SAFETY OF DAMS AND DOWNSTREAM COMMUNITIES Laying the Foundations POLICY Essential Elements for Assuring the Safety NOTE of Dams and Downstream Communities Marcus J. Wishart, Satoru Ueda, John D. Pisaniello, Joanne L. Tingey-Holyoak, Kimberly N. Lyon, and Esteban Boj Garcl’ a This report was made possible with the financial support of the Global Water Security & Sanitation Partnership (GWSP) and the Japan- World Bank Program for Mainstreaming Disaster Risk Management in Developing Countries, which is financed by the Government of Japan and receives technical support from the World Bank Tokyo Disaster Risk Management Hub. About GWSP GWSP is a multidonor trust fund administered by the World Bank’s Water Global Practice and supported by Austria’s Federal Ministry of Finance, the Bill & Melinda Gates Foundation, Denmark’s Ministry of Foreign Affairs, the Netherlands’ Ministry of Foreign Affairs, the Swedish International Development Cooperation Agency, Switzerland’s State Secretariat for Economic Affairs, the Swiss Agency for Development and Cooperation, and the U.S. Agency for International Development. Please visit us at www.worldbank.org/gwsp or follow us on Twitter #gwsp. About World Bank Tokyo DRM Hub The World Bank Tokyo Disaster Risk Management (DRM) Hub supports developing countries to mainstream DRM in national development planning and investment programs. As part of the Global Facility for Disaster Reduction and Recovery, the DRM Hub provides technical assistance grants and connects Japanese and global DRM expertise and solutions with World Bank teams and government officials. The DRM Hub was established in 2014 through the Japan–World Bank Program for Mainstreaming DRM in Developing Countries—a partnership between Japan’s Ministry of Finance and the World Bank. Website: https://www.worldbank.org/en/programs/ tokyo-drm-hub   About GFDRR The Global Facility for Disaster Reduction and Recovery (GFDRR) is a global partnership that helps developing countries better understand and reduce their vulnerabilities to natural hazards and adapt to climate change. Working with over 400 local, national, regional, and international partners, GFDRR provides grant financing, technical assistance, training, and knowledge sharing activities to mainstream disaster and climate risk management in policies and strategies. Managed by the World Bank, GFDRR is supported by 36 countries and 10 international organizations. Website: https://www.gfdrr.org/en About the Water Global Practice Launched in 2014, the World Bank Group’s Water Global Practice brings together financing, knowledge, and implementation in one platform. By combining the Bank’s global knowledge with country investments, this model generates more firepower for transformational solutions to help countries grow sustainably. Please visit us at www.worldbank.org/water or follow us on Twitter at @WorldBankWater. Laying the Foundations POLICY Essential Elements for Assuring the Safety NOTE of Dams and Downstream Communities Marcus J. Wishart, Satoru Ueda, John D. Pisaniello, Joanne L. Tingey-Holyoak, Kimberly N. Lyon, and Esteban Boj Garcl’ a © 2021 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW, Washington, DC 20433 Telephone: 202-473-1000; Internet: www.worldbank.org This work is a product of the staff of The World Bank with external contributions. 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Contents A Policy Note.................................................................................................................................................... 1 Context...................................................................................................................................................................................1 Objective...............................................................................................................................................................................2 Country Case Studies and Analytical Approach...................................................................................................3 Toward a Decision Framework.................................................................................................................................... 4 Legal Frameworks for Dam Safety............................................................................................................................ 4 Institutional Frameworks for Dam Safety.................................................................................................................6 Contents of the Regulatory Regime...........................................................................................................................7 Risk-Informed Decision-Making...................................................................................................................................8 Emergency Preparedness and Public Safety..........................................................................................................9 Funding Dam Safety.........................................................................................................................................................9 Transboundary Dam Safety.........................................................................................................................................10 A Decision Support Tool...............................................................................................................................................10 Notes.................................................................................................................................................................................... 