Rules of Department of Natural Resources Division 22—Dam and Reservoir Safety Council Chapter 2—Permits Title Page 10 CSR 22-2.010 Who Needs a Permit ..........................................................................3 10 CSR 22-2.020 Types of Permits ...............................................................................3 10 CSR 22-2.030 Types of Dams and Reservoirs ..............................................................3 10 CSR 22-2.040 Classes of Downstream Environment ......................................................4 10 CSR 22-2.050 Issuing First Permit............................................................................4 10 CSR 22-2.060 Issuing Permit Renewals (Rescinded August 30, 2018) .................................5 10 CSR 22-2.070 Modifications not Requiring Permit Changes (Rescinded January 1, 1985)................................................................5 10 CSR 22-2.080 Revoking Permit................................................................................5 10 CSR 22-2.090 Transferring Permit ............................................................................5 10 CSR 22-2.100 Appeal of Action on Permits.................................................................5 JOHN R. ASHCROFT Secretary of State (1/29/19) CODE OF STATE REGULATIONS 1 Chapter 2—Permits 10 CSR 22-2 Title 10—DEPARTMENT OF NATURAL RESOURCES Division 22—Dam and Reservoir Safety Council Chapter 2—Permits 10 CSR 22-2.010 Who Needs a Permit PURPOSE: This rule identifies those persons who need to obtain a permit for their dam and reservoir and to identify those persons who do not need to obtain a permit for their dam and reservoir. (1) The owner of a proposed new dam thirtyfive feet (35') or more in height is required to obtain a construction permit and a safety permit for his/her dam and reservoir. The owner of an existing dam thirty-five feet (35') or more in height is required to obtain a registration permit within the time set forth in 10 CSR 22-2.020(2). (2) By definition, the United States government is not considered an owner. Therefore, no federal dam and reservoir is regulated by sections 236.400—236.500, RSMo and no permits are required. (3) Agricultural dams are exempted from all permit requirements as long as the agricultural dam and reservoir continue to be used primarily for agricultural purposes (see 10 CSR 22-1.020(2)). The owners of agricultural dams and reservoirs thirty-five feet (35') and higher in height must notify the council of their reliance on this exemption and their basis for application of this exemption to their dams. If an agricultural dam and reservoir is constructed after the effective date of the law, but subsequently becomes subject to the provisions of the law, the owner shall provide, prior to obtaining a registration permit, evidence that the dam meets the construction permit criteria in effect at the time the dam was constructed. (4) Dams and reservoirs licensed and operated under the Federal Power Act are exempted from all permit requirements. (5) Industrial water retention dams (see 10 CSR 22-1.020(27)) and reservoirs regulated by another state agency or federal agency are exempted from all permit requirements. For the exemption to apply, the industrial water retention dam and reservoir must be subject to safety inspections by the other state agency or federal agency and standards used must be at least as stringent as those required by the law. In addition, the owner must notify the council that another agency is regulating JOHN R. ASHCROFT Secretary of State (1/29/19) his/her dam and reservoir and explain the basis for the exemption to apply. AUTHORITY: sections 236.400, 236.405, 236.415, 236.435, 236.440, and 236.465, RSMo 2016.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. Amended: Filed Sept. 1, 1993, effective May 9, 1994. Amended: Filed June 27, 2018, effective Feb. 28, 2019. *Original authority: 236.400, RSMo 1979; 236.405, RSMo 1979, amended 1993, 1995; 236.415, RSMo 1979, amended 1995; 236.435, RSMo 1979; 236.440, RSMo 1979; and 236.465, RSMo 1979. 10 CSR 22-2.020 Types of Permits PURPOSE: This rule describes the three types of permits and their uses that the Dam and Reservoir Safety Council will issue. (1) There are three (3) types of permits—registration permits, construction permits, and safety permits and each one is intended to regulate a separate and distinct type of activity. A dam and reservoir will have only one (1) type of permit in effect at any given time although they may have more than one (1) type of permit during their existence. (2) Registration permits (see 10 CSR 221.020(44)) apply to and are required for the continued operation of a dam and reservoir that was in existence or in the process of being constructed on the effective date of this section, August 13, 1981. A registration permit also applies to and is required for structures which become subject to the provisions of the dam and reservoir safety law that were in existence prior to the date that they became subject to the law. Registration permits may be issued for a time period up to five (5) years. (3) Construction permits (see 10 CSR 221.020(8)) apply to the construction of a new dam and reservoir, the alteration, enlargement, reduction, repair, or removal of a new or existing dam, reservoir, or appurtenances. New dams are dams for which construction commences after the effective date of this section, August 13, 1981. A construction permit may be issued for any reasonable