PART 12--SAFETY OF WATER POWER 

PROJECTS AND PROJECT WORKS 

 

 Subpart A--General Provisions 

Sec. 

12.1 Applicability. 

12.2 Rules of construction 

12.3 Definitions. 

12.4 Staff administrative responsibilities and 

 supervisory authority. 

12.5 Responsibilities of licensee or applicant 

Subpart B – Reports and Records 

12.10 Reporting safety-related incidents. 

12.11 Reporting modifications of the project 

 or project works. 

12.12 Maintenance of records. 

12.13 Verification form. 

Subpart C – Emergency Action Plans 

12.20 General requirements. 

12.21 Exemptions. 

12.22 Contents of emergency action plan. 

12.23 Time for filing emergency action plan. 

12.24 Review and updating of plans. 

12.25 Posting and readiness. 

Subpart D – Inspection by Independent 

 Consultant

12.30 Applicability. 

12.31 Definitions. 

12.32 General inspection requirement. 

12.33 Exemption. 

12.34 Approval of independent consultant. 

12.35 Specific inspection requirements. 

12.36 Emergency corrective measures. 

12.37 Report of the independent consultant. 

12.38 Time for inspections and reports. 

12.39 Taking corrective measures after the 

 report. 

Subpart E – Other Responsibilities of 

 Applicant or Licensee

12.40 Quality control programs. 

12.41 Monitoring instruments. 

12.42 Warning and safety devices. 

12.43 Power and communication lines and 

 gas pipelines. 

12.44 Testing spillway gates. 

 AUTHORITY: Federal Power Act, as amended, 16 

U.S.C. 792-828c (1982); Department of Energy 

Organization Act, 42 U.S.C. 7101-7352 (1982); E.O. 

12009, 3 CFR 142 (1078). 

Source: Order 122, 46 FR 9036, Jan. 28, 1981, unless 

otherwise noted. 

Subpart A – General Provision 

 

§ 12.1 Applicability. 

 (a) Except as otherwise provided in this part or 

ordered by the Commission or its authorized 

representative, the provisions of this part 

apply to: 

 (1) Any project licensed under Part I of the 

Federal Power Act; 

 (2) Any unlicensed constructed project for 

which the Commission has determined that an 

application for license must be filed under Part I 

of the Act; and 

 (3) Any project exempted from licensing under 

Part I of the Federal Power Act, pursuant to 

subparts J or K of part 4 of this chapter, to the 

extent that the Commission has conditioned the 

exemption on compliance with any particular 

provisions of this part. 

 (b) The provisions of this part apply to a 

project that uses a Government dam only with 

respect to those project works, lands, and waters 

specifically licensed by the Commission. 

§ 12.2 Rules of construction. 

 (a) If any term, condition, article, or other 

provision in a project license is similar to any 

provision of this part, the licensee must comply 

with the relevant provision of this part, unless the 

Commission or the Director of the Office of 

Hydropower Licensing determines that 

compliance with the relevant provision of the 

license will better protect life, health, or property. 

 (b) A licensee may request from the Director of 

the Office of Hydropower Licensing a ruling on 

the applicability to its actions of any provision of 

its license that is similar to a provision of this 

part. A ruling by the Director may be appealed 

under Sec. 385.207 of this chapter. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended by Order 225, 47 FR 

19056, May 3, 1982; 49 FR 29370, July 20, 1984] 

§ 12.3 Definitions

 (a) General rule. For purposes of this part, 

terms defined in section 3 of the Federal Power 

Act, 16 U.S.C. 796, have the same meaning as 

they have under the Act. 

 (b) Definitions. The following definitions apply 

for the purposes of this part: 

 (1) Applicant means any person, state, or 

municipality that has applied for a license for an 
unlicensed, constructed project and any owner of 

an unlicensed, constructed project for which the 

Commission has determined that an application 

for license must be filed. 

 (2) Owner means any person, state, or 

municipality, or combination thereof, that has a 

real property interests in a water power project 

sufficient to operate and maintain the project 

works. 

 (3) Authorized Commission representative

means the Director of the Office of Hydropower 

Licensing, the Director of the Division of 

Inspections, the Regional Engineer, or any other 

member of the Commission staff whom the 

Commission may specifically designate. 

 (4) Condition affecting the safety of a project 

or project works means any condition, event, or 

action at the project which might compromise the 

safety, stability, or integrity of any project work 

or the ability of any project work to function 

safely for its intended purposes, including 

navigation, water power development, or other 

beneficial public uses; or which might otherwise 

adversely affect life, health, or property. 

Conditions affecting the safety of a project or 

project works include, but are not limited to: 

 (i) Unscheduled rapid draw-down of 

impounded water; 

 (ii) Failure of any facility that controls the 

release or storage of impounded water, such as a 

gate or a valve; 

 (iii) Failure or unusual movement, subsidence, 

or settlement of any part of a project work; 

 (iv) Unusual concrete deterioration or cracking, 

including development of new cracks or the 

lengthening or widening of existing cracks; 

 (v) Piping, slides, or settlements of materials in 

any dam, abutment, dike, or embankment; 

 (vi) Significant slides or settlements of 

materials in areas adjacent to reservoirs; 

 (vii) Significant damage to slope protection; 

 (viii) Unusual instrumentation readings; 

 (ix) New seepage or leakage or significant 

gradual increase in pre-existing seepage or 

leakage; 

 (x) Sinkholes; 

 (xi) Significant instances of vandalism or 

sabotage; 

 (xii) Natural disasters, such as floods, 

earthquakes, or volcanic activity; 

 (xiii) Any other signs of instability of any 

project work. 

