[40 Pa.B. 2211]
[Saturday, April 24, 2010]
[Continued from previous Web Page]
Subchapter B. DAMS AND RESERVOIRS
GENERAL PROVISIONS § 105.71. Scope.
Except as provided in §§ 105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter governs the construction, [alteration, enlargement, repair, maintenance,] operation [and removal] , maintenance, and modification of a dam or reservoir regulated under the act.
PERMITS, LETTERS OF AMENDMENTS AND LETTERS OF AUTHORIZATIONS § 105.81. Permit applications for construction and modification of dams and reservoirs.
(a) In addition to the information required [by] under §§ 105.13, 105.13a, 105.13b and 105.15 [(relating to permit applications—information and fees)], permit applications under this subchapter for the construction or modification of dams and reservoirs [shall give] must provide the following information:
(1) [The name and address of the applicant.] Reports and data detailing the conduct and results of investigations and tests necessary to determine the safety, adequacy and suitability of design, including:
(i) Data concerning subsoil and rock foundation conditions.
(ii) Data concerning exploratory pits, drilling, coring and tests to determine seepage rates.
(iii) Data concerning the strength tests necessary to measure the physical properties and behavior of foundations and embankment materials at the dam or reservoir site.
(iv) Data concerning the geology of the dam site or reservoir area, indicating possible hazards such as faults, weak seams and joints.
(v) Data concerning availability and quality of construction materials.
(vi) A ''Dam Stability Report'' as required under § 105.97 (relating to stability of structure).
(vii) Other information as may be necessary to determine the safety, adequacy and suitability of the design, including the design calculations for the dam, which shall be made available to the Department on request.
(2) [The location, type, size, height and purpose of the proposed dam and reservoir and appurtenant works] Site plan and cross sectional views required under § 105.13(d)(1)(i) (relating to permit applications-information and fees).
(3) Construction plans, specifications and design reports in sufficient detail to evaluate the safety, adequacy and suitability of the proposed dam, reservoir and appurtenant works.
(4) A schedule indicating proposed commencement and completion dates for construction.
(5) For projects involving storage of fluids or semifluids other than water, information concerning the chemical content, viscosity and other pertinent physical characteristics of the fluid or semifluid impounded.
[(4) The storage capacity and reservoir surface areas for normal pool and maximum high water.
(5) Plans] (6) An instrumentation plan including justification and design for [purposed] the installation of permanent monitoring instruments to measure the performance of [performance by instrument installations in] the dam [, including the purposes of the instrumentation]. If no instrumentation is considered necessary, [reasons for this judgment may] justification shall be [stated] provided.
[(6)] (7) [As accurately as may be readily obtained, the area] A hydrologic and hydraulic analysis, submitted as a separate report, which includes:
(i) The size, shape and characteristics of the drainage basin [, pertinent rainfall and streamflow].
(ii) Current precipitation data and precipitation distribution information as required by the Department.
(iii) Streamflow records [, and flood].
(iv) Flood flow records and estimates.
(v) An incremental dam breach analysis, storage capacity and reservoir surface area for normal pool and maximum storage elevations.
(vi) Other hydrologic and hydraulic determinations necessary for the design and operation of the dam.
[(7)] (8) [The proposed time for commencement and anticipated completion of construction] For existing dams, copies of the structure's most recent inspection reports.
[(8)] (9) [The method and schedule of operation of the dam including an emergency warning system and operation plan] EAP if required under § 105.134 (relating to [emergency action plan] EAP).
[(9) Plans for control of erosion and water pollution during the anticipated construction operations including plans for adequate measures to limit the erosion of the soil from exposed slopes after completion of construction. The plans shall indicate that adequate control measures will be taken during construction to protect the quality of stream flow below the project site. The application shall include a copy of a letter from the conservation district in the county where the project is located indicating that the district reviewed the erosion and sediment control plan of the applicant and considers it to be satisfactory. ]
* * * * * (11) An Operation and Maintenance Manual for the dam as required under § 105.131 (relating to operation, maintenance and monitoring).
(12) Other information the Department may require.
(b) [The application shall be accompanied by a design report, construction plans and specifications, in sufficient detail to evaluate the safety, adequacy and suitability of the proposed work.
(c) The applicant shall conduct and submit the results of the investigations and tests as the Department, in its judgment, believes are necessary to determine the safety, adequacy and suitability of design, including but not limited to:
(1) Data concerning subsoil and rock foundation conditions and the materials entering into the construction of the dam or reservoir.
(2) Data concerning exploratory pits, drilling, coring and tests to determine seepage rates.
(3) Data concerning the strength tests necessary to measure the physical properties and behavior of foundation and embankment materials at the dam or reservoir site.
