Received a Virginia DCR Dam Safety Notice of Deficiency or Administrative Order? Immediate Steps for Dam Owners

A practical guide for Virginia dam owners who receive a DCR Notice of Deficiency Report or Administrative Order, including immediate steps, statutory framework under Va. Code 10.1-607 through 10.1-609 and 10.1-613, and how to work with licensed engineers and counsel.

Published by Virginia Waterfront Law Team

LEGAL DISCLAIMER: This article provides general information and is not legal advice. Dam-safety enforcement is fact-specific, and deadlines may run from the actual notice or order served on the owner.

Receiving a Notice of Deficiency Report (commonly called a Notice of Violation or NOV by property owners) or an Administrative Order from the Virginia Department of Conservation and Recreation (DCR) regarding dam safety is a significant matter that requires prompt and informed action. Understanding the legal terms, statutory framework, and immediate steps to undertake upon receipt of such a document is essential for preserving available procedural rights and responding to applicable compliance obligations as a dam owner. This article will guide you through crucial procedures after receiving such notices, including evaluating the notice, consulting experts, and preparing responses.

To help dam owners navigate Virginia's complex impounding structure regulations, we will explain relevant statutes, legal obligations, compliance requirements, enforcement processes, and penalty structures under Va. Code §§ 10.1-607 through 10.1-609 and § 10.1-613. Additionally, we provide practical insights for working with licensed Professional Engineers and an attorney licensed in Virginia and familiar with DCR dam-safety matters to help evaluate the engineering record, compliance responsibilities, and available procedural options.

Immediate Steps for Dam Owners: A 6-Step Checklist

Upon receiving a Notice of Deficiency Report or an Administrative Order from the Virginia DCR Dam Safety Program, dam owners should take the following steps carefully and promptly:

  1. Preserve the Complete Record. Keep all correspondence, inspection reports, engineering files, photographs, and notices received from DCR. Maintaining a thorough record is critical for legal review and response.
  2. Identify the exact legal document received. Determine whether you received a Notice of Deficiency Report or an administrative order. DCR's dam-safety enforcement guidance describes a Notice of Deficiency Report as identifying apparent deficiencies and recommending corrective measures; it is distinct from a formal administrative order issued pursuant to Va. Code § 10.1-609.
  3. Calendar All Statutory and Administrative Deadlines. Note important deadlines, including the 30-day period after being served by personal service or mail with an administrative order issued pursuant to Va. Code § 10.1-609 to petition the Virginia Soil and Water Conservation Board (the Board) for a hearing, and the 30-day period after completion of a safety inspection by your licensed Professional Engineer (PE) within which you must submit a corrective plan and implementation schedule to the Board, pursuant to Va. Code § 10.1-609(A). Timely awareness of these dates is vital for preserving your available procedural rights.
  4. Engage a Virginia-licensed Professional Engineer. Retain a PE when a safety inspection, corrective plan, engineering analysis, or report is required. The Board establishes safety-inspection and reinspection schedules, and every safety inspection must be conducted by, or under the supervision of, a Virginia-licensed PE. If DCR or the Board takes action under Va. Code §§ 10.1-607 and 10.1-608, the owner must ensure that the safety inspection is conducted within 30 days after that action and that the safety-inspection report is provided to DCR within 30 days after the inspection is completed. Other reporting requirements may arise under the owner's certificate, DCR directives, or applicable regulations. The PE can help evaluate any apparent deficiencies and develop corrective action plans.
  5. Assess Legal Options Promptly With Counsel Familiar With Virginia Dam-Safety and Administrative Matters. Consult with an attorney licensed in Virginia and familiar with DCR dam-safety matters to discuss possible responses, including petitioning the Board in writing for a hearing within 30 days after being served by personal service or mail with an administrative order issued pursuant to Va. Code § 10.1-609. A timely petition automatically stays the effect of the administrative order under Va. Code § 10.1-609(B). Counsel can also help evaluate the Board hearing process, potential judicial review after a final Board decision, and enforcement procedures under Va. Code §§ 10.1-609 and 10.1-613.
  6. Communicate Accurately and Cautiously With Regulatory Officials. Engage with DCR officials carefully, ensuring that communications are clear, documented, and aligned with legal advice to avoid creating an incomplete or inconsistent administrative record or complicating compliance efforts.

Understanding Virginia Dam Safety Regulations and Your Legal Obligations

Virginia law requires owners of impounding structures to maintain safe dams designed to protect public safety and environmental health. Key statutes govern inspections, corrective actions, enforcement, and penalties.

Safety Inspections Under Va. Code § 10.1-607

Va. Code § 10.1-607: Every safety inspection must be conducted by, or under the supervision of, a Virginia-licensed Professional Engineer, and each report must bear that engineer's seal and signature.

Owners must ensure that safety inspections of dams are performed by, or under the supervision of, a Virginia-licensed Professional Engineer (PE). Each safety-inspection report must bear the seal and signature of the responsible PE. Inspection and reinspection frequency is established by the Board based on the structure's condition, size, type, location, downstream hazard potential classification, and operational permit status.

If DCR or the Board takes action under Va. Code §§ 10.1-607 and 10.1-608, the owner must ensure that the safety inspection is conducted within 30 days after that action and that the safety-inspection report is provided to DCR within 30 days after the inspection is completed. Other reporting requirements may arise under the owner's certificate, DCR directives, or applicable regulations.