 (5) Constructed project means any project with 

an existing dam. 

 (6) Dam means any structure for impounding 

or diverting water. 

 (7) Development means that part of a project 

comprising an impoundment and its associated 

dams, forebays, water conveyance facilities, 

power plants, and other appurtenant facilities. A 

project may comprise one or more developments. 

 (8) Modification means any activity, including 

repair or reconstruction, that in any way changes 

the physical features of the project from the state 

reflected in the plans or drawings or other 

documents filed with the Commission. 

 (9) Project emergency means an impending or 

actual sudden release of water at the project 

caused by natural disaster, accident, or failure of 

project works. 

 (10) Regional Engineer means the person in 

charge of the Commission's regional office for the 

region (Atlanta, Chicago, Fort Worth, New York, 

or San Francisco) where a particular project is 

located. 

 (11) Act means the Federal Power Act. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended at 49 FR 29370, July 20, 1984] 

§ 12.4 Staff administrative responsibility and 

supervisory authority

 (a) Administrative responsibility. The Director 

of the Office of Hydropower Licensing is 

responsible for administering the Commission's 

project safety program and reports directly to the 

Chairman of the Federal Energy Regulatory 

Commission. 

 (b) Supervisory authority of the Regional 

Engineer or other authorized representative. (1) 

Any water power project and the construction, 

operation, maintenance, use, repair, or 

modification of any project works are subject to 

the inspection and the supervision of the Regional 

Engineer or any other authorized Commission 

representative for the purpose of: 

 (i) Achieving or protecting the safety, stability, 

and integrity of the project works or the ability of 

any project work to function safely for its 

intended purposes, including navigation, water 

power development, or other beneficial public 

uses; or 

 (ii) Otherwise protecting life, health, or 

property. 

 (2) For the purposes set forth in paragraph 

(b)(1) of this section, a Regional Engineer or 

other authorized Commission representative may: 

 (i) Test or inspect any water power project or 

project works or require that the applicant or 

licensee perform such tests or inspections 

or install monitoring instruments; 
 (ii) Require an applicant or a licensee to submit 

reports or information, regarding: 

 (A) The design, construction, operation, 

maintenance, use, repair, or modification of a 

water power project or project works; and 

 (B) Any condition affecting the safety of a 

project or project works or any death or injury 

that occurs at, or might be attributable to, the 

water power project; 

 (iii) Require an applicant or a licensee to 

modify: 

 (A) Any emergency action plan filed under 

subpart C of this part; or 

 (B) Any plan of corrective measures, including 

related schedules, submitted after the report of an 

independent consultant pursuant to Sec. 12.37 or 

any other inspection report; 

 (iv) Require an applicant or licensee to take 

any other action with respect to the design, 

construction, operation, maintenance, repair, 

use, or modification of the project or its works 

that is, in the judgment of the Regional Engineer 

or other authorized Commission 

representative, necessary or desirable. 

 (v) Establish the time for an applicant or 

licensee to provide a schedule for or to perform 

any actions specified in this paragraph. 

 (c) Appeal, stay, rescission, or amendment of 

order or directive. (1) Any order or directive 

issued under this section or under the 

provisions of subparts B through E of this part by 

a Regional Engineer or other authorized 

Commission representative may be appealed to 

the Commission under Sec. 385.207 of this 

chapter. 

 (2) Any order or directive issued under this 

section by a Regional Engineer or other 

authorized Commission representative is 

immediately effective and remains in effect until: 

 (i) The Regional Engineer or other authorized 

Commission representative who issued the order 

or directive rescinds or amends that order or 

directive or stays its effect; or 

 (ii) The Commission stays the effect of the 

order or directive, or amends or rescinds the order 

or directive on appeal. 

 (3) An appeal or motion for rescission, 

amendment, or stay of any order or directive 

issued under this section must contain a full 

explanation of why granting the appeal or the 

request for rescission or amendment of the order 

or directive, or for stay for the period requested, 

will not endanger life, health, or property. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended by Order 225, 47 FR 

19056, May 3, 1982; 49 FR 29370, July 20, 1984] 

§ 12.5 Responsibilities of licensee or 

applicant.

 A licensee or applicant must use sound and 

prudent engineering practices in any action 

relating to the design, construction, operation, 

maintenance, use, repair, or modification of a 

water power project or project works. 

Subpart B – Reports and Records 

§ 12.10 Reporting safety-related incidents. 

 (a) Conditions affecting the safety of a project 

or its works--(1) Oral reports. An applicant or 

licensee must report by telephone to the 

Regional Engineer any condition affecting the 

safety of a project or projects works, as defined in 

Sec. 12.3(b)(4). The initial oral report must be 

made as soon as practicable after that condition is 

discovered, without unduly interfering with any 

necessary or appropriate emergency repair, alarm, 

or other emergency action procedure. 

 (2) Written reports. Following the initial oral 

report required in paragraph (a) (1), the applicant 

or licensee must submit to the Regional 

Engineer a written report on the condition 

affecting the safety of the project or project works 

verified in accordance with Sec. 12.13. The 

written report must be submitted within the time 

specified by the Regional Engineer and must 

contain any information the Regional Engineer 

directs, including: 

 (i) The causes of the condition; 

 (ii) A description of any unusual occurrences or 

operating circumstances preceding the condition; 

 (iii) An account of any measure taken to 

prevent worsening of the condition; 

 (iv) A detailed description of any damage to 

project works and the status of any repair; 

 (v) A detailed description of any personal 

injuries; 

 (vi) A detailed description of the nature and 

extent of any private property damages; and 

 (vii) Any other relevant information requested 

by the Regional Engineer. 