(4) Data concerning the geology of the dam or reservoir area, indicating possible hazards such as faults, weak seams and joints.
(5) Data concerning availability and quality of construction materials.
(6) Other information as may be necessary, including the design calculations for the dam, which shall be made available to the Department on request.
(d) Plans and specifications and the results of tests or investigations shall be prepared under the supervision of and certified by a registered professional engineer experienced in dam design and construction and assisted by qualified engineers, geologists and other specialists, when necessary. ]
The Department may waive specific information requirements of this section in writing, if the Department finds that specific information is not necessary to review the application.
§ 105.82. Permit applications for operation and maintenance of existing dams and reservoirs.
(a) In addition to information required [by] under §§ 105.13 [and 105.14], 105.13b and 105.15 (relating to permit applications—information and fees; [and review of applications] proof of financial responsibility; and environmental assessment), a permit application for the operation and maintenance of existing dams and reservoirs [shall give] must provide the following information:
(1) [The name and address of the applicant] Site plan and cross sectional views required under § 105.13 (d)(1)(i).
(2) [The location,] ''As built'' construction plans, specifications and design reports not already on file with the Department, which show the type, size, height and [purpose] other pertinent dimensions and features of the existing dam and reservoir and appurtenant works.
* * * * * (4) [The storage capacity and reservoir surface areas for normal pool and maximum high water.
(5)] A description of facilities and plans for monitoring the performance of the dam.
[(6) Information on the area] (5) A hydrologic and hydraulic analysis, submitted as a separate report, which includes:
(i) The size, shape and characteristics of the drainage basin [, rainfall and stream flow].
(ii) Current precipitation data and precipitation distribution information as required by the Department.
(iii) Streamflow records [, and flood].
(iv) Flood flow records and estimates [, when available].
(v) An incremental dam breach analysis, storage capacity and reservoir surface area for normal pool and maximum storage elevations.
(vi) Other relative hydrologic and hydraulic information that may be available.
[(7)] (6) Information [readily] available regarding the foundation, embankment stability, specifications and construction of the dam.
[(8) The method and schedule of operation of the dam, if deemed necessary by the Department.]
(7) A manual which includes plans for the operation and maintenance of the dam in accordance with § 105.131 (relating to operation, maintenance and monitoring).
[(9)] (8) The [emergency warning plan] EAP for the dam or reservoir, if completed, or work plan to prepare and submit an emergency [warning] action plan in accordance with § [§ 105.131 and] 105.134 (relating to [operation and monitoring plans; and emergency action plan] EAP).
[(10)] (9) Proof of title or flowage easements for land areas below the top of the dam elevation that is subject to inundation.
[(11)] (10) Reports of the most recent inspections of the dam conducted by the owner or by the State or Federal government agencies.
[(12)] (11) Other information as the Department may require.
* * * * * § 105.88. Dam permit issuance.
(a) Upon the Department's review and approval of the dam permit application for the construction or modification of a dam in accordance with § 105.81 (relating to permit applications for construction and modification of dams and reservoirs), the Department will issue a dam construction permit.
(b) For newly constructed or modified dams permitted under subsection (a), the Department will issue a dam operation and maintenance permit after the following conditions have been met:
(1) Meeting the requirements of §§ 105.107—105.109 (relating to final inspection; completion certification and project costs; and as-built plans) by the owner or permittee.
(2) Acceptance of construction or modification by the Department.
(c) Upon the Department's review and approval of the dam permit application for operation and maintenance of existing dams in accordance with § 105.82 (relating to permit applications for operation and maintenance of existing dams and reservoirs), the Department will issue a dam operation and maintenance permit.
§ 105.89. Letters of Amendment and Letters of Authorization for modification of dams and reservoirs.
(a) Projects which do not modify top of dam elevation, normal pool elevation, or normal operation of the pool level may be authorized by Letter of Amendment when the dam has an existing permit or by Letter of Authorization when the dam meets § 105.12(b) (relating to waiver of permit requirements). The permittee or owner shall provide the following information:
(1) Reports and data detailing the conduct and results of investigations and tests necessary to determine the safety, adequacy and suitability of design, including:
(i) Data concerning subsoil and rock foundation conditions.
(ii) Data concerning exploratory pits, drilling, coring and tests to determine seepage rates.
(iii) Data concerning the strength tests necessary to measure the physical properties and behavior of foundations and embankment materials at the dam or reservoir site.
(iv) Data concerning the geology of the dam site or reservoir area, indicating possible hazards such as faults, weak seams and joints.
(v) Data concerning availability and quality of construction materials.
(vi) A ''Dam Stability Report'' as required under § 105.97 (relating to stability of structures).
(vii) Other information as may be necessary to determine the safety, adequacy and suitability of the design, including the design calculations for the dam, which shall be made available to the Department on request.
