TITLE 47 
LEGISLATIVE RULE 
DEPARTMENT OF ENVIRONMENTAL PROTECTION 
WATER RESOURCES 
SERIES 34 
DAM SAFETY RULE 
§47-34-1. General. 
1.1. Scope and Purpose. -- This legislative rule establishes requirements relating to the design, 
placement, construction, enlargement, alteration, removal, abandonment, and repair of dams in this State 
that fall within the definition set forth in 2.12. This legislative rule also establishes requirements to govern 
the disbursement and use of moneys held in the State Dam Safety Rehabilitation Revolving Fund. The 
scope does not extend to those dams that are related to coal activities. 
1.2. Authority. -- W. Va. Code §22-14-4 and §22-14-19(c). 
1.3. Filing Date. -- May 20, 2009. 
1.4. Effective Date. -- June 1, 2009. 
1.5. Amendment of Existing Rule. -- This legislative rule amends the Dam Safety Rule, 47 C.S.R. 
34, filed and made effective May 10, 1995. 
§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 noncoalrelated 
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. 



§47-34-3. Classification of Dams. 
3.1. Types of Dams - For the purpose of this rule, dams are divided into four general types: 
3.1.a. Embankment Dams - Embankment dams are usually constructed of materials which 
exhibit rock-like or soil-like properties. 
3.1.b. Gravity Dams - Gravity dams are usually constructed of concrete or masonry materials 
which form a rigid body. 
3.1.c. Waste Disposal Dams - Waste disposal dams are usually constructed of waste materials 
such as fly ash or coal refuse. The reservoir is utilized to dispose of waste material, thereby creating a 
continuously decreasing freeboard condition. 
3.1.d. Dams of Multiple Type - In cases where a dam exhibits properties of more than one type, 
such as gabion structures or roller-compacted concrete, the person or his or her agent must apply design 
techniques which are reasonably applicable to the particular structure involved. 
3.2. Dam-Related Measurements. 
3.2.a. Measuring Dam Height - The height of a dam is measured from the crest or uppermost 
point on the dam to the lowest point in the natural bed of the stream or watercourse at the downstream toe 
of the dam. Gravity overflow dams must be measured to the highest level which is greater than ten 
percent (10%) of the total crest length of the dam. The height of dams with sloping crests shall be 
determined by a weighted-average height above the natural bed of the stream or watercourse, excluding 
spillways. 
3.2.b. Measuring Reservoir Volume - For purposes of determining whether a dam meets the 
criteria set forth in subsection 2.12. as applied to reservoir volume calculations, the volume must be 
calculated at the crest elevation of the dam that is equivalent to the elevation used in determining the dam 
height. 
3.2.c. Incised Reservoirs - The height of the embankment of an incised reservoir must be 
measured using the method set forth in paragraph 3.2.a. Reservoir volume must be calculated from the 
crest of the embankment to the elevation of the lowest point in the natural bed of the stream or 
watercourse at the downstream toe. That portion of the water stored below stream grade shall not be 
included in determining whether a dam meets the criteria set forth in subsection 2.12.; however, it must be 
reported in the application as part of the total reservoir volume. 
3.3. Dams in Series - If the Secretary determines that a series or combination of water-impounding 
structures within the same watercourse, or within the tributaries of the watercourse, which cumulatively 
meet the definition of "dam" set forth in subsection 2.12. constitute a hazard to human life, and failure of 
one or more of the impounding structures may induce failure of any or all of the remaining impounding 
structures, he or she may require the owner or owners of each impounding structure to comply with the 
requirements of this rule. 
3.4. Incidental Dams. 
3.4.a. Roadfills. 


 3.4.a.1. If the Secretary finds that a roadfill has become a hazard to human life or property 
through the frequent or continuous impoundment of water, he or she may order the owner of that roadfill 


to take all steps that are necessary to protect life or property in accordance with the emergency powers 
provided under W. Va. Code §22-14-10. 
3.4.a.2. A certificate of approval will not be required for roadfills. 
3.4.b. Bridges. 
3.4.b.1. If the Secretary finds that a bridge has become a hazard to human life or property 
through the frequent or continuous impoundment of water, he or she may order the owner of that bridge 
to take all steps that are necessary to protect life or property in accordance with the emergency powers 
provided under W. Va. Code §22-14-10. 
3.4.b.2. A certificate of approval will not be required for bridges. 
3.4.c. Diversions - A certificate of approval will be required for dikes or other structures used to 
divert water and otherwise meeting the definition of "dam" set forth in subsection 2.12. 
3.4.d. Stream Encroachments - If the Secretary finds that a natural drainway has been restricted 
by filling or other artificial means so that the restriction can or does impound water, and the fill and 
resulting reservoir meets the height and storage requirements of a "Dam" as defined in this rule, he or she 
may order the fill removed or require a certificate of approval or both. 
3.5. Classification of Dams - The applicant for a certificate of approval must propose the hazard 
classification for his or her dam based upon the classification guidelines listed in paragraph 3.5.b. and the 
hazard evaluation performed pursuant to paragraph 3.5.c. The classification proposed by an applicant is 
subject to approval by the Secretary. 
3.5.a. Changes in Dam Classification - The Secretary will periodically review the hazard 
classification of each dam subject to this rule and may reclassify a dam if he or she determines that the 
hazard potential has changed. The owner shall be notified by the Secretary of any hazard classification 
change. 
3.5.b. Hazard Classifications. 
3.5.b.1. Class 1 (High Hazard) Dams - Class 1 dams are those dams located where failure 
may cause loss of human life or major damage to dwellings, commercial or industrial buildings, main 
railroads, important public utilities, or where a high risk highway may be affected or damaged. This 
classification must be used if failure may result in the loss of human life. 
3.5.b.2. Class 2 (Significant Hazard) Dams - Class 2 dams are those dams located where 
failure may cause minor damage to dwellings, commercial or industrial buildings, important public 
utilities, main railroads, or cause major damage to unoccupied buildings, or where a low risk highway 
may be affected or damaged. The potential for loss of human life resulting from failure of a Class 2 dam 
must be unlikely. 
3.5.b.3. Class 3 (Low Hazard) Dams - Class 3 dams are those dams located in rural or 
agricultural areas where failure may cause minor damage to nonresidential and normally unoccupied 
buildings, or rural or agricultural land. Failure of a Class 3 dam would cause only a loss of the dam itself 
and a loss of property use, such as use of related roads, with little additional damage to adjacent property. 
The potential for loss of human life resulting from failure of a Class 3 dam must be unlikely. 
3.5.b.3.A. An impoundment exceeding forty (40) feet in height or four hundred (400) 
acre-feet storage volume shall not be classified as a Class 3 dam. 


 3.5.b.3.B. A waste disposal dam, the failure of which may cause significant harm to the 
environment, shall not be classified as a Class 3 dam. 
3.5.b.4. Class 4 (Negligible Hazard) Dams - Class 4 dams are dams where failure is expected 
to have no potential for loss of human life, no potential for property damage and no potential for 
significant harm to the environment. Examples of Class 4 dams include: dams across rivers, failure of 
which under any conditions will not flood areas above normal stream bank elevations; dams located in the 
reservoir of another dam which, under any conditions, can contain water released by failure of the Class 4 
dam; and dams in series where the toe of the Class 4 dam(s) is in close proximity to the reservoir of a dam 
which can contain failure of the Class 4 dam(s) under any condition. In considering a request for a Class 4 
designation, the Secretary may require written concurrence from the owner(s) of downstream dams that 
may be affected by failure of the Class 4 dam. Approval for use of this classification is vested in the 
Secretary, and will be based on engineering evaluation of the dam(s) and downstream areas in question. 
3.5.c. Hazard Evaluation. 
3.5.c.1. Downstream Hazards - In evaluating the hazard potential of a dam in order to 
determine its hazard classification, a complete evaluation of the downstream area which will be affected 
in the event of dam failure must be performed. A sudden flooding of inhabited land accompanied by a 
water flow with damaging velocity, a wall of water, or the flooding of inhabited structures will all be 
deemed to have the potential to result in a loss of human life. The planned or potential future development 
of downstream areas must also be considered when evaluating hazard classification. 
3.5.c.2. Dam Break Analysis - An applicant must perform a downstream breach analysis to 
evaluate and map the downstream inundation area under assumed normal conditions and overtopping 
failure conditions. 
3.5.c.2.A. The Secretary may waive the downstream breach analysis required under 
subparagraph 3.5.c.2. for a Class 2 or Class 3 or Class 4 dam where downstream conditions prevent any 
future introduction of new facilities or residences that thereby change the hazard classification of the dam. 
3.5.c.3. Upstream Hazards - No dam shall be constructed which, during maximum pool 
conditions, will flood upstream dwellings, public utilities, primary highways, or main railroads unless 
otherwise approved by the Secretary based upon site-specific conditions. 
3.5.d. Risk Assessment - The applicant may propose a risk assessment according to the following 
provisions to determine the effect upon dwellings or other buildings downstream (paragraph 3.5.d.1.), to 
reduce the hazard classification (subdivision 3.5.b.) or to reduce the design storm requirements (paragraph 
7.1.a.2.) based upon failure of the dam by overtopping. The applicant must include appropriate 
calculations to support the request for hazard classification or design storm requirement reduction. The 
Secretary will not consider risk assessment based upon planned evacuation, probability of inhabitation, or 
monetary recovery of property damage. If both paragraph 3.5.d.1. (Dwellings or other Buildings Affected 
Downstream) and paragraph 3.5.d.2. (Highways Affected Downstream) pertain to the downstream area, 
then the hazard classification representing the greatest risk category and the largest of the design storm 
requirements resulting from the above calculations shall apply. Approval of hazard classification 
reduction or reduction of design storm requirements based upon risk assessment is vested in the Secretary, 
and will be based on engineering evaluation of the dam(s) and downstream areas in question. 


 3.5.d.1. Dwellings or Other Buildings Affected Downstream - The Secretary may consider 
reduced design storm requirements (subparagraph 7.1.1.b.) within the approved hazard classification, if 
the applicant can demonstrate that all affected dwellings, commercial and industrial buildings or 
important public utilities will be inundated and evacuated prior to the dam failure. The applicant must 


also demonstrate that the potential for loss of human life resulting from the dam failure is not significantly 
increased from that which occurs immediately prior to the dam failure. 
3.5.d.2. Highways Affected Downstream - The Secretary may consider reduced hazard 
classification (paragraph 3.5.b.) and reduced design storm requirements (subparagraph 7.1.a.2.), if the 
applicant can demonstrate that affected highway(s) will be impassable and traffic will be stopped in the 
dam failure inundation area due to the highway(s) being flooded by high water prior to the dam failure. 
The applicant must also demonstrate that the potential for loss of human life resulting from the dam 
failure is not significantly increased from that which occurs immediately prior to the dam failure. 
§47-34-4. Certificates of Approval. 
4.1. Certificate Required - A person must obtain a certificate of approval from the Secretary in order 
to place, construct, enlarge, alter, breach, remove, abandon, or perform major repairs upon any dam in 
this State that falls within the definition set forth in subsection 2.12. 
4.2. Certificate Issuance. 
4.2.a. Certificates of approval may constitute full and final approval of a dam or be issued for 
alterations or repairs, in which case the certificate may or may not constitute final approval of the dam. 
4.2.b. The Secretary will issue or refuse to issue a certificate of approval based upon the 
following: 
4.2.b.1. The receipt of a complete application, including all applicable fees, in accordance 
with the provisions of subsection 5.1; 
4.2.b.2. The review of the application form and plan package for sufficiency; and 
4.2.b.3. The results of any hearings held in accordance with the provisions of W. Va. Code 
§22-14-7. 
4.2.c. The Secretary will return defective applications to the applicant by certified or registered 
mail, return receipt requested, in order that the applicant may correct any defect. The applicant must send 
a corrected application to the Secretary within thirty (30) days of the date of the applicant's receipt of the 
returned application. The Secretary may extend the thirty-day period upon the receipt of a written request 
from the applicant. 
4.2.d. Upon the receipt of written approval from the Secretary of the sufficiency of the 
application, the applicant shall immediately publish a Class I legal advertisement in a qualified 
newspaper, as defined in W. Va. Code §59-3-1, serving the county in which the proposed dam is to be 
located or in which the existing dam is located. The notice shall include the name and address of the 
applicant, the location of the dam for which the application was filed, and such other information as may 
be specified by the Secretary in his or her written approval. 
4.3. Hearings Prior to Certificate Issuance - Any person who may be adversely affected by the 
issuance of a certificate of approval shall have a right to a hearing before the Secretary. A written request 
for a public hearing, detailing the specific objections to the issuance of the certificate of approval, must be 
sent to the Secretary within fifteen (15) days of the publication of the Class I legal advertisement required 
under subdivision 4.2.d. Hearings that concern specific objections to the issuance of a certificate of 
approval will be conducted in accordance with the provisions of W. Va. Code §22-14-7 at a location and 
time set by the Secretary. 



 4.4. Certificate Revocation or Suspension - The Secretary may revoke or suspend a certificate of 
approval in accordance with the provisions of W. Va. Code §22-14-8 if he or she determines that a dam 
for which the certificate was issued constitutes a danger to life and property. 
4.5. Certificate Terms and Conditions - A certificate of approval may include such terms and 
conditions as the Secretary may find necessary for the construction or operation of the dam. These terms 
and conditions may be amended by the Secretary in accordance with the provisions of W. Va. Code §22- 
14-8. 
4.6. Approval to Impound Water - No person may cause a reservoir to initially fill with water, or 
refill a drained reservoir, without written approval from the Secretary. 
4.6.a. Upon the receipt of a written petition from a dam owner, the Secretary may waive or 
modify the refilling approval requirement of subsection 4.6 in a case where frequent draining and refilling 
of a reservoir is the intended purpose and normal operation of the owner's dam. 
4.7. Other Approvals - The Secretary may refuse to issue a certificate of approval or may delay 
issuing a certificate of approval if the applicant fails to obtain necessary approvals from State or federal 
agencies. 
4.7.a. Waterways Under State or Federal Jurisdiction - Construction of a dam across a waterway 
which is under the jurisdiction of the State or federal government may require State or federal agency 
approval prior to issuance of a certificate of approval by the Secretary. 
4.7.b. Wetlands - Construction of a dam which may inundate, drain, or otherwise adversely affect 
wetlands (i.e., swamps, marshes, bogs, and similar areas) may require State and federal agency approval. 
§47-34-5. Application Procedures. 
5.1. Application Preparation and Submission. 
5.1.a. Applications for a certificate of approval shall be prepared by or under the direct 
supervision of an engineer. 
5.1.b. Applications shall be submitted on the forms provided by the Secretary. Application forms 
must be completed in their entirety without unauthorized omissions, alterations, or additions. Applications 
shall be signed by the applicant and an engineer. 
5.1.c. A complete application will consist of a completed and signed application form, all 
applicable fees, and a plan package containing the information required under subsection 6.4. 
5.1.d. Plans, reports, specifications, and design drawings shall be signed and sealed by an 
engineer in accordance with the provisions of subsection 6.2. 
5.2. Application Review. 
5.2.a. Applications will be reviewed for sufficiency by the Dam Safety Section. The review will 
consider the completeness and technical accuracy of the information submitted and will evaluate all 
engineering plans and assumptions to determine the safety of the dam. 
5.2.b. Applications which are incomplete or otherwise not in compliance with the requirements 
of this rule will be returned to the applicant for correction in accordance with the provisions of W. Va. 
Code §22-14-7. 


 §47-34-6. Plans and Specifications. 
6.1. Plans and Specifications - Plans and specifications relating to the design, placement, 
construction, enlargement, alteration, removal, abandonment, or repair of a dam must be prepared in 
accordance with the requirements of sections 7 through 12. 
6.2. Engineer's Signature and Seal Required - All plans and specifications shall be signed and sealed 
by an engineer. The engineer's signature and seal are required on each full-size plan sheet, even if the 
sheets are bound together, and are further required on the front page of any engineering report book and 
each unbound sheet of drawings or specifications included in appendices or pockets. 
6.3. Engineering Practices - All plans and specifications for the placement, construction, 
enlargement, alteration, breaching, removal, abandonment, or repair of a dam shall be in the charge of an 
engineer. 
6.3.a. Standard Practices - All engineering designs, procedures, processes, and analyses shall be 
based upon standard, accepted, and sound engineering practices. Practices which are questionable or 
difficult to prove analytically may be rejected by the Secretary or returned for additional information. 
6.3.b. Experimental Practices - Experimental design will not be approved by the Secretary unless 
the experiment meets the following conditions: 
6.3.b.1. Engineering analysis indicates the design is realistic and success is likely; 
6.3.b.2. Failure of the experiment to perform properly will not endanger life and property or 
cause the failure of the dam; and 
6.3.b.3. The engineer and dam owner agree to redesign and modify the experimental design 
if it does not perform properly. 
6.4. Plan Package Organization - Each plan package submitted for approval shall contain the 
following information, arranged in the following order, unless an alternative submission format is 
approved by the Secretary: 
6.4.a. Project Narrative - A general narrative discussion of the project shall be included in the 
plan package to detail the following: 
6.4.a.1. Existing site conditions; 
6.4.a.2. Local geology and geotechnical considerations; 
6.4.a.3. Design life of the dam and its appurtenances; 
6.4.a.4. Subsidence potential; 
6.4.a.5. Design techniques with associated design computations and data; 
6.4.a.6. Environmental protection measures for the control of erosion and sedimentation and 
for the disposal of construction wastes; 
6.4.a.7. Method of construction, including clearing and grubbing, topsoil stockpiles, and 
surface and subsurface drainage structures; 


 6.4.a.8. Phases or sequence of construction; and 
6.4.a.9. Routine inspection and maintenance procedures and schedules. 
6.4.b. Construction Sequence and Schedule - A proposed or recommended sequence of 
construction, with a schedule listing the anticipated number of working days necessary to accomplish 
each item in the sequence, shall be included in the plan package. The construction sequence and schedule 
must be specific to the dam and must cover the following general categories: 
6.4.b.1. Sediment control measures; 
6.4.b.2. Clearing and grubbing; 
6.4.b.3. Road or utility relocations; 
6.4.b.4. Development of borrow areas; 
6.4.b.5. Placement of coffer dams or diversions; 
6.4.b.6. Excavation of foundation areas; 
6.4.b.7. Excavation of spillways; 
6.4.b.8. Placement of embankment or structural materials; 
6.4.b.9. Placement of spillways and appurtenances to spillways; 
6.4.b.10. Seeding and mulching of the project area; 
6.4.b.11. General cleanup of the project area; and 
6.4.b.12. Other information as requested by the Secretary. 
6.4.c. Project Specifications - Specifications submitted with the plan package must be specific to 
construction of the dam or must contain a specific section concerning construction of the dam. Inclusion 
of specifications for the dam throughout other general construction specifications is not acceptable. 
Specifications shall be included in the plan package to detail the following: 
6.4.c.1. Clearing and grubbing; 
6.4.c.2. Soil stockpiles; 
6.4.c.3. Subdrain construction; 
6.4.c.4. Slopes; 
6.4.c.5. Grades; 
6.4.c.6. Surface drainage structures such as embankment diversion ditches; 
6.4.c.7. Spreading and compaction requirements, including lift thicknesses, moisture content, 
and degree of compaction; 


 6.4.c.8. Material and gradation requirements for subsurface drainage structures; 
6.4.c.9. Pipes; 
6.4.c.10. Concrete, including testing and curing; 
6.4.c.11. Anti-seep mechanisms; 
6.4.c.12. Cutoff trenches including specific treatment of joints, bedding planes, fractures, 
weak zones, overhangs or faults; 
6.4.c.13. Channel and slope protection (e.g., riprap); 
6.4.c.14. Project quality control and testing; 
6.4.c.15. Blasting; 
6.4.c.16. Construction erosion and sediment control; 
6.4.c.17. Construction waste disposal; 
6.4.c.18. Dust abatement; 
6.4.c.19. Revegetation; 
6.4.c.20. Installation and reading of monitoring devices; 
6.4.c.21. Inspection and maintenance; and 
6.4.c.22. Other information as requested by the Secretary. 
6.4.d. Maps and Drawings. 
6.4.d.1. Maps shall be included in the plan package showing the project area in relation to 
primary highways, county seats, and major drainages. County highway maps may be used for this 
purpose. 
6.4.d.2. A map showing the limits of the watershed with respect to the project area shall be 
included in the plan package. The minimum map scale meeting this requirement is a 7-1/2 minute United 
States Geological Survey topographic map with the project area plotted on it. 
6.4.d.3. A plan view map of the project area that shows all disturbed and reservoir areas shall 
be included in the plan package showing detailed contour intervals (i.e., a five-foot maximum interval). 
6.4.d.3.A. The location of the following items, if present, shall be plotted on the plan 
view map: 
6.4.d.3.A.1. Caves; 
6.4.d.3.A.2. Cemeteries and graves; 
6.4.d.3.A.3. Seeps; 


 6.4.d.3.A.4. Springs; 
6.4.d.3.A.5. Mine drainage; 
6.4.d.3.A.6. Underground mine openings; 
6.4.d.3.A.7. Underground mine workings; 
6.4.d.3.A.8. Borings and test pits; 
6.4.d.3.A.9. Cross-sections; 
6.4.d.3.A.10. Project stationing; 
6.4.d.3.A.11. Reference points; 
6.4.d.3.A.12. Instrumentation; 
6.4.d.3.A.13. The subdrain system; 
6.4.d.3.A.14. Diversion channels; 
6.4.d.3.A.15. Surface water drainage channels; 
6.4.d.3.A.16. Spillway channels; 
6.4.d.3.A.17. Borrow source areas; and 
6.4.d.3.A.18. Proposed waste disposal areas. 
6.4.d.3.B. Additional detailed plan views of the dam or its spillways and appurtenances 
may be required by the Secretary. 
6.4.d.4. Transverse and longitudinal cross-sections and profiles of the dam shall be included 
in the plan package showing original ground, subdrain locations, elevations, benches, spillways, and other 
pertinent features of the project area. A cross-section shall be provided for stability computations showing 
the dam at critical areas, with subsurface data plotted in accordance with the provisions of part 
7.4.b.1.D.4. 
6.4.d.5. Cross-sections and profiles of major drainage facilities shall be included in the plan 
package. 
6.4.d.6. Construction drawings shall be included in the plan package showing subdrains, 
spillways, anti-seep mechanisms, and other pertinent structures. 
6.4.e. Inventory of Protected Sites. 
6.4.e.1. An inventory of sites protected under State or federal law must be conducted by each 
applicant seeking a certificate of approval to: 
6.4.e.1.A. Construct a new dam; or 



 6.4.e.1.B. Alter or enlarge an existing dam whereby new areas will be disturbed or 
flooded. 
6.4.e.2. The minimum acceptable protected sites inventory shall include the following 
components: 
6.4.e.2.A. A field survey shall be conducted by the applicant or his or her agents to 
ascertain the presence of any cave (i.e., a naturally occurring underground subterranean cavity such as a 
cavern or grotto) within the area to be disturbed or flooded by the project. The location of all caves must 
then be plotted on the plan view map required under paragraph 6.4.d.3. If no caves are present in the area 
to be disturbed or flooded, that fact must be noted in a statement attached to the plan view map submitted 
to the Secretary. 
6.4.e.2.B. A field survey shall be conducted by the applicant or his or her agents to 
ascertain the presence of any cemetery or grave within the area to be disturbed or flooded by the project. 
The location of all cemeteries and graves must then be plotted on the plan view map required under 
paragraph 6.4.d.3. If no cemeteries or graves are present in the area to be disturbed or flooded, that fact 
must be noted in a statement attached to the plan view map submitted to the Secretary. 
6.4.e.2.C. A copy of the plan view map required under subparagraph 6.4.d.3. shall be 
sent by the applicant to the West Virginia Division of Natural Resources, Nongame Wildlife Program, 
P.O. Box 67, Elkins, West Virginia 26241. A letter of transmittal that briefly explains the nature of the 
applicant's project must accompany the map so that State officials may have the opportunity to assess 
whether the applicant's project will adversely impact any animal or plant species that is listed by the 
federal government as endangered or threatened in Endangered Species Act. [1987 Stat. 884, as amended: 
16 U.S.C. 1531 et seq.]. A copy of the applicant's letter of transmittal must be included in the plan 
package submitted to the Secretary; and 
6.4.e.2.D. A copy of the plan view map required under subparagraph 6.4.d.3. shall be 
sent by the applicant to the West Virginia Division of Culture and History, Historic Preservation Unit, 
Cultural Center, State Capitol Complex, 1900 Kanawha Boulevard East, Charleston, West Virginia 
25305. A letter of transmittal that briefly explains the nature of the applicant's project must accompany 
the map so that State officials may have the opportunity to assess whether the applicant's project will 
adversely impact any historic site that is listed by the West Virginia Division of Culture and History on 
the State Register of Historic Places. A copy of the applicant's letter of transmittal must be included in the 
plan package submitted to the Secretary. 
6.4.e.3. If either artifacts of historical significance or human remains are uncovered by 
construction or related activities, the Dam Safety Section must be contacted immediately. The Secretary 
may suspend activities in the vicinity of such artifacts or remains until appropriate investigations have 
been conducted. 
6.4.f. Erosion and Sediment Control - The plan package must include either: 
6.4.f.1. A copy of the applicant's letter transmitting a permit application for the WV/NPDES 
Storm Water Construction General Permit to the Secretary, if the disturbed area within the site will 
exceed limits necessary for a NPDES permit, or; 
6.4.f.2. An erosion and sediment control plan as required in subdivision 7.5.a., if the 
disturbed area within the site is less than the limits necessary for a NPDES permit. 
§47-34-7. Design Requirements. 
7.1. Hydrologic Considerations. 


 7.1.a. General Hydrologic Requirements. 
7.1.a.1. Hydrologic Investigation. 
7.1.a.1.A. A survey shall be conducted to evaluate soil types, land use, land slope, 
watershed area, runoff curve number, and any other factors needed to establish watershed characteristics. 
A summary of all hydrologic and hydraulic data compiled in the initial site investigation and used in the 
analysis shall be included in table or figure form in the plan package. 
7.1.a.1.B. A stream flow analysis shall be conducted to evaluate stream flow quantity 
and quality as it affects the dam and its appurtenances. 
7.1.a.2. Design Storm Requirements - The design storm and any incremental reduction of the 
design storm proposed by the applicant is subject to approval by the Secretary. All dams shall be designed 
to meet the following minimum hydrologic criteria based upon hazard classification: 
7.1.a.2.A. Class 1 Dams - Class 1 dams shall be designed for the probable maximum 
precipitation of six (6) hours in duration. The design precipitation for a Class 1 dam may be reduced 
based on Risk Assessment (subdivision 3.5.d.), but in no case to less than seventy percent (70%) of the 
probable maximum precipitation. 
7.1.a.2.B. Class 2 Dams - Class 2 dams shall be designed for fifty percent (50%) of a 
probable maximum precipitation of six (6) hours duration. The design precipitation for a Class 2 dam may 
be reduced based on Risk Assessment (subdivision 3.5.d.), but in no case to less than twenty-five percent 
(25%) of the probable maximum precipitation. 
7.1.a.2.C. Class 3 Dams - Class 3 dams shall be designed for twenty-five percent (25%) 
of a probable maximum precipitation of six (6) hours in duration. The design precipitation for a Class 3 
dam may be reduced based on Risk Assessment (subdivision 3.5.d.), but in no case to less than a P100 
rainfall of six (6) hours in duration. 
7.1.a.2.D. Class 4 Dams - Class 4 dams shall be designed for a P100 rainfall of six (6) 
hours in duration. 
7.1.a.3. Antecedent Moisture Conditions - Where applicable to the development of a 
hydrograph, Antecedent Moisture Condition II (AMC II) may be used unless a different condition class is 
required by the Secretary. 
7.1.a.4. Flood Routings - An analysis shall be performed for the reservoir and spillways 
which includes inflow hydrographs, stage storage curves, stage discharge curves, and routings. The 
spillways must be able to safely discharge that portion of the design storm that is not stored in the 
reservoir. If a computer analysis is used, the input data and output results must be clearly labeled and 
identified. Trial calculations or intermediate results not relevant to the final results may be omitted from 
the plan package. 
7.1.b. Specific Hydrologic Requirements. 
7.1.b.1. Embankment Dams. 
7.1.b.1.A. Storage and Discharge. 



 7.1.b.1.A.1. Class 1 dams designed with either an open channel spillway only or 
with an emergency spillway and a principal spillway together must be capable of discharging that portion 
of the design storm that cannot be safely stored in the impoundment. Class 1 dams designed with a decant 
or principal spillway only must be capable of storing the volume of water generated by a PMP rainfall 
event of six (6) hours in duration. The design of a Class 1 dam must assure that ninety percent (90%) of 
the stored volume of the design storm will be discharged within ten (10) days after the storm event. 
7.1.b.1.A.2. Class 2 dams must be designed with either an open channel spillway 
only or a combination of principal and emergency spillways. A Class 2 dam shall be capable of passing 
that portion of the design storm that cannot be safely stored in the impoundment. The design of a Class 2 
dam must assure that ninety percent (90%) of the stored volume of the design storm will be discharged 
within ten (10) days after the storm event. 
7.1.b.1.A.3. Class 3 dams must be designed with either an open channel spillway 
only or a combination of principal and emergency spillways. A Class 3 dam shall be capable of passing 
that portion of the design storm that cannot be safely stored in the impoundment. The design of a Class 3 
dam must assure that ninety percent (90%) of the stored volume of the design storm will be discharged 
within ten (10) days after the storm event. 
7.1.b.1.B. Surface Drainage Control - Surface drainage control devices (e.g., vegetated 
slopes, benches, groin ditches, and collection channels) shall be provided as necessary to protect the dam 
and its appurtenances from the effects of erosion. Riprap or other erosion protection measures shall be 
included where excessive velocity is anticipated or experienced. All surface drainage control devices must 
be designed to exit safely beyond the downstream toe of an embankment in a natural drainway capable of 
carrying the design flow without excessive erosion. The 50-year, 6-hour rainfall event shall be used as the 
design storm for surface drainage systems. 
7.1.b.1.C. Spillway Frequency of Operation - Outlet works that incorporate vegetated 
earth or unlined earth emergency spillways shall be designed so that the average frequency of operation is 
no greater than the following recurrence schedule, based upon a 6-hour rainfall event: 
7.1.b.1.C.1. Class 1 Dams - Once in one hundred (100) years. 
7.1.b.1.C.2. Class 2 Dams - Once in fifty (50) years. 
7.1.b.1.C.3. Class 3 and Class 4 Dams - Once in twenty-five (25) years. 
7.1.b.1.D. Overtopping Embankments - Regardless of their hazard classification, dams 
designed to overtop in accordance with the provisions of subparagraph 7.4.b.1.E. shall not overtop more 
frequently than once in one hundred (100) years, based upon a 6-hour rainfall event. 
7.1.b.2. Gravity Dams - Gravity dams may be designed in the same manner as the 
corresponding hazard classes of embankment type dams in subparagraph 7.1.b.1.A. except that designed 
overtopping of the dam may be substituted for the emergency spillway requirements. 
7.1.b.3. Waste Disposal Dams. 
7.1.b.3.A. Storage and Discharge - The following storage and discharge systems may be 
used in design of waste disposal dams: 


 7.1.b.3.A.1. Open Channel Only or Emergency Spillway with Principal Spillway - A 
dam designed with either an open channel spillway only or with an emergency spillway and a principal 
spillway together shall be capable of discharging that portion of the design storm that cannot be safely 


stored in the impoundment. This type of design must assure that ninety percent (90%) of the stored 
volume of the design storm will be discharged within ten (10) days after the storm event. Slurry 
impoundments shall be provided with a means of removing water to maintain the lowest practical water 
level. 
7.1.b.3.A.2. Principal Spillway or Decant Only - A dam designed with a decant or 
principal spillway only shall be capable of storing the volume equivalent to a minimum of one (1) design 
storm. Risk assessment shall not be applied to dams with principal spillway or decant only. This type of 
design must assure that ninety percent (90%) of the stored volume of the design storm will be discharged 
within ten (10) days after the storm event. Slurry impoundments shall be provided with a means of 
removing water to maintain the lowest practical water level. 
7.1.b.3.A.3. No Outlet Works - A dam designed without discharge structures shall be 
capable of storing the volume equal to a minimum of two (2) design storms. Risk assessment shall not be 
applied to dams with no outlet works. Water shall be removed from the impoundment to its lowest 
practical level by pumping or other means if storm water reduces the storage capacity to one (1) design 
storm or less. 
7.2. Hydraulic Considerations. 
7.2.a. General Hydraulic Requirements. 
7.2.a.1. Hydraulic Analysis - Using standard engineering practices, a hydraulic analysis shall 
be performed for the spillways and surface drainage system. Typical cross-section design techniques may 
be used where constant slopes are encountered. All hydraulic structures shall be designed to safely control 
the velocity of water in order to prevent excessive erosion. Accepted engineering practices shall be used 
to design riprap, non-flexible channel linings, bedding, and energy dissipators. 
7.2.b. Specific Hydraulic Requirements. 
7.2.b.1. Open Channels - Open channels, including open channel spillways, shall be analyzed 
for flow depth, velocity, nonuniform flow conditions, super-elevation, and hydraulic jumps. 
7.2.b.1.A. Stage Discharge - Where an open channel is used as a spillway, a stage 
discharge rating shall be developed using standard engineering practices for the type and shape of the 
spillway. In developing the rating, increase in upstream water depth due to change in velocity head must 
be considered. 
7.2.b.1.B. Water Surface Profiles - Where channel slopes or cross-sections vary and 
nonuniform flow conditions result, a water surface profile may be necessary in order to analyze the 
channel flow depths and the location of hydraulic jumps. 
7.2.b.1.C. Hydraulic Jumps - Where hydraulic jumps will occur, channel sidewall height 
shall be sufficient to contain the jump. The channel lining shall be designed to withstand the hydraulic 
jump without damage. 
7.2.b.1.D. Critical Flows - Channels shall be designed so that water will not flow at 
critical depth for extended distances. In channels of varying slope or cross-section where nonuniform 
flow occurs, the transition through critical flow shall be as rapid as possible. 