 (3) The level of detail required in any written 

report must be commensurate with the severity 

and complexity of the condition. 

 (b) Deaths or serious injuries. (1) Promptly 

after becoming aware of any drowning or other 

accident resulting in death or serious injury that 

occurs at the project, the applicant or licensee 

must report that drowning or other accident to the 
Regional Engineer in writing, including a 

description of the cause and location of the 

accident. 

 (2) The written report of any death or serious 

injury considered or alleged to be project related 

must also describe any remedial actions taken or 

proposed to avoid or reduce the chance of similar 

occurrences in the future and be verified in 

accordance with Sec. 12.13. 

 (3) Accidents that are not project-related may 

be reported by providing a copy of a clipping 

from a newspaper article, if available. 

 (4) For the purposes of this paragraph, projectrelated includes any deaths or serious injuries 

involving a dam, spillway, intake, or power 

line, or which take place at or immediately above 

or below a dam. 

§ 12.11 Reporting modifications of the project 

or project works.

 (a) Reporting requirement. Regardless of 

whether a particular modification is permitted 

without specific prior Commission approval, an 

applicant or licensee must report any modification 

of the project or project works to the Regional 

Engineer in writing, verified in accordance with 

Sec. 12.13, at the time specified in paragraph (b) 

of this section. 

 (b) Time of reporting. (1) Any modification 

that is an emergency measure taken in response to 

a condition affecting the safety of the project or 

project works must be submitted with the report 

of that condition required by Sec. 12.10(a)(2). 

 (2) In all other instances, the modification must 

be reported at least 60 days before work on the 

modification begins. 

§ 12.12 Maintenance of records.

 (a) Kinds of records--(1) General rule. Except 

as provided in paragraph (a)(2) of this section, the 

applicant or licensee must maintain as permanent 

project records in addition to those required in 

part 125 of this chapter, the following 

information: 

 (i) Engineering and geological data relating to 

design, construction, maintenance, repair, or 

modification of the project, including design 

memoranda and drawings, laboratory and other 

testing reports, geologic data (such as maps, 

sections, or logs of exploratory borings or 

trenches, foundation treatment, and excavation), 

plans and specifications, inspection and quality 

control reports, as built construction drawings, 

designers' operating criteria, photographs, and 

any other data necessary to demonstrate that 

construction, maintenance, repair, or modification 

of the project has been performed in accordance 

with plans and specifications; 

 (ii) Instrumentation observations and data 

collected during construction, operation, or 

maintenance of the project, including 

continuously maintained tabular records and 

graphs illustrating the data collected pursuant to 

Sec. 12.41; and 

 (iii) The operational and maintenance history 

of the project, including: 

 (A) The dates, times, nature, and causes of any 

complete or partial unscheduled shut-down, 

suspension of project operations, or reservoir 

filling restrictions related to the safety of the 

project or project works; and 

 (B) Any reports of project modifications, 

conditions affecting the safety of the project or 

project works, or deaths or serious injuries at 

the project. 

 (2) Exception. The applicant or licensee is not 

required to maintain as permanent project records 

any information specified in paragraph (a)(1) of 

this section that was or reasonably would have 

been prepared before the applicant or licensee 

acquired control of the project and that the 

applicant or the licensee never acquired or 

reasonably could have acquired. 

 (b) Location of records--(1) Original records. 

The applicant or licensee must maintain the 

originals of all permanent project records at 

a central location, such as the project site or the 

main business office of the applicant or licensee, 

secure from damage from any conceivable 

failure of the project works and convenient for 

inspection. The applicant or licensee must keep 

the Regional Engineer advised of the location of 

the permanent project records. 

 (2) Record copies. If the originals of the 

permanent project records are maintained at a 

central location other than the project site, the 

applicant or licensee must maintain at the project 

site copies of at least the project Exhibit G or L 

(design drawings), instrumentation data, and 

operational history that are necessary to the safe 

and efficient operation of the project. 

 (3) In accordance with the provisions of part 

125 of this chapter, the applicant or licensee may 

maintain original records, or record copies at the 

project site, in microform, if appropriate 

equipment is readily available to view the 

records. 

 (c) Transfer of records. If the project is taken 

over by the United States at the end of a license 

term or the Commission issues a new license to a 
different licensee, the prior licensee must transfer 

the originals of all permanent project records to 

the custody of the administering Federal agency 

or department or to the new licensee. 

§ 12.13 Verification form.

 If a document submitted in accordance with the 

provisions of this part must be verified, the form 

of verification attached to the document must be 

the following: 

State of [ ], 

County of [ ], ss: 

 The undersigned, being first duly sworn, states 

that [he, she] has read the above document and 

knows the contents of it, and that all of the 

statements contained in that document are true 

and correct, to the best of [his, her] knowledge 

and belief. 

________________________________________ 

[Name of person signing] 

 Sworn to and subscribed before me this [day] 

of [month], [year]. 

[Seal] 

________________________________________ 

[Signature of notary public or other state or local 

official authorized by law to notarize documents.] 

Subpart C – Emergency Action Plans

§ 12.20 General Requirements

 (a) Unless provided with a written exemption 

pursuant to Sec. 12.21, every applicant or licensee 

must develop and file with the Regional 

Engineer three copies of an emergency action 

plan and appendices, verified in accordance with 

Sec. 12.13. 