(2) In addition to the site plan and cross sectional views required under § 105.13(d)(1)(i) (relating to permit applications—information and fees), construction plans, specifications and design reports in sufficient detail to evaluate the safety, adequacy and suitability of the proposed dam, reservoir and appurtenant works, and a schedule indicating proposed commencement and completion dates for construction.
(3) For projects involving storage of fluids or semifluids other than water, information concerning the chemical content, viscosity and other pertinent physical characteristics of the fluid or semifluid impounded.
(4) Plans for proposed permanent monitoring of performance by instrument installations in the dam, including the purposes of the instrumentation. If no instrumentation is considered necessary, reasons for this engineering judgment shall be stated.
(5) A hydrologic and hydraulic analysis, submitted as a separate report, which includes the following:
(i) The size, shape and characteristics of the drainage basin.
(ii) Current precipitation data and precipitation distribution information as required by the Department.
(iii) Streamflow records.
(iv) Flood flow records and estimates.
(v) An incremental dam breach analysis, storage capacity and reservoir surface area for normal pool and maximum storage elevations.
(vi) Other hydrologic and hydraulic determinations necessary for the design and operation of the dam.
(6) For an existing dam, copies of the structure's most recent inspection reports.
(7) An EAP if required under § 105.134 (relating to EAP).
(8) A manual documenting the operation and maintenance procedures for the dam.
(9) For projects impacting wetlands or exceptional value waters, or if the project requires 401 water quality certification, environmental assessment approval will be required under § 105.15 (relating to environmental assessment).
(b) The Department may waive the specific information requirements of this section in writing, if upon review of the request for Letter of Amendment or Letter of Authorization, the Department finds that specific information is not necessary to approve the project.
CLASSIFICATION AND DESIGN CRITERIA FOR APPROVAL OF CONSTRUCTION, OPERATION, MODIFICATION AND MAINTENANCE § 105.91. Classification of dams and reservoirs.
(a) A dam or reservoir shall be classified in accordance with [size] Size Category and the [hazard potential] Hazard Potential Category which might occur in the event of an operational or structural failure. In approving a [hazard potential] classification, the Department will consider, without limitation:
* * * * * (b) Size Category will be determined by either storage or height of structure, whichever results in the higher category. Hazard Potential Category will be determined by either loss of life or economic loss, whichever results in the higher category. The following shall be the [classifications] categories and descriptions as used in this subchapter:
SIZE [CLASSIFICATION*] CATEGORY
[Class]
CategoryImpoundment Storage
(Acre Feet)Dam Height (Feet) A
Equal to or greater than 50,000 Equal to or greater than 100 B
Less than 50,000 but greater than 1000 Less than 100 but greater than 40 C
Equal to or less than 1000 Equal to or less than 40 [*Note: Size classification may be determined by either storage or height of structure, whichever gives the higher category.]
HAZARD POTENTIAL [CLASSIFICATION] CATEGORY
[Extent of Development]
Category [Loss of Life]
Population at RiskEconomic Loss 1
Substantial (Numerous homes or small businesses or a large business or school.) Excessive such as [(] extensive residential, commercial, or agricultural [and] damage, or substantial public inconvenience [)]. 2
Few (A small number of homes or small businesses.) Appreciable such as limited residential, commercial, or agricultural damage, or moderate public inconvenience. 3
[Few (no rural communities or urban developments and no more than a small number of habitable structures)] None expected (no permanent structures for human habitation or employment.) [Appreciable] Significant [(] damage to private or public property and short duration public inconvenience [)] such as damage to storage facilities or loss of critical stream crossings. [3] 4
None expected (no permanent structure for human habitation or employment.) Minimal [(undeveloped or occasional structures with no significant effect on public inconvenience)] damage to private or public property and no significant public inconvenience. § 105.92. Foundations.
(a) The foundation of a dam or reservoir [shall] must be stable under all probable conditions.
(b) In analyzing the stability of the foundation of a proposed or existing dam or reservoir, the applicant shall consider [all of] the following factors:
(1) The seismic forces and liquefaction potential at the site.
(2) The [shearing] shear strength of the foundation.
(3) Settlement [and], subsidence, and carbonate karst solution features, such as sinkholes and solution channels.
(4) [Leakage, permeability and solubility] Seepage potential through the soil and rock components of the foundation.
(5) The dispersive characteristics of the soil foundation and borrow areas.
§ 105.93. Design stress.
In the construction of dams and reservoirs, allowable stresses [shall] must conform to the current standards accepted by the engineering profession.
§ 105.94. Spillways.
(a) Every dam [shall] must be provided with a spillway system which is capable of safely conveying the design flood, as provided in § 105.98 (relating to design flood criteria), of the dam without endangering the safety or integrity of the dam. The Department may require submission of models utilizing current acceptable methodologies to demonstrate this capability without excessive erosion and failure of the spillway system.
