for moving to greater fee revenue support for these activities via its budget notes to the final operating budget as follows:
House Version - Funding is provided for an additional staff person in FY 2005, to increase the inspections of high risk dams to every five years, rather than the current schedule of every six to ten years. Fees for approving new dam construction and modifications will be increased to cover the actual cost of plan reviews, and fees for periodic dam inspections will be instituted to begin covering the cost of inspections. During the 2003-05 biennium, $243,000 in new revenue to replace the state general fund will be generated if fees are instituted before January 2004.
Senate Version - Funding is increased to reflect new fees for approving new dam construction and modifications to cover the actual cost of plan reviews. Fees for periodic dam inspections will be instituted to begin covering the cost of inspections.
The amendments to chapter 173-175 WAC that the Department of Ecology is proposing are in response to these legislative directives. Process and procedure requirement language is fundamentally unchanged except for removal of obsolete provisions, clarification, and reorganization. This discussion focuses on rule changes regarding fees proposed in response to the legislative directives described here.
DEFINING THE REGULATED COMMUNITY: Ecology's inventory of dams potentially subject to this rule includes over three hundred entities. Some of the activities covered by this analysis are done by both the private and public sector. The department removed the public entities from within the electric utilities, water purveyors, irrigation districts, solid waste facilities and the like, which are not subject to this analysis. Removing these cut the size of the list approximately in half. The remainder was used to develop a set of illustrative entities for this discussion.
The remaining dam operations were reviewed by program and agency staff in order to identify the economic sector (standard industrial classification or SIC) into which these fell. In some cases, this could be done with reasonable confidence. In others, best judgment estimates were made. Some could not be identified.
Businesses use dams for a range of uses, from basic agriculture to recreation. The sectors listed below are represented at least once in the ecology dam inventory. Not every industry having at least one dam that comes under this rule is included here. In some cases, data limitations prevented inclusion of industries. However, this list was constructed to indicate the range of uses to which the dams or reservoirs might be put. Readers whose industry of interest is not included on this list should be able to find another industry performing comparable work.
Disproportionate impact can occur when small firms build large dams. In many cases, the fees implied by the revised rule would be expected to be small relative to the revenue estimated for many typical firms in these sectors; i.e., smaller projects are correlated with smaller businesses. On the other hand, relatively small businesses (as measured by employment) may choose to undertake larger projects at higher costs based on an economic/financial analysis of the effects upon their activity. In short, it has been assumed that the magnitudes and ranges of impacts displayed here are generally representative of a larger scope, and that the results here might be usable on a broader basis.
The industries (and associated SICs) examined in this analysis include:
|1521||General Contractors - Single Family Dwellings|
|2033||Canned Fruits, Vegetables, Preserves, Jams and Jellies|
|2037||Frozen Fruits, Fruit Juices, and Vegetables|
|2421||Sawmills and Planing Mills - General|
|7011||Hotels and Motels|
|7992||Public Golf Courses|
|7997||Membership Sports and Recreation Clubs|
|7999||Amusement and Recreation Services Not Elsewhere Classified|
|8641||Civic, Social, and Fraternal Associations (includes many community or homeowners associations)|
|0161||Vegetables and Melons|
|0175||Deciduous Tree Fruits|
|0181||Ornamental Floriculture and Nursery Products|
|0212||Beef Cattle, Except Feedlots|
CONSTRUCTION AND MODIFICATION PLAN REVIEW AND PERMITTING FEES: RCW 90.03.470(9) authorizes the Department of Ecology to collect the actual cost of these activities for the construction of dams and other controlling works for storage of ten acre feet or more of water. The fees are listed in Table 4 in the rule, which displays dam height (on the vertical axis) and dam crest length (horizontal axis), with the fee amount shown at the intersection of these values for a given project. For dams with heights and crest lengths between table values, the nearest listed value is used (no interpolation).
The existing fee table (at WAC 173-175-370) was developed in 1992 and was expected to yield revenue equal to 95% of actual costs based on experience at that time. The 95% figure was used to guard against overcharging. It was weighted toward larger dams (expected to average two per year) in order to keep costs down on medium and small dams.
Actual experience since 1993 has shown that the workload has been more heavily weighted toward small and medium stormwater dams. The existing fee structure does not generate the necessary revenue to cover 95% of actual costs. In fact, current fees cover only about 37% of actual costs This, taken in conjunction with salary upgrades for engineering classifications, general pay increases, etc. has created a revenue shortfall.
The values shown in the revised permit fee table (at proposed WAC 173-175-360(2)) reflect the additional experience gained over the past decade and are aimed at restoring a revenue flow approximately equal to 95% of presently incurred costs, which is equivalent to an average of 1.3 FTE. The proposed fees are a significant part of the cost impact analysis to follow.
The discussion has focused on new projects. Fees for approving plans for modifications of existing dams, and construction inspection of such projects, are based on the table described above - but at a specified fraction - ranging from 10 to 35 to as high as 80% of Table 4 entries - of the costs found by use of the table alone. (Activities resulting in permit fees as high as 80% of the tabular value can occur if more than one element of the project is modified simultaneously.) Thus, the results and relationships discussed here would also apply in these cases, but at lower magnitudes. In cases where modifications to the dam are required by the department for safety reasons, a flat fee of $1400 dollars is to be charged. This reduced fee is intended to reduce the impact of department-required repairs on individuals and small businesses, and to secure greater cooperation with dam owners.
Organizing the impact data: No changes are proposed to how one would obtain approval of dam construction or modification project requirements of chapter 173-175 WAC. However, the fees involved in this process have changed, and these fee changes are analyzed below.5 Table 1 (WAC 173-175-130 (4)(e)) contains three dam size categories - one of which must be included in the engineering design report that is part of the permit application for the construction or modification of a dam.