18 Boxes 1 The Two Main Types of Legal System.................................................................................................................6 2 Characteristics Informing a Continuum of Dam Safety Assurance....................................................... 13 Figures 1 Number of large dams worldwide, by primary purpose..............................................................................1 2 The development of large dams over time.......................................................................................................2 3 Concept process flow for the global comparative assessment............................................................... 4 4 Elements of a dam safety assurance system...................................................................................................5 iii iv LAYING THE FOUNDATIONS 5 Portfolio determinants that should shape the dam safety system.........................................................5 6 Distribution of the type of legal systems among the 51 case study countries...................................6 7 Institutional involvement in dam safety assurance........................................................................................6 8 Independence of dam safety assurance authorities among the case study countries and jurisdictions..........................................................................................................................................................7 9 Funding schemes for dam safety oversight among the case study countries and jurisdictions........................................................................................................................................................10 10 The continuum from minimum to maximum dam safety assurance....................................................14 11 Key elements and determinants informing regulatory frameworks for dam safety assurance........ 17 Maps 1 Dams located in transboundary river basins.................................................................................................. 11 2 International transboundary river basins shared by riparian states with different legal systems.............................................................................................................................................................. 12 Tables 1 Case study countries and key characteristics....................................................................................................3 2 Types of dam classification system among the case study countries and jurisdictions, by income level...............................................................................................................................................................7 3 Status of risk-informed approaches to dam safety management in case study countries and jurisdictions.............................................................................................................................................................8 4 Case study countries and jurisdictions that mandate EPPs.........................................................................9 5 Summary of minimum and maximum assurance elements........................................................................ 15 A Policy Note CONTEXT Assuring the safety of dams is central to protecting downstream communities, infrastructure, and the environment. Dam safety is also important for securing water for productive purposes and sustaining economic development. With a global portfolio of more than 58,000 large dams, issues associated with the safety of dams and downstream communities are becoming increasingly important, particularly given aging infrastructure, increasing downstream populations, shifting demographics, and changes in climate and weather patterns (Figures 1 and 2). While dam failures are typically low-probability, unpredictable events, they often have dramatic consequences. Catastrophic dam failures are characterized by the sudden uncontrolled release of water. Such failures can result in extremely adverse consequences, including large-scale loss of human life and FIGURE 1 Number of large dams worldwide, by primary purpose 25,000 20,000 6,002 Number of dams 15,000 10,000 14,011 3,913 5,000 4,342 4,861 1,322 5,751 2,933 1,399 41 3,276 580 96 2,480 1,349 1,594 0 Irrigation Hydropower Water supply Flood control Recreation Fish breeding Navigation Others Single purpose Multipurpose Source: Based on ICOLD “General Synthsis, “ Paris (accessed December 2017), http://www.icold-cigb.org/GB/world_register/general​ _synthesis.asp. 1 2 LAYING THE FOUNDATIONS FIGURE 2 The development of large dams over time 16 Number of dams built (thousands) 14 12 10 8 6 4 2 0 9 9 9 9 00 9 9 9 9 9 9 9 6 –4 –5 –6 –0 –0 –1 –2 –3 –7 –8 –9 –1 19 10 10 50 60 40 70 00 20 30 80 90 00 e– 19 20 19 19 19 19 19 19 19 19 20 19 Pr Source: Wishart et al 2020, based on ICOLD “World Register of Dams,” Paris (accessed July 2017), https://www.icold-cigb .org/GB/world_ register/data _search.asp. significant economic and environmental impacts. Lesser degrees of failure can progressively lead to or heighten the risk of a catastrophic failure. As such, it is essential to establish a dam safety system that can ensure the safety of dams and downstream communities. The foundation for effective dam safety assurance is an appropriate and well-designed regulatory frame- particular work that captures the