(b) Each spillway [shall] must include a satisfactory means of dissipating the energy flow at its outlet to assure conveyance of flow without endangering the safety and integrity of the dam or the natural environment of the stream.
(c) Each spillway floor slab must be provided with adequate drainage, anchors, or drainage and anchors to be stable against uplift.
§ 105.96. Outlet works.
(a) Dams [shall] must include a device to [permit] allow the complete draining of the reservoir [within a reasonable period of time as determined by the Department] unless the Department determines that an outlet works is not feasible for a specific dam. At minimum, the device must be sized to pass a minimum of 70% of the highest mean monthly inflow at the site plus the capacity to drain the top 2 feet of reservoir storage below normal pool in 24 hours. The Department may require an increased size to provide for the integrity of the dam and to protect life and property with an adequate margin of safety.
(b) In determining the reasonable time period for drainage of the reservoir, the dam owner, the dam owner's engineer, and the Department may consider, without limitation, the following factors:
* * * * * (c) Under normal conditions, the maximum rate of drawdown for reservoirs impounded by earthfill dams should not exceed 1 foot per day without prior approval by the Department. Under emergency conditions, the maximum rate of partial or complete drawdown of reservoirs must be approved by the Department, when feasible.
(d) Each outlet works [shall] must include upstream closure, trashrack, and a means of dissipating the energy of flow at its outlet to assure conveyance of flow without endangering the safety and integrity of the dam or the natural environment of the stream.
§ 105.97. Stability of [structure] structures.
(a) Dams [shall] must be structurally sound and [shall] be constructed of sound and durable materials. The [completed] structure [shall] must be stable [under all probable conditions of operation] during and at the completion of construction.
(b) [In reviewing the stability of a structure, the Department may consider, without limitation, the following] As part of the permit application for the construction or modification of a dam, the design engineer shall submit to the Department, under professional seal and certification, a report entitled ''Dam Stability Report'' which clearly demonstrates to the Department that the requirements of subsection (a) have been satisfied. At a minimum, this report must address the following considerations:
* * * * * (2) [The] A stability analysis based on the properties of the structure's materials and on the seismic forces and [hydraulic forces] seepage conditions affecting the structure.
* * * * * (c) Earthfill dams must be demonstrated to be stable for the following conditions:
(1) Normal pool with steady-state seepage conditions with a factor of safety of 1.5.
(2) Maximum pool with steady-state seepage conditions with a factor of safety of 1.4.
(3) Sudden drawdown from normal pool conditions with a factor of safety of 1.2.
(4) Normal pool with steady-state seepage conditions under seismic forces produced by the maximum credible earthquake with a factor of safety of 1.1.
(5) Completion of construction with no pool with a factor of safety of 1.3.
(d) Gravity dams must be demonstrated to be stable for the following conditions:
(1) Normal pool with appropriate uplift pressures, ice loads and silt loads with a factor of safety of 2.0.
(2) Maximum pool with appropriate uplift pressures and silt loads with a factor of safety of 1.7.
(3) Normal pool with appropriate uplift pressures and silt loads under seismic forces produced by the maximum credible earthquake with a factor of safety of 1.3.
(e) For gravity dams, the overturning stability is acceptable when the resultant of all forces acting on the dam is located as follows:
(1) Within the middle third of the structure for normal pool conditions.
(2) Within the middle half of the structure for maximum pool conditions.
(3) Within the structure for earthquake conditions.
(f) For gravity dams, the foundation bearing pressures must be less than or equal to the allowable for no pool, normal pool and maximum pool conditions and less than 133% of the allowable for earthquake conditions.
(g) The factors of safety for earthfill dams or gravity dams must be the higher of:
(1) The factors of safety in subsections (c) and (d).
(2) The factors of safety in the most recent Engineering Manuals developed by the United States Army Corps of Engineers relating to stability of dam structures.
§ 105.98. Design flood criteria.
[(a)] The discharge capacity or storage capacity, or both, [shall] must be capable of safely accommodating the recommended design flood for the [size and hazard potential classification of the dam as determined by] dam as classified under § 105.91 (relating to classification of dams and reservoirs). The [design flood is intended to represent the largest flood that need be considered in the evaluation of a given project. When a range of ] design flood [is indicated, the magnitude that most closely relates to the size and hazard potential shall be selected. Design flood criteria shall be as indicated in the following table:] must be determined by an incremental dam breach analysis. The minimum required design storm duration is 24 hours. When considered appropriate by the Department, engineering judgment may be used to determine the design flood within the design flood range indicated below for dams of Hazard Potential Category 3 or 4. The classification or damage, or both, resulting from dam failure will determine the design flood within the design flood range.