length time period in order to complete construction and it may contain appropriate restrictions placed on the owner for construction and operation of the dam and reservoir during that period. At the conclusion of construction, a safety or registration permit shall be obtained by the owner. CODE OF STATE REGULATIONS (4) Safety permits (see 10 CSR 22-1.020(48)) apply to the operation of a dam and reservoir constructed pursuant to a construction permit. The safety permit is not a guarantee of the dam and reservoir’s safety and does not alter the owner’s liability; it is simply an operating permit. If a dam and reservoir were not subject to the provisions of the law when they were constructed but subsequently become subject to the provisions of the law, the owner shall obtain a registration permit, not a safety permit. Safety permits may be issued for a time period up to five (5) years, and they may contain appropriate conditions for the operation and safety of the dam and reservoir. AUTHORITY: sections 236.400, 236.405, 236.415, 236.435, 236.440, and 236.465, RSMo 2016.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. Amended: Filed May 15, 1987, effective Sept. 15, 1987. Amended: Filed June 27, 2018, effective Feb. 28, 2019. *Original authority: 236.400, RSMo 1979; 236.405, RSMo 1979, amended 1993, 1995; 236.415, RSMo 1979, amended 1995; 236.435, RSMo 1979; 236.440, RSMo 1979; and 236.465, RSMo 1979. 10 CSR 22-2.030 Types of Dams and Reservoirs PURPOSE: This rule describes the two fundamentally different types of dams and reservoirs that will be required to obtain permits from the Dam and Reservoir Safety Council. (1) There are two (2) types of dams and reservoirs, conventional dams and reservoirs and industrial water retention dams and reservoirs. The two (2) types of dams and reservoirs are distinguished on the basis of their reservoir contents and the length of the time period during which active dam building occurs. (2) Conventional dams and reservoirs (see 10 CSR 22-1.020(9)) are dams and reservoirs used for purposes other than tailings, slime, settling or other similar industrial water retention purposes. A conventional dam is constructed in one (1) relatively continuous operation over a short time span (compared to the design life of the reservoir). Filling and use of the reservoir occurs after construction is completed. (3) Industrial water retention dams and reservoirs (see 10 CSR 22-1.020(27)) are dams and reservoirs used for the purpose of storing 3 10 CSR 22-2—DEPARTMENT OF NATURAL RESOURCES solids and the water associated with the particular industrial process such as tailings, slime and other similar industrial materials. An industrial water retention dam may be constructed in phases and steps or continuously, over a long period of time (compared to the design life of the reservoir). Filling and use of the reservoir may occur during most phases of construction. An industrial water retention dam and reservoir in existence or under construction on the effective date of 10 CSR 22-2.020(2), August 13, 1981, shall obtain a registration permit which may include approval to make enlargements. The owner of any such dam and reservoir shall apply for and obtain new construction and/or registration permits for any modifications to that dam and reservoir other than enlargements covered by an existing permit. A construction permit is required and shall be obtained by the owner, for the initial construction phase of any new industrial water retention dam and reservoir built after the effective date of 10 CSR 22-2.020(3), August 13, 1981. Upon completion of the initial construction phase, the owner shall apply for a safety permit for the operation and enlargement of the new dam and reservoir. AUTHORITY: sections 236.405, RSMo Supp. 1993 and 236.415, 236.435, 236.440 and 236.465, RSMo 1986.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. *Original authority: 236.405, RSMo (1979), amended 1993 and 236.415, 236.435, 236.440 and 236.465, RSMo (1979). 10 CSR 22-2.040 Classes of Downstream Environment PURPOSE: This rule describes the three environmental classes for the downstream environmental zone that will be used by the Dam and Reservoir Safety Council when considering permits. (1) The downstream environment zone is the area downstream from a dam that would be affected by inundation in the event the dam failed. Inundation is defined as water, two feet (2') or more deep over the general level of the submerged ground affected outside the stream channel. Based on the content of the downstream environment zone, three (3) environmental classes are defined. They are: class I, which contains ten (10) or more permanent dwellings or any public building; class II, which contains one to nine (1–9) permanent dwellings, or one (1) or more 4 campgrounds with permanent water, sewer and electrical services or one (1) or more industrial buildings; and class III, which is everything else. (2) Spillway design standards are based on the environmental class of the downstream environment zone of a dam and reservoir. The standards become more stringent for lower environmental class numbers. If conditions change in the downstream environment zone and it becomes necessary to change the environmental class of the dam and reservoir, the owner must then meet the standards and criteria for the new environmental class of the dam and reservoir. A dam and reservoir may be in only one (1) environmental class at a given time. (3) Inundation, the downstream environmental zone and the associated environmental class are analyzed, assuming the dam fails with the reservoir at the emergency spillway crest elevation or the dam crest elevation in the absence of an emergency spillway. If the spillway standards for class I are used, the failure analysis does not have to be performed. If a failure analysis is made, the contents of the downstream environment zone used to determine the environmental class are only the features that would be inundated by the flooding resulting from the dam failure. AUTHORITY: sections 236.405, RSMo Supp. 1993 and 236.415, 236.435, 236.440 and 236.465, RSMo 1986.