A set of ranges for the proposed fees was used for analysis. These are:
By Dam Height
|New Rule||Old Rule|
|5 feet to 14 feet||new minimum
fee = $1,400
fee = $8,736
fee = $500
fee = $3,120
|15 feet to 46 feet||new minimum
fee = $1,652
fee = $26,656
fee = $590
fee = $9,520
|50 feet or greater||new minimum
fee = $5,320
fee = $56,000
fee = $1,900
fee = $20,000
Results: The tables in Appendix A display cost impacts on small and large companies for the SIC codes listed above. These impacts result from the imposition of the low and high fees for various dam sizes. The unit of measure is fee costs as a percentage of revenue. The following table represents only one of the SICs analyzed, and is included as an example of the work done on each SIC. Only one SIC code table is presented here due to space limitations. (See Appendix A for the remaining SICs.)
|SIC 2037 FROZEN FRUITS, FRUITS JUICES, AND VEGETABLES|
|Minimum Dam Fees $1,400||0.036%||0.003%|
|Maximum Dam Fees $8,736||0.224%||0.016%|
|Minimum Dam Fees $1,652||0.042%||0.003%|
|Maximum Dam Fees $26,652||0.683%||0.050%|
|Minimum Dam Fees $5,320||0.136%||0.010%|
|Maximum Dam Fees $56,000||1.434%||0.106%|
PERIODIC SAFETY INSPECTION FEES: RCW 90.03.470(8) authorizes the collection of the actual cost of safety inspections. There is currently no fee associated with these inspections, and has not been since the 1940's. Fees charged in the 20's and 30's did not recover the full cost of the inspection including technical analysis back at the office. The original fee appears to have only covered site visits in most cases.
The policy of not charging fees for inspections was adopted in the interests of securing greater cooperation with the regulated community. This means that the costs of activities related to a complete inspection have been borne out of state general fund appropriations. It further means that the department's six to ten year inspection cycle has been unable to fully attain the national standard five year inspection cycle for high risk dams. Part of the costs of addressing this is contained within the appropriation for an additional FTE in the operating budget. This issue is also addressed via the emphasis on institution of fees to cover periodic inspection costs. Revisions to chapter 173-175 WAC addressing this issue are in proposed WAC 173-175-750 and 173-175-760, which establish fees for inspection of high and significant hazard dams. The inspection fees are prorated for the number of years in the inspection cycle.
The legislature asked ecology to move toward supporting periodic dam safety inspection programs through fees in the budget notes quoted on page one of this SBEIS and in the language of RCW 90.03.470(8). The language establishing inspections is found in proposed WAC 173-175-700 through 173-175-720 and 173-175-730.
WAC 173-175-720 and 173-175-730 cover nonroutine inspections and inspections at public request. Proposed language in WAC 173-175-750 and 173-175-760 would establish periodic inspection fees, a process by which fee adjustment occurs, and would use the fiscal growth factor in fee adjustment.
The language splits base-level fees into two categories: "High hazard dams" and "significant hazard dams." The details for each dam hazard class are in Table 3 in WAC 173-175-130. Fees are as follows:
High Hazard Dams: $4,000 - The fee would be prorated at $800 per year on a five year cycle.
Significant Hazard Dams: $2,500 - The fee would be prorated at $500 per year if a five year inspection cycle is attained. If workload or staffing requires a longer inspection cycle, dams with significant downstream hazard classifications may be placed on a ten year cycle with a total inspection fee of $2,500 and a prorated fee of $250 per year. See the proposed language at WAC 173-175-705.
This proration of the inspection fees is intended to mitigate the impact of the full fee for those who might have difficulty paying the entire fee at one time. It is likely that the great majority of those subject to the fee would choose to pay in installments rather than losing use of the funds involved for up to four years.
Results: Both small and large companies own dams in each hazard class. Within any given industry where both small and large companies own dams, there will be a disproportionate impact. These impacts result from the imposition of the significant or high hazard fees on firms of varying sizes. The unit of measure is fee costs as a percentage of revenue. The following table represents only one of the SICs analyzed, and is included as an example of the work done on each SIC. Only one SIC code table is presented here due to space limitations. (See Appendix C for the remaining SICs.)
|SIC 0175 DECIDUOUS TREE FRUITS|
|Small Firm Revenue||Large Firm Revenue|
THE FISCAL GROWTH FACTOR: Ecology will use the fiscal growth factor to adjust the fees every July.
The fiscal growth factor (FGF) is based on changes in population and price inflation. It is used to identify limits on state expenditure and on changes in fees or other sources of revenue that may be required to maintain program service levels or establish new programs. The FGF is calculated and issued as a percentage. The proposed dam safety rule directly incorporates the FGF into the fees to provide for long term stability in the revenue base.
Normally, agencies are not allowed to increase fees by more than the FGF. In this case the legislature provided a catch up window for the department to use to bring the dam safety program closer to self-support. The 2003 - 2005 operating budget (ESSB 5404.PL) contains the following proviso at Section 302(5):
Fees approved by the Department of Ecology in the 2003-05 biennium are authorized to exceed the fiscal growth factor under RCW 43.135.055.
The department's proposed rules set the base fees based on actual costs incurred. Future fees would be determined via equations that explicitly incorporate the FGF and the statutory provision (RCW 43.135.055(1)) that limits the degree to which fees may increase without legislative approval.