Notice of Deficiency Reports and Administrative Orders Under Va. Code § 10.1-609

Va. Code § 10.1-609(A)–(D): (A) 30 days after the PE safety inspection to submit a corrective plan and implementation schedule to the Board. (B) 30 days from service of an administrative order to petition the Board in writing for a hearing — a timely petition automatically stays the order. (C) Reclassified imminent-danger conditions may be enforced under § 10.1-613. (D) The Director may cause an impoundment to be lowered or drained at the owner's expense when an unsafe condition exists.

DCR's dam-safety enforcement guidance describes a Notice of Deficiency Report as a document that identifies apparent deficiencies and recommends corrective measures.

Under Va. Code § 10.1-609(A), after the owner's licensed PE completes a safety inspection, the owner has 30 days to submit a corrective plan and implementation schedule to the Virginia Soil and Water Conservation Board (the Board). If the owner fails or refuses to commence or diligently implement the corrections according to the plan and schedule, the DCR Director may issue an Administrative Order requiring such corrective action.

Per Va. Code § 10.1-609(B), an owner served with an administrative order issued pursuant to § 10.1-609 by personal service or mail has 30 days from service to petition the Board in writing for a hearing. A timely filed petition automatically stays the effect of the administrative order while the hearing is pending.

Enforcement Under Va. Code § 10.1-613 and Judicial Review After a Board Decision

Va. Code § 10.1-613: An owner who fails or refuses to comply with an order issued under the Dam Safety Act may be compelled to comply through enforcement proceedings.

An owner who fails or refuses to comply with an order issued pursuant to the Dam Safety Act may be compelled to comply through enforcement proceedings under Va. Code § 10.1-613. After the Board issues a final decision following a hearing under § 10.1-609(B), an aggrieved owner may seek judicial review under the Virginia Administrative Process Act.

Penalty Structure Under Va. Code § 10.1-609

Noncompliance with dam safety orders can result in civil penalties up to $500 per day, capped at a maximum of $25,000. In setting a civil penalty, the Director considers the nature, duration, and number of previous instances of noncompliance; corrective efforts; compliance costs; the dam's hazard classification; and other appropriate factors. The Director must suspend civil penalties when the owner complies with the administrative order and its schedule of compliance.

If DCR Determines Conditions Present Imminent Danger

Under Va. Code § 10.1-609(C), if changed circumstances justify reclassifying previously identified deficiencies as presenting an imminent danger to life or property after submission of a corrective plan, the Director may proceed under § 10.1-613 to enforce an administrative order, giving the owner an opportunity to contest the facts.

Under Va. Code § 10.1-609(D), when the Director determines that an unsafe condition exists at an impounding structure, the Director is authorized to cause the impoundment to be lowered or completely drained at the owner's expense until corrected and refilling is authorized.

How Do You Respond to a Notice of Deficiency Report or Administrative Order from Virginia DCR Dam Safety?

Effective responses require a clear understanding of the notice or order and alignment with statutory requirements. Key actions include coordinating with your licensed PE to evaluate deficiencies, developing and submitting corrective plans timely—within 30 days after completion of the PE safety inspection pursuant to Va. Code § 10.1-609(A)—and exploring your legal options with an attorney licensed in Virginia and familiar with DCR dam-safety matters for the Board hearing process and potential judicial review after a final Board decision under Va. Code § 10.1-609.

Issues to Evaluate With Counsel and Engineers

Dam owners should assess several factors when responding to DCR actions:

Consulting experienced legal counsel familiar with Virginia dam-safety and administrative matters along with your PE can help evaluate the engineering record, applicable deadlines, and available procedural options.

Professional Engineer's Role in Compliance

A licensed Virginia Professional Engineer plays a critical role in safety inspections, evaluating apparent deficiencies, and preparing corrective action plans. Inspection and reinspection frequency is established by the Board based on the dam's condition, size, type, location, and downstream hazard potential classification.

Each safety-inspection report must bear the seal and signature of the PE responsible for the inspection. If required by the Board in response to action under Va. Code § 10.1-608 or § 10.1-609, the report must also identify corrective actions and include a plan for implementing them.

Where to Find Expert Legal Help for Dam Safety Enforcement in Virginia

Enforcement actions under Virginia dam safety laws can involve complex statutory schemes and administrative processes. Dam owners facing Notices of Deficiency Reports or Administrative Orders may wish to consult an attorney licensed in Virginia and familiar with DCR dam-safety matters. Jim Lang Waterfront Law and the Waterfront Law Team assist owners in evaluating DCR notices, navigating statutory impounding structure regulations, and preserving administrative rights.

To discuss a specific DCR notice or administrative order, consider consulting an attorney licensed in Virginia and familiar with DCR dam-safety matters.

Frequently Asked Questions

What is the deadline to submit a dam safety corrective plan in Virginia?

Under Va. Code § 10.1-609(A), a dam owner must submit a corrective plan and implementation schedule to the Virginia Soil and Water Conservation Board within 30 days after completion of a safety inspection by the owner's licensed Professional Engineer.

What is the deadline to petition for a hearing after receiving a DCR Administrative Order?

Under Va. Code § 10.1-609(B), an owner served with an administrative order by personal service or mail has 30 days from service to petition the Board in writing for a hearing. A timely petition automatically stays the order.