Dam Liability New Climate Issue in Rhode Island

There are dozens of dams throughout Rhode Island that are considered unsafe, with one expert telling the Providence Journal, “we are literally one storm away from loss of life.” 

Of the 668 dams in the state—many more than a century old—178 are classified as “high hazard” or “significant hazard” dams, meaning that failure of any of these dams would likely result in loss of life or major property damage.

According to the Journal, five dams failed due to historic floods in Rhode Island in 2010. While these dams were relatively small, torrential rain overloaded their capacity. Overtopping from excess rain is the most common form of dam failure, according to the Association of Dam Safety Officials, which not only results in flooding but also rapid erosion along river banks.

Increasing precipitation and extreme weather events associated with climate change pose additional challenges to dam operation, according to a recent study led by Read Porter, senior staff attorney with the Rhode Island Sea Grant Legal Program, and with contributions from  Rhode Island Sea Grant Law Fellows James Philopena, Jr. and Cory Lee.

Rolling Dam and fall colors of Blackstone Gorge. Woonsocket, Rhode Island, October 10, 2004. Photo Alexey Sergeev.

Many of these dams were not engineered to withstand today’s annual precipitation, which is on average 45 inches––eight times greater than in the 1930s. This rate is expected to continue to increase by about one inch per decade and may cause more upstream and downstream flooding even without dam failure, according to the study. More severe storms also add stress to deteriorating or poorly maintained structures. With a greater number of homes, businesses, and infrastructure built near dams since they were first constructed decades or centuries ago,  more people and infrastructure are in harm’s way. 

As the potential for dam failure grows, the increasing risk of damages to life and property may pose an increasing threat of legal liability to dam owners, which the study addresses.

“This study assists dam owners and the public in understanding the potential liabilities that may arise as a result of flooding,” said Porter. “We were asked by state and local agencies to conduct legal research to help them understand their liability exposure and how the legal system can improve management.”  

The study looks at how previous state law concerning dam construction, operation, and maintenance applies to present conditions, as well as current dam inspection requirements and penalties for noncompliance. It also explains multiple sources of liability, such as negligence, if a dam owner was found not to have taken reasonable care of the dam in relation to foreseeable risks, or private nuisance, if adjacent properties are flooded or otherwise adversely impacted either from a storm event or drawdown effort.

The study found that determining liability is complex, and depends on the value of a dam to the public, among other factors. “For example, a water supply dam may have critical value to the public, whereas a recreational, privately-operated hydropower dam or derelict dam would have less or no value,” according to the study. Dams that are considered “abnormally dangerous,” said Porter, mean that dam owners will be “held strictly liable” should they cause harm. 

Liability also differs based on the type of ownership: Government and private dam owners are subject to different liabilities under the Constitution and tort law. 

Constitutional claims can only be brought against government entities. For example, if flooding from a government-controlled dam impedes the use of the flooded property, it could be considered a violation of the Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.”

When it comes to extreme events, the study notes that there is an “Act of God” defense against liability in the event of catastrophic floods that beyond anyone’s ability to anticipate. However, improved technology in predicting storm intensity and frequency potentially limits the use of this particular defense.

Ultimately, dam owner liability for loss of life or property is complicated and varies depending on the type of flooding, the type of owner, the type and use of a dam, and the management decisions involved. The study finds that Rhode Island case law is generally limited and that regional standards from nearby states may guide future cases.

 

+ Read full report: Climate Change and Dam Owner Liability

– Meredith Haas | Rhode Island Sea Grant