legal, institutional, technical, and financial elements in the reality of a ­ jurisdiction. Establishing and maintaining a regulatory framework that is fit for purpose is, therefore, nec- essary for ensuring the quality of dam design, construction, and operation and maintenance. The frame- work also ensures that safety measures are reflective of the risks inherent in managing these structures and the context in which they are developed. Such frameworks need to be developed as part of a holistic strategy for water management that is integrated in basin and regional planning processes. OBJECTIVE The objective of this Policy Note is to provide guidance to policy makers and practitioners on the essen- tial elements for establishing regulatory regimes for assuring the safety of dams and downstream com- munities. It is based on the findings of a global analysis of regulatory frameworks for the safety of dams and downstream communities published in 2020 by the World Bank, in collaboration with the University of South Australia1. The global study lays the foundations for dam safety assurance by pro- viding a comparative analysis of regulatory frameworks and assessing the range of legal, institutional, technical, and financial options that can be used to inform the development of appropriate frameworks for sustainable assurance. The analysis was intended to (1) inform the establishment of regulatory regimes and institutional arrangements for dam safety assurance, (2) provide a framework for gap anal- yses aimed at enhancing existing legal regimes and institutional arrangements for dam safety assurance, and (3) guide the design of projects aimed at supporting the establishment or strengthening of regula- tory frameworks for dam safety assurance. This Policy Note reflects these objectives by (1) summarizing a comprehensive set of country case studies with a balanced representation among a diverse set of countries with varying economic, polit- ical, and cultural circumstances; (2) providing a high-level comparative analysis of the legal, institu- tional, and technical metrics along with financial and operating model analysis to identify a continuum of practice and precedents; and (3) recommending a set of legal, institutional, technical, and financial elements suitable for different country circumstances supported by a menu of options for consideration by policy makers. A Policy Note 3 COUNTRY CASE STUDIES AND ANALYTICAL APPROACH The analysis is informed by an assessment of 51 country case studies that are estimated to account for more than 95 percent of the world’s dams registered with the International Commission on Large Dams (ICOLD) and 85 percent of total storage capacity. These countries cover nearly 70 percent of the world’s total land area and include 80 percent of the world’s population. They represent a range of economic circumstances: 18 high-income countries, 16 upper-middle-income countries, 14 lower-middle-income countries, and 3 low-income countries. All of the 51 country case studies are members of ICOLD2, rep- resenting about half of the 101 ICOLD members (Table 1). The country case studies and the comparative analysis were carried out through an iterative process involving a series of consultations with more than 300 stakeholders over a number of years. A pro forma template was developed to provide a consistent structure with which to systematically identify and assess key elements of dam safety assurance along regulatory, legal, institutional, technical, and financial metrics. The analysis was guided by an international advisory panel and involved consul- tations with World Bank specialists as well as national experts. The process also included a series of regional workshops to facilitate the compilation of data, review information, and verify and validate TABLE 1 Case study countries and key characteristics Country Legal System Income Level Country Legal System Income Level East Asia and Pacific Latin America and the Caribbean Australia Common Law High Argentina Civil Law Upper-Middle China Civil Law Upper-Middle Brazil Civil Law Upper-Middle Indonesia Civil Law Upper-Middle Chile Civil Law High Japan Civil Law High Mexico Civil Law Upper-Middle Korea, Rep. Civil Law High Peru Civil Law Upper-Middle Lao PDR Civil Law Lower-Middle South Asia Malaysia Common Law Upper-Middle India Common Law Lower-Middle Myanmar Common Law Lower-Middle Nepal Common Law Low New Zealand Common Law High Pakistan Common Law Lower-Middle Philippines Mixed Lower-Middle Sri Lanka Common Law Upper-Middle Thailand Civil Law Upper-Middle Europe and Central Asia Vietnam Civil Law Lower-Middle Albania Civil Law Upper-Middle Sub-Saharan Africa Austria Civil Law High Burkina Faso Civil Law Low Bulgaria Civil Law Upper-Middle Cameroon Mixed 3 Lower-Middle Czech Republic Civil Law High Ethiopia Civil Law Low France Civil Law High Nigeria Common Law Lower-Middle Italy Civil Law High South Africa Mixed Upper-Middle Norway Civil Law High Zimbabwe Common Law Lower-Middle Poland Civil Law High North America Portugal Civil Law High Canada Common Law4 High Russian Federation Civil Law Upper-Middle United States Common Law High Spain Civil Law High Middle East and North Africa Sweden Civil Law High Egypt, Arab Rep. Civil Law Lower-Middle Switzerland Civil Law High Iran, Islamic Rep. Religious Law Upper-Middle Turkey Civil Law Upper-Middle Iraq Mixed Upper-Middle Ukraine Civil Law Lower-Middle Lebanon Civil Law Upper-Middle United Kingdom Common Law High Morocco Civil Law Lower-Middle Uzbekistan Civil Law Lower-Middle Source: Wishart et al 2020. 