Introduction

Virginia is home to over 10,000 miles of shoreline and many thousands of acres of water comprised of a large variety of differing types of waterbodies.  As a result, Virginia is also home to thousands of dams both public and private.  In fact, in 2018 there were over two thousand state-regulated dams in the Commonwealth.[1]  As will be explained below, this number does not include a great many dams which are excluded from state regulation, so the actual number of dams in Virginia is likely far greater.  With so many dams it should come as no surprise that clients often contact our waterfront law team with legal questions pertaining to dams.  In this article we will attempt to answer some of the more common questions.

Dam image courtesy US Forest Service

Let’s cover a few basics about dams before diving into the legal and regulatory framework around dam safety.  The National Geographic Society’s Encyclopedia sums things up nicely:  “A dam is a structure built across a river or stream to hold back water.  People have used different materials to build dams over the centuries.  Ancient dam builders used natural materials such as rocks or clay.  Modern-day dam builders often use concrete.  Manmade dams create artificial lakes called reservoirs.”  When it comes to the reasons why dams fail, the Association of Dam Safety found that 1/3 of all dam failures are the result of “overtopping” (caused by water spilling over the dop of the dam).  Other noteworthy causes identified by that organization are foundation defects, cracking, inadequate maintenance and upkeep, and piping. 

Virginia Law and Regulation Around Dam Safety

Virginia has an entire section of its legal code devoted to dams.  In Virginia, most dams are regulated by the Virginia Dam Safety Act (”the Act”), codified as Virginia Code 10.1-604 et seq.  As its name implies, the purpose of the Act is to provide for proper and safe design, construction, operation and maintenance of dams to protect public safety.  The Virginia Soil and Water Conservation Board (“the Board”) is responsible for issuing regulations under the Act, but the day-to-day management of the program has been delegated to the Virginia Department of Conservation and Recreation (DCR).  The Board’s regulations are codified at 4 VAC 50-20-10 to 400.  Additionally, some localities have set up local Advisory Committees to advise the Board and DCR regarding issues specific to that community.  Va. Code §10.1-606.

Owners of dams which fall under the Act must apply to the Board for an Operation and Maintenance Certificate.  They must also file an Emergency Action Plan with local authorities.  Dams which are subject to regulation under the Act are classified by regulators according to their potential to create a hazard to life or to cause serious economic loss in the case of dam failure. The possible classifications are “high,” “significant,” or “low.”  The hazard classification determines how often and by whom the dam must be inspected, and what type of permits are required for construction or repair.  Every dam must be inspected by the owner at least once a year.  In addition to these annual inspections by the owners, a high hazard dam must undergo an inspection by a professional engineer every two years.  By contrast, a low hazard dam need only be inspected by a professional engineer every six years, or in some cases not at all. All inspection reports must be submitted to the proper authorities at the intervals specified in the Act.

DeStefano: Shutterstock

Additionally, the owner must obtain appropriate permits prior to construction or repair of any regulated dam.  Owners of low hazard dams will probably qualify for the less stringent “General Permit,” whereas a more complex Certificate of Approval will likely be required for dams classified as significant or high hazard structures.  Va. Code §10.1-605.3.

Furthermore, owners of regulated dams are prohibited from allowing certain trees or other vegetation to grow within 25 feet of their dams, and are even required to remove any vegetation which may start growing there.  Va. Code § 10.1-609.2.  Of note, the requirement to remove vegetation does not apply to certain wetland vegetation, and in fact removing wetland vegetation without approval could have serious legal consequences. 

Many property owners are surprised to learn that members of the Board or its agents have the right to enter onto their private property “at reasonable times and under reasonable circumstances to perform such inspections and tests or to take such other actions it deems necessary to fulfill its responsibilities under this article, including the inspection of dams that may be subject to this article, provided that the Board or its agents or employees make a reasonable effort to obtain the consent of the owner of the land prior to entry.”  Va. Code §10.1-610.  Failure to allow officials to enter for these purposes can result in civil penalties and/or criminal prosecution. Similarly, agents of the Board are required to make periodic inspections to monitor ongoing construction or repairs to regulated dams in order to ensure that the work is proceeding in accordance with the applicable General Permit or Certificate of Approval. If discrepancies are noted, the officials can issue an Administrative Order requiring  the owner to come into compliance. Va. Code §10.1-610.1.  If a property owner feels that he has been aggrieved by such an Administrative Order, he may appeal under the Administrative Process Act.  However, property owners should be aware that appealing the decision of an administrative agency is complex and the process must be followed exactly in order to have any chance of success.  You should definitely consult experienced legal counsel (the earlier the better) if you think that your interactions with regulatory officials may be heading in a direction that could result in your desire to challenge the legitimacy of an Administrative Order in court.  

Notwithstanding the above, not every dam falls under the authority of the Act. The Act explicitly exempts dams which do not meet certain size and/or capacity thresholds. It also exempts dams which are owned or licensed by the federal government, and dams which are used for certain specific purposes such as mining.  Va. Code §10.1-604.  That being said, even if you believe that your dam is exempt from regulation under the Act, it would be a mistake to perform work on a dam without consulting a waterfront property attorney first to make sure.  This is because the penalties for performing unauthorized alterations to a dam can be quite severe.

For example, if a property owner fails to comply with the Act, the Board may bring suit in circuit court seeking an order requiring the owner to modify or remove the dam.  If the suit is successful, the owner will be responsible not only for the cost of the modification or removal, but also for reimbursing the Board for its legal fees and costs expended in taking the owner to court. Va. Code §10.1-613. In addition, it is a crime to knowingly operate, construct or alter a dam in violation of the Act.  Violators can be found guilty of a Class 3 misdemeanor, and may also be subject to a civil penalty up to $500 per day of violation (not to exceed $25,000).  Va. Code §10.1-613.1

Conclusion

If you are a commercial or private property owner with questions about a dam or if you have any other concerns about riparian property rights, contact Pender & Coward and our team of waterfront lawyers. We’re standing by and ready to help navigate your unique situation - Click here to Schedule Your Consultation.

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[1] https://damsafety.org/virginia