FERC Proposes Significant Changes to Dam Safety Regulations in Wake of Michigan Dam Failures

WATER LAW

FERC Proposes Significant Changes to Dam Safety Regulations in Wake of Michigan Dam Failures

A satellite image of the Edenville Dam after the breach.

A satellite image of the Sanford Dam after overtopping.

On July 24, 2020, the Federal Energy Regulatory Commission (FERC) published a Notice of Proposed Rulemaking (NOPR) that proposes to overhaul the FERC dam safety regulations promulgated under section 10(c) of the Federal Power Act. The NOPR proposes revisions to part 12 of FERC’s regulations governing dam safety, including the replacement of subpart D, which provides for independent consultant safety inspections, in its entirety. Coincident with the NOPR, FERC also proposes to update its Engineering Guidelines for the Evaluation of Hydropower Projects by adding four new chapters addressing supporting technical information documents, the part 12 independent consultant safety inspection process, potential failure mode analysis, and level 2 risk analyses.

Background: The Edenville and Sanford Dam Failures

FERC’s proposed revisions to its dam safety program come on the heels of the catastrophic failure of two dams in central Michigan in mid-May. On May 19, 2020, the Edenville Dam on the Tittabawassee and Tobacco Rivers was breached during historic flooding. The downstream FERC-licensed Sanford Dam was overtopped by the increased flows from the Edenville breach. Evacuation orders were issued for around 10,000 residents in the area, and floodwaters from the dam failures encroached on downtown Midland, Michigan, and a nearby Dow Chemical complex. The Edenville Dam had formerly been licensed by FERC, but in 2018, after a long history of dam safety noncompliance, FERC directed the licensee to cease generation operations and then revoked its license, invoking its rarely used enforcement powers under section 31 of the Federal Power Act. Because FERC had revoked its license in 2018, the Edenville Dam, at the time of its failure, was under the jurisdiction of the Michigan Department of Environment, Great Lakes, and Energy (EGLE).

Following the Edenville and Sanford Dam failures, FERC ordered the licensee to fully lower the reservoirs behind the three FERC-licensed dams that were affected by the dam failure (Sanford Dam, Secord Dam, and Smallwood Dam), to perform safety inspections of the dams, and to immediately begin the formation of a fully independent forensic investigation team. FERC’s letter specifically noted that since the Edenville Dam was not under its jurisdiction, it would be coordinating with the EGLE to investigate the breach in that dam.

According to public statements made by FERC staff when formally introducing the NOPR to the commissioners at the monthly FERC public meeting on July 14, 2020, the proposed revisions to the dam safety regulations were not a response to the Edenville and Sanford Dam failures: The NOPR was substantially complete prior to the dam failure event. FERC staff instead described the revisions as a direct response to the 2017 spillway incident at the Oroville Dam in California, which caused the evacuation of close to 190,000 people living in communities downstream. This focus on the Oroville incident is echoed in the NOPR itself, which points to particular findings of the Oroville Independent Forensic Team and FERC’s own after-action panel as the basis for many of the revisions. Nonetheless, the regulatory history leading up to the Michigan dam failures—which drew heavy criticism from Capitol Hill—may have been a strong impetus for FERC to move forward with the rulemaking. The FERC commissioners mentioned the Michigan dam failures in their public remarks during the July 14 meeting in which FERC released the NOPR. Commissioner Richard Glick, in particular, indicated that it was quite possible that FERC would need to further strengthen the regulations once a report on the Michigan dam failures was issued. He also indicated that Congress needed to give the issue of dam safety some attention, postulating that it was possible that FERC did not currently have sufficient authority to protect the public, particularly when a licensee is reluctant to make investments in a project.

Summary of the Proposed New Dam Safety Regulations

The proposed revisions to FERC’s part 12 dam safety regulations consist of three major components:

• the establishment of a two-tiered inspection process alternating between comprehensive assessments that would be more in depth than current inspections and periodic inspections that would be slightly narrower in scope;

• revisions to ensure that independent inspection teams possess the specific expertise necessary for the particular project for which they are selected; and

• the codification of existing guidance that requires licensees of one or more high- or significant-hazardpotential dams to have an owner’s dam safety program. Each of these major changes is examined below, along with the potential industry response.