Observations and conclusions: Given that all the fees have a disproportionate impact and given that the fiscal growth factor is a simple multiplier, the increases will, by definition have a disproportionate impact on small business.
MITIGATION AND CONCLUSIONS: Given that the department has found a disproportionate impact, mitigation is required where legal and feasible. The proposed changes to chapter 173-175 WAC are responses to legislative directives as reflected in the budget notes cited on page one of this document. The directives are to develop fee systems adequate to fund the department's activities related to review of plans and construction for new projects and modifications of existing projects. In addition, fees funding the program for periodic safety inspections of existing dams are to be employed. These directives are sufficiently explicit that only limited mitigative modifications are feasible. The department has provided the following cost minimizing features:
The periodic safety inspection fees are prorated over time. Further there are two risk categories, rather than a single fee for all dams. Thus, where small companies have lower risk dams, they will be able to have lower fees.
The construction permit fee is staggered based on size rather than being a flat fee. Further, for projects to repair safety deficiencies identified by the department, the fee is set at the lowest level on the fee table, $1,400 (see Table 4 in WAC 173-175-370).
OUTREACH TO SMALL BUSINESSES DURING RULE DEVELOPMENT: Small businesses that currently own and operate high and significant hazard dams were mailed a "frequently asked questions (FAQ) about proposed fees for dam safety inspections" in February of 2004. After the rule-making preproposal was published, dam safety staff met with some groups that support small businesses, such as the Washington State Department of Agriculture, the National Resource Conservation Service, and local conservation districts. The dam safety office manager also made a presentation to the water resource programs Water Resource Advisory Committee (WRAC). A number of small business-related groups are members of the WRAC, such as the Small Business Association of Washington, the Washington Farm Bureau, the Washington Dairy Federation, the Association of Washington Business, the NW Food Processors Association, the Building Industry Association of Washington, the Pacific Coast Federation of Fishermen's Associations, and others. Dam safety staff have received a number of inquiries from small businesses as a result of dissemination of the contents of the WRAC briefing among their memberships. This has resulted in clarification of the need for rule making. In a few cases, the dam safety employees have eliminated future fee assessments for small businesses that own low hazard dams, who had been incorrectly classified as owning high or significant hazard dams.
|1||For a table summarizing the change in the fees see Appendix B.|
|2||The data came from the 1997 Census of Agriculture for Washington with adjustment for agricultural commodity price changes to 2002 levels via the Index of Prices Received by Farmers published in Washington Agricultural Statistics 2002.|
|3||The Employment Security Department information provided the number of employees and employers by employment size class (e.g., 1-4, 5-9, etc. up through fifty or more). Employment served as the basis for division of the businesses between small and large. The Department of Revenue data included total business income and taxable income (e.g., gross income under the business and occupation tax). These data allowed calculation of estimated average revenue for small and large firms.|
|4||Readers should recognize that this analysis uses a data set that represents conditions in one particular year – 2002. This is the latest year for which all important data is available or can be estimated with some precision. The degree to which this information represents the future obviously varies. In the meantime, it is the best information generally available that is suited for this analysis.|
|5||The total number of dam height/crest combinations in Table 4 is unchanged at 720.|
A copy of the statement may be obtained by writing to David Cummings, phone (360) 407-6620, fax (360) 407-7162.
RCW 34.05.328 does not apply to this rule adoption. RCW 34.05.328 (5)(a)(i) mandates that this section applies to any "significant legislative rule" of the department of ecology. RCW 34.05.328 (5)(c)(i) defines a "significant legislative rule" as a rule other than a procedural or interpretive rule that (a) adopts substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction; (b) establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit; or (c) adopts a new, or makes significant amendments to, a policy or regulatory program. Since RCW 34.05.328 (5)(c)(i) definitions of "significant legislative rule" do not apply here, RCW 34.05.328 does not apply to this rule adoption.
Hearing Location: Spokane on May 26, 2004, at 7:00 p.m., at the Department of Ecology Eastern Regional Office, 1st Floor Large Conference Room, North 4601 Monroe, Spokane, WA 99205; Wenatchee on May 27, 2004, at 7:00 p.m., at the Wenatchee Senior Activity Center, Card Room, 1312 Maple Street, Wenatchee, WA 98801; Lacey on June 1, 2004, at 7:00 p.m., at the Department of Ecology Auditorium, 300 Desmond Drive, Lacey, WA 98504; and Mount Vernon on June 3, 2004, at 7:00 p.m., at the Mount Vernon Police and Court Campus, Multipurpose Room, 1805 Continental Place, Mt. Vernon, WA 98273.
Assistance for Persons with Disabilities: Contact Judy Beitel by May 19, 2004, (360) 407-6878 or 711 (TTY) or 1-800-833-8973 (TTY).
Submit Written Comments to: David Cummings, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-6620, firstname.lastname@example.org, fax (360) 407-7162, by June 11, 2004, 5 p.m.
Date of Intended Adoption: August 1, 2004.
April 20, 2004
AMENDATORY SECTION(Amending Order 91-17, filed 6/1/92, effective 7/2/92)
WAC 173-175-010 Purpose and authority. These regulations provide for the comprehensive regulation and supervision of dams in order to reasonably secure safety to life and property pursuant to chapters 43.21A, 43.27A, 86.16, 90.03, 90.28, and 90.54 RCW. The purposes of these regulations are to:
(1) Designate the types of dams to which these regulations are applicable;
(2) Provide for the design, construction, operation, maintenance, and supervision of dams in a manner consistent with accepted engineering practice;
(3) Establish and administer a program for permitting of construction work for new dams and for modifications of existing dams;
(4) Establish a fee schedule based on dam size that will reflect the actual cost to the department of engineering review of plans and specifications and for construction inspections;
(5) Establish the requirements and owner responsibilities for developing and executing plans for operation and maintenance, owner inspection and emergency actions; and
Encourage owners to establish a program for the
periodic inspection of their projects.)) Establish a program
for the periodic inspection by the department of existing
dams, and a fee schedule for these inspections based on
downstream hazard classification and frequency of inspections.