 7.2.b.1.E. Super-elevation - Channel walls shall be designed to contain super-elevated 
flows in curves. Where curves occur in spillway channels, the Secretary may approve super-elevation 


wall height based upon one-half of the design flow, but not less than the P100 design flow, provided the 
excess overflow will impinge on natural ground and will not endanger the dam, human life, or property. 
7.2.b.2. Closed Conduit Systems - Closed conduit systems including principal spillways, 
risers, and pipes shall be analyzed to determine the controlling limits of weir, orifice, and pipe flows. 
7.2.b.2.A. Risers and Drop Inlets - Risers shall be protected with a designed trash rack 
and anti-vortex device. The drop inlet shall be sized to provide a rapid transition from partial to full pipe 
flow conditions. 
7.2.b.2.B. Stage Discharge - When a closed conduit system is used as a principal system, 
a stage discharge rating shall be developed using standard engineering practices for weir, orifice, and pipe 
flow calculations. 
7.2.b.2.C. Slug Flow - Conduit systems shall be designed to avoid formation of 
alternating partial and full pipe flow conditions through proper selection of pipe slope and headwater or 
tailwater conditions. 
7.3. Geotechnical Considerations. 
7.3.a. Geotechnical Investigation - A geotechnical investigation shall be performed. The 
quantity, location, and depth of borings, test pits, or trenches must be adequate for the evaluation of the 
bearing capacity and subsurface conditions for the proposed structure and may vary based upon the 
height, impoundment volume, and hazard classification of the dam. Factors to be considered include 
depth of soil, characteristics of bedrock, and determination of groundwater location. Results of in-situ 
testing and soil sampling shall be reported in the plan package. Soil profiles shall be utilized for critical 
foundation locations of the structure, spillways, and other pertinent locations which affect the safety of 
the structure. A geological study shall also be conducted to evaluate stratigraphy, landslides, bedrock 
discontinuities such as soft seams, joints, joint systems, bedding planes, and fault zones which may 
adversely affect the structure's performance. Past and future mining including thickness of coal seams, 
depth and type of rock above the coal seam, and previous or expected subsidence problems shall be 
considered where subsidence may affect the safety of the structure. 
7.3.a.1. Project Area Survey - A project area survey shall be conducted to establish baselines 
and elevations of the dam embankments, reservoir and borrow areas, and appurtenant structures. The 
survey shall locate all test pits, borings, gas wells, oil wells, water wells, mine openings, landslides, and 
areas of natural seepage. 
7.3.a.2. Borrow Areas - Borrow areas shall be evaluated for appropriate construction 
materials and required volume. Borrow areas and excavation materials shall be tested to determine the 
suitability of material for use in embankments or drains. 
7.3.b. Laboratory Testing - Laboratory tests shall be conducted on a sufficient number of samples 
of foundation and embankment materials to provide an accurate representation of soil conditions. Tests 
shall include, but not be limited to, a complete soil classification including grain size, sieve, hydrometer 
analysis, Atterberg limits, density, water content, compaction tests, shear strength, consolidation, and 
permeability where applicable. Compaction and proctor curves shall be developed for all fill materials as 
appropriate. 
7.3.c. Geotechnical Evaluation - A summary of all geotechnical data determined in the initial site 
geotechnical investigation and used in the analysis shall be included in table or figure form in the plan 
package. 



 7.3.c.1. Seepage Analysis - An analysis of seepage and its detrimental effects on structural 
integrity shall be made. The analysis shall include consideration of potential piping in the embankment, 
foundations, and abutments. Seepage control measures shall be specified as necessary in order to enhance 
the stability of the embankment and adjacent area. Drainage systems shall be designed and constructed 
using a material approved by the Secretary and shall be protected by a properly designed filter zone using 
standard geotechnical engineering design practices. The design shall specify methods for sealing or 
controlling seepage encountered in foundation zones during construction. 
7.3.c.1.A. Foundation Treatment - If analysis indicates a highly fractured foundation, the 
engineer shall specify necessary treatment of the foundation zone including, but not limited to, foundation 
grout curtains, dental concrete treatment of fractures or overhangs, and detailed methods of foundation 
zone cleaning. Material used in grouts shall be specified in accordance with the provisions of 
subparagraph 7.4.a.1.B. 
7.3.c.2. Foundation Stability - The foundation must be designed to have adequate bearing 
capacity to support the embankment and any appurtenant works. Potential subsidence and settlement and 
their consequences shall be considered using standard engineering practices. Special attention shall be 
given to differential settlement which would lead to cracking of the dam. Spillway pipes on compressible 
foundations shall be protected from damage due to settlement. 
7.3.c.3. Landslides - The potential for landslides, as determined in the initial project area 
investigation, shall be evaluated by the engineer. If landslides noted in the project area could cause 
instability of the dam or appurtenant structures, blockage of spillways and other critical drainage 
structures, or overtopping of the dam by displacement of water in the reservoir area, such conditions shall 
be corrected to a minimum static safety factor of 1.5. 
7.4. Structural Considerations. 
7.4.a. General Structural Requirements - All structures shall be designed to perform as intended 
for the design life of the dam with proper maintenance or replacement. 
7.4.a.1. Structural Materials - Materials selected for use in the dam shall be of adequate 
quality and durability for the intended purpose of the structure. All structures shall be designed to have 
sufficient strength plus an adequate safety factor against failure during maximum anticipated loading 
conditions. 
7.4.a.1.A. Earth Materials - Earth materials selected for use in dam construction shall be 
free from roots, brush, organic materials, construction waste, and other debris. Where rock or rock fill is 
specified, the rock shall be durable and not subject to slaking or breakdown. Size gradations of the earth 
materials shall be specified to perform as planned. Compaction requirements for earth materials shall be 
specified in the plan package. 
7.4.a.1.B. Concrete Design - Concrete shall be designed in accordance with standard 
engineering practices. Concrete design specifications shall include materials, proportioning, form-work, 
reinforcement, joints and embedded items, production, placing, repair of surface defects, finishing, curing 
and protection, testing, evaluation and acceptance, and allowable tolerances for acceptance. 
7.4.a.1.B.1. Concrete Specifications - The engineer shall specify the nature of 
concrete to be used with sufficient detail for on-site quality control. The concrete may be specified by 
specific mix, aggregate, water content, additives, compressive strength, slump, and air entrainment or by 
reference to specific standards of concrete quality. If published standard specifications are referenced, a 
copy of the standard or pertinent sections of the standard shall be included in the plan package. 



 7.4.a.1.B.2. Concrete Placement - The engineer shall specify methods and limits of 
placement of the concrete including foundation preparation, maximum lift height, maximum time allowed 
between mixing and placement, methods of working into forms and corners, methods of consolidation 
and use of vibrating devices, and allowable ambient air temperatures and concrete temperatures. 
7.4.a.1.B.3. Concrete Curing - The engineer shall specify the method of curing the 
concrete including moist curing or membrane curing, wetting, types of covering, acceptable curing 
temperature range of the concrete, any anticipated cold weather curing specifications or methods such as 
protection from freezing and insulation methods, hot weather placement methods and limitations, and 
curing time. 
7.4.a.1.B.4. Concrete Finishing - The engineer shall specify the type of finishing to 
be applied to the concrete and the acceptable temperature range. 
7.4.b. Specific Structural Requirements. 
7.4.b.1. Embankment Dams. 
7.4.b.1.A. Selection of Materials - Material selected for construction of embankments 
shall be select earth material that is free from roots, brush, organic matter, construction waste, and other 
debris. The material must not be subject to breakdown or chemical reaction. Unless otherwise approved 
by the Secretary, the selected material must be thoroughly tested for density, shear strength, liquid and 
plastic limits, and optimum moisture content. The source of the material and available quantities shall be 
identified and adequate sampling performed in order to attain consistent quality and soil characteristics. 
7.4.b.1.B. Seepage and Piping Control - The Secretary may require installation of a 
properly designed filter drain system to prevent embankment failure due to seepage and/or internal 
erosion of any dam which can cause loss of human life or major damage to dwellings, or commercial or 
industrial buildings, important public utilities, or where a high risk highway may be affected. 
7.4.b.1.C. Zoned Embankments. 
7.4.b.1.C.1. Filter Drains - Filter drains shall be used in embankment zones where 
necessary to intercept seepage, reduce phreatic level, and reduce potential for internal erosion. Drain 
outlets shall be visible, not submerged under normal conditions, unobstructed, and protected with an 
animal guard where conduits are utilized. 
7.4.b.1.C.1(a) Gradations - The gradations of the filter material shall be sized to 
prevent or resist the migration of embankment material into the voids of the filter. The filter shall be 
permeable relative to the surrounding embankment material. 
7.4.b.1.C.1(b) Size - The filter drain shall be capable of passing the maximum 
anticipated seepage flows without excessive pore pressure. The combination of filter permeability and 
area shall be considered in sizing the drain. 
7.4.b.1.C.1(c) Durability - The material used in the filter shall be hard, durable 
material that is not subject to slaking, breakdown, or chemical reaction. 
7.4.b.1.C.1(d) Conduits - Perforated pipes may be used in the filter drain to 
increase capacity. Perforations shall be compatible with the filter gradations so that filter material will not 
enter the pipe. The pipe shall be capable of supporting the fill load and shall be of a material which will 
last for the design life of the structure. Corrugated metal pipe shall not be used in critical areas of the 
embankment or in any areas where the pipe is not reasonably accessible for replacement. 


 7.4.b.1.C.1(e) Filter Cloth - Filter cloth shall not be used in critical areas of the 
embankment or in any areas where the cloth is not reasonably accessible for replacement. 
7.4.b.1.C.2. Diaphragm Cutoff Walls - When concrete cutoff walls are used as an 
impermeable barrier, the concrete wall shall be placed upon an adequate foundation and be constructed of 
reinforced concrete. Where pipes pass through the concrete wall, adequate support for the pipe shall be 
provided to prevent differential settlement and pipe shearing. 
7.4.b.1.D. Embankment Stability -The following stability requirements apply to Class 1 
through Class 3 dams. The Secretary may approve lower safety factors for Class 4 dams, based on 
engineering recommendations. 
7.4.b.1.D.1. Embankment Safety Factors - Slope stability shall be analyzed to show 
that the embankment design achieves the following factors of safety under the conditions listed. Unless 
otherwise indicated, factors of safety requirements apply to both upstream and downstream slopes of the 
embankment: 
7.4.b.1.D.1(a) A safety factor of 1.5 for the embankment loading conditions 
specified in part 7.4.b.1.D.3.; 
7.4.b.1.D.1(b) An end of construction safety factor of 1.3; 
7.4.b.1.D.1(c) An upstream slope rapid drawdown safety factor of 1.2; and 
7.4.b.1.D.1(d) An earthquake safety factor under steady-state seepage conditions 
of 1.2 using seismic loading appropriate to the geological site conditions. 
7.4.b.1.D.2. Appurtenance Structural Stability - Embankments constructed as part of 
an appurtenant structure where failure will lead to a dangerous condition in the dam shall achieve a static 
safety factor of 1.5. 
7.4.b.1.D.3. Embankment Loading Conditions - Loading conditions shall assume a 
long-term steady-state condition with the phreatic surface originating at the elevation of the emergency 
spillway crest for embankment dams with emergency spillways or at a maximum design pool elevation 
for embankment dams without spillways. 
7.4.b.1.D.4. Stability Analyses - All slope stability analyses shall be performed using 
standard engineering practices. Exceptions to this requirement will be allowed by the Secretary only 
where there is sufficient evidence to indicate that slope failures will not occur. 
7.4.b.1.D.4(a) Critical cross-sections of the dam using equal X and Y axes scales 
shall be provided in the plan package. The cross-sections shall show the embankment limits, foundation 
zones, soil zones, phreatic line, assumed reservoir elevation, stability arcs or failure planes through the 
dam, and resulting safety factors for each critical arc or failure plane shown. 
7.4.b.1.D.4(b) A listing of soil zone unit weights, angles of internal friction, and 
cohesion values for each soil shown on the cross-section shall be provided in the plan package. If an 
alternative analysis is utilized, assumed soil values of the analysis shall be shown. 
7.4.b.1.E. Overtopping Embankments. 



 7.4.b.1.E.1. Rock-Covered Embankments - Rock-covered embankments shall be 
designed so that the rocks selected will be sized to withstand the maximum depth and velocity of the 
overtopping flow and be individually placed to maximize the interlocking effect. A minimum of two (2) 
layers of boulders is required. Boulders shall cover the crest, downstream face, and necessary areas of the 
upstream face of the dam and extend beyond the dam abutments to the extent necessary to contain the 
overtopping flow depth. Graded smaller rock shall fill the voids where the boulders contact the 
embankment to prevent erosion due to flow through the voids. The rock cover may be covered with soil 
and vegetated, provided that the equipment used to place the soil will not break the rock. 
7.4.b.1.E.2. Roller-Compacted Concrete Embankments. Roller-compacted concrete 
lift thickness and width shall be sized to withstand the maximum anticipated loading and uplift forces. 
Filter drains and weep holes shall be provided to relieve hydrostatic pressure behind roller-compacted 
concrete facings. The roller-compacted concrete may be covered with soil and vegetated. 
7.4.b.2. Gravity Dams. The following stability requirements apply to Class 1 through Class 
3 dams. The Secretary may approve lower safety factors for Class 4 dams, based on engineering 
recommendations. 
7.4.b.2.A. Stability Loading Conditions - Loading conditions for the stability analysis 
shall assume maximum overflow head from the design storm. 
7.4.b.2.B. Gravity Dam Stability. 
7.4.b.2.B.1. Overturning - The reaction of all forces must act within the middle onethird 
of the base. This requirement may be modified by the Secretary if detailed computations prove that 
overturning will not occur. 
7.4.b.2.B.2. Sliding - The dam shall have a factor of safety against sliding of at least 
3.0 for normal loading conditions and 1.5 for maximum loading conditions. The sliding factor of safety 
may be reduced to no less than 2.0 for normal loading conditions where intimate knowledge of subsurface 
conditions has resulted from a state-of-the-art subsurface investigation, testing program and design 
analysis. The subsurface investigation and testing necessary to reduce the factor of safety should include, 
but not be limited to: sampling and testing of weak zones such as discontinuities, joints, joint fill material, 
fracture zones, bedding planes, and faults and; determination of peak, ultimate and residual strengths of 
foundation materials. Design analyses should include, but not be limited to: three dimensional analyses of 
foundation strength resulting from the subsurface investigation. The adequacy of subsurface 
investigations, testing, and design analyses necessary to reduce the factor of safety is subject to approval 
by the Secretary. 
7.4.b.2.B.3. Bearing - The factor of safety against bearing failure shall be at least 1.5 
for maximum stress at the downstream toe. 
7.4.b.3. Waste Disposal Dams - The potential for liquefaction must be considered and the 
design shall include safeguards against the development of this condition. 
7.4.b.4. Spillways - All spillways shall be designed to discharge an adequate distance beyond 
the downstream toe of the dam in a natural drainway to prevent erosion of the downstream toe or other 
detrimental effects to the dam structure. 
7.4.b.4.A. Conduit Spillways - Inlets shall be protected by a designed trash rack and riser 
type spillways shall be designed to prevent detrimental vortexing. Risers shall have adequate weight to be 
non-buoyant and shall be of sufficient strength to withstand maximum dynamic water and ice forces. 
Foundations for risers shall be designed to support the riser without serious movement or deformation. 


 7.4.b.4.A.1. Conduits - Pipe conduits shall be placed on a designed foundation and 
bedding of sufficient strength to minimize settlement and other detrimental effects to the conduit. Antiseep 
or anti-piping mechanisms shall be provided for all conduits passing through the dam, foundation, or 
abutments to control seepage along the pipe. Design allowances shall be made to compensate for 
differential settlement, elongation, and movement of the pipe conduit if the cradle is placed on a yielding 
foundation. Pipe conduits shall be of sufficient strength to support the maximum external loads and the 
maximum internal hydraulic pressure without leaking, and shall resist uplift pressures. The pipe conduit 
shall be constructed of material which will not deteriorate during the design life of the structure. 
7.4.b.4.A.1(a) Use of Corrugated Metal Pipes - Corrugated metal pipes, whether 
coated or uncoated, shall not be used in new Class 2 or new Class 1 dams. Corrugated metal pipes in 
existing dams must be either replaced with new pipe or retrofitted with an appropriate liner if the 
Secretary determines that the existing pipe constitutes a hazard to the proper operation of the dam because 
the pipe has developed leaks, has deteriorated, or has otherwise ceased to function properly. 
7.4.b.4.A.2. Outlets - Pipe conduits shall be designed to outlet in a natural drainway 
or a designed channel leading to a natural drainway. An energy dissipator shall be provided to eliminate 
erosion at the pipe outlet and be designed for maximum pipe flow. If pipe blockage by animals may 
occur, the pipe outlet shall be protected by an animal guard. 
7.4.b.4.A.3. Gated Drain Pipe Required for New Freshwater Dams - All new 
freshwater dams shall have a gated drainpipe for draining the impoundment. The gate or valve shall be 
located in the reservoir or in the saturated zone upstream of the cutoff wall or impermeable barrier. If the 
gate is located within the embankment or structure, a service well shall be provided. The elevation of the 
gate system shall be such that the reservoir will be drained completely to original stream level. The drain 
system shall be designed to drain ninety percent (90%) of the volume of stored water at normal pool in 
ten (10) days including normal base flow and have a minimum capacity of three (3) times the normal base 
flow for the watershed with a headwater-to-diameter (HW/D) ratio of 1.5, unless otherwise approved by 
the Secretary. The drain conduit shall meet the requirements for conduits set forth in part 7.4.b.4.A.1. A 
designed trash rack shall be provided at the inlet of the drain. The controls to operate the drain gate shall 
be accessible without the use of specialized equipment or of divers. The drawdown rate for reservoir 
storage volumes in excess of two thousand (2000) acre-feet may be established by the Secretary. 
7.4.b.4.A.4. Existing Dams with Gated Drain Pipes - All existing dams currently 
equipped with a gated drain pipe must meet the design requirements of part 7.4.b.4.A.3. and continue to 
be operated and maintained with the gated drain pipe. If such a gate or valve was not previously installed, 
a gate or valve shall be installed in the reservoir or in the saturated zone upstream of the cutoff wall or 
impermeable barrier. The Secretary may approve reduced drawdown time and flow quantity requirements 
for existing drains. Drain systems not meeting the design requirements of part 7.4.b.4.A.3. or dams with 
leaking or inoperative drain systems must be repaired or modified to maintain the greatest practical 
capacity of the drain system. If installation of the upstream gate or valve is impractical without draining 
of the reservoir and reservoir drainage will cause major economic loss to the owner, the Secretary may 
approve delay of the upstream gate or valve installation until the next necessary draining of the reservoir, 
provided that the existing drain system is functioning properly and is not leaking in a manner that would 
create a serious problem. If the existing drain system develops a serious problem, the Secretary may order 
immediate remedial action. The Secretary may grant an exemption to this subpart when investigation of 
the existing drain system determines to the Secretary's satisfaction that installation of an upstream drain 
gate or valve is not feasible. 
7.4.b.4.A.5. The term "gate" or "valve" as used in this rule is a general term referring 
to a device used for controlling water flow. 



 7.4.b.4.B. Open Spillways - Unless specifically excluded, spillways of this type include 
the various designs of open type spillways including open channel, side channel, chute, labyrinth, and 
ogee. 
7.4.b.4.B.1. Earth Spillways - Spillways that are constructed of or in earth material 
shall be designed to pass the maximum design flow without excessive erosion. Earth spillways shall not 
be constructed over dam embankment fill material. 
7.4.b.4.B.1(a) Flexible Linings - Vegetation, rock riprap, soil reinforcement, or 
other flexible linings may be used to increase flow quantities and velocities in earth spillways within 
design limits. 
7.4.b.4.B.2. Concrete Spillways. 
7.4.b.4.B.2(a) Concrete - The engineer shall specify the grade and strength of 
concrete to be used in the spillway construction. The concrete structure shall be of sufficient strength to 
withstand the maximum design applied load. 
7.4.b.4.B.2(b) Foundation - Concrete shall be placed on a prepared foundation 
and bedding capable of sustaining the applied loads without excessive deformation. 
7.4.b.4.B.2(c) Drains - Designed filter drains and water pressure relief devices 
shall be provided under concrete slabs and walls to collect and safely convey water from seepage or 
leakage of construction joints and to relieve uplift pressure from seepage conditions. 
7.4.b.4.B.2(d) Joints - Construction joints shall be made watertight by use of a 
sealant material. Sliding joints shall be supported by a slab to maintain alignment. 
7.4.b.4.B.2(e) Cutoff Barriers - Cutoff barriers keyed into the foundation shall be 
provided to prevent or reduce seepage flow under the spillway. 
7.4.b.4.B.2(f) Energy Dissipators - An energy dissipator shall be provided to 
reduce the hydraulic energy at the end of the spillway. The dissipator shall be designed to function 
properly for flows of at least one-half of the design spillway flow. Flows in excess of the design capacity 
of the energy dissipator shall not endanger the dam or its appurtenances and may result only in erosion. 
7.4.b.4.B.3. Nonstandard Spillway Design - The Secretary may reject any spillway 
design if such design is of a nonstandard or untested nature and it is not possible to analytically predict 
the performance of the spillway or the detrimental effects of cross-waves, eddies, vortices, superelevation, 
or hydraulic jumps within the spillway system. 
7.4.b.5. Water Supply Pipes - Water supply pipes through a dam shall be constructed of a 
long-life, high-strength material. Welded joints or mechanical joints with sealing rings, or an alternative 
sealing method approved by the Secretary, shall be utilized. Pipes shall be properly bedded to reduce 
differential settling or elongation. Anti-seep mechanisms or filter drains shall be provided to prevent 
piping along the exterior of the pipe. If the pipe is enclosed in or passes through concrete, the relative 
coefficients of expansion shall be considered. Anti-corrosive measures shall be employed if soil tests 
indicate corrosion may be a problem. An upstream shutoff valve shall be installed on all new dams or 
when upgrading existing dams where reservoirs are to be drained as part of the upgrading. The section of 
the pipe through the dam shall be capable of withstanding a minimum pressure of twice the maximum 
reservoir head. The pipe shall be pressure-tested for leaks at maximum reservoir head pressure prior to the 
final covering of the pipe installation. 



 7.5. Miscellaneous Considerations. 
7.5.a. Erosion and Sediment Control - Erosion and sediment control measures sufficient to 
comply with the provisions of paragraph 8.1.m. shall be included in the project design where the 
disturbed area within the site is less than NPDES limits. If the disturbed area within the site exceeds 
NPDES limits, a letter documenting submission of a NPDES permit application must be submitted in 
accordance with subparagraph 6.4.f.1. 
7.5.b. Waste Disposal Areas - The engineer shall delineate locations in the project area which are 
to be used as waste disposal areas. 
7.5.c. Instrumentation - The engineer shall recommend instrumentation as necessary to monitor 
and measure performance of new dams or modifications to existing dams. The engineer shall specify the 
types and purpose of the recommended instrumentation. 
7.5.c.1. Piezometers or Observation Wells - Piezometers or observation wells may be 
required by the Secretary on embankment type dams to monitor phreatic level and water pressures in 
critical areas of the embankment and, if necessary, the foundation or abutments. All piezometer or well 
heads shall be anchored in concrete and protected from vandalism with a locking metal cylinder 
surrounding the piezometer or well pipe. 
7.5.c.2. Survey Monuments - Survey monuments may be required by the Secretary on 
embankment and gravity dams to monitor displacement, settlement, rotation, and deformation. Survey 
monuments on earth dams shall be sufficiently embedded into the structure to prevent localized 
movement of the monument. Protective casings shall be installed if necessary to prevent damage or forced 
movement of the survey point. 
7.5.d. Staged Construction - Waste disposal dams designed in stages of construction shall be 
capable of storing or passing the design storm specified in paragraph 7.1.a.2. and subparagraph 7.1.b.1.A. 
during all stages of construction except during the initial start-up period, unless otherwise approved by the 
Secretary. During the initial start-up period, the dam shall be capable of storing or passing the P100 
rainfall event as soon as possible. Construction shall increase storm capacity, reaching the full design 
storm capacity within two (2) years. 
§47-34-8. Construction or Modification of a Dam. 
8.1. Construction Requirements. 
8.1.a. Notification of the Commencement of Construction - Prior to the commencement of 
construction activities in the project area, the person who has been issued a certificate of approval, or his 
or her representative, shall notify the Secretary of the following: 
8.1.a.1. The intent of the contractor to start construction in the project area and the date of 
such start-up. 
8.1.a.2. The name, address, and telephone number of the owner's authorized contact person 
at the project area who is responsible for communicating with the Dam Safety Section and for receiving 
inspections reports and legal notifications. 
8.1.b. Conformance with Plans - All work undertaken in the construction or modification of a 
dam shall be in strict conformance with the plans and specifications contained in the plan package 
submitted under subsection 5.1 and approved by the Secretary. Any changes to the approved plans and 
specifications shall be submitted to and approved by the Secretary prior to implementation. 


 8.1.c. On-Site Documents - A copy of the certificate of approval, the approved plans and 
specifications, all outstanding notices to comply or orders to comply that have been issued by the 
Secretary, and the monitoring and emergency action plans prepared in accordance with the provisions of 
subsection 15.6 and subsection 15.7 shall be available at the project area office for reference by 
construction personnel and the Secretary. 
8.1.d. Adverse Weather Conditions - Construction work shall be suspended on all or part of the 
project when adverse weather conditions (e.g., prolonged precipitation, extreme temperatures) jeopardize 
the performance of work in conformance with the approved plan package. 
8.1.e. Clearing and Grubbing - Clearing and grubbing shall be performed in the foundation, 
borrow, and soil stockpile areas. Clearing is required in the maximum permanent pool area unless 
otherwise approved by the Secretary. 
8.1.f. Foundation Preparation - Foundation preparation shall include installation of keyways and 
subdrains, removal of soft areas, and similar project area preparation operations dictated by the approved 
plans and specifications and by project area conditions. The foundation shall be inspected by the 
Secretary prior to placement of embankment materials. If foundation problems are discovered during this 
inspection, additional foundation preparation may be required by the Secretary. 
8.1.g. Placement of Materials. 
8.1.g.1. All fill shall be placed in accordance with the approved plans and specifications. 
8.1.g.2. Compaction testing shall be completed as specified in the approved specifications; 
the results of such testing shall be reported in accordance with the provisions of subdivision 8.4.a. 
8.1.g.3. Filter drains shall be constructed in accordance with the approved plans and 
specifications. Filter material shall be tested for compliance with design gradations; the results of such 
testing shall be reported in accordance with the provisions of subdivision 8.4.a. Filter materials shall be 
placed to prevent segregation and contamination and shall be concurrently covered to prevent 
contamination or damage. 
8.1.h. Grading. 
8.1.h.1. All fill shall be graded in accordance with the approved plans and specifications. 
8.1.h.2. The working surface and outslopes of the fill shall be concurrently graded through 
all phases of embankment construction. 
8.1.h.3. The top of the fill shall be crowned to provide positive drainage during construction. 
8.1.h.4. Final grading shall be conducted in order to facilitate revegetation. 
8.1.i. Spillways and Appurtenances. 
8.1.i.1. Spillways and appurtenances shall be constructed in accordance with the approved 
plans and specifications. 
8.1.i.2. When downslope placement of fill material is used in the construction of spillways, 
the fill material shall be compacted in horizontal layers to achieve the design configuration. 



 8.1.i.3. All riprap material shall be of hard, durable rock which is not acid-forming or toxic. 
Riprap shall be placed to prevent size segregation. 
8.1.i.4. When bedding is used under riprap, the rock material shall be placed in a manner so 
as not to damage or contaminate the bedding. 
8.1.i.5. When protective channel linings are specified, the linings shall be installed as soon as 
the channel is constructed to grade in accordance with the approved plans and specifications. 
8.1.i.6. When concrete is used in construction of spillways and appurtenances, the concrete 
shall be placed, cured, and finished in accordance with the provisions of part 7.4.a.1.B.2. through part 
7.4.a.1.B.4. Standard engineering tests shall be performed in accordance with the provisions of paragraph 
8.2.b.1. and reported in accordance with the provisions of subdivision 8.4.a. 
8.1.i.7. All pipes, risers, and appurtenances shall be installed in accordance with the 
approved plans and specifications. Compaction testing shall be completed to ascertain that fill material 
around pipes, risers, and appurtenances has been placed in accordance with the approved plans and 
specifications; the results of such testing shall be reported in accordance with the provisions of 
subdivision 8.4.a. Sufficient fill shall be placed over pipes so as to prevent damage by heavy equipment. 
8.1.j. Minimum Stream Flow - An adequate flow of water may be required by the Secretary in 
the stream below the dam during construction and reservoir filling to maintain water quality in the stream 
and to support fish and other aquatic life. The Secretary may require stream flow augmentation in 
accordance with the provisions of subdivision 15.3.b. 
8.1.k. Blasting - Blasting may only be utilized in accordance with and as specified in the 
approved plans and specifications. Blasting based upon unforeseen project area conditions not covered in 
the approved plan package shall not be performed prior to approval by the engineer with the concurrence 
of the Secretary. 
8.1.l. Storm Water Discharge - The sequence of construction work shall be planned to maximize 
the safe discharge of storm water while minimizing the amount of water retained in the impoundment. 
Either the principal spillway structures, including inlets and outlets, shall be operable prior to placement 
of construction material above the original valley elevation or diversion channels approved by the 
Secretary shall be in place. 
8.1.m. Erosion and Sediment Control. 
8.1.m.1. General Requirements - Erosion and sedimentation must be controlled to prevent a 
degradation of land and streams below the dam or project area, including visible deposits of sediment, and 
to prevent any violation of State water quality standards. Erosion and sediment control measures shall, at 
the minimum, conform with current erosion and sediment control reference manuals and apply to the 
entire project area. 
8.1.m.2. Specific Requirements - Cleared areas, borrow areas, disturbed areas along stream 
channels and waterways, and fills, whether complete or in progress, must be equipped with erosion and 
sediment control devices (i.e., diversions, waterways, sediment basins, straw bale dikes, or silt fences). 
8.1.m.2.A. Location of Sediment Control Devices - Erosion and sediment control 
devices must be located as close to the disturbed area as practical. Effort must be made to contain the 
sediment load within the disturbed area in order to prevent the entry of sediments into the natural 
drainway or stream. 



