Section 0400-45-07-.04 - CERTIFICATES OF CONSTRUCTION, OPERATION, AND ALTERATION(1) General Provisions for Certificates. (a) Certificate applications shall be made on forms available from the Commissioner. Where there are multiple owners of a dam, each owner shall not be required to file an application if all owners are listed in the application filed by any one of them.(b) Application for a Certificate shall be made on forms available from the Commissioner and shall include the following information: 2. The name of the owner.3. The legal address of the owner and/or lessee.4. The location of the dam.5. The type, size and height of the dam.6. The storage capacity and reservoir surface area for normal and maximum water surface elevation.7. The purpose or purposes for which the dam or reservoir is to be used.8. In the case of an application by an owner or lessee of a dam, the names and addresses of all persons having a real property interest in the dam.9. Such other plans and detailed information as the Commissioner may deem reasonable and necessary to fulfill his responsibilities hereunder.(c) An owner making application for an Alteration or Construction Certificate shall engage a qualified professional engineer, practicing in accordance with the registration laws of Tennessee, to plan, to prepare designs and specifications, and to supervise construction. This engineer must be qualified and experienced in the design and construction of dams of the type proposed and may be required to present evidence of his qualifications to undertake the project.(d) The Commissioner shall examine the application for a certificate of approval and cause an on-the-ground inspection to be made of the existing or proposed dam or reservoir and downstream floodplain. He shall then, within sixty (60) days of the receipt of the completed application for a certificate of approval, either grant the certificate or disapprove it in writing, stating the reasons for disapproval. In the case of applications for construction certificates, applicants who fail to submit, within 18 months from the date of the original application submittal, plans or other detailed information required by the Commissioner must refile an application and plans review fee to obtain a construction certificate.(e) Certificates are not transferable from one person to another or from one dam to another.(f) The Commissioner shall be notified of any proposed change in the operation of a dam.(g) Certificates shall not be granted until all fees required by the provisions of the Act and these rules have been paid.(h) It shall be a violation of the Safe Dams Act for any person to knowingly submit a false or inaccurate report, data, or information.(2) Operating Certificate. (a) No person shall operate a dam without an Operating Certificate.(b) Application for an Operating Certificate for a new dam already having a Construction Certificate shall be made on forms available from the Commissioner within thirty (30) days of the completion of the dam. The application shall be accompanied by a history of the construction of the dam as maintained by the responsible engineer and by a statement signed by the responsible engineer certifying that the project was constructed in conformity with approved plans and specifications. The history of construction shall include but not be limited to:1. A record of all geological and foundation data.2. Date, location, and results of all material tests made.3. Narrative of problems encountered during construction and changes in design. (Necessity for such changes shall be reported to the Division for approval before proceeding with construction.)4. Photographs of completed foundations, critical features (such as construction and backfilling around conduits and low level outlet structures) and periodic stages of construction are desirable. These may be required for selected projects.5. A record of permanent location points, benchmarks, and any instruments embedded in the structure.6. Plans which show the actual construction of the dam after changes in the original design.(c) Application for an Operating Certificate for a dam already having an Alteration Certificate shall be made within thirty (30) days from the completion of the alteration on forms available from the Commissioner. The application shall be accompanied by a statement signed by the responsible engineer certifying that the project was constructed in conformity with the approved plans and specifications. Additional information about the construction, such as that listed in subparagraph (b) of this paragraph, must be included if the Commissioner determines that such information is needed to insure that the alteration is constructed properly.(d) Any new dam or dam alteration must be constructed in accordance with the approved plans and specifications in order to receive an Operating Certificate.(e) A new dam must not be allowed to impound water other than transient storage due to storm runoff until an Operating Certificate has been issued.(f) Application for an Operating Certificate shall be made on forms available from the Commissioner. Any dam owner who is notified by the Commissioner of the need to apply for an Operating Certificate shall submit such application within thirty (30) days.(g) Whenever legal title to a dam, for which a certificate of approval has been issued, is modified to create real property interests, including leasehold interests, in persons not listed on the application for such certificate, the owner of such dam shall make application for a new certificate within ninety (90) days of the date such interests are created, other provisions of this chapter notwithstanding.(h) An Operating Certificate shall be issued only on evidence satisfactory to the Commissioner that the requirements of Rule 0400-45-07-.06 are being met for an existing dam and the requirements of Rule 0400-45-07-.07 are being met for a new dam.(3) Construction Certificate.(a) No person shall commence construction on a new dam without first obtaining a Construction Certificate from the Commissioner.(b) Application for a Construction Certificate shall be made at least 60 days prior to the commencement of construction on forms available from the Commissioner.(c) The Commissioner shall issue a Construction Certificate for construction of a new dam only if the requirements of Rule 0400-45-07-.07 Design Standards for New Dams, Rule 0400-45-07-.08 Engineering Requirements, and Rule 0400-45-07-.09 Fees, are met.