[Size and Hazard
Potential]
Classification
Design Flood Range [A-1. A-2. B-1] [PMF] A-3, [B-2, C-1] B-3 1/2 PMF to PMF [B-3, C-2] A-4, B-4, C-3 100 year to 1/2 PMF [C-3] C-4 50 year to 100 year frequency [(b) The Department may, in its discretion, require consideration of a minimum design flood for a class of dams or reservoirs in excess of that set forth in subsection (a) when it can be demonstrated that the design flood requirement is necessary and appropriate to provide for the integrity of the dam or reservoir and to protect life and property with an adequate margin of safety.
(c) The Department may, in its discretion, consider a reduced design flood for a class of dams or reservoirs when it can be demonstrated that the design flood provides for the integrity of the dam or reservoir and protects life and property with an adequate margin of safety. ]
CONSTRUCTION REQUIREMENTS AND PROCEDURES § 105.101. [Notices and reports] (Reserved).
[At least 15 days prior to commencement of construction, the permittee shall notify the Department, in writing, of the proposed time for commencement of work. Thereafter, a detailed report on the status of construction shall be submitted monthly to the Department of Environmental Resources; Division of Dam Safety; Post Office Box 2357, Harrisburg, Pennsylvania 17120, until construction work has been completed.]
§ 105.102. Personnel and supervision.
(a) Work [shall] must be conducted under the oversight and supervision of a [competent] professional engineer approved by the Department [, and the]. The professional engineer or [a competent] Department-approved representative shall be on the work site during significant construction activities until the completion of the dam.
(b) The permittee or owner shall file with the Department, at least 15 days prior to the commencement of construction, a statement setting forth the name [of the contractors conducting the work authorized by the permit and the names and employers of personnel responsible for the supervision of construction.] and employer, including contact information, of the following:
(1) The professional engineer responsible for oversight and supervision of construction.
(2) Representatives of the professional engineer.
(3) Contractors conducting the work authorized by the permit, Letter of Amendment or Letter of Authorization as required by the Department.
§ 105.103. Weather and ground conditions.
(a) No earth or other embankment material [which is] may be covered, placed, compacted, or graded when in a frozen condition [may be covered or placed in embankments].
* * * * * § 105.104. Removal and disposal of vegetation.
(a) Work shall be conducted in [such] a manner [as] to minimize the destruction of or damage to trees and other vegetation on and adjacent to the construction site.
(b) Vegetation cleared and removed from the site shall be disposed of in accordance with [all] applicable laws and regulations.
§ 105.106. Activities and facilities on the construction site.
Activities and facilities on the construction site [shall] must be conducted and operated in [such] a manner [as] to avoid pollution of the air and waters of this Commonwealth and in accordance with applicable laws and the provisions of this title.
§ 105.107. [Completion certificate and final plans] Final inspection.
[(a) Within 30 days after the completion of work authorized by permit issued under this subchapter, the permittee shall file with the Department a certified statement signed by the supervising engineer and by the permittee that work has been performed in accordance with the terms and conditions of the permit; with the approved maps, plans, profiles and specifications; and with applicable laws and the provisions of this title.
(b) Within 90 days after the completion of work, the permittee shall file with the Department a set of final ''as built'' plans for the project, showing changes from the original plans and specifications.]
Within 10 days after the completion of work on a dam authorized by the Department, the permittee or owner shall schedule a final project inspection with the Department. The final inspection must include the permittee or owner, the permittee or owner's supervising engineer, and the Department's field representative. Upon conclusion of this final inspection, the Department's field representative will present the permittee or owner with a list of any deficient items, if necessary. A follow-up final inspection may be required by the Department. At the discretion of the Department, the final inspection may be waived for projects authorized by Letter of Amendment or Letter of Authorization.
§ 105.108. Completion, certification and project costs.
Within 30 days after the final inspection or within 30 days of completion of the work if the final inspection is waived by the Department, the permittee or owner shall file with the Department a completion certification provided by the Department stating that work has been performed in accordance with the terms and conditions of the permit or other Department authorization; the approved maps, plans, profiles and specifications; and applicable laws and the provisions of this title. The completion certification must contain the following:
(1) Original signature of the permittee or owner.
(2) Seal and original signature of the supervising engineer.
(3) Design cost.
(4) Construction cost.
(5) Construction inspection cost.
(6) Estimated percentage of the total cost for each major feature of the project.
§ 105.109. As-built plans.
Within 90 days after the final inspection or completion of the work, if the final inspection is waived by the Department, the permittee or owner shall file with the Department ''as built'' plans for the project, indicating revisions from the original plans and specifications.
[WATER] STORAGE AND DISCHARGE § 105.111. Commencement of [water] storage of water, fluid or semifluid.