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. *Original authority: 236.405, RSMo 1979, amended 1993 and 236.415, 236.435, 236.440 and 236.465, RSMo 1979. 10 CSR 22-2.050 Issuing First Permit PURPOSE: This rule describes the procedure for issuing the first permit to a dam and reservoir owner for a particular dam and reservoir. (1) A permit will be issued or a letter will be sent to the owner with comments within forty-five (45) days after the receipt of a properly prepared application or after the completion of any hearings or record period conducted by the council in connection with the application, whichever is later. The council, upon hearing the recommendations of the chief engineer, shall approve or deny the permit application. CODE OF STATE REGULATIONS Division 22—Dam and Reservoir Safety Council (2) A permit will be issued if a complete and proper application has been submitted and the dam and reservoir comply with the law. (A) A registration permit may be denied if it is determined that the owner has not complied with the experienced professional engineer’s or agency engineer’s inspection recommendations. (B) A construction permit may be denied if there is insufficient information to determine that the proposed construction, alteration, enlargement, reduction or removal of a dam or reservoir would not endanger public safety, life or property or otherwise would comply with the law. (C) A safety permit may be denied if it is determined that there are violations of the construction permit or the law. (D) If revisions have been made which vary substantially from the provisions of the construction permit, the owner must show that the revisions do not endanger public safety, life or property before a safety permit will be issued. (3) Conditions contained in a construction permit shall include that the construction work must be under the responsible charge of an experienced professional engineer and the records be kept and made available as required by the chief engineer including, without limitation, for the foundation excavation and inspection and placement of backfill in the core trench. It is not necessary for the engineer in responsible charge to be on-site continuously. During construction, the council or its delegate, the chief engineer, may make periodic site inspections the purpose of inspecting and securing conformity of construction with the approved plans and specifications and the owner shall permit, upon reasonable notice, the person entry upon its property to make such inspections. The owner may be required to perform, at its own expense, reasonable work or tests as are necessary to provide sufficient information to enable the council to determine that there is conformity. Usually, testing will be limited to verification of embankment compaction, concrete strengths and other similar requirements. It is expected that the tests will be required where the owner’s inspection records are lacking. (4) Any significant modifications from a construction permit or approved plans makes the permit void and requires the owner to obtain a new permit. Significant modification to the plans and specifications must be prepared by an experienced professional engineer. The council or its delegate will follow the same evaluation procedures for the modifications (1/29/19) JOHN R. ASHCROFT Secretary of State Chapter 2—Permits 10 CSR 22-2 as used with issuance of the original construction permit. Special attention will be given to these modification requests to provide a quick decision. 1981, effective Aug. 13, 1981. Rescinded: Filed June 14, 1984, effective Jan. 1, 1985. 10 CSR 22-2.080 Revoking Permit (5) The owner of a dam and reservoir that is removed under a construction permit must notify the council or its delegate when this work is completed and in conformity with the provisions of the construction permit. The council or its delegate will then issue a final approval to relieve the owner of the requirement to have a permit upon a showing that the requirements of the law for removal have been satisfied. (6) Approval by the council for a construction permit becomes invalid within one (1) year, unless work on the construction has begun within that period, except that the owner may be excused from beginning work for a period of time that the work is prevented by flood, shortage of materials or regulation of government which cannot be met for reasons over which the owner has no control or other causes beyond the owner’s control. The same applies to construction of approved modifications contained in the conditions of a registration or safety permit for industrial water retention dams unless the conditions specify a different time schedule. AUTHORITY: sections 236.400, 236.415, 236.435, 236.440 and 236.465, RSMo 1986 and 236.405, RSMo Supp. 1993.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. *Original authority: 236.400, 236.415, 236.435, 236.440 and 236.465, RSMo 1979 and 236.405, RSMo 1979, amended 1993. 