SAFETY OF DAMS AND DOWNSTREAM COMMUNITIES Laying the Foundations DECISION SUPPORT TOOL TO INFORM AND ASSESS REGULATORY FRAMEWORKS FOR DAM SAFETY ASSURANCE Marcus J. Wishart, Satoru Ueda, John D. Pisaniello, Joanne L. Tingey-Holyoak, Kimberly N. Lyon, and Esteban Boj Garcl’ a This report was made possible with the financial support of the Global Water Security & Sanitation Partnership (GWSP) and the Japan- World Bank Program for Mainstreaming Disaster Risk Management in Developing Countries, which is financed by the Government of Japan and receives technical support from the World Bank Tokyo Disaster Risk Management Hub. About GWSP GWSP is a multidonor trust fund administered by the World Bank’s Water Global Practice and supported by Australia’s Department of Foreign Affairs and Trade, Austria’s Federal Ministry of Finance, the Bill & Melinda Gates Foundation, Denmark’s Ministry of Foreign Affairs, the Netherlands’ Ministry of Foreign Affairs, the Swedish International Development Cooperation Agency, Switzerland’s State Secretariat for Economic Affairs, the Swiss Agency for Development and Cooperation, and the U.S. Agency for International Development. Please visit us at www.worldbank.org/gwsp or follow us on Twitter: @TheGwsp. About World Bank Tokyo DRM Hub The World Bank Tokyo Disaster Risk Management (DRM) Hub supports developing countries to mainstream DRM in national development planning and investment programs. As part of the Global Facility for Disaster Reduction and Recovery, the DRM Hub provides technical assistance grants and connects Japanese and global DRM expertise and solutions with World Bank teams and government officials. The DRM Hub was established in 2014 through the Japan–World Bank Program for Mainstreaming DRM in Developing Countries—a partnership between Japan’s Ministry of Finance and the World Bank. Website: https://www.worldbank.org/en/programs/tokyo-drm-hub About GFDRR The Global Facility for Disaster Reduction and Recovery (GFDRR) is a global partnership that helps developing countries better understand and reduce their vulnerabilities to natural hazards and adapt to climate change. Working with over 400 local, national, regional, and international partners, GFDRR provides grant financing, technical assistance, training, and knowledge sharing activities to mainstream disaster and climate risk management in policies and strategies. Managed by the World Bank, GFDRR is supported by 36 countries and 10 international organizations. Website: https://www.gfdrr.org/en About the Water Global Practice Launched in 2014, the World Bank Group’s Water Global Practice brings together financing, knowledge, and implementation in one platform. By combining the Bank’s global knowledge with country investments, this model generates more firepower for transformational solutions to help countries grow sustainably. Please visit us at www.worldbank.org/water or follow us on Twitter: @WorldBankWater. Laying the Foundations DECISION SUPPORT TOOL TO INFORM AND ASSESS REGULATORY FRAMEWORKS FOR DAM SAFETY ASSURANCE Marcus J. Wishart, Satoru Ueda, John D. Pisaniello, Joanne L. Tingey-Holyoak, Kimberly N. Lyon, and Esteban Boj García © 2022 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW, Washington, DC 20433 Telephone: 202-473-1000; Internet: www.worldbank.org This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy, completeness, or currency of the data included in this work and does not assume responsibility for any errors, omissions, or discrepancies in the information, or liability with respect to the use of or failure to use the information, methods, processes, or conclusions set forth. 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Lyon, and Esteban Boj García. 2022. “Laying the Foundations: Decision Support Tool to Inform and Assess Regulatory Frameworks for Dam Safety Assurance.” World Bank, Washington, DC. Any queries on rights and licenses, including subsidiary rights, should be addressed to World Bank Publications, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@worldbank.org. Cover design: Bill Pragluski, Critical Stages, LLC. Contents Acknowledgements.................................................................................................................................................................v A Decision Support Tool to Inform and Assess Regulatory Frameworks for Dam Safety Assurance............................................................................................................................... 1 1. Introduction������������������������������������������������������������������������������������������������������������������������������������������������������������������1 2. Elements of a Dam Safety Assurance System�����������������������������������������������������������������������������������������������2 3. Countries with Mainly Public Dam Ownership�����������������������������������������������������������������������������������������������7 3.1 Publicly Owned, Small Portfolio of Small Dams That Are Largely Low Risk/Hazard����������8 3.2 Publicly Owned, Small Portfolio of Small Dams That Are Largely High Risk/Hazard���������9 3.3 Publicly Owned, Small Portfolio of Large Dams That Are Largely Low Risk/Hazard��������10 3.4 Publicly Owned, Small Portfolio of Large Dams That Are Largely High Risk/Hazard�������� 11 3.5 Publicly Owned, Large Portfolio of Small Dams That Are Largely Low Risk/Hazard�������� 13 3.6 Publicly Owned, Large Portfolio of Small Dams That Are Largely High Risk/Hazard�������14 3.7 Publicly Owned, Large Portfolio of Large Dams That Are Largely Low Risk/Hazard������� 16 3.8 Publicly Owned, Large Portfolio of Large Dams That Are Largely High Risk/Hazard������ 18 4. Countries with Mainly Private Dam Ownership������������������������������������������������������������������������������������������20 4.1 Privately Owned, Small Portfolio of Small Dams That Are Largely Low Risk/Hazard������� 21 4.2 Privately Owned, Small Portfolio of Small Dams That Are Largely High Risk/Hazard����� 22 4.3 Privately Owned, Small Portfolio of Large Dams That Are Largely Low Risk/Hazard����� 24 4.4 Privately Owned, Small Portfolio of Large Dams That Are Largely High Risk/Hazard���� 25 4.5 Privately Owned, Large Portfolio of Small Dams That Are Largely Low Risk/Hazard����� 27 4.6 Privately Owned, Large Portfolio of Small Dams That Are Largely High Risk/Hazard���� 28 4.7 Privately Owned, Large Portfolio of Large Dams That Are Largely Low Risk/Hazard����30 4.8 Privately Owned, Large Portfolio of Large Dams That Are Largely High Risk/Hazard��� 32 5. Using the Decision Support Tool: Example Cases������������������������������������������������������������������������������������� 35 5.1 Rapid Portfolio Growth����������������������������������������������������������������������������������������������������������������������������� 35 5.2 Privatization and Hazard Creep������������������������������������������������������������������������������������������������������������� 37 5.3 Federal System of Governance�������������������������������������������������������������������������������������������������������������� 38 5.4 Transboundary Basin��������������������������������������������������������������������������������������������������������������������������������� 40 iii iv LAYING THE FOUNDATIONS Notes���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 42 References������������������������������������������������������������������������������������������������������������������������������������������������������������������������43 Figures 1 Elements of a dam safety assurance system........................................................................................................2 2 Portfolio determinants that should shape the dam safety system...............................................................3 3 Key elements and determinants informing regulatory frameworks for dam safety assurance.........5 4 Considerations for publicly owned dams...............................................................................................................7 5 Considerations for privately owned dams........................................................................................................... 21 6 Illustration of dam portfolio composition: Rapid portfolio growth........................................................... 35 7 Illustration of dam portfolio composition: Privatization and hazard creep........................................... 37 8 Illustration of dam portfolio composition: Federal system of governance............................................ 39 9 Illustration of dam portfolio composition: Transboundary basin................................................................ 41 Acknowledgements Laying the Foundations: Decision Support Tool to Inform and Assess Regulatory Frameworks for Dam Safety Assurance is based on Appendix E of the original publication Laying the Foundations: A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities. Both works were prepared by a team comprising Marcus J. Wishart (Lead Water Resource Specialist, World Bank), Satoru Ueda (Lead Dam Specialist, World Bank), John D. Pisaniello (Research Professor of Engineering Law, University of South Australia), Joanne L. Tingey-Holyoak (Associate Professor of Accounting, University of South Australia), Kimberly N. Lyon (Water Resources Specialist, World Bank), and Esteban Boj García (Water Analyst, World Bank, during preparation of this manuscript, now Head of Water Resources Management, Deutsche Gesellschaft für Internationale Zusammenarbeit [GIZ], Tajikistan). The team is grateful to the many individual experts and partner organizations who contributed to this body of work, including to the country case studies on which the comparative analysis was based (the full Acknowledgments can be found in the original publication). This work was made possible with financial support from the Global Water Security and Sanitation Partnership of the World Bank Group’s Water Global Practice and the Japan–World Bank Program for Mainstreaming Disaster Risk Management in Developing Countries, which is financed by the govern- ment of Japan, managed by the Global Facility for Disaster Reduction and Recovery and implemented by the World Bank Tokyo DRM Hub. v A Decision Support Tool to Inform and Assess Regulatory Frameworks for Dam Safety Assurance 1. INTRODUCTION The foundation for effective dam safety assurance is an appropriate and well-designed regulatory framework that captures the legal, institutional, technical, and financial elements in the reality of a particular jurisdiction. Aging infrastructure, diminishing returns on new projects, changes in climate and weather patterns, and shifting trends of human settlement require ever-increasing attention in the effort to ensure the safety of dams and downstream communities. Establishing and maintaining a regulatory framework that is fit for purpose is, therefore, necessary for assuring the quality of dam design, construction, and operations. The framework also ensures that safety measures are reflective of the risks inherent in managing these structures and the context in which they are developed. Such frameworks need to be developed as part of a holistic strategy for water management that is integrated in basin and regional planning processes. This Decision Support Tool is an accompanying document to the main text of Laying the Foundations: A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities. The purpose of this Decision Support Tool is to guide countries and jurisdictions through various considerations in designing and updating their regulatory environment for dam safety assurance. This Decision Support Tool aggregates information derived from a comprehensive review and comparative analysis of regu- latory frameworks in 51 countries. It presents a typology of situations that correlate with regulatory framework options along a continuum from minimum to maximum assurance of safety. It then presents hypothetical examples of how the Decision Support Tool can be used by countries and jurisdictions to assess their own situations and which regulatory options may be appropriate to consider for improving dam safety assurance. 1 2 LAYING THE FOUNDATIONS 2. ELEMENTS OF A DAM SAFETY ASSURANCE SYSTEM There are various options relating to the legal, institutional, technical, and financial elements that should be considered when designing a regulatory environment for dam safety assurance. While the type of legal system and the type of administration that is constitutionally possible will define how the regulatory environment can be implemented, the type of ownership and the size of a country’s portfolio of dams, their geometric dimensions, and their hazard potential and vulnerability will guide the main features of a suitable regime. The key elements often provide the definitive precursors in which the specific consid- erations need to be positioned (figure 1). These are considered important for the following main reasons: • Legal foundations such as the constitutional basis for law making and administration. The common law or civil code characteristics of a country, for example, will determine the approach to development and realization of the legal framework for dam safety assurance. Common law jurisdictions have the opportunity to be less prescriptive in statute laws with regard to acceptable standards of care and associated dam failure liability (and can be silent on such matters or refer to industry guidelines to set the acceptable standards of care). In contrast, civil law jurisdictions must be highly prescriptive, as they cannot rely on precedent to ensure consistent decision-making among the courts. In a civil law system, a judge merely establishes the facts of a case and applies remedies found in the codified law: the codified law has to be detailed enough so that a judge does not even have to interpret it. These characteristics rarely, if ever, change. Similarly, the distinction between centralized (unitary) and decentralized (federal) administrative systems is an important consideration because it determines the options that are available for achiev- ing a uniform regulatory regime across an entire country. A unified administrative system will differ in the requisite elements for assuring dam safety compared to a federal system with decentralized FIGURE 1 Elements of a dam safety assurance system Technical Intervention point requirements Institutional Financial Enablers Capacity arrangements considerations Foundations Legal and regulatory environment Source: Wishart et al. 2020. A Decision Support Tool for Dam Safety Assurance 3 roles and responsibilities devolving to the subnational administrative units. In decentralized systems national legislation often cannot constitutionally bind states or provinces to adopt uniform dam safety laws, and so other mechanisms must be explored at the national level to achieve uniformity. These characteristics rarely, if ever, change. • Institutional arrangements such as the allocation of responsibilities, sectoral considerations, human capital, and financial capacity. These are informed by the enabling legal framework and should clearly define the allocation of responsibilities for ownership, operations, and oversight, as well as the approach to private sector participation and sectoral considerations. The nature of the institutional arrangements will reflect the composition and structure of the portfolio as well as financial capacity and human capital. These characteristics are subject to infrequent changes but need to adapt to changes in the portfolio and downstream demographics. • Technical considerations such as the nature and characteristics of the portfolio. These include considerations regarding the size of the portfolio (small, single-sector to large, multisectoral portfolios), the relative importance of different sectors (irrigation, hydroelectricity, domestic and industrial supply, flood pro- tection, and so forth), and the hazard classification. These characteristics are subject to more frequent changes depending on sectoral demands and development, changes in demography and/or land use, and the enabling financial considerations, among others. • Financing considerations such as the revenue streams available to support operation and maintenance (O&M). These are typically determined by government policies and are often subject to economic regulation; they determine the availability of financing and transfer mechanisms to support O&M as well as the financing of the oversight mechanisms. These characteristics can be subject to frequent changes depending on prevailing economic conditions and government policies. framework for dam safety assurance are In contrast, the deliberative determinants of the regulatory ­ typically defined by the portfolio characteristics and informed by technical considerations ­ (figure 2). Among others, these include (1) the classification of dams in the portfolio, usually by dam size and/or reservoir capacity (small or large), (2) the size of the ­portfolio (few/small or many/large), (3) the main ownership type (private or ­ public), and (4) the hazard level or risk associated with dams in the portfolio (low or high). These key elements and deliberative determinants come together to present a range of options along a continuum that should inform the regulatory framework for dam safety assurance (figure 3). This continuum can be used to position key considerations and support decisions to (1) inform the establishment of an appropriate regulatory framework for dam safety assurance in any jurisdiction, FIGURE 2 Portfolio determinants that should shape the dam safety system Small Size classification Large Few Number of dams Many Public Ownership arrangements Private Low Hazard classification High Source: Wishart et al. 2020. 