(a) The permittee shall notify the Department, in writing, at least [1 week] 7 days in advance of the date proposed for the commencement of [water] storage of water, fluid or semifluid in the reservoir [or pond] created by the dam for which the permit is issued.
(b) The Department may [, at its discretion,] require that a reservoir filling plan be developed and approved by the Department prior to commencement of storage of water, fluid or semifluid. This plan will provide the acceptable rate of rise of the reservoir and, if necessary, elevations and durations for constant reservoir levels within the filling period. This plan may also require lowering of the reservoir level if the prescribed rate of rise is not controlled or attained. The plan may also require monitoring of instrumentation of the dam.
(c) The Department may require that a representative of the Department be at the site before or during the filling of the [pond or] reservoir.
(d) The initial storage in the reservoir of new dams and refilling of reservoirs of rehabilitated dams may not commence prior to the submission of the information required in § 105.108 (relating to completion certification and project costs) and the acceptance of the certification, in writing, from the Department.
§ 105.112. Stream flow during construction, filling and repair.
During the period of construction, [alteration] modification, enlargement or repair and during the period that the [pond or] reservoir is being filled, the permittee shall allow a sufficient flow of water, as determined by the Department, into the stream below the dam to support fish and other aquatic life and to preserve the water quality in the stream.
§ 105.113. Releases.
(a) The Department will impose general and special conditions regarding release rates in a permit for a dam or reservoir that it deems necessary to maintain stream flows for the purposes of protection of public health, water quality control, conservation of fisheries and aquatic habitat, improvement of recreation and protection of instream and downstream water uses. The appropriate release rates for the dams and reservoirs [shall] will be established in accordance with subsections (b) and (c).
* * * * * (d) Every dam [shall] must at all times be operated in [such] a manner [as] to allow the required flow of water into the stream below the dam as established under this section, and as otherwise necessary to support fish and other aquatic life and to assure compliance with the water quality [criteria set forth] standards in Chapter 93 (relating to water quality standards) and to provide for other instream uses for the affected stream.
PROTECTION AND RESTORATION
OF AQUATIC LIFE§ 105.121. Fishways.
Upon the request of the Fish and Boat Commission, the permittee shall install and maintain chutes, slopes, fishways, gates or other devices that the Fish and Boat Commission may require [under sections 185—187 of The Fish Law of 1959 (30 P. S. §§ 185—187) (Repealed)] under 30 Pa.C.S. §§ 3501—3505.
§ 105.122. Drawdown of impounded waters.
Impounded waters which are inhabited by fish may not be drawn down except with the written approval of the Fish and Boat Commission [issued under section 191 of The Fish Law of 1959 (30 P. S. § 191) (Repealed)] under 30 Pa.C.S. § 3506 (relating to drawing off or interference with dams or devices).
§ 105.123. Restoration of aquatic life.
If the Department finds that construction of a dam or reservoir has [so] substantially disrupted aquatic life [as] to preclude natural restoration of the stream ecology within a reasonable period of time, the permittee shall be required to submit and implement a plan to restore the aquatic life of the stream to its prior condition, to the maximum extent possible. The plan shall be subject to review and modification by the Department in consultation with the Fish and Boat Commission and [shall] must include, but not be limited to, the following:
* * * * *
OPERATION, MAINTENANCE AND EMERGENCIES § 105.131. Operation, maintenance and monitoring [plans].
(a) In addition to the requirements of §§ 105.51—105.54 (relating to operation, maintenance and inspection), the permittee or owner of a dam [or reservoir] shall follow the [method and schedule of operation of] operation and maintenance manual for the dam [or reservoir], [including] and the emergency action plan if required [by] under § 105.134 (relating to emergency action plan), as approved by the Department and shall implement a monitoring plan [approved by the Department for permanent monitoring of performance by instrument installation in the dam] as required under § 105.81(a)(4) (relating to permit applications for construction and modification of dams and reservoirs).
(b) A permittee or owner of a dam or reservoir may not modify or cease implementation of all or part of the approved plans and methods of operation or monitoring without the prior approval of the Department by permit, Letter of Amendment, or Letter of Authorization. The permit will be issued in accordance with § 105.82 (relating to permit applications for operation and maintenance of existing dams and reservoirs). The letter of amendment or letter of authorization will be issued only after review and approval of necessary engineering calculations, construction plans and construction specifications. If the project impacts wetlands or exceptional value waters, or if the project requires 401 water quality certification, an environmental assessment shall also be submitted to the Department for review and approval under § 105.15 (relating to environmental assessment). Modifications of a dam are subject to the construction requirements and procedures under Subchapters A and B (relating to general provisions; and dams and reservoirs), unless specifically waived by the Department.
