Low-head Dams: Status and Legal Issues

This article is a summary and extract of the legal article entitled: “Low-head Dams (aka Drowning Machines) Are Deadly: An Analysis of Liability for Landowners and States, and Recommendations for Legislation and Warnings” which will be published in Volume 15 of The Kentucky Journal of Equine, Agriculture, and Natural Resources Law, which provides an in-depth legal analysis of claims in low-head dam litigation. Published with permission.

Low-head dams are built across rivers to raise upstream water levels enough for diversions for beneficial use or to reduce stream channel incision. There are untold thousands of these structures in the United States; many are well over a hundred years old. Although the structures are not high (3 – 20-ft), a condition known as a submerged hydraulic jump or ‘hydraulic’ can develop downstream that produces a reverse current. Any person who passes over the dam during such a condition will very likely drown. More than 1,000 fatalities have occurred at low-head dams in the United States.

These dams are often “nonjurisdictional,” meaning that they are not part of any state or federal dam safety and inspection program. Any low-head dams that are part of dam safety programs are typically considered “low hazard” and are therefore not a focus of these programs. Often the ownership cannot
be easily determined, and in many cases the low-head dam is either abandoned or no longer serving its purpose. State Dam Safety Regulatory programs in the United States, which have traditionally focused on preventing loss of life and property damage resulting from dam failures, are increasingly concerned about public safety and the risk of fatalities at low-head dams.

We recommend that states enact legislation specifically addressing low-head dams and suggest considering the approach taken by the state of Indiana that (1) defines low-head dams, (2) requires a statewide inventory of low-head dams and owners, (3) sets warning standards, (4) publishes information on low-head dam safety, (5) furnishes information to owners on low-head dam removal and modification, (6) requires notification to the state of changes in ownership, (7) restricts persons from accessing low-head dams, and (8) declares state immunity for those dams not owned by the state. Other elements may also be useful, such as increasing the penalties for noncompliance or deeming landowners to have met the duty of care for warning the public of the hazards posed by the dam.

For all low-head dam owners we recommend posting and maintaining adequate warning signs to help reduce the number of recreationists passing over low-head dams.