New Two-Tiered Inspection Process

The proposed new regulations maintain the current 5‐year interval between inspections. Under the proposed twotiered inspection process, the periodic inspection would include a physical field inspection as well as reviews of prior reports, surveillance and monitoring plan data, and dam and public safety programs. The comprehensive assessment would include all the elements of the periodic inspection, plus a potential failure mode analysis, a semiquantitative risk analysis, and the review of prior reports and analyses of record and the Supporting Technical Information Document. According to the NOPR, a potential failure mode analysis has been required under current inspections since 2002, but it is now being codified as part of the comprehensive assessment. The regulations allow the regional engineer to waive the semiquantitative risk analysis requirement so that this requirement can be gradually phased in while FERC staff are being trained, which will allow FERC to initially focus on higher-risk projects. Some in the industry have suggested that FERC should also be allowed to waive the potential failure mode analysis. The industry has also expressed interest in receiving training on these analyses as well as on other aspects of the enhanced inspection process.

In addition to the above requirements, the report for a comprehensive assessment must include an evaluation of the following items: spillway adequacy; the potential for internal erosion and/or the piping of embankments, foundations, and abutments; the structural integrity and stability of all structures under credible loading conditions; and analyses of record pertaining to geology, seismicity, hydrology, hydraulics, or project safety. The proposed regulations expand the existing requirements for evaluating spillway adequacy to include the potential for misoperation of, failure to operate, blockage of, and debilitating damage to a spillway, as well as the resulting effects on the maximum reservoir level and the potential for overtopping. The NOPR explains that these additional requirements are intended to address scenarios similar to the Oroville Dam spillway incident.

Timing of Periodic Inspections and Comprehensive Assessments

Under the proposed rules, the first inspection report for any project that was inspected prior to January 1, 2021, must be filed within 5 years of the due date of the previous report. The regional engineer may require that the first report filed under the new regulations be either a comprehensive assessment or a periodic inspection in order to balance the number of comprehensive inspections over the 10‐year cycle. Regardless, the first comprehensive assessment must be completed, with the report filed, by December 31, 2034. Additionally, the regional engineer may require a project to undergo a comprehensive assessment when it would otherwise be scheduled for a periodic inspection if there has been a dam safety incident; extreme loading conditions, such as those caused by an earthquake or unprecedented flooding; or some other significant change in condition. Alternatively, the regional engineer may extend the interval for comprehensive assessments for projects with no life safety consequences and a low total project risk.

The Washington, DC, headquarters of the Federal Energy Regulatory Commission.

Independent Consultant Requirements

The proposed regulatory revisions require independent consultant teams to collectively possess expertise “commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review being performed.” The NOPR indicates that expectations will be higher for teams involved with comprehensive assessments or with projects with higher risk, a history of “unusual or adverse performance,” or a greater number of more technically challenging project features. Licensees would be required to submit the résumés of all members of the independent consultant team rather than just that of the consultant and to obtain written approval of the team rather than simply submitting résumés, as is currently required. Some licensees have indicated a desire for greater clarity on what qualifications are necessary for an inspection team prior to beginning their solicitation processes.

Under FERC’s current regulations, an independent consultant must be a licensed professional engineer with at least 10 years of dam safety experience and may not be, or have been in the past 2 years, employed by the licensee or its affiliates. FERC notes in the NOPR that 10 years of experience would only be required of the designated independent consultants, not of the supporting members of the independent consultant team. The proposed revisions add an additional requirement that restricts the consultant from having been an agent acting on behalf of the licensee or its affiliates “in a manner and for a time period as defined in the [Engineering] Guidelines.” The NOPR indicates that FERC purposefully avoided setting specific thresholds for the scope or duration of the services previously provided by the consultant and that it intends to interpret this provision narrowly, “with the primary goal of ensuring that independent consultants are not responsible for reviewing work products to which they contributed to substantially.” Some in the industry are concerned that this additional restriction and the greater scrutiny afforded to the selection of independent consultants in general will limit the pool of consultants qualified to perform inspections.

