7 Del. Admin. Code § 5103-4.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 5103-4.0 - General Requirements and Prohibitions

4.1 Construction of New Dams

4.1.1 No owner shall begin the construction of any dam to which these Regulations apply without written approval from the Department. Owners intending to construct any dam to which these Regulations apply shall file with the Department a preliminary application that shall include a dam break analysis; the dam height; the maximum impounding capacity; the purpose, location, and determination of hazard class; and other information required by the Department. If, on the basis of this information, it is the opinion of the Department that the proposed dam is exempt from the provisions of these Regulations, the Department shall notify the owner that no approval from the Department pursuant to these Regulations will be required. If, on the basis of the submitted information it is the opinion of the Department that the proposed dam is not exempt, the Department shall notify the owner that construction shall not commence until a full application has been filed by the owner and such application approved in accordance with Sections 6.0 and 7.0 of these Regulations.

4.1.2 The Department shall require Emergency Action Plans (EAPs) and operation and maintenance (O&M) plans for high- or significant-hazard potential dams, and may also require of owners so notified the filing of any additional information it deems necessary, including, but not limited to, stream flow and rainfall data, maps, reports, plans, and specifications.

4.1.3 Every owner applying for approval of a dam subject to the provisions of these Regulations shall also file with the Department a Certificate from a qualified professional engineer licensed in the State of Delaware. The Certificate should state that the engineer is qualified and responsible for the design of the dam; that the design is safe and adequate; and that the engineer shall be responsible for construction quality assurance to certify that the construction has been completed in accordance with the approved plans.

4.1.4 The Department shall send a copy of each completed application to the Delaware Emergency Management Agency and other State, Federal, and local agencies it considers appropriate for review and comment.

4.1.5 Upon receipt of a full application in proper form, the Secretary shall give notice in an advertisement in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State, providing:

4.1.5.1 An announcement of the fact that the application has been received;

4.1.5.2 A brief description of the nature of the application;

4.1.5.3 Notification of location(s) where a copy of the application may be inspected; and

4.1.5.4 Procedures to request a public hearing.

4.1.6 The Secretary shall hold a public hearing on an application if he receives a request from any party whose interests are substantially affected by the proposed application, as determined by the Secretary, if such request is received within 21 calendar days of the public notice. A notice shall also be sent by mail to any person who has requested such notification from the Department and provides a name and address.

4.2 Repair, Alteration, or Removal of Existing Dams

4.2.1 Before commencing the repair, alteration, or removal of any dam to which these Regulations apply, application shall be made by the owner for written approval by the Department, except as otherwise provided by these Regulations. The installation of utility lines in a dam shall be considered an alteration to the dam and will require permitting under these regulations. The application shall state the name and address of the owner; shall adequately detail the changes it proposes to effect, as well as impacts or modifications to O&M plans and EAPs; and shall be accompanied by maps, plans, and specifications setting forth such details and dimensions as the Department requires.

4.2.2 The Department may waive the requirements of this Section for the repair or alteration of a dam if the proposed action is determined to be minor as defined by the Department by regulation. The application shall contain such other information concerning the dam and reservoir required by the Department; shall include information concerning the safety of any change that it may require; and shall state the proposed time of commencement and completion of the work.

4.2.3 When the Department determines an application has been completed, it may refer the application for agency review and report, as provided by paragraph 4.1.4 of these Regulations in the case of original construction. The application for repair, alteration, or removal of the dam shall be subject to the public notice requirements.

4.2.4 Upon receipt of a full application in proper form, the Secretary shall give notice in an advertisement in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the state, providing:

4.2.4.1 An announcement of the fact that the application has been received;

4.2.4.2 A brief description of the nature of the application;

4.2.4.3 Notification of location(s) where a copy of the application may be inspected; and

4.2.4.4 Procedures to request a public hearing.

4.2.5 The Secretary shall hold a public hearing on an application if he receives a request from any party whose interests are substantially affected by the proposed application, as determined by the Secretary, if such request is received within 21 calendar days of the public notice. A notice shall also be sent by mail to any person who has requested such notification from the Department and provides a name and address.

4.2.6 When repairs are necessary to safeguard life and property, they may be started immediately. The Department shall be notified as soon as practical but no longer than 24 hours after such repairs have commenced. The owner shall be required to submit as-built plans and certification from a professional engineer, licensed in Delaware, demonstrating that the repairs comply with these Regulations.