 8.1.m.2.B. Removal of Sediment Control Devices - Erosion and sediment control 
devices must remain in place until permanent vegetation is established or the area is otherwise stabilized. 
Prior to the removal of the devices, trapped sediment must be removed and placed in a location approved 
by the Secretary. Straw bale dikes and silt fences must be removed when no longer needed; sediment 
basins or ponds must be abandoned in a manner approved by the Secretary. Barren and denuded areas 
remaining after the removal of a control device must be revegetated. 
8.1.m.2.B.1. The Secretary may modify or waive the requirements of subparagraph 
8.1.m.2.B. for erosion and sediment control devices that are located within the impoundment area of the 
dam. 
8.1.m.2.C. Cleaning Frequency - Sediment control diversions, silt fences, straw bale 
dikes, and waterways must be inspected once each week, and after each rainfall, and accumulated 
sediment must be removed in order to maintain design capacity. Sediment ponds, basins, and traps must 
be restored to design capacity when sediment accumulation approaches sixty percent (60%) of design 
capacity, or more frequently if so specified by the Secretary in writing. 
8.1.m.2.D. Temporary Seeding and Mulching - Temporary seeding and mulching shall 
be utilized on bare areas where no construction activity is anticipated for a period of three (3) or more 
weeks. Areas that shall receive seeding and mulching include the reservoir area, borrow areas, soil stock 
piles, and steep fill slopes where no further work is planned prior to final grading. Where seeding is not 
feasible due to severe slope or time of year, the Secretary may approve mulching alone at a rate of three 
(3) tons of straw or hay per acre, or equivalent. 
8.1.m.2.E. Water Routing - Water that is pumped or drained from work areas (e.g., 
excavations, foundations, and below grade fills) must be routed to properly-sized sediment control 
devices so that any sediment contained in the water is removed prior to discharge of the water from the 
project area. Pump discharges may not cause erosion or suspension of additional solids. No untreated 
water may be pumped or drained to the natural stream or stream diversion channel. 
8.1.m.2.F. In-Stream Treatment - Barriers, such as silt fences or straw bales, located in 
the natural drainway or stream will not be considered acceptable as the primary means of sediment 
control for the project area. Properly designed sediment basins or ponds may be used for sediment control 
in the natural drainway or stream if the location of the basin or pond does not cause significant additional 
disturbance in undisturbed downstream areas. Use of a starter dike or the dam under construction may be 
considered appropriate for sediment control of the reservoir area provided the necessary detention time is 
achieved. 
8.1.m.2.G. Sediment Control During Construction - Erosion and sediment control 
measures must be in place prior to the beginning of dam construction activities. Clearing and grubbing or 
sediment control measures not specified for the beginning of construction must be implemented in a 
timely manner as needed. 
8.1.m.2.H. Permanent Erosion Measures - Permanent measures (e.g., vegetation, 
grading, diversions, waterways, and outlet structures) shall be included on all completed or existing dams, 
where applicable, to prevent the erosion of embankments, abutments, stream channels, and waterways 
during the life and operation of the dam. 
8.1.n. Disposal of Construction Wastes. 
8.1.n.1. General Disposal Requirements - All waste materials that result from construction 
activities shall be disposed of in a manner approved by the Secretary. 



 8.1.n.2. Specific Disposal Requirements. 
8.1.n.2.A. Surplus Waste Materials - Surplus soil and rock materials shall be deposited in 
waste disposal areas delineated in the approved plans. 
8.1.n.2.B. Organic Waste Materials - Trees, brush, root masses, and construction-related 
wood materials may be either buried in waste disposal areas delineated in the approved plan package or 
burned in accordance with local and State burning ordinances 
8.1.n.2.C. Concrete Waste Materials - New or old waste concrete materials may be 
disposed of in areas approved by the Secretary for surplus soil and rock materials. New, unset waste 
concrete shall not be deposited in a location where it will enter watercourses, either directly or indirectly 
as a result of runoff. After it has set, the new waste concrete may be moved to waste disposal areas 
delineated in the approved plans. 
8.1.n.2.D. Other Waste Materials - Chemicals, petroleum products, plastics, garbage, 
sewage, and any associated containers shall be disposed of in a manner approved by the Secretary. 
8.1.n.2.E. Off-Site Waste Materials - No waste materials or soil waste may be 
transported to the project area for disposal. 
8.1.o. Dust Abatement - The contractor shall fully suppress dust on haul and access roads and as 
necessary within the project area. Water, or an alternative dust palliative approved by the Secretary, shall 
be used for dust suppression; the use of oil or waste oil is prohibited. 
8.1.p. Access Roads - A permanent access road shall be provided to each dam site. The road 
must be adequate for emergency vehicular traffic. Single lane unpaved roads are acceptable provided the 
roads are properly maintained. The access road must be designed and located as to not be unduly affected 
by stream or spillway flows during heavy rainfall events. The road may be secured with a locked gate 
provided that the key is available to dam monitors and State and local emergency personnel for 
emergency response. 
8.2. Quality Control. 
8.2.a. Construction Monitoring. 
8.2.a.1. All construction activities shall be monitored by an engineer or his or her designated 
representative. Construction monitoring shall not be the responsibility of the construction contractor 
unless specifically approved by the Secretary in writing. 
8.2.a.2. Responsibility for assessing the quality of the workmanship and ascertaining 
compliance with the approved plans and specifications shall be vested primarily in the owner's engineer. 
The Dam Safety Section shall also monitor construction activities and workmanship in order to ascertain 
compliance with the approved plans and specifications, in accordance with the provisions of W. Va. Code 
§22-14-9. 
8.2.a.3. Critical phases of construction shall be monitored by the engineer or his or her 
designated representative constantly during active construction; noncritical phases of construction shall be 
checked at least once per day during active construction. 
8.2.a.4. Additional supervision or testing will be required by the Secretary if evidence of 
inadequate construction supervision exists. 



 8.2.b. Materials Testing - Construction materials shall be periodically tested on-site to ascertain 
compliance with design specifications in the approved plan package. Final quality control testing shall not 
be the responsibility of the construction contractor. 
8.2.b.1. Concrete Testing - Routine tests of slump, air entrainment, and temperature shall be 
performed on each truck delivery. Cylinder samples for compression testing shall be taken each day or 
every twenty-five (25) cubic yards of delivered concrete, whichever is more frequent, unless otherwise 
required by the Secretary. 
8.2.b.2. Earth Fill Testing - Earth fill materials shall be tested for compaction and moisture 
content every alternate layer or each one thousand (1,000) cubic yards, whichever is more frequent. 
Random fill shall be evaluated for compliance with approved gradation specifications. Critical fill areas 
shall have gradation tests performed to evaluate compliance with the approved specifications. 
8.2.b.3. Filter Materials Testing - Gradation tests shall be performed on filter materials. 
Close visual observation for signs of material segregation shall be performed. Additional tests may be 
required by the Secretary to determine durability and soundness of the filter material. 
8.3. Construction Inspections. 
8.3.a. Inspections During Construction. 
8.3.a.1. A visual inspection for construction progress, unstable conditions, quality control, 
and conformance with the approved plans and specifications shall be held at least once each working day 
(or more frequently as determined by the engineer). The inspection shall be performed by an engineer or a 
person under the direct supervision of the engineer. The frequency of inspection may be changed by the 
Secretary depending upon specific project area conditions. 
8.3.a.2. Additional inspections shall be held after each heavy rainfall event in order to detect 
problems and propose remedial measures. These inspections shall be performed by an engineer or a 
person under the direct supervision of the engineer. 
8.3.a.3. Instrumentation shall be monitored every seven (7) days unless otherwise specified 
by the engineer. Monitoring shall be performed by an engineer or a person under the direct supervision of 
the engineer. The frequency of monitoring may be changed by the Secretary depending upon specific 
project area conditions. 
8.3.b. Final Construction Inspection - Upon the completion of the construction or modification of 
a dam, a joint inspection shall be conducted by the Secretary and the engineer. The purpose of the 
inspection is to verify that all work has been accomplished in accordance with the approved plan package. 
8.3.c. Acceptance of Construction - When the dam owner is advised by the Secretary that the 
construction appears satisfactory, the owner shall submit to the Secretary a certification by an engineer 
that all construction was in substantial conformance with the approved plans and specifications, including 
any modifications that have been approved by the Secretary. This certification shall be submitted within 
ninety (90) days of the Secretary's advisement. As-built drawings, including all variations from the 
original specifications and changes in location of borrow or waste disposal areas, shall be submitted with 
the engineer's certification. If substantial modifications of the original specifications have been made 
during the construction period, the Secretary may require that a corrected application form be submitted. 
Upon the receipt of the engineer's certification with the as-built drawings (and a corrected application 
form, if necessary), a letter of acceptance will be issued by the Secretary. 



 8.3.d. Completed Dams - After acceptance of construction by the Secretary, the dam and its 
appurtenances shall be inspected annually for a period of three (3) years by an engineer experienced in 
such inspections. The Secretary reserves the right to attend any inspection and require prior notification of 
the inspection by the owner of the dam. A report of each inspection shall be prepared and filed with the 
Secretary in accordance with the provisions of subdivision 15.5.a. 
8.4. Construction Reporting Requirements. 
8.4.a. Monthly Progress Reports During Construction - A written report containing the results of 
each inspection of construction progress shall be submitted to the Secretary every month while the dam 
and its appurtenances are under construction. The report shall include, but not be limited to, specific 
instrumentation readings, test results, freeboard, crest elevation, and specific construction or quality 
control problems with documentation of implemented solutions. Upon the completion of the construction 
or modification of the dam, notice shall be given by the dam owner to the Secretary so that a final 
construction inspection can be made in accordance with the provisions of subdivision 8.3.b. 
8.4.b. Post-Construction Inspection Reports - A report shall be submitted to the Secretary by the 
dam owner reporting the findings of the final construction inspection required under subdivision 8.3.b. 
Certification by an engineer shall be submitted to the Secretary with the inspection report to verify that 
the dam and its appurtenances were constructed in substantial conformance with the approved plans and 
specifications and that the dam and its appurtenances are functioning as designed. 
§47-34-9. Breaching of a Dam. 
9.1. Application to Breach a Dam - The owner of a dam must obtain a certificate of approval from 
the Secretary prior to the breaching of the dam. A complete application in accordance with the provisions 
of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of 
breaching activities. 
9.1.a. Plan Package Requirements - The plan package submitted in order to breach a dam shall be 
in accordance with the applicable requirements of section 6 and must also include the specific 
requirements delineated in subsection 9.2 through subsection 9.10. Narratives, plans, or specifications 
required under section 6 which are clearly not applicable to the proposed breaching activities may be 
omitted from the submittal; however, the Secretary reserves the right to specify those items which must 
be included in the breaching plan package. 
9.2. Breach Dimensions - The breach opening in the dam shall be designed so that any water 
resulting from design storm inflows that is temporarily impounded behind the residual structure shall be 
less than the height and storage requirements of a "dam" set forth in subsection 2.12. The breach shall be 
to original stream bottom level, except that a small impoundment of less than one (1) acre-foot storage 
may be retained for sediment control purposes. 
9.3. Breach Channel - The embankment shall be breached with a designed channel having the 
capacity to carry the peak runoff from the design storm corresponding to the dam's hazard classification. 
The channel created by the breach shall have an erosion-preventive lining adequate to withstand the depth 
and velocity of the peak flows from a P100 rainfall event. The channel side slopes shall achieve a 
minimum stability factor of safety of 1.5. 
9.4. Safety - Reservoirs shall be completely drained before breaching operations begin. Breaching 
work shall be scheduled during dry weather using National Weather Service advice and proceed quickly 
to reduce the potential for impounding water. 



 9.5. Blasting - If blasting is to be used in the breaching of a dam, a blasting plan shall be submitted to 
the Secretary for approval. The plan shall include the distance to existing structures and the measures that 
will be taken to minimize air blast and flying materials. A pre-blast survey of existing nearby structures 
and water wells which may be affected by blasting may be required by the Secretary. 
9.6. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply 
with the provisions of paragraph 8.1.m. shall be implemented during the breaching operation. The 
following measures shall also be implemented: 
9.6.a. Reservoir areas, and the sediment deposits therein, shall be protected from erosion after the 
impounding capability has been eliminated by the breaching of the dam; 
9.6.b. Silt deposits and barren areas in the reservoir shall be stabilized and revegetated; 
9.6.c. Disturbed areas, including the faces on any remaining embankment, must be protected by 
vegetation or other means approved by the Secretary; 
9.6.d. A channel in the reservoir sediment may be required by the Secretary in order to 
reestablish a stream channel; and 
9.6.e. Permanent sediment basins, subject to ongoing maintenance, may be required by the 
Secretary if the dam owner cannot demonstrate the effectiveness of other structural and vegetative 
measures in stabilizing the reservoir area and dam site. 
9.7. Placement of Earthen Material - Material removed from the dam shall be placed in waste 
disposal areas delineated in the approved plan package. The material shall be graded and compacted as 
necessary and stabilized from erosion by vegetation or other means approved by the Secretary. 
9.8. Placement of Non-Earthen Material - Concrete rubble and other rock material shall be placed in 
waste disposal areas delineated in the approved plan package. The material shall be placed in a manner to 
reduce hazardous conditions; protruding metal, wire, or bars are prohibited. The requirements of 
subdivision 8.1.n. shall apply to the disposal of any other waste materials generated by the breaching 
operation. 
9.9. Galleries and Drains - The effect of flows through the breach and backwater pressure on 
galleries and drains shall be evaluated. The galleries and drains shall be vented or sealed as necessary to 
prevent failure of the remaining structure. 
9.10. Safety of Remaining Structure - The remaining structure shall have sufficient strength to 
support the maximum hydraulic loading without failure. The engineer shall attempt to reduce or eliminate 
hazards associated with an "attractive nuisance." 
9.11. Construction Practices - The requirements of section 8 shall apply when breaching a dam 
unless clearly not applicable to the breaching operation; however, the Secretary reserves the right to 
specify which requirements are applicable. 
§47-34-10. Removal of a Dam. 
10.1. Application to Remove a Dam - The owner of a dam must obtain a certificate of approval from 
the Secretary prior to the removal of the dam. A complete application in accordance with the provisions 
of subsection 5.1. must be submitted to and approved by the Secretary prior to the commencement of 
removal activities. 



 10.1.a. Plan Package Requirements - The plan package submitted in order to remove a dam shall 
be in accordance with the applicable requirements of section 6 and must also include the specific 
requirements delineated in subsection 10.2 through subsection 10.8. Narratives, plans, or specifications 
required under section 6 which are clearly not applicable to the proposed removal activities may be 
omitted from the submittal; however, the Secretary reserves the right to specify those items which must 
be included in the removal plan package. 
10.2. Removal Requirements - Removal of a dam shall consist of the complete removal of the 
structure to the original ground except in special cases where it may be necessary or advantageous to 
leave small sections of the structure. Unless otherwise approved by the Secretary, the removal of a dam 
shall consist of complete removal of the structure to approximate original contour. A total of no more than 
ten percent (10%) of the length of the structure may remain at the abutment areas. 
10.3. Safety - Reservoirs shall be completely drained before removal operations begin. Removal 
work shall be scheduled during dry weather using National Weather Service advice and proceed quickly 
to reduce the potential for impounding water. 
10.4. Blasting - If blasting is to be used in the removal of a dam, a blasting plan shall be submitted to 
the Secretary for approval. The plan shall include distance to existing structures and the measures that 
will be taken to minimize air blast and flying materials. A pre-blast survey of existing nearby structures 
and water wells which may be affected by blasting may be necessary. 
10.5. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply 
with the provisions of subdivision 8.1.m. shall be implemented during the removal operation. The 
following measures shall also be implemented: 
10.5.a. Reservoir areas, and the sediment deposits therein, shall be protected from erosion after 
the impounding capability has been eliminated by the removal of the dam; 
10.5.b. Silt deposits and barren areas in the reservoir shall be stabilized and revegetated; 
10.5.c. Disturbed areas, including the faces on any remaining embankment, must be protected by 
vegetation or other means approved by the Secretary; 
10.5.d. A channel in the reservoir sediment may be required by the Secretary in order to 
reestablish a stream channel; and 
10.5.e. Permanent sediment basins, subject to ongoing maintenance, may be required by the 
Secretary if the dam owner cannot demonstrate the effectiveness of other structural and vegetative 
measures in stabilizing the reservoir area and dam site. 
10.6. Placement of Earthen Material - Material removed from the dam shall be placed in waste 
disposal areas delineated in the approved plan package. The material shall be graded and compacted as 
necessary and stabilized from erosion by vegetation or other means approved by the Secretary. 
10.7. Placement of Non-Earthen Material - Concrete rubble and other rock material shall be placed in 
waste disposal areas delineated in the approved plan package. The material shall be placed in a manner to 
reduce hazardous conditions; protruding metal, wire, or bars are prohibited. The requirements of 
subdivision 8.1.n. shall apply to the disposal of any other waste materials generated by the removal 
operation. 



 10.8. Safety of Remaining Structure - If any portion of the structure remains, that portion shall have 
sufficient strength to support the maximum hydraulic loading without failure. The engineer shall attempt 
to reduce or eliminate hazards associated with an "attractive nuisance." 
10.9. Construction Practices - The requirements of section 8 shall apply when removing a dam unless 
clearly not applicable to the removal operation; however, the Secretary reserves the right to specify which 
requirements are applicable. 
§47-34-11. Abandonment of a Dam. 
11.1. Application to Abandon a Dam - The owner of a dam must obtain a certificate of approval from 
the Secretary prior to the abandonment of the dam. A complete application in accordance with the 
provisions of subsection 5.1. must be submitted to and approved by the Secretary prior to the 
commencement of abandonment activities. 
11.2. Reservoir Elimination - The reservoir area shall be completely filled to the crest elevation of 
the dam with approved material to eliminate the impoundment of water. The maximum impounding 
capacity upon completion of final grading shall not exceed one (1) acre-foot of impounding capacity. The 
final top elevation of the reservoir fill shall be higher than, and sloped into, the diversion system required 
under subsection 11.4. 
11.3. Embankment Stability - The remaining embankment shall be shown to achieve a minimum 
factor of safety in accordance with the provisions of subparagraph 7.4.b.1.D. 
11.4. Diversion System - A diversion system designed for a P100 rainfall event shall be provided to 
capture the stream at the upstream end of the reservoir and convey stream water and embankment runoff 
water around the site. The diversion system shall outlet safely beyond the downstream toe of the 
embankment in a natural drainway capable of carrying the design storm without excessive erosion. The 
Secretary may require the installation of an energy dissipator in accordance with the provisions of subpart 
7.4.b.4.B.2.(f). 
11.5. Sealing Conduits - All conduits through the embankment, with the exception of underdrain 
conduits, shall be sealed with concrete at the upstream end prior to elimination of the reservoir. The 
Secretary may require pressure testing of conduits to determine seal adequacy. 
11.6. Erosion and Sediment Control - Erosion and sediment control measures sufficient to comply 
with the provisions of subdivision 8.1.m. shall be implemented during the abandonment operation. 
11.7. Soil and Vegetative Cover - A sufficient layer of topsoil shall be provided to permit long-term 
growth of vegetation. A seeding and mulching mixture shall be proposed in the abandonment application 
to accomplish revegetation of the project area. 
11.8. Retention of Jurisdiction - The Secretary shall retain jurisdiction over the site for a minimum 
period of five (5) years after abandonment, during which time the dam and its appurtenances shall be 
inspected annually by an engineer experienced in such inspections. The inspections shall include 
measurement readings of instrumentation to determine the level and volume of saturation within the 
reservoir fill material. The Secretary may also require more frequent reading and reporting of instrument 
readings to determine seasonal fluctuations of saturation. A report shall be filed with the Secretary 
detailing the findings of each inspection and describing intended maintenance work. Should a major 
storm occur, a similar report shall be filed to detail the resultant condition of the structure. 


 11.9. Final Approval of Abandonment - At the completion of the five-year period, a final joint 
inspection by the engineer and the Secretary shall be conducted to determine the effectiveness of the 


abandonment design and the potential need for continued maintenance. Should the Secretary determine as 
a result of this inspection that an additional inspection time period or maintenance work is required, a 
letter detailing these requirements shall be sent to the owner. The Secretary will review instrument 
records and annual inspection reports to determine if the saturation level of material within the reservoir 
has decreased in volume to less than the legal definition of a "dam." Should the Secretary determine as a 
result of the inspection and review of instrumentation records that the volume of saturated material is less 
than the legal definition of a "dam" and the abandonment design has been effective, a letter of acceptance 
shall be issued stating that the dam has been properly abandoned. 
§47-34-12. Reduction or Enlargement of a Dam. 
12.1. Reduction of Dam Height To Less Than Jurisdiction. 
12.1.a. A person planning to reduce the height of a dam so that the remaining structure will no 
longer meet the definition of "dam" set forth in subsection 2.12. must obtain a certificate of approval from 
the Secretary. 
12.1.b. A complete application in accordance with the provisions of subsection 5.1. must be 
submitted to and approved by the Secretary prior to the commencement of reduction activities. The 
application must also contain information showing that the remaining impounding structure will not cause 
loss of life or appreciable property damage downstream should that structure fail. 
12.1.b.1. Plan Package Requirements - The plan package submitted in order to reduce the 
height of a dam shall be in accordance with the applicable requirements of section 6 and must also include 
the specific requirements delineated in subdivision 12.1.c. and subdivision 12.1.d. Narratives, plans, or 
specifications required under section 6 which are clearly not applicable to the proposed reduction may be 
omitted from the submittal; however, the Secretary reserves the right to specify those items which must 
be included in the reduction plan package. 
12.1.c. The remaining structure shall have a properly designed spillway system capable of 
passing a Class 3 design storm without overtopping. 
12.1.d. The remaining structure shall achieve a factor of safety in accordance with the provisions 
of subparagraph 7.4.b.1.C. or subparagraph 7.4.b.2.B. as appropriate to the type of structure. 
12.1.e. The requirements of section 8 apply when reducing the height of a dam unless clearly not 
applicable to the reduction operation; however, the Secretary reserves the right to specify which 
requirements are applicable. 
12.1.f. The Secretary shall retain jurisdiction over the remaining structure until the reduction 
operation is completed and a letter of acceptance has been issued by the Secretary. 
12.2. Enlargement of a Structure to Jurisdiction. 
12.2.a. A person planning to enlarge an existing structure so that the completed structure will 
meet the definition of "dam" set forth in subsection 2.12. must obtain a certificate of approval from the 
Secretary. 
12.2.b. A complete application in accordance with the provisions of subsection 5.1. must be 
submitted to and approved by the Secretary prior to the commencement of enlargement activities. 


 12.2.b.1. Plan Package Requirements - The plan package submitted in order to enlarge a 
structure to jurisdiction shall be in accordance with the applicable requirements of section 6. Narratives, 


plans, or specifications required under section 6 which are clearly not applicable to the proposed 
enlargement may be omitted from the submittal; however, the Secretary reserves the right to specify those 
items which must be included in the enlargement plan package. 
12.2.c. The Secretary will require adequate drilling and testing of the existing structure and 
foundation to ascertain in place conditions. 
12.2.d. The requirements of section 8 shall apply when enlarging a structure to jurisdiction unless 
clearly not applicable to the enlargement operation; however, the Secretary reserves the right to specify 
which requirements are applicable. 
§47-34-13. Dams Completed Before July 1, 1973. 
13.1. Complete Application Required - An application for a certificate of approval shall be submitted 
to the Secretary for all dams completed before July 1, 1973 which meet the definition of "dam" set forth 
in subsection 2.12. If the engineer can demonstrate that the dam meets the design requirements specified 
in this rule, an application for approval of an existing dam shall be submitted. If the dam requires 
modification to meet the requirements, an application for modification of an existing dam shall be 
submitted. If the above options are not exercised by the dam owner, an application to breach, remove, or 
properly abandon the dam pursuant to this rule shall be submitted. 
13.2. Performance Requirements - All dams completed before July 1, 1973 shall meet the applicable 
design requirements of section 7. Those dams which do not meet the applicable design requirement of 
section 7 shall be modified, breached, removed, or properly abandoned pursuant to the provisions of this 
rule. In developing the required plans, specifications, and documentation necessary to bring the structure 
into conformity with section 7, the design engineer may consider in his or her submitted analyses, 
peculiarities and local conditions for each impounding structure with recognition of the many factors 
involved, some of which may not be precisely known. Existing construction documentation and the 
historical performance of the structure including documented storms and spillway flows may be 
considered by the engineer as part of the evaluation of the structure. Upon approval by the Secretary of 
the plans, specifications, and documentation submitted by the engineer, the Secretary may issue a 
certificate of approval. 
13.3. Plan Package Requirements - The plan package submitted for approval or modification of an 
existing dam shall be in accordance with applicable requirements of section 6, except that testing and 
analysis results may be substituted for design specifications. If as-built drawings are not available, the 
engineer may substitute drawings prepared by him or her which represent the existing conditions at the 
dam as determined through the testing and analysis program. 
§47-34-14. Sale or Transfer of a Dam. 
14.1. Notification and Documentation - Within thirty (30) days after the sale or transfer of a dam, the 
Secretary must be notified of that transaction by the person who was issued the certificate of approval for 
the dam. 
14.1.a. The seller of a dam must provide the following documentation to the Secretary: 
14.1.a.1. The name and address of new owner; 
14.1.a.2. A copy of the signed agreement between the previous and new owner 
acknowledging certificate of approval responsibility and including any warranties, insurance coverage, or 
liability agreements between the parties; 



 14.1.a.3. The effective date of the ownership or responsibility transfer; and 
14.1.a.4. Documentation that a copy of the certificate of approval or the most recent Dam 
Control Act notice to comply or order -- if a valid certificate of approval does not exist -- has been entered 
in the deed or land records of the county in which the dam is located. 
14.1.b. The Secretary may reissue a corrected certificate of approval reflecting the sale or 
transfer of a dam upon the receipt of appropriate documentation and fees. 
§47-34-15. Dam Operations and Safety. 
15.1. Safe Operations - The owner of a dam shall ensure that his or her dam is operated in a safe and 
responsible manner so as not to endanger life or property. 
15.2. Operations Plan - Owners of dams which require the operation of gates, penstocks, or other 
means of regulating the reservoir level or downstream flow shall develop and submit an operations plan to 
the Secretary for approval. 
15.2.a. Plan Contents - The operations plan shall include, but not be limited to, normal and 
seasonal operational procedures for gates, penstocks, and other reservoir or downstream flow regulating 
devices. The name, address, and telephone number of each individual authorized to operate the dam shall 
also be included in the plan. 
15.2.b. Plan Implementation - The operations plan shall be implemented immediately upon 
approval by the Secretary and shall be updated periodically as necessary to reflect any changes in 
personnel or operation procedures. 
15.3. Releasing Water - The owner of a dam may release water or lower the reservoir elevation 
through the use of gates without prior approval of the Secretary provided that the release of water will not 
adversely affect the dam structure, property, or water quality or pose a hazard to human life. 
15.3.a. Emergency Releases of Water - Under emergency conditions, the owner of a dam may 
release water at a rate which may violate the criteria established under subsection 15.3. provided that such 
emergency release will not pose an unjustifiable hazard to human life. Notification must be given of a 
pending emergency release of water in accordance with the provisions of subdivision 15.8.a. In 
accordance with the provisions of W. Va. Code §22-14-12, this regulatory provision shall not relieve the 
owner of the dam of any liabilities resulting from an emergency release of water. 
15.3.b. Low Flow Augmentation - The Secretary may require the owner of a dam to maintain a 
specified stream flow below the dam or to augment the stream flow for appropriate in-stream uses. 
15.4. Dam Safety Inspections - Periodic inspections of dams shall be performed to monitor and 
assess the condition of the dam. These scheduled safety inspections of completed dams shall be in the 
charge of an engineer. 
15.4.a. Inspections by the Dam Owner - The owner of a dam or his or her agent shall perform 
safety inspections monthly or more frequently. Such inspections must survey the dam and its 
appurtenances to check for problems or changes since the last inspection. The owner or his or her agent 
shall inspect the dam more frequently than once per month during adverse weather conditions. The owner 
shall report any observed problems to the Secretary. 
15.4.b. Inspections by the Secretary - The Secretary may inspect any dam at any time in 
accordance with the provisions of W. Va. Code §22-14-4(i). 


 15.4.c. Inspections by the Owner's Engineer - An engineering inspection shall be conducted 
annually for three (3) years after the completion of any dam, in accordance with the provisions of 
paragraph 8.3.d. Upon the conclusion of this three-year period, the dam shall be inspected by the owner's 
engineer at the frequency specified in subparagraph 15.4.c.1. through subparagraph 15.4.c.4. as 
appropriate to the hazard classification of the dam. The Secretary may require additional inspections 
based upon site conditions. The Secretary reserves the right to attend any inspection and require prior 
notification of the inspection from the owner of the dam. 
15.4.c.1. Class 4 dams shall be inspected at least once every seven (7) years. 
15.4.c.2. Class 3 dams shall be inspected at least once every five (5) years. 
15.4.c.3. Class 2 dams shall be inspected at least once every three (3) years. 
15.4.c.4. Class 1 dams shall be inspected at least once every two (2) years. 
15.4.d. Inspection of Dams with Serious Problems - The Secretary may establish the frequency 
of inspection of dams with serious problems for both inspections by the dam owner under subdivision 
15.4.a. and inspections by the owner's engineer under subdivision 15.4.c. The inspection of a dam with 
serious problems shall monitor slopes, seepage, bulges, scarps, vertical displacement, excessive erosion, 
piping, sudden changes in monitoring devices, and other visible factors which could indicate potential 
failure of the embankment, spillways, or other appurtenances. The Secretary reserves the right to attend 
any inspection and require prior notification of the inspection by the owner of the dam. 
15.5. Dam Safety Inspection Reports. 
15.5.a. Inspection Reports for Completed Dams - A written report containing the observations of 
each inspection that is required under subdivision 8.3.d. and subdivision 15.4.c. shall be submitted to the 
Secretary by the dam owner within thirty (30) days of the inspection. The report shall also describe 
maintenance work to be performed as a result of the inspection findings. Should a storm equal to or 
greater than a 50-year, 6-hour rainfall event occur, a similar report shall be filed to detail the resultant 
condition of the structure. Certification by an engineer shall be submitted to the Secretary with each 
inspection report to verify that the dam and its appurtenances are functioning as designed. 
15.5.b. Inspection Reports for Dams with Serious Problems - A written report containing the 
observations of each inspection required under subdivision 15.4.d. shall be submitted to the Secretary by 
the dam owner within thirty (30) days of the inspection. 
15.6. Monitoring Plans - Owners of Class 1 dams shall formulate and submit a monitoring plan to the 
Secretary for approval. Owners of Class 2 and 3 dams may be required by the Secretary to formulate and 
submit a monitoring plan for approval. 
15.6.a. The monitoring plan developed by the dam owner must follow the format of the example 
plan provided by the Secretary and shall include, but not be limited to, the following: 
15.6.a.1. A description of the dam, including appropriate drawings and location maps; 
15.6.a.2. A listing of problems and deficiencies and any implemented repairs; 
15.6.a.3. The inspection frequency under varying weather conditions; 
15.6.a.4. A description of areas or items to be inspected; 


 15.6.a.5. Corrective actions to be taken; 
15.6.a.6. The responsible persons' names, addresses, and telephone numbers; 
15.6.a.7. The method of notification of the Secretary and county emergency services 
authorities; and 
15.6.a.8. Other items required by the Secretary based upon site-specific conditions. 
15.6.b. Monitoring plans shall be updated annually. More frequent updating of the plans may be 
required by the Secretary based upon rapidly changing personnel or site conditions. The monitoring plan 
shall be implemented immediately by the dam owner upon the approval of the plan by the Secretary. 
15.7. Emergency Action Plans - Owners of Class 1 dams shall formulate and submit an emergency 
action plan to the Secretary for approval. Owners of Class 2 and 3 dams may be required by the Secretary 
to formulate and submit an emergency action plan for approval. 
15.7.a. The emergency action plan developed by the dam owner must follow the format of the 
example plan provided by the Secretary. 
15.7.b. The dam owner shall coordinate with county emergency service authorities in the 
development of the emergency action plan. The dam owner must provide copies of the inundation maps 
required under paragraph 3.5.c.2. to those authorities. 
15.7.c. The dam owner shall provide county emergency services authorities with a copy of the 
monitoring plan, and all updates of that plan, approved by the Secretary pursuant to subsection 15.6. 
15.8. Emergency Procedures. 
15.8.a. Emergency Condition - If the owner of a dam determines that an emergency exists, he or 
she shall immediately notify any person who may be endangered if the dam should fail and then notify the 
appropriate county emergency services authorities and the Secretary. After providing notification of the 
emergency condition, the owner shall immediately take any remedial action, such as an emergency 
release of water, that is necessary to protect life and property. The Secretary may waive the requirement 
for a certificate of approval, as required under section 4, where it is necessary to accomplish repairs under 
emergency conditions. 
15.8.b. Dangerous Condition - Should a dangerous condition develop, the Secretary shall be 
informed immediately. The owner of the dam shall immediately take any remedial action necessary to 
protect life and property. Emergency procedures developed in accordance with the provisions of 
subsection 15.6. and subsection 15.7. shall be implemented to protect life and property downstream. The 
site shall be inspected and monitored at least once every eight (8) hours until the emergency situation is 
alleviated. Continuous monitoring may be required by the Secretary when there is an imminent danger to 
the health, safety, or welfare of the public. 
15.8.c. Evaluation of Dangerous Conditions - If a dangerous condition develops, an engineering 
evaluation shall be initiated as soon as possible to formulate a plan for permanent correction of the 
dangerous condition. The evaluation and corrective action plan shall be submitted to and approved by the 
Secretary prior to implementation. 