This fee schedule will reflect the actual cost to the
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-010, filed 6/1/92, effective 7/2/92.]
The ten acre-feet threshold applies to any dam which can impound water of any quality, or which contains any substance in combination with sufficient water to exist in a liquid or slurry state at the time of initial containment.
(2) For a dam whose dam height is six feet or less and which meets the conditions of subsection (1) of this section, the department may elect to exempt the dam from these regulations.
The decision by the department to exempt a dam will be made on a case-by-case basis for those dams whose failure is not judged to pose a risk to life and minimal property damage would be expected (downstream hazard class 3).
(3) These regulations do not apply to dams that are, or will be, owned, by an agency of the federal government which has oversight on operation and maintenance and has its own dam safety program for periodic inspection and repair of safety deficiencies of completed projects. The department will continue to be the state repository for pertinent plans, reports, and other documents related to the safety of federally owned dams.
(4) These regulations do not apply to transportation facilities such as roads, highways, or rail lines which cross watercourses and exist solely for transportation purposes and which are regulated by other governmental agencies.
Those transportation facilities which cross watercourses and which have been, or will be, modified with the intention of impounding water on an intermittent or permanent basis and which meet the conditions of subsection (1) of this section shall be subject to these regulations.
(5) These regulations do not apply to dikes or levees constructed adjacent to or along a watercourse for protection from natural flooding or for purposes of floodplain management.
(6) These regulations do not apply to concrete or steel water storage tanks.
(7) These regulations do not apply to FERC licensed projects and to FERC exempted projects. The department will continue to maintain a repository for pertinent plans, reports, and other documents related to the safety of FERC licensed and FERC exempted projects.
[Statutory Authority: 1995 c 8. 95-22-030 (Order 94-15), § 173-175-020, filed 10/24/95, effective 11/24/95. Statutory Authority: RCW 43.21A.064, [43.21A].080 and 86.16.061. 93-01-090 (Order 92-35), § 173-175-020, filed 12/16/92, effective 1/16/93; 92-12-055 (Order 91-17), § 173-175-020, filed 6/1/92, effective 7/2/92.]
"Acceptance" means acceptance by the department that the proposed plan(s) will satisfactorily address issues associated with proper operation, maintenance, inspection, or emergency action.
"Annual exceedance probability" means the chance that a specified magnitude of some phenomenon of interest, such as a flood or earthquake, is equaled or exceeded during a given year.
"Approval" means approval by the department that the proposed design, and plans and specifications conform to accepted engineering practice and department guidelines.
"Appurtenant works" means such structures as outlet works and associated gates and valves; water conveyance structures such as spillways, channels, fish ladders, tunnels, pipelines, or penstocks; powerhouse sections; and navigation locks, either in the dam or adjacent thereto.
"Authorization" means written acknowledgement from the department to proceed with proposed actions.
"Construction change order" means a revision to the department approved plans and specifications that is initiated during construction.
"Construction permit" means the permit which authorizes construction and that the project's plans and specifications and construction inspection plan have been reviewed and approved by the department.
"Construction permit process" means the sequence of activities specified in WAC 173-175-110 inclusive, beginning with the application for construction permit and ending with the submission of a report summarizing construction records.
"Crest length" means the total horizontal distance measured along the axis of the dam, at the elevation of the top of the dam, between abutments or ends of the dam. Where applicable, this includes the spillway, powerhouse sections, and navigation locks, where they form a continuous part of the impounding structure.
"Critical project element" means an element of a project whose failure could result in the uncontrolled release of the reservoir.
"Dam" means any artificial barrier and/or any controlling works, together with appurtenant works that can or does impound or divert water.
"Dam abutment" means that contact location at either end and beneath the flanks of a dam where the artificial barrier joins or faces against the natural earth or rock foundation material upon which the dam is constructed.
"Dam height" means the vertical distance from the natural bed of the stream or watercourse at the downstream toe of the impounding barrier to the maximum storage elevation. If the dam is not across a stream or watercourse, the height is measured from the lowest elevation of the outside limit of the impounding barrier to the maximum storage elevation.
"Department" means the department of ecology.
"Design step level" means an integer value between one and eight used to designate increasingly stringent design loadings and conditions for design of critical project elements. Design steps have a range in annual exceedance probability from one in five hundred at Step 1 to one in one million at Step 8.
"Downstream hazard classification" means a rating to describe the potential for loss of human life and/or property damage if the dam were to fail and release the reservoir onto downstream areas. Downstream hazard classifications of 3, 2 and 1C, 1B, 1A correspond to low, significant, and high downstream hazard classes respectively.
"Emergency condition" means a situation where life and property are at imminent risk and actions are needed within minutes or hours to initiate corrective actions and/or warn the public.
"Enlargement" means any modification of a project that will result in an increase in normal pool height and/or dam height.
"Exigency condition" means a situation where the dam is significantly underdesigned according to generally accepted engineering standards or is in a deteriorated condition and life and property are clearly at risk. Although present conditions do not pose an imminent threat, if adverse conditions were to occur, the situation could quickly become an emergency.
"FERC exempted project" means a project that is classified as exempt by the Federal Energy Regulatory Commission (FERC) under provisions of the Federal Power Act.
