On behalf of Dewberry & Davis LLC I am writing to provide comments concerning the proposed Virginia Dam Safety Regulations which were published for public comment on August 20, 2007.  I would like to start out by commending the Department of Conservation and Recreation (DCR) for undertaking this effort to revise the dam safety regulations with the goal of improving the safety of Virginia’s dams.  On the whole we believe the proposed regulations are a significant improvement over the current regulations.  The regulatory changes concerning permitting and reporting requirements, emergency action plan development and clarification of terminology are much needed enhancements to the regulations.  In particular, the updated criteria for development of emergency action plans will go a long way towards increasing safety for persons and property located within potential dam break inundation zones.

After reviewing the proposed regulations and background information concerning their development, it is clear that one major objective of the new regulations is to remove distinction between existing and proposed dams with regards to meeting prescribed standards, particularly concerning spillway capacity.  It is this objective towards which the following comments are directed.

One important aspect of the current (existing) dam safety regulations is recognition that judgment of competent and experienced professional engineers should weigh heavily into dam safety evaluations.  Section 130 of the current (existing) regulations provides consideration for existing dams constructed prior to the enactment of the Virginia Dam Safety Regulations and allows issuance of regular operation and maintenance certificates to dams that may not satisfy current criteria provided that the dam does not pose an unreasonable hazard to life and property.  Sound engineering judgment on the part of competent and experienced professional engineers has been required to make these determinations.  Similarly, Table 1 of the current (existing) regulations states that it was not the intention to establish rigid design flood criteria and “Safety must be evaluated in the light of peculiarities and local conditions for each impounding structure and in recognition of the many factors involved” again requiring the judgment of competent and experienced professional engineers.  Statements to this effect have been conspicuously removed from the proposed regulations.  In the past Dewberry has worked successfully with staff from the Division of Dam Safety on a number of dam safety projects where the experienced judgment of both DCR and Dewberry staff was involved in the evaluation and selection of appropriate design criteria for both existing and proposed dams.  This collaboration has always been considered a critical component of the design process and in our opinion should remain so.

We understand and appreciate the notion that in the interest of public safety there should be no distinction between existing or new dams when it comes to design criteria.  While it is difficult to argue against this position from a public safety standpoint, the implication is that funding should not be a factor when it comes to public safety.  However, funding is usually a factor which must be considered alongside risk when making decisions concerning rehabilitation of the nation’s infrastructure.  Upgrading dams to meet current design standards can often be cost prohibitive and in some cases unwarranted if a significant improvement in public safety is not achieved.  It should be recognized that design criteria is subject to change and it is therefore possible for a recently constructed dam, which met all criteria in effect at the time of design, to be found non-compliant with current criteria.  Under the proposed regulations this would automatically result in issuance of a conditional operation and maintenance certificate and the need for the dam owner to plan for potentially expensive upgrades regardless of the level of risk imposed by the deficiency.

In conclusion, it is our the opinion that engineering judgment and risk assessment should remain a key element in making determinations concerning the need for dam upgrades and in prioritizing/scheduling dam rehabilitation projects and this principle should not be lost with the adoption of new dam safety regulations.  We therefore encourage the Department of Conservation and Recreation to continue distinguishing between existing and new dams in the regulations and to recognize the need for case by case evaluations of existing dams with respect to meeting current design criteria.  Accordingly, we support further consideration of Alternative 2 as described in the Ad Hoc Dam Safety Study Committee report dated 4-30-05, which outlines an alternative procedure for regulation of existing dams.