 15.9. Dam Owner Not Relieved of Responsibility - The Secretary's approval of a monitoring plan, or 
updates to such a plan, pursuant to subsection 15.6. or his or her approval of an emergency action plan 


pursuant to subsection 15.7. shall not relieve the dam owner of his or her legal duties, obligations, or 
liabilities under W. Va. Code §§22-14-10 and 22-14-12. 
§47-34-16. Dam Maintenance. 
16.1. General Maintenance Requirements. 
16.1.a. Required Maintenance - Each dam shall be maintained in accordance with the plans and 
specifications approved under the applicable certificate of approval. The Secretary may require 
maintenance to be performed on a dam, whether or not a certificate of approval has been issued for that 
dam. 
16.1.b. Maintenance Plan - Owners of dams shall formulate and submit a written maintenance 
plan to the Secretary for approval. The maintenance plan shall include, but not be limited to, schedules for 
maintaining embankments, concrete structures, vegetative or rock covers, gates, gate mechanisms, 
penstocks, or other reservoir-regulating devices, spillways, and appurtenances. The maintenance plan 
shall be implemented immediately by the dam owner upon the approval of the plan by the Secretary. The 
maintenance plan shall be updated periodically as necessary to reflect changing site conditions. 
16.2. Specific Maintenance Requirements. 
16.2.a. All spillways and appurtenances shall be maintained to operate in accordance with the 
plans and specifications approved under the applicable certificate of approval. 
16.2.b. All failures resulting from landslides or slope failures shall be corrected immediately if 
the failures significantly affect the safety or design capacity of the dam or its appurtenances. All failures 
shall be reported to the Secretary. 
16.2.c. All pipes shall be repaired or replaced when damaged, or distorted, or if they otherwise 
fail to function properly in accordance with the plans and specifications approved under the applicable 
certificate of approval. 
16.2.d. Leakage through joints, fissures, and cracks through or under the spillway channel shall 
be immediately investigated and repaired. 
16.2.e. Any new gate which has been installed in a new dam or in the repair or modification of 
an existing dam, or any gate which has been opened within five (5) years prior to inspection by the 
Secretary, shall be opened to at least thirty-three percent (33%) of its maximum capacity at least once 
annually. Gates not meeting the above requirements may remain closed until operated for the purposes of 
the owner or to alleviate an emergency condition and shall thereafter be opened at least once annually. All 
gate mechanisms shall be lubricated annually regardless of the operational status of the gate. 
16.3. Routine Maintenance. 
16.3.a. Routine maintenance of spillways shall be performed. Such maintenance shall include the 
removal of sediment, brush, trees, obstructions, and rocks in stilling basins and the re-establishment of the 
structure to its original hydraulic design. 
16.3.b. Routine inspections shall be made of all hydraulic structures in order to maintain proper 
operation. Special inspections shall be conducted whenever a significant flow through the structures has 
occurred. 



 16.3.c. If erosion on the embankment face or abutments occurs, the area shall be regraded and be 
provided with adequate drainage control or revegetation to prevent future occurrences. 
16.3.d. All concrete structures and channel linings shall be maintained in accordance with the 
plans and specifications approved under the applicable certificate of approval. All cracks located in 
concrete channels shall be sealed immediately with a sealant approved by the Secretary. 
16.3.e. Access roads shall be maintained in order to provide access for emergency inspections, 
vehicles, and equipment. 
16.3.f. The embankment or concrete structure of a dam shall be kept clear of trees and shrubs. 
The downstream toe and abutments of the dam shall be cleared to natural ground for a lateral distance of 
at least twenty-five (25) feet. All dams with vegetative covers shall be mowed at least once annually. 
Grazing by farm animals shall be controlled to prevent animal trails or other damage to the vegetative 
cover. 
16.3.g. The embankment shall be kept clear of burrowing animals. 
16.3.h. All monitoring devices shall be routinely inspected and repaired or replaced as necessary 
so that the devices function properly. 
§47-34-17. Dam Repairs. 
17.1. General Repair Requirements - The Secretary may require repairs to be performed on a dam, 
whether or not the dam has a certificate of approval. Major repairs shall require a certificate of approval, 
issuance of which may or may not constitute final approval of the dam, as determined by the Secretary. 
17.1.a. Routine Repairs (No Certificate Required) - Repairs conducted in accordance with the 
provisions of subsection 16.3. shall not normally require an application for a certificate of approval; 
however, the Secretary may require such an application based upon site-specific conditions. 
17.1.b. Major Repairs (Certificate Required) - Any repairs to a dam other than routine repairs 
listed in subsection 16.3. shall require an application for a certificate of approval in accordance with the 
provisions of this rule. 
17.2. Specific Repair Requirements. 
17.2.a. Removal of Trees and Tree Roots - All trees shall be removed from the embankment and 
abutment areas, unless otherwise approved by the Secretary based upon site-specific conditions. Small 
trees with a base diameter of four (4) inches or less may be removed without removing the root system 
unless specific problems with the root system are evident. Larger trees may require special care in 
removal. The Secretary may require the removal of root systems of large trees if the potential for seepage 
along the root system exists. If removal of root systems requires extensive excavation of the embankment, 
the removal shall be considered a major repair requiring a complete application for a certificate of 
approval. 
§47-34-18. Application and Annual Registration Fees. 
18.1. Application Fees - Each application submitted to place, construct, enlarge, alter, repair, remove 
or abandon a dam shall include an application fee. No fee, however, shall be assessed for dams designed 
and constructed by the soil conservation service for soil conservation districts. The following application 
fees apply: 



 18.1.a. The application fee for placement, construction, alteration, enlargement, repair, or 
approval of a dam is three hundred dollars. 
18.1.b. The application fee for breaching, or abandonment of a dam is two hundred dollars. 
18.1.c. The application fee for removal of a dam is one hundred dollars. 
18.2. Annual Registration Fees - Owners of existing dams holding certificates of approval shall be 
assessed an annual registration fee. In accordance with provisions of the Dam Control and Safety Act, 
West Virginia Code §22-14-7, existing certificates of approval will be extended for one year upon receipt 
of the annual registration fee, an inspection report in accordance with subsection 15.5., a monitoring and 
emergency action plan in accordance with subsection 15.6. and subsection 15.7., and a maintenance plan 
in accordance with subdivision 16.1.b.; Provided that where an approved, up-to-date: inspection report; 
monitoring and emergency action plan; and maintenance plan are on file in the Dam Safety Section, and 
where no outstanding violation(s) exist, then the certificate of approval will be extended without 
resubmission of the foregoing documents upon receipt of the annual registration fee. No fee shall be 
assessed, however, for dams designed and constructed by the soil conservation service for soil 
conservation districts. The following annual registration fees apply: 
18.2.a. Class 4 dams shall be assessed twenty-five dollars. 
18.2.b. Class 3 dams shall be assessed fifty dollars. 
18.2.c. Class 2 dams shall be assessed seventy-five dollars 
18.2.d. Class 1 dams shall be assessed one hundred dollars. 
18.3. Any certificate of approval issued pursuant to W. Va. Code §22-14-7 and this rule is void 
without notification to the person holding the certificate of approval when the annual registration fee is 
more than one hundred eighty (180) days past due. Resubmission of an application in accordance with 
section 5 is required where a certificate has become void due to failure to pay the appropriate annual 
registration fee within one hundred eighty (180) days of the date due. 
§47-34-19. Civil Administrative Penalties. 
19.1. Enforcement Actions. 
19.1.a. General - An authorized representative of the Secretary may commence an enforcement 
action for any observed violation. 
19.1.b. Enforcement Action Procedures - An enforcement action shall be in writing, shall be 
signed by the Secretary or other authorized representative of the Secretary, and shall set forth with 
reasonable specificity: 
19.1.b.1. The nature of the enforcement action with a reference to the section of the statute, 
rule, notice, order or certificate of approval term that was allegedly violated; 
19.1.b.2. The time and date of the observance of the violation; 
19.1.b.3. A reasonable description of the dam where the violation was observed, where 
within the operation or maintenance of the dam the observation was observed, and the condition or hazard 
determined by the Secretary; 



 19.1.b.4. The name, ownership and location of the dam and any identification number 
associated with it; and 
19.1.b.5. In those instances where a notice or order has not been previously issued, the 
remedial action necessary to alleviate the violation and time limits for accomplishing the remedial action. 
19.2. Penalty Assessment Procedures. 
19.2.a. Review of Enforcement Action and Penalty Calculation - The Secretary shall review each 
enforcement action issued for civil administrative penalty assessment to determine: 
19.2.a.1. The appropriateness of a civil administrative penalty; 
19.2.a.2. The initial amount of penalty, if any, based upon the rates and methods given in 
subsection 19.5.; 
19.2.a.3. The appropriateness of assessing a daily civil administrative penalty for continuing 
violations; 
19.2.a.4. The total initial civil administrative penalty assessed; and 
19.2.a.5. The appropriateness of assessing a separate civil administrative penalty against an 
individual person. 
19.2.b. Notice of Civil Administrative Penalty - The Secretary shall provide the violator with a 
copy of the enforcement action and: 
19.2.b.1. A notice of civil administrative penalty which shall include procedures for 
requesting an informal hearing and a notification of applicable time constraints; or 
19.2.b.2. A notice of dismissal. 
19.3. Hearings and Appeals. 
19.3.a. Right to Informal Hearing - The violator has twenty (20) calendar days from his or her 
receipt of the notice of civil administrative penalty within which to request, in writing, an informal 
hearing before the assessment officer. If a hearing is requested, the assessment officer will hold the 
hearing within 60 days to deduce the actual facts and circumstances regarding the violation and, based 
thereon, will make a final recommendation of civil administrative penalty assessment to the Secretary. If 
no hearing is requested, the notice of civil administrative penalty becomes a final order after the 
expiration of the twenty-day period and the civil administrative penalty becomes due and payable. 
19.3.b. Notice and Scheduling of Informal Hearing - If the violator requests an informal hearing 
within the twenty-day period, the assessment officer shall schedule a hearing in accordance with the 
following procedures: 
19.3.b.1. The time and place the informal hearing is to be held is to be communicated to any 
authorized representative of the Secretary who filed an enforcement action bringing about the informal 
hearing, to the violator and to any person who has expressed an interest in writing concerning the 
enforcement action; 
19.3.b.2. The communication shall be provided at least fifteen (15) calendar days prior to the 
time of the hearing; and 


 19.3.b.3. The assessment officer may continue the informal hearing only for good cause 
shown. 
19.3.c. Informal Hearing Procedures - An informal hearing, as provided by this rule, is intended 
to be an informal discussion of the facts which gave rise to the issuance of an enforcement action and 
shall be conducted in the following manner: 
19.3.c.1. The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence 
shall not apply; 
19.3.c.2. A record of the informal hearing is not required but may be made by any party to 
the hearing at the party's expense; and 
19.3.c.3. At formal review proceedings which may ensue, no evidence as to any statement 
made by one party at the informal hearing may be introduced as evidence by another party, nor may any 
statement be used to impeach a witness, unless the statement is or was available as competent evidence 
independent of its introduction during the informal hearing. 
19.3.d. Written Decision - Within thirty (30) calendar days following the informal hearing, the 
Secretary shall issue and furnish to the violator a written decision affirming, increasing, decreasing, or 
dismissing the initial civil administrative penalty assessment and giving the reasons for the decision. 
19.3.e. Request for Formal Hearing - Within thirty (30) calendar days after notification of the 
Secretary's informal hearing decision, the violator may request a formal hearing before the Environmental 
Quality Board. If no formal hearing is requested, the Secretary’s decision becomes a final order after the 
expiration of the thirty day period and the civil administrative penalty becomes due and payable. 
19.4. Separate Civil Administrative Penalties. 
19.4.a. The Secretary may assess a separate civil administrative penalty against any corporate 
director, officer, agent, or employee of a violator, or any other person, who authorizes, orders, or carries 
out a violation of the statute, rule, notice, order, or certificate of approval term or who fails or refuses to 
follow an order from the Secretary. 
19.4.b. In determining the amount of a civil administrative penalty to be assessed against a 
person, consideration shall be given to the criteria specified in subsection 19.5. 
19.4.c. The Secretary shall serve on each person to be assessed an administrative penalty a notice 
of separate civil administrative penalty assessment. For purposes of this subsection, service is considered 
sufficient if it satisfies Rule 4 of the West Virginia Rules of Civil Procedure for service of a summons and 
complaint. A notice of separate civil administrative penalty assessment shall include: 
19.4.c.1. A reference to the section of the statute, rule, notice, order, or certificate of 
approval term allegedly violated; 
19.4.c.2. A concise statement of the facts alleged to constitute the violation; 
19.4.c.3. A statement of the amount of the separate civil administrative penalty to be 
imposed; 
19.4.c.4. A copy of the underlying enforcement action; and 



 19.4.c.5. A statement of a person's right to an informal hearing. 
19.4.d. A person shall have twenty (20) calendar days from receipt of the notice of separate civil 
administrative penalty assessment in which to request, in writing, an informal hearing before the 
assessment officer. If no hearing is requested, the notice of separate civil administrative penalty becomes 
a final order after expiration of the thirty-day period and the separate civil administrative penalty becomes 
due and payable. 
19.4.e. The informal hearing, if requested, will be scheduled and conducted pursuant to this 
section. 
19.5. Civil Administrative Penalty Calculation Procedures. 
19.5.a. Calculation - The Secretary shall calculate a civil administrative penalty by taking into 
account the seriousness of the alleged violation, good faith efforts on the part of the violator (as provided 
for in paragraph 19.5.c. of this section) and any history of violations by the violator. 
19.5.b. History of Violations (HOV) - The Secretary shall take into account the violator's history 
of violations by determining if any enforcement actions concerning Certificate terms, requirements of the 
Act, rule requirements, notices to comply or any orders have been taken against the violator during 
twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, 
dismissed, or vacated shall not be included in the determination. Any outstanding violation within the 
time period shall constitute a history of violations. 
19.5.c. Good Faith Effort - Good faith effort shall be determined in accordance with Table B. 
19.5.d. Maximum Assessed Penalty - The maximum assessment for a single violation shall not 
exceed five thousand dollars ($5,000) per day with a maximum cumulative total of twenty thousand 
dollars ($20,000) for this same violation. Multiple violations shall not exceed a maximum cumulative 
total of twenty thousand dollars ($20,000) per day. The amounts applicable to a single violation must be 
adhered to when developing the cumulative total for multiple days. 
19.5.e. Penalty - The civil administrative penalty shall be determined through the use of Table A. 
19.5.f. Penalty With Good Faith Efforts by Violator - The civil administrative penalty 
determined by Table A shall be reduced, if applicable, through the use of Table B. 


 TABLE A 
Seriousness of Violation 
(dollars/day/violation) 


Enforcement Action 

No Hazard 

Serious Problem 

Dangerous Condition 

Failure to Comply With: 

No 
HOV 

With 
HOV 

No 
HOV 

With 
HOV 

No 
HOV 

With 
HOV 

Certificate 

250 

625 

750 

1250 

2500 

5000 

Act 

625 

1250 

1500 

1875 

3125 

5000 

Rule 

1250 

1875 

2125 

2500 

3750 

5000 

Notice 

1875 

2500 

3125 

3750 

4375 

5000 

Order 

2500 

3125 

3750 

4375 

4625 

5000 



 
TABLE B 
Good Faith by Violator 


Rating 

0 

1 

2 

3 

4 

5 

6 

7 

8 

Percent Reduction 

0% 

5% 

10% 

15% 

20% 

25% 

30% 

35% 

40% 



 
Good Faith Ratings: 
0 Violator failed to take appropriate action 
1-2 Violator took prompt, but insufficient action to fully comply with the violation within the 
required time period. Action was completed prior to end of extended time period. 
3-4 Violator took prompt action and worked diligently to correct the violation. Conditions beyond 
the control of the violator prevented full compliance with the enforcement action and required 
that the compliance time period be extended for just cause. 
5-6 Violator initiated compliance action immediately and expended all reasonable efforts to 
comply. Achieved compliance before the end of the original compliance time period. 
7-8 Violator was already taking appropriate action at the time the violation was documented and 
expended exemplary effort in compliance action before the end of the compliance time period. 
Determination of Penalty Assessment: 
Enforcement Action Amount (Table A) ____________________ 
Less Good Faith Percent (Table B) ____________________ 
Total Assessment ____________________ 


§47-34-20. State Deficient Dams Rehabilitation Assistance Program. 
20.1. The Secretary shall establish a State Deficient Dams Rehabilitation Assistance Program to 
direct the distribution of loans from the Dam Safety Rehabilitation Revolving Fund created under the Act. 


 20.2. Use of Moneys in the Fund. -- Moneys in the Fund shall be used to make loans to persons to 
finance costs for engineering, design, alteration, improvement, repair, breaching or removal of a deficient 
dam necessary to correct or remove the deficiencies and other activities as authorized by a federal grant or 
a legislative appropriation. The Fund may also be utilized by the Secretary to repair, remove or take other 
remedial action with respect to a deficient dam under the authority in section 22 of the Act. The Fund 
may also be used to defray administrative costs incurred by the Secretary or the Authority. 
20.3. Each loan shall be in an amount that covers the reasonable and necessary cost of a project for 
which funds are sought by the applicant and which are not provided by other available sources. Dam 
owners may use multiple programs or sources to fund the rehabilitation costs for a deficient dam, up to 
100 percent of rehabilitation costs. Dam owners cannot exceed 100 percent funding from multiple 
programs or sources and must provide the Secretary with any multiple source accounting to verify that the 
loan amount plus the additional sources of funding do not exceed 100 percent. 
20.4. List of Deficient Dams. -- A State List of Deficient Dams shall be developed and updated 
periodically by the Secretary utilizing a priority ranking system, including, but not limited to, the 
following factors: size of dam and reservoir; condition of dam and its appurtenances; and hazard potential 
to life and property. 
§47-34-21. Eligibility Criteria. 
The Secretary shall consider eligibility for loans to include, but not be limited to, the following 
criteria: 
21.1. Only those dams on the List of Deficient Dams are eligible for a loan from the Dam Safety 
Rehabilitation Revolving Fund in accordance with the priority specified in the List of Deficient Dams, 
provided that a person meets the criteria under subsection 21.3.; 
21.2. A person has submitted a complete application for a project with eligible costs; 
21.3. A person is in a state of readiness to proceed to planning, design or construction and expend 
loan payments in a timely manner; 
21.4. A person has demonstrated his or her ability to pay is less than the estimated cost of repair or 
removal of the dam; 
21.5. A person has demonstrated his or her ability to repay a loan. The Secretary shall evaluate the 
borrower’s financial stability, financial needs, and ability to repay based upon an appropriate examination 
of financial information, including, but not limited to, income and credit histories, income tax returns, 
financial statements and collateral offered to secure the loan; 
21.6. Rehabilitation costs for any deficient dam are eligible, except for dams owned by the federal 
government; 
21.7. Costs for State agency-required fish passage are eligible only if they are part of an overall 
rehabilitation project; 


 21.8. Costs for lake-enhancement projects such as lake dredging, sediment removal projects, or boat 


ramps, which do not enhance the safety of a deficient dam are not eligible to be funded through the Fund; 
21.9. A person has provided an acceptable schedule for project initiation and completion; and 
21.10. A person has demonstrated he or she has the financial, legal, and managerial capabilities to 
ensure adequate design, construction, completion of the project, and subsequent operation and 
maintenance of the dam. As a part of this demonstration, the person shall complete and submit to the 
Secretary financial capability worksheets supplied by the Secretary. 
§47-34-22. Applications for Loans. 
22.1. A person who meets the eligibility criteria in section 21 may apply for a loan. 
22.2. The applicant shall request a pre-application meeting with the Secretary to discuss the 
requirements of the program, including eligibility. A pre-application package, in a form prescribed by the 
Secretary, shall be completed and submitted to the Secretary prior to this meeting. 
22.3. The review and approval by the Secretary of the pre-application package, including any project 
plans, design drawings and specifications, or other documents is for administrative purposes only and 
does not relieve the applicant or his agents and employees from properly planning, designing, 
constructing, operating, and maintaining the project as required under applicable federal and state statutes 
and rules. 
22.4. If the project will involve two (2) or more persons, the applicant shall submit an agreement 
among the parties to the Secretary in a form prescribed by the Secretary. 
22.5. After the pre-application meeting, a person desiring a loan from the Fund may make a separate 
application to the Secretary, on a form prescribed by the Secretary, for each project for which a loan is 
desired. 
§47-34-23. Loan Agreements. 
Upon approval of an application for a loan, the Secretary shall specify the provisions that are required 
to be contained in the loan agreement, including: 
23.1. The specific purposes for which the proceeds of the loan shall be expended, the cost of the 
project, the amount of the loan, and the terms of repayment of the loan and the security therefor, which 
may include a deed of trust or other appropriate security instrument creating a lien on such project or any 
other collateral the Secretary may require; 
23.2. The procedures as to the disbursement of loan proceeds including an estimated monthly draw 
schedule, and the duties and obligations imposed upon the applicant in regard to the acquisition or 
construction of the project; 
23.3. The agreement of the applicant to repay the obligations of such applicant under the loan 
agreement. Revenue may be pledged for the repayment of the loan together with all interest, fees, and 
charges thereon and all other financial obligations of the applicant under the loan agreement; 
23.4. If notes or other interim obligations are being issued by the applicant, the agreement of the 
applicant to take other repayment actions as are required of the applicant under the loan agreement; 
23.5. Payments of the principal and any interest on a loan shall be made by the applicant in 
accordance with the following: 


 23.5.a. Computation of Interest on Loans. -- Each loan shall bear interest from the date of the 
delivery of the notes of the applicant evidencing the loan to the applicant (or such other date as is 
determined by the Secretary) at a rate or rates per annum, either fixed or variable, as determined by the 
Secretary. 
23.5.b. Fees and Charges. -- In addition to payments of principal and interest on a loan, each 
applicant shall agree in the loan agreement to pay fees and charges equal to the applicant's share of the 
administrative expenses of the Secretary and the Authority relating to the loan program or any bond 
program established by the Secretary and the Authority. 
23.6. The agreement of the applicant to accept the Authority’s enforcement remedies under the Act 
in the event of any default under the loan; and 
23.7. The agreement of the applicant to comply with all applicable federal and state statutes and rules 
and regulations and all applicable local ordinances pertinent to the financing, acquisition, design, 
construction, operation, maintenance and use of the project. 
§47-34-24. Loans Conditioned Upon Availability of Moneys in the Fund. 
The obligation of the Authority to enter into loan agreements shall be conditioned upon the 
availability of moneys in the Fund in amounts and on terms and conditions, as at the direction of the 
Secretary, will enable the Authority to make loans. 
§47-34-25. Disbursement of Loan Moneys. 
25.1. Following the Secretary’s approval of a loan and conditions to be included in the loan 
agreement, the Authority shall provide the person with the loan agreement setting forth the specific terms 
of the loan. The loan agreement, following execution by the person, constitutes a binding commitment 
for moneys from the Fund. 
25.2. Moneys shall be disbursed from the Fund only upon a written authorization from the Authority. 
On a monthly basis, there shall be disbursed to each recipient the amount certified as costs incurred for 
the project. Said certification shall be made on an approved form. Moneys will be dispensed from the 
Fund upon presentation of an executed payment request form. 
25.3. Each person receiving a loan shall comply with all terms and conditions of the loan agreement 
or notes or other debt instruments evidencing the loan. 
25.4. Prior to commencement of construction, the Secretary and recipient shall hold a preconstruction 
conference to review the activities that shall take place during construction of the project. 
25.5. Interim inspections of the project shall be conducted by the Secretary periodically during 
construction. A final inspection shall be conducted by the Secretary after construction has been 
substantially completed and before the final construction loan payment is disbursed. 
25.6. The Secretary may use moneys from the Fund in accordance with provisions of section 22 of 
the Act. Before seeking a requisition from the Fund, the Secretary shall provide the information required 
in Section 20 of the Act to the Authority. Costs recovered from an owner by civil action shall be 
promptly deposited in the Fund. 
§47-34-26. Owner’s Responsibilities. 



 Once a loan has been granted under this rule, the owner or owners of a dam shall cooperate with the 
Secretary by: 
26.1. Facilitating access to the dam and its appurtenances; 
26.2. Making available all records maintained pursuant to the provisions of this rule for inspection by 
the Secretary upon request and where appropriate by the Authority; 
26.3. Furnishing the Secretary with all plans, specifications, operation and maintenance data, 
instrumentation data, and other information pertinent to the dam and its appurtenances, or the loan; 
26.4. Providing the Secretary with an operation and maintenance plan; 
26.5. Maintaining the dam and appurtenances in the state of repair and operating condition required 
by the exercise of prudence; due regard for life or property; the application of sound and accepted 
engineering principles; and provisions of this rule; 
26.6. Developing a monitoring and emergency action plan for the approval of the Secretary and 
implementing the plan upon approval; 
26.7. Providing the Secretary with written, regularly scheduled reports describing progress toward 
repair or removal of the dam; and 
26.8. Demonstrating the ability to appropriately operate and maintain the dam after rehabilitation is 
complete. 
§47-34-27. Procurement Standards. 
27.1. Procurement Standards for Publicly-Owned Dams. -- Owners of publicly-owned dams shall 
comply with all applicable State laws and rules pertaining to competitive bid and prevailing wage 
requirements. 
27.2. Procurement Standards for Privately-Owned Dams. -- Owners of privately-owned dams shall 
obtain a minimum of three bids prior to design, construction, or major procurement items as determined 
by the Secretary, provided that the Secretary may grant an exception in situations that may cause loss of 
life or property. 
§47-34-28. Financial Management and Record Keeping. 
28.1. Financial Management. -- A loan recipient shall establish and maintain a financial 
management system to account for all costs incurred related to a project. This system shall assure that 
generally accepted accounting principles and practices are consistently applied in all financial matters 
related to the project. 
28.1.a. Financial management shall include the following elements: 
28.1.a.1. The maintenance of ledgers containing accurate, current, and complete records of 
all financial actions related to the project; 
28.1.a.2. The maintenance of records that identify the source and amount of all moneys used 
for the project and documentation of how such moneys were used; and 


 28.1.a.3. The maintenance of records that allow a comparison of actual project costs with 


budgeted costs. 
28.1.b. The recipient shall maintain an accounting system, which shall: 
28.1.b.1. Establish a separate account for the project; 
28.1.b.2. Record all transactions in a timely and verifiable manner; 
28.1.b.3. Designate one (1) person who is not responsible for project operations to account 
for all project funds; and 
28.1.b.4. Prepare and submit as directed, financial reports of the project. 
28.2. Records. -- The recipient shall maintain official records for each loan received that include: 
28.2.a. The loan application and loan approval documents; 
28.2.b. All contracts and subagreements related to the project; 
28.2.c. All documents related to financial management prescribed under subsection 28.1.; 
28.2.d. A documentation of compliance with applicable federal and State statutes, rules, and 
regulations; 
28.2.e. A documentation of the amount of moneys received and expended for the project; 
28.2.f. A documentation of all property that was purchased for the project; and 
28.2.g. Time records related to the project, if applicable. 