 (b) The emergency action plan must be: 

 (1) Developed in consultation and cooperation 

with appropriate Federal, state, and local agencies 

responsible for public health and safety; and 

 (2) Designed to provide early warning to 

upstream and downstream inhabitants, property 

owners, operators of water-related facilities, 

recreational users, and other persons in the 

vicinity who might be affected by a project 

emergency as defined in Sec. 12.3(b)(9). 

§ 12.21 Exemptions.

 (a) Grant of exemption. Except as provided in 

paragraph (b), if an applicant or licensee 

satisfactorily demonstrates that no reasonably 

foreseeable project emergency would endanger 

life, health, or property, the Regional Engineer 

may exempt the applicant or licensee from filing 

an emergency action plan. 

 (b) No exemption. A licensee or applicant may 

not be exempted from the requirements of Sec. 

12.22(c) for a radiological response plan. 

 (c) Conditions of exemptions. (1) An applicant 

or licensee who receives an exemption from filing 

an emergency action plan has the continuing 

responsibility to review circumstances upstream 

and downstream from the project to determine if, 

as a result of changed circumstances, a project 

emergency might endanger life, health, or 

property. 

 (2) Promptly after the applicant or licensee 

learns that, as a result of any change in 

circumstances, a project emergency might 

endanger life, health, or property, the applicant or 

licensee must inform the Regional Engineer of 

that changed condition without unduly delaying 

the preparation and implementation of the 

emergency action plan. 

 (3) Comprehensive review of the necessity for 

an emergency action plan must be conducted at 

least once each year. 

 (d) Revocation of exemption. (1) The Regional 

Engineer may revoke an exemption granted under 

this section if it is determined that, as a result of 

any change in circumstances, a project emergency 

might endanger life, health, or property. 

 (2) If an exemption is revoked, the applicant or 

licensee must file an emergency action plan 

within the time specified by the Regional 

Engineer. 

§ 12.22 Contents of emergency action plan.

 (a) Contents--(1) The plan itself. An emergency 

action plan must conform with the guidelines 

established, and from time to time revised, 

by the Director of the Office of Hydropower 

Licensing (available from the division of 

Inspections or the Regional Engineer) to provide: 

 (i) Instructions to project operators and 

attendants and other responsible personnel about 

the actions they are to take during a project 

emergency; 

 (ii) Detailed plans for notifying potentially 

affected persons, appropriate Federal, state, and 
local agencies, including public safety and law 

enforcement bodies, and medical units; and 

 (iii) Procedures for controlling the flow of 

water, including actions to reduce in-flows to 

reservoirs, such as limiting outflows from 

upstream dams or control structures, and actions 

to reduce downstream flows, such as increasing 

or decreasing outflows from downstream dams or 

control structures, on the waterway on which the 

project is located or its tributaries. 

 (2) Appendix to the plan. Each copy of the 

emergency action plan submitted to the Regional 

Engineer must be accompanied by an appendix 

conforming with the guidelines established by the 

Director of the Office of Hydropower Licensing 

that contains: 

 (i) Plans for training project operators, 

attendants, and other responsible personnel to 

respond properly during a project emergency, 

including instructions on the procedures to be 

followed throughout a project emergency and the 

manner in which the licensee will periodically 

review the knowledge and understanding that 

these personnel have of those procedures; 

 (ii) A summary of the study used for 

determining the upstream and downstream areas 

that may be affected by sudden release of water, 

including a summary of all criteria and 

assumptions used in the study and, if required by 

the Regional Engineer, inundation maps; and 

 (iii) Documentation of consultations with 

Federal, state, and local agencies, including 

public safety and law enforcement bodies, and 

medical units. 

 (b) Special factors. The applicant or licensee 

must take into account in its emergency action 

plan the time of day, particularly hours of 

darkness, in establishing the proper actions and 

procedures for use during a project emergency. 

 (c) Additional requirements for projects near 

nuclear power plants--(1) Radiological response 

plan. If the personnel operating any powerhouse 

or any spillway control facilities, such as gates or 

valves, of a project would be located within ten 

miles of a nuclear power plant reactor, the 

applicant or licensee must file, separately or as a 

supplement to any required emergency action 

plan, a radiological response plan that provides 

for emergency procedures to be taken if an 

accident or other incident results in the release of 

radioactive materials from the nuclear power 

plant reactor. 

 (2) A radiological response plan must: 

 (i) To the maximum extent practicable, include 

sufficient procedural safeguards to ensure that, 

during or following an accident or other incident 

involving the nearby nuclear power plant reactor, 

the project may be safely operated and, if 

evacuation is necessary, the project may be left 

unattended without danger to the safety of any 

project dam or to life, health, or safety upstream 

or downstream from the project; and 

 (ii) Explain the provisions, developed after 

consultation with the direct purchasers of project 

power, for cessation, curtailment, or continuation 

of generation of electric power at the project 

during or following an accident or other incident 

involving the nearby nuclear power plant reactor. 

 (3) Time of filing radiological response plan. 

(i) For a constructed project with an otherwise 

acceptable emergency action plan on file, any 

radiological response plan required must be filed: 

 (A) If an operating license for the nuclear 

power plant has been issued on or before March 

1, 1981, not later than three months from 

March 1, 1981; or 

 (B) In all other instances, not later than three 

months after the date an operating license for the 

nuclear power plant is issued. 

 (ii) For any project not described in Sec. 

