W. Va. Code R. § 47-34-2

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-34-2 - Definitions

2.1. "Abandonment" means to render a dam non-impounding by filling the reservoir created by that dam with solid materials and by diverting the natural drainway around the site.

2.2. "Act" means the West Virginia Dam Control and Safety Act, W. Va. Code § 22-14-1, et seq.

2.3. "Applicant" means a person who applies for a certificate of approval or a loan pursuant to the provisions of this rule.

2.4. "Appurtenances" means any ancillary part of a dam or reservoir system which contributes to the operation or construction of the dam.

2.5. "Assessment Officer" means a person appointed by the Secretary to carry out the review and hearing procedures outlined in this rule.

2.6. "Authority" means the West Virginia Water Development Authority provided in W. Va. Code § 22C-1-1 et seq.

2.7. "Average Time Headway" means the number of seconds in one day divided by the average daily traffic.

2.8. "Breach" means partial removal of a dam, creating a channel through the dam at the original stream bottom elevation.

2.9. "Bridge" means a structure, including any abutments or supports appurtenant to that structure, which:

2.9.a. Meets the definition of "dam" set forth in subsection 2.12.;

2.9.b. Is constructed across a natural drainway for the purpose of maintaining a pathway, railway, roadway, support structure, or other passageway for transporting persons, traffic, or other static or moving loads; and

2.9.c. Has an opening under the structure to provide for the passage of normal stream flow.

2.10. "Certificate of Approval" means the written approval issued by the Secretary to a person who has applied to the Secretary for a certificate of approval that authorizes the person to place, construct, enlarge, alter, remove, abandon, or repair a dam and which specifies the conditions or limitations under which the work is to be performed by the applicant.

2.11. "Cost" means the total of all reasonable and necessary costs incurred by a person or the Secretary to finance the engineering, design, alteration, improvement, repair, breaching or removal of a deficient dam for carrying out all works and undertakings necessary or incidental to the accomplishment of any project receiving a loan under this rule, including:

2.11.a. The costs of developmental, planning, and feasibility studies, surveys, plans, and specifications;

2.11.b. The costs of architectural, engineering, financial, legal, or other special services;

2.11.c. The costs of acquisition of land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings, or improvements;

2.11.d. The costs of site preparation and development, including demolition or removal of existing structures, construction and reconstruction, labor, materials, machinery, and equipment;

2.11.e. The reasonable costs of financing incurred by the person applying for a loan from the Fund in the course of the development of the project, carrying charges incurred before placing the project in service, interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service, necessary expenses incurred in connection with placing the project in service, and the funding of accounts and reserves as required by the Secretary;

2.11.f. Other items as are deemed reasonable and necessary by the Secretary.

2.12. "Dam" means an artificial barrier or obstruction --including any works appurtenant to it and any reservoir created by it -- which is or will be placed, constructed, enlarged, altered, or repaired so that it does or will impound or divert water and is or will be twenty-five (25) feet or more in height from the natural bed of a stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifteen (15) acre-feet or more of water or is or will be six (6) feet or more in height from the natural bed of such stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifty (50) acre-feet or more of water. "Dam" does not mean:

2.12.a. Any dam owned by the federal government;

2.12.b. Any dam for which the operation and maintenance thereof is the responsibility of the federal government;

2.12.c. Any farm pond constructed and used primarily for agricultural purposes -- including, but not limited, to livestock watering, irrigation, retention of animal wastes, and fish culture -- that has no potential to cause a loss of human life in the event of embankment failure; or

2.12.d. Roadfill or other transportation structures that do not or will not impound water under normal conditions and that have a designed culvert or similar conveyance or capacity that would be used under a highway at the same location: Provided, That the Secretary may apply the provisions of W. Va. Code § 22-14-10 for hazardous, non-impounding structures that become a hazard to human life or property through the frequent or continuous impoundment of water.

2.13. "Deficient dam" means a noncoal-related dam that exhibits one or more design, maintenance, or operational problems that may adversely affect the performance of the dam over a period of time or during a major storm or other inclement weather that may cause loss of life or property; or a noncoal-related dam that otherwise fails to meet the requirements of the Act or this rule.

2.14. "Dam Safety Section" means the Dam Safety Section of the Department of Environmental Protection.