"FERC licensed project" means a project whose operation is licensed by the Federal Energy Regulatory Commission (FERC) under provisions of the Federal Power Act.
"Freeboard" means the vertical distance between the dam crest elevation and some reservoir level of interest.
"Hydrograph" means a graphical representation of discharge, stage, or other hydraulic property with respect to time for a particular location on a watercourse.
"Impounding barrier" means the structural element of the dam that has the primary purpose of impounding or diverting water. It may be constructed of natural and/or man-made materials.
"Incident" means the occurrence of any dam-related event where problems or conditions arise which may have posed a threat to the safety or integrity of the project or which may have posed a threat of loss of life or which resulted in loss of life.
"Inflow design flood (IDF)" means the reservoir inflow flood hydrograph used for sizing the spillways and for determining freeboard. It represents the largest flood that a given project is designed to safely accommodate.
"Maintenance" means those tasks generally accepted as routine in keeping the project and appurtenant works in a serviceable condition.
"Maximum storage elevation" means the maximum attainable water surface elevation of the reservoir pool that could occur during extreme operating conditions. This elevation normally corresponds to the crest elevation of the dam.
"Miscellaneous construction elements" means a variety of construction elements or activities such as, but not limited to: Reservoir linings; parapet walls or low berms for wave containment; minor reconstruction of isolated portions of the impounding barrier; internal drainage improvements; and erosion protection.
"Modification" means any structural alteration of a dam, its reservoir, spillway(s), outlet(s), or other appurtenant works that could significantly influence or affect the project safety.
"Normal pool height" means the vertical distance between the lowest point of the upstream toe of the impounding barrier and the normal storage elevation.
"Normal storage elevation" means the maximum elevation to which the reservoir may rise under normal operating conditions. Where the principal spillway is ungated, the normal storage elevation is usually established by the elevation of the spillway crest.
"100-year floodplain" means the area inundated during the
passage of a flood with a peak discharge having a one percent
chance of being ((
equalled)) equaled or exceeded in any given
year at a specified location on a watercourse.
"Outlet" means a conduit and/or channel structure for the controlled release of the contents normally impounded by a dam and reservoir.
"Owner" means the person holding lawful title to the dam or any person who owns or proposes to construct a dam.
"Periodic inspection" means a detailed inspection of the dam and appurtenant works conducted on regular intervals and includes, as necessary, associated engineering analyses to confirm the continued safe operation of the project.
"Person" means any individual, firm, association, county, public or municipal or private corporation, agency, or other entity whatsoever.
"Plans and specifications" means the detailed engineering drawings and specifications used to describe the layout, materials, construction methods, etc., for assembling a project or project element. These do not include shop drawings or other drawings prepared by the construction contractor for temporary construction support systems.
"Population at risk" means the number of people who may be present in areas downstream of a dam and could be in danger in the event of a dam failure.
"Project" means a dam and its reservoir either proposed or existing.
"Project engineer" means a professional engineer licensed in Washington, having direct supervision, as defined in WAC 196-24-095, in managing the engineering aspects of the project as representative of the owner.
"Reservoir" means any basin that contains or will contain the water impounded by a dam.
"Reservoir routing" means the procedures used to determine the attenuating effect of reservoir storage on a flood as it passes through a reservoir.
"Rule curve" means the rules and procedures used to regulate reservoir levels and project operation for various reservoir inflows and for both normal and unusual seasonal conditions.
"Significant enlargement" means any modification of an existing dam that results in the dam height or normal pool height being increased by an amount greater than 5.0 feet, and which also represents a ten percent or greater increase in dam height or normal pool height over that which existed prior to the modification.
"Spillway" means a channel structure and/or conduit for the safe release of water or floodwater.
"Stop work order" means an administrative order issued to temporarily halt construction work until a problem can be resolved.
"Substantially complete" means that a plan, action, or project element requires only minor additions to be complete, and in its present state will perform the necessary functions for its intended use.
"Surficial inspection" means a visual inspection conducted to identify obvious defects or changed conditions.
[Statutory Authority: 1995 c 8. 95-22-030 (Order 94-15), § 173-175-030, filed 10/24/95, effective 11/24/95. Statutory Authority: RCW 43.21A.064, [43.21A].080 and 86.16.061. 93-01-090 (Order 92-35), § 173-175-030, filed 12/16/92, effective 1/16/93; 92-12-055 (Order 91-17), § 173-175-030, filed 6/1/92, effective 7/2/92.]
A declaration stating the project was constructed in accordance with the department approved plans and specifications and construction change orders.
The department will provide a declaration form which may be used or altered, as appropriate, by the project engineer.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-230, filed 6/1/92, effective 7/2/92.]
(1) A summary of results from field testing of materials used in construction. The summary shall identify both representative values and the range of test values;
(2) A discussion of any notable items encountered during construction;
(3) One complete set of drawings describing the as-built condition of the dam. These drawings shall be submitted in both paper and electronic format.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-250, filed 6/1/92, effective 7/2/92.]
(2) The fees in Table 4 are automatically adjusted annually on July 1st by the fiscal growth factor as calculated under chapter 43.135 RCW. After July 1st of each year, the department shall publish the adjusted fees by providing notice on its internet site and by providing written notification by mail or electronic mail to permit applicants.
(3) Fees for the review of plans and specifications and for construction inspection for new dairy waste impoundments shall be in the amount of one thousand four hundred dollars, provided the project meets the following requirements:
(a) The facility has a low downstream hazard classification;
(b) The maximum embankment height is less than fifteen feet;
(c) The facility conforms with a set of standard plans and specifications prepared by the Natural Resource Conservation Service (NRCS) and approved by the department;
(d) The NRCS or its designee provides periodic oversight of construction to ensure that the facility conforms to the standard plans.