4.3 Supervision by Qualified Engineers; Reports and Modifications During Work

4.3.1 Any project for which the Department's approval is required under these Regulations shall be designed and the construction supervised by a licensed professional engineer in the State of Delaware with related experience in dam design and construction.

4.3.2 During the construction, enlargement, repair, alteration, or removal of any dam to which these Regulations apply, the Department may require such progress reports from the supervising engineer responsible for design and construction quality assurance as it deems necessary.

4.3.3 If, based on inspection reports, construction inspections, or other information, the Department finds that the work is not in compliance with the provisions of the approval and the approved plans and specifications; it shall give written notice to the person who received the approval and to the person in charge of construction of the dam. The notice shall state the particulars of the lack of compliance, and shall order immediate compliance with the terms of approval and the approved plans and specifications. The Department may order that no further construction work be undertaken until such compliance has been effected and approved by the Department. A failure to comply with the approval and the approved plans and specifications shall render the approval revocable unless compliance is made after notice, as provided in these Regulations.

4.4 Notice of Completion; Certification of Final Approval

4.4.1 Within 7 days of completion of construction, reconstruction, enlargement, repair, alteration, or removal of any dam to which these Regulations apply, notice of completion shall be given to the Department. Within 60 days thereafter, supplementary drawings or descriptive matter showing or describing the dam as actually constructed (as-built drawings) in compliance with the approval and the approved plans and specifications shall be filed with the Department in such detail as the Department may require.

4.4.2 Upon completion of the project, the supervising engineers, having inspected the work during construction and upon finding that the work has been done as required and that the dam is safe, shall file with the Department a Certificate and as-built plans demonstrating that the work has been completed in accordance with the approved design plans, specifications, and other requirements. After review of the supervising engineer's Certificate and as-built plans, unless the Department has reason to believe that the dam is unsafe or is not in compliance with any applicable rule or law, the Department shall grant final approval of the work in accordance with the Certificate, subject to such terms as it deems necessary for the protection of life and property.

4.4.3 Pending issuance of the Department's final approval, the dam shall not be filled except on written consent of the Department, subject to conditions it may impose.

4.5 Operation and Maintenance (O&M) of New or Existing Dams

4.5.1 The Department shall require that dam owners and operators develop, use, and update as necessary an operations and maintenance (O&M) Plan that provides guidance and instruction to personnel for the proper O&M of any reservoir or dam to which these Regulations apply in order to safeguard life and property.

4.5.2 The O&M Plan shall be subject to the approval of the Department and may be reviewed, modified, or amended by the Department as deemed necessary to safeguard life and property.

4.5.3 The Secretary may adopt, amend, modify, or repeal standards for the maintenance and operation of dams as may be necessary for the purposes of this Section. The Department may vary the standards applicable to the various dams giving due consideration to the type and location of the structure, the hazards to which it may be exposed, and the peril of life and property in the event of a failure or misoperation of the dam.

4.6 Monitoring and Inspection of New or Existing Dams

4.6.1 The Department shall require regular monitoring and inspection of any dam to which these Regulations apply, to safeguard life and property.

4.6.2 The Secretary may adopt, amend, modify, or repeal standards for the monitoring and inspection of dams as may be necessary for the purposes of this Section. The Department may vary the standards applicable to the various dams giving due consideration to the type and location of the structure, the hazards to which it may be exposed, and the peril of life and property in the event that a dam fails to perform its function.

4.7 Emergency Action Plans (EAPs) for New or Existing Dams

4.7.1 The owner of any new or existing dam that is regulated under these Regulations and is classified as a Class I High Hazard Potential, or Class II Significant Hazard Potential, in accordance with Section 5.0 of these Regulations, shall prepare an Emergency Action Plan (EAP) in accordance with the requirements of these Regulations.

4.7.2 The Department shall inform the Delaware Emergency Management Agency of any dam presenting a risk of peril of life and property in the event that the dam fails.

4.8 Permit to Impound

4.8.1 The owners of all existing dams regulated under these Regulations must apply for and obtain from the Department a Permit to Impound in accordance with the requirements of these Regulations.

4.8.2 Within 60 days of the satisfactory receipt of the Supervising Engineer's Certificate, as-built plans, the O&M Plan, and the EAP, from the owners of new dams or existing dams that have been modified, the Department will issue a Permit to Impound prior to the impoundment of water behind the dam.

7 Del. Admin. Code § 5103-4.0