12.22(c)(3)(i), any radiological response plan 

required must be filed contemporaneously with 

the emergency action plan or, if the project has 

been exempted from filing an emergency action 

plan, at the time the emergency action plan 

would otherwise have been required to be filed 

pursuant to Sec. 12.23. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended at 49 FR 29370, July 20, 1984] 

§ 12.23 Time for filing emergency action plan.

 (a) Unconstructed project. (1) Except as set 

forth in paragraph (a)(2), the emergency action 

plan for an unconstructed project must be filed no 

later than 60 days before the initial filling of the 

project reservoir begins. 

 (2) Temporary impoundment during 

construction. (i) For any unconstructed project, if 

a temporary impoundment would be created 

during construction, such as through construction 

of temporary or permanent cofferdams or large 

sediment control structures, and an accident to or 

failure of the impounding structures might 

endanger construction workers or otherwise 

endanger public health or safety, a temporary 

construction emergency action plan must be filed 

no later than 60 days before construction begins. 

 (ii) No later than 60 days before the initial 

filling of a project reservoir begins at a project for 

which a temporary emergency action plan has 
been filed the applicant or licensee must file 

modifications to that plan or a new plan, taking 

into account the differences in circumstances 

between the construction and post-construction 

periods. 

 (b) Unlicensed constructed project. (1) If the 

Commission has determined on or before March 

1, 1981 that a license is required for an 

unlicensed constructed project, the emergency 

action plan for that project must be filed no later 

than: 

 (i) Six months after March 1, 1981; or 

 (ii) Any earlier date specified by the 

Commission or its authorized representative. 

 (2) Except as set forth in paragraph (b)(1) of 

this section, the emergency action plan for an 

unlicensed constructed project must be filed no 

later than the earliest of: 

 (i) Six months after the date that a license 

application is filed; 

 (ii) Six months after the date that the 

Commission issues an order determining that 

licensing is required; or 

 (iii) A date specified by the Commission or its 

authorized representative. 

 (c) Licensed constructed project. If a licensed 

constructed project does not have an acceptable 

emergency action plan on file on March 1, 1981 

the emergency action plan must be filed no later 

than: 

(1) Six months after March 1, 1981; or 

 (2) Any earlier date specified by the 

Commission or its authorized representative. 

 (d) For good cause shown, the Regional 

Engineer may grant an extension of time for filing 

all or any part of an emergency action plan. 

§ 12.24 Review and updating of plans.

 (a) The emergency action plan must be 

continually updated to reflect any changes in the 

names or titles of project operators and attendants 

and other personnel with specified responsibilities 

for actions in an emergency and any changes in 

names of persons to call, telephone numbers, 

radio call signals, or other information critical to 

providing notification to affected persons, 

Federal, state, and local agencies, and medical 

units. 

 (b) An applicant or licensee has continuing 

responsibility to review the adequacy of the 

emergency action plan in light of any significant 

changes in upstream or downstream 

circumstances which might affect water 

flows or the location or extent of the areas, 

persons, or property that might be harmed in a 

project emergency. 

 (c) Promptly after an applicant or licensee 

learns of any change in circumstances described 

in paragraph (b) of this section, the applicant 

or licensee must: 

 (1) Inform the Regional Engineer of that 

change in circumstances; 

 (2) Consult and cooperate with appropriate 

Federal, state, and local agencies responsible for 

public health and safety to determine any 

advisable revisions to the emergency action plan; 

and 

 (3) File with the Regional Engineer three 

copies of any revisions to the appropriate studies, 

maps, plans, procedures, or other information 

in the emergency action plan itself or its 

appendices that have changed as a result of that 

consultation. 

 (d) An applicant or licensee must conduct a 

comprehensive review of the adequacy of the 

emergency action plan at least once each year. 

§ 12.25 Posting and readiness.

 (a) A copy of the current emergency action 

plan itself must be posted in a prominent location 

readily accessible to the licensee's or applicant's 

operating personnel who are responsible for 

controlling water flows and for notifying public 

health and safety agencies and affected persons. 

 (b) Each licensee or applicant must annually 

test the state of training and readiness of key 

licensee or applicant personnel responsible for 

responding properly during a project emergency 

to ensure that they know and understand the 

procedures to be followed throughout a project 

emergency. 

Subpart D – Inspection by Independent 

Consultant

§ 12.30 Applicability.

 This subpart applies to any licensed project 

development that has a dam: 

 (a) That is more than 32.8 feet (10 meters) in 

height above streambed, as defined in Sec. 

12.31(c); 

 (b) That impounds an impoundment with a 

gross storage capacity of more than 2,000 acrefeet (2.5 million cubic meters); or 

 (c) That has a high hazard potential and is 

determined by the Regional Engineer or other 

authorized Commission representative to 
require inspection by an independent consultant 

under this subpart. 

§ 12.31 Definitions.

 For purposes of this subpart: 

 (a) Independent consultant means any person 

who: 

 (1) Is a licensed professional engineer; 

 (2) Has at least 10 years experience and 

expertise in dam design and construction and in 

the investigation of the safety of existing dams; 

and 

 (3) Is not, and has not been within two years 

before being retained to perform an inspection 

under this subpart, an employee of the licensee 

or its affiliates or an agent acting on behalf of the 

licensee or its affiliates. 

 (b) Dam that has a high hazard potential

means any dam whose failure, in the judgment of 

the Commission or its authorized representative, 

might endanger human life or cause significant 

property damage, or which meets the criteria for 

high hazard potential as defined by the Corps of 

Engineers in 33 CFR part 222. 