If the project fails to meet any of the above requirements, the standard fees as described under subsection (1) of this section shall apply.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-360, filed 6/1/92, effective 7/2/92.]
TABLE 4. CONSTRUCTION PERMIT FEES - NEW PROJECT CONSTRUCTION
|Dam Height (ft)||CREST LENGTH (FEET)|
(3) Fees for the review of plans and specifications and for construction inspection for repair of a dam with safety deficiencies as required by the department shall be one thousand four hundred dollars.
(4) Fees for the review of plans and specifications and for construction inspection for the removal or partial removal of a dam with safety deficiencies for the purpose of eliminating a public safety hazard shall be the minimum fee of ten dollars.
(4))) (5) Fees for the review of plans and
specifications and for construction inspection for the planned
abandonment and reclamation of dams and reservoir areas used
in mining operations shall be the minimum fee of (( five)) one
thousand four hundred dollars.
MODIFICATIONS NOT INVOLVING
Appurtenant Works and Miscellaneous Construction Elements
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-370, filed 6/1/92, effective 7/2/92.]
(a) An initial payment, which may represent all or a portion of the construction permit fee shall be paid in conjunction with the submittal of the construction permit application described in WAC 173-175-120. The amount of the initial payment shall be:
(i) Ten dollars for the removal of a dam with safety deficiencies as described in WAC 173-175-370(3); or
Five)) One thousand four hundred dollars for
construction of a new dam or modification of an existing dam
(b) The balance of the fee amount (less the initial payment above) is to be paid following notification by the department of the balance due.
(c) All fees collected are nonrefundable.
(2) No fee shall be required for the review of conceptual plans which describe proposed repairs or improvements to existing dams to correct safety deficiencies. The normal construction permit process will apply at the time plans and specifications are submitted to the department.
(3) No additional fees shall be required for plan and specification changes and resubmittals required by the department as part of the review process.
(4) No additional fees shall be required for review of construction change orders.
[Statutory Authority: 1995 c 8. 95-22-030 (Order 94-15), § 173-175-390, filed 10/24/95, effective 11/24/95. Statutory Authority: RCW 43.21A.064, [43.21A].080 and 86.16.061. 93-01-090 (Order 92-35), § 173-175-390, filed 12/16/92, effective 1/16/93; 92-12-055 (Order 91-17), § 173-175-390, filed 6/1/92, effective 7/2/92.]
The manual shall describe procedures for operation of the project under normal and extreme reservoir inflow conditions and provide technical guidance and procedures for monitoring, inspection, and long-term maintenance. Information on the development of the O&M manual is contained in the department's Dam Safety Guidelines. The O&M manual shall include, as a minimum, the following items:
(a) Identification of the individual(s) responsible for implementing the plan;
(b) A project data sheet describing the pertinent features of the dam and reservoir, including the spillway(s), outlet works, and appurtenant structures and their locations at the dam site;
(c) The rules and procedures (rule curve) used to regulate reservoir levels and project operation for various reservoir inflows and for both normal and unusual seasonal conditions;
(d) A description of each hydraulic element used to regulate or release water, including information on proper operation and scheduled maintenance;
(e) A listing of the items requiring periodic monitoring, the frequency of monitoring and procedures for monitoring, measurement, and recordkeeping;
(f) A listing of the items requiring periodic maintenance and procedures for conducting and documenting maintenance and recording of problems;
(g) A listing of items to be inspected or test operated, the frequency and procedures for conducting the same and for documenting the findings.
(2) It shall be the duty and responsibility of the owner to, at all times, operate and maintain the dam and all appurtenant works in a safe manner and condition and follow the method and schedule of operation of the dam as outlined in the O&M manual.
For dams constructed before July 1, 1992, owners
are required to develop an O&M manual by December 31, 1997.
In those cases where a failure of the dam could pose a threat to life (downstream hazard classes 1A, 1B, 1C, and 2), the O&M manual shall be submitted to the department for review and acceptance.
(4))) Any proposed changes to the O&M manual which could have an effect on public or project safety must be submitted to the department for review and acceptance before implementation.
(4) The OM manual must be updated within one hundred eighty days after a periodic inspection has been completed by the department.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-500, filed 6/1/92, effective 7/2/92.]
(a))) (1) Required to conduct annual surficial
inspections and to maintain records of their findings,
including records of actions taken to correct problem
conditions. (( Copies of such records shall be provided to the
department upon request.))
The annual surficial inspections may be conducted by the owner or by agent(s) designated by the owner, or by a professional engineer.
(b) Encouraged to implement a program for the periodic
inspection of their project(s) on a five-year frequency to be
conducted by a professional engineer.
(c) Required to notify the department at least thirty days in advance of when periodic inspections are scheduled to allow department engineers to participate in the inspection.
(d))) (2) Owners are required to submit a copy of the
engineering report(s))) annual inspection checklist and
other documents which contain the findings(( , conclusions, and
recommendations)) resulting from the (( periodic)) annual
inspection within thirty days following the completion (( of
the various documents)).
(2) In order to correct safety deficiencies and
exigency conditions, owners are required to take actions and
make modifications as prescribed by the department to preserve
the structural stability and integrity of the project and
attain levels of safety in accordance with accepted
(3) The department may elect to conduct periodic inspections of particular projects to reasonably secure safety to life and property.
(a) The department will give at least thirty days advance notice of the date of the periodic inspection and advise the owner of any requirements such as gates or valves that are to be operated during the inspection.