4 LAYING THE FOUNDATIONS FIGURE 3 Concept process flow for the global comparative assessment Country case Comparative Guidance and studies analysis recommendations Country Country Country Determining Country case factor Element Element Element Country Determining Determining case factor factor Country Element Element Element case Option Option Option Deep dive into Extract options Produce a Construct Advise countries on an country frameworks and identify continuum of legal pathways for appropriate menu of according to exemplars and institutional di erent types of options common template frameworks jurisdictions Source: Wishart et al 2020. the findings. A “regulatory mix pyramid approach” was adopted to identify a range of legal, institu- tional, technical, and financial options along a continuum that can be tailored to varying jurisdictional circumstances and country characteristics (Figure 3). TOWARD A DECISION FRAMEWORK This continuum informed the development of a Decision Support Tool describing the key legal, institu- tional, technical, and financial elements and various options that should be considered when designing a regulatory framework for dam safety assurance (Figure 4). While the type of legal system and the constitutional basis for law making and administration will define how the regulatory environment can be implemented, the size of a country’s portfolio of dams, their geometric dimensions, and their hazard potential and vulnerability will guide the main features of a suitable regime (Figure 5). Policy makers are confronted by widely varying characteristics, financial situations, and institutional arrangements. The Decision Support Tool is intended to help countries choose the most appropriate solution for their needs and context by leaning on a baseline theoretical framework through regulatory mix theory. The various considerations along this continuum enable the development of elements and models that can be considered in the systematic development of the most suitable approaches to dam safety assurance and the protection of downstream communities. LEGAL FRAMEWORKS FOR DAM SAFETY The enabling legal framework for dam safety assurance serves to establish minimum standards, along with duties, roles, and responsibilities, for assuring the safe development and operation of dams. The legal foundations for dam safety assurance can come in various forms, depending on the type of legal system (common law, civil law, religious law or customary law) and the constitutional basis for law making and administration (Figure 6). A number of regulatory options exist along a continuum, rang- ing from highly prescriptive measures to broader framework legislation to self-regulating mechanisms. These are all informed by the legal traditions and specific geopolitical history of a country (Box 1). Such provisions should also reflect the technical characteristics of the portfolio of dams, including the number and type of dams, the nature of ownership and financing arrangements, their sectoral distribution, as well as the potential hazard or consequence profile of the portfolio. It is important that the legal frame- work evolves with changes in the portfolio, demographic trends, and country conditions. A Policy Note 5 FIGURE 4 Elements of a dam safety assurance system Technical Intervention point requirements Institutional Financial Enablers Capacity arrangements considerations Foundations Legal and regulatory environment Source: Wishart et al 2020. FIGURE 5 Portfolio determinants that should shape the dam safety system Small Size classification Large Few Number of dams Many Public Ownership arrangements Private Low Hazard classification High Source: Wishart et al 2020. The type of legal system in a country will influence the agility of the dam safety legal framework to respond to changing circumstances and can have important implications for equivalence between jurisdictions. Integrating dam safety provisions within broader framework legislation, such as for water or environmental legislation, is generally considered a practical first step in developing the initial ­ regulatory provisions for dam safety. The legal framework for dam safety assurance should include spe- ­ roportional, provisions for the following: (1) definition of dams subject to regulations; (2) roles cific, yet p and responsibilities of the dam owners and regulators; (3) dam safety standards and requirements 6 LAYING THE FOUNDATIONS FIGURE 6 Distribution of the BOX 1 type of legal systems among the 51 case study countries THE TWO MAIN TYPES OF LEGAL SYSTEM 8% 2% Civil law: All laws are strictly and thoroughly prescribed 25% in legislation and/or codes with no judicial precedent set, even for legislative interpretation. Regulating dam safety must be done in a more prescriptive manner. Updating the dam s ­afety framework can take a great deal of time and resources, as civil law requires new dam safety laws and reg- ulations superseding previous ones. Common law: In this system, judicial precedent–based case 65% law can be overridden only by statute law, which is then also subject to judicial interpretation. There is the option of mak- Common law Religious law ing laws more generic (in contrast to prescriptive), allow- Civil law Mixed ing for a general reference to dam safety guidelines to set ­requisite standards. Source: Wishart et al 2020. commensurate with the potential hazard or consequence, typically through a dam classification sys- tem; (4) disaster risk management and emergency preparedness, especially in light of climate change, increasing population, and demographic