David Capka: Advancing Dam Safety at the Federal Energy Regulatory Commission
April 15, 2021
The Federal Energy Regulatory Commission (FERC) licenses almost all nonfederal hydropower dams in the United States. To maintain a license or exemption, dam owners must meet a number of criteria, including many related to dam safety, and carry out periodic inspections. Currently, FERC is considering significant technical revisions to the part 12 process, one of its main dam safety inspection processes. In this interview, David Capka, the director of FERC’s Division of Dam Safety and Inspections, tells Hydro Leader about the agency’s dam safety work, the status of the part 12 revision process, and new trends in dam safety risk analysis.
Hydro Leader: Please tell us about your background and how you came to be in your current position.
David Capka: I’ve got about 25 years of federal government engineering experience. I started with the U.S. Army Corps of Engineers in the Baltimore district as a civil engineer in the construction and engineering divisions, where I worked on dams, levees, and civil works projects. I transferred to the U.S. Department of the Interior’s Bureau of Indian Affairs in Washington, DC, in 2005, and worked as a dam safety program manager. I then came to FERC in 2006. I started as a geotechnical engineer, then became headquarters branch chief, then deputy director, and now I am the director of the Division of Dam Safety and Inspections, a position I have held since March 2017.
Hydro Leader: Please tell us about FERC and how hydropower and dam safety fit into its overall mission.
David Capka: FERC is an independent agency that regulates the interstate transmission of electricity, natural gas, and oil. FERC reviews proposals to build liquefied natural gas terminals and interstate natural gas pipelines and licenses hydropower projects. FERC’s mission is to guarantee efficient, safe, reliable, and secure energy for consumers. FERC is responsible for licensing nonfederal hydropower projects in the United States. Hydropower fits within the mission of guaranteeing safe, reliable, secure energy for consumers, and the safe part is where dam safety comes in. FERC retains oversight and jurisdiction over hydropower projects for their full license terms.
Hydro Leader: Which dams require FERC licenses, and how many of those dams are there?
David Capka: In general, any nonfederal dam that generates hydropower requires a FERC license. There are occasional, minor exceptions to that. When I say license, I am including exemptions, which are another form of licensing. We treat exempt dams the same way within dam safety—they just have to meet different requirements to get their exemptions than the requirements other dams have to meet to get their licenses. The federal government gets involved with nonfederal hydropower because of its oversight of interstate commerce and the use of navigable waters in the United States. Most of our projects fall under both of those categories, some under just one. We currently have over 1,650 licensed and exempt projects. Those 1,650 include over 2,500 dams. Some licensed projects include multiple dams. The numbers fluctuate annually, because some projects leave FERC jurisdiction, and some come into FERC jurisdiction.
Hydro Leader: What part does dam safety play in attaining and maintaining a FERC license, and what requirements do dam constructors and owners need to meet?
David Capka: The dams that fall under FERC jurisdiction have to meet the engineering requirements found in FERC’s engineering guidelines for dam safety. The Federal Guidelines for Dam Safety are the overarching framework we work under. They define some general standards for flood passage, stability, and similar things. FERC’s guidelines go into more detail on all the different analyses that are required and the different types of loading conditions that have to be safely accommodated by a structure. Any project that comes under FERC jurisdiction has to meet those requirements and must continue to meet them as long as it is under our jurisdiction.
We also have something called the part 12 process, which is a 5‑year independent consultant and inspection process that is detailed in our regulations. During that process, an independent consultant assesses the loading conditions that the project was designed for and determines whether any updates should be recommended. Examples of that include looking at storm events and reanalyzing the flood design capacity of a project to make sure that the existing extreme flood events are still appropriate or increasing spillway capacity based on new information. The same is true of seismic analysis. A lot of the projects out west are routinely reanalyzed based on updated seismic information, whether from the U.S. Geological Survey, state agencies, or other projects that do more in-depth analysis. For example, if a new fault is discovered, a dam’s seismic loading condition could be higher. The projects are constantly reassessed to make sure that the project can safely pass the known required loading conditions.
The dam owners have to hire consultants to do studies such as seismic analyses or flood studies. Some of the really large utilities have in-house staff to do them. FERC is a regulator; we’re not the owner-operator or the engineer of record. We review the analyses provided to us by the licensees, independently review them, and concur or not concur. That is how we work through most dam safety issues.