(d) The owner or his agent shall provide written notice to the Commissioner within five days of the date that construction commences and shall include the name of the engineer's inspector. For dams which are to be greater than 30 feet high or which will impound more than 100 acre-feet at the maximum storage capacity, the engineer in charge of construction or his inspector shall be on site whenever construction is occurring. The Commissioner may require such full time inspectors on smaller dams as he deems necessary. During construction the Commissioner may make such inspections as are needed to ensure conformity with approved plans and specifications. The inspection by the Commissioner does not relieve the owner or the responsible engineer from providing adequate inspection of the construction in progress.(e) If at any time during the progress of the work the Commissioner finds that the work is not being done in accordance with the approved plans and specifications or approved revisions, he shall serve written notice to that effect to the owner. Such notice shall state the particulars in which the approved plans and specifications have not been complied with and may request the suspension of work until such compliance has been effected. If, after due notice, the owner, or his duly authorized agents, fails to comply with the requirements of the above notice, the Certificate by which construction is authorized shall be subject to revocation by the Commissioner.(f) The owner or his agent shall give written notice of the completion of the dam to the Commissioner within five (5) days of the completion or in time for the Commissioner's representative to be present at the final inspection with the engineer and the contractor, whichever occurs sooner.(4) Alteration Certificate. (a) No person shall make an alteration to a dam without first obtaining an Alteration Certificate.(b) Application for an Alteration Certificate shall be made on forms available from the Commissioner at least 60 days prior to a planned alteration. The application shall identify the dam, state reasons why alteration, repair, or removal is necessary, give details of the proposed work, and provide an evaluation of the effects of the contemplated action. Plans and specifications will accompany the application along with a schedule for accomplishing the proposed project. The plans and specifications shall be submitted in conformance with Rule 0400-45-07-.08. The Commissioner may require full time inspection of any alteration construction by the responsible engineer or his inspector as he determines is necessary to ensure that the construction is performed properly.(c) The owner or his agent shall provide written notice to the Commissioner within five days of the date that construction commences and shall include the name of the engineer's inspector if an inspector is required. The owner or his agent shall give written notice of the completion of the alteration to the Commissioner within five (5) days of the completion or in time for the Commissioner's representative to be present at the final inspection with the engineer and the contractor, whichever occurs sooner.(d) In the event of an emergency where immediate repairs are necessary to safeguard life and property, such repairs shall be made immediately by the owner, or his duly authorized agents, and in accordance with Rule 0400-45-07-.10. In such events, the Commissioner shall be notified of the necessary emergency repairs and of work under way. The owner shall give written notice to the Commissioner within two days of learning of the emergency.(5) Duration of Certificates. (a) Construction and Alteration Certificates shall be for a single construction event. Construction Certificates shall be valid only for construction that begins within one year of issuance of the certificate.(b) Alteration and Operating Certificates shall be valid for a definite period of time, not to exceed five (5) years, as determined by the Commissioner and stated on the certificate. In determining the period of approval, the Commissioner may take account of any circumstances pertinent to the situation, including, but not limited to, the size and type of dam, topography, geology, soil conditions, hydrology, climate, use of reservoir and the lands lying in the floodplain downstream from the dam, and the hazard category of the dam.(6) Imposition of Additional Conditions - Hazard Categories. (a) In granting a Certificate, the Commissioner may impose such conditions relating to the inspection, operation, maintenance, alteration, repair, use, or control of a dam or reservoir as he determines are necessary for the protection of public health, safety, or welfare.(b) The Commissioner shall establish hazard categories for dams in accordance with paragraph (2) of Rule 0400-45-07-.05.(7) Modification of certificates. The Commissioner may modify a Certificate or the conditions attached to it. Such modifications shall become effective ninety (90) days following issuance by the Commissioner of a revised Certificate, except when the Commissioner finds that a state of emergency exists, and that life or property would be endangered by delay. In case of an emergency declared by the Commissioner, the new conditions shall be effective immediately.(8) Suspension, Revocation, or Modification. The Commissioner may revoke, suspend, or modify any Certificate issued pursuant to the Act or deny the issuance of a Certificate for cause including, but not limited to the following: (a) Violation of any condition of said Certificate.(b) Obtaining a Certificate by misrepresentation, or failure to disclose fully all relevant facts.(c) Violation of any provision of the Act or any rule promulgated thereunder.(9) Rights of Appeal. Any applicant aggrieved by the denial of a Certificate or any term or condition in a Certificate may appeal to the Commissioner for a hearing within sixty (60) days of the date of issuance of the Certificate or the denial of a Certificate. After sixty (60) days no such appeal may be filed. All appeals shall be conducted in accordance with T.C.A. § 69-11-118 and Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq.Tenn. Comp. R. & Regs. 0400-45-07-.04
Original rule filed October 16, 2012; effective January 14, 2013. Rule renumbered from 1200-05-07.Authority: T.C.A. §§ 69-11-101 et seq., and 4-5-201 et seq.