changes; (5) required financial resources and human capital for dam safety; and, where necessary, (6) the identification and capture of dam-safety-related risks that are specific to transboundary settings. INSTITUTIONAL FRAMEWORKS FOR DAM SAFETY The institutions responsible for ownership, operation, and oversight of dam safety assurance are informed through the enabling legal framework. The nature of the institutional arrangements will reflect the composition and structure of the national portfolio, and there are several institutional options that infer different degrees of responsibility. The independence of institutions responsible for dam safety assurance can have significant impli- cations for implementation and enforcement of the regulatory regime, and there is no single solution (Figure 7). The context prescribes the utility of the different options along a continuum, and where oversight mechanisms do exist, these can be implemented through centralized apex institutions, stand- alone sectoral entities, or subnational organizations that are fully independent, rely on a degree of self-regulation, or include a mixed approach. Central to any suc- FIGURE 7 Institutional cessful dam safety assurance system is ensuring that the institu- involvement in dam safety tional capacity is sufficient to meet the expected duty of care. This assurance includes sufficient financial resources, human capital, and tech- nical capacity to respond to the challenges of the portfolio under management and regulation. Ownership Operation A clear statement of primary responsibility for the safety of the dam is a key element of any regulatory framework for dam safety. This clear definition is a prerequisite for ensuring accountability in the case of personal or property damage due to a dam failure or during the operation of the dam. While some responsibility can be Oversight shared, delegated, or contracted to others, the dam owner is uni- versally recognized as the primarily responsible entity for the safety of the dam and appurtenant structures, and is further responsible Source: Wishart et al 2020. for ensuring that the dam is operated safely. A Policy Note 7 Maximum assurance is usually realized through an FIGURE 8 Independence of dam safety independent regulatory authority and uniform regula- assurance authorities among the case study countries and jurisdictions tions that apply across sectors and integrate transbound- ary considerations (Figure 8). The powers and functions 4% 6% of the regulating authority can exist along a continuum 24% of compliance audit, quality assurance, or direct inspec- tion. These should be determined by the portfolio charac- 19% teristics and distributed with due consideration of issues associated with potential liability and the capacity of the regulatory system to address these. It is important to allow 8% for a continuous process of improvement that can ensure that the institutional arrangements adapt to the changing nature of the portfolio and downstream demographics. 39% CONTENTS OF THE REGULATORY REGIME Independent dam safety authority Self-regulation with independent review mechanism Self-regulation with specific codes and guidelines The contents of the regulatory regime reflect its specific Mixed independent and self-regulation by sectors mandates and technical requirements pertaining to dam No clear dam safety regulation safety assurance. These include the specific roles, p­ owers, Undetermined and responsibilities of the regulator and the specific duties Source: Wishart et al 2020. and responsibilities of the dam owner, operator, and Note: The total number of cases is greater than the 51 countries as some countries have developed parallel any other parties involved. The key elements and provi- systems for different sectors. sions of any dam safety regulation include the following: capture of regulated dams, (2) proportioning mandates (1) ­ according to classification, (3) dam safety design standards and criteria, (4) requirements for surveil- lance and inspection, (5) requirements for operation and maintenance, (6) record-keeping require- ments, (7) education and training, (8) legal status of guidelines and standards, and (9) enforcement and arbitration. Dam classification systems are particularly useful in proportioning dam safety requirements, such as design standards and duties of care, depending on potential hazard. This allows for optimization in the allocation of financial and human resources. Different countries have developed different sys- tems, such as size-based or hazard-based classification or a combined approach, considering the socio- economic conditions and resources available to the owners and regulators (Table 2). Provisions for owner education and guidance are also important for continuous improvement in assuring the safety of dams and downstream communities. Country-specific guidelines are essential to act as guidance for dam owners and their engineers and/or to set minimum dam safety management and design TABLE 2 Type of dam classification system among the case study countries and jurisdictions, by income level Size only (height and capacity and Hazard only Combined Other (risk, also typically (low, sig, size and condition, Income level dam type) and high) hazard safety level) None exists Undetermined High income 3 8 3 1 3 1 Upper middle income 0 1 7 2 7 0 Lower middle income 1 3 4 1 6 0 Low income 1 0 1 0 2 0 Total 5 12 15 4 18 1 Source: Wishart et al 2020. Note: Sig = significant, a commonly used classification term when there is a “medium” hazard. 