2.15. "Dangerous Condition" means any structural or hydraulic condition of a dam or its appurtenances which may lead to:

2.15.a. Failure of the dam and possible loss of human life or substantial loss of property;

2.15.b. Harm to the public health or welfare; or

2.15.c. Significant harm to the environment.

2.16. "Design Storm" means predicted precipitation of given intensity, frequency, and duration based upon National Weather Service data that is required to be considered in the design of a dam.

2.17. "Disbursement" means the transfer of cash from the Fund to an applicant.

2.18. "Diversion Ditch" means a designed channel constructed for the purpose of collecting and transmitting surface runoff resulting from a given design storm.

2.19. "Embankment" means a constructed deposit of earth or waste materials, usually exhibiting at least one sloping face.

2.20. "Emergency Condition" means an imminently dangerous condition where failure of the dam is possible at any time.

2.21. "Emergency Spillway" means a hydraulic structure designed to discharge water in excess of that which an impoundment is designed to store or which cannot be passed through a principal spillway.

2.22. "Enforcement Action" means a written notification provided to an alleged violator by the Secretary within thirty (30) calendar days of an inspection, or in accordance with the provisions of the Act.

2.23. "Engineer" or "Registered Professional Engineer" means a person who by reason of his or her knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in the practice of professional engineering, and holds a current certificate of registration issued by the State granting its licensee the privilege of practicing professional engineering in accordance with the provisions of W. Va. Code § 30-13-1 et seq.

2.24. "Freeboard" means the vertical distance between the lowest point of the crest of the embankment of a dam and the reservoir water surface.

2.25. "Fund" means the State Dam Safety Rehabilitation Revolving Fund.

2.26. "Geotechnical Engineering" means the application of soil mechanics, rock mechanics, and geology to the solution of problems involving engineering structures and their interaction with surrounding earth materials.

2.27. "Hazard Classification" means a classification rating assigned to a structure based upon engineering evaluations and judgments for predicting the danger to human life, property, and environment should a failure of the structure occur.

2.28. "High Risk Highway" means a roadway, roadfill, bridge, support structure, or other passageway for transporting persons, traffic, or other static or moving loads where the average time headway between vehicles in traffic is less than the duration of overtopping caused by the dam break flood wave.

2.29. "Hydraulics" means the study of the physical behavior of liquids, especially water, in natural or man-made systems or processes.

2.30. "Hydrologic Analysis" means a determination, using accepted engineering methods, to establish surface water runoff for a given design storm.

2.31. "Hydrology" means the science that deals with the occurrence and behavior of water in the atmosphere, on the ground, and underground.

2.32. "Impoundment" means a basin for the retention of water, sediment, or waste.

2.33. "Incised Reservoir" means an impoundment, or that portion of an impoundment, which has been excavated below the natural stream level into natural ground.

2.34. "Loan" means a loan made by the Authority to an applicant pursuant to section 20.

2.35. "Loan Agreement" means an agreement entered into between the Authority and the applicant pertaining to a loan.

2.36. "Low Risk Highway" means a roadway, roadfill, bridge, support structure, or other passageway for transporting persons, traffic, or other static or moving loads where the average time headway between vehicles in traffic is greater than the duration of overtopping caused by the dam break flood wave.

2.37. "Major Damage" means destruction, ruin, collapse, or displacement of dwellings, commercial or industrial buildings, public highways or bridges, or important public utilities. Dwellings, buildings, public highways or bridges, or important public utilities will sustain major damage when:

2.37.a. The dwelling, commercial or industrial building, public highway or bridge, or important public utility is in the direct path of the dam break flood wave, or;

2.37.b. Important public utilities equipment or public highways or bridges will be harmed sufficiently to cause disruption of service, or to require repair or replacement of the important public utility equipment, or public highway or bridge, or;

2.37.c. The dwelling, commercial or industrial building or important public utility will experience more than 1.5 feet of flood rise due to the dam break flood wave above the lowest ground elevation adjacent to the outside foundation walls; or more than 1.5 feet of flood rise due to the dam break flood wave above the lowest floor elevation of the dwelling, commercial or industrial building or important public utility. The lower of the elevations shall govern.

2.38. "Minor Damage" means insignificant harm to dwellings, commercial or industrial buildings, public highways or bridges, or public utilities that does not qualify as major damage.

2.39. "Natural Bed" means the lowest elevation of a stream, intermittent stream, or channel created by nature which has not been altered or changed by the actions of man.