31 NR 333.03 DEPARTMENT OF NATURAL RESOURCES 
Unofficial Text (See Printed Volume). Current through date and Register shown on Title Page. 
Register, January, 2002, No. 553 
Chapter NR 333 
DAM DESIGN AND CONSTRUCTION 
NR 333.01 Purpose. 
NR 333.02 Applicability. 
NR 333.03 Definitions. 
NR 333.04 Compliance schedules. 
NR 333.05 Submission of plans, specifications and analyses. 
NR 333.06 Dam hazard ratings. 
NR 333.07 Hydraulic design and safety requirements. 
NR 333.08 Construction. 
NR 333.09 Financial assurance. 
Note: Chapter NR 333 as it existed on May 31, 1985 was repealed and a new chapter 
NR 333 was created effective June 1, 1985. 
NR 333.01 Purpose. The purpose of this chapter is to 
ensure that dams are designed, constructed and reconstructed so 
as to minimize the danger to life, health and property. This chapter 
is adopted pursuant to ss. 31.02 (2), 31.19 and 31.33, Stats. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85. 
NR 333.02 Applicability. (1) The provisions of this 
chapter are applicable to dams not owned by the United States 
government that: 
(a) Have a structural height of more than 6 feet and a maximum 
storage capacity of 50 acre–feet or more of water. 
(b) Have a structural height of 25 feet or more and a maximum 
storage capacity of more than 15 acre–feet of water. 
(c) Have a structural height of 6 feet or less or a maximum storage 
capacity of less than 50 acre–feet of water if the department 
determines that the dam is likely to endanger life, health or property 
if it is not designed, constructed or reconstructed in accordance 
with this chapter. 
(2) All new and existing dams inspected, approved and 
licensed by a federal agency under 18 CFR Part 12, are exempt 
from the provisions of this chapter provided that the dam meets 
requirements which are at least as restrictive as the requirements 
of this chapter. 
Note: Dams exempted from this chapter are still subject to the requirements of ch. 
31, Stats., including, but not limited to, the requirements for permits and plan 
approvals. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: am. Register 
July 2001, No. 547 eff. 8–1–01. 
NR 333.03 Definitions. (1) “Auxiliary spillway” means 
a secondary spillway designed to pass water only during flows 
exceeding the capacity of the principal spillway. 
(2) “Base flow” means that part of the stream flow that is 
derived from groundwater and calculated as the 7–day low flow 
that occurs on an average of once in 2 years or has a 50% chance 
of occurring in any given year. The notation is Q7,2. 
(3) “Dam” means any artificial barrier in or across a watercourse 
which has the primary purpose of impounding or diverting 
water. A dam includes all appurtenant works, such as a dike, canal 
or powerhouse. 
(4) “Department” means the department of natural resources. 
(5) “Development” means any artificial change to improved 
or unimproved real estate not related to allowable open space use 
including, but not limited to, the construction of buildings, structures 
or accessory structures; the construction of additions or substantial 
improvements to buildings, structures or accessory structures; 
the placement of buildings or structures; and campgrounds. 
(6) “Floodplain with the dam nonexistent” means that area of 
land downstream from a dam that would be inundated by water 
during the regional flood if the dam did not exist. 
(7) “Floodway” means the channel of a river or stream and 
those portions of the floodplain adjoining the channel which are 
required to carry the regional flood discharge. 
(8) “Hydraulic shadow” means that area of land downstream 
from a dam that would be inundated by water upon failure of the 
dam during the regional flood. 
(9) “Land use controls in place” means future development 
within the hydraulic shadow is required to conform to the criteria 
specified in a zoning ordinance adopted and approved pursuant to 
s. 87.30, Stats., and also consistent with land use plans developed 
under s. 66.1001, Stats., or through restrictive covenants, easements, 
or other appropriate legal arrangements between the owner 
of the dam and the owners of all property within the hydraulic 
shadow. 
(10) “Maximum headwater” means the maximum water surface 
elevation before overtopping would occur. 
(11) “Maximum storage capacity” means the volume of water 
in acre–feet capable of being stored behind a dam at the maximum 
water surface elevation before overtopping would occur. 
(12) “Minimum tailwater” means the water level downstream 
from a dam at base flow. 
(13) “Open space use” means a use which has a relatively low 
flood damage potential, such as uses associated with agriculture, 
recreation, parking, storage yards, or certain sand and gravel 
operations. 
(14) “Overtopping” means the flow of water over parts of a 
dam which are not part of its spillway system. 
(15) “Owner” means any individual, partnership, public utility, 
company, cooperative, trust, corporation, association, state or 
interstate agency, city, village, town, county or special purpose 
district such as a drainage district or a public inland lake protection 
and rehabilitation district which has title to or recorded easement 
for operation, maintenance and access to a dam or to the specific 
parcel of land on which a dam exists. 
(16) “Principal spillway” means the primary structure for the 
discharge of normal flow through a dam. 
(17) “Q10” means the flood flow having a recurrence interval 
of 10 years or a 10% chance of occurring or being exceeded in any 
given year. 
(18) “Q50” means the flood flow having a recurrence interval 
of 50 years or a 2% chance of occurring or being exceeded in any 
given year. 
(19) “Q100” means the flood flow having a recurrence interval 
of 100 years or a 1% chance of occurring or being exceeded in any 
given year. 
(20) “Q500” means the flood flow having a recurrence interval 
of 500 years or a 0.2% chance of occurring or being exceeded in 
any given year. 
(21) “Q1000” means the flood flow having a recurrence interval 
of 1000 years or a 0.1% chance of occurring or being exceeded 
in any given year. 
(22) “Reconstruction” means alteration of an existing dam in 
a manner which affects its hydraulic capacity or structural integrity. 
(23) “Regional flood” means a flood determined to be representative 
of large floods known to have occurred in Wisconsin and
32 NR 333.03 WISCONSIN ADMINISTRATIVE CODE 
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which may be expected to occur on a particular stream once in 
every 100 years. 
Note: The regional flood is based upon a statistical analysis of stream flow records 
available for the watershed or an analysis of rainfall or runoff characteristics in the 
watershed or both. The flood frequency of the regional flood is once in every 100 
years. In any given year, there is a 1% chance that the regional flood may occur or 
be exceeded. 
(24) “Structural height” means the difference in elevation in 
feet between the point of lowest elevation of the top of the dam 
before overtopping and the lowest elevation of the natural stream 
or lake bed at the downstream toe of the dam. 
(25) “Submerged” means that the difference between the 
water surface elevations upstream and downstream from a dam is 
one foot or less. 
(26) “Total spillway capacity” means the sum of the auxiliary 
spillway and principal spillway capacities of a dam. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; am. (25), Register, April, 
1987, No. 376, eff. 5–1–87; CR 00–136: renum. (1) to (4), (9), (13) to (16), (21) to 
(25), (27) and (28) to be (2) to (4), (1), (8), (14) to (17), (20) to (26), am. (1), (3), (15), 
(24) and (26), r. (5), (8), (17), (20) and (26), cr. (5), (9) and (13) Register July 2001, 
No. 547 eff. 8–1–01; correction in (9) made under s. 13.93 (2m) (b) 7., Stats., Register 
January 2002 No. 553. 
NR 333.04 Compliance schedules. (1) DAM HAZARD 
RATING. The department shall assign a dam hazard rating according 
to the criteria in s. NR 333.06 for all dams subject to the provisions 
of this chapter. The assignment of a hazard rating shall be 
based on the findings of a dam failure analysis provided by the 
owner, pursuant to the standards of s. NR 333.05, according to the 
following schedule: 
(a) For new dams, prior to granting permission or approval to 
construct. 
(b) For existing dams which are to be reconstructed, prior to 
granting permission or approval to reconstruct. 
(c) After a dam failure analysis has been approved by the 
department or is adopted in a floodplain zoning ordinance pursuant 
to s. 87.30, Stats., and approved by the department. 
(d) Upon issuance of a department directive in a dam safety 
inspection report pursuant to s. 31.19, Stats. 
(2) COMPLIANCE. (a) New dams. The design and construction 
of all new dams shall be in compliance with the requirements of 
this chapter. 
(b) Existing dams. The owners of all existing dams shall bring 
their dams into compliance with the requirements of this chapter 
within 10 years after being notified of the dam’s hazard rating pursuant 
to sub. (1), unless ordered to do so earlier under s. 31.19 (5), 
Stats. 
(3) ENFORCEMENT. Administrative orders issued by the 
department under s. 31.19 (5), Stats., may be enforced under ss. 
23.50, 23.79 (3), 30.03, 31.23 (2) and 31.25, Stats. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: r. and recr., 
Register July 2001, No. 547 eff. 8–1–01. 
NR 333.05 Submission of plans, specifications and 
analyses. (1) PLANS AND SPECIFICATIONS. Plans and specifications 
prepared by a professional engineer registered in the state of 
Wisconsin shall be submitted to and approved by the department 
prior to the construction of a new dam or reconstruction of an 
existing dam. 
(2) HYDRAULIC, HYDROLOGIC AND STABILITY ANALYSES. 
Hydraulic, hydrologic and stability analyses prepared by a professional 
engineer registered in the state of Wisconsin shall be submitted 
to and approved by the department prior to the construction 
of a new dam or the reconstruction of an existing dam. These analyses 
shall be conducted according to accepted engineering practice 
and unless the department determines otherwise shall be submitted 
in the form of a report which includes, at a minimum: 
(a) Purpose of the report. Development of an emergency 
action plan, floodplain zoning or development of the hazard rating 
for the dam. 
(b) Roles and participation of other agencies –– DNR, DEG, 
community officials, other agencies. 
(c) Data collection methods and sources of information –– 
Development of cross sectional data, description of past flooding 
events, reference to previous studies, current floodplain zoning 
map. 
(d) Methodologies and procedures –– Operation of dam during 
high water, breach parameters, description of all spillway components, 
scenario for failure, failure conditions. 
(e) Regional flood flows calculated in conformance with the 
standards in s. NR 116.07 (3). 
(f) Hydraulic modeling –– Determination and delineation of 
the following hydraulic conditions during the regional flood, 
using the standards in s. NR 116.07(4): 
1. Hydraulic shadow –– assuming that the dam is in existence 
and fails. Failure shall be considered to occur at the maximum 
upstream water elevation or at the point of overtopping, based 
upon the physical conditions at the dam. 
2. Dam in place, no failure –– assuming the dam operates in 
accordance with its department approved operation plan, if one is 
available, or not operated if there is no plan. 
3. Dam nonexistent –– assuming the dam has been removed 
and the natural stream cross–section is restored. 
Note: For suggested dam breach parameters, see the National Weather Service 
“DAMBRK or FLDWAV” Users Manuals. 
(g) Comparison table –– Summary by cross section of the maximum 
flood elevation for the 3 hydraulic conditions. 
(h) Determination of the dam hazard rating using the criteria 
in s. NR 333.06. 
(i) Design flood flows, based on the hazard rating and the 
hydraulic design standards in s. NR 333.07. 
(j) Calculations for routing of the design flood through the 
structure. Starting conditions for the routing shall be at the normal 
pool and normal flow tailwater elevations. 
(k) Stability analysis of the dam, which considers sliding, 
overturning and foundation failure during base flow conditions 
and at maximum load conditions, including ice loading, during 
routing of the design flood through the dam. 
(L) Appendices: 
1. Plan view of the dam. 
2. Elevation view of the dam from downstream including 
breach geometry. 
3. Pertinent elevations of the dam. 
4. Stage vs. storage curve or area vs. volume curve, or both. 
5. Spillway capacity rating curves or calculations, where 
appropriate. 
6. Downstream water surface profiles and floodway data 
tables, for the dam failure, and the with and without dam conditions, 
during the regional flood. 
7. Maps for the 3 modeled conditions, with cross section locations 
and structure identification adequate to determine the hazard 
rating for the dam, for the dam failure condition map, showing the 
floodway, and to an appropriate scale consistent with the community 
floodplain zoning map. 
8. Cross section plots of actual field cross sections and comparison 
with dam break input cross sectional data. 
9. Hard copy and data disk with computer input and output 
for all modeled conditions, including hydrology and hydraulic 
runs. 
10. Other supporting calculations as the department deems 
necessary. 
Note: Mapping, profiles and floodway data tables must be suitable for zoning purposes, 
as required in s. NR 116.07 (4). 
(3) ESTIMATED COSTS. The estimated cost of construction of 
the new dam or reconstruction of the existing dam, and the estimated 
cost of removing the dam and restoring the channel to its
33 NR 333.09 DEPARTMENT OF NATURAL RESOURCES 
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natural condition, shall be submitted to the department prior to the 
construction of a new dam or reconstruction of an existing dam. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: am. (1) and 
(3), r. and recr. (2), Register July 2001, No. 547 eff. 8–1–01. 
NR 333.06 Dam hazard ratings. (1) A hazard rating of 
low, significant or high for all existing and proposed dams shall 
be determined in accordance with the following criteria: 
(a) Low hazard. A low hazard rating shall be assigned to those 
dams that have no development unrelated to allowable open space 
use in the hydraulic shadow where the failure or mis–operation of 
the dam would result in no probable loss of human life, low economic 
losses (losses are principally limited to the owners property), 
low environmental damage, no significant disruption of 
lifeline facilities, and have land use controls in place to restrict 
future development in the hydraulic shadow. 
(b) Significant hazard. A significant hazard rating shall be 
assigned to those dams that have no existing development in the 
hydraulic shadow that would be inundated to a depth greater than 
2 feet and have land use controls in place to restrict future development 
in the hydraulic shadow. Potential for loss of human life during 
failure must be unlikely. Failure or mis–operation of the dam 
would result in no probable loss of human life but can cause economic 
loss, environmental damage, or disruption of lifeline facilities. 
(c) High hazard. A high hazard rating shall be assigned to 
those dams that have existing development in the hydraulic 
shadow that will be inundated to a depth greater than 2 feet or do 
not have land use controls in place to restrict future development 
in the hydraulic shadow. This rating must be assigned if loss of 
human life during failure or mis–operation of the dam is probable. 
(2) The owner of a dam may request that the department 
change the hazard rating of an existing or proposed dam by submitting 
adequate information which demonstrates that the land 
use and land use controls downstream from the dam meet the 
requirements for a different hazard rating. The department shall 
advise the owner of its action on the requested change within 90 
business days after receiving the request. 
History: Cr. Register, May, 1995, No. 353, eff. 6–1–85; CR 00–136: r. and recr., 
Register July 2001, No. 547 eff. 8–1–01. 
NR 333.07 Hydraulic design and safety requirements. 
(1) MINIMUM HYDRAULIC CAPACITY. Except as provided 
in sub. (2), all proposed and existing dams shall have the minimum 
hydraulic capacity shown in Table I: 
Table I 
Required Spillway Design Capacities 
Dam Hazard Rating Minimum 
Principal 
Spillway 
Capacity 
Minimum 
Total 
Spillway 
Capacity 
Low (L) Q10 Q100 
Significant (S) Q50 Q500 
High (H) Q100 Q1000 
(2) REDUCED REQUIREMENTS. (a) Unless the department determines 
that public safety requires full compliance with the substantive 
requirements of this rule, all dams which will be submerged 
by flows less than the minimum hydraulic capacity specified in 
Table I shall be designed to pass the flow of the river at submergence. 
(b) Any owner may provide documentation to justify a different 
spillway capacity from that specified in Table I. The department 
shall review such documentation and may approve the spillway 
capacity proposed by the owner if it determines that such 
capacity will not result in an additional hazard to life, health or 
property when compared to the capacity specified in Table I. 
(3) SAFETY MEASURES. The owners of all new and existing 
dams shall comply with the following safety measures: 
(a) The owner shall have an adequate operation, inspection and 
maintenance plan for the dam. 
(b) The dam shall be structurally stable for any flow condition 
up to and including the design flood flow. 
(c) An adequate emergency action plan shall be prepared for 
the area downstream from the dam in consultation with the local 
unit of government and concurred in by the division of emergency 
government. An adequate emergency action plan shall include, 
but is not limited to, the following information: 
1. A notification flow chart identifying involved agencies, 
other dam owners both upstream and downstream and their phone 
numbers. 
2. Emergency operation procedures. 
3. An inundation map of the hydraulic shadow on a scale of 
l” = 2000’ or less that extends downstream to an elevation within 
one foot of the dam nonexistent profile. 
4. Procedures for notification of all property owners affected 
by a dam failure and a list of their names, addresses and phone 
numbers. 
Note: For additional information on emergency action plans refer to Chapter 6 of 
the Federal Energy Regulatory Commission’s “Engineering Guidelines for the Evaluation 
of Hydropower Projects”. 
(d) Documentation showing that the requirements of pars. (a) 
to (c) have been met shall be submitted to the department for 
approval. The department shall review and approve or disapprove 
of the documented safety measures in writing within 90 business 
days after the department receives the documentation. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: r. (1), renum. 
(2) to (4) to be (1) to (3) and am. (1), (2), (3) (c) and (d) and Table I, Register July 2001, 
No. 547 eff. 8–1–01. 
NR 333.08 Construction. (1) Construction of a new 
dam or reconstruction of an existing dam may not begin until the 
department approves the plans and specifications submitted under 
s. NR 333.05. 
(2) Alterations to any plans or specifications that were 
approved by the department under s. NR 333.05 which will affect 
the flood flow capacity or structural integrity of a dam shall be 
approved by the department before construction or reconstruction 
of the dam. 
(3) All dams shall be constructed or reconstructed under the 
supervision of a professional engineer registered in the state of 
Wisconsin. The supervising engineer shall, within 10 days after 
completing the construction or reconstruction of a dam, submit a 
statement indicating that the dam was constructed or reconstructed 
in accordance with the plans and specifications approved 
by the department under s. NR 333.05. 
(4) As–built plans shall be submitted to the department within 
30 business days after the completion of construction or reconstruction 
of a dam. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: am. (3), Register 
July 2001, No. 547 eff. 8–1–01. 
NR 333.09 Financial assurance. (1) GENERAL 
REQUIREMENT. (a) Except as provided in par. (b), the owner of a 
dam shall file a bond, escrow account, lien or other financial assurance 
satisfactory to the department prior to the commencement of 
construction or reconstruction of the dam. The amount of such 
financial assurance shall equal the estimated cost of removing the 
dam and restoring the stream channel to its natural condition or the 
cost of constructing or reconstructing the dam, whichever is less, 
based on the cost estimate submitted by the owner under s. NR 
333.05 (3). 
(b) Where the owner is a state or interstate agency or a city, 
county, village, special purpose district or other unit of government, 
financial assurance is not required if the owner demon-
34 NR 333.09 WISCONSIN ADMINISTRATIVE CODE 
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strates to the department’s satisfaction that it has made or will 
make sufficient funds available to construct or reconstruct the 
dam or to remove the dam and restore the stream channel it its natural 
condition, whichever is less expensive. 
(2) NOTIFICATION. As part of its approval of the plans and 
specifications submitted pursuant to s. NR 333.05, the department 
shall notify the applicant of the required level of financial assurance. 
(3) FORFEITURE REQUIREMENTS. (a) The financial assurance 
filed with the department shall be conditioned upon faithful performance 
of all of the requirements of ch. 31, Stats., the provisions 
of this chapter, and the conditions of any permit or order issued to 
the applicant for the dam pursuant to ch. 31, Stats. 
(4) RELEASE. The department shall release or authorize the 
release of the applicant’s financial assurance within 60 business 
days after the receipt of a request for release if the department 
finds that the construction or reconstruction has been completed 
in accordance with the plans and specifications approved by the 
department, the provisions of this chapter and the conditions of 
any permit or order issued to the owner of the dam pursuant to ch. 
3l, Stats. 
History: Cr. Register, May, 1985, No. 353, eff. 6–1–85; CR 00–136: am. Register 
July 2001, No. 547 eff. 8–1–01.
35 NR 335.04 DEPARTMENT OF NATURAL RESOURCES 
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Register, January, 2002, No. 553 
Chapter NR 335 
DAM MAINTENANCE, REPAIR, MODIFICATION, ABANDONMENT 
AND REMOVAL AID PROGRAM 
NR 335.01 Purpose. 
NR 335.02 Applicability. 
NR 335.03 Definitions. 
NR 335.04 Eligibility for a state grant. 
NR 335.05 State share. 
NR 335.06 Application and award procedures. 
NR 335.07 Grant application. 
NR 335.08 Eligible and ineligible costs. 
NR 335.09 Criteria for priority ranking. 
NR 335.10 Construction period. 
NR 335.11 Final project approval. 
NR 335.12 Grant payments. 
NR 335.13 Adoption of land use controls in the hydraulic shadow. 
NR 335.14 Grantee accountability. 
Note: Chapter NR 335 was repealed and recreated by emergency rule effective 
9–1–90. Chapter NR 335 as it existed on April 30, 1991, was repealed and a new 
chapter NR 335 was created effective May 1, 1991. 
NR 335.01 Purpose. The purpose of this chapter is to 
establish procedures for implementation of the dam maintenance, 
repair, modification, or abandonment and removal aid program 
established under s. 31.385, Stats. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.02 Applicability. (1) This chapter shall apply to 
all applications for state aid in the form of matching grants for dam 
maintenance, repair, modification, or abandonment and removal 
under s. 31.385, Stats. 
(2) The provisions of this chapter are applicable to dams that: 
(a) Are owned by a municipality or public inland lake protection 
and rehabilitation district; and 
(b) Are not inspected, approved and licensed by a federal 
agency under 18 CFR Part 12. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.03 Definitions. For the purpose of this chapter: 
(1) “Abandonment” means the removal of a dam in compliance 
with ch. 31, Stats. 
(2) “Approval” means the written approval of the department. 
(3) “Authorized representative” means the official or 
employe designated by resolution of the governing body of a 
municipality or lake district to act on behalf of the owner under 
this chapter. 
(4) “Dam” means any artificial barrier in or across a waterway 
which has the primary purpose of impounding or diverting water. 
A dam includes all appurtenant works, such as a dike, canal or 
powerhouse. 
(5) “Department” means the department of natural resources. 
(6) “Directives” means the requirements for repair, maintenance, 
modification or abandonment established by the department 
in the inspection report sent to the owner. 
(7) “Grantee” means the municipality or lake district which 
receives a grant award from the state under this chapter. 
(8) “Hydraulic shadow” means that area of land downstream 
from a dam that would be inundated by water upon failure of the 
dam during the regional flood. 
(9) “Investigation” means an inspection performed by the 
department after the owner has received either directives in an 
inspection report or an order, to determine whether the owner may 
be eligible for a grant under this chapter for work that remains to 
be performed on the dam. 
(10) “Lake district” means a public inland lake protection and 
rehabilitation district formed under ch. 33, Stats. 
(11) “Land use controls” means a floodplain zoning ordinance 
adopted and approved pursuant to s. 87.30, Stats., or restrictive 
covenants, easements or other appropriate legal arrangements 
between the owner of the dam and the owners of all property 
within the dam’s hydraulic shadow. 
(12) “Large dam” means a dam that has either a structural 
height of more than 6 feet and a maximum storage capacity of 
more than 50 acre–feet or a structural height of 25 feet or more and 
a maximum storage capacity of more than 15 acre–feet. 
(13) “Maximum headwater” means the maximum water surface 
elevation in an impoundment before overtopping would 
occur. 
(14) “Maximum storage capacity” means the volume of water 
in acre–feet capable of being stored behind a dam at maximum 
headwater. 
(15) “Modification” means any physical change to a dam, 
other than maintenance or repair of the existing components, that 
results in a change in the dam’s hydraulic capacity or structural 
stability. 
(16) “Municipality” means any town, village, city or county 
in this state. 
(17) “Order” means an enforcement order issued by the 
department under s. 31.19 (5), Stats., to an owner to repair or abandon 
a dam. 
(18) “Overtopping” means the flow of water over parts of a 
dam which are not part of its spillway system. 
(19) “Owner” means any municipality or lake district which 
has title to a dam or to the specific piece of land on which a dam 
is physically located. 
(20) “Principal spillway” means the primary structure for the 
discharge of normal flow through a dam. 
(21) “Regional flood” means a flood determined to be representative 
of large floods known to have occurred in Wisconsin and 
which may be expected to occur on a particular stream once in 
every 100 years. 
Note: The regional flood is based upon a statistical analysis of stream flow records 
available for the watershed or an analysis of rainfall or runoff characteristics in the 
watershed or both. The flood frequency of the regional flood is once in every 100 
years. In any given year, there is a 1% chance that the regional flood may occur or 
be exceeded. 
(22) “Repair” means work performed on a dam, including 
maintenance, which is required to provide proper operation or 
continued structural integrity of the dam and does not change the 
dam’s hydraulic capacity. 
(23) “Structural height” means the difference in elevation in 
feet between the point of lowest elevation of a dam before overtopping 
and the lowest elevation of the natural stream or lake bed 
at the downstream toe of the dam. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.04 Eligibility for a state grant. (1) Any municipality 
or lake district that owns a dam in Wisconsin may apply for 
state aid for repair, modification or abandonment of the dam upon 
compliance with sub. (2). 
(2) To be eligible to receive a grant under this chapter, the 
owner shall:
36 NR 335.04 WISCONSIN ADMINISTRATIVE CODE 
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(a) Request, in writing, financial assistance under this chapter 
within 6 months after receiving directives or an order for repair, 
modification or abandonment of the dam resulting from a department 
investigation or inspection of the dam, or have received a 
directive from the department or have been under order by the 
department to repair, modify or abandon the dam, on or before 
August 9, 1989; and 
(b) Comply with all applicable requirements of this chapter. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.05 State share. The state share may not exceed 
50% of the total eligible project costs nor exceed $200,000 for any 
one dam. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.06 Application and award procedures. Aid 
available under this program shall be awarded to those projects 
with the highest points on a priority list, as determined by the criteria 
in s. NR 335.09, and in accordance with the procedures in this 
section. Projects on the priority list shall be funded within the limits 
of available funds. Applications with identical point totals shall 
be assigned priority based upon the date the complete application 
was received by the department with highest priority given to the 
earliest received complete application. 
(1) All applications for a grant under this chapter shall be 
received by the department no later than April 1 of each year. 
(2) The department shall establish a priority list by June 1 of 
each year which ranks all complete applications received by the 
April 1 deadline. Applicants shall be notified of their placement 
on the priority list and the probability of approval for funding. The 
ranking of applicants shall be made available upon written 
request. 
(3) Applicants receiving a commitment for funding shall submit 
plans and specifications to the department, for approval, prior 
to October 1 of the same year the application is made. 
(4) Applicants receiving a commitment for funding shall submit 
construction bids for the proposed work to the department 
within 60 days of department approval of plans and specifications. 
Following submission to the department, the owner may rebid the 
project without losing eligibility if the original bid is deemed too 
high or inappropriate. The applicant shall rebid the project within 
60 days of receipt of the original bid. The department shall direct 
the owner to rebid the project if it deems the bid inappropriate. The 
applicant shall rebid the project within 60 days of receiving notification 
from the department that the department deems the bid 
inappropriate. 
(5) The department shall issue, in writing, a notice of grant 
award within 30 days of receipt of an acceptable construction bid. 
(6) All complete applications received after April 1 shall be 
considered for funding during the next year in which money 
becomes available. To be considered, any amendment to a late 
application shall be received by the department no later than the 
next April 1 application deadline. 
(7) If there are insufficient funds to award aid to all eligible 
applicants on the priority list, the remaining projects shall be considered 
for funding during the next year in which money becomes 
available. To be considered, any amendments to unfunded 
applications shall be received by the department no later than the 
next April 1 application deadline. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.07 Grant application. (1) PROCEDURE. (a) A 
separate grant application shall be submitted to the department for 
each individual dam for which financial assistance is requested 
under this chapter. 
(b) The department shall review each application received for 
completeness and shall advise the applicant of any deficiencies, 
omissions or errors in the application in writing. Incomplete 
applications may not be considered if all information is not 
received by the department by April 1. 
(2) CONTENTS OF APPLICATION. An application for a grant 
under this chapter shall be made on forms furnished by the department. 
In addition to the application form, the application shall 
include the following: 
(a) Certified copies of the following resolutions of the governing 
body of the municipality or lake district: 
1. A resolution designating an authorized representative, and 
authorizing the representative to apply for a grant under s. 31.385, 
Stats., and this chapter, on behalf of the owner. 
2. A resolution stating that the owner agrees to pay a share of 
the eligible costs which is equal to the total project cost minus the 
state share. 
3. Proof of receipt of a letter sent by certified mail, from the 
owner to the municipality responsible for the implementation of 
land use controls, informing the municipality that a change in the 
land use controls may be necessary to secure the hazard rating for 
the dam. 
(b) All data and calculations to show that dams to be repaired 
or modified will meet all requirements of ch. NR 333 where applicable. 
All owners shall provide the following with the application: 
1. A dam failure analysis including maps suitable for the purpose 
of implementing land use controls below the dam. 
2. A conceptual design and cost estimate for the construction 
phase of the project defining the eligible project costs. 
3. A cost estimate for the engineering work required to complete 
the project, including preparation of all documents required 
under this chapter. 
(c) All data and calculations to show that dams to be abandoned 
will meet the requirements of ch. 31, Stats. All owners shall 
provide the following with the application: 
1. An application, under ch. 31, Stats., for a permit or 
approval to abandon the dam. 
2. All information necessary for the municipality responsible 
for implementation of land use controls to implement controls in 
the area flooded during the regional flood without the dam in 
place. 
3. A project description and cost estimate for the construction 
portion of the project defining eligible project costs. 
4. A cost estimate for the engineering work required to complete 
the project, including preparation of all documents required 
under this chapter. 
Note: Application forms are available from the department by writing to the Wisconsin 
Department of Natural Resources, Bureau of Water Regulation and Zoning, 
P.O. Box 7921, Madison, WI 53707. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.08 Eligible and ineligible costs. (1) ELIGIBLE 
COSTS. The following project costs, whether incurred under contract 
or in the form of salaries and benefits, may be reimbursed 
under this chapter, if the grant is awarded: 
(a) Actual and reasonable engineering costs incurred in preparing 
the studies and application form required under s. NR 
335.07 (2) (b) and (c); 
(b) Actual and reasonable engineering costs incurred in preparing 
plans and specifications as required in s. NR 335.06 (3), the 
operation, inspection and maintenance plan, and the emergency 
action plan; 
(c) Actual and reasonable construction costs incurred in the 
repair, modification or abandonment of the dam, including labor 
and materials; and 
(d) Actual and reasonable engineering costs involved in the 
on–site inspection of the repair, modification or abandonment of 
the dam. On–site inspection by an engineer registered in the state 
of Wisconsin is required during critical stages of construction. 
(2) INELIGIBLE COSTS. Ineligible costs include:
37 NR 335.12 DEPARTMENT OF NATURAL RESOURCES 
Unofficial Text (See Printed Volume). Current through date and Register shown on Title Page. 
Register, January, 2002, No. 553 
(a) Costs incurred prior to August 9, 1989; 
(b) The cost of materials and labor for installation or repair of 
items directly associated with hydroelectric power facilities at the 
dam; 
(c) Costs incurred prior to the date of the state grant award 
except engineering costs as provided in sub. (1); 
(d) Costs of routine maintenance including, but not limited to, 
mowing grass, painting signs and debris removal; 
(e) Costs of equipment necessary for routine maintenance of 
the dam; 
(f) Costs for which payment has been or will be received under 
another state or federal cost sharing or grant program or from 
another municipality or any other outside funding source; and 
(g) Costs attributable to the correction of errors or deficiencies 
in construction funded under this chapter due to failure to comply 
with department approved construction plans and specifications. 
(3) ALLOCATION OF COSTS. Total project costs may be allocated 
between eligible and ineligible costs using one of the following 
methods: 
(a) Unit cost method. When the unit cost method is used, costs 
for individual work items shall be prorated between eligible and 
ineligible portions of the project based on an equal cost per unit. 
(b) Project cost method. When the project cost method is used, 
eligible project costs shall be based on engineering costs plus the 
cost of construction reflected in the contractor’s billings to the 
owner. Owners using this method shall submit the contractor’s 
itemized billings showing the breakdown of eligible work items. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.09 Criteria for priority ranking. The following 
criteria shall be used by the department to rank proposed projects 
for the purpose of determining funding priority: 
(1) Dam hazard rating based on current development in the 
hydraulic shadow: 
(a) High hazard rating, 20 points; 
(b) Significant hazard rating, 10 points; or 
(c) Low hazard rating, 5 points. 
(2) Adequate land use controls currently in effect or dam to be 
abandoned: 
(a) Adequate land use controls in the hydraulic shadow, 20 
points; 
(b) Adequate land use controls in place within the 100 year 
floodplain, 10 points; 
(c) No land use controls or inadequate land use controls in 
place, 0 points; or 
(d) Dam to be abandoned, 20 points. 
(3) Financial need (add the points for each column and divide 
by 2): 
Points Applicable to 
Each Column 
*Per Capita Income, 
Per cent of State 
Average 
*Local Share of Project 
Cost Plus Current Long 
Term Non School 
Indebtedness as a Percent 
of Statutory Limitation 
Based on Equalized 
Valuation 
1 135 and over Less than 10% 
2 100 to less than 135 10% to less than 20% 
3 89 to less than 100 20% to less than 30% 
4 80 to less than 89 30% to less than 40% 
5 72 to less than 80 40% to less than 50% 
6 65 to less than 72 50% to less than 60% 
7 59 to less than 65 60% to less than 70% 
8 54 to less than 59 70% to less than 80% 
9 50 to less than 54 80% to less than 90% 
10 less than 50 90% to less than 100% 
* Based on the most recent department of revenue publication,Long Term 
Indebtedness of Wisconsin Political Subdivisions and Taxes, Aids and Shared 
Taxes and confirmation of its applicability by department investigation. 
When determining financial need points for lake districts, 
the point totals are to equal the weighted average of the income 
and indebtedness figures for the individual municipalities making 
up the district, based on the percent of the district lying 
within each municipality. 
(4) Total eligible project cost: 
(a) Total estimated project cost greater than $50,000, 10 
points; or 
(b) Total estimated project cost of $50,000 or less, 0 points. 
(5) Navigability: 
(a) Dam on navigable stream, 10 points; or 
(b) Dam on nonnavigable stream, 0 points. 
(6) Large dam: 
(a) Large dam, 10 points; or 
(b) Small dam, 0 points. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.10 Construction period. (1) All construction 
performed on an eligible project shall be completed in accordance 
with s. NR 335.12 within one year from the date of the grant award 
unless the department extends that period for good cause. If an 
extension is warranted by the circumstances and is requested in 
writing by the grantee before the end of the initial one–year 
construction period, the department may extend the construction 
period for up to 2 additional years. 
(2) If the grantee fails to comply with sub. (1), the grantee may 
not receive any further state funds and shall reimburse the department 
for any state funds already received under this chapter. The 
uncompleted portion of the project shall be considered for funding 
in the next year in which money becomes available upon submission 
of a new application in compliance with this chapter. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.11 Final project approval. After the project is 
complete and approved by the owner, the owner shall submit 3 
copies of as–constructed plans and specifications, monthly 
inspection reports prepared by the inspecting engineer on the project, 
and written certification from the owner’s engineer stating 
that the project was completed in compliance with s. 31.12 (4), 
Stats. The department shall conduct a final inspection of the project 
within 60 days after receiving the as–constructed plans and 
specifications, inspection reports, and certification. A project 