4 LAYING THE FOUNDATIONS (2) provide a framework for gap analyses aimed at enhancing existing legal regimes and insti- tutional arrangements for dam safety assurance, and (3) guide technical specialists in designing projects aimed at supporting the establishment or strengthening of regulatory frameworks for dam safety assurance. The following sections provide examples that illustrate how the Decision Support Tool can be used to inform considerations of the relevant elements along the continuum for different types of portfolios and within specific jurisdictional circumstances. It should be noted that there are no absolute definitions for many of the key elements and deliberative determinants and each should be considered in the specific country context. The differentiating factors in the decision framework are used to explain the relative legal, institutional, technical, and financial considerations along a continuum depending on different scenarios. Some examples of design standards and standards of care are provided to highlight these rel- ative differences in return periods, inspection frequency, and so forth depending on different scenarios, and these should not be interpreted or cited as actual recommendations. It is also important to note that the regulatory framework evolves with changes in the portfolio and country conditions. It is therefore necessary to provide a set of options along a continuum against which countries can assess their specific needs and requirements at regular intervals. Specific con- siderations should also be afforded to transboundary settings in order to ensure that a comprehen- sive regulatory framework or system of dam safety assurance across boundaries is implemented and provides protection for all downstream communities. ­ Trung Son hydropower dam in Vietnam. © Trung Son Hydropower Company Limited. Used with permission. Further permission required for reuse. FIGURE 3 Key elements and determinants informing regulatory frameworks for dam safety assurance Legal system Common law/civil law Administrative Centralized/decentralized Ownership Public Private A Decision Support Tool for Dam Safety Assurance Portfolio size Small Large Large Small Dam size Small Large Small Large Large Small Large Small Risk/ Low High Low High Low High Low High High Low High Low High Low High Low hazard Section 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 4.8 4.7 4.6 4.5 4.4 4.3 4.2 4.1 Minimum Assurance Maximum Maximum Assurance Minimum Dam safety assurance regulatory continuum Source: Original figure for this publication. Note: Portions of this figure are used in subsequent sections of this document addressing specific sectors and considerations. 5 6 LAYING THE FOUNDATIONS NOTES FOR USERS Risk is defined in Laying the Foundations: A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities as the measure of the likelihood or probability and severity of an adverse consequence or impact to life, health, property, or the environment. However, the Decision Support Tool uses risk in a broader sense, with reference to International Commission on Large Dams (ICOLD) (1989) Bulletin 72, which provides a simple concept of risk classification using four parameters: (1) dam height, (2) reservoir capacity, (3) number of peo- ple potentially affected, and (4) other potential consequences. While dam height and reservoir capacity can be considered to represent the magnitude of a flood wave’s energy (water depth, velocity, and so forth) and correlate with flooded area and duration in case of dam break, the number of people potentially affected and other potential consequences can be considered to represent downstream hazard or consequences in case of dam failure. While hazard is defined in Laying the Foundations as “a source of potential harm or a situation with the potential to cause loss,” it is often used as a measure of the consequences of dam fail- ure in dam safety. Hence, the terms hazard and consequence are used interchangeably as the potential losses in the downstream area of the dam in the event of dam failure or mis-operation and resulting uncontrolled release of flood waters. Many countries have developed different classification systems depending on their economic, environmental, and social conditions.1 The main criteria for dividing dams into classes are gener- ally either geometrical parameters (typically a dam’s height and reservoir capacity, sometimes including the type of dam) and/or incremental consequences or hazard potential that would occur as a result of a dam failure, or a combination of these. Thus, the terms risk and hazard used in this Decision Support Tool provide relative measures that are used in a broader manner for the classification of dams, considering the diversity of dam classification systems used throughout the world. Similarly, different criteria and thresholds have been developed by different countries for large versus small dams. While some countries place very low thresholds for dams to be considered large, thus including almost all dams under regulation, other countries have established relatively higher thresholds, subjecting many small dams to less rigorous safety requirements. Hence, the differentiation between large and small dams in this Decision Support Tool is conceptual only and presents a relative scale that does not rely on specific definitions or thresholds. The Decision Support Tool provides illustrative suggestions on dam safety standards, require- ments, or duty of care, such as the return period of the design flood,2 inspection frequency,3 and so forth. These are only indicative examples. In reality, the type of dam (such as concrete or embankment) and other elements also need to be considered when determining the design flood level, with some countries considering a check flood in addition to the design flood. The required level of public safety measures will also depend on the dam’s operating regime (for example, the requirements of hydropower dams with frequent rapid turbine discharge should be high) and downstream hazard and consequence, including both the permanent and imper- manent populations in downstream areas. The Decision Support Tool provides a conceptual framework for the ­ development or assessment of the regulatory framework for dam safety assurance. It does not incorporate specific provisions elements, such as dam safety standards and requirements. The purpose of the relating to other ­ Decision Support Tool is to illustrate the broad range of important elements and determinants for the dam safety assurance system. The details of each element and determining factor, such as design standards and safety requirements, need to be assessed and developed in an adaptive manner that considers national and local contexts. The examples and references included herein are provided as indicative examples only. They do not represent a prescribed set of increasing assurance levels. Each branch of the decision tree provides an illustrative representation and examples of how a jurisdiction may assess its needs to achieve an appropriate general level of assurance. A more comprehensive reference for each of the subject areas is provided in the relevant sections of Laying the Foundations. A Decision Support Tool for Dam Safety Assurance 7 3. COUNTRIES WITH MAINLY PUBLIC DAM OWNERSHIP Figure 4 shows the portfolio characteristics that can help policy makers determine appropriate features of a regulatory regime for contexts with mostly publicly owned dams. The following sections explore in more detail different portfolio scenarios and corresponding elements of the dam safety assurance system. Overall, in the case of publicly owned dams, it is important to give due consideration to the following: • Establish clear dam safety standards and requirements that public entities are required to abide by when preparing and implementing projects, as well as operating and maintaining dams. • Establish and maintain sufficient human, technical, and financial capacity of public entities respon- sible for reviewing, preparing, or implementing projects, and those operating and maintaining dams. • Ensure that there is a clear distribution of roles and responsibilities among public entities for all crit- ical dam safety requirements, including inspection and instrumentation, public safety, emergency preparedness, and so forth, and that potential conflict of interest issues are avoided where possible. • Require independent review of designs and construction plans, as well as periodic and/or formal dam safety reviews. These should be proportionate to the size and type of portfolio of dams, as explained in the subse- quent sections. FIGURE 4 Considerations for publicly owned dams Ownership Public Portfolio size Small Large Dam size Small Large Small Large Risk/ Low High Low High Low High Low High hazard Section 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 Minimum Assurance Maximum Dam safety assurance regulatory continuum Source: Original figure for this publication. 8 LAYING THE FOUNDATIONS 3.1 Publicly Owned, Small Portfolio of Small Dams That Are Largely Low Risk/Hazard Public Small Small Low ownership portfolio dams risk/hazard In this scenario, given the small portfolio size and the low-risk/low-­hazard profile of small dams, it technical requirements in order to reduce unnec- is appropriate to simplify legal, institutional, and ­ essarily high transaction costs in the system. As a result, the elements of this scenario represent self-regulation, positioned at the minimum assurance end of the continuum. Legal Underpinnings Self-regulation is appropriate. There is no need for dedicated legislation, but responsibility for dam safety and liability in the event of dam failure should be clearly defined. In common law systems, this may come from existing case law or precedent, including whether responsibility is based on negligence or strict liability. In civil law systems, the responsibilities for dam safety and liability in the event of dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. Institutional Arrangements A dedicated government unit or authority is not necessary; if community cooperatives or water-user associations operate the dams, third-party quasi-regulatory oversight may be helpful in overseeing the safety of dams in an effective and uniform way. At a minimum, the regulator should provide the dam owner with appropriate education and training related to dams and their safety. Technical Requirements There should be a minimum dam safety review system, including an ­ to-date inventory of all dams up-­ with a unit designated to monitor and update the inventory as changes occur. There should also be a checklist to determine minimum safety assurance requirements on a case-by-case basis. Such a checklist would include the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small, low-risk/low-hazard dams may be required to meet the 1-in-100 to 1-in-200 years return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic ­ roportionate to the risk/hazard for the dams. In the case and detailed formal inspections should be p of small and low-risk/low-hazard dams, this can be relatively infrequent. Routine visual inspection could be monthly, while detailed formal inspections could be every 10 years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard for hazard dams, instrumentation can be very minimal and basic the dams. Thus, for small, low-risk/low-­ and included as part of the O&M. • Emergency Preparedness Plan (EPP). The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For small, low-risk/low-hazard dams, where no lives and/or economic, environmental, or societal assets are at risk, an EPP may not be required. • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. A Decision Support Tool for Dam Safety Assurance 9 Financial Considerations The overall budgetary implications depend on the size of the portfolio, and given the simplicity of the institutional arrangements and the basic nature of the technical requirements, the resources required to maintain the dam safety assurance system are minimal. The entity responsible for maintaining the inventory of dams—for example, the designated local authority—should have sufficient resources for this task. The relevant line ministry or local government authority should also allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. There would also be a small budget implication for the provision of needed staff education and training. 3.2 Publicly Owned, Small Portfolio of Small Dams That Are Largely High Risk/Hazard Public Small Small High ownership portfolio dams risk/hazard In this scenario, the legal and institutional arrangements are relatively simple in order to reduce the transaction costs for a small portfolio of small dams. There are higher technical requirements, however, due to the dams being deemed high hazard or high risk. The resulting elements fit between the mini- mum end and middle of the dam safety assurance continuum. Legal Underpinnings There is no need for dedicated legislation due to the high transaction cost ­ associated with a com- plex system for only a few hazardous dams. The responsibility for dam safety and the liability in the event of dam failure should, however, be clearly defined. In common law systems, this may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. The regulations should require dam operators to submit annual or other periodic reports to demonstrate how they have fulfilled the dam safety responsibilities in compliance with the dam safety requirements. Institutional Arrangements A dedicated government unit or authority may not be necessary but could include a unit in charge of dam safety in the existing governmental structure; third-party quasi-regulators may be instrumental in enhancing the regulatory oversight. If community cooperatives or water-user associations operate the dams, they should be trained to perform basic dam safety surveillance and report anomalies to the dam safety unit. If necessary, the government could set up a legal regime for community cooperatives. At a minimum, the dam safety unit should undertake periodic compliance review of the operator’s dam safety program, performance, and capacity. Consideration should be given to periodic indepen- dent dam safety assessments. Technical Requirements There should be a safety review system in place including an up-to-date inventory of all dams in which their classification is maintained; it should be updated as changes occur. Reference to small dam safety guidelines is needed, but it is not necessary for customized guidelines to be created. Instead, they may refer to existing guidelines published by reputable sources, such as ICOLD Bulletins 109 and 157 (ICOLD 1998, 2016) and/or the Food and Agriculture Organization’s (FAO’s) manual on small earth dams (Stephens 2010). There should also be a checklist to determine minimum safety assurance requirements on a case-by-case basis. Such a checklist would include the following: 10 LAYING THE FOUNDATIONS • Design and review standards: A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and high-risk/high-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years return period.4 • O&M and safety inspections: The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of small, high-hazard dams, this should be relatively frequent. Routine inspections could be daily or weekly, and detailed formal inspections every three years. hazard. • Instrumentation: The level of instrumentation should be proportionate to the size and risk/­ Thus, for small, high-risk/high-hazard dams, instrumentation can be limited to essential elements only, but an effective management system should be in place, including data monitoring and interpretation. • EPP: The level of detail in the EPP should be commensurate with the downstream hazard/­ potential consequence in case of dam failure. Simpler EPPs and tools may be mandated for small dams, with the EPP requirements prioritized for dams that could cause human casualties and/or loss of eco- nomic, environmental, or societal assets. It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emergency agencies. • Public safety: Public safety during dam operation can be addressed with simple downstream warnings and signs as required. Financial Considerations For the oversight authority, a minimal budgetary implication is associated with the maintenance of the inventory of dams. The relevant line ministry or local government authority should also allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. There would also be a small budget implication for the provision of needed staff education and training. The relevant line ministry may collect fees from water users to carry out the noted functions. 3.3 Publicly Owned, Small Portfolio of Large Dams That Are Largely Low Risk/Hazard Public Small Large Low ownership portfolio dams risk/hazard In this scenario, the legal and institutional arrangements are relatively simple in order to reduce the transaction costs for a small portfolio of large dams that are relatively low-risk/low-hazard. The technical requirements are relatively basic but essential due to the large dams being deemed low-risk/low-hazard. The resulting elements fit between the minimum end and middle of the dam safety assurance continuum. Legal Underpinnings There is no need for dedicated legislation due to the high transaction cost associated with a complex system for only a few large, low-risk/low-hazard dams. The responsibility for dam safety and liability in the event of dam failure should, however, be clearly defined. In common law systems, this may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. Institutional Arrangements A dedicated government unit or authority is not necessary, but consideration should be given to the establishment of an appropriate unit in charge of dam safety, which may be accommodated in an exist- ing ministry in charge of water resources or other relevant resource. At a minimum, the dam safety unit undertakes compliance review of the operator’s dam safety program, performance, and capacity. A Decision Support Tool for Dam Safety Assurance 11 Technical Requirements There should be a basic dam safety review system in place, including an up-to-date inventory of all dams with a person designated to monitor and update the inventory as changes occur. There is no need to develop custom dam safety guidelines, but reference may be made to existing guidelines published by recognized industry groups such as ICOLD, the Canadian Dam Association (CDA), the Australian National Committee on Large Dams (ANCOLD), and others. There should also be a check- ­ inimum safety assurance requirements on a case-by-case basis. Such a checklist list to determine m would include the following: • Design and review standards. A simple, deterministic set of design and review standards would be example, large and low-risk/low-hazard dams may be appropriate. In a spillway design flood, for ­ required to meet the 1-in-200 years to 1-in-1,000 years return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of large and low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be weekly, and detailed formal inspections every five years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard of the dams. Thus, for large, low-risk/low-hazard dams, instrumentation can be basic, but essential instruments should be maintained. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For large, low-risk/low-hazard dams, where no lives and/or eco- nomic, environmental, or societal assets are at risk, a simple EPP may be sufficient. It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emergency agencies. • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. Financial Considerations The overall budgetary implications depend on the size of the portfolio, but given the simplicity of the institutional arrangements and the basic nature of the technical requirements, the resources required to maintain the dam safety assurance system are minimal. The entity responsible for maintaining the inventory of dams—the designated local authority for example—should have sufficient resources for this task. The relevant line ministry or local government authority should also allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. If a specified unit in the government is responsible for dam safety, a budgetary line item should also be clearly specified. Cross- subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams. The relevant line ministry or local authority may also collect fees from water users to finance dam safety measures. 3.4 Publicly Owned, Small Portfolio of Large Dams That Are Largely High Risk/Hazard Public Small Large High ownership portfolio dams risk/hazard In this scenario, the legal and institutional arrangements are relatively ­simple in order to reduce the transaction costs for a small portfolio of dams. For large and high-risk/high-hazard dams, however, the technical requirements are high. The resulting elements fit toward the middle of the dam safety assur- ance continuum. 12 LAYING THE FOUNDATIONS Legal Underpinnings There is no need for dedicated legislation, but responsibilities for dam safety and liability in the event of dam failure should be clearly defined. In common law systems, this may come from existing case law or precedent, including whether responsibility is based on negligence or strict liability. In civil law systems, the responsibility for dam safety and liability in the event of dam failure should be clearly defined in an existing law, or it may need to be prescribed in a new law. The regulations should require dam operators to submit annual or other periodic reports to demonstrate how they have fulfilled the operator’s dam safety responsibilities in compliance with the dam safety requirements. Institutional Arrangements A dedicated government unit or authority is not necessary, due to the small size of the portfolio, but a unit responsible for dam safety should be established in an existing governmental structure for water resources management or the like. The dam safety unit could establish an independent advisory panel to assist with technical oversight and/or periodic inspections. At a minimum, the dam safety unit needs to undertake the design review of new dams and periodic compliance review of the operator’s dam safety program, performance, and capacity. Technical Requirements There should be an adequate dam safety review system in place, including an up-to-date inventory of all dams with a unit designated to review the dam design and safety compliance and monitor and update the inventory as changes occur. In this scenario, a high-level dam safety program needs to be established and a rigorous compliance review is required by the regulator (that is, dam safety unit), with the technical assistance and oversight of an independent panel of experts. There is no need to develop custom dam safety guidelines given the small size of the portfolio. Instead, reference may be made to existing guide- lines published by recognized industry groups such as ICOLD, CDA, ANCOLD, and others. The guidelines should cover the following: • Design and review standards. Standards should be deterministic and risk informed where appropriate. Risk analysis, such as potential failure mode analysis, should be mandated or recommended where possible. The adequacy of the design, construction plans, and dam safety requirements should be ensured by a qualified owner’s engineer and an independent panel of experts. Design and review requirements should be proportionate to the risk/hazard. High-risk/high-hazard dams are typi- cally required to meet 1-in-1,000 to 1-in-10,000 years or probable maximum flood (PMF) design standards. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. For large and high-risk/high-­hazard dams, this should be frequent enough to detect any anomalies at an early stage. Routine inspections could be daily, and detailed formal inspections every three years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for large, high-risk/high-hazard dams, instrumentation should be comprehensive, sophis- ticated, and reliable. It is also critical to ensure an effective management system, including data ­ monitoring and interpretation. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For large, high-risk/high-hazard dams, an EPP should be required for ­operational issues as well as for dam-break scenarios. The EPP must be highly sophisticated, including detailed dam-break analyses and well-planned coordination among all relevant parties, including disaster risk management authorities and the military, as appropriate. The EPP must also include the installation of warning systems and should include the implementation of mock drills. For high-risk/high-hazard dams, EPPs should be elaborated based on dam-break analysis and flooding simulation/­ mapping and include notification and coordination procedures for emergency actions, including evacuation of the downstream population. The EPP should also A Decision Support Tool for Dam Safety Assurance 13 include a compilation of all the persons who should be contacted in case of dam failure. For example, in South Africa, category 3 dams require comprehensive plans with detailed flood maps, whereas category 2 dams require only a summary of intended actions by relevant parties, a listing of telephone contacts, and a basic map with approximate dam-break flood lines. • Public safety. Public safety during dam operation must be given serious consideration, with reference to guidelines from reputable institutions,5 including all the necessary precautions to be taken and downstream warning tools to be used. This can be addressed with downstream warnings and signs as required. Financial Considerations The overall budgetary implications depend on the size of the portfolio, but given the simplicity of the institutional arrangements, the resources required to maintain the dam safety assurance system are relatively low. The entity responsible for maintaining the inventory of dams should have sufficient resources for this task. The relevant line ministry or local government authority should also allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. If a specified unit in the government is responsible for dam safety, a budgetary line item should also be clearly specified. Cross-subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams, such as from hydropower to irrigation. The relevant line ministry or local authority may also collect fees from water users to finance dam safety measures. 3.5 Publicly Owned, Large Portfolio of Small Dams That Are Largely Low Risk/Hazard Public Large Small Low ownership portfolio dams risk/hazard In this scenario, even though the size of the portfolio may be large, a dam safety framework between the middle and minimum end of the continuum would be appropriate given the dam owner is the government itself, the dams are small, and their risk/hazard classification is deemed low. Legal Underpinnings There is no need for dedicated legislation, but dam safety responsibility and liability for dam failure should be clearly defined. In common law systems, this may come from existing case law or prece- dent, including whether responsibility is based on negligence or strict liability. In civil law systems, the roles and responsibility for dam safety and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. Institutional Arrangements A dedicated government unit is not necessary; an appropriate level of oversight could be provided by community cooperatives or water-user associations if they also operate the dams. If necessary, the gov- ernment could set up a legal regime for community cooperatives. Preferably, this oversight responsibil- ity would be vested in local authorities, empowered to ensure an essential level of dam safety assurance and to provide technical support for dam operators, such as community cooperatives. At a minimum, the regulator should provide the dam operator with a minimum essential education and training related to dams and their safety. Technical Requirements There should be a basic regulatory framework for dam safety including an up-to-date inventory of all dams as well as a simple classification system that is periodically reviewed for “hazard creep.”6 Dam operators and local authorities should follow a set of guidelines on safety for small dams, but it is 14 LAYING THE FOUNDATIONS not necessary for them to establish their own, unique guidelines. Instead, they may refer to existing guidelines published by reputable sources, such as ICOLD (1998, 2016) Bulletins 109 and 157 and/or the FAO’s manual on small earth dams (Stephens 2010). The guidelines should cover the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and low-risk/low-hazard dams may be ­ ecognized that the required to meet the 1-in-100 to 1-in-200 years return period. It should also be r cumulative risk posed by many small dams in catchments can be higher than their individual risks/ hazards, in which case higher hydrological safety requirements may be warranted for those dams. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of small and low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be monthly, and detailed formal inspections every 10 years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for small, low-risk/low-hazard dams, instrumentation can be very minimal and basic and included as part of the O&M. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/ potential consequence in case of dam failure. For small, low-risk/low-hazard dams where no lives and/or economic, environmental, or societal assets are at risk, an EPP may not be required. • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. Financial Considerations The overall budgetary implications depend on the size of the portfolio, but given the simplicity of the institutional arrangements and the basic nature of the technical requirements, the resources required to maintain the dam safety assurance system are minimal. The entity responsible for maintaining the inventory of dams, the designated local authority, for example, should have sufficient resources for this task. The relevant line ministry or local government authority should also allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. If a specified unit in the government is responsible for dam safety, a budgetary line item should also be clearly specified. Cross- subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams. The relevant line ministry or local authority may also collect fees from water users to finance dam safety measures. If water-user associations operate and maintain the dams, they may also collect fees to finance those tasks. 3.6 Publicly Owned, Large Portfolio of Small Dams That Are Largely High Risk/Hazard Public Large Small High ownership portfolio dams risk/hazard Given the presence of a large portfolio of small dams deemed to be high risk or high hazard, this scenario moves from the middle toward the maximum assurance end of the continuum. Legal Underpinnings There should be consideration given to the inclusion of dam safety provisions in general or enabling legislation, such as a water act or environmental protection act, via a ministerial order or guide- line. The regulations should require dam operators to submit annual or other periodic reports to A Decision Support Tool for Dam Safety Assurance 15 demonstrate how they have fulfilled the dam safety responsibilities in compliance with the dam safety requirements. Common law responsibility for dam safety and liability for dam failure should be clearly defined. This may come from existing case law or precedent, including whether responsibility is based on neg- ligence or strict liability. In civil law systems, roles and responsibility for dam safety and liability for dam failure should be clearly defined in existing laws, or they may need to be prescribed in a new law. The government should also develop a compliance review system for the dam safety program and performance management. If dams are operated or overseen by community cooperatives or water- user associations, the government may set up an appropriate legal regime that governs their roles and responsibilities. Institutional Arrangements Consideration should be given to the creation of a dedicated unit in the relevant line ministry or government agency with the role of providing quality assurance for dam safety. This may range from the execution of simple compliance audits, which may be suitable for small dams, to more hands-on quality assurance. The optimal mix of responsibilities given to this unit will depend on capacity. Provisions should be included for periodic independent dam internal financial and technical ­ safety assessments. At a minimum, the dam operator needs to have an appropriate dam safety program along with ade- quate education and training, and the compliance should be reviewed periodically. In this case of pub- licly owned dams, internal government staff would be required to have these capabilities. A water-user association or community cooperative could also function as a dam operator with sufficient training. Technical Requirements There should be a basic regulatory framework for dam safety, including an up-to-date inventory of all dams as well as a classification system that accounts for scenarios involving cascades or cumulative fail- ures, which are common for small dams. There is a need for dam safety guidelines for small dams. These may be specific guidelines, developed to suit the country’s circumstances, or reference can be made to existing guidelines from reputable sources, as appropriate. Examples include ICOLD (1998, 2016) Bulletins 109 and 157 and/or the FAO’s manual on small earth dams (Stephens 2010). The technical requirements are essentially the same as those recommended at the maximum assur- ance end of the continuum. However, standards may be kept simple and allow for the use of simple design and portfolio risk assessment tools: for example, common law systems can rely on existing or external guidelines, but in civil law systems, the following need to be explicitly referenced: • Design and review standards. A simple set of design and review standards would be appropriate. In a spillway design flood, for example, small high-risk/high-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years or higher return period.7 It is important to note that small dams that may be low-risk/low-hazard individually may warrant a high-risk/high-hazard classification due to their cascade or cumulative threat when they exist in multiple numbers in catchments, in which case higher hydrological safety requirements may be warranted for those dams. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be p ­ roportionate to the risk/hazard for the dams. In the case of small, high-hazard dams, this should be relatively frequent. Routine inspections could be daily/ weekly, and detailed formal inspections every three years. Simple, indices-based tools can be used for portfolio risk assessment in situations with many small but poorly maintained and vulnerable existing dams in order to prioritize where resources should be directed. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for small, high-risk/high-­hazard dams, instrumentation can be limited to essential elements, but an effective instrumentation system should be in place, including data monitoring and interpretation. ­ 16 LAYING THE FOUNDATIONS • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. Simpler EPPs and tools may be mandated. EPP requirements should be prioritized for dams that could cause many human casualties and/or loss of economic, environmental, or societal assets. It is important to ensure training for dam operators and coordina- tion with the disaster risk management authority and other relevant emergency agencies. • Public safety. Public safety during dam operation should be addressed with downstream warnings and signs as required. Financial Considerations The overall budgetary implications depend on the size of the portfolio. The relevant line ministry or local government authority should allocate enough resources to sufficiently perform mandated O&M provisions for dam safety. A budgetary line item should be clearly specified for the dedicated unit tasked with dam safety quality assurance. The resources allocated should be commensurate with the scope of responsibilities. Cross-subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams. The relevant line ministry or local authority may also collect fees from water users to finance dam safety measures. If water-user associations operate and maintain the dams, they may also collect fees to finance those tasks. 