Private dam not grandfathered from safety regs

Because the possibility that a dam could break is a continuing risk, an old dam isn’t exempt from newer rules for dam safety. So said the Missouri Supreme Court in an opinion released on May 5, 2009, reversing the ruling of a Springfield trial judge.

The trial judge threw out a suit filed by the Missouri Attorney General against the Olives, who had purchased a farm with an old dam on it. The suit alleged that the Olives violated the Missouri dam and reservoir safety law by failing to register the dam with the Missouri Dam and Reservoir Safety Council, a state agency. The dam was built in 1974, five years before the dam and reservoir safety regulations went into effect.

Registration of a dam triggers the implementation of a safety program and requires the submittal of an as-built survey of the dam. In other words, registration is the beginning of a process that allows the Dam and Reservoir Safety Council to keep track of the dam, make requirements for maintenance and repairs, and review any proposals for modification of the dam.

The trial judge’s decision was based on two points:

• The Missouri Constitution forbids laws to have  a retrospective effect, so the dam was “grandfathered,” not needing to be registered.
• The dam fit the “agricultural exemption”  from registration and safety.

The Supreme Court didn’t buy either point.

According to the Supreme Court’s opinion, a law is retrospective in effect and unconstitutional if it

• takes away or impairs a vested or substantial right or
• imposes a new obligation, duty or disability with respect to transactions or considerations already past.

The dam and reservoir safety law did not require the Olives’ dam to be rebuilt to current standards, but requires the dam to be maintained to protect public safety, because its “present use and its present ability to hold back substantial amounts of water is the issue,” the court said.

The Supreme Court also rejected the Olives’ claim for an “agricultural exemption,” stating that the exemption for dams for soil and water conservation, irrigation or wildlife conservation, provided by section 236.435.7 of the Revised Statutes of Missouri, was limited to the initial construction permit requirement of section 236.435, not the registration and safety requirements of section 236.440.

“Grandfathering” doesn’t apply to matters that present continuing risks to public health and safety.