approval letter shall be sent to the owner within 30 days of final 
inspection by the department. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.12 Grant payments. The grantee shall be paid 
the state share of those eligible project costs which have prior 
department approval in the following installments: 
(1) If the dam is repaired or modified: 
(a) 50% of the state share of total eligible costs, of the engineering 
contract and the construction bids, shall be paid to the grantee, 
following 50% completion of the project, within 90 days after the 
department has received a written request and supporting documentation 
by the owner’s authorized representative. The department 
shall inspect the project, review the supporting documentation, 
and determine that the owner has expended at least 50% of 
the state share of total eligible costs and that the work meets the 
requirements of this chapter prior to making payment to the 
owner; and 
(b) If the emergency action plan and inspection, operation and 
maintenance plan are approved by the department prior to the 
completion of the project, the state share of the remaining eligible 
costs, based on the final audited project cost, shall be paid to the 
grantee within 90 days after the department has conducted a final 
audit and has determined the final audited eligible costs. A final
38 NR 335.12 WISCONSIN ADMINISTRATIVE CODE 
Unofficial Text (See Printed Volume). Current through date and Register shown on Title Page. 
Register, January, 2002, No. 553 
audit shall be conducted within 90 days after the project has been 
completed and approved by the owner and the department pursuant 
to s. NR 335.11; or 
(c) If the emergency action plan and inspection, operation and 
maintenance plan are not approved by the department prior to the 
completion of the project, the state share of the remaining eligible 
costs less 10%, based on the final audited project cost, shall be 
paid to the grantee within 90 days after the department has conducted 
a final audit and has determined the final audited eligible 
costs. A final audit shall be conducted within 90 days after the 
project has been completed and approved by the owner and the 
department pursuant to s. NR 335.11. The remaining state share 
of eligible costs shall be paid to the grantee within 60 days after 
the grantee has received approval, by the department, of an emergency 
action plan and an inspection, operation and maintenance 
plan. 
(2) If the dam is abandoned: 
(a) 50% of the state share of total eligible costs, based on the 
engineering contract and the construction bids, shall be paid to the 
grantee, following 50% completion of the project, within 90 days 
after the department has received a written request and supporting 
documentation by the owner’s authorized representative. The 
department shall inspect the project, review the supporting documentation, 
and determine that the owner has expended at least 
50% of the state share of total eligible costs and that the work 
meets the requirements of this chapter prior to making payment 
to the owner; and 
(b) The state share of the remaining eligible costs, based on the 
final audited project cost, shall be paid to the grantee within 90 
days after the department has conducted a final audit and has 
determined the final audited eligible costs. A final audit shall be 
conducted within 90 days after the project has been completed and 
approved by the owner and the department pursuant to s. NR 
335.11. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.13 Adoption of land use controls in the 
hydraulic shadow. If the grantee or the municipality responsible 
for the implementation of land use controls in the hydraulic 
shadow, or both, fail to adopt the land use controls necessary to 
secure the dam hazard rating in accordance with ch. NR 333, the 
grantee may not receive any further state funds under this chapter 
and shall reimburse the department for any state funds already 
received under this chapter. The necessary land use controls shall 
be adopted within one year after the department has approved the 
dam failure analysis submitted with the application. If adequate 
justification is received and approved by the department an extension 
of the one year deadline may be given. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91. 
NR 335.14 Grantee accountability. (1) RECORDS MANAGEMENT. 
Each grantee shall maintain an accounting system that 
accurately reflects all fiscal transactions, incorporates appropriate 
controls and safeguards, and provides good audit trails, particularly 
to source or original documents. 
(a) Accounting procedures. Financial schedules and statements 
filed with grant applications and payment requests shall be 
based on records maintained under generally accepted accounting 
principles which meet the following minimum requirements: 
1. Accounts shall separate grant receipts and eligible project 
costs from those allocable to other programs and activities. 
2. Payments received under another state or federal cost sharing 
or grant program or from another municipality or any other 
outside funding source and expenditures shall be listed in sufficient 
detail to provide a basis for accurate and complete reporting. 
3. Supporting records for all expenditures shall be itemized 
in sufficient detail to reflect the nature and propriety of each. Proof 
of payment, such as cancelled checks or receipts from vendors, 
shall be maintained. 
4. If the owner uses its own labor force, payroll records shall 
be maintained that reflect actual program hours worked by each 
employe as well as allocable gross wages and fringe benefits paid. 
Time and attendance records describing the work performed, 
specifying project hours worked by day, and both signed by the 
employe and bearing evidence of management approval, shall be 
maintained, along with computations showing hourly pay rates 
and allocation of fringe benefits. 
(b) Fiscal controls. 1. Any consultant, construction or service 
contract totalling $10,000.00 or more annually shall be covered 
by a formal contract or agreement specifying financial terms, contract 
duration, and services to be rendered. 
2. Allowable rates for use of an owner’s own equipment shall 
be limited to the county–wide rates established annually by the 
department of transportation (DOT). Eligibility of the use of specialized 
equipment for which DOT rates are not available shall be 
based on the allocable portion of depreciation plus normal and 
reasonable operation expenses attributable to project activities. 
(2) RECORDS RETENTION AND AUDITING. The grantee’s records, 
and the records of contractors and engineers which are pertinent 
to a specific state grant award, shall be subject at all reasonable 
times to inspection, copying and audit by the department for a 
period of 7 years from the date of final payment. 
History: Cr. Register, April, 1991, No. 424, eff. 5–1–91.
DAMS AND BRIDGES 31.02 
1 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
Electronic reproduction of 2007-08 Wis. Stats. database, updated and current through 2009 Act 406 and October 31, 2010. 
Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
CHAPTER 31 
REGULATION OF DAMS AND BRIDGES AFFECTING NAVIGABLE WATERS 
31.01 Definitions. 
31.02 Powers and duties of department. 
31.03 Permits for the Lower Wisconsin State Riverway. 
31.04 Permits for dams. 
31.045 Permits for dams that affect drained lands. 
31.05 Applications for permits to construct. 
31.06 Hearing. 
31.07 Applications for permits to operate and maintain existing dams. 
31.08 Hearing. 
31.09 Proposals to accompany applications. 
31.095 Water power permits, condition precedent. 
31.10 Permit not to be valued. 
31.11 Certificate of terms and forfeiture of permits. 
31.12 Map, profile and plans. 
31.13 Raising or enlarging existing dams. 
31.14 Proof of ability to maintain dams required. 
31.18 Obligations of owners of bridges and dams. 
31.185 Permits to abandon dams. 
31.187 Abandoned dams. 
31.19 Inspection of dams; orders. 
31.21 Transfer of permit. 
31.23 Forfeitures; private bridges and dams. 
31.25 Nuisances, abatement. 
31.253 Dam removal; opportunity for hearing. 
31.26 Civil liabilities. 
31.29 May employ hydraulic engineer and assistants. 
31.30 Dams on Brule River. 
31.305 Dams in the Lower Wisconsin State Riverway. 
31.307 Dam on Milwaukee River. 
31.309 Portage levee system and canal. 
31.31 Dams on nonnavigable streams. 
31.32 Dams not to injure other dams or sites. 
31.33 Jurisdiction of department. 
31.34 Flow of water regulated. 
31.35 Dams in areas leased by county; restrictions; control by circuit judge; 
when. 
31.36 Levee commissioners. 
31.38 Municipal authority to construct and maintain dams. 
31.385 Dam safety; aid program. 
31.387 Dam rehabilitation projects. 
31.39 Fees for permits, approvals and hearings. 
31.99 Parties to a violation. 
31.01 Definitions. Terms used in this chapter are defined as 
follows: 
(1) “Corporation” means a private corporation organized 
under the laws of this state. 
(2) “Department” means the department of natural resources. 
(3) “Grantee” means the person, firm, corporation or municipality 
to whom a permit is granted, and all subsequent owners of 
the grant. 
(4) “Municipality” means any town, village, city or county in 
the state. 
(5) “Navigable waters” means all waters declared navigable 
by ch. 30. 
(6) “Permit”, unless the context otherwise requires, means 
legislative permission granted under s. 31.06 to construct, operate 
and maintain a dam in or across navigable waters, or under s. 31.08 
to continue the operation and maintenance of any dam so situated 
which was constructed before such legislative permits were 
required. 
History: 1983 a. 189. 
31.02 Powers and duties of department. (1) The department, 
in the interest of public rights in navigable waters or to promote 
safety and protect life, health and property may regulate and 
control the level and flow of water in all navigable waters and may 
erect, or may order and require bench marks to be erected, upon 
which shall be designated the maximum level of water that may 
be impounded and the lowest level of water that may be maintained 
by any dam heretofore or hereafter constructed and maintained 
and which will affect the level and flow of navigable 
waters; and may by order fix a level for any body of navigable 
water below which the same shall not be lowered except as provided 
in this chapter; and shall establish and maintain gauging stations 
upon the various navigable waters of the state and shall take 
other steps necessary to determine and record the characteristics 
of such waters. 
(2) The department may investigate and determine all reasonable 
methods of construction, operation, maintenance, and equipment 
for any dam so as to conserve and protect all public rights in 
navigable waters and so as to protect life, health and property; and 
the construction, operation, maintenance and equipment, or any 
or all thereof, of dams in navigable waters shall be subject to the 
supervision of the department and to the orders and regulations of 
the department made or promulgated under this chapter. 
(3) The department or any member or any agent or employee 
thereof shall at all times be accorded free access to any and all 
parts of any dam and appurtenances constructed or maintained in 
navigable waters and may enter upon any property to investigate 
a waterway or use of water from any lake or stream. 
(4) The department may order and require any dam heretofore 
or hereafter constructed to be equipped and operated, in whole or 
part, as follows: 
(a) With slides and chutes for the passage of logs and timber 
products. 
(b) With a lock, boat hoist, marine railway or other device of 
a size and construction sufficient to accommodate navigation. 
(c) With good and sufficient fishways or fish ladders, or in lieu 
thereof the owner may be permitted to enter into an agreement 
with the department to pay for or to supply to the state of Wisconsin 
annually such quantities of game fish for stocking purposes as 
may be agreed upon by the owner and the department. 
(d) With spillways or flood gates capable of permitting the passage 
through or over the same of freshets and floods during all seasons 
of the year. 
(e) With booms, piers or other protection works ample to safeguard 
flood gates from trash or other floating material. 
(4g) The department may not impose the requirement under 
sub. (4) (c) on an owner of a dam unless all of the following apply: 
(a) The rules promulgated under sub. (4r) are in effect. 
(b) The federal government or the state implements a program 
to provide cost-sharing grants to owners of dams for equipping 
dams with fishways or fish ladders and a grant is available to the 
dam owner under the program. 
(4r) The department shall promulgate rules specifying the 
rights held by the public in navigable waters that are dammed. The 
rules shall include provisions on the rights held by the public that 
affect the placement of fishways or fish ladders in navigable 
waters that are dammed. 
(5) The department shall give written notice to the public service 
commission of any hearing under this chapter involving public 
utilities.
Updated 07-08 Wis. Stats. Database 2 
31.02 DAMS AND BRIDGES Not certified under s. 35.18 (2), stats. 
Electronic reproduction of 2007-08 Wis. Stats. database, updated and current through 2009 Act 406 and October 31, 2010. 
Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
(6) Except as provided in sub. (7m), the department may operate, 
repair and maintain the dams and dikes constructed across 
drainage ditches and streams in drainage districts, in the interest 
of drainage control, water conservation, irrigation, conservation, 
pisciculture and to provide areas suitable for the nesting and 
breeding of aquatic wild bird life and the propagation of fur-bearing 
animals. 
(7) The department shall confer with the drainage commissioners 
in each drainage district on the formation of policies for 
the operation and maintenance of the dams; in districts having no 
commissioners, the department shall confer in like manner with 
the committee appointed by the county board, if any, to represent 
either such drainage district, or in the event that the drainage district 
is dissolved, to represent the interests of the county in all matters 
whatsoever pertaining to water conservation and control 
within the area which theretofore constituted such drainage district. 
This subsection does not apply to the Duck Creek Drainage 
District. 
(7m) The drainage board for the Duck Creek Drainage District 
shall operate, repair and maintain dams, dikes and other structures 
in district drains that the board operates in the Duck Creek 
Drainage District in compliance with ch. 88 and any rules promulgated 
by the department of agriculture, trade and consumer 
protection under ch. 88. If a county drainage board fails to perform 
its duties under this subsection, the department of natural 
resources may exercise its authority under subs. (6), (8) and (9). 
(8) The department shall give careful consideration to the 
suggestions of the drainage commissioners or committee of the 
county board, but the final decision in all matters under consideration 
shall rest with the department. 
(9) So far as seems practicable, the department may designate 
or employ the drainage commissioners of any drainage district, or 
the committee of the county board above referred to, to operate the 
dams in such district or area formerly comprising a drainage district 
or perform services in the repair and maintenance of the 
dams, dykes and other works. 
History: 1999 a. 9; 2001 a. 105; 2007 a. 96. 
Cross-reference: See also chs. NR 333 and 353, Wis. adm. code. 
Ordering a riparian owner to excavate and maintain a ditch to regulate lake levels 
was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 
N.W.2d 16 (Ct. App. 1987). 
Artificial lakes and land subdivisions. Kusler, 1971 WLR 369. 
31.03 Permits for the Lower Wisconsin State Riverway. 
For activities in the Lower Wisconsin State Riverway, as 
defined in s. 30.40 (15), no person obtaining a permit under this 
chapter may start or engage in the activity for which the permit 
was issued unless the person obtains any permit that is required for 
the activity under s. 30.44 or 30.445. 
History: 1989 a. 31, 359. 
31.04 Permits for dams. Permits to construct, operate and 
maintain dams may be granted to persons, corporations or municipalities 
under this chapter. 
31.045 Permits for dams that affect drained lands. 
(1) For the construction, raising or enlarging of a dam that will 
affect the water level in a drainage district organized under ch. 88, 
no person who obtains a permit under this chapter may construct, 
raise or enlarge the dam unless the person obtains the approval of 
the drainage board with jurisdiction of the drainage district. 
(2) For the construction, raising or enlarging of a dam that will 
affect the water level in a drain, for an individual landowner, that 
is constructed under an order issued under s. 88.94, no person who 
obtains a permit under this chapter may construct, raise or enlarge 
the dam unless the person obtains the approval of the landowner. 
History: 1993 a. 456. 
31.05 Applications for permits to construct. Any person, 
firm, corporation or municipality desiring a permit to construct, 
operate and maintain a dam shall file with the department 
a written application therefor, setting forth: 
(1) The name of the navigable waters in or across which a dam 
is proposed to be constructed and a specific description of the site 
for the proposed dam. 
(2) The purpose or purposes for which the proposed dam is to 
be constructed, operated and maintained. 
(3) In case the application is for a permit to construct, operate 
and maintain a dam for a private purpose, proof satisfactory to the 
department that the applicant owns or has an enforceable option 
to purchase the described dam site and at least 65% of the land to 
be flowed, or the flowage rights on at least 65% of such land. This 
subsection shall not apply to a person who has the power of eminent 
domain. 
(4) A general description of the proposed dam, of the material 
to be used in the construction thereof, and a general description of 
all booms, piers, and other protection works to be constructed in 
connection therewith. 
(5) The approximate amount of hydraulic power that the proposed 
dam is capable of developing. 
(6) The name of the city, village or town in which the site of 
the proposed dam will be located and the name of the nearest existing 
dam above and below the site of the proposed dam. 
(7) A map on the scale of not less than one inch per 1,000 feet 
showing the lands that may be affected by the construction, operation 
or maintenance of the proposed dam, or by any flowage that 
may be caused thereby and approximately the outline of such flowage, 
which map shall indicate the ownership of each tract of land 
within the flowage. 
(8) Such additional information of any nature that may be 
required by the department. 
History: 1975 c. 349; 1993 a. 246. 
31.06 Hearing. (1) Upon receipt of an application for a permit 
under s. 31.05 the department may order a hearing or it may 
mail a notice that it will proceed on the application without public 
hearing unless a request for a public hearing is filed as provided 
in this section. The notice shall be mailed to the clerk of each 
municipality directly affected by the proposed dam. The department 
may give further or other notice as it considers proper. The 
department shall mail a copy of the notice to the applicant who 
shall cause the notice to be published in each county in which 
affected riparian lands are located as a class 1 notice, under ch. 
985. If a hearing is not requested in writing within 30 days after 
mailing of the notice, the department may waive the hearing. 
(2) (a) If a hearing is ordered, the department shall, not less 
than 10 days before such hearing, mail written notice thereof to 
each person notified under sub. (1). 
(b) The department shall require the applicant to publish a 
class 1 notice under ch. 985, of the hearing in each county in which 
affected riparian lands are located, and may require the applicant 
to mail such other notices as it deems necessary. Proof of publication 
and proof of mailing under this subsection and sub. (1) shall 
be filed with the department. 
(3) (a) At a hearing under this section, or any adjournment of 
the hearing, the department shall consider the application and take 
evidence offered by the applicant and other persons supporting or 
opposing the proposed dam. The department may require the 
amendment of the application. 
(b) If it appears that the construction, operation or maintenance 
of the proposed dam is in the public interest, considering ecological, 
aesthetic, economic and recreational values, the department 
shall so find and grant a permit to the applicant, provided the 
department also finds that the applicant has complied with s. 31.14 
(2) or (3) and, where applicable, with s. 31.05 (3), based on the 
department’s own estimate of the area of the flowage. 
(c) 1. The enjoyment of natural scenic beauty and environmental 
quality are declared to be public rights to be considered 
along with other public rights and the economic need of electric 
power for the full development of agricultural and industrial activity 
and other useful purposes in the area to be served. In consider-
DAMS AND BRIDGES 31.095 
3 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
Electronic reproduction of 2007-08 Wis. Stats. database, updated and current through 2009 Act 406 and October 31, 2010. 
Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
ing public rights to the recreational use and natural scenic beauty 
of the river, the department shall investigate the potentialities of 
the lake and lakeshore created by the flowage and shall weigh the 
recreational use and scenic beauty of the lake and lakeshore 
against the known recreational use and scenic beauty of the river 
in its natural state. The department shall further weigh the known 
recreational use and scenic beauty of the particular section of river 
involved against the known recreational use and scenic beauty of 
other sections of the same river and other rivers in the area remaining 
in their natural state without regard to plans of other dams subsequently 
filed or to be filed. 
2. The department shall deny the permit if it finds any of the 
following: 
a. It appears that the river in its natural state offers greater recreational 
facilities and scenic value for a larger number of people 
than can by proper control of the flowage level be obtained from 
the use of the lake and lakeshore and that the remaining sections 
of the river and other rivers in the area in their natural state provide 
an insufficient amount of recreational facilities and scenic beauty, 
and it further appears that the economic need of electric power is 
less than the value of the recreational and scenic beauty advantages 
of the river in its natural state. 
b. The permit will cause environmental pollution, as defined 
in s. 299.01 (4). 
(4) Not more than 20 days after receiving notice as provided 
in sub. (1) each county clerk may and upon request of the chairperson 
of the county board shall give written notice as provided in s. 
59.11 (2) of a special meeting of the county board to be held at a 
time and place set by the county clerk, not less than 2 weeks nor 
more than 3 weeks after mailing of such notice, for the purpose of 
making findings as hereinafter provided. The county clerk shall 
give notice of the time, place and purpose of such special meeting 
to the department and to the applicant, who shall cause the same 
to be published in the county, as a class 2 notice, under ch. 985, 
and the applicant shall cause a copy thereof to be mailed at least 
7 days prior to such special meeting to every person interested in 
any lands that will be affected by the proposed dam and whose 
post-office address can by due diligence be ascertained. Proof of 
such publication and notice shall be filed with the county clerk. 
At such special meeting the county board shall hear evidence 
offered by the applicant and other persons and shall find and determine 
by a majority vote of the county board members-elect 
whether the lake and lake shore created by the flowage or the river 
in its natural state offers greater recreational facilities and scenic 
beauty value for the larger number of people. The county clerk 
shall forthwith certify such finding and determination to the 
department. The jurisdiction and findings of each county board 
shall apply to that part of the proposed dam and flowage which is 
within the county. 
(5) If a hearing on the application for a permit is conducted as 
a part of a hearing under s. 293.43, the notice and hearing provisions 
in that section supersede the notice and hearing provisions 
of this section. 
History: 1971 c. 273; 1973 c. 90; 1979 c. 34 s. 2102 (39) (g); 1979 c. 221; 1983 
a. 192; 1995 a. 201, 227; 1999 a. 83. 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
31.07 Applications for permits to operate and maintain 
existing dams. Any person, firm, corporation or municipality 
desiring a permit to operate and maintain a dam constructed 
in or across navigable waters without legislative permission prior 
to July 10, 1915, shall file with the department a written application 
therefor setting forth: 
(1) The name of the navigable waters in or across which such 
dam was constructed and a specific description of the dam site. 
(2) The year in which the construction of the dam was completed, 
and a detailed description of the dam and equipment, 
including the maximum height or head of water that may be maintained 
thereby and the kind and character of material of which the 
dam is constructed. 
(3) The purpose for which the dam was theretofore operated 
and is operated at the time application hereunder is made, and the 
purpose for which it is proposed to operate and maintain the dam. 
(4) The approximate amount of hydraulic power developed 
thereby. 
(5) The name of the city, village or town in which the dam site 
is located and the name of the nearest existing dam above and 
below the dam site. 
(6) Such additional information of any nature whatsoever as 
may be required by the department. 
History: 1993 a. 246. 
31.08 Hearing. Upon receipt of an application under s. 31.07 
procedure shall be had substantially as required by s. 31.06, and 
if the department finds that such operation and maintenance does 
not materially obstruct existing navigation or violate other public 
rights and will not endanger life, health or property, a permit is 
hereby granted to the applicant, provided the department also 
finds that the applicant has complied with s. 31.14 (2) or (3). 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
31.09 Proposals to accompany applications. Each 
applicant for a permit to construct, operate and maintain a dam for 
the purpose of developing power or for the purpose of aiding in 
the development of power by other dams through the creation of 
reservoirs or otherwise, and each applicant for a permit to construct, 
operate and maintain a dam for any other purpose whatsoever, 
which is capable of developing 50 theoretical horsepower or 
more available for 50% of the time throughout the year, shall file 
with an application for a permit, in addition to the requirements of 
s. 31.05 or s. 31.07, as the case may be, the following proposals: 
(1) That the department prior to the time the permit is granted 
shall value the dam site and all flowage rights and other property 
necessary for the purposes set forth in the application for the permit, 
whether the same or any part thereof are owned by the applicant 
or not. 
(2) That the department shall audit all outlays for property and 
for the construction of the dam, buildings, and other structures and 
works constructed, maintained, and operated and used and useful 
under the permit. 
(3) That the permit, if granted, shall be granted and accepted 
subject to the express condition that the state of Wisconsin, if it 
shall have the constitutional power, or any municipality, on not 
less than one year’s notice, at any time after the expiration of 30 
years after the permit becomes effective, may acquire all of the 
property of the grantee, used and useful under the permit, by paying 
therefor, the cost of reproduction in their then existing condition 
of all dams, works, buildings, or other structures or equipment, 
used and useful under the permit, as determined by the 
department, and by paying in addition thereto the value of the dam 
site and all flowage rights and other property as determined by the 
department prior to the time the permit was granted, as provided 
in sub. (1), plus the amounts paid out for additional flowage rights, 
if any, acquired after the valuation made by the department as provided 
in sub. (1); and that the applicant waives all right to any further 
compensation. 
History: 1991 a. 316. 
31.095 Water power permits, condition precedent. 
(1) Except where the stream to be improved forms a boundary 
line between this and another state, no permit shall be granted or 
transferred in accordance with this chapter until the applicant has 
filed with both the department and the public service commission, 
in addition to all other things required by law to be filed, an agreement 
setting forth:
Updated 07-08 Wis. Stats. Database 4 
31.095 DAMS AND BRIDGES Not certified under s. 35.18 (2), stats. 
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Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
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(a) That, in the event any electric energy generated under said 
permit shall be transmitted or conveyed beyond the confines of 
this state to be there sold, the applicant will furnish to any resident 
of this state or any corporation domiciled therein electric energy 
at reasonable rates to be determined by the commission, provided 
that the commission after public hearing shall find that public convenience 
and necessity require such service. 
(b) That the rate as determined by the commission shall in no 
event exceed the rate charged by applicant for similar service supplied 
under like conditions for the energy so transmitted outside 
the state. 
(2) The commission may hold hearings, fix rates and do all 
things necessary and convenient to carry out the purposes of sub. 
(1). 
31.10 Permit not to be valued. Each and every permit is 
granted, and shall be conclusively deemed to be accepted, subject 
to the condition that no element of value whatever shall ever attach 
to or be allowed for such permit in and of itself in the sale or acquisition 
of the property used and useful under such permit or otherwise. 
31.11 Certificate of terms and forfeiture of permits. The 
department shall issue to every grantee of a permit a certificate 
evidencing a grant of the permit allowed by law. Every permit, 
and every franchise heretofore granted by the legislature, to construct, 
maintain and operate a dam shall become null and void, 
unless the dam thereby authorized be completed within 5 years 
from the time when the permit or the franchise was granted; but 
the department, for good cause, may extend such time for a period 
not exceeding 2 years. 
31.12 Map, profile and plans. (1) The grantee of a permit 
under s. 31.06, to construct, maintain and operate a dam, before 
commencing any work of construction authorized by the permit, 
shall submit to the department a complete map and profile on the 
scale of not less than one inch per 1,000 feet showing the land that 
may be affected by the construction and maintenance of the dam, 
or by any flowage that may be caused thereby, and the outline of 
the flowage, and such other hydrographic and topographic data as 
the department may prescribe, and shall also file complete 
detailed plans and specifications for the proposed dam, including 
all booms, piers, or other protection works. 
(2) The department shall examine the map, profile, plans and 
specifications; shall hear the grantee thereon and may reject the 
same or any part thereof, if unsatisfactory or incomplete, or may 
suggest and require modifications thereof. If the map, profile and 
plans and specifications are satisfactory and complete, or, if the 
same shall be modified as suggested and required, the department 
shall so find and approve the same, and thereupon the grantee may 
construct the proposed dam in accordance therewith, but the 
department may, at any time during the construction of any dam 
and in the interest of the public safety, or of any public rights in 
navigable waters, authorize, order or require such changes in the 
plans and specifications and the construction of the dam as shall 
be necessary. 
(3) If the department, in the case of an application for a permit 
to construct a dam with a capacity of less than 250 hydraulic 
horsepower at ordinary stage of water, shall find that the information 
and data furnished in the original or amended application is 
sufficient, the applicant shall not be required to furnish the additional 
or more detailed information or data specified in subs. (1) 
and (2). The department may, however, at any time during the 
construction of any such dam authorize, order or require changes 
in the construction or the method or plan of construction thereof, 
as provided in sub. (2). 
(4) Within 10 days after the completion of any dam the grantee 
shall file with the department a verified statement that the same 
was constructed in accordance with the plans and specifications 
approved by the department; or in case no plans and specifications 
were required to be filed, then that the dam was constructed in 
accordance with the description contained in the application. 
Cross-reference: See also ch. NR 353 and s. NR 335.11, Wis. adm. code. 
31.13 Raising or enlarging existing dams. (1) If the 
owner of any existing dam wishes to raise or enlarge the same, the 
owner may apply to the department for permission so to do, but 
the permission granted under this section shall be in amendment 
of any existing franchise, license, or permit previously granted 
authorizing the construction or maintenance of such dam only to 
the extent of giving the right so to raise or enlarge such dam, and 
shall in no way enlarge, alter, abridge or nullify property rights, 
privileges or obligations as to such dam, or the maintenance or 
operation thereof theretofore acquired or incurred. In addition to 
the requirements of s. 31.05 (1), (6) and (7), the owner’s application 
shall state: 
(a) The year in which the dam was completed. 
(b) If constructed by legislative permission, a statement of the 
act of the legislature authorizing the same. 
(c) A detailed description of the dam, including the maximum 
height or head of water that may be maintained thereby and the 
kind and character of material of which the same is constructed. 
(d) The purpose for which such dam has been and is now used 
and the purpose for which it is proposed to use the same. 
(e) The approximate amount of hydraulic power developed 
thereby. 
(f) Such additional information of any nature whatsoever as 
the department may require. 
(2) Upon receipt of an application under this section procedure 
shall be had substantially as required by s. 31.06; and if the 
department finds that the dam, raised or enlarged or rebuilt, or 
rebuilt, enlarged and raised in accordance with the application, 
will not materially obstruct existing navigation or violate other 
public rights, and will not endanger life, health or property, and 
that the applicant has complied with s. 31.14 (2) or (3), permission 
is hereby granted to raise or enlarge or rebuild, or rebuild, enlarge 
and raise the same in accordance with the application. 
History: 1991 a. 316. 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
31.14 Proof of ability to maintain dams required. (1) It 
is the policy of this section to preserve public rights in navigable 
waters, including those created by dams, and to provide a means 
of maintaining dams and the developments which have been made 
adjacent to the flowage of such dams. 
(2) Except as provided in sub. (3), a permit shall not be granted 
under s. 31.06, 31.08 or 31.13: 
(a) Unless the applicant furnishes to the department proof of 
ability to operate and maintain the dam in good condition, either 
by the creation of a special assessment district under ss. 31.38 and 
66.0703, or by any other means which in the department’s judgment 
will give reasonable assurance that the dam will be maintained 
for a reasonable period of time not less than 10 years; or 
(b) If a majority of the municipalities in which 51% or more 
of the dam or flowage is or will be located files with the department, 
prior to the granting of the permit, their objections to the 
granting of such permit in the form of resolutions duly adopted by 
the governing bodies of such municipalities. 
(3) Subsection (2) does not apply if the applicant complies 
with each of the following requirements: 
(a) Furnishes proof satisfactory to the department that the 
applicant owns or has an enforceable option to purchase all the 
land which is or will be flowed by the impoundment, together with 
the shoreline and an immediately adjacent strip of land at least 60 
feet in width, but the department may in a particular case permit 
a narrower strip where the 60-foot minimum is impractical and 
may, in furtherance of the policy stated in sub. (1), require ownership 
of a wider strip. 
(b) Files with the department a writing in such form as the 
department requires in which the applicant agrees that following
DAMS AND BRIDGES 31.187 
5 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
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Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
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the initial filling of the proposed pond the applicant will not convey 
the dam to another without first obtaining department 
approval. The department may require from an applicant who 
does not have the power of eminent domain a bond or other reasonable 
assurances that the applicant will adhere to such agreement. 
(c) Furnishes proof satisfactory to the department that the 
applicant has dedicated or will dedicate a parcel of land for public 
access to the impounded waters. 
(4) No person may assume ownership of a dam after October 
21, 1961, or the ownership of that specific piece of land on which 
a dam is physically located after April 27, 1982, without first complying 
with sub. (2) or (3). The transfer of the ownership of a dam 
or the ownership of a specific piece of land on which a dam is 
physically located made without complying with sub. (2) or (3) is 
void unless a permit to abandon the dam was granted under s. 
31.185 or unless the transfer occurred by operation of law. Every 
person who accepts ownership by operation of law is subject to 
this chapter. 
(5) For the purpose of implementing the policy stated in sub. 
(1), the department may by rule require all or specified classes of 
persons operating a dam for profit to create a fund or reserve to be 
used for major repairs, reconstruction or removal of the dam when 
necessary. Such rules shall prescribe the manner in which such 
fund or reserve is to be created, maintained and expended. This 
subsection shall not apply to a person who has the power of eminent 
domain. 
History: 1981 c. 246; 1991 a. 316; 1999 a. 150 s. 672. 
This section does not apply to cranberry dams. Tenpas v. DNR, 148 Wis. 2d 579, 
436 N.W.2d 297 (1989). 
31.18 Obligations of owners of bridges and dams. 
(1) The grantee of any permit, the owner of any dam constructed 
before permits were required by law, and the owner of any bridge 
at the city of Portage or at any point above that city, over the Wisconsin 
River, shall maintain and operate all such dams, slides, 
chutes, piers, booms, guide booms, weirs, tunnels, races, flumes, 
sluices, pits, fishways, locks, boat hoists, marine railways and all 
other equipment required by the department for the protection of 
public rights in such waters, and for the preservation of life, health 
and property, in good repair and condition, and shall not willfully, 
or otherwise, injure, remove or destroy the same, or any part 
thereof, unless the department shall have approved such removal 
or destruction in writing. In the event of emergency the department 
shall have power, pending investigation and hearing, to 
order the repair of any dam without notice and hearing. 
(2) The owner of any such dam shall open such slide or chute 
for the passage of any craft or material lawfully navigating the 
stream, whenever requested so to do by the person in charge of 
such navigation, without charge or toll therefor. But such owner 
shall be under no obligation to otherwise aid passage through the 
slide or chute. 
(3) Except when emergency shall require the same for the 
protection of life, health or property, no substantial alteration or 
addition shall be made to any dam heretofore or hereafter constructed 
without obtaining an order therefor from the department, 
which order may be issued only after an investigation and upon a 
finding that the proposed alterations or additions will not impair 
the sufficiency of such dam or any existing public rights in such 
waters. 