(b) Owners are required to develop an Operation and maintenance manual (WAC 173-175-500) and an Emergency action plan (WAC 173-175-520) within one hundred eighty days following completion of a periodic inspection conducted by the department.))
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-510, filed 6/1/92, effective 7/2/92.]
(a) The EAP shall describe procedures for responding to unusual or emergency situations and procedures for detecting, evaluating, communicating, and initiating notification or warning of individuals who may be at risk in downstream and upstream areas. Information on the development of an EAP is contained within the department's Dam Safety Guidelines.
(b) It shall be the duty and responsibility of the owner to implement the EAP when conditions warrant and to follow the method and schedule contained within the EAP.
For dams constructed before July 1, 1992, owners
are required to develop an EAP and to submit it to the
department for review and acceptance by December 31, 1997.
(i))) Owners are required to coordinate the development of the EAP with representatives from the local emergency services staff, state department of community development, emergency management division, and appropriate local authorities.
(ii))) (d) Copies of the completed EAP must be provided
to the state emergency management division, local emergency
services office, and to the department.
(2) Any proposed changes to the EAP which could have an affect on public or project safety must be submitted to the department for review and acceptance before implementation.
(3) Owners are required to exercise components of the EAP as needed to confirm the viability of the plan.
(4) The department will coordinate and solicit review comments from the local emergency services office and the state emergency management division on the acceptability of proposed EAPs. Those comments will constitute the primary basis for accepting or requesting modifications to a proposed EAP.
(5) The EAP must be updated within one hundred eighty days after a periodic inspection has been completed by the department.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-520, filed 6/1/92, effective 7/2/92.]
(a) Altering the operation of the project;
(b) Lowering the reservoir water level;
(c) Draining the reservoir;
(d) Making emergency repairs or modifications to the project;
(e) Enlisting the services of federal, state, or local authorities to make emergency repairs or modifications to the project;
(f) Breaching the dam.
(2) All costs incurred by the department as a result of taking control of the project will be charged to the owner.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-610, filed 6/1/92, effective 7/2/92.]
(2) Any dam which is found to be under construction or recently constructed without prior approval of the plans and specifications is in violation of RCW 90.03.350 and will be presumed to be a public nuisance. The owner will not be allowed to fill the reservoir or continue to operate the reservoir until the structural integrity and safety of the facility can be demonstrated to the satisfaction of the department. In addition:
(a) Regulatory orders may be issued to enforce the
restriction of reservoir filling and fines may be levied at
one hundred to five thousand dollars per day ((
up to an amount
equal to one hundred fifty percent of the amount the owner
would have been charged under the construction permit fee
schedule listed in this chapter));
(b) Owners are required to submit as-built drawings and all available documentation describing the manner in which the dam or portion thereof was constructed;
(c) If the structural integrity and safety of a dam project cannot be demonstrated or confirmed to the satisfaction of the department, the owner shall not commence or resume normal operation of the project until all outstanding issues or problems are resolved to the satisfaction of the department. To accomplish the above, the department may:
(i) Order the outlet works to remain fully open and not allow filling of the reservoir;
(ii) Restrict reservoir water levels or reservoir operation;
(iii) Order the breaching of the impounding barrier;
(iv) Take other measures as appropriate to reasonably assure safety to life and property.
(d) If, in the opinion of the department, the owner is unwilling or incapable of resolving the outstanding safety issues in a timely manner, the department may take action to have the dam abated as prescribed by law under RCW 90.03.350.
(3)(a) In order to correct safety deficiencies and exigency conditions as identified by the department on existing dams, owners are required to take actions as prescribed by the department to preserve the structural stability and integrity of the project and attain levels of safety in accordance with accepted engineering practice.
(b) If the owner does not take action to correct safety issues in a timely manner, regulatory orders may be issued to require modifications, and to restrict the filling of the reservoir until all outstanding issues or problems are resolved to the satisfaction of the department.
(c) If the owner continues to be unwilling or incapable of resolving the outstanding safety issues, the department may take action to have the dam abated as prescribed by law under RCW 90.03.350.
[Statutory Authority: RCW 43.21A.064, [43.21A.]080 and 86.16.061. 92-12-055 (Order 91-17), § 173-175-620, filed 6/1/92, effective 7/2/92.]PART SIX
PERIODIC INSPECTION PROGRAM
WAC 173-175-705 Periodic inspection by the department. (1) As authorized by RCW 43.21A.064, the department has the authority to conduct routine periodic inspections of all existing dams with high and significant downstream hazard classifications to reasonably secure safety to life and property.
• Dams with high downstream hazard classifications will be inspected every five years.
• Dams with significant downstream hazard classifications will be inspected every five years, or ten years if workload or staffing necessitates a longer cycle between inspections.
• Dams classified as low hazard are not included in the periodic inspection program.
(a) The department will give at least thirty days notice of the date of the periodic inspection and advise the owner of any requirements such as gates or valves that are to be operated during the inspection.
(b) Fees shall be charged for periodic inspections conducted by the department. The amount of the fee and owner requirements for the fee payment are described in WAC 173-175-755 through 173-175-775.
(2) The downstream hazard classification of existing dams shall be determined by the department in accordance with WAC 173-175-130, Table 3.
(3) The classification of each dam shall be reviewed during each periodic or other inspection and may be changed as the result of such inspection.