(c) The permittee or owner of a dam or reservoir shall operate and maintain the dam in accordance with the authorized plans and specifications. [Normal repairs and] Routine maintenance of the dam and the reservoir's design storage capacity will not require further authorization under this chapter except as provided in § 105.122 (relating to drawdown of impounded waters).
§ 105.132. [Inspection] (Reserved).
[The permittee or owner of a dam or reservoir shall follow the inspection schedule set forth in § 105.53 (relating to inspections by owners and inspection reports).]
§ 105.133. Directed repairs.
The permittee or owner shall immediately take steps that the Department may prescribe as necessary to preserve the structural stability and integrity of the dam and protect health, safety [and], property and the environment.
§ 105.134. EAP.
(a) The permittee or owner of [a] an existing or proposed Hazard Potential Category 1, Category 2 or Category 3 dam [or reservoir that may cause loss of life or serious damage to property if a failure of the dam occurs,] as classified in § 105.91 (relating to classification of dams and reservoirs) shall develop an [emergency action plan] EAP to be followed in the event of a dam hazard emergency as defined in § 105.135 (relating to dam hazard emergencies). The [emergency action plan] EAP shall be submitted to the Department and approved by the Department and [local emergency management officals] the Pennsylvania Emergency Management Agency (PEMA).
(1) Prior to submitting the EAP for review or approval, the permittee or owner shall schedule a meeting with the county emergency management coordinators for those counties affected by the dam's failure.
(2) Each submission of the EAP must be signed by the dam owners, the dam operators, and the county emergency management coordinators for those counties affected by the dam's failure signifying concurrence with the EAP.
(3) In the case of a proposed dam, the EAP shall be submitted to the Department and approved by the Department and PEMA prior to commencement of [water] storage [in the reservoir or pond created by the dam during any stage of construction of the dam] of water, fluid or semifluid.
(4) The [emergency action plan shall, at a minimum, contain the following elements:] EAP must be prepared in accordance with the most recent EAP guidelines developed by the Department and PEMA.
[(1) An identification of the area below the dam which may be threatened with loss of life or serious damage to property if a failure of the dam occurs.
(2) A listing of key municipal and emergency management officials and their telephone numbers. The list shall be readily available at the dam site near a telephone or other means of communication, if available.
(3) An identification of handicapped or other persons who may have difficulty evacuating the area which may be threatened if a failure of the dam occurs. Procedures for identifying and evacuating these people in a dam hazard emergency shall be developed in cooperation with local and emergency management officials.]
(b) [For an existing dam or reservoir that may cause loss of life or serious damage to property if failure of the dam occurs, an emergency action plan shall be submitted to and approved by the Department and local emergency management officials.] Upon approval of the EAP, the permittee or owner shall provide a copy of the signed approved EAP to the municipal emergency management agencies and the emergency response agencies listed in the EAP.
(c) Within 60 days of the date of the Department's approval letter, the permittee or owner shall provide the Department a written statement certifying that a signed approved copy of the EAP has been provided to each municipal emergency management agency and to each emergency response agency listed in the EAP.
[(c)] (d) In addition to the requirements in subsections (a) [and], (b) and (c), the permittee or owner of a [high hazard potential] Hazard Potential Category 1 or Category 2 dam shall post notices in public [places] locations in areas that may be affected by the failure of the dam [; for example, areas where public water or sewage service may be interrupted]. The notice [shall] must indicate that copies of the [emergency action plan] EAP are available for review at the appropriate county and municipal emergency management offices. Also, the notice shall be posted by the permittee or owner in [the following] public places within each political subdivision situated within the inundation area downstream of the dam [:]. The notice shall be posted in the city, borough, and township buildings in the affected municipalities, with the management's permission. Additionally, the notice shall be posted in locations within the inundation area, such as, post offices, libraries, grocery stores, or gas stations, with the management's permission.
(e) Within 60 days of the date of the Department's approval letter, the permittee or owner shall provide the Department a written statement certifying that the notice has been posted in the locations listed in the EAP. The permittee or owner shall certify in each subsequent annual inspection report, as required in § 105.53(a), that the notices remain posted or were reposted in the locations listed in the EAP.
[(1) The city, borough or township building.
(2) The police department offices.
(3) The fire company halls.
(4) The tax collector's office.]
(f) The EAP shall be reviewed and updated every 5 years or the frequency interval indicated in the most recent EAP guidelines developed by the Department and PEMA.
(g) The Department may require the EAP be updated, as necessary, if there is a new owner or operator, if changes occur in the downstream inundation area or in the Hazard Potential Category.
§ 105.135. Dam hazard emergencies.