(4) The department shall in the interest of public rights in navigable 
waters, or to promote safety and protect life, health and 
property, require the grantee of any permit, under this chapter, or 
of any permit or authorization heretofore provided for by legislative 
enactment, prior to flowing any lands by the construction of 
a dam thereunder, to remove from such lands all or any portion of 
the standing and fallen timber and all or any portion of the brush. 
Provided that in cases where the application for permit proposes 
construction of a dam for water reservoir or water storage purposes, 
and not for the purpose of operating a hydroelectric generating 
plant, the nature, extent and time for such removal shall be 
determined prior to the granting of a permit, except that subsequent 
to the granting of a permit the department may make such 
modification in the removal requirements as may be in the public 
interest and which will not materially alter the economics of the 
project; and in making such original determination or any modification 
thereof the economic need for the project shall be considered. 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
31.185 Permits to abandon dams. (1) No owner of any 
dam may abandon or remove or alter the dam without first obtaining 
a permit from the department. No person may transfer ownership 
of a dam or the ownership of the specific piece of land on 
which a dam is physically located without first obtaining a permit 
from the department. 
(2) An application for a permit to abandon, remove or alter a 
dam or an application for a permit to transfer ownership of a dam 
or the ownership of a specific piece of land on which a dam is 
physically located shall be made to the department upon forms 
prescribed by it and shall contain the owner’s name and address, 
a brief description of the dam and its location and other information 
as the department requires for the purpose of enabling it to act 
on the application. 
(3) Section 31.06 governs procedure upon all applications 
hereunder. 
(4) Prior to the hearing the department shall have its staff 
make its own investigation of the dam and, on the basis of such 
investigation, shall make recommendations as to the type of 
requirements, if any, which it would impose on the applicant 
under sub. (5) as a condition to granting the permit. Such recommendations 
shall be presented at the hearing. If no one registers 
opposition to the application at the hearing, the department shall 
grant the permit, subject to such conditions as it deems necessary 
under sub. (5). If someone registers opposition to the abandonment 
at the hearing and such opposition is not withdrawn, the 
department shall defer action on the application for a period of 120 
days after the hearing. Within a reasonable time after the expiration 
of such period, the department shall deny the permit, or grant 
the permit, subject to such conditions as it imposes under sub. (5), 
unless, within such 120-day period, one or more municipalities or 
other persons or associations have agreed to acquire ownership of 
the dam and have furnished satisfactory proof of intent to comply 
with s. 31.14 (2) or (3). 
(5) As a prerequisite to the granting of a permit under this section, 
the department may require the applicant to comply with 
such conditions as it deems reasonably necessary in the particular 
case to preserve public rights in navigable waters, to promote 
safety, and to protect life, health and property. 
History: 1973 c. 90; 1981 c. 246. 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
Sub. (5) is not directed to the removal of a dam by the DNR. It creates a different 
procedure for a private party who seeks to remove a dam. Froebel v. DNR, 217 Wis. 
2d 652, 579 N.W.2d 774 (Ct. App. 1998), 97-0844. 
31.187 Abandoned dams. (1) The department may 
remove or cause to be removed, in such manner as it deems fit, old 
and abandoned dams in streams in this state, upon giving 60 days’ 
notice in writing to the owner thereof, if the owner can be found. 
If the owner of the dam is unknown or cannot, by due diligence, 
be found, the department shall publish a class 3 notice, under ch. 
985, in the county in which the dam is situated. 
(2) Whenever the department determines that the conservation 
of any species or variety of wild animals will be promoted 
thereby, the department may maintain and repair any dam located 
wholly upon lands the title to which is in the state either as proprietor 
or in trust for the people after giving due consideration to fixing 
the level and regulating the flow of the public waters. 
History: 1983 a. 27 s. 687; Stats. 1983 s. 31.187; 1991 a. 316.
Updated 07-08 Wis. Stats. Database 6 
31.187 DAMS AND BRIDGES Not certified under s. 35.18 (2), stats. 
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Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
This section, and not s. 31.185 or 283.31, governs removal of a dam by the DNR. 
There is no statutory authority to grant injunctive relief against the DNR when it 
causes damages during a dam removal. Froebel v. DNR, 217 Wis. 2d 652, 579 
N.W.2d 774 (Ct. App. 1998), 97-0844. 
31.19 Inspection of dams; orders. (1g) DEFINITIONS. In 
this section: 
(a) “High hazard dam” means a large dam the failure of which 
would probably cause loss of human life. 
(b) “Low hazard dam” means a large dam the failure of which 
would probably not cause significant property damage or loss of 
human life. 
(c) “Significant hazard dam” means a large dam the failure of 
which would probably cause significant property damage but 
would probably not cause loss of human life. 
(1m) DETERMINATION OF DAM SIZE. For the purposes of this 
section, a dam is considered to be a large dam if either of the following 
applies: 
(a) It has a structural height of 25 feet or more and impounds 
more than 15 acre-feet of water. 
(b) It has a structural height of more than 6 feet and impounds 
50 acre-feet or more of water. 
(2) LARGE DAM INSPECTION. (a) Inspection by the department. 
At least once every 10 years the department shall conduct a 
detailed inspection of each high hazard dam and each significant 
hazard dam. 
(ag) Owner responsibility. 1. Owners of each high hazard 
dam, each significant hazard dam, and each low hazard dam shall 
engage a professional engineer registered under s. 443.04 to 
inspect the dam as specified in this paragraph. 
2. An owner of a high hazard dam shall cause the dam to be 
inspected at least 4 times between each inspection conducted by 
the department under par. (a). An owner of a significant hazard 
dam shall cause the dam to be inspected at least 2 times between 
each inspection conducted by the department under par. (a). An 
owner of a low hazard dam shall cause the dam to be inspected at 
least once every 10 years. 
3. The owner of a dam required to be inspected under this 
paragraph shall submit to the department, no later than 90 days 
after the date of the inspection, a report of the results of the inspection. 
The report shall include information on any deficiencies in 
the dam, recommendations for addressing those deficiencies, and 
recommendations on improving the safety and structural integrity 
of the dam. 
(ar) Dam classification. The department shall classify each 
dam in this state as a high hazard, significant hazard, or low hazard 
dam for the purpose of this section. 
(b) Exemption for federally inspected dams. Notwithstanding 
the inspection requirements under pars. (a) and (ag), an inspection 
under par. (a) or (ag) is not required if the dam is inspected periodically 
by or under the supervision of a federal agency in a manner 
which is acceptable to the department and if the results of each 
inspection are made available to the department. 
(3) INSPECTION UPON COMPLAINT. If the department receives a 
complaint in writing from the mayor of a city, supervisor of a town 
or the president or trustee of a village which alleges that a dam 
maintained or operated in or across any navigable or nonnavigable 
waters or a reservoir is in an unsafe condition or if the department 
receives a complaint in writing from a person which alleges that 
the person’s property or any property under the person’s control 
is endangered by a dam or reservoir, the department shall investigate 
or cause an investigation to be made of the complaint. 
(4) DISCRETIONARY INSPECTION. The department may inspect 
or cause an inspection to be made of any dam or reservoir. 
(5) ORDER; REDUCTION IN WATER LEVEL. If the department 
finds pursuant to an investigation that a dam or reservoir is not sufficiently 
strong or is unsafe and that the dam or reservoir is dangerous 
to life or property, it shall determine what alterations, additions 
or repairs are necessary and shall order the owner or person 
having control of the dam or reservoir to cause those alterations, 
additions or repairs to be made within a time specified in the order. 
If the department finds pursuant to an investigation that a dam or 
reservoir is not sufficiently strong or is unsafe and that the dam or 
reservoir is dangerous to life or property, it may cause to be drawn 
off, in whole or in part, the water in the reservoir or impounded by 
the dam if it determines that this action is necessary to prevent 
impending danger to persons or property. 
History: 1975 c. 349, 421; 1983 a. 27; 1989 a. 31; 2009 a. 28. 
Cross-reference: See also ch. NR 333, Wis. adm. code. 
31.21 Transfer of permit. (1) No transfer or assignment of 
any permit granted under s. 31.06 or 31.08 shall be of any effect 
whatsoever unless it is in writing and a certified copy thereof 
within 10 days after the execution thereof, is filed with the department 
and unless such transfer or assignment is approved in writing 
by the department; and no such transfer or assignment shall be 
approved by the department except after an investigation and a 
finding that the transfer or assignment is not made or intended to 
be made for a purpose or to create a condition prohibited by s. 
196.665 and that the transferee or assignee has complied with s. 
31.14 (2) or (3). No permit shall be transferred or assigned to a 
foreign corporation, nor shall any permit granted to a municipality 
be assigned or transferred to any person, otherwise than as security 
for a loan made in good faith and concurrently with and as consideration 
for such transfer or assignment, and no foreign corporation 
shall have power to acquire title to any such permit, nor shall 
any person have power to acquire title to a permit granted to or 
acquired by a municipality, otherwise than in the enforcement of 
such security, and in no case shall any such foreign corporation 
hold title to or operate under any such permit for a period longer 
than 3 years. 
(2) No municipality shall make or execute any lease or other 
contract with any person, firm, or corporation for the sale or use 
of hydraulic or hydroelectric power developed or generated by 
such municipality under a permit granted under s. 31.06 or 31.08 
for a period longer than 10 years, unless the same shall be first 
approved by the department, after investigation and upon a finding 
that such lease or contract will not impair or interfere with the 
purpose or uses for which such dam was acquired or constructed 
by the municipality. 
Cross-reference: See also ch. NR 305, Wis. adm. code. 
31.23 Forfeitures; private bridges and dams. (1) Every 
person who constructs or maintains in navigable waters or aids in 
the construction or maintenance therein of any bridge or dam not 
authorized by law, shall forfeit for each such offense, and for each 
day that the free navigation of such waters are obstructed by such 
bridge or dam a sum not exceeding $50. 
(2) Every person or corporation violating any of the provisions 
of this chapter, other than those mentioned in sub. (1), or violating 
any order made by the department pursuant to this chapter, 
shall forfeit for each such violation not more than $1,000. 
(3) (a) There shall be no forfeiture under this section in any 
case where a bridge is built by a private citizen across any navigable 
waters having a width of 35 feet or more, providing such 
bridge does not impair the rights of the public for purposes of navigation 
or fishing. 
(b) No such bridge shall be maintained unless its construction 
shall first be approved by the department after public hearing and 
on not less than 10 days’ written notice to the applicant and to the 
county and town clerks of the county and town wherein all or a 
portion of the proposed bridge is to be located. 
(c) Each applicant who shall apply to the department for a permit 
to construct any such bridge shall state in the application the 
proposed location of the bridge, the depth of the water to be 
spanned, the materials to be used in the construction of the bridge, 
the plans of the proposed bridge, together with such other facts as 
the department may require.
DAMS AND BRIDGES 31.305 
7 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
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Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
(d) Every such bridge used by the public shall at all times be 
maintained in a safe condition by the owners of the land abutting 
the approaches of the bridge, and the owners shall make such 
repairs as are reasonably necessary therefor. The town shall not 
become liable for any damages resulting from the insufficiency or 
want of repairs of such bridge. If the department upon inspection 
finds that such bridge is in need of repairs, it shall notify the owners 
responsible for the repairs thereof, and also send a copy of such 
notice to the town board, to make all repairs as are reasonably necessary 
therefor. If such repair work as ordered by the department 
is not commenced within 60 days after receipt of such notice, the 
department may close such bridge until it is so repaired. Whenever 
any owner responsible for such bridge shall fail to repair or 
maintain the bridge in a good and safe condition, after having been 
notified so to do by the department for 60 days after such notification, 
such town board upon its own initiative may make such 
required repairs on such bridge, and the cost thereof shall be paid 
by the owners responsible therefor, and the town clerk shall enter 
such amount of the cost of repairs upon the next tax roll of the 
town. 
History: 1991 a. 316. 
Cross-reference: See also chs. NR 301, 305, and 320, Wis. adm. code. 
Sub. (1) provides no substantive rule for which a violation would initiate the abatement 
procedures under s. 31.25. The remedy provided is limited to the forfeiture provided 
under sub. (1). Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis. 2d 838, 
203 N.W.2d 369 (1973). 
31.25 Nuisances, abatement. Every dam, bridge or other 
obstruction constructed or maintained in or over any navigable 
waters of this state in violation of this chapter, and every dam not 
furnished with a slide, chute or other equipment prescribed by the 
department, is hereby declared to be a public nuisance, and the 
construction thereof may be enjoined and the maintenance thereof 
may be abated by action at the suit of the state or any citizen 
thereof. 
Section 31.23 (1) provides no substantive rule for which a violation would initiate 
the abatement procedures under this section. Capt. Soma Boat Line, Inc. v. Wisconsin 
Dells, 56 Wis. 2d 838, 203 N.W.2d 369 (1973). 
31.253 Dam removal; opportunity for hearing. 
(1) OPPORTUNITY FOR HEARING PRIOR TO DEPARTMENT ACTION. 
Except as provided under sub. (4), prior to seeking or causing the 
removal of a dam under this chapter, the department shall hold a 
public informational hearing on the proposed removal or publish 
a class 2 notice under ch. 985 stating that it will seek or cause the 
removal of the dam without holding a public informational hearing 
unless a hearing is requested in writing within 30 days after the 
last publication of the notice. The department may hold further 
hearings or give further notice as it deems appropriate. 
(2) OPPORTUNITY FOR HEARING PRIOR TO COURT ACTION. 
Except as provided under sub. (4), a court may not order or authorize 
the removal of a dam in an enforcement action under this 
chapter unless a public informational hearing or an opportunity 
for a public informational hearing was provided. 
(3) PUBLIC INFORMATIONAL HEARING. If the department conducts 
a public informational hearing under this section, the department 
shall explain the basis for its decision to seek or cause the 
removal of the dam, the procedures which will be followed and 
opportunities for citizen involvement in those procedures and the 
department shall provide an opportunity for citizens to present 
comments, testimony and evidence concerning the removal of the 
dam. Notwithstanding s. 227.42, this hearing may not be converted 
or treated as a contested case. 
(4) EXCEPTIONS. (a) This section does not apply if the department 
or a court determines that a dam constitutes an immediate 
and significant hazard to persons or property. 
(b) This section does not apply to an application under s. 
31.185 or departmental action under s. 31.185. 
History: 1983 a. 507; 1985 a. 182 s. 57. 
31.26 Civil liabilities. (1) The owner of any dam or of any 
privately owned bridge across the Wisconsin River or the Black 
River or any of their tributaries shall be liable for all damages 
occasioned to property by a failure to provide such dam or bridge 
with slides, booms and chutes as required by s. 31.18 (1). The person 
or party suffering any such damage shall have a lien upon the 
dam and all mills, machinery and appurtenances of such owner 
erected thereon, or served with water thereby, and on the lands 
adjoining, not exceeding 40 acres; or, as the case may be, a lien 
upon such bridge and its approaches. 
(2) The claimant of such lien shall file a notice thereof in writing 
in the office of the clerk of the circuit court of the county in 
which the dam or bridge is located within 60 days after sustaining 
such damages and shall commence an action to enforce the lien 
within 6 months after filing such notice. Such lien shall accrue 
upon the filing of such notice and failure to file the same or to commence 
such action within the times specified therefor respectively 
shall operate as a waiver of the lien. Judgment for the plaintiff for 
the recovery of damages and declaring such lien may be enforced 
by an execution sale of the property affected as in ordinary actions 
at law, and upon such sale all rights to maintain such dam or bridge 
shall pass to the purchaser. 
(3) In case of any personal injury by reason of any such 
neglect or failure the damages sustained thereby may be recovered 
and a lien and judgment enforced in like manner; and if death 
results an action may be maintained by the representatives of the 
deceased in the manner provided in other cases of death resulting 
from negligence or wrong. 
(4) No common law liability, and no statutory liability provided 
elsewhere in these statutes, for damage resulting from or 
growing out of the construction, maintenance or operation of any 
dam is released, superseded, or in any manner affected by the provisions 
of this chapter; and this chapter creates no liability on the 
part of the state for any such damages. 
31.29 May employ hydraulic engineer and assistants. 
The department may employ and fix the salaries of a competent 
hydraulic engineer and other assistants necessary to carry out the 
provisions of this chapter. 
31.30 Dams on Brule River. It is declared to be the policy 
of the state to prohibit forever the building or maintaining of any 
dam or dams across the Brule River or any of its tributaries in 
Douglas County, except that a dam with an adequate fishway may 
be constructed across said Brule River at each of the 3 sites hereinafter 
described, or at such other sites as are selected by the department 
in place of any or all of the sites hereinafter mentioned, the 
purpose of which shall be to provide a method whereby fish 
declared to be undesirable for said stream by the department may 
be eliminated or prevented from ascending the stream, and to permit 
said stream to be developed for trout in different stretches 
thereof: site No. 1 known as Clevedon site in the southeast quarter 
of the northwest quarter of section 10, township 49 north, range 
10 west; site No. 2 known as the Old Mill site in the northwest 
quarter of the southeast quarter, section 11, township 47 north, 
range 10 west; and site No. 3, known as the Upper or Rock dam 
site in the northeast quarter of the southeast quarter of section 22, 
township 47 north, range 10 west; and all rights, privileges, and 
franchises granted prior to June 26, 1905, to any person or corporation 
to improve said Brule River or any of its tributaries in said 
county for any purpose whatever, are repealed and annulled. No 
domestic corporation organized subsequent to such date shall 
exercise any of the powers or privileges authorized or conferred 
by ss. 180.15 to 180.18, 1925 stats., in, across or along said river 
or any of its tributaries in Douglas County. 
Cross-reference: See s. 30.25 for similar prohibition of dams on the Wolf River. 
31.305 Dams in the Lower Wisconsin State Riverway. 
No dam may be constructed in the lower Wisconsin River as 
defined in s. 30.40 (14). 
History: 1989 a. 31.
Updated 07-08 Wis. Stats. Database 8 
31.307 DAMS AND BRIDGES Not certified under s. 35.18 (2), stats. 
Electronic reproduction of 2007-08 Wis. Stats. database, updated and current through 2009 Act 406 and October 31, 2010. 
Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
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31.307 Dam on Milwaukee River. (1) The department 
shall conduct, or shall cause to be conducted, an environmental 
and engineering study concerning the removal of the North Avenue 
dam in the city of Milwaukee from the Milwaukee River. 
(3) Upon completion of the study under sub. (1), the city of 
Milwaukee may apply for a permit to abandon the dam under s. 
31.185 or the department may proceed under ss. 31.187 and 
31.253 to cause the removal of the dam. 
(4) For purposes of s. 30.92 (4) (b) 6., moneys expended from 
the appropriation under s. 20.370 (5) (cq) for the study under sub. 
(1) shall be considered as amounts expended for projects considered 
necessary without regard to location. 
History: 1991 a. 39; 1995 a. 27. 
31.309 Portage levee system and canal. (1) CITY OF 
PORTAGE LEVEE. (a) The department shall provide a grant in the 
1995-97 fiscal biennium from the appropriation under s. 20.370 
(5) (cq) to the city of Portage for the amount necessary for the renovation 
and repair of the city of Portage levee in the Portage levee 
system. The grant under this paragraph may not exceed $800,000 
in fiscal year 1995-96 and $800,000 in fiscal year 1996-97. 
(ag) The department shall provide a grant of $350,000 in fiscal 
year 2001-2002 and a grant of $350,000 in fiscal year 2002-2003 
from the appropriation under s. 20.370 (5) (cq) to the city of Portage 
for the renovation and repair of the Portage canal. 
(am) The city of Portage may use any amounts from the grant 
awarded under par. (a) for the renovation and repair of the Portage 
canal. 
(b) When the department determines that the renovation and 
repair described under par. (a) are complete, the city of Portage 
shall assume the maintenance of the city of Portage levee in the 
Portage levee system in a manner that will best protect the surrounding 
area from the overflow of the Wisconsin River. 
(2) LEWISTON AND CALEDONIA LEVEES. (a) The department 
shall maintain the Lewiston and Caledonia levees in the Portage 
levee system in a manner that will best protect the surrounding 
area from the overflow of the Wisconsin River. 
(b) The department may expend in fiscal year 1995-96, from 
the appropriation under s. 20.370 (5) (cq), up to $400,000 for a 
study concerning the future of strengthening and maintaining the 
Lewiston and Caledonia levees in the Portage levee system. The 
study shall include a management plan for these 2 levees. 
History: 1995 a. 27 ss. 1698, 1699, 1702 to 1706; Stats. 1995 s. 31.309; 1999 a. 
9; 2001 a. 16. 
31.31 Dams on nonnavigable streams. Any person may 
erect and maintain upon that person’s land, and, with the consent 
of the owner, upon the land of another, a water mill and a dam to 
raise water for working it upon and across any stream that is not 
navigable in fact for any purpose whatsoever upon the terms and 
conditions and subject to the regulations hereinafter expressed; 
and every municipality may exercise the same rights upon and 
across such streams that they may exercise upon or across streams 
navigable for any purpose whatsoever. 
History: 1991 a. 316. 
31.32 Dams not to injure other dams or sites. No such 
dam shall be erected to the injury of any mill lawfully existing, 
either above or below it on the same stream; nor to the injury of 
any mill site on the same stream on which a mill or milldam shall 
have been lawfully erected and used or is in the process of erection, 
unless the right to maintain a mill on such last-mentioned site 
shall have been lost or defeated by abandonment or otherwise; nor 
to the injury of any such mill site which has been occupied as such 
by the owner thereof, if such owner, within a reasonable time after 
commencing such occupation, completes and puts in operation a 
mill for the working of which the water of such stream shall be 
applied. 
31.33 Jurisdiction of department. (1) DAMS HERETOFORE 
OR HEREAFTER CONSTRUCTED; ACTION FOR DAMAGES. All mills and 
milldams lawfully erected or constructed, on streams not navigable 
at the time, under chapter 48, territorial laws of 1840, chapter 
62, laws of 1857, ch. 56, R.S. 1858, ch. 146, R.S. 1878, ch. 146, 
R.S. 1898, ch. 146, 1911 stats., ch. 146, 1913 stats., or ch. 146, 
1915 stats., or any special, private or local act, or under any other 
act whatsoever, that are not now abandoned but are still in existence 
and use, and all dams heretofore or hereafter erected or constructed 
on streams not navigable in fact for any purpose, shall be 
subject to and regulated and controlled, so far as applicable, by ss. 
31.02, 31.12, 31.18, 31.19, 31.25, 31.26 and 196.665, except that 
those sections do not prevent the owner of any land flooded or 
otherwise injured by any milldam from recovering by action at 
law, full compensation for all damages resulting to him or her in 
times past and that will result to him or her in the future in consequence 
of that flooding and injury but no damages suffered more 
than 3 years before the commencement of the action shall be 
recovered. The amount recovered constitutes a first lien upon the 
milldam and upon the mill, if any, and the lien may be enforced 
by execution sale of the property affected. In every such action 
the amount paid or secured to be paid under prior laws as damages 
shall be considered and proper allowance made therefor. The 
authority granted under this subsection to bring the action does not 
preclude the owner from proceeding under ch. 32. The owner may 
not exercise his or her option to bring the action after condemnation 
proceedings have been commenced against his or her property 
under ch. 32. 
(2) LICENSE. A license is granted to each owner of any such 
milldam now in existence and use, and to each owner of any such 
milldam hereafter constructed, to maintain and use the same to 
operate mills or machinery, or for any other lawful private or public 
purpose, but subject, however, to the supervision of the department 
acting under ss. 31.02, 31.12, 31.18, 31.19, 31.25, 31.26 and 
196.665. The right created by the license shall follow the title to 
the milldam and a conveyance of the latter shall transfer the right 
to the grantee. 
(3) INTERPRETATION. Whenever ss. 31.02, 31.12, 31.18, 31.19, 
31.25, 31.26 and 196.665 are applied to mills or milldams specified 
in sub. (1) every reference in any of them to a “permit” or to 
a “grantee” of a permit shall be regarded as referring respectively 
to a license granted by this section and to the owner of such a mill 
or milldam. 
(4) HEIGHT. The height to which water may be raised by any 
such milldam and the length or period of time for which it may be 
kept up each year, may be restricted and regulated by the orders 
of the department. 
(5) VIOLATION OF ORDERS, PENALTIES. Every person, firm or 
corporation violating any of the orders respecting any such mill or 
milldam made by the department shall forfeit for each such violation 
a sum not exceeding $500 which may be recovered by civil 
action as provided by ch. 778. 
History: 1979 c. 32 s. 92 (8); 1981 c. 390; 1989 a. 31. 
Cross-reference: See also ch. NR 333, Wis. adm. code. 
This section applies to nonnavigable artificial waterways insofar as is necessary 
to protect navigable waters and owners of flooded waters. 63 Atty. Gen. 493. 
Wisconsin’s Milldam Act: Drawing New Lesson’s From Old Law. Martini. 1998 
WLR 1305. 
31.34 Flow of water regulated. Each person, firm or corporation 
maintaining a dam on any navigable stream shall pass at all 
times at least 25% of the natural low flow of water of such stream, 
except as otherwise provided by law. This section, however, shall 
not apply to a plant or dam where the water is discharged directly 
into a lake, mill pond, storage pond or cranberry marsh, nor shall 
it apply to cases where in the opinion of the department such minimum 
discharge is not necessary for the protection of fish life. Any 
person, firm or corporation violating this section shall be fined not 
less than $50 nor more than $1,000. 
31.35 Dams in areas leased by county; restrictions; 
control by circuit judge; when. (1) Dams controlling the 
water elevations in areas covered by leases made under s. 59.01 
shall be operated in such manner as not to divert waters or with-
DAMS AND BRIDGES 31.385 
9 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
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under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
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hold from any cranberry reservoir to the damage of any cranberry 
marsh now served or dependent upon such water supply or to any 
crops or works therein. 
(2) The circuit court for the county where the leased lands are 
located shall, upon petition and proof that any cranberry marsh or 
crops or works thereon are endangered or likely to be damaged by 
the operation of any dam or water control, make a summary order 
for the release, impounding or control of the waters affected by the 
dam or dams, to be and remain in force until dissolved by due 
notice and hearing. 
History: 1977 c. 449. 
31.36 Levee commissioners. (1) The right-of-way for 
such levees, if any additional are found necessary, shall be furnished 
by the municipalities in which they are located, and no construction 
work shall be begun until such rights-of-way are provided. 
(2) Whenever levee commissioners under either general or 
special act are charged with the expenditure of money appropriated 
by the state or by any municipality for the construction, 
extension, improvement or repair of any levee or breakwater 
along the shore or bank of a river, stream or lake, s. 31.38 shall 
apply for the purpose of acquisition and condemnation of lands for 
such purposes and such commissioners have all the powers conferred 
by s. 31.38 for these purposes. Condemnations shall comply 
with s. 66.0703, so far as applicable. Commissioners may procure 
by condemnation lands for right-of-way, earth material, 
borrow pits, quarry, timber and brush privileges as they may, in 
their judgment, deem necessary for such purposes. 
(3) Whenever said levee commissioners are not vested with 
power to buy rights-of-way, earth material, borrow pits, quarry, 
timber and brush privileges from money appropriated by the state 
they may receive from any person or municipality donations of 
land and moneys to pay for lands and privileges condemned hereunder 
and for the expenses of such condemnation proceedings. 
(14) This section does not modify or repeal s. 31.35. 
History: 1993 a. 490; 1995 a. 27; 1999 a. 150 s. 672. 
31.38 Municipal authority to construct and maintain 
dams. (1) Every municipality may, subject to this chapter, 
authorize the acquisition, construction, maintenance or repair of 
dams across any lake or stream adjoining or within the limits of 
such municipality, and may locate such dam within or without 
such limits. 
(2) Whenever it is deemed necessary to acquire, construct, 
maintain or repair any such dam, a plan therefor, with specifications 
and cost estimates, shall be prepared and presented to the 
governing body of the municipality for adoption. Cost estimates 
may include the estimated cost of maintenance for a period of 
years. When adopted by the governing body, the plan shall, where 
required, be submitted to the department or proper officer of the 
United States for approval. No work shall be done in pursuance 
of such plan until it has been so approved. 
(3) For the purpose of this section, a municipality may purchase 
or condemn lands within and, when necessary, without its 
limits in order to protect any property situated within such limits. 
(4) The municipality shall proceed in accordance with s. 
66.0703 to make special assessments to property on account of 
benefits resulting to the property from the improvement mentioned 
in sub. (2) or from the acquisition and maintenance of a 
dam. If the excess of benefits over damages accruing to property 
within the assessment district is not sufficient to pay the cost of the 
improvement, the municipality may pay the balance, either out of 
its general fund or out of any special fund created for that purpose. 
The municipality may issue its negotiable bonds, as provided in 
ch. 67, to pay for such improvement. The department upon request 
of a municipality shall assist in engineering, surveying and determination 
of charges necessary in establishing special assessment 
districts under this section, cost of which shall be advanced by the 
requesting municipality and later charged against the various parcels 
of the special assessment district in direct proportion to the 
assessed benefits of each parcel in the district. 
(5) Whenever 2 or more municipalities propose to cooperate 
in acquiring, constructing, maintaining or repairing a dam, their 
governing bodies shall first meet and adopt a method of proceeding 
and a plan of apportioning to each its share of the entire cost. 
Such method of proceeding and plan of apportionment shall be 
embodied in a resolution adopted by the governing bodies of the 
cooperating municipalities acting jointly and later such resolution 
shall be adopted by each of the governing bodies acting separately. 
(6) Whenever a county or town acts under this section, the references 
in s. 66.0703 to a city or village or clerk thereof mean the 
county or town or clerk thereof, as the case may be. 
History: 1999 a. 150 s. 672. 
31.385 Dam safety; aid program. (1b) In this section 
“dam safety project” means the maintenance, repair, modification, 
abandonment or removal of a dam to increase its safety or any 
other activity that will increase the safety of a dam. 
(1m) The department shall promulgate the rules necessary to 
administer a financial assistance program for dam safety projects 
under which financial assistance shall be provided as follows: 
(a) To municipalities and public inland lake protection and 
rehabilitation districts for any type of dam safety projects. 
(b) To private owners for the removal of dams. 
(c) To any persons for the removal of abandoned dams. 
(2) The following standards shall apply to financial assistance 
under this section for dam safety projects: 
(a) 1. Except as provided in subd. 2., financial assistance for 
a dam safety project is limited to the sum of the following: 
a. No more than 50% of the first $400,000 of costs of the project. 
b. No more than 25 percent of the costs of the project that 
exceed $400,000. 
2. A project to remove a dam shall not be subject to the cost 
limits under subd. 1. 
3. Financial assistance is limited to no more than $400,000 for 
each dam safety project. 
(ag) Of the amounts appropriated under s. 20.866 (2) (tL) and 
(tx), at least $250,000 shall be used for projects to remove dams. 
A project to remove a dam may include restoring the stream or 
river that was dammed. 
(ar) Of the amounts appropriated under s. 20.866 (2) (tL) and 
(tx), at least $100,000 shall be used for the removal of abandoned 
dams. The amounts required to be used under this paragraph are 
in addition to the amounts required to be used for the removal of 
dams under par. (ag). 
(b) The department shall determine which projects shall 
receive funding priority. 
(bm) The department may provide financial assistance for an 
activity other than the maintenance, repair, modification, abandonment 
or removal of the dam only if the cost of that activity will 
be less than the cost of the maintenance, repair, modification or 
removal of the dam. 
(c) No financial assistance may be provided under this section 
for a dam safety project unless at least one of the following 
applies: 
1. The department conducts an investigation or inspection of 
the dam under this chapter and the owner of the dam requests 
financial assistance under this section within 6 months after having 
received department directives, based on the department’s 
investigation or inspection of the dam, for the repair, modification 
or abandonment and removal of the dam or for another activity to 
increase the safety of the dam. 
2. The municipality, public inland lake protection and rehabilitation 
district or other person applying for state financial assis-
Updated 07-08 Wis. Stats. Database 10 
31.385 DAMS AND BRIDGES Not certified under s. 35.18 (2), stats. 
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under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
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tance under this section has received directives from the department 
or is under order by the department to maintain, repair, 
modify, abandon or remove a dam on August 9, 1989. 
(d) The financial assistance shall be paid from the appropriations 
under s. 20.866 (2) (tL) and (tx), except as provided in 1991 
Wisconsin Act 39, section 9142 (10d). 
(3) The department shall provide municipalities, public inland 
lake protection and rehabilitation districts and other persons 
receiving state financial assistance under this section with technical 
assistance for dam safety projects under this section. The 
department shall coordinate the financial assistance program 
under this section with other related state and federal programs. 
(4) (a) The department shall maintain an inventory of all dams 
in the state that require a dam safety project under this section. 
The inventory shall list the dam safety projects in the chronological 
order in which they are required to be undertaken. For each 
dam safety project on the inventory, the department shall include 
a statement of which parts of the dam safety project are required 
to protect the rights held by the public in the navigable waters contained 
by the dam. 
(b) The department shall provide notice to the owner of a dam 
that is included in the inventory. The department shall by rule 
establish a notice and hearing process for a dam owner to object 
to the inclusion of the owner’s dam on the list. The department 
shall use this notice and hearing each time a dam is included in the 
inventory. The process shall include a public hearing in the city, 
village or town in which the dam is located, a public comment 
period, and an appeals process. 
(5) Notwithstanding the limitations under sub. (2) (a) and the 
funding allocation requirements under sub. (2) (ag) and (ar), the 
department shall provide financial assistance to the village of 
Cazenovia in the amount necessary for a dam safety project to 
repair a dam that is located in the portion of the village that is in 
Richland County. The amount of the financial assistance may not 
exceed $250,000. The village need not contribute to the repair 
costs, and sub. (2) (c) does not apply to this dam safety project. 
The repair of this dam need not be included as a dam safety project 
under the inventory maintained by the department under sub. (4) 
for the village to receive financial assistance under this section. 
(6) (a) Notwithstanding the limitations under sub. (2) (a) and 
the funding allocation requirements under sub. (2) (ag) and (ar), 
the department shall provide financial assistance to all of the following: 
1. Adams County for a dam safety project for Easton Dam in 
the amount necessary for the project, but not to exceed $150,000. 
2. The city of Stanley for a dam safety project for Stanley Dam 
in the amount necessary for the project, but not to exceed 
$150,000. 
3. The city of Montello for a dam safety project for Montello 
Dam, in the amount necessary for the project, but not to exceed 
$150,000. 
4. Eau Claire County for dam safety projects for Lake Altoona 
Dam, for Lake Eau Claire Dam, and for a dam located in Coon 
Fork Lake County Park, in the amount necessary for the projects, 
but not to exceed $27,000. 
(b) The counties and cities need not contribute to the costs of 
the dam safety projects under par. (a) 1. to 4., and sub. (2) (c) does 
not apply to these projects. The dam safety projects under par. (a) 
1. to 4. need not be included as dam safety projects under the 
inventory maintained by the department under sub. (4) in order to 
receive financial assistance under this subsection. 
History: 1989 a. 31, 336; 1991 a. 39; 1993 a. 16; 1997 a. 27; 1999 a. 9, 185; 2001 
a. 16; 2007 a. 97; 2009 a. 28. 
Cross-reference: See also chs. NR 335 and 336, Wis. adm. code. 
31.387 Dam rehabilitation projects. The department shall 
establish and administer a grant program under which the department 
shall provide grants to counties to rehabilitate dams located 
in those counties. The department may only provide a grant for 
a project under this section to match federal funds provided for the 
project under the federal Watershed Protection and Flood Prevention 
Act of 1953 (Public Law 83-566). 
History: 2001 a. 16. 
31.39 Fees for permits, approvals and hearings. 
(1) FEES REQUIRED. The department shall charge a permit or 
approval fee for carrying out its duties and responsibilities under 
ss. 31.02 to 31.185 and 31.33 to 31.38. The permit or approval fee 
shall accompany the permit application or request for approval. 
(2) AMOUNT OF FEES. (a) For fees charged for permits and 
approvals under ss. 31.02 to 31.185 and 31.33 to 31.38, the department 
shall classify the types of permits and approvals based on the 
estimated time spent by the department in reviewing, investigating 
and making determinations whether to grant the permits or 
approvals. The department shall then set the fees as follows: 
1. For a permit or approval with an estimated time of less than 
3 hours, the fee shall be $30. 
2. For a permit or approval with an estimated time of more 
than 3 hours but less than 9 hours, the fee shall be $100. 
3. For a permit or approval with an estimated time of more 
than 9 hours, the fee shall be $300. 
(b) For conducting a hearing on an application for which notice 
is provided under s. 31.06 (1), the person requesting the hearing 
for the permit or approval shall pay a fee of $25. 
(2m) ADJUSTMENTS IN FEES. (a) The department shall refund 
a permit or approval fee if the applicant requests a refund before 
the department determines that the application for the permit or 
approval is complete. The department may not refund a permit or 
approval fee after the department determines that the application 
is complete. 
(b) If the applicant applies for a permit or requests an approval 
after the project is begun or after it is completed, the department 
shall charge an amount equal to twice the amount of the fee that 
it would have charged under this section. 
(c) If more than one fee under sub. (2) (a) or s. 30.28 (2) (a) or 
281.22 is applicable to a project, the department shall charge only 
the highest fee of those that are applicable. 
(d) The department, by rule, may increase any fee specified in 
sub. (2). 
(2r) FEE FOR EXPEDITED SERVICE. (a) The department, by rule, 
may charge a supplemental fee for a permit or approval that is in 
addition to the fee charged under this section if all of the following 
apply: 
1. The applicant requests in writing that the permit or 
approval be issued within a time period that is shorter than the time 
limit promulgated under par. (b) for that type of permit or 
approval. 
2. The department verifies that it will be able to comply with 
the request. 
(b) If the department promulgates a rule under par. (a), the rule 
shall contain a time limit for each type of permit or approval classified 
under sub. (2) (a) for determining whether the department will 
grant the permit or approval. 
(3) EXEMPTIONS. This section does not apply to any federal 
agency or state agency. 
History: 1977 c. 29; 1979 c. 221; 1981 c. 346; 1989 a. 31, 324; 1995 a. 27, 227; 
1997 a. 27. 
Cross-reference: See also ch. NR 300, Wis. adm. code. 
31.99 Parties to a violation. (1) Whoever is concerned in 
the commission of a violation of this chapter for which a forfeiture 
is imposed is a principal and may be charged with and convicted 
of the violation although he or she did not directly commit it and 
although the person who directly committed it has not been convicted 
of the violation. 
(2) A person is concerned in the commission of the violation 
if the person: 
(a) Directly commits the violation; 
(b) Aids and abets the commission of it; or
DAMS AND BRIDGES 31.99 
11 Updated 07-08 Wis. Stats. Database 
Not certified under s. 35.18 (2), stats. 
Electronic reproduction of 2007-08 Wis. Stats. database, updated and current through 2009 Act 406 and October 31, 2010. 
Text from the 2007-08 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified 
under s. 35.18 (2), stats. Statutory changes effective prior to 11-2-10 are printed as if currently in effect. Statutory changes 
effective on or after 11-2-10 are designated by NOTES. Report errors at (608) 266-3561, FAX 264-6948, http://www.legis.
state.wi.us/rsb/stats.html 
(c) Is a party to a conspiracy with another to commit it or 
advises, hires or counsels or otherwise procures another to commit 
it. 
History: 1975 c. 365.
ARTICLE 3 - RESERVOIRS 
41-3-301. Application for reservoir construction permit; contents; 
procedure. 
(a) Any person, corporation, association, or organization, of 
any nature whatsoever, hereafter intending to store or impound, for 
beneficial uses, any of the unappropriated waters of the state of 
Wyoming, shall, before commencing construction of any works for such 
purpose, or performing any work in connection with said proposed 
construction, make an application to the state engineer, for a permit 
to construct a reservoir. The application must set forth the name and 
post office address of the applicant; the source of the water supply; 
the nature of the proposed use; the location and description of the 
proposed work; the time within which it is proposed to begin 
construction, and the time required for the completion of 
construction. Maps and plans shall conform with the provisions of 
W.S. 41-4-510. In case of reservoirs where the storage is for stock 
purposes only and the capacity does not exceed twenty (20) acre-feet 
and the height of dam does not exceed twenty (20) feet, the state 
engineer may issue a permit without the filing of a map; however the 
state engineer may require certain information be submitted on 
special forms to be furnished or designated by him. Any violation of 
subsection (a) of this section shall be punishable pursuant to W.S. 
41-3-616 with the exception that the owner of any unpermitted 
reservoir with a capacity of twenty (20) acre-feet or less and a dam 
height of twenty (20) feet or less shall have forty-five (45) days 
after receipt of the written notice of violation pursuant to W.S. 41- 
3-616(a), to submit an application for a permit. The application 
shall meet the requirements of the state engineer's office. Each day 
of the forty-five (45) days shall not be counted as a separate 
violation if the application for a reservoir permit is received 
during this forty-five (45) day period. 
(b) For reservoir permits issued in conjunction with the 
national pollutant discharge elimination system (NPDES) for mining 
operations, the state engineer shall promptly review the application 
and advise the applicant in writing if it is complete, within thirty 
(30) days. If the application is complete, or is resubmitted to the 
satisfaction of the state engineer, it shall be approved or denied 
within forty-five (45) days of this determination: 
(i) For the purpose of this subsection "complete" means 
that the application contains all the essential and necessary 
elements and is acceptable for further review for substance and 
compliance with the provisions of this chapter. 
41-3-302. Application for construction permit; conditions; secondary 
permit; certificate of appropriation. 
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 All applications under this article shall be subject to the 
provisions of W.S. 41-4-502 through 41-4-510, 41-4-517 and 41-3-615, 
which set forth the duties and authority of the state engineer and 
provide for the protection of the rights of applicants; provided that 
an enumeration of any lands proposed to be irrigated under this 
article shall not be required in the primary permit, provided, 
further, that any party or parties desiring to appropriate such 
stored water to particular lands may file with the state engineer an 
application for permit to be known herein as the secondary permit, in 
compliance with the provisions of W.S. 41-4-501 through 41-4-510 and 
41-4-517. In the event secondary permit may be desired, said 
application shall refer to such reservoir for a supply of water and 
the state engineer shall not approve of said application and issue 
secondary permit until the applicant thereunder shall show to such 
state engineer by documentary evidence that he has entered into an 
agreement with the owners of the reservoir for a permanent and 
sufficient interest in said reservoir to impound enough water for the 
purposes set forth in said application. When beneficial use has been 
completed and perfected under the said secondary permit the division 
superintendent shall take the proof of the water user under such 
permit and the final certificate of appropriations shall refer to 
both the ditch described in the secondary permit and the reservoir 
described in the primary permit. 
41-3-303. Use of stored water. 
The use of water stored under the provisions of this chapter may be 
acquired under such terms as shall be agreed upon by and between the 
parties in interest. Lands entitled to the use of water in any 
reservoir may use the water stored therein, and to which they are 
entitled, at such times and in such amounts as the water users may 
elect, provided that a beneficial use of water is made at all times. 
41-3-304. Use of bed of stream. 
Whenever the owner, manager or lessee of a reservoir, constructed 
under the provisions of this act, shall desire the use of the bed of 
the stream, or other water course, for the purpose of carrying stored 
or impounded water from the reservoir to the consumer, or shall 
desire the use of any ditch to carry, convey or transmit any of the 
stored or impounded water for the benefit of any person having the 
right to have the reservoir water carried, conveyed or transmitted 
through the ditch under the laws of this state, he shall, in writing 
notify the water commissioner of the district in which the stored or 
impounded water is to be used, giving the date when it is proposed to 
discharge water from the reservoir, its volume in acre feet and the 
names of all persons and ditches entitled to its use, and other 
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matters as may be necessary to properly distribute the water. It 
shall then be the duty of the water commissioner to so adjust the 
headgates of all ditches of ditch companies or appropriators from the 
stream or water course, and the division boxes of individual 
consumers of water, not entitled to the use of the stored water, as 
will enable those having the right to secure the volume of water to 
which they are entitled. The commissioner shall not in any other 
manner interfere with the headgates or division boxes, except as 
otherwise provided by law. The water commissioner shall keep a true 
and just account of the time spent by him in the discharge of his 
duties as defined in this section, and it shall be the duty of the 
water commissioner or division superintendent to present a bill of 
one-half (1/2) the expense so incurred to the reservoir owner, 
manager or lessee, and if the owner, manager, or lessee shall neglect 
for three (3) days, after the presentation of the bills of costs, to 
pay the costs, the costs shall be made a charge upon the reservoir 
and shall be collected as delinquent taxes until the complete payment 
of the bill of costs has been made. Costs recovered under this 
section shall be paid into the general fund. 
41-3-305. Direct flow storage. 
The holder or owner of an adjudicated water right to the direct use 
of the natural unstored flow of any surface stream of the state may 
store such direct flow so long as no other Wyoming appropriator or 
user is injured or affected thereby. Prior to the commencement of the 
storage of water under a direct flow water right, the appropriator 
shall submit a request for such storage in writing to the state 
engineer and shall obtain the approval of the state board of control. 
The state board of control may permit storage at any time so long as 
there is no interference with existing water rights or uses. The 
state engineer is authorized and empowered to prescribe such rules 
and regulations as may be necessary or desirable to enable him to 
effectively administer the provisions of this section. 
41-3-306. Instream stock use. 
In the administration of water rights on any stream and in the 
consideration of any applications for permits, the state engineer may 
require that water be provided to meet reasonable demands for 
instream stock use. 
41-3-307. Alterations or repairs of dams or diversion systems; 
definitions. 
(a) As used in this act unless the context otherwise requires: 
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 (i) "Alterations" or "repairs" means only such alterations 
or repairs as may directly affect the safety of the dam or diversion 
system, as determined by the state engineer or his designated 
representative; 
(ii) "Appurtenant works" include, but are not limited to, 
such structures as spillways, either in the dam or separate 
therefrom, the reservoir and its rim, low level outlet works, and 
water conduits such as tunnels, pipelines or penstocks, either 
through the dam or its abutments; 
(iii) "Dam" means any artificial barrier, including 
appurtenant works, used to impound or divert water and which is or 
will be greater than twenty (20) feet in height or with an impounding 
capacity of fifty (50) acre-feet or greater. "Dam" shall not include 
artificial barriers including appurtenant works: 
(A) Six (6) feet in height or less, regardless of 
storage capacity; or 
(B) Which impound less than fifteen (15) acre-feet, 
regardless of height. 
(iv) "Days" used in establishing deadlines means calendar 
days, including Sundays and holidays; 
(v) "Diversion system" means any channel diversion, 
headgate or diversion structure with a carrying capacity in excess of 
fifty (50) cubic feet of water per second of time; 
(vi) "Emergency" means any threat to life or property 
caused by the condition of any dam, reservoir or diversion system, or 
by present or imminent floods which threaten the safety or structural 
integrity of any dam or diversion system; 
(vii) "Emergency response agency" means any agency which 
the dam owner may be required to notify in case of an emergency, such 
as sheriff's office, highway patrol or local emergency coordinator; 
(viii) "Enlargement" means any change in or addition to an 
existing dam or reservoir which raises or may raise the water storage 
elevation of the water impounded by the dam; 
(ix) "Inspection" means visual or mechanical checks, 
measures, borings and any other methods necessary for determination 
of the adequacy of construction techniques, conformity of work with 
approved plans and specifications, and the safety and operating 
performance of a dam or diversion system and appurtenant works; 
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(x) "Owner" includes any of the following who own, control, 
operate, maintain, manage or propose to construct a dam or reservoir: 
(A) The state and its departments, institutions, 
agencies and political subdivisions; 
(B) Every municipal or quasi-municipal corporation; 
(C) Every public utility; 
(D) Every district; 
(E) Every person; 
(F) The federal government and its departments, 
institutions, agencies and political subdivisions; 
(G) The duly authorized agents, lessees or trustees of 
any of the foregoing; and 
(H) Receivers or trustees appointed by any court for 
any of the foregoing. 
(xi) "Person" means any person, firm, association, 
organization, partnership, business trust, corporation or company; 
(xii) "Reservoir" means any basin which contains or will 
contain impounded water; 
(xiii) "This act" means W.S. 41-3-307 through 41-3-317. 
41-3-308. Alterations or repairs of dams or diversion systems; plans and 
specifications; duties of state engineer. 
(a) Plans and specifications of any proposed construction, 
enlargement, major repair, alteration or removal of a dam or 
diversion system shall be prepared by or under the direction of a 
registered professional engineer licensed to practice in the state of 
Wyoming and experienced in dam design and construction, and shall be 
submitted to the state engineer for approval. It is unlawful to 
commence construction, enlargement, major repair, alteration or 
removal until the plans and specifications have been approved by the 
state engineer. At the request of the state engineer, the 
professional engineer responsible for the plans and specifications 
shall carry out any revisions of the plans and specifications or 
provide such additional information as is necessary to justify or 
clarify the design. 
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(b) A copy of all plans and specifications submitted under this 
section shall be kept on file in the state engineer's office. 
(c) In the event that a proposed dam or diversion system is 
related to a facility which requires an industrial siting permit 
pursuant to W.S. 35-12-106: 
(i) The plans and specifications of the proposed dam or 
diversion system shall be submitted to the state engineer at the same 
time that the application for an industrial siting permit is 
submitted to the industrial siting administration [industrial siting 
council] pursuant to W.S. 35-12-108; 
(ii) The state engineer shall approve or reject the plans 
and specifications of the proposed dam or diversion system prior to 
the public hearing conducted pursuant to W.S. 35-12-110(f)(i); 
(iii) The approval or rejection of the plans and 
specifications of the proposed dam or diversion system shall be 
binding on the industrial siting council for the purposes of issuing 
an industrial siting permit. 
(d) The state engineer shall provide for the regulation and 
supervision of all dams, diversion systems and reservoirs by the 
state to the extent required to protect the public safety and 
property. The state engineer is authorized and directed to promulgate 
regulations and standards for the design, construction, enlargement, 
alteration, abandonment, maintenance, monitoring, operation, repair 
and removal of dams, reservoirs, and diversion systems as are 
necessary and proper to carry out the purposes of this act. The state 
engineer may waive any or all of the requirements of this act in 
instances where the dam or diversion system is located in a remote 
area where there is no threat to the public safety or property. 
41-3-309. Alterations or repairs of dams or diversion systems; 
inspections performed and reports submitted to state engineer by 
professional engineer. 
(a) A registered professional engineer licensed to practice in 
the state of Wyoming shall be in charge of and responsible for the 
construction, enlargement, major repair, alteration or removal of any 
dam or diversion system. 
(b) The engineer in charge shall provide for inspections at such 
intervals as deemed necessary to insure conformity with the approved 
plans and specifications, either by himself or by a person qualified 
to perform the inspections and for whose work the engineer stands 
personally responsible. 
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 (c) All information obtained from, during or as the result of 
such inspection shall be made part of a report, certified to by the 
engineer in charge, which shall be submitted to the state engineer at 
such time or times as may be set by the state engineer. 
(d) All reports submitted under this section shall be filed in 
the state engineer's office. 
41-3-310. Alterations or repairs of dams or diversion systems; 
inspections by state engineer or assistant engineer; cost. 
(a) If the state engineer believes that inspections carried out 
under W.S. 41-3-309 are inadequate or that additional inspections are 
necessary, the state engineer may inspect personally or appoint an 
assistant engineer to inspect the construction, enlargement, repair, 
alteration or removal of any dam or diversion system. If after any 
inspection the state engineer or his representative finds that 
amendments, modifications or changes are necessary in order to insure 
the security and integrity of the work and structure, the protection 
of property or the public safety, the state engineer may order the 
owner or owners of the dam or diversion system to revise the plans 
and specifications, or order work stopped. It is unlawful to proceed 
with or continue the work until any revisions have been approved by 
the state engineer. 
(b) Any inspections required by this section shall be made at 
state expense, provided the assistant engineer performing such 
inspections is an employee of the state of Wyoming. 
(c) If the assistant engineer is not a regular employee of the 
state of Wyoming, inspections shall be made at the expense of the 
owner. The owner shall be furnished with an estimate of the cost 
prior to performance of any inspections, but the state engineer is 
not precluded from collecting any or all additional costs which 
result from performance of the inspections. Costs to be paid by the 
owner shall include, but are not limited to, all work or tests as are 
necessary to fully provide any information and data required by the 
state engineer or his appointed representative. If the owner refuses 
or neglects to turn over the funds within thirty (30) days, after the 
presentation of the bill of costs, the costs shall constitute a lien 
upon the works or other properties of the owner or owners and may be 
collected by appropriate action in any court of competent 
jurisdiction. In order to have a valid, enforceable lien under this 
section, a lien statement sworn to before a notarial officer shall be 
filed by the claimant with the county clerk of the county in which 
the property is located. The county clerk shall file the statement 
and index by date, name of claimant and property owner, and by legal 
description. The lien statement shall contain the following: 
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 (i) The name and address of the governing body seeking to 
enforce the lien; 
(ii) The name and address of the person against whose 
property the lien is filed; and 
(iii) The legal description of the property to which the 
lien attaches. 
(d) All funds paid by the owner to the state engineer shall be 
deposited in the state engineer's holding account from which account 
the costs incurred as a result of any inspections or other work 
deemed necessary under this section shall be paid. Any funds not so 
expended shall be returned to the person or persons advancing the 
funds. 
41-3-311. Alterations or repairs of dams or diversion systems; periodic 
inspections. 
(a) Any dam subject to the terms of this act shall be inspected 
at least once every ten (10) years or as often as deemed necessary 
based on the hazards of the dam to insure the continued protection of 
public safety and property. 
(b) Inspections referred to in subsection (a) of this section 
shall be performed by the state engineer or his appointed 
representative who shall have right of entry upon private or 
government lands and is authorized to inspect the owner's technical 
data and other documentation as may be necessary to perform these 
inspections. All information obtained as a result of the inspections 
shall be filed in the state engineer's office. 
(c) Inspections required under this section shall be made at 
state expense except as provided in W.S. 41-3-312 when a dam, 
reservoir or diversion system is found to be unsafe by the state 
engineer. 
(d) If inspections performed under this section disclose defects 
in the works which in the judgment of the state engineer or his 
authorized agent constitute a threat to life or property, the state 
engineer may, without incurring any liability, order the draining of 
any reservoir involved, or the limitation or cessation of its use or 
the use of any defective works until such time as the owner of the 
reservoir or other works returns the works to a safe condition as 
approved by the state engineer. 
41-3-312. Alterations or repairs of dams or diversion systems; 
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inspections at other than regular times; cost; unsafe structures. 
(a) The state engineer may, or upon written request from any 
person or persons residing on or owning land near any dam, reservoir 
or diversion system shall, order an inspection of those works at any 
time other than the time set for regular inspections as provided for 
in W.S. 41-3-311(a). Before ordering an inspection, the state 
engineer may require any person or persons requesting the inspection 
to deposit a sum of money sufficient to pay the expenses of the 
inspection into the state engineer's holding account. If after the 
inspection the dam, reservoir or diversion system is determined to be 
in a safe and usable condition, the state engineer may cause the 
whole or part of the expenses of the inspection to be paid out of the 
state engineer's holding account. Any excess funds shall be returned 
to the person or persons advancing the funds. 
(b) If the dam, reservoir or diversion system is found to be 
defective, any funds deposited by the person or persons requesting 
the inspection shall be returned and the state engineer may require 
the person or persons owning the dam, reservoir or diversion system 
in question to pay the whole or any part of the expenses of 
inspection. If the state engineer requires a payment, he shall 
present a bill of costs to the owner or owners, and if the owner or 
owners refuse or neglect to pay the costs within thirty (30) days 
after the presentation of the bill of costs, the costs shall 
constitute a lien upon the works or other properties of the owner or 
owners and may be collected by appropriate action in any court of 
competent jurisdiction. If the inspection discloses defects in the 
works which in the judgment of the state engineer or his authorized 
agent constitute a threat to life or property, the state engineer 
may, without incurring any liability, order the draining of any 
reservoir involved, or the limitation or cessation of its use or the 
use of any defective works until such time as the owner of the 
reservoir or other works returns the works to a safe condition as 
approved by the state engineer. The lien shall be filed as provided 
by W.S. 41-3-310(c). 
41-3-313. Alterations or repairs of dams or diversion systems; outlets; 
maintenance; draining by breaching. 
(a) All dams and reservoirs hereafter constructed, with or 
without a controlled inlet, shall contain an outlet controlled by a 
headgate or other control works. The headgate or control works shall 
be maintained in an operable condition at all times and in a manner 
that water impounded by or within a dam or reservoir may be evacuated 
or maintained at any water level which may be required by the state 
engineer. 
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 (b) All dams constructed prior to the effective date of this act 
which have no outlet or means for lowering the reservoir water level 
in an expeditious manner, may be drained by breaching at the owner's 
expense when the public safety so requires. 
(c) The state engineer and anyone working under his direction 
and control shall not be held liable for any damages or loss of water 
resulting from the draining or imposed restrictions as to the use of 
a reservoir, dam or diversion system. 
(d) If within thirty (30) days after presentation of an itemized 
statement the owner fails to reimburse the state engineer for 
expenses incurred under this section, any unpaid balance of such 
expense shall automatically constitute a lien upon lands or other 
properties of the owner. 
41-3-314. Alterations or repairs of dams or diversion systems; emergency 
repairs or breaching. 
(a) In case of an emergency where the state engineer or his 
authorized representative declares that repairs or breaching of a dam 
or diversion system are immediately necessary to safeguard life and 
property, the necessary repairs or breaching shall be started 
immediately by the owner or by the state engineer or his 
representative at the owner's expense, if the owner fails to do so. 
The state engineer and emergency response agencies shall be notified 
at once of any changes in the physical conditions of the dam, 
diversion system, or reservoir which significantly increase the 
probability of failure of the dam or diversion works or the danger to 
life or property, proposed emergency repairs or breaching to be 
instituted by the owner. These reporting requirements shall apply 
only to cases in which an emergency has been declared pursuant to 
this subsection. 
(b) If emergency repairs have been made and the emergency 
situation has passed, the owner shall commence all repairs necessary 
to return the dam or diversion system to a safe and usable condition, 
as provided in W.S. 41-3-308 through 41-3-310. 
(c) All costs incurred by the state engineer during an emergency 
shall be payable by the owner or owners on receipt of the bill of 
costs from the state engineer. Costs not paid within thirty (30) days 
after presentation of the bill shall constitute a lien upon the dam 
or diversion system or other properties of the owner or owners and 
may be collected by appropriate action in any court of competent 
jurisdiction. The lien shall be filed as provided by W.S. 41-3-310 
(c). 
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 41-3-315. Alterations or repairs of dams or diversion systems; 
enforcement of provisions. 
For any reservoir the state engineer may enforce any sections of this 
act in such manner and by such means as may be necessary to insure 
the safety of the public and protection of property. 
41-3-316. Alterations or repairs of dams or diversion systems; actions 
brought against state, state engineer or employees prohibited. 
(a) No action shall be brought against the state or the state 
engineer or any of his agents or employees for the recovery of 
damages caused by the partial or total failure of any dam, reservoir 
or diversion system or damages caused by virtue of the operation of 
any dam, reservoir or diversion system upon the ground that such 
defendants are liable by virtue of any of the following: 
(i) The approval of the dam, reservoir or diversion system 
or approval of flood handling plans during construction; 
(ii) The issuance or enforcement of orders relative to 
maintenance or operation of any dam or reservoir; 
(iii) Control and regulation of any dam, reservoir or 
diversion system; 
(iv) Measures taken to protect against failure during an 
emergency; or 
(v) Failure to take an action required by the provisions of 
this act. 
41-3-317. Alterations or repairs of dams or diversion systems; liability 
of owners. 
Nothing in this act shall be construed to relieve an owner or owners 
of any reservoir, dam or diversion system of any legal duties, 
obligations or liabilities incident to their ownership or operation 
of or any damages resulting from the leakage or overflow of water or 
for floods resulting from the failure or rupture of the fill or 
structure for such works. 
41-3-318. Penalties, cancellation of permit, for failure to comply with 
W.S. 41-3-308 through 41-3-314. 
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Failure to comply with the provisions of W.S. 41-3-308 through 41-3- 
314 shall subject the permit to cancellation at any time pursuant to 
W.S. 41-3-616(c). Failure to comply with any valid order issued by 
the state engineer pursuant to W.S. 41-3-308 through 41-3-314, shall 
subject the permit holder to penalty pursuant to W.S. 41-3-616(b). 
41-3-319. Owners of ditches and reservoirs; general rights. 
Each owner of a share or shares of the capital stock in an 
incorporated ditch company existing for the purpose of distributing 
water through such company's ditch to the owners of such stock, shall 
have the right to carry, convey and transmit reservoir water, 
supplementing other water rights he may possess, through the ditch of 
such ditch company in which he may have such stock, to the full 
extent of the carrying capacity represented by such stock, but no 
greater. Each partner in a partnership ditch owned or used for a like 
purpose, shall have the right to carry, convey and transmit reservoir 
water, supplementing other water rights he may possess, through such 
partnership ditch, to the full extent of the carrying capacity 
represented by his interest, as a partner, in such ditch, but no 
greater. Every such person carrying, conveying and transmitting water 
through such ditch, or having the same done for his benefit, shall 
pay all expenses incurred by reason of all extra labor in cleaning 
such ditch, change of division boxes, and other additional expenses 
made necessary by reason of carrying such reservoir water through any 
such ditch. The right herein granted to any person, shall also extend 
to the owner, manager or lessee of a reservoir, who desires to use 
any such ditch to carry, convey or transmit water through such ditch 
for the benefit of any such person to whom the right herein mentioned 
has been granted as aforesaid. 
41-3-320. Owners of ditches and reservoirs; sale or lease of impounded 
water. 
Except as otherwise provided by deed or other written instruments of 
the owner or owners of the right to impound water in any reservoir, 
such reservoir owner or owners shall, after the completion of the 
works in connection with such reservoir, be held to be the owner of 
the right to impound the water, and the right to sell or lease a 
portion or all his right to the impounded waters; provided, that the 
sale of any portion of the capacity of any reservoir shall carry with 
it an interest in the reservoir and works appurtenant thereto of such 
proportion as the portion sold bears to the total capacity of the 
reservoir; and provided, further, that the water stored in any 
reservoir cannot be used outside the boundaries of the state of 
Wyoming without special permit from the state engineer; and provided, 
further, that the state engineer may deny any use of water from any 
reservoir that would be detrimental to the public interest. 
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 41-3-321. Owners of ditches and reservoirs; priority of right to store 
or impound. 
The priority of right to store or impound water under this act shall 
date from the filing of the application in the state engineer's 
office. 
41-3-322. Owner's report of persons entitled to use water; 
superintendent's report of use of water. 
The owner of each reservoir shall annually, in writing, before or 
during the irrigating season and before the releasing of the water 
from the reservoir, deliver to the water commissioner having 
jurisdiction over such reservoir a list or lists of parties entitled 
to use water from such reservoir during the irrigating season of such 
year, and also a list as near as may be of the lands proposed to be 
irrigated, and shall immediately notify such water commissioner of 
any changes in such list or lists. The superintendent of the water 
division in which such reservoir is situated shall annually on or 
before the first day of December in each year make a written report 
to the state engineer of the state, enumerating in detail the person 
or persons who during the irrigating season immediately preceding use 
any part of such reservoir water, and shall also enumerate therein 
the lands upon or uses for which said water was applied during such 
irrigating season so that the state engineer may be kept at all times 
advised as to whether or not such water has been applied to 
beneficial uses. 
41-3-323. Deeds for water rights; attaching of rights to land; sale, 
lease, transfer or use. 
The reservoir water and rights acquired under reservoir permits and 
adjudications shall not attach to any particular lands except by 
deed, or other sufficient instrument conveying such water or water 
rights, executed by the owner or owners of such reservoir, and such 
water and water rights, except when attached to particular lands as 
aforesaid, may be sold, leased, transferred and used in such manner 
and upon such lands as the owner of such rights or partial rights may 
desire, provided, that such water must be used for beneficial 
purposes. 
41-3-324. Deeds and leases for water rights; execution and recording. 
All deeds for reservoir water and water rights and all leases of the 
same for periods of three (3) years or more shall be executed and 
acknowledged as deeds are executed, and shall be recorded in the 
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office of the county clerk of the county in which the reservoir is 
situated and also filed in the office of the state engineer. All 
leases of such water and water rights for a period less than three 
(3) years shall be in writing and filed in the office of the state 
engineer. 
41-3-325. Excess stored water to be furnished applicants; preferences; 
rates. 
The owner or owners of a reservoir impounding a greater quantity of 
water than the owner or owners thereof necessarily use for irrigation 
and other beneficial purposes in connection with their own lands 
shall, when application is made to them for that purpose, furnish 
such surplus water at reasonable rates to the owners of lands lying 
under and capable of being irrigated from such reservoir for the 
purpose of irrigating and rendering the same productive, and 
maintaining their productiveness, and in case of refusal so to do, 
the owner or owners of such reservoir may be compelled by proper 
proceedings to furnish such water on such reasonable terms as to the 
court may seem meet and proper. The water user who may have used any 
water from such reservoir for any particular year shall have the 
preference as to the use of the same water for the next ensuing year. 
The state engineer, the water commissioner of the particular district 
and the water superintendent having jurisdiction over the region of 
any reservoir, shall together constitute a board of special 
commissioners, and shall have power, when application is made to them 
by either party interested, to establish reasonable maximum rates to 
be charged for the use of water from any reservoir, whether furnished 
by individuals or a corporation. The establishment of such rate shall 
be made only after notice given and public hearing had, at which 
hearing the applicants may produce witnesses and evidence, and such 
witnesses must be sworn and may be cross-examined. No commissioner 
shall sit upon such board and determine such rate who is employed by 
one (1) of the applicants or if the relationship of debtor or 
creditor exists between him and one (1) of the applicants. Nothing 
contained in this section shall be construed to deny the right to 
store water for use for more than one (1) year. 
41-3-326. Applicability of ownership provisions. 
The provisions of this act shall apply to reservoirs heretofore 
lawfully constructed as well as to all reservoirs hereafter lawfully 
constructed. 
41-3-327. Carey Act lands. 
This act shall not apply to Carey Act lands or reservoirs for their 
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irrigation, nor to any water right or rights to the use of waters of 
natural streams of this state, initiated from such streams and used 
through any such reservoir. All acts and parts of acts in conflict 
herewith, excepting such as relate to Carey Act lands, are hereby 
repealed. 
41-3-328. Witnesses' fees and mileage. 
Every witness who shall attend before the court, or the judge thereof 
in vacation, or before the person appointed to take testimony in 
causes relating to water rights, under subpoena, by request of any 
party, shall be entitled to the same fees and mileage as witnesses in 
civil cases in the district court, and shall be paid by the party 
requiring the testimony. 
41-3-329. Change in point of diversion. 
(a) The storage of water by means of a reservoir is a diversion, 
and the point of diversion is the point defined in the permit where 
the longitudinal axis of the dam crosses the center of the streambed. 
(b) A change in point of diversion of a reservoir may be granted 
pursuant to W.S. 41-3-114 by the state engineer if the water right is 
unadjudicated, or by the state board of control if the water right 
has been adjudicated. No petition shall be granted if the rights of 
other appropriators shall be injuriously affected thereby or if the 
change is not within the original project concept. In deciding 
whether to grant or deny a proposed change in point of diversion of a 
reservoir within the original project concept, the state engineer or 
the board of control shall consider: 
(i) The distance between the old point of diversion and the 
new point of diversion; 
(ii) The water administration problems which may be created 
by granting the change in the point of diversion; 
(iii) The effect of the petition upon Wyoming's entitlement 
to water under compacts, court decrees and treaties; 
(iv) The rights of other appropriators; and 
(v) The safety aspects of the new point of diversion. 
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