2.40. "Natural Drainway" means any natural watercourse which may carry water to the tributaries and rivers of the watershed.

2.41. "Notice of Civil Administrative Penalty" means a written notification provided to a violator by the Secretary, by means of certified mail or personal service, assessing a civil administrative penalty. A notice of civil administrative penalty shall include:

2.41.a. A reference to the section of the statute, rule, notice, order, or certificate of approval term allegedly violated;

2.41.b. A concise statement of the facts alleged to constitute the violation;

2.41.c. A statement of the amount of the initial civil administrative penalty to be imposed; and

2.41.d. A statement of the alleged violator's right to an informal hearing.

2.42. "Notice of Dismissal" means a written notification provided to a violator by the assessment officer or the Secretary dismissing and vacating the civil administrative penalty. A notice of dismissal may be issued at any time during the proceedings.

2.43. "No Hazard" means a situation that is not associated with the structural or hydraulic condition of a dam.

2.44. "P100" means the rainfall amount based upon a one hundred (100) year frequency, six (6) hour duration rainfall event (i.e, a 100-year, 6-hour storm).

2.45. "Person" means any public or private corporation, institution, association, society, firm, organization or company organized or existing under the laws of this or any other state or country; the state of West Virginia; any state governmental agency; any political subdivision of the state or of its counties or municipalities; a sanitary district; a public service district; a drainage district; a conservation district; a watershed improvement district; a partnership; trust, or estate; a person or individual; a group of persons or individuals acting individually or as a group; or any other legal entity. The term "person", when used in this article, includes and refers to any authorized agent, lessee or trustee of any of the foregoing or receiver or trustee appointed by any court for any of the foregoing.

2.46. "Piping" means progressive internal erosion of earth material or adjacent unaltered material caused by water movement through embankment material with sufficient force to move soil particles, leading to the development of a channel or a hole.

2.47. "Principal Spillway" means the hydraulic structure designed to discharge water stored between the normal pool and the emergency spillway invert elevations.

2.48. "Probable Maximum Precipitation" or "PMP" means the depth-duration-area rainfall event for a particular area that represents the maximization of the most critical meteorological conditions that are considered possible to occur.

2.49. "Project" means planning, design, or construction activity necessary to obtain a certificate of approval or to obtain a loan for repair or removal of a dam.

2.50. "Project Area" means all areas physically affected by the construction of a dam including, but not limited to, the dam and its appurtenances, the reservoir area, construction zones, permanent or temporary access roads, borrow areas, materials storage areas, staging areas, and waste disposal areas.

2.51. "Removal" means complete elimination of the dam embankment or structure to restore the approximate original topographic contours of the valley.

2.52. "Roadfill" means a barrier or obstruction which:

2.52.a. Meets the definition of "dam" set forth in subsection 2.12.;

2.52.b. Is constructed across a natural drainway for the purpose of maintaining a roadway or similar crossing across that drainway; and

2.52.c. Has a culvert located in the drainway that is of sufficient size to prevent the normal impoundment of water.

2.53. "Safety Factor" or "Factor of Safety" means the ratio of the sum of the forces or moments resisting mass movement to the sum of the forces or moments tending to produce mass movement.

2.54. "Secretary" means the Secretary of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.55. "Sediment" means solid material, either mineral or organic, resulting from the works of man that has been moved from its site of origin by water.

2.56. "Serious Problem" means a structural or hydraulic condition that if left uncorrected may lead to a dangerous condition.

2.57. "Significant Harm to the Environment" means the degradation of a public or private surface water supply, the alteration of habitat that adversely affects wildlife, or the reduction of the productivity of agricultural land.

2.58. "Site" means the permanent location of a dam, including the dam and its appurtenances, the reservoir area, diversion ditches, and sediment control facilities.

2.59. "Subsidence" means a sinking, collapsing, or cracking of a portion of the earth's surface resulting from the presence of a void or voids beneath the surface.

2.60. "Violator" means the person who is alleged to have violated the Act, or any rule, notice to comply, order, or certificate of approval term imposed pursuant to the Act.

2.61. "Written Decision" means a written decision furnished to the violator concerning the Secretary's final decision regarding the assessment of a civil administrative penalty and the reasons therefor.

W. Va. Code R. § 47-34-2