Components of a periodic inspection
(4) Each periodic inspection shall consist of, but not be limited to, the following:
(a) Review and analysis of available data on the design, construction, operation, and maintenance of the dam and its appurtenances;
(b) Visual inspection of the dam and its appurtenances, the downstream area, and all other areas affected by the structure;
(c) Evaluation of the safety of the dam and its appurtenances, which may include assessment of the hydrologic and hydraulic capabilities, structural stabilities, seismic stabilities, and any other condition which could constitute a hazard to the integrity of the structure;
(d) Evaluation of the downstream hazard classification;
(e) Evaluation of the operation, maintenance, and inspection procedures employed by the owner and/or operator; and
(f) Review of the emergency action plan for the dam including review and/or update of dam breach inundation maps.
(5) The department shall prepare a written safety inspection report that describes the findings from the inspection and lists remedial actions that must be taken to ensure the continued safety of the dam.
(6) The department shall provide the dam owner with a copy of the written report of the periodic inspection. The dam owner must correct any identified safety deficiencies in a timely manner.
(a) Determining downstream hazard classification;
(b) Condition inspections during or immediately after emergencies such as floods or earthquakes;
(c) When problems or conditions arise that may pose a threat to the integrity of the dam;
(d) Obtaining routine monitoring data and information.
(2) No fees shall be charged to the dam owner for nonroutine inspections.
(a) Impounds ten or more acre-feet of water at the dam crest level; and
(b) Is endangering public safety or property, or has been constructed without prior department approval.
(2) The department shall provide a copy of the written report of findings to the complainant and dam owner.
(3) The dam owner shall be required to correct any identified safety deficiencies or exigency conditions in a timely manner.
(4) Dams found to be under construction or recently built without prior approval of the plans and specifications will be subject to enforcement actions as described under WAC 173-175-620(2).
(5) No fees shall be charged to the dam owner for inspections at public request.
PERIODIC INSPECTION FEES
WAC 173-175-755 Periodic inspection fees. The department is required by RCW 90.03.470(8) to collect in advance the actual cost, including the expense incident thereto, of the inspection of any dam to insure safety to life and property. Fee amounts contained in this section represent the department's true estimate of the cost of performing periodic dam safety inspections as described in WAC 173-175-705, and reflect the department's commitment to fully recover all eligible expenses.
(a) Equation 1 below is used to calculate the annual inspection fees.
|Annual Inspection Fee||=||(COSTFGF)||÷||(Cycle)||Equation 1|
(i) Cycle = number of years between inspections, with five years being the minimum.
(ii) FGF = an annual fiscal growth factor expressed as a percentage, as determined under chapter 43.135 RCW.
(iii) COSTFGF = cost of inspection in dollars including a fiscal growth factor. The cost is obtained by multiplying the inspection cost in the preceding year by the current year's fiscal growth factor as follows:
|COSTFGF||=||Previous year's cost x [1 + (FGF)] Equation 2|
(c) The cost for an inspection by the department in the base year will be as follows:
(i) $4000.00 for dams with high downstream hazard classifications, with a prorated annual fee of $800.00 for a five-year inspection cycle.
(ii) $2500.00 for dams with significant downstream hazard classifications, with a prorated annual fee of $500.00 if a five-year inspection cycle is implemented, or $250.00 if a ten-year inspection cycle is implemented.
(2) Inspection fee for impoundments with multiple dams. For reservoirs or impoundments with a main dam and one or more saddle dams, a single annual inspection fee will be charged for the facility. The dam with the highest downstream hazard rating will be used for fee computation.
(3) Inspection fee for multicell impoundments. For multicell impoundments, such as wastewater lagoons, where two or more cells are located side-by-side or share a common embankment, a single annual inspection fee will be charged for the facility. The cell with the highest downstream hazard classification will be used for fee computation.
(4) Inspection fee for nonroutine inspections. For nonroutine inspections as described in WAC 173-175-725, no fees will be charged to the dam owner.
(5) Inspection fee for inspections at public request. For inspections done at public request, as described in WAC 173-175-735, no fees will be charged to the dam owner.
Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
WAC 173-175-775 Periodic inspection fee computation. (1) The department shall charge inspection fees based on the fee schedule contained in WAC 173-175-765. After July 1st of each year, the department shall publish the adjusted fees by providing notice on its internet site, and by providing written notification by mail or electronic mail to owners of high and significant hazard dams. The inspection fees must be received by the department within forty-five days after the department mails a billing statement.
(2) Inspection fee computation. Computation of fees shall begin on the first day of each fiscal year. In the case of new dams not previously covered by the inspection program, fee computation begins on the first day of each fiscal year following completion of construction.
Department of Ecology
Dam Safety Inspection Fee Program
P.O. Box 5128
Lacey, Washington 98509-5128.
(2) In the event a check is returned due to insufficient funds, the department shall consider the permit fee to be unpaid.
(3) Delinquent accounts. Permit holders are considered delinquent in the payment of fees if the fees are not received by the first invoice billing due date. Delinquent accounts will be processed in the following manner:
(a) Municipal and government entities shall be notified by certified mail that they have ninety days to bring the delinquent account up-to-date. Regulatory orders may be issued to enforce a restriction of reservoir filling until all delinquent fees are paid on accounts that remain delinquent after ninety days.
(b) Nonmunicipal or nongovernment permit holders shall be notified by the department by certified mail that they have ninety days to bring the delinquent account up-to-date. Accounts that remain delinquent after ninety days will be turned over for collection. In addition, a surcharge totaling twenty percent of the delinquent amount owed will also be added. The surcharge is to recover the costs for collection. If the collection agency fails to recover the delinquent fees after twelve months, the department may issue regulatory orders to enforce restriction of reservoir filling until all delinquent fees are paid.
The following section of the Washington Administrative Code is repealed:
|WAC 173-175-070||Effective date.|