10 CSR 22-2.060 Issuing Permit Renewals (Rescinded August 30, 2018) AUTHORITY: sections 236.405, RSMo Supp. 1993 and 236.415, 236.440 and 236.465, RSMo 1986. Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. Rescinded: Filed Dec. 29, 2017, effective Aug. 30, 2018. 10 CSR 22-2.070 Modifications not Requiring Permit Changes (Rescinded January 1, 1985) AUTHORITY: sections 236.405, 236.415, 236.435, 236.440, and 236.465, RSMo Supp. 1980. Original rule filed April 14, JOHN R. ASHCROFT Secretary of State (1/29/19) PURPOSE: This rule describes the reasons for revoking a permit. (1) Approval of the council or its delegate, the chief engineer, shall be obtained for modifications that substantially alter or adversely affect the safety or stability of the dam or reservoir. Modifications, without the approval of the council or its delegate, the chief engineer, are cause for suspension or revocation of any permit. If the chief engineer finds that the condition of the dam and reservoir has deteriorated substantially from those conditions present when the permit was issued, or that has defects which adversely affect the safety or stability of the dam and reservoir or threatens public safety, life or property, s/he shall revoke the permit. If a permit is suspended or revoked, the dam owner will be in violation of the law and may be subject to prosecution for a misdemeanor. (2) If the chief engineer determines that a dam or reservoir constitutes a threat to public safety, life or property, s/he may order its removal or take any other actions necessary to reduce or eliminate the threat. Failure of a dam owner to alter or remove his/her dam and reservoir as directed, when it is found to be a threat to public safety, life or property, will result in revocation of the permit and, if necessary, removal of the dam or any other action necessary to reduce or eliminate the threat to public safety, life or property by the state at the owner’s expense. AUTHORITY: sections 236.405, RSMo Supp. 1993 and 236.415, 236.445, 236.495 and 236.500, RSMo 1986.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. *Original authority: 236.405, RSMo 1979, amended 1993 and 236.415, 236.445, 236.495 and 236.500, RSMo 1979. 10 CSR 22-2.090 Transferring Permit PURPOSE: This rule describes the procedure for transferring a permit when ownership changes. (1) Permits issued pursuant to 10 CSR 222.050 and 10 CSR 22-2.060 are transferable only as provided in section 236.460, RSMo. If ownership or other transfer of interest in CODE OF STATE REGULATIONS the dam and reservoir changes, the former owner must notify the chief engineer of the sale or transfer and the permit will be transferred to the new owner after determination that the transfer will not endanger the public safety, life, property, the dam or reservoir. The permit holder of record will be held responsible for maintaining compliance with these rules and standards. If the former owner does not have the permit transferred, the new owner may submit the appropriate application and documents necessary to obtain a new permit. The new owner, in this case, must also show proof of ownership. The old owner’s responsibilities of ownership under the law will not be extinguished until the permit is transferred to an eligible owner. Nothing in these regulations shall be construed to eliminate the liability of the previous owner for damages or injuries caused by a dam failure, nor a new operator who has not obtained a permit nor had an existing permit transferred to his/her name. AUTHORITY: sections 236.405, RSMo Supp. 1993 and 236.415, and 236.460, RSMo 1986.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective, Jan. 1, 1985. *Original authority: 236.405, RSMo 1979, amended 1993 and 236.415 and 236.460, RSMo 1979. 10 CSR 22-2.100 Appeal of Action on Permits PURPOSE: This rule describes the procedure for appealing the results of any action taken with regard to a permit. (1) Permits revoked or denied are subject to council appeal. All parties shall be afforded an opportunity for hearing before the council for review of denial or revocation decisions, if request is made within thirty (30) days after notice is served personally or by certified or registered mail upon the parties or their agents. Except for emergency action, further legal action shall not be taken until after the hearing and council decision. (2) The record of hearing shall include all written testimony, data, records, etc., as well as all oral proceedings recorded. (3) A final decision will be in writing, and the party or its agents will be notified personally or by registered or certified mail of the final decision. A copy of any opinion in support of this decision will be furnished upon request. Decisions are subject to judicial review pursuant to provisions of section 5 10 CSR 22-2—DEPARTMENT OF NATURAL RESOURCES Division 22—Dam and Reservoir Safety Council 236.480, RSMo. AUTHORITY: sections 236.405, 236.415, 236.425, 236.440, 236.445, 236.470, and 236.480, RSMo 2016.* Original rule filed April 14, 1981, effective Aug. 13, 1981. Amended: Filed June 14, 1984, effective Jan. 1, 1985. Amended: Filed June 27, 2018, effective Feb. 28, 2019. *Original authority: 236.405, RSMo 1979, amended 1993, 1995; 236.415, RSMo 1979, amended 1995; 236.425, RSMo 1979; 236.440, RSMo 1979; 236.445, RSMo 1979; 236.470, RSMo 1979; and 236.480, RSMo 1979. 6 CODE OF STATE REGULATIONS (1/29/19) JOHN R. ASHCROFT Secretary of State