8 LAYING THE FOUNDATIONS standards that are appropriate to the circumstances of each country. Further, provision for compli- ance monitoring and enforcement is essential to realizing the objectives and intentions of the regula- tory regime and its c­ ontents. This requires sufficient financial resources, human capital, and technical ­ egulator to police and enforce compliance and can be enhanced through a range of capacity for the r mechanisms. RISK-INFORMED DECISION-MAKING Risk-informed approaches are increasingly being used to inform dam safety assurance. This reflects growing recognition that there are a number of dam safety incidents caused by nonstructural elements that are not well captured by the traditional standards-based approach. The changing nature of port- folios at the country level coupled with the evolution of societal values and stakeholder expectations advocate for the application of more risk-informed approaches (Table 3). Such approaches are also introduced under the World Bank’s Environmental and Social Framework that became effective in October 2018,5 recognizing that the risks associated with a dam are design and situation specific and will vary depending on the structural components, socioeconomic factors, and the environment within which the dam is being constructed and will operate. The provisions of any approach, therefore, need to be proportionate to the size, complexity, and potential risk associated with the dam. There is a wide range of tools for risk assessment, from relatively simple, qualitative analysis to semi- quantitative assessments such as risk indices to more complex and rigorous quantitative methodologies using failure probability. The selection of a suitable technique should depend on the complexity of a particular dam safety condition, required remedies and/or potential hazard, and the specific country context. Such approaches can lead to more efficient allocation of resources, prioritized remedial mea- sures, and monitoring activities. While there are clear benefits to risk-informed approaches, it is important to recognize that they can be complex and require considerable resources. Careful consideration needs to be given to the legal foundations and requirements for introducing portfolio risk assessment and management if it comes with the notion of an acceptable or tolerable risk. Such a specific threshold is country specific and not applicable in most civil law countries. It will invariably reflect broader societal and cultural values and, importantly, will change over time as society’s values and expectations change. The risk-informed framework needs to be reviewed, revised, and subjected to a process of continuous improvement to ensure the continued safety of dams and downstream communities. While the importance of risk-­ informed approaches is expected to increase, such approaches should be used as a complement to the standards-based approach and not as the only decision basis used in the management of dam safety risks. Other elements should include consideration of engineering principles, standards, and current good practice; owner or wider societal values; and stakeholder expectations and perceptions. Properly structured risk-informed approaches can contribute to effective resource mobilization to enhance over- all dam safety at various levels to assist countries in developing practical and effective risk management systems suited for the country-specific contexts. TABLE 3 Status of risk-informed approaches to dam safety management in case study countries and jurisdictions Legal system Mandated Allowed/applied Not recognized Undetermined Common law 3 4 5 1 Civil law 3 14 2 10 Religious law 0 1 0 0 Mixed 1 1 4 2 Total 7 20 11 13 Source: Wishart et al 2020. A Policy Note 9 EMERGENCY PREPAREDNESS AND PUBLIC SAFETY Emergency preparedness is a critical element to assuring the safety of dams and downstream commu- nities. While dams are, in principle, designed and constructed to ensure their safety against foreseeable extreme events and maximum loads, they can face additional threats. These can include extraordi- nary events beyond the design criteria, structural deficiencies, equipment malfunctions, deterioration of structures or equipment due to aging, human errors, and deliberate destructive actions, such as ter- rorism and cyberattacks. Public safety should also be covered as part of any effective dam safety assur- ance program, including safety from operations resulting in sudden or unsafe releases of water, failure of the electro-mechanical system, and unrestricted public access to hazardous areas around dams and reservoirs. Emergency Preparedness Plans (EPPs) are increasingly mandated and are essential in providing a predetermined plan of action that a dam owner should implement if a dam safety emergency devel- ops (Table 4). Clear technical guidelines should be established for the scope and preparation of EPPs, using potential failure mode analyses where appropriate. Essential elements include the identification and evaluation of potential threats, procedures for warning downstream areas at risk, and emergency actions. These plans allow dam owners, operators, local governments, and emergency agencies to undertake their respective roles and actions, including emergency notification and evacuation, in a coordinated and timely manner to minimize damage in areas affected by a potential dam failure or mis-operation. FUNDING DAM SAFETY The financial framework for ensuring sufficient funding to sustain dam operations and the regulatory assurance scheme is critical to dam safety and to maximizing the productive