3.7 Publicly Owned, Large Portfolio of Large Dams That Are Largely Low Risk/Hazard Public Large Large Low ownership portfolio dams risk/hazard This scenario, characterized by a large portfolio of large dams, requires a level of oversight well beyond the minimum criteria. Consisting of dams deemed to be low risk/hazard classifications, it does not require the maximum level of assurance and thus it rests away from the maximum assurance end of the continuum and more toward the middle. It is worth noting, however, that it would be unlikely to find a real-world example of a large portfolio of large dams that are mostly low-risk/low-hazard. Legal Underpinnings In order to regulate and supervise a large portfolio of large dams, including hazard creep over long peri- ods, it is necessary to have dedicated legislation on dam safety, or enabling legislation with dam safety provisions stipulated via a ministerial guideline, as appropriate. In a federal system, it may be appropri- ate to have legislation at the state level, as in the case of Australia and Canada, or possibly at both the state and federal levels, as in Brazil and the United States. In common law systems, responsibility for dam safety and liability for dam failure should be clearly defined. This definition may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, roles and responsibility for dam safety and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. The government should also develop a compliance review system for the operator’s dam safety program and performance management. ­ Institutional Arrangements There should be a dedicated unit in the relevant line ministry or government agency with the role of providing quality assurance for dam safety. This may range from the execution of simple compliance A Decision Support Tool for Dam Safety Assurance 17 audits to more hands-on quality assurance. The optimal mix of responsibilities given to this unit will depend on internal financial and technical capacity. At a minimum, the regulating unit should undertake periodic compliance review of the operator’s dam safety program and standard of care with sufficient management capacity. In this case of publicly owned dams, internal government staff would be required to have these capabilities. Technical Requirements There should be a comprehensive dam safety review system in place for confirming the design and construction of new dams and reviewing the safety condition of existing dams, along with a suitable dam classification system. It should be mandated that an up-to-date inventory of all dams is maintained internally along with the dam safety conditions, risks, and required remedies. Those dams should also be periodically classified to check for hazard creep. Given the large number of large dams, the govern- ment should consider developing its own guidelines on safety of large dams, suitable for the country circumstances. These guidelines should use existing guidelines by recognized industry groups, such as ICOLD, CDA, and ANCOLD, among others, as a reference. At a minimum they should cover the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate for new dams. For example, the spillway design flood for large and low-risk/low-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of large and low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be weekly, and detailed formal inspections every five years. Portfolio risk assessment using simple risk indices may be introduced for a large portfolio of existing dams. • Instrumentation. The level of instrumentation should be proportionate to the size, type, and risk/ hazard of the dams. Thus, for large, low-risk/low-hazard dams, instrumentation can be basic, but essential instruments should be maintained. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For large, low-risk/low-hazard dams, where no lives and/or eco- nomic, environmental, or societal assets are at risk, a simple EPP may be sufficient. It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emergency agencies. • Public safety. Public safety during dam operation can be addressed with downstream warnings and signs, as appropriate. Financial Considerations The overall budgetary implications depend on the size of the portfolio, but given the simplicity of the institutional arrangements and the basic nature of the technical requirements, the resources required to maintain the dam safety assurance system are minimal. The relevant line ministry or local government authority should allocate enough resources to maintain the inventory of dams and sufficiently perform mandated O&M provisions for dam safety. A budgetary line item should be clearly specified for the ded- icated unit tasked with dam safety quality assurance. The resources allocated should be commensurate with the scope of responsibilities. Cross-subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams. The relevant line ministry or local authority may also collect fees from water users to finance dam safety measures. 18 LAYING THE FOUNDATIONS 3.8 Publicly Owned, Large Portfolio of Large Dams That Are Largely High Risk/Hazard Public Large Large High ownership portfolio dams risk/hazard With a large portfolio of large, high-risk/high-hazard dams, a greater level of oversight is needed. Thus, this scenario rests toward the maximum end of the dam safety assurance continuum, requiring more complex legal and institutional arrangements and higher technical requirements. Legal Underpinnings Given the size and complexity of the portfolio, dedicated legislation on dam safety is necessary. This should be in the form of clearly articulated, uniform laws and regulations. The regulations should require dam operators to submit annual or other periodic reports to demonstrate how they have fulfilled the dam safety responsibilities in compliance with the dam safety requirements. In a federal s ­ystem, it may be appropriate to have legislation at the state level, as in the case of Australia and Canada, or possibly at both the state and federal levels, as in Brazil and the United States. ­ In common law systems, responsibility for dam safety and liability for dam failure should be clearly defined. Definition may come from existing case law or precedent, including whether it is based on neg- ligence or strict liability. If case law precedent does not exist, the dam safety legislation would need to define the responsibility for dam safety and liability in case of dam failure. In common law systems, either specific dam safety legislation or enabling l ­egislation may be appropriate. In the case of enabling legisla- tion, wide, discretional powers pertaining to dam safety would be given to an existing authority under an existing law. In a specific dam safety law, powers pertaining to dam safety would be prescribed to a specific dam safety authority. In civil law systems, responsibility for dam safety and liability in the event of dam failure must be specific and would be found in an existing dam safety statute and/or in the broader civil liability law. In civil law systems, specific dam safety legislation would have to be highly prescribed, but it could be in the form of an enabling law and specific regulations. The government would also need to develop a strict compliance review system for dam safety performance management requiring inde- pendent reviews by expert commissions or similar provisions for high-risk/high-hazard cases and a secure budget for critical remedial works. Institutional Arrangements A fully independent oversight body is recommended in this scenario. An apex institution with respon- sibility for oversight is ideal, but sectoral institutions would also be appropriate. Consideration must be given to ensuring independence of the oversight body. For example, internal controls could be put in place to separate dam operations from safety monitoring, such as in South Africa, where the owner- ship of dams is situated in a different branch of the Department of Water and Sanitation from the Dam Safety Office, which administers dam safety regulations. Alternatively, the oversight body could be located in a different ministry from the ministry entrusted with dam ownership, as is the case in Peru, where the National Water Authority, which is empowered to oversee dams, is situated in the Ministry of Environment and does not own any dams, whereas most large dams are owned by the Ministry of Agriculture and Irrigation. The oversight body should be fully empowered with the following: • Authority to develop norms and standards • Authority to issue licenses and permits • Authority to supervise maintenance and surveillance of dams • Authority to conduct audits and inspections • Authority to approve inspectors A Decision Support Tool for Dam Safety Assurance 19 • Responsibility for maintaining the inventory of dams • Responsibility to provide advisory support • Authority to impose penalties and fines in case of noncompliance • Authority to revoke license, concession contract, and so forth, in case of noncompliance The quality assurance role of the oversight body may range from the execution of simple compliance audits to more hands-on quality assurance. The optimal mix of responsibilities given to this unit will depend on internal financial and technical capacity. Provisions should be included to ensure periodic, independent dam safety assessments. The oversight body should report to the relevant minister, and its reports should be publicly available, providing transparency of performance of dam operators as well as the oversight body. In Brazil, for example, the federal Dam Safety Law mandates that regulatory agencies report to the National Water Authority via the National Dam Safety Information System. The National Water Authority reports to Congress by way of the annual national report on dam safety, which is publicly accessible. Staff of the oversight body as well as the authorities entrusted with dam operations must have appropriate levels of qualification and training related to dams and their safety. Technical Requirements It should be mandated that an up-to-date inventory of all dams is maintained and that this database is publicly available. It should be mandated that there is a classification system in place, based on both size and hazard. It also should be mandated that the government develop its own guidelines (in the case of common law systems) or standards (in the case of civil law systems). These guidelines or standards must be fit for purpose and account for the values and policy priorities of the country. They should cover the following: • Design and review standards. Design and review standards should be ­ deterministic and risk informed where appropriate. Risk analysis, such as potential failure mode analysis, should be mandated or rec- ommended where possible. The adequacy of the design, construction plans, and dam safety require- ments should be ensured by a qualified owner’s engineer and an independent panel of experts. Design and review requirements should be proportionate to risk/hazard, but deterministic standards may provide a large range of differentiation between the low and high ends of the classification system as suitable. For example, ANCOLD in Australia has classifications of Very Low, Low, Significant, High C, High B, High A, and Extreme, with acceptable design flood standards ranging from 1-in-100 years to probable maximum flood. High-risk/high-hazard dams are typically required to meet 1-in-1,000 to 1-in-10,000 years or PMF design standards. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of large and high-risk/high-hazard dams, this should be sufficiently frequent to detect any anomalies at an early stage. For example, routine inspections could be daily, and detailed formal inspections every three years. The oversight body should undertake rigorous compliance review of the dam safety program and performance, and also perform its own random audits or inspections. The requisite sophistication of the inspection and qualification of the inspectors must also be proportionate to the risk/hazard of the dam. For high-risk/high-hazard dams, it is necessary to have a highly qualified team, with quali- fications certified by the oversight body or an independent professional body. For example, in South Africa, inspectors and dam safety reviewers must come from the list of “approved professional persons,” registered with the national engineering council and approved by the minister of water and sanitation. In England and Wales, legislation establishes “panel engineers” and “supervising engineers” with dif- ferent roles in the monitoring and inspection of dams. Record keeping should also be mandated. The safety file should be easily accessible to all those concerned and should include three main parts: (1) the as-built engineering details, (2) O&M records and monitoring data, and (3) EPP documents. 20 LAYING THE FOUNDATIONS • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for large, high-risk/high-hazard dams, instrumentation should be comprehensive, sophis- ticated, and reliable. An effective management system should also be in place, including data monitoring and interpretation. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For large, high-risk/high-hazard dams, an EPP should be required for operational issues as well as for dam-break scenarios. The EPP must be highly sophisticated, including detailed dam-break analyses and well-planned coordination among all relevant parties, including disaster risk management authorities and the military, as appropriate. The EPP must also include the installation of warning systems and should include the implementation of mock drills. For high-risk/high-hazard dams, EPPs should be elaborated based on dam-break analysis and flooding simulation/mapping and include notification and coordination procedures for emergency actions, including evacuation of the downstream population. The EPP should also include a compilation of all the persons who should be contacted in the case of dam failure. For example, in South Africa, category 3 dams require comprehensive plans with detailed flood maps, whereas a category 2 dam requires only a summary of intended actions by relevant parties, a listing of telephone contacts, and a basic map with approximate dam-break flood lines. • Public safety. Public safety during dam operation must be given serious consideration, with reference to guidelines from reputable institutions,8 including all the necessary safety measures, including down- stream warning system, public awareness and education, incident reporting procedures, and so forth. Financial Considerations Adequate funding and capacity for the oversight body are required. An independent body can be finan- cially autonomous through collection of fees (intragovernmental transfers) for dam safety surveillance services. A base budgetary line item may be provided, either from the central government budget, grants, or funds earmarked from revenue from related services, such as water supply or hydropower genera- tion. Cross-subsidization is also possible by way of government transfers from dams with strong revenue streams (that is, with a tariff structure providing full cost recovery) to dams with weaker revenue streams. The oversight body may choose to immediately build its internal capacity or to outsource certain func- tions to outside expertise initially. Regardless, the relevant line ministry or government authority should allocate enough resources to maintain the inventory of dams and sufficiently perform mandated O&M provisions for dam safety. The relevant line ministry or authority should also allocate resources for train- ing of authority staff and for dam operators. 4. COUNTRIES WITH MAINLY PRIVATE DAM OWNERSHIP Figure 5 shows the portfolio characteristics that can help policy makers determine appropriate features of a regulatory regime for contexts with mostly privately owned dams. The following sections explore in more detail different portfolio scenarios and corresponding elements of the dam safety assurance system. Overall, in the case of privately owned dams, it is important to give due consideration to the following: • Establish clear dam safety standards and requirements that private entities are required to abide by when preparing project and/or concession agreements. • Establish and maintain sufficient capacity of governmental regulators for reviewing and approving design documents, concession agreements, and so forth to be submitted by private entities. • Ensure that all critical dam safety requirements are covered, including inspection and instrumen- tation, required remedies, public safety, emergency preparedness, and so forth in the concession agreements and other legally binding documents. A Decision Support Tool for Dam Safety Assurance 21 FIGURE 5 Considerations for privately owned dams Ownership Private Portfolio size Large Small Dam size Large Small Large Small Risk/ High Low High Low High Low High Low hazard Section 4.8 4.7 4.6 4.5 4.4 4.3 4.2 4.1 Maximum Assurance Minimum Dam safety assurance regulatory continuum Source: Original figure for this publication. • Require private entities to confirm the design, construction plan, and dam safety requirements with their owner’s engineers and an independent panel of experts. These should be proportionate to the size and type of portfolio of dams, as explained in the subse- quent sections. 4.1 Privately Owned, Small Portfolio of Small Dams That Are Largely Low Risk/Hazard Private Small Small Low risk/ ownership portfolio dams hazard In this scenario, given the small portfolio size and the low-risk/low-­ hazard profile of small dams, it is appropriate to simplify legal, institutional, and technical requirements with their clear essentials in order to reduce unnecessarily high transaction costs in the system. As a result, the elements of this scenario are positioned near the minimum assurance end of the continuum. Legal Underpinnings There is little need for dedicated legislation or reference to dam safety provisions in enabling legisla- tion, but dam safety responsibility and liability for dam failure should be clearly defined. In common law systems, this definition may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. Institutional Arrangements A dedicated government unit or authority is not necessary, but there should be a unit designated to oversee the dam safety of private dams, including maintaining an inventory of dams. It should be ensured that the dam owners have appropriate staff and training related to dams and their safety. 22 LAYING THE FOUNDATIONS Technical Requirements There should be a minimum but essential set of dam safety regulations, including an up-to-date inven- tory of all dams with a unit designated to monitor and update the inventory as changes occur. There should also be a checklist to determine minimum safety assurance requirements on a case-by-case basis. This is more important for countries with mainly private dam ownership due to relatively lower levels of public consultation and similar requirements for construction of small private dams. It should include the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and low-risk/low-hazard dams may be required to meet the 1-in-100 to 1-in-200 year return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be monthly, and detailed formal inspections every 10 years. hazard. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/­ Thus, for small, low-risk/low-hazard dams, instrumentation can be minimal and basic and included as part of the O&M. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For small, low-risk/low-hazard dams, where there are no lives and/or economic, environmental, or societal assets at risk, an EPP may not be required. • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. Financial Considerations For the oversight authority, a minimal budgetary implication would be associated with the review of new dam applications and safety requirements as well as maintenance of the inventory of dams. A small budget should also be allocated for dam owner education and awareness on common or civil law responsibilities for dam safety. The dam owner or operator should have a sufficient revenue stream to perform the necessary O&M tasks as well as the basic aspects of the technical requirements checklist. 4.2 Privately Owned, Small Portfolio of Small Dams That Are Largely High Risk/Hazard Private Small Small High risk/ ownership portfolio dams hazard In this scenario, the legal and institutional aspects are relatively simple to reduce transaction costs for a small portfolio of small dams, but the technical requirements are more sophisticated due to the high- risk/high-hazard nature of the portfolio. Legal Underpinnings There is no need for dedicated legislation due to the high transaction cost associated with a com- ­ ystem for only a few high-risk/high-hazard dams. The regulations should require dam owners/­ plex s operators to submit annual or other periodic reports to demonstrate how they have fulfilled the owner’s dam safety responsibilities in compliance with the dam safety requirements. The responsibility for dam safety and liability in the event of dam failure should, however, be clearly defined. In common law systems, this may come from existing case law or precedent, including whether they are based on A Decision Support Tool for Dam Safety Assurance 23 negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. Consideration should be given to inclusion of dam safety requirements in existing licensing stipulations and concession agreements. Financial and other forms of penalties, such as revocation of licenses, may be considered and clearly defined in the regulation in the event of noncompliance. Institutional Arrangements There is no need for a dedicated authority, but an existing authority can establish an appropriate unit in charge of dam safety, including the review of new dam applications and safety requirements, as well as managing of an inventory of dams and checking compliance of owners’ dam safety requirements. These could be supported by periodic, independent dam safety assessments. In a federal system of gov- ernment, where dams are located only in some states, consideration should be given to the creation of decentralized dam safety units rather than a central institution to provide oversight in those states. This would reduce the regulatory burden. If a licensing regime already exists, the relevant authority could oversee dam safety license conditions and require reporting, for example, to an existing multisector reg- ulator. At a minimum, the regulator should have the capacity to undertake compliance checking, and the dam owner should have sufficient capacity to comply with the dam safety requirements. Owners should also be educated about potential liability. Technical Requirements A clear dam safety review mechanism should be mandated for new dam applications and compli- ance for existing dams, as well as an up-to-date inventory of all dams and their classification that is maintained and updated as changes occur. Consideration should be given to having an independent assessment of risk of the dams, and it is recommended that private entities establish an independent review mechanism for design, construction plans, and so forth. For a small portfolio of small, high-risk/ high-hazard dams, reference should be made to existing small dam safety guidelines published by rec- ognized industry groups. Along technical lines, there should still be a register or inventory of all dams, but for a high-hazard portfolio, reference should be made to available small dam safety guidelines, as appropriate. Examples include ICOLD (1998, 2016) Bulletins 109 and 157 and/or the FAO’s manual on small earth dams (Stephens 2010). Consideration should be given to requiring owners to undertake independent assessment of dam safety of high-­ hazard dams. The technical requirements are essentially the same as those recommended at the maximum assur- ance end of the continuum. However, standards may be kept simple and allow for use of simple design and review tools. In the case of lower-middle-income countries where the development of dams is led by private developers, some formal establishment of guidelines is recommended so that regulators can require developers to comply with the established minimum safety standards and requirements without ambiguities. The following need to be explicitly referenced: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and high-risk/high-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years return period.9 • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be p ­ roportionate to the risk/hazard for the dams. In the case of hazard dams, this should be relatively frequent. Routine inspections could be daily, and small, high-­ detailed formal inspections every three years. hazard. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/­ Thus, for small, high-risk/high-hazard dams, instrumentation can be limited to essential ele- ments, but an effective management system should be in place, including data monitoring and interpretation. 24 LAYING THE FOUNDATIONS • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/­ potential consequence in case of dam failure. Simpler EPPs and tools may be mandated for low-risk/low-­ hazard dams. EPP requirements should be prioritized for dams that could cause high casualties and/or loss of economic, environmental, or societal assets. It is important to ensure training for dam owners and/or operators and coordination with the disaster risk management authority and other relevant emergency agencies. • Public safety. Public safety during dam operation can be addressed with downstream warnings and signs as required. Financial Considerations The oversight authority should secure sufficient budget for undertaking compliance review of the owner’s dam safety requirements and for enforcement of noncomplying entities. It should also have a sufficient budget for its own staff capacity development and dam owner education and awareness on dam safety requirements. The dam owner or operator should have an adequate revenue stream to perform the O&M tasks and comply with the dam safety requirements as per the technical checklist. The concession agreement should clearly define such safety requirements and financial and other forms of penalties in case of noncompliance. 4.3 Privately Owned, Small Portfolio of Large Dams That Are Largely Low Risk/Hazard Private Small Large Low risk/ ownership portfolio dams hazard hazard dams, the elements are In this scenario, even though the small portfolio consists of low-risk/low-­ ­ ontinuum due to the large size of the dams. positioned toward the middle of the c Legal Underpinnings There is no need for dedicated legislation, but provisions could be included in sector-specific legisla- tion, such as for mining or energy. Dam safety responsibility and liability for dam failure should be clearly defined. In common law systems, this may come from existing case law or precedent, including whether the definition is based on negligence or strict liability. In civil law systems, dam safety respon- sibility and liability for dam failure should be clearly defined in existing civil law, or they may need to be prescribed in a new civil law. The regulations should require dam owners to submit annual or other periodic reports to demon- strate how they have fulfilled the dam safety responsibilities in compliance with the dam safety require- ments either in bylaws under an existing law or in licensing or concession agreements. Consideration should be given to mandating periodic, independent assessment of dam safety. Any associated expenses should be financed by the dam owner or operator. Consideration should also be given to the introduc- tion of financial penalties or other forms of penalties, such as license revocation, in the event of non- compliance under the concession agreements or other noncompliance. Institutional Arrangements There is no need for a dedicated authority, but consideration should be given to establishing an appro- priate unit under an existing ministry or agency in charge of water resources or related sectors. The regulator should consider requiring dam owners to periodically undertake independent dam safety assessment in an acceptable manner to the regulator. At a minimum, the regulator should have a compliance review system and enforcement capacity, and the dam owner needs to have sufficient A Decision Support Tool for Dam Safety Assurance 25 capacity to undertake dam safety requirements in compliance with the regulations; this capacity may come through education and training programs. Owners should also be educated about financial and other forms of penalties in case of noncompliance. Technical Requirements The entity responsible for regulatory oversight should maintain an up-to-date inventory of all dams and the classification system. Consideration should be given to requiring owners to undertake independent dam safety assessment. The regulator may not need to develop custom dam safety guidelines, but can refer to existing guidelines published by recognized industry groups such as ICOLD, CDA, ANCOLD, and others. There should also be a checklist to determine minimum safety assurance requirements on a case-by-case basis, and it should include the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, large and low-risk/low-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of low-hazard dams, this can be relatively infrequent. Routine inspections could be weekly, and detailed formal inspections every five years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for large, low-risk/low-hazard dams, instrumentation can be basic, but essential instruments should be maintained. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/­ potential sufficient. consequence in case of dam failure. For low-risk/low-hazard dams, a simple EPP may be ­ It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emergency agencies. ­ • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. Financial Considerations For the oversight authority, a minimal budgetary implication is associated with the development of the compliance review system. A sufficient budget should also be allocated for the regulator’s capacity development and dam owner education and awareness on dam safety requirements. Taxes or fees may be justified to finance independent assessments or provisions included requiring the owners to do so. As an existing authority or multisector regulator is recommended to fulfill compliance or audit functions, an appropriate level of resources should be clearly allocated for this role. The dam owner or operator should have a sufficient revenue stream to perform the necessary O&M tasks as well as the dam safety requirements in compliance with the checklist noted. 4.4 Privately Owned, Small Portfolio of Large Dams That Are Largely High Risk/Hazard Private Small Large High risk/ ownership portfolio dams hazard Even though the portfolio size is small, the presence of large, high-risk/high-hazard, private dams necessitates a more complex legal and institutional regime along with stronger technical requirements. Thus, this scenario fits toward the middle of the dam safety assurance continuum. 26 LAYING THE FOUNDATIONS Legal Underpinnings There is no need for dedicated legislation, but enabling provisions should be included in sector-­ specific legislation, such as for water, mining, or energy. In addition to the enabling provisions, it should be determined whether more specific regulations are required. This applies to civil law systems. In common law systems, an existing authority can be empowered to discretionarily control dam safety, and existing or external guidelines can be used as a basis for setting standards. The regulations should require dam owners/operators to submit annual or other periodic reports to demonstrate how they have fulfilled the owner’s dam safety responsibilities in compliance with the dam safety requirements. The responsibility for dam safety and liability in the event of dam failure need to be clearly defined. In common law systems, this may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. In civil law systems, the definitions of responsibility for dam safety must be more prescriptive and standards need to be explicitly referenced. In this setting, dam safety requirements could be included in existing licenses. Furthermore, insurance could be mandated or incentivized, including using subsidies. Institutional Arrangements Responsibility for overseeing dam safety assurance should be vested in a dedicated authority. This can be an existing multisector regulator or housed in one of the relevant line ministries. While the regulator should obtain some general budget allocation for fulfilling its main function, such as compliance check- ing or monitoring in line with licenses and concession agreements, it may partially rely on license fee revenues from private dam owners to enhance its institutional capacity. Provisions should be included for periodic, independent dam safety assessments. Technical Requirements The entity responsible for regulatory oversight should maintain adequate capacity for reviewing new dam applications and clearance, as well as maintaining an up-to-date inventory of all dams and their classifica- tion system. Dam owners should be required to undertake independent dam safety ­ assessment for design, construction plans, and so forth for new dams and compliance review of existing dams. There may be no need to develop custom dam safety guidelines due to the small size of the portfolio, but reference can be made to existing guidelines published by recognized industry groups such as ICOLD, CDA, ANCOLD, and others. The guidelines should cover the following: • Design and review standards. Design and review standards should be deterministic and risk informed where appropriate. Risk analysis, such as potential failure mode analysis, should be mandated or rec- ommended where possible. The dam owner or operator should be required to ensure the adequacy of the design, construction plans, and dam safety requirements through a qualified Owner’s Engineer and an independent panel of experts. Design and review requirements should be proportionate to the risk/hazard. High-risk/high-hazard dams are typically required to meet 1-in-1,000 to 1-in-10,000 years or PMF design standards. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of high-hazard dams, this should be relatively frequent. Routine inspections could be daily, and detailed formal inspections every three years. The owners should be required to submit an annual dam safety report to the regulator. For high-risk/high-hazard dams, it is recommended that owners would be required to undertake risk analysis/assessment by an independent body and complete required rem- edies in a manner satisfactory to the regulator. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/­ hazard. Thus, for large, high-risk/high-hazard dams, instrumentation should be comprehensive, A Decision Support Tool for Dam Safety Assurance 27 sophisticated, and reliable, and an effective management system should be in place, including data monitoring and interpretation. • EPP. The level of detail in the EPP should be commensurate with the ­ downstream hazard/potential consequence in case of dam failure. In case of high-hazard dams, EPPs should be required for large flood discharge scenarios without dam break in addition to dam-break scenarios. They must be highly sophisticated, including detailed dam-break analyses and well-planned coordination among all relevant parties, including disaster risk management authorities and the military, as appropriate. The EPP must also include the installation of warning systems and implementation of mock drills. It should also include a compilation of all the persons who should be contacted in case of dam failure. • Public safety. Public safety during dam operation must be given serious consideration, with reference to guidelines from reputable institutions,10 including all the necessary precautions to be taken and downstream warning tools to be used. This can be addressed with downstream warnings, signs, and awareness-raising programs, as required. Financial Considerations There are financial implications associated with the oversight authority, which should be appropri- ately resourced to enable it to carry out its mandated functions. A tax or fee may be used to finance or supplement the resources of the oversight authority and enhance its institutional capacity. Taxes or fees may also be justified to finance inspections. As an existing authority or multisector regulator may be recommended to be empowered for compliance or audit functions, an appropriate level of resources should be clearly allocated for this role. Financial and other forms of penalties should be assessed and be defined in regulations or concession agreements for noncompliance. The dam owner or operator should have a sufficient revenue stream to perform the necessary O&M tasks as well as other mandated responsibilities for dam safety. The relevant line ministry or multisector regulator should allocate resources for educating dam owners on their responsibilities for dam safety. 4.5 Privately Owned, Large Portfolio of Small Dams That Are Largely Low Risk/Hazard Private Large Small Low risk/ ownership portfolio dams hazard In this scenario, even though the size of the portfolio may be large, a dam safety framework between the middle and minimum end of the continuum would be appropriate, given that the dams are small and low-risk/low-hazard, necessitating relatively simple legal, institutional, and technical aspects. Legal Underpinnings There is no need for dedicated legislation, but responsibilities for dam safety and liability in the event of dam failure should be clearly defined. In common law systems, this definition may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in exist- ing law, or they may need to be prescribed in a new law. Institutional Arrangements A dedicated oversight authority is not necessary, but existing departments or units in charge of water resources, energy, or related fields should maintain an inventory of dams and their classification. At a minimum, the dam owner needs to be clearly instructed about the required level of standard of care 28 LAYING THE FOUNDATIONS and reporting procedures to the regulator ensuring sufficient capacity of the regulator to enact the required standard of care. Technical Requirements There should be a basic dam safety review system in place, including the review of designs, construc- tion plans, and dam safety conditions, an up-to-date inventory of all dams, and a simple classification system that is periodically reviewed for hazard creep. Dam owners, operators, and local authorities should follow a set of guidelines on safety for small dams, but it is not necessary for them to establish their own, unique guidelines. Instead, they may refer to existing guidelines published by reputable sources, such as ICOLD (1998, 2016) Bulletins 109 and 157 and/or the FAO’s manual on small earth dams (Stephens 2010). The guidelines should cover the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and low-risk/low-hazard dams may be required to meet the 1-in-100 to 1-in-200 years return period. It should also be recognized that the cumulative risk posed by many small dams in catchments can be higher than their individual risks/ hazards, in which case higher hydrological safety requirements may be warranted for those dams. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be monthly, and detailed formal inspections every 10 years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for small, low-risk/low-hazard dams, instrumentation can be very minimal and basic and included as part of the O&M. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For small, low-risk/low-hazard dams where there are no lives and/or economic, environmental, or societal assets, an EPP may not be required. • Public safety. Public safety during dam operation can be addressed with simple downstream warnings and signs, as appropriate. Financial Considerations The overall budgetary implications depend on the extent of the large portfolio. The responsible reg- ulatory entity should allocate enough resources for undertaking compliance review of the owner’s dam safety program, performance, and capacity. The owner or operator should have an adequate revenue stream to perform necessary O&M and other mandated dam safety measures. Given the large number of dams, revenue from a user or service fee or related tax could be generated to finance dam safety inspections by the existing authority, if possible. Financial penalties for noncompliance may be assessed. 4.6 Privately Owned, Large Portfolio of Small Dams That Are Largely High Risk/Hazard Private Large Small High risk/ ownership portfolio dams hazard Given the presence of a large portfolio of small dams deemed to be high-risk or high-hazard classifica- tions, this scenario fits between the middle and the maximum assurance end of the continuum. A Decision Support Tool for Dam Safety Assurance 29 Legal Underpinnings Depending on the size and type of the portfolio, dedicated dam safety legislation or specific sectoral regulation is necessary. This should be in the form of clearly articulated, uniform laws and regu- lations. The regulations should require dam owners/operators to submit annual or other periodic reports to demonstrate how they have fulfilled the owner’s dam safety responsibilities in compliance with the dam safety requirements. In a federal system, it may be appropriate to have legislation at the state level, as in the case of Australia and Canada, or possibly at both the state and federal levels, as in Brazil and the United States. In common law systems, the responsibility for dam safety and the liability in the event of dam fail- ure should be clearly defined. This may come from existing case law or precedent, including whether it is based on negligence or strict liability. If case law precedent does not exist, the dam safety legislation would need to define dam safety responsibility and liability. In common law systems, either specific dam safety legislation or enabling legislation may be appropriate. In the case of enabling legislation, wide, discretional powers pertaining to dam safety would be given to an existing authority under an existing law. In a specific dam safety law, powers pertaining to dam safety would be prescribed to a specific dam safety authority. In civil law systems, definitions of dam safety responsibility and dam failure liability must be specific and would be found in an existing dam safety statute and/or in the broader civil liability law. In civil law systems, specific dam safety legislation would have to be highly prescribed, but it could be in the form of an enabling law (for example, energy, water, or other laws depending on the types of portfolio) and specific regulations. Consideration should be given to the use of strong penalties, such as fines, revocation of licenses, and so forth for noncompliance. Institutional Arrangements Consideration should be given to the creation of a unit responsible for oversight of dam safety but not necessarily an authority dedicated solely to dam safety. For example, the ministry of energy or power could have responsibility for hydropower dam safety oversight and provide quality assurance in case a majority of large high-hazard dams are for hydropower. This may range from the execu- tion of simple compliance audits, which may be suitable for small dams, to more hands-on quality assurance. Provisions should be included to support periodic independent dam safety assessments. At a minimum, it is important for the regulator to establish a clear set of dam safety requirements and/or standard of care and undertake periodic compliance review and order remedies if necessary. The dam owner should demonstrate sufficient performance and capacity in line with the dam safety requirements. The regulator may introduce sanctions against noncompliance entities, such as penalties, fines, revocation of licenses, concession agreements, and so forth. Such concession agreements should be carefully prepared to enable the regulator to exercise remedies against noncomplying private entities. Technical Requirements There should be a sufficient dam safety review system in place, including an up-to-date inventory of all dams as well as a classification system that accounts for scenarios involving cascades or cumulative failures, which are common for small dams. There is a need for dam safety guidelines for small dams. These may be specific guidelines, developed to suit the country circumstances, or reference can be made to existing guidelines from reputable sources, as appropriate. Examples include ICOLD (1998, 2016) Bulletins 109 and 157 and/or the FAO’s manual on small earth dams (Stephens 2010). The technical requirements are essentially the same as what are ­ recommended at the maximum assurance end of the continuum. However, standards may be kept simple, clear, and deterministic and allow for use of simple design and review procedures. In particular, for lower-middle-income countries where the development of dams is led by private developers, some ­ formal establishment of national guidelines is recommended so that the regulator can require developers to comply with the e minimum safety ­ stablished ­ standards and requirements without ambiguity. The ­ following should be explicitly defined: 30 LAYING THE FOUNDATIONS • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, small and high-risk/high-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years or higher return period.11 It is important to note that small dams that may be low-risk/low-hazard individually may warrant a high-risk/high-hazard classification due to their cascade or cumulative threat when there are several in catchments. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of small, high-risk/high-hazard dams, this should be relatively frequent. Routine inspections could be daily, and detailed formal inspections every three years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for small, high-risk/high-hazard dams, instrumentation can be limited to essential elements only, but an effective management system should be in place, including data monitoring and interpretation. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/­potential consequence in case of dam failure. Basic EPPs and tools should be mandated for high-risk/high-­ hazard dams in the project or concession agreement. It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emer- gency agencies. • Public safety. Public safety during dam operation can be addressed with downstream warnings and signs as required. Financial Considerations The overall budgetary implications depend on the extent of the large portfolio. The relevant line min- istry or authority should allocate enough resources for dam safety quality assurance. A budgetary line item should be clearly specified for this dedicated unit. The resources allocated should be commensurate with the scope of responsibilities. The owner or operator should have a revenue stream sufficient to per- form necessary O&M and other mandated dam safety measures. A user fee or appropriate tax could be considered to finance dam safety inspections by the regulatory entity. Financial penalties for noncom- pliance may be considered. The relevant line ministry or local authority in charge of dam safety should clearly stipulate the minimum safety standard or safety requirements and the amount of penalties or fines in case of noncompliance. 4.7 Privately Owned, Large Portfolio of Large Dams That Are Largely Low Risk/Hazard Private Large Large Low risk/ ownership portfolio dams hazard This scenario, characterized by a large portfolio of large dams, requires a level of oversight well beyond the minimum criteria. Consisting of dams deemed to be low-risk or low-hazard classifications, it does not require the maximum level of assurance and thus it rests away from the maximum assurance end of the continuum and more toward the middle. It is worth noting, however, that it would be unlikely to find a real-world example of a large portfolio of large dams that are entirely low-risk/low-hazard. Legal Underpinnings It is not required to have dedicated legislation on dam safety, but the portfolio should be monitored for hazard creep. Dam safety provisions could be included in an existing law or in licensing requirements, including mandated periodic, independent assessment of the risk at the expense of the operator. A Decision Support Tool for Dam Safety Assurance 31 In common law systems, responsibility for dam safety and liability in the event of dam failure should be clearly defined. The definition may come from existing case law or precedent, including whether it is based on negligence or strict liability. In civil law systems, dam safety responsibility and liability for dam failure should be clearly defined in existing law, or they may need to be prescribed in a new law. If the above mandates are introduced, consideration should be given to the inclusion of financial penalties for noncompliance. Institutional Arrangements There is no need for a dedicated authority, but a regulatory entity responsible for dam safety oversight should be clearly established in an existing governmental structure. Consideration could be given to self-regulation, with an existing authority empowered to require independent assessment of risk. The role of this authority would largely be for quality assurance, which may range from the execution of simple compliance audits to more hands-on quality assurance, but simple compliance audits may be appropriate for low-risk/low-hazard large dams. At a minimum, the regulator should establish the dam safety standards or safety requirements and undertake the compliance review of private dam owners. Owners should demonstrate their dam safety program, performance, and capacity. Owners should be informed of such standards or requirements and penalties in case of noncompliance. Technical Requirements There should be an effective dam safety review system in place, including an up-to-date inventory of all dams. Their classification should be maintained and periodically checked for hazard creep. Consideration should be given to owners having independent assessment of risk of the dams. Given the large number of large dams, the government should consider developing its own guidelines on the minimum stan- dards of dams and safety requirements of large dams, suitable for the country circumstances. These guidelines may refer to existing guidelines published by recognized industry groups such as ICOLD, CDA, ANCOLD, and others. They should cover the following: • Design and review standards. A simple, deterministic set of design and review standards would be appropriate. In spillway design flood, for example, large and low-risk/low-hazard dams may be required to meet the 1-in-200 to 1-in-1,000 years return period. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. In the case of low-risk/low-hazard dams, this can be relatively infrequent. Routine inspections could be weekly, and detailed formal inspections every five years. • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for large, low-risk/low-hazard dams, instrumentation can be basic, but instruments should be properly maintained. • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/potential consequence in case of dam failure. For large but low-risk/low-hazard dams, a simple EPP may be sufficient. It is important to ensure training for dam operators and coordination with the disaster risk management authority and other relevant emergency agencies. • Public safety. Public safety during dam operation can be addressed with downstream warnings and signs, as appropriate. Financial Considerations The relevant line ministry or local government authority should allocate resources commensurate with the size and type of the portfolio and the scope of responsibility for dam safety. The owner or operator should have a revenue stream sufficient to perform necessary O&M and other mandated 32 LAYING THE FOUNDATIONS dam safety measures. A user fee or tax could be considered to finance dam safety inspections by the regulator. Penalties including fines, revocation of licenses, concession agreements, and so forth for noncompliance should be assessed and defined. The relevant line ministry or local authority should allocate resources for developing the design standards, regulatory framework, and the required capacity. 4.8 Privately Owned, Large Portfolio of Large Dams That Are Largely High Risk/Hazard Private Large Large High risk/ ownership portfolio dams hazard With a large portfolio or large, high-risk or high-hazard dams, a greater level of oversight is needed. Thus, this scenario rests toward the maximum end of the dam safety assurance continuum, requiring more complex legal and institutional arrangements and higher technical requirements. Legal Underpinnings Given the size and type of the portfolio, dedicated legislation or sectoral legislation on dam safety is necessary. For example, if a majority of the portfolio consists of hydropower dams, the ministry of energy or power may develop the dam safety regulation framework under its sectoral laws and reg- ulations. This should be in the form of clearly articulated, uniform laws and regulations. The regula- tions should require dam owners/operators to submit annual or other periodic reports to demonstrate how they have fulfilled the owner’s dam safety responsibilities in compliance with the dam safety requirements. In a federal system, it may be appropriate to have legislation at the state level, as in the case of Australia and Canada, or possibly at both the state and federal levels, as in Brazil and the United States. In common law systems, the responsibility for dam safety and liability in the event of dam failure should be clearly defined. This definition may come from existing case law or precedent and should include information on whether it is based on negligence or strict liability. If case law precedent does not exist, the dam safety legislation would need to define dam safety responsibility and liability. In common law systems, either specific dam safety legislation or enabling legislation may be appropri- ate. In the case of enabling legislation, wide, discretional powers pertaining to dam safety would be given to an existing authority under an existing law. In a specific dam safety law, powers pertaining to dam safety would be prescribed to a specific dam safety authority. In civil law systems, definitions of dam safety responsibility and dam failure liability must be specific and would be found in an exist- ing dam safety statute and/or in the broader civil liability law. In civil law systems, specific dam safety legislation would have to be highly prescribed, but it could be in the form of an enabling law and specific regulations. Increased compliance can be achieved with stronger penalties, including civil and criminal sanctions and revocation of licenses, concession agreements, and so forth. Institutional Arrangements A fully independent oversight body would be preferable under such a s ­ cenario. An apex institution with responsibility for oversight is ideal, but sectoral institutions would also be appropriate depend- ing on the type and size of the portfolio. The oversight body should be fully empowered with the following: • Authority to develop norms and standards • Authority to issue licenses and permits • Authority to supervise maintenance and surveillance of dams • Authority to conduct audits and inspections A Decision Support Tool for Dam Safety Assurance 33 • Authority to approve inspectors • Responsibility for maintaining the inventory of dams • Responsibility to provide advisory support • Authority to impose penalties and fines (even criminal penalties) in case of noncompliance • Authority to revoke license, concession contract, and so forth in case of noncompliance The quality assurance role of the oversight body may range from the execution of simple compli- ance audits to more hands-on quality assurance. The optimal mix of responsibilities given to this unit will depend on internal financial and technical capacity. Consideration should be given to establish- ing an advisory body composed of independent experts to assist the regulator in the execution of its functions relating to high-risk/high-hazard dams. The oversight body should report to the relevant minister, and its reports should be publicly avail- able, providing transparency of performance of dam owners and operators as well as the oversight body. In Brazil, for example, the federal Dam Safety Law mandates that regulatory agencies report to the National Water Authority via the National Dam Safety Information System. The National Water Authority reports to Congress by way of the annual national report