Hydro Leader: How does public safety factor into FERC’s dam safety program, and what kind of signage, warning devices, or programs does FERC require?
David Capka: We require public safety plans for projects. Those are developed and prepared by the licensee and tailored to the specific project. Our requirements depend on the specific characteristics of each project, all of which are different. The type of structure, the size, and the things that are located downstream and upstream of the structure are all relevant factors. The specifics of the project determine whether warning signs, boat barriers, audible alarms, or other safety measures are required. When we do our inspections, we go through the safety plan and assess whether what’s in the plan is in place. We may also provide input on potential enhancements.
Hydro Leader: Is there any interest in standardizing requirements for sign programs and sign formats?
David Capka: There is a push for that within the National Dam Safety Program, which FERC is part of. A subcommittee has been set up to look at that. If that effort does standardize certain public safety items, we would certainly look to incorporate that in our guidance. Currently, there is not a nationwide standard.
Hydro Leader: What consequences follow if a dam does not meet FERC’s dam safety standards, and how are those consequences enforced?
David Capka: Once a deficiency is identified, we work closely with the dam owner to make sure that we both understand and agree on what the issues are, and then FERC requires plans and schedules to bring the project up to our requirements. It’s an iterative process that happens often. As you might imagine, during every part 12 cycle, the reanalysis of some items is recommended. That doesn’t mean the projects in question are unsafe, just that we have to look at the outcomes of the new analyses. If they do show deficiencies, then we require those plans and schedules.
If the owners don’t make good-faith efforts to remediate their projects, that’s when enforcement action comes into play. It’s typically the last resort for us. Most dam owners want their projects to be safe and are cooperative, but when owners don’t do what they need to do, FERC does have the ability to impose penalties. It can issue civil penalties or cease-generation orders or revoke a license, although thathappens rarely. The enforcement group is not within dam safety; we’re just the ones trying to identify potential issues and then make sure they get addressed. If necessary, we get the compliance and enforcement folks involved.
When projects are found to be deficient, we work with the owners to make sure that they propose and incorporate interim risk reduction measures to reduce the risk at the project until it can be remediated. Those measures may include enhancements of the emergency action plan, interim structural modifications, reservoir restrictions, or operational modifications.
Hydro Leader: What are the main changes being considered to FERC’s proposed part 12 guideline revisions, and how long is the revision process likely to take?
David Capka: Last summer, the commissioners voted out what is called a notice of proposed rulemaking for an updated part 12 regulation and for new engineering guideline chapters. There was a public comment period, which ended last fall. We’re currently finalizing our internal responses to the comments and making appropriate changes to our proposed revisions. We can’t say how long the process of getting to a potential final rulemaking will take. It is not delegated to the staff level, so the commissioners will have to vote on it. There is no guarantee that the regulations will actually be changed, though the fact that the commissioners voted out the draft proposed rulemaking and put it out for public comment indicates that they were supportive of full consideration of the updates.
These changes stand to be the first technical programmatic changes to our 18 CFR 12 regulations since 1981, which is a big deal. There have only been occasional, minor, editorial-type changes as different program offices change their names. There are a lot of things that have come up over the years that point to necessary changes. Following the Oroville spillway incident in 2017, we undertook a forensic investigation and hired an after-action panel to look at FERC’s program. Some of these proposed revisions come directly from the reports generated during that process.
We are looking to change the part 12 process, our 5‑year independent consultant inspection, into a two-phase undertaking. We’re looking to replace the current version of the inspection with a combination of periodic inspections, which would require less effort than the current inspection, and comprehensive assessments, which would require more effort. Those would alternate every 5 years. The periodic inspection would be a review of project operations over the previous 5 years that would make sure that nothing needed to be addressed right away. The comprehensive assessment would look at design, construction, and the current-day operations of the project. It would assess the design intent in light of the current state of the practice and determine whether there are things that need to be modified. Some of these proposed changes derive from the Oroville project findings.