asset value and life of dams. Funding is needed to sustain evolution of the policy environment and the underlying understand- ing of the sector context, including hydrometeorological conditions, increases in downstream popula- tions, and changing land use associated with individual catchments. Funding is also needed to address deterioration due to aging infrastructure, changing technical standards, and improved techniques. The resource requirements for dam safety and potential revenue mechanisms are determined by the own- ership structure (public or private), the type of services provided (hydropower, water supply, irrigation, flood protection, and so forth), and the nature of the oversight mechanisms (self-regulation or auton- omous regulators). These can significantly impact the quality of dam safety management and the level of assurance. The financial resources required to sustain the regulatory regime and oversight mechanisms can be derived from two basic sources of sustainable revenues: taxes through budgetary allocations from government, tariffs through user-pay systems and service fees, or a combination. Distinct differences are observed in funding mechanisms for both dam safety assurance and dam safety management when considering the sector and ownership models. Regulatory frameworks for dam safety assurance are more commonly funded by a mixture of government tax-based revenues and payments generated from TABLE 4 Case study countries and jurisdictions that mandate EPPs Income level Mandatory Not mandated, voluntary Undetermined High income 17 1 2 Upper middle income 6 5 2 Lower middle income 4 6 4 Low income 0 4 0 Total 27 16 8 Source: Wishart et al 2020. Note: EPPs = Emergency Preparedness Plans. 10 LAYING THE FOUNDATIONS FIGURE 9 Funding schemes for users (Figure 9). However, the ability to fully meet the expected dam safety oversight among requirements in many parts of the world is undermined by user the case study countries and fees and tariffs that continue to be below full cost recovery and jurisdictions by competing financial demands on limited government budgets. 4% Strategic financial planning coupled with tools to facilitate the pri- 31% 14% oritization of dam safety measures and resources within a portfo- lio can be useful in constrained budget environments. Balancing these considerations should be positioned within a multicriteria framework that can match the resources with the requirements to address the broad range of needs in assuring the safety of dams and downstream communities. 27% TRANSBOUNDARY DAM SAFETY 24% User pays Assuring the safety of dams and downstream communities within Central government revenue onlythe context of internationally shared or subnational transboundary Mixed user-government funded river basins presents a unique set of challenges that have largely No funding mechanism defined No data been underestimated. Limiting the definition of dams with interna- tional character to those where the abutments lie in different coun- Source: Wishart et al 2020. tries captures only a very small number of such dams. Extending the definition to include dams located in a transboundary basin whose failure or mis-operation could cause a potential impact considerably increases the number (Map 1). While dam safety is typically administered at the national and/or state level, there are important public safety and economic security considerations associated with dams in transboundary rivers that are shared between different countries or subnational jurisdictions within a country. These include dif- ferent, and sometimes conflicting, legal, cultural, and political regimes; enabling institutional arrange- ments; and historical considerations informed by socioeconomic and biogeographical features. The coexistence of different legal and institutional regimes within transboundary river basins can create the potential for different standards and duties of care (Map 2). Given the potential disparity of dam safety legal regimes within a transboundary basin, a minimum level of coordination among riparian or subnational states is required to ensure the safety of dams and downstream communities. Dams attributed with international character need to be properly captured by the dam safety assurance regime. Provisions within the basin and among the riparian states, or subnational jurisdictions, should be evaluated to determine the degree of equivalence among the legal regimes and ensure a minimum level of assurance across the basin. In certain instances, it may be nec- essary to address inconsistencies between the legal frameworks by subjecting transboundary infrastruc- ture to a unique set of dam safety requirements. Measures should also be introduced or enhanced to facilitate the exchange of information relating to operations, improve coordination around emergency preparedness, and advance internationally recognized principles, such as the obligation to do no harm and ensure equitable and reasonable use. A DECISION SUPPORT TOOL Assuring the safety of dams and downstream communities requires considering a range of options appropriate to various jurisdictional circumstances with different portfolio characteristics, human and financial resources, and population locations and growth. In order to assure the safety of dams and downstream communities, a regulatory framework that affords the maximum level of assurance is desirable. However, the level of assurance that is achievable will depend not only on the structural MAP 1 Dams located in transboundary river basins A Policy Note Source: World Bank, based on the Global Reservoir and Dam Database. Note: Income levels are gross national income per capita for 2019 and are defined using the World Bank Atlas method. See https://datahelpdesk.worldbank.org/knowledgebase /articles/906519/. 