ASDSO Flyer on Dam Ownership Responsibility and Liability

damsafety.org

ASDSO Flyer on Dam Ownership Responsibility and Liability

Responsibility and Liability“Common law holds thatthe storage of water is ahazardous activity.”INTRODUCTIONDams are owned and operatedby individuals, private and publicorganizations, and the government.The responsibility for maintaininga safe dam rests with the owner.A dam failure resulting in anuncontrolled release of the reservoircan have a devastating effect onpersons and property downstream.Tens of thousands of public andprivate dam owners in the UnitedStates have exposure to liability forthe water stored behind their dams.For many owners, the properoperation and maintenance of adam is only one aspect of theirorganization’s activities. But,safely maintaining a dam is a keyelement in preventing a failure andlimiting the liability that an ownercould face.ASSOCIATION OF STATEDAM SAFETY OFFICIALS450 Old Vine StreetLexington, Kentucky 40507859.257.5140www.damsafety.orgDAMOWNERSHIP


DAM FAILUREAND OWNER LIABILITYRISKMANAGEMENTMOREINFORMATIONThe failure of a dam has the potential for catastrophicimpact on communities, private property and public worksdownstream. The record of dam performance suggests thatthere are approximately 10 to 20 failures per year involvinguncontrolled release of the reservoir. Experience revealsthat the failure of even small dams can result in seriousinjuries, fatalities and extensive property damage.LOSS FROM FAILUREThe cost of dam failure is difficult to assess becauseflooding can affect large areas. The dam owner loses avaluable asset, and faces reconstruction costs and possibleliability for downstream damages. Local communities maybe directly impacted due to building damage, injuries,fatalities, lost water supply, damage transportation andinfrastructure, and lost recreational assets.STRICT LIABILITY AND NEGLIGENCEIn many cases, a dam regulated by the federal governmentor a state dam safety program must be designed towithstand an unprecedented flood or earthquake.COMPLIANCECompliance with government or professional standardsdoes not absolve an owner from liability, but it doesestablish a minimum standard of care to be used byowners. The extent of liability in any situation depends onthe facts of the case and how those facts are interpreted bya judge or jury.Consequently, actions that result in owner liability in onestate may not result in liability in different states. Ingeneral, a dam owner is required to use “reasonable care”in the operation and maintenance of a dam and reservoir.“In today’s litigious society it issafe to assume that in the case ofcatastrophic dam failure, extensivelitigation will ensue. Any competentlawyer, representing the victims,will sue all possible wrong doersin seeking redress…including…theowners and operators of the facility,and…architects, engineers, contractors,sub-contractors, and consultantsinvolved in the original constructionand any subsequent modifications…”– Denis Binder, Professor of Law, Western New EnglandCollege of LawFor information on state dam safety statues and administrativerules, contact:• State Dam Safety Office• Association of State Dam Safety Officials• State Attorney General’s OfficeAdditional information and technical assistance can beobtained from the following federal, state and localagencies:• Office of Emergency Services• U.S. Army Corps of Engineers• U.S. Department of the Interior, Bureau of Reclamation• U.S. Department of Agriculture-Soil Conservation Serviceong>ASDSOong>'s Web site – Tools and downloadable guidelines areavailable. www.damsafety.orgThe extent of an owner’s liability will vary from state tostate, depending on the statutes and case law precedents.The concept of strict liability imposes liability on a damowner for damages that occur regardless of the cause offailure. The alternative theory of negligence considers thedegree of care employed by the owner in constructing,operating and maintaining a dam. Historically, courts havesought to compensate those injured by a dam failure.When assessing liability, the standard of care exercisedby an owner will be closely examined. The standard ofcare should be in proportion to the downstreamhazards involved. Where the risk is great, owners must beespecially cautious.An essential and logical part of an organization’smanagement program is the control of potential lossesthat may arise. To manage risks, and owner can utilize acombination of standard operating procedures, employeetraining, regular maintenance, emergency preparednessand liability insurance.A dam owner can take several actions to protect againstfinancial loss. Technical guidance and information isavailable from your state’s Dam Safety office.Each dam should have:• A state dam safety permit (if applicable)• An operation plan, documented regular maintenanceplan and emergency action plan• Documented periodic inspections• Warning signs and controlled access

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