(a) For the purposes of this section, a dam hazard emergency means a condition which the Department, permittee or owner of the dam reasonably finds constitutes an imminent threat to life or property above or below a dam, whether arising from the condition of the dam and appurtenant works or extraordinary natural conditions, affecting the safety and stability of the dam, including [, but not limited to,] flood, earthquake [, fire] and ice jam.
(b) The emergency procedures and the [emergency warning system and operation plan] EAP required [by] under §§ 105.63 and 105.134 (relating to emergency procedures; and [emergency action plan] EAP) shall be followed by the permittee and owner of a dam or reservoir in the event of an actual or potential dam hazard emergency.
(c) If a dam hazard emergency exists, [the Department and] the permittee or owner of the dam shall immediately notify appropriate emergency management officials of the existence of the hazard and request the authorities to initiate appropriate action to assure protection of life and property; and the permittee or owner shall immediately take [the steps as are] actions as authorized by the Department necessary to prevent dam failure or loss of life or property [, including, but not limited to, the following:].
[(1) Draw down of the reservoir.
(2) Reinforcement of the dam structure.
(3) Breach or removal of the dam.
(4) Removal of debris.
(5) Repair or installation of structures necessary to assure the stability and safety of the dam.]
(d) The Department, upon determining that a dam hazard emergency exists, will notify the owner immediately to take [steps] actions the Department determines are necessary to prevent dam failure or loss of life or property.
§ 105.136. Unsafe dams.
* * * * * (b) The owner of an unsafe dam shall do the following:
(1) Immediately notify the Department upon receipt of any information indicating the dam is unsafe.
(2) Drain the [dam] reservoir as [approved or] required and approved by the Department and in accordance with § 105.122 (relating to drawdown of impounded waters).
* * * * * (c) The Department may issue a permit for modification of an unsafe dam, under section 9 of the act (32 P. S. § 693.9), which authorizes the owner of an unsafe dam to modify the dam within the time prescribed in the permit to meet the requirements of the act and this chapter. The permit shall be conditioned upon:
* * * * * (2) Implementation by the owner of the dam of measures deemed necessary by the Department to reduce risks to health [and] , safety and the environment pending correction or modification of the unsafe condition, including, but not limited to, special provisions relating to operation, emergency planning, monitoring and warning systems, and development of an alternative source of water supply if the dam serves as a water supply dam.
(d) In determining whether to require removal of an unsafe dam or to permit the owner to modify the dam, the Department will consider whether there is a substantial adverse impact to the public health [and] , safety and the environment which will result from the draining and removal of the dam [, and whether that]. If the Department determines that this adverse impact outweighs the danger to public health [and] , safety [, which outweighing will result in allowing] and the environment resulting from leaving the dam in place, the Department may decide to allow the unsafe dam to remain until it has been modified.
* * * * * (f) If the Department finds that conditions upon which the permit [authorizing modification] , letter of amendment, or letter of authorization was issued have substantially changed or that the owner does not meet the schedule for modification contained in the permit, letter of amendment, or letter of authorization, the Department will review the status of the dam. An extension of the time period for completion of a modification may be issued by the Department if the owner has proceeded in good faith with the previous schedule of modification and the requirements of subsections (c) and (d) are met.
(g) Nothing in this section may be construed to limit the power of the Department to take immediate action, prior to public hearing, to do one or more of the following:
(1) Revoke or suspend a permit [where] , Letter of Amendment, or Letter of Authorization when deemed necessary by the Department to protect public health [and] , safety and the environment.
* * * * *
Subchapter K. DISBURSEMENTS OF MONIES FROM THE DAMS AND ENCROACHMENTS FUND § 105.431. General provisions.
* * * * * (b) Moneys paid into the Dams and Encroachments Fund may be disbursed at the discretion of the Department for use in the elimination of hazards to life, property and the environment resulting from unsafe dams, water obstructions and encroachments. [The moneys shall be available for use by the Bureau of Dams and Waterway Management in addition to funds otherwise available to it.]
(c) For purposes of this chapter, the full and normal range of program activities [of the Bureau] necessary to administer this chapter will be considered to contribute to the elimination of hazards from unsafe dams, water obstructions and encroachments [under subsection (b)]. Disbursement of moneys from the Dams and Encroachments Fund moneys may therefore be made for, but will not be limited to, the following purposes:
* * * * * § 105.432. [Authorization for disbursement] (Reserved).
[The Director of the Bureau of Dams and Waterway Management will authorize the use of monies disbursed from the Dams and Encroachments Fund consistent with the established policies and procedures of the Department. For disbursements from the fund not falling within the explicit categories established in § 105.431 (relating to general provisions), the Director of the Bureau of Dams and Waterway Management will submit a request to the Secretary of the Department requesting an authorization to disburse the funds for the project in question.]
[Pa.B. Doc. No. 10-757. Filed for public inspection April 23, 2010, 9:00 a.m.]
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