 (c) Height above streambed means: 

 (1) For a dam with a spillway, the vertical 

distance from the lowest elevation of the natural 

streambed at the downstream toe of the dam to 

the maximum water storage elevation possible 

without any discharge from the spillway. The 

maximum water storage elevation is: 

 (i) For gated spillways, the elevation of the tops 

of the gates; 

 (ii) For ungated spillways, the elevation of the 

spillway crest or the top of any flashboards, 

whichever is higher; 

 (2) For a dam without a spillway, the vertical 

distance from the lowest elevation of the natural 

streambed at the downstream tow of the dam to 

the lowest point on the crest of the dam. 

 (d) Gross storage capacity means the 

maximum possible volume of water impounded 

by a dam with zero spill, that is, without the 

discharge of water over the dam or a spillway. 

 (e) The Director of the Office of Hydropower 

Licensing may, for good cause shown, grant a 

waiver of the 10 year requirement in paragraph 

(a)(2) of this section. Any petition for waiver 

under this paragraph must be filed in accordance 

with Sec. 1.7(b) of this chapter. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended at 49 FR 29370, July 

20, 1984] 

§ 12.32 General inspection requirement.

 In accordance with the procedures in Sec. 

12.35, the project works of each development to 

which this subpart applies, excluding 

transmission and transformation facilities and 

generating equipment, must be periodically 

inspected and evaluated by or under the 

responsibility and direction of at least one 

independent consultant, who may be a member of 

a consulting firm, to identify any actual or 

potential deficiencies, whether in the condition of 

those project works or in the quality or adequacy 

of project maintenance, surveillance, or methods 

of operation, that might endanger public safety. 

§ 12.33 Exemption.

 (a) Upon written request from the licensee, the 

Director of the Office of Hydropower Licensing 

may grant an exemption from the requirements of 

this subpart in extraordinary circumstances that 

clearly establish good cause for exemption. 

 (b) Good cause for exemption may include the 

finding that the development in question has no 

dam except dams that meet the criteria for low 

hazard potential as defined by the Corps of 

Engineers in 33 CFR part 222. 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended at 49 FR 29370, July 20, 1984] 

§ 12.34 Approval of independent consultant.

 At least 60 days before the initiation of an 

inspection under this subpart, the licensee must 

submit to the Director of the Office of 

Hydropower Licensing for approval, with a copy 

to the Regional Engineer, a detailed resume that 

(a) describes the experience of the independent 

consultant; and, (b) shows that the consultant is 

an independent consultant as defined in Sec. 

12.31(a). 

[Order 122, 46 FR 9036, Jan. 28, 1981, as 

amended at 49 FR 29370, July 20, 1984] 

§ 12.35 Specific inspection requirements.

 (a) Scope of inspection. The inspection by the 

independent consultant shall include: 

 (1) Due consideration of all relevant reports on 

the safety of the development made by or written 

under the direction of Federal or state agencies, 
submitted under Commission regulations, or 

made by other consultants; 

 (2) Physical field inspection of the project 

works and review and assessment of all relevant 

data concerning: 

 (i) Settlement; 

 (ii) Movement; 

 (iii) Erosion; 

 (iv) Seepage; 

 (v) Leakage; 

 (vi) Cracking; 

 (vii) Deterioration; 

 (viii) Seismicity; 

 (ix) Internal stress and hydrostatic pressures in 

project structures or their foundations or 

abutments; 

 (x) The functioning of foundation drains and 

relief wells; 

 (xi) The stability of critical slopes adjacent to a 

reservoir or project works; and 

 (xii) Regional and site geological conditions; 

and 

 (3) Specific evaluation of: 

 (i) The adequacy of spillways; 

 (ii) The effects of overtopping of nonoverflow 

structures; 

 (iii) The structural adequacy and stability of 

structures under all credible loading conditions; 

 (iv) The relevant hydrological data 

accumulated since the project was constructed or 

last inspected under this subpart; 

 (v) The history of the performance of the 

project works through analysis of data from 

monitoring instruments; and 

 (vi) The quality and adequacy of maintenance, 

surveillance, and methods of project operations 

for the protection of public safety. 

 (b) Evaluation of spillway adequacy. The 

adequacy of any spillway must be evaluated by 

considering hazard potential which would result 

from failure of the project works during flood 

flows. 

 (1) If structural failure would present a hazard 

to human life or cause significant property 

damage, the independent consultant must 

evaluate the ability of project works to withstand 

the loading or overtopping which may occur from 

a flood up to the probable maximum flood or the 

capacity of spillways to prevent the reservoir 

from rising to an elevation that would endanger 

the project works. 

 (2) If structural failure would not present a 

hazard to human life of cause significant property 

damage, spillway adequacy may be evaluated 

by means of a design flood of lesser magnitude 

than the probable maximum flood, if the report of 

the independent consultant pursuant to Sec. 12.37 

provides a detailed explanation of the bases for 

the finding that structural failure would not 

present a hazard to human life or cause significant 

property damage. 

§ 12.36 Emergency corrective measures.

 If, in the course of an inspection, an 

independent consultant discovers any condition 

for which emergency corrective measures are 

advisable, the independent consultant must 

immediately notify the licensee and the licensee 

must report that condition to the Regional 

Engineer pursuant to Sec. 12.10(a) of this part. 

§ 12.37 Report of the independent consultant. 

 (a) General requirement. Following inspection 

of a project development as required under this 

subpart, the independent consultant must prepare 

a report and the licensee must file three copies of 

that report with the Regional Engineer. The report 

must conform to the provisions of this section and 

be satisfactory to the authorized Commission 

representative. 

 (b) General information in the initial report. 