Currently, we require that part 12 inspections be carried out by a single independent consultant. We’re looking to change that requirement to allow a team of consultants to do them, because it is asking too much of one person to ask them to do a comprehensive look at every aspect of a lot of our projects. There are some projects that work perfectly, but we’ve got projects such as the Oroville Dam that are large and have a lot of different features. Regional engineers always have the discretion to grant exceptions to some projects, so not every project is going to have to have every single thing, but we do want to establish a baseline standard process. We’re also proposing a requirement that a level 2 semiquantitative risk analysis be performed as part of this comprehensive assessment. That would be a big change.
The other big change that I want to highlight is that we are looking to formally incorporate the requirement for an owner’s dam safety program (ODSP) into the regulations. It’s been required through our guidance, but we want to formally codify it into our regulations. The owner is ultimately responsible for the safety of the project, and the dam can only be safe if the owner does their job. FERC only inspects high-and significant-hazard dams once a year. We are not out there every day; we cannot know everything that’s happening at a project. It’s the responsibility of the owners to do that. The ODSP highlights the importance of owners’ responsibilities. FERC is a regulator, not the owner’s dam safety engineer. We certainly have a major role in dam safety, but we are not responsible for day-to-day operations or the execution of the safety of licensed projects. That’s the big message that we’ve been pushing, but there are still owners out there who we don’t feel understand that well enough.
Hydro Leader: How does the paradigm of risk analysis compare to earlier approaches, and why is FERC looking into incorporating risk-based analysis?
David Capka: We set up a branch within the dam safety program called Risk-Informed Decisionmaking. It has been overseeing pilot projects and developing draft guidance. In the dam safety arena, FERC coordinates with other federal agencies, including the Army Corps, the Bureau of Reclamation, and the Tennessee Valley Authority, and they’ve all moved toward risk analysis and risk-informed decisionmaking within their dam safety programs. Reclamation has been doing it since the late 1990s, and the Army Corps moved to it after Hurricane Katrina. Risk analysis is different from standards-based analysis, which is what we still require. Risk analyses enable us to look at projects more comprehensively, compare projects across an inventory, and consider consequences that other analyses do not include.
We have a wide variety of dams, as do all the agencies. Some of the dams have a couple of homes downstream; others have hundreds or thousands. Risk analysis helps identify the hazard, the potential consequences, and their importance. Our goal is certainly to have no dam safety incidents, and that’s what we always strive for, but there are dams whose failure would have extreme consequences. Risk analysis helps us direct our resources better. It helps us focus on the right things at each project.
Hydro Leader: What are the major trends affecting the way FERC views dam safety?
David Capka: Financial constraints are sometimes a challenge for owners. Making projects profitable can be difficult, so it can be difficult to get dam owners to invest more in their project based on our safety requirements, despite the importance. FERC issued a notice of inquiry in January about potential financial assurance measures for hydro projects. There’s going to be a major effort to look at ideas for making sure that dam safety and environmental issues are not being ignored because of financial constraints. We want to see what potential avenues there are to address these issues.
Another thing that we’re focusing on is what we call nonbreach risk at projects. Some of our projects, even if they operate properly, could still flood areas downstream under certain circumstances. That isn’t typically thought of as an issue until a large flood occurs and operators have to open the spillway gates. This may result in homes or other structures downstream being flooded. We’re continuing to make sure that our owners know which operations might affect folks downstream so that, if necessary, they can notify local authorities in a timely manner so that people can be evacuated.
Most FERC-regulated dams are not control dams. A lot of people don’t understand that not every dam serves flood control functions. Many of our dams are set up as run-of-river projects, which means that all flows that come into the reservoir have to be passed through the powerhouse or over the spillway, with no ability to hold flows back. As more water comes in from rainfall or snowmelt, more water has to go downstream. As more development occurs downstream, nonbreach risk increases. If a person’s house gets flooded, they often blame the dam owner, and we usually have to do an assessment to determine whether the dam operations were proper or not. A lot of the time, dam owners can’t do anything about situations like these; there was just too much rain in too short a time.
Hydro Leader: Is there anything else you would like to add?
David Capka: We’re trying to do what we can with the resources we have. It’s a challenge to oversee all these projects and make sure that our licensees are doing what they need to do. A lot of repairs and construction modifications are going on, which is a good thing, but it’s also a lot of work. That’ll continue to be the case.
David Capka is the director of the Division of Dam Safety and Inspections at the Federal Energy Regulatory Commission. He can be contacted at firstname.lastname@example.org.