Owner’s Dam Safety Program

The Owner’s Dam Safety Program, which has been imposed via guidance since 2012 and is now proposed for codification under FERC’s NOPR, imposes three main requirements on licensees of dams or other project features with a high or significant hazard potential. First, the licensee must designate either a chief dam safety engineer (in the case of high hazard potential) or a chief dam safety coordinator to oversee the implementation of the dam safety program. Outside parties may serve in this role, but if so, the owner must designate an individual responsible for overseeing the day-to-day implementation of the program and retains ultimate responsibility for the safety of the dams and other features covered by the program. Second, the program must be signed by the owner and the chief dam safety engineer or coordinator. Third, the program must be reviewed and updated annually and discussed with senior management. For licensees of one or more dams or project features with a high hazard potential, an independent external audit or peer review of the dam safety program must be conducted at least every 5 years. The qualifications of the proposed reviewers must be submitted to and accepted by the regional engineer. The industry has indicated some concerns regarding the requirement for an external audit in addition to the review of the Owner’s Dam Safety Program that is already embedded in the periodic evaluation and comprehensive assessment processes on the basis that the external audit is duplicative.

Additional Proposed Revisions

A facility can become subject to FERC’s inspection requirements in one of three ways: first, by having a dam over a certain height or an impoundment over a specified storage capacity; second, by having a project feature with high hazard potential; or third, at the discretion of the regional engineer. The proposed new regulations provide that, consistent with FERC’s existing informal practice, independent inspections are required for projects with any project feature (a dam, canal, or water conveyance structure) that has a high hazard potential, not only to projects with a dam.

As with the existing regulations, FERC would retain its discretion to exempt projects from its dam safety regulations for good cause, but the proposed regulations provide that all existing exemptions would be rescinded and licensees would have to reapply in order to receive an exemption. The proposed rules provide that good cause includes showing that the project features qualify as low hazard potential. Licensees have raised questions regarding whether lowhazard-potential projects that previously did not have to apply for an exemption would now have to apply and whether, as is suggested by chapter 16 of the Engineering Guidelines, a comprehensive assessment would be required in order for an exemption to be granted.

The NOPR also proposes several revisions to existing public-safety reporting requirements. The revised regulations express a “preference” for an initial oral report of a project-related safety incident within 72 hours. Reporting requirements are expanded to include rescues in addition to deaths or injuries, but FERC has attempted to limit the definition of project related by removing language that suggested an incident was project related if it occurred near a dam. FERC indicates that the revised definition clarifies that licensees are only required to report incidents that are “related to the operation of hydropower projects,” but some in the industry believe this raises the question of what types of incidents can be considered related, so FERC can expect requests for additional clarification from licensees.

The NOPR also revises recordkeeping requirements to require that projects subject to its dam-safety regulations provide the regional engineer with physical and electronic copies of records required to be maintained under the damsafety regulations. FERC indicated in the NOPR that it has historically required this information to be provided via the supporting technical information document and that, accordingly, this does not represent a change in practice. However, some in the industry object to the requirement to submit physical documentation in place of electronic versions.

What’s Ahead

FERC will be reviewing comments from the industry and other stakeholders on the proposed rules in the coming months against the backdrop of the Michigan dam failures, which—like the Oroville incident in 2017—placed FERC’s dam safety requirements under public scrutiny. In addition, FERC will undoubtedly be feeling pressure from Congress, which has already requested and received a response from the commission to a number of questions related to the dam breaches, to take action to prevent such incidents in the future. At the same time, FERC is fielding complaints from the owners of land adjacent to the FERC-licensed Sanford, Smallwood, and Secord Dams regarding the effect of the reservoir drawdowns on their property values and the stability of the shoreline. As in any rulemaking process, FERC will need to consider all public comments submitted in the NOPR process as it finalizes a rule that is intended to strengthen existing regulations and formalize long-standing informal practices into its dam safety regulatory regime, including comments raised by the industry, the public, and other interested parties.

In addition, as suggested by Commissioner Glick in FERC’s July 14 public meeting, Congress may decide to take action. For example, the proposed Moving Forward Act (H.R. 8) contains several provisions that are intended to strengthen FERC’s dam safety program.

Chuck Sensiba is a partner at Troutman Pepper. He can be contacted at charles.sensiba@troutman.com.

Melissa Horne is an associate at Troutman Pepper. She can be contacted at melissa.horne@troutman.com.