(1) The initial report filed under this subpart for 

any project development must contain: 

 (i) A description of the project development; 

 (ii) A map of the region indicating the location 

of the project development; 

 (iii) Plans, elevations, and sections of the 

principal project works; 

 (iv) A summary of the design assumptions, 

design analyses, spillway design flood, and the 

factors of safety used to evaluate the structural 

adequacy and stability of the project works; and 

 (v) A summary of the geological conditions 

that may affect the safety of the project works. 

 (2) To the extent that the information and 

analyses required in paragraph (b)(1) of this 

section, are contained in a report of an 

independent consultant prepared and filed in 

compliance with Commission regulations in 

effect before March 1, 1981 the information and 

analyses may be incorporated by specific 

reference into the first report prepared and filed 

under this subpart. 

 (c) Information required for all reports. Any 

report of an independent consultant filed under 

this subpart must contain the information 

specified in this paragraph. 

 (1) Monitoring information. The report must 

contain monitoring information that includes 

time-versus-reading graphs depicting data 
compiled from any existing critical or 

representative monitoring instruments that 

measure the behavior, movement, deflection, or 

loading of project works or from which the 

stability, performance, or functioning of the 

structures may be determined. 

 (i) Any monitoring data plotted on graphs must 

be presented in a manner that will facilitate 

identification and analysis of trends. The 

data may be summarized to facilitate graphical 

representation. 

 (ii) Plan and sectional drawings of project 

structures sufficient to show the location of all 

critical or representative existing monitoring 

instruments must be included. If these drawings 

have been included in a previous report prepared 

and filed by an independent consultant, they 

may be incorporated by specific reference to that 

earlier report. 

 (2) Analyses. The report must: 

 (i) Analyze the safety of the project works and 

the maintenance and methods of operation of the 

development fully in light of the independent 

consultant's reviews, field inspections, 

assessments, and evaluations described in Sec. 

12.35; 

 (ii) Identify any changes in the information and 

analyses required by paragraph (b) of this section 

that have occurred since the last report by an 

independent consultant under this subpart and 

analyze the implications of those changes; and 

 (iii) Analyze the adequacy of existing 

monitoring instruments, periodic observation 

programs, and other methods of monitoring 

project works and conditions effecting the safety 

of the project or project works with respect to the 

development. 

 (3) Incorporation by reference. To the extent 

that conditions, assumptions, and available 

information have not changed since the last 

previous report by an independent consultant 

under this subpart, the analyses required under 

paragraphs (c)(2)(i) and (ii) of this section 

may be incorporated by specific reference to the 

last previous report. 

 (4) Recommendations. Based on the 

independent consultant's field observations and 

evaluations of the project works and the 

maintenance, surveillance, and methods of 

operation of the development, the report 

must contain the independent consultant's 

recommendations on: 

 (i) Any corrective measures necessary for the 

structures or for the maintance or surveillance 

procedures or methods of operation of the 

project works; 

 (ii) A reasonable time to carry out each 

corrective measure; and 

 (iii) Any new or additional monitoring 

instruments, periodic observations, or other 

methods of monitoring project works or 

conditions that may be required. 

 (5) Dissenting views. If the inspection and 

report were conducted and prepared by more than 

one independent consultant, the report must 

clearly indicate any dissenting views concerning 

the analyses or recommendations of the report 

that might be held by any individual consultant. 

 (6) List of participants. The report must 

identify all professional personnel who have 

participated in the inspection of the project or in 

preparation of the report and the independent 

consultant who directed those activities. 

 (7) Statement of independence. The 

independent consultant must declare that all 

conclusions and recommendations in the report 

are made independently of the licensee, its 

employees, and its representatives. 

 (8) Signature. The report must be signed by 

each independent consultant responsible for the 

report. 

§ 12.38 Time for inspections and reports. 

 (a) General rule. After the initial inspection 

and report under this subpart for a project 

development, a new inspection under this subpart 

must be completed and the report on it filed not 

later than five years from the date the last report 

on an inspection was to be filed under this 

subpart. 

 (b) Initial inspection and report. (1) For any 

development that has a dam that is more than 32.8 

feet (10 meters) in height above streambed 

or impounds an impoundment with a gross 

storage capacity of more than 2,000 acre feet (2.5 

million cubic meters), which development was 

constructed before the date of issuance of the 

order licensing or amending a license to include 

that development, the initial inspection under this 

subpart must be completed and the report on it 

filed not later than two years after the date of 

issuance of the order licensing the development or 

amending the license to include the development. 

 (2) For any development that was constructed 

after the date of issuance of the order licensing or 

amending a license to include the development, 

the initial inspection under this subpart must be 

completed and the report on it filed not later than 

five years from the date of first commercial 

operation, or the date on which the impoundment 
first reaches its normal maximum surface 

elevation, whichever occurs first. 

 (3) For any development not set forth in either 

subparagraph (b)(1) or (b)(2), the initial 

inspection under this subpart must be completed 

and the report on it filed by a date specified by the 

Regional Engineer. The filing date must not be 

more than two years after the date of notification 

that an inspection and report under this subpart 

are required. 

 (4) The last independent consultant's inspection 

and report made for a development before 

March 1, 1981 in compliance with the 

Commission's rules then in effect is deemed to 

fulfill the requirements for an initial inspection 

and report under this subpart for that 

development, except that the first report filed 

under this subpart for that development after 

March 1, 1981 must contain the information and 

analyses required by Sec. 12.37(b). 

 (c) Extension of time. For good cause shown, 

the Regional Engineer may extend the time for 

filing an independent consultant's report under 

this subpart. 