11 12 MAP 2 International transboundary river basins shared by riparian states with different legal systems LAYING THE FOUNDATIONS Source: World Bank. Note: Canada’s shading indicates that it has both civil law and common law jurisdictions. A Policy Note 13 elements and the prevailing policy environment but also on the ability to realize the intentions of the regulatory framework. A Decision Support Tool has been developed that aggregates the information derived from the global analysis to inform the design of a regulatory environment for assuring the safety of dams and down- stream communities. A series of regulatory design principles has been identified in regulatory mix the- ory that emphasizes the importance of choosing complementary instrument combinations that can be mixed to enable movement from minimum assurance to maximum assurance. These combine to iden- tify a series of options from which policy makers can decide on the appropriate mix for country-specific considerations. These are not mutually exclusive, and decisions on an optimal level of assurance will be informed by the country’s characteristics, such as the constitutional basis for law making and adminis- tration, and those of the portfolio of dams, such as the size of the portfolio, the type of dams, and the assessed risks and hazards (Box 2). The global analysis of regulatory frameworks for the safety of dams and downstream communities demonstrates that single-instrument approaches are unlikely to be successful for regulating dam safety assurance in any setting and that in order to avoid the consequences of dam failures, minimum and maximum assurance elements need to be positioned in such a way as to provide a continuum of options with various models of enforcement available (Figure 10, Table 5). BOX 2 CHARACTERISTICS INFORMING A CONTINUUM OF DAM SAFETY ASSURANCE There are several key elements that inform the nature of the regulatory framework for dam safety assurance. These often provide the definitive precursors in which the specific consider- ations need to be positioned. Such elements include the following: • Legal foundations such as the constitutional basis for law making and administration. For example, the common law or civil code characteristics of a country will determine the approach to development and realization of the legal framework for dam safety assurance. Similarly, a unified administrative system will differ in the requisite elements for ensuring dam safety compared to a federal system with decentralized roles and responsibilities to the subnational administrative units. These characteristics rarely, if ever, change. • Institutional arrangements such as the allocation of responsibilities, sectoral considerations, human capital, and financial capacity. These are informed by the enabling legal framework and should clearly define the allocation of responsibilities for ownership, operations, and oversight, as well as the approach to private sector participation and sectoral consider- ations. The nature of the institutional arrangements will reflect the composition and struc- ture of the portfolio as well as financial capacity and human capital. These characteristics are subject to infrequent changes but need to adapt to changes in the portfolio and down- stream demographics. • Technical considerations such as the nature and characteristics of the portfolio. These include considerations around the size of the portfolio (small single sector to large multi- sectoral), the relative importance of different sectors (irrigation, hydro, supply, flood pro- tection, and so forth), and the hazard classification. These characteristics are subject to more frequent changes depending on sectoral demands and development, demographic changes, and changes in land use and the enabling financial considerations, among others. • Financing considerations such as the revenue streams available to support operation and maintenance (O&M). These are typically determined by government policy and are subject to economic regulation. They, in turn, determine the availability of financing and transfer mechanisms to support O&M, as well as the financing of oversight mechanisms. These char- acteristics can be subject to frequent changes depending on prevailing economic condi- tions and government policies. FIGURE 10 The continuum from minimum to maximum dam safety assurance 14 No supervisory regulation Only self-regulation Full command-and-control assurance regulation but mandate only Emergency but the owner/self-regulator elects to with semi-independent regulator Preparedness Plans under legislation set up an independent/semi-independent (i.e., government also owns dams, LAYING THE FOUNDATIONS for community right-to-know. checking mechanism upon itself. so not really independent for those) Issue 1 Specific or enabling legislation? Issue 2 Full command-and-control No supervisory National or decentralized? assurance regulation, regulation Issue 3 with fully independent with dam owners A A(1) B C M X Y Z How to create regulatory supervisory regulator free to independence? supervising all self-regulate Di erent versions of public/private dam A, B, C or X, Y, Z Issue 4 owners in all sectors for di erent sectors How hands-on should regulators' role be? Only self-regulation Z or Y but government elects to pass dam safety responsibility on only for certain owