250 R.I. Code R. 250-RICR-130-10-1.8

Current through December 26, 2024

Section 250-RICR-130-10-1.8 - Dam Operation Permit

A. Application Submittal Requirements

1. Within sixty days of the effective date of these rules and regulations the Owner and Operator of a Jurisdictional Dam shall jointly apply to the Department for a Dam operation permit, except if an Owner cannot be legally identified, in which case the Operator shall apply solely. Applications shall be in writing and on a form prescribed by the Department and shall contain such documentation and information as the Department may require, which shall include, but is not limited to, the following:

a. A locus map indicating the location of the Dam in relation to other fixed infrastructure in the community such as roads, etc.

b. An operating plan that describes how water will be managed behind and below the Dam, to achieve as nearly as is practicable overall Historic Use, which must include, but is not limited to, release rates from the Dam, water levels behind the Dam, and time periods and criteria for raising and lowering water levels behind the Dam, including downstream release rates and rates of surface elevation changes. The plan must also include:

(1) How the water will be managed during Extreme events to maintain the Dam in a safe condition and an assessment by a Qualified engineer (or at the discretion of the Department, a Department dam engineer) that the operation will not affect the safety of the Dam.

(2) How the water will be managed during low flows and drought.

c. Documentation that identifies how water has Historically been managed behind and below the Dam.

d. Documentation that identifies recreational activities that have Historically occurred behind and below the Dam.

e. Contact name and telephone number of Person(s) responsible for the management of the water behind and below the Dam.

f. Monitoring that will be performed and records that will be maintained to document how water will be managed behind and below the Dam.

B. Review by the Department

1. The following review criteria will be used by the Department to determine whether the proposed use is consistent with the Historic use:

a. The proposed use shows a pattern of overall Historic consistency during periods other than Extreme events or low flows or droughts, during Extreme events, and during low flows or droughts.

b. Information received from parties who have knowledge of the operation of the dam support that the proposed use is accordant with the pattern of overall Historic consistency described in § 1.8(B)(1)(a) of this Part.

2. At any time during the review, the Department may:

a. Require that the Owner or Operator provide such information as the Department deems necessary for the review of the application.

b. Issue a Dam operation permit requiring such terms, conditions, management practices and operation and maintenance requirements as deemed necessary to comply with the requirements of applicable federal or state laws.

c. Deny the application for failure to satisfy the requirements of applicable laws and advise the Owner or Operator of the right to appeal under § 1.11 of this Part. A denial may be based on, but is not limited to, any of the following:

(1) Failure to submit any information required by the Department.

(2) Failure to be compliant with a notice of violation or other enforcement action issued by the Department involving the FWW Rules, Part 150-15-3 of this Title, or the Dam Safety Rules, Subchapter 05 Part 1 of this Chapter.

d. Require the Owner or Operator to file a separate application pursuant to the FWW Rules, Part 150-15-3 of this Title and WQ Rules, Subchapter 05 Part 1 of this Chapter if the Department determines that the Owner or Operator propose to operate the Dam in a manner that is inconsistent with its Historic use. If the Department makes this determination, review of a Dam operation permit under these rules and regulations will be suspended and the Owner or Operator will be directed to apply for the appropriate permit. The Owner or Operator has the right to appeal this determination under § 1.11 of this Part.

C. Effect of Dam Operation Permit

1. A Dam operation permit shall be effective for as long as operation of the Dam remains consistent with the terms and conditions of the permit.

2. A Dam operation permit is automatically transferred to any subsequent Owner or Operator of the Dam and the subsequent Owner and Operator must comply with the terms of the Dam operation permit.

3. The issuance of a Dam operation permit mandates compliance with all terms, conditions, management practices and operation and maintenance requirements set forth in the Dam operation permit.

4. The issuance of a Dam operation permit does not relieve any Person of the continuing responsibility to comply with any other applicable federal, state, or local law or regulation.

5. The issuance of a Dam operation permit does not relieve any Person of the responsibility for obtaining any other necessary permits or approvals from any federal, state, regional, or local agency.

6. The issuance of a Dam operation permit does not authorize any injury to Persons or property or invasion of other private rights, or any infringement of federal, state, or local laws or regulations.

D. Modification, Suspension or Revocation of Dam Operation Permit

1. The Department may modify, suspend, or revoke, in whole or in part, a Dam operation permit for cause, including, but not limited to, the following:

a. The existence of a factor or factors which, if properly and timely brought to the attention of the Department, would have justified the application of more or less stringent conditions than required by these regulations.

b. Where circumstances on which the Dam operation permit was based have materially and substantially changed since the Dam operation permit was issued, including but not limited to pertinent amendment of these rules and regulations.

c. The information or data submitted by the Owner or Operator either on the form required or in any other material in support of the application is found to be false, misleading, or erroneous.

d. The Owner or Operator fails to comply with the conditions or provisions of the Dam operation permit.

e. The Department is in receipt of reliable information that, without immediate action to suspend or revoke the Dam operation permit, the management of the water behind or below the Dam is likely to harm the environment or pose a threat to the health, safety, or welfare of the public.

2. A notice of revocation/suspension of a Dam operation permit will be in the form of a certified letter notifying the Owner or Operator of the revocation or suspension and the reasons why the Dam operation permit is being revoked or suspended. Such notice shall be in conformance with the Administrative Procedures Act, R.I. Gen. Laws §§ 42-35-9(b) and 42-35-14.

3. The Owner or Operator issued a notice of revocation/suspension of a Dam operation permit may request an adjudicatory hearing to contest the revocation as set forth in the provisions of § 1.11 of this Part. A notice of revocation/suspension of a Dam operation permit automatically becomes a final order of the Department enforceable in Superior Court upon failure to request said adjudicatory hearing.

4. Modification of a Dam operation permit shall be in accordance with § 1.8 of this Part.

250 R.I. Code R. 250-RICR-130-10-1.8

Adopted effective 5/29/2023