§ 12.39 Taking corrective measures after the 

report. 

 (a) Corrective plan and schedule. (1) Not later 

than 60 days after the report of the independent 

consultant is filed with the Regional Engineer, the 

licensee must submit to the Regional Engineer 

three copies of a plan and schedule for designing 

and carrying out any corrective measures that the 

licensee proposes. 

 (2) The plan and schedule may include any 

proposal, including taking no action, that the 

licensee considers a preferable alternative to any 

corrective measure recommended in the report of 

the independent consultant. Any proposed 

alternative must be accompanied by the 

licensee's complete justification and detailed 

analysis and evaluation in support of that 

alternative. 

 (b) Carrying out the plan. The licensee must 

complete all corrective measures in accordance 

with the plan and schedule submitted to, and 

approved or modified by, the Regional Engineer. 

 (c) Extension of time. For good cause shown, 

the Regional Engineer may extend the time for 

filing the plan and schedule required by this 

section. 

Subpart E – Other Responsibilities of 

Applicant or Licensee 

§ 12.40 Quality control programs. 

 (a) General rule. During any construction, 

repair, or modification of project works, including 

any corrective measures taken pursuant to 

Sec. 12.39 of this part, the applicant or licensee 

must maintain any quality control program that 

may be required by the Regional Engineer, 

commensurate with the scope of the work and 

meeting any requirements or standards set by the 

Regional Engineer. If a quality control program is 

required, the construction, repair, or modification 

may not begin until the Regional Engineer has 

approved the program. 

 (b) If the construction, repair, or modification 

work is performed by a construction contractor, 

quality control inspection must be performed by 

the licensee, the design engineer, or an 

independent firm, other than the construction 

contractor, directly accountable to the licensee. 

This paragraph is not intended to prohibit 

additional quality control inspections by the 

construction contractor, or a firm accountable to 

the construction contractor, for the construction 

contractor's purposes. 

 (c) If the construction, repair, or modification 

of project works is performed by the applicant's 

or licensee's own personnel, the applicant or 

licensee must provide for separation of authority 

within its organization to make certain that the 

personnel responsible for quality control 

inspection are, to the satisfaction of the Regional 

Engineer or other authorized Commission 

representative, independent from the personnel 

who are responsible for the construction, repair or 

modification. 

§ 12.41 Monitoring instruments. 

 (a) In designing a project, a licensee must make 

adequate provision for installing and maintaining 

appropriate monitoring instrumentation whenever 

any physical condition that might affect the 

stability of a project structure has been discovered 

or is anticipated. The instrumentation must be 

satisfactory to the Regional Engineer and may 

include, for example, instruments to monitor 

movement of joints, foundation or embankment 

deformation, seismic effects, hydrostatic pore 

pressures, structural cracking, or internal stresses 

on the structure. 
 (b) If an applicant or licensee discovers any 

condition affecting the safety of the project or 

project works during the course of 

construction or operation, the applicant or 

licensee must install and maintain any monitoring 

devices and instruments that may be required by 

the Regional Engineer or other authorized 

Commission representative to monitor that 

condition. 

§ 12.42 Warning and safety devices. 

 To the satisfaction of, and within a time 

specified by, the Regional Engineer, an applicant 

or licensee must install, operate, and maintain 

any signs, lights, sirens, barriers, or other safety 

devices that may reasonably be necessary or 

desirable to warn the public of fluctuations 

in flow from the project or otherwise to protect 

the public in the use of project lands and waters. 

§ 12.43 Power and communication lines and 

gas pipelines. 

 (a) A licensee must take all reasonable 

precautions, and comply with all reasonable 

specifications that may be provided by the 

Regional Engineer, to ensure that any power or 

communication line or gas pipeline that is located 

over, under, or in project waters does not obstruct 

navigation for recreational or commercial 

purposes or otherwise endanger public safety. 

 (b) Clearances between any power or 

communication line constructed after March 1, 

1981 and any vessels using project waters must 

be at least sufficient to conform to any applicable 

requirements of the National Electrical Safety 

Code in effect at the time the power or 

communication line is constructed. 

 (c) The Regional Engineer may require a 

licensee or applicant to provide signs at or near 

power or communication lines to advise the 

public of the clearances for any power or 

communication lines located over, under, or in 

project waters. 

§ 12.44 Testing spillway gates. 

 (a) General requirement. An applicant or 

licensee must make adequate provision, to the 

satisfaction of the Regional Engineer or other 

authorized Commission representative, to ensure 

that all spillway gates are operable at all times, 

particularly during adverse weather conditions. 

 (b) Annual test. (1) At least once each year, 

each spillway gate at a project must be operated 

to spill water, either during regular project 

operation or on a test basis. 

 (2) If an applicant or licensee does not operate 

each spillway gate on a test basis during the 

periodic inspection by the Commission staff, 

the applicant or licensee must submit to the 

Regional Engineer at least once each year a 

written statement, verified in accordance with 

Sec. 12.13, that each spillway has been operated 

at least once during the twelve months preceding 

the inspection. 

 (c) Load-test of standby power. (1) An 

applicant or licensee must load-test the standby 

emergency power for spillway gate operation at 

regular intervals, but not less than once during 

each year, and submit to the Regional Engineer, 

at least once each year, a written statement, 

verified in accordance with Sec. 12.13, describing 

the intervals at which the standby emergency 

power was load-tested during the year preceding 

the inspection. 

 (2) The Commission staff may direct that a 

spillway gate be operated using standby 

emergency power during the periodic inspection.