on dam safety, which is publicly accessible. Staff of the oversight body and dam owners must have appropriate levels of education and training related to dams and their safety. Technical Requirements There should be a comprehensive and elaborate dam safety review system in place, including review and approval of new dam design, construction plans, and dam safety requirements, as well as the safety condition of existing dams and required remedies. An up-to-date inventory of all dams should be main- tained, and this database preferably should be publicly available. It should be mandated that there is a classification system in place considering size and hazard. It should be mandated that the government develop its own guidelines (in the case of common law systems) or standards (in the case of civil law systems). These guidelines or standards must be fit for purpose and account for the values and policy priorities of the country. They should cover the following: • Design and review standards. Design and review standards should be deterministic and risk informed where appropriate. Risk analysis, such as potential failure mode analysis, should be mandated or rec- ommended where possible. The dam owner or operator should be required to ensure the adequacy of the design, construction plans, and dam safety requirements through a qualified Owner’s Engineer and an independent panel of experts. Design and review requirements should be proportionate to risk/hazard, but deterministic standards may provide a large range of differentiation between the low and high ends of the classification system depending on the country’s context. For example, ANCOLD in Australia has classifications of Very Low, Low, Significant, High C, High B, High A, and Extreme, with acceptable design flood standards ranging from 1-in-100 years to probable maximum flood. High-risk/high-hazard dams are typically required to meet 1-in-1,000 to 1-in-10,000 years or PMF design standards. • O&M and safety inspections. The frequency of regular routine inspections and longer-term periodic and detailed formal inspections should be proportionate to the risk/hazard for the dams. For the large and high-risk/high-hazard dams, this should be sufficiently frequent and intensive to detect any anomalies at an early stage. For example, routine inspections could be daily, and detailed for- mal inspections every three years. The oversight body should, at the very least, also perform its own random audits or inspections. The requisite sophistication of the inspection and qualification of the inspectors must also be proportionate to the risk/hazard of the dam. For high-risk/high-hazard dams, it is necessary to have a highly qualified team with qualifications certified by the oversight body or an independent professional body. For example, in South Africa, inspectors and dam safety 34 LAYING THE FOUNDATIONS reviewers must come from a list of approved professional persons registered with the national engineering council and approved by the minister of water and sanitation. The safety file should be easily accessible to all those ­concerned and should include three main parts: (1) the as-built engineering details, (2) O&M records and monitoring data, and (3) EPP documents. Risk analyses, such as potential failure mode analysis, should also be mandated or recommended where possi- ble, recognizing that a risk-­informed approach has been effectively used for the review of many existing high-risk/high-hazard dams. ­ • Instrumentation. The level of instrumentation should be proportionate to the size and risk/hazard. Thus, for large, high-risk/high-hazard dams, instrumentation should be comprehensive, sophis- ticated, and reliable, and the effective management system should be in place, including data monitoring and interpretation. ­ • EPP. The level of detail in the EPP should be commensurate with the downstream hazard/poten- tial consequence in case of dam failure. For large, high-risk/high-hazard dams, an EPP should be required for operational issues as well as for dam-break scenarios. The EPP should include detailed dam-break analyses and well-planned coordination among all relevant parties, including disaster risk management authorities and the military, as appropriate. The EPP must also include the installation of warning systems and implementation of mock drills. For less hazardous dams, EPPs may not be so sophisticated and can be based on dam-break inundation zone estimates and clear but simple implementation or coordination procedures between different entities. It should also include a compilation of all the persons who should be contacted in case of dam failure. For example, in South Africa, category 3 dams require comprehensive plans with detailed flood maps, whereas a category 2 dam requires only a summary of intended actions by relevant parties, a listing of telephone contacts, and a basic map with approximate dam-break flood lines. • Public safety. Public safety during dam operation must be given serious consideration, with reference to guidelines from reputable institutions,12 including all the necessary precautions taken including downstream warning tools, incident reporting procedures, public awareness raising and education, and so forth. Financial Considerations Adequate funding and capacity for the oversight and enforcement body are required. An indepen- dent authority should allocate resources commensurate to the scope of regulatory responsibilities. Ideally, the oversight body is funded through a user-pays system, but this could be combined with resources allocated from the government budget. To ensure independence, the regulator should be insulated from the financial performance of owners and operators, that is, fees should be fixed and not dependent on fluctuating revenues. Financial and other forms of penalties should be considered for noncomplying entities and should be clearly defined in the regulations. The over- ­ sight body may choose to build its internal capacity or to outsource certain functions to expertise initially, or do a combination, with a long-term strategy for capacity development. The relevant line owners. ministry or authority should also allocate resources for training of authority staff and dam ­ If dam owners are mandated to have insurance, or purchase it voluntarily, then the insurance industry can also monitor adherence to acceptable standards, rewarding good performance with lower premiums. A Decision Support Tool for Dam Safety Assurance 35 5. USING THE DECISION SUPPORT TOOL: EXAMPLE CASES 5.1 Rapid Portfolio Growth Scenario Description Country A is a small, mountainous, middle-income country with a significant freshwater endowment. More than half of the country’s small population is concentrated in the capital city, which is in the west- ern part of the country on a high plateau, surrounded by increasingly commercial agricultural lands. The farmers, organized into cooperatives and water-user associations, operate 20 small irrigation dams, which they use for irrigation of cash crops. In the eastern part of the country, there are 6 large dams for hydropower under construction. The government has plans to develop at least another 18 dams in the next decade with a vision of becoming an exporter of electricity to neighboring industrializing countries. Legal Underpinnings Country A has a civil law legal system. There is no dedicated dam safety legislation. There are dam safety provisions in various sectors’ legislation, including the Irrigation Act and the Electricity Act, which empower the Agriculture and Energy Ministries, respectively, to regulate dam safety. Institutional Arrangements The Energy Ministry has imported dam safety expertise to support the oversight function of the min- istry during the design and construction of the six hydropower dams under development. Although the experts have strong qualifications and significant experience in the region, the Energy Ministry itself has no experience in monitoring and surveillance of operational dams. The Agriculture Ministry, in principle, has a long history of regulating dam safety for the small irrigation dams across the west- ern part of the country, but its enforcement capacity is weak, and it lacks sufficient human capital to carry out regular inspections. The de facto situation is self-regulation by the water-user associations. Technical Requirements Country A does not have its own dam safety guidelines, neither for small nor large dams. It relies on guidance issued by reputable industry associations. Financial Considerations General budgetary allocations to the responsible ministries are used to finance their dam safety over- sight functions. The water-user associations collect fees from their members for basic O&M. FIGURE 6 Illustration of dam portfolio composition: Rapid portfolio growth Size Small Large classification Number of dams Few Many Ownership arrangements Public Private Hazard Low High classification Starting position of the country/jurisdiction before the described changes to its portfolio in the scenario End position of the country/jurisdiction after the described changes to its portfolio in the scenario Source: Original figure for this publication. 36 LAYING THE FOUNDATIONS Using the Decision Framework Country A’s dams are primarily publicly owned. With new investments, the portfolio is growing, and its composition is shifting toward large dams. There will also be intensive development of hydropower resources in the same basins, increasing the risk of cascade failure. Legal Underpinnings Country A should consider instituting dedicated legislation solely for dam safety that covers all sectors, ensuring that it defines responsibility for dam safety. The government may also develop an internal compliance checking and safety review system for dam safety performance management, using inde- pendent review mechanisms for high-hazard dams. Institutional Arrangements The government should establish a dedicated oversight entity for dam safety, either as an independent authority or as a department or unit in an existing ministry. Depending on the extent of future dam development plans and the risk/hazard classifications of the dams, it may be advisable that this body be a fully independent, apex institution in coordination with existing regulatory systems under the Energy Ministry and Agriculture Ministry. To ensure independence of the body, internal controls could be put in place to separate dam operations from safety monitoring and compliance checking, or ownership of dams could be situated in a different branch of the ministry or a different ministry entirely from that which is responsible for oversight of dam safety regulations. It is first advisable to conduct a series of stakeholder workshops covering the energy, irrigation, water, disaster management, and other sectors to assess vari- ous institutional options and agree on the most optimal arrangement. Technical Requirements The government should develop its own set of dam safety standards, customized to the country con- text. Design and review standards can be deterministic but use a risk-informed approach for high-­ hazard cases. With the number of large and high-hazard/high-risk dams increasing, the owners should have robust dam safety programs, and the regulator should have a robust ­ system for checking compli- ance and performance. The regulating body should ­ provide clear definitions of design standards, safety requirements, and the standard of care, depending on a dam’s classification. For large, high-hazard/ high-risk dams, an EPP should be required not only for dam-break scenarios but also for large flood discharge scenarios without dam-break, as the latter would be more frequent but still cause significant consequences. Financial Considerations Public resources should be allocated for the maintenance and development of the regulator’s compli- ance checking system and staff capacity development for enforcement. As the dams are publicly owned in this scenario, the government should also allocate sufficient resources for O&M and dam safety requirements. It would be advised to use the portfolio risk assessment/portfolio risk management (PRA/ PRM) approach for optimizing budget allocation, starting with a simple risk index and using failure mode analysis for high-hazard cases. Fees may be collected from water users to finance the activities of the oversight body, including inspections. A Decision Support Tool for Dam Safety Assurance 37 5.2 Privatization and Hazard Creep Scenario Description Country B is a rapidly industrializing country. It has largely developed its hydropower potential, with 40 large hydropower schemes and over 100 smaller schemes in operation. Many of the dams are more than 30 years old, and areas that were previously rural floodplains have developed into medium-size towns downstream of the dams. In a bid to attract foreign investment, Country B has embarked on a medium-term utility reform program, including the privatization of most of its mature electricity and water supply utilities and their assets. About a third of the hydropower assets and a quarter of the water supply assets have successfully been divested to the private sector. Legal Underpinnings Country B has a civil law legal system with a national dam safety law, which prescribes dam safety mandates and appoints the Office of Utilities Regulation, a multisector regulator, to oversee and enforce dam safety regulations. Institutional Arrangements The Office of Utilities Regulation is currently mapped under the Ministry of Energy, which also owns most of the hydropower facilities and is in the process of divesting some of the schemes. The office has set up a dam safety unit that regulates both public and private dams, separating its unit from the project planning, implementation, and operation departments. Technical Requirements Country B has its own custom dam safety standards, which are over a decade old. Its design and review standards are deterministic. Financial Considerations The budget for the oversight body is included with the budget for the Ministry of Energy. The ministry also allocates resources to the department responsible for the project planning, implementation, and O&M of dams. Limited resources are made available for ministry and oversight body staff training. FIGURE 7 Illustration of dam portfolio composition: Privatization and hazard creep Size Small Large classification Number of dams Few Many Ownership arrangements Public Private Hazard Low High classification Starting position of the country/jurisdiction before the described changes to its portfolio in the scenario End position of the country/jurisdiction after the described changes to its portfolio in the scenario Source: Original figure for this publication. 38 LAYING THE FOUNDATIONS Using the Decision Framework Country B has a large portfolio of dams, both large and small. With the divestment program, the portfo- lio is transitioning from one comprising mostly publicly owned dams to one comprising mostly privately owned dams. As development has taken place in the downstream areas, the potential consequences of dam failure have increased significantly from the time when the dams were originally built. Legal Underpinnings The national dam safety law should define the roles and responsibility for dam safety between dam owners and the regulator. The legislation must be highly prescribed. Compliance enforcement is critical. Increased compliance can be achieved with stronger penalties, including fines, revocation of licenses, and so forth by clearly stipulating terms in regulations and/or concession agreements. Institutional Arrangements The government should make the dam safety unit independent in, or locate it separately from, the Office of Utilities Regulation. It should be fully empowered with sufficient financial and human capac- ity. An external experts commission could be established to review high-hazard cases. Its reports should be publicly available, providing transparency around the performance of dam owners and operators as well as the oversight body. Technical Requirements The dam safety review standards should incorporate risk-informed decision-­ making including PRA/ PRM for a large portfolio of dams and also risk analysis, such as potential failure mode analysis, for high- hazard cases. Such an approach may be mandated in the regulations, licenses, concession agreements, and so forth as suitable. Owner record keeping and periodic reporting to the regulator should also be mandated. Financial Considerations To ensure the independence of the Office of Utilities Regulation, it should secure its own budget, possibly including licensing and/or safety review fees from private owners in addition to the bud- get allocation under the Ministry of Energy. Enough resources should be allocated to the oversight body to maintain the compliance review of owners’ dam safety programs, p ­ erformance, and capacity. Sufficient resources should also be allocated to the part of the ministry that owns the dams for man- dated O&M and dam safety requirements. With the number of ­ privately owned dams increasing with the divestment program, the oversight body should seek to transition to a user-pay system. To ensure independence, the oversight body should be insulated from the financial performance of owners and operators: that is, fees should be fixed and not dependent on fluctuating revenues. Financial and other forms of penalties should be carefully reviewed and defined for noncompliance in the case of private dams. 5.3 Federal System of Governance Scenario Description Country C is a large, populous country with a federal system of governance. The states have significant autonomy and are very powerful compared to the central government. The country has a very diverse resource base and high economic inequality across states. One state in the northern part of the country is richer than the others, with higher human development, thanks to mining and hydropower royalties. This contrasts with the largest state in the south, which is regarded as the breadbasket of the country A Decision Support Tool for Dam Safety Assurance 39 and is highly dependent on irrigated agriculture. The remaining states in the country have service- and tourism-based economies, with only a few small dams as part of the water supply system. Legal Underpinnings Country C has a common law legal system and is a federation of states where law making and administration are possible for dams and their safety only at the state or provincial level, and national involvement is limited to encouragement or incentives to the states to develop uniform dam safety laws. There exists a national dam safety law, and most states have some form of dam safety legisla- tion, although their adequacy is very uneven. In general, dam safety legislation tends to be strongest in the states with significant private sector involvement, such as in the energy and mining sectors, while the states with agrarian economies have weaker dam safety legislation due to perceived lower risk of smaller dams. Institutional Arrangements A federal dam safety agency exists to coordinate and promote dam safety in order to encourage the establishment and maintenance of effective state dam safety programs, but this agency cannot impose binding mandates on the states. Technical Requirements The federal dam safety agency currently has a national register of dams, which it produces by collect- ing inputs from the states. It also has a national dams classification system based on hazard. There are technical guidelines for dam design, review, O&M, instrumentation, and EPPs for federally owned dams, but these are not binding on the states for dams owned by the states or the private sector. Financial Considerations The federal dam safety agency is funded entirely from intragovernmental transfers from the federal government. It has a specific budget line item for its overhead costs as well as O&M of federally owned infrastructure and the maintenance of the national dam safety register. The state governments have also allocated budget for dam safety assurance programs at the state level. FIGURE 8 Illustration of dam portfolio composition: Federal system of governance Size Small Varies by state Large classification Number of dams Few Many Ownership Public Varies by state Private arrangements Hazard Low Varies by state High classification Starting position of the country/jurisdiction before the described changes to its portfolio in the scenario End position of the country/jurisdiction after the described changes to its portfolio in the scenario Source: Original figure for this publication. 40 LAYING THE FOUNDATIONS Using the Decision Framework Country C has a large portfolio of dams, but at the state level, the portfolios are differentiated by purpose, size, and risk/hazard classification. While some states have robust dam safety assurance regimes, others do not. The federal government is, however, limited by the constitution to impose dam safety mandates on the states. Country C must, therefore, consider what tools are at its disposal to encourage, improve, and promote uniform dam safety regulation. Legal Underpinnings While the federal dam safety agency cannot bind the states with its own technical mandates, the federal government can offer incentives to the states to develop consistent dam safety legislation, which covers the key aspects laid out in the mandates for federally owned dams. The federal government may con- sider legislating a new dam safety law to ensure enhanced coordination and consistency in dam safety regulations between different states, and in particular for dams on rivers that cross states. Institutional Arrangements The federal dam safety agency should seek to establish close relationships with the states, providing advice and review of their dam safety assurance regimes. It can also develop specific training pro- grams for dam owners and public outreach programs for communities that aim to increase public awareness of dam safety risks. It can also provide guidance and encouragement by disseminating informational materials to educators and the press as well as by offering courses and seminars on dam safety to organizations and universities. Technical Requirements The federal dam safety agency may consider broadening its technical guidelines to be used as a nonbind- ing resource for the states. The federal government should periodically review the consistency in dam safety regulation under different states and ensure adequate coordination, in particular for operation of dams in interstate rivers. Financial Considerations The federal government can establish a program of financial incentives to promote uniformity of dam safety regulation and to improve its effectiveness in the states. This could be in the form of grants for states to help them implement mandates consistent with those at the federal level. Resources would also need to be allocated for the other activities to promote appropriate dam safety measures. The central government can also provide fee-based advisory services to states. 5.4 Transboundary Basin Scenario Description Country D’s eastern border is formed by a major transboundary river, shared with four other riparian countries. The country has plans to construct several large, multipurpose dams on one of the main tribu- taries of the transboundary river in its national borders. The dams are to be government owned but oper- ated and maintained by a private operator. The other riparian countries have similar development plans, and there exists one large dam for flood protection and irrigation on the main stem downstream in a neighboring country. A nascent river basin organization was established a decade ago with the purpose of coordinating development in the basin. There are also early discussions of creating a regional power pool. Legal Underpinnings Country D has a common law legal system. There is no dedicated dam safety legislation and no apex regulator for dam safety. There are dam safety provisions in the existing Water Act, which empowers the Water Resources Development Department in the Water Ministry to oversee the safety of dams. A Decision Support Tool for Dam Safety Assurance 41 Institutional Arrangements The Water Resources Development Department has a small complement of staff, all based in the capi- tal city, with the requisite training to oversee safety of the existing small, privately owned dams in the country. Technical Requirements Country D has its own custom guidelines for the safety of small dams but relies on external guidance for the safety of large dams. Financial Considerations The Water Resources Development Department is fully funded through general budgetary allocations to the Water Ministry. The department charges a small fee for inspections, but these fees do not come close to covering the costs associated with its dam safety oversight function. FIGURE 9 Illustration of dam portfolio composition: Transboundary basin Size Small Large classification Number of dams Few Many Ownership arrangements Public Private Hazard Low High classification Starting position of the country/jurisdiction before the described changes to its portfolio in the scenario End position of the country/jurisdiction after the described changes to its portfolio in the scenario Source: Original figure for this publication. Using the Decision Framework In the absence of a strong river basin organization, Country D and the other riparian countries in the basin have, until this point, taken a unilateral approach to managing and developing their water resources. The riparian countries do, however, share a number of international water law principles, and currently there is a good-faith agreement to eventually move toward a basin coordination approach for future water resources development, with the river basin organization responsible for collective planning and management of water resources. While all the dams in the basin are wholly in national borders, the intention is to ensure that all the riparian countries’ interests are represented in the basin development plans, regional benefits are optimized, and shared risks are mitigated. The river basin orga- nization currently lacks the capacity and authority to act as an implementer of dam projects in the basin, so it is focused on strengthening interstate cooperation and supporting dialogue around dam safety in the transboundary context. Legal Underpinnings ­ imilar Country D and the other riparian countries share a similar colonial history and, as a result, have s legal systems and institutional structures. The status of dam safety regulation is, however, heterogenous due to variations in the composition of each country’s dam portfolio. While for Country D, there is 42 LAYING THE FOUNDATIONS no dedicated dam safety legislation, the Water Act regulates dam safety for all dams except for tailings dams. In some of the other riparian countries, dam safety is regulated at the sector level, with different mandates and empowered authorities for different sectors. Country D, given its development plans, should consider passing dedicated dam safety legislation. It should also work with the river basin orga- nization to encourage harmonization of dam safety regulation to the extent possible with the other riparian countries. Institutional Arrangements Country D should consider the creation of an apex regulator, which is fully empowered, given the intention of developing several large, high-risk dams in the basin and the potential involvement of private concessionaires. It also needs to raise the technical and legal capacity of experts and officials on dam safety issues. At the basin level, the riparian countries should seek to increase their dialogue on dam safety and consider the establishment of a regional dam safety center, under the auspices of the river basin orga- nization. This center could host trainings and exchanges to foster shared understanding of dam safety issues among the countries, improve capacity at the national level to manage safety issues, and facilitate cooperation among national dam safety authorities. Technical Requirements With the shifts in the portfolio composition of Country D, there is a need for a greater level of sur- veillance, enhanced instrumentation, and greater requirements in terms of emergency preparedness. Consideration should be given to the development of custom dam safety guidelines for large dams, which take into consideration the specific country and transboundary basin context. At the basin level, the riparian countries should consider developing dam operation rules and emer- gency procedures in a collaborative way. Specifically, they should look at co-developing warning proce- dures, flood management initiatives, and agreements on flow regimes. Financial Considerations The riparian countries will have to agree on a sustainable financing regime for transboundary dam safety management. This should be accomplished through transferring resources and financial auton- omy to the dam safety center or by national dam safety authorities working on their own national budgets toward a shared program. NOTES 1. See chapter 5 of Laying the Foundations (Wishart et al. 2020), ICOLD (2021) Bulletin 192 and ICOLD (2018b) Bulletin 170 for a comprehensive consideration of dam classification systems and hydrological ­safety requirements. 2. Design flood criteria can differ from one country to another, and the magnitude of the selected design flood can vary significantly, depending on the perception and acceptance of societal risks, the prevailing socioeco- nomic and environmental context and public policy priorities of government, as well as technical aspects, such as adequacy and reliability of hydrometeorological data, among other considerations. In most instances, the design flood is selected on the basis of the dam classification system, which helps to secure a consistent safety level against floods and potential overtopping risk. For more detailed information, see ICOLD (2018b) Bulletin 170, which provides information and recommendations on hydrological assessment techniques, ­including on coping with uncertainties and determination of design floods and risk analyses. 3. Inspection types typically include routine, periodic, and formal inspections. Routine inspections are fre- quent visual observations that generally include a combination of continuous daily, weekly, monthly, and/or annual observations, while periodic inspections are usually every two or three years and include summaries of monitoring results, checks and tests, and so forth or for special requirements. Formal inspections, or dam safety reviews, are generally undertaken every 5 or 10 years, or on special request, and include detailed in- spections and investigations as needed. The frequency of inspected items would also differ depending on their A Decision Support Tool for Dam Safety Assurance 43 criticalness to dam safety and other considerations. Checking and testing of hydromechanical equipment, such as spillway gates and bottom outlets, are also important for dams, particularly those with gated spillways. This Decision Support Tool suggests only an indicative, generic frequency for routine and ­formal inspections. For more detailed information, see ICOLD (2009) ­Bulletin 138, “Basic Elements in a ‘Dam Safety’ Process,” and ICOLD (2018a) Bulletin 158, “Dam Surveillance Guide.” 4. The return period of the design flood for small dams is typically lower than that of large dams due to the fact that small dams with height between 2.5 and 15 meters and with H 2 ⋅ V < 200 (i.e., hydraulic force / ­impacts in case of dam failure are generally smaller than that of large dams) basically correspond to Potential Hazard Classification Zones I and II, warranting up to a 1,000-years or higher return period for design flood as per ICOLD (2016) Bulletin 157 on “Small Dams.” This is not to imply that the life of a person living downstream of a large high-risk/high-hazard dam is valued any differently than the life of a person living downstream of a similar high-risk/high-hazard small dam. 5. See, for example, ICOLD European Club 2012; CDA 2011; and TVA n.d. 6. Hazard creep is caused by changes in a catchment that may result in changes to the hazard potential classifi- cation for a dam. For example, new development in the inundation zone downstream of a dam, or upstream development or landcover changes that increase runoff from floods, can result in higher potential conse- quences if the dam were to fail or release water in an uncontrolled manner. 7. The return period of the design flood for small dams is typically lower than that of large dams due to the fact that small dams with height between 2.5 and 15 meters and with H 2 ⋅ V < 200 (i.e., hydraulic force / impacts in case of dam failure are generally smaller than that of large dams) basically correspond to Potential Hazard Classification Zones I and II, warranting up to a 1,000 years or higher return period for design flood as per ICOLD (2016) Bulletin 157 on “Small Dams.” This is not to imply that the life of a person living downstream of a large high-risk/high-hazard dam is valued any differently than the life of a person living downstream of a similar high-risk/high-hazard small dam. 8. See, for example, ICOLD European Club 2012; CDA 2011; and TVA n.d. 9. The return period of the design flood for small dams is typically lower than that of large dams due to the fact that small dams with height between 2.5 and 15 meters and with H 2 ⋅ V < 200 (i.e., hydraulic force / impacts in case of dam failure are generally smaller than that of large dams) basically correspond to Potential Hazard Classification Zones I and II, warranting up to a 1,000 years or higher return period for design flood as per ICOLD (2016) Bulletin 157 on “Small Dams.” This is not to imply that the life of a person living downstream of a large high-risk/high-hazard dam is valued any differently than the life of a person living downstream of a similar high-risk/high-hazard small dam. 10. See, for example, ICOLD European Club 2012; CDA 2011; and TVA n.d. 11. The return period of the design flood for small dams is typically lower than that of large dams due to the fact that small dams with height between 2.5 and 15 meters and with H 2 ⋅ V < 200 (i.e., hydraulic force / ­impacts in case of dam failure are generally smaller than that of large dams) basically correspond to Potential Hazard Classification Zones I and II, warranting up to a 1,000 years or higher return period for design flood as per ICOLD (2016) Bulletin 157 on “Small Dams.” This is not to imply that the life of a person living downstream of a large high-risk/high-hazard dam is valued any differently than the life of a person living downstream of a similar high-risk/high-hazard small dam. 12. See, for example, ICOLD European Club 2012; CDA 2011; and TVA n.d. REFERENCES CDA (Canadian Dam Association). 2011. Guidelines for Public Safety Around Dams. Toronto: CDA. https://www​ .cda.ca/En/Publications/CDA-Guidance-Documents​/Public_Safety_Publictions/EN/Publications_Pages/Public​ _Safety_Publications​.aspx?hkey=9f6b5899-f8d0-4cef-bc52-76df260b1290. ICOLD (International Commission on Large Dams). 1989. “Selecting Seismic Parameters for Large Dams: Guidelines.” Bulletin 72. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 1998. “Dams Less Than 30 Meters High: Cost Savings and Safety Improvements.” Bulletin 109. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 2009. “Basic Elements in a ‘Dam Safety’ Process.” Bulletin 138. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 2016. “Small Dams: Design, Surveillance, and Rehabilitation.” Bulletin 157. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 2017. “Dam Safety Management: Operational Phase of the Dam Life Cycle.” Bulletin 154. Paris: ICOLD/CIGB. 44 LAYING THE FOUNDATIONS ICOLD (International Commission on Large Dams). 2018a. “Dam Surveillance Guide.” Bulletin 158. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 2018b. “Flood Evaluation and Dam Safety.” Bulletin 170. Paris: ICOLD/CIGB. ICOLD (International Commission on Large Dams). 2021. “Dam Safety Guidance - Dam Safety Governance Considerations.” Bulletin 192 Preprint. Paris: ICOLD/CIGB. https://www.icold-cigb.org/GB/publications​ /bulletins.asp. ICOLD (International Commission on Large Dams) European Club. 2012. “Working Group on Public Safety at Dams—Final Report.” Paris: ICOLD/CIGB. http://cnpgb.apambiente.pt/IcoldClub/index.htm (under the Working Groups tab and then under Public Safety tab). Stephens, T. 2010. Manual on Small Earth Dams: A Guide to Siting, Design and Construction. Rome: Food and Agriculture Organization of the United Nations. TVA (Tennessee Valley Authority). n.d. “Steer Clear of Dam Dangers.” Knoxville, TN: TVA. https://www.tva.com​ /Environment/Lake-Levels/Hazardous-Waters. Wishart, Marcus J.; Ueda, Satoru; Pisaniello, John D.; Tingey-Holyoak, Joanne L.; Lyon, Kimberly N.; Boj García, Esteban. 2020. Laying the Foundations: A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities. Sustainable Infrastructure Series. Washington, DC: World Bank. https://openknowledge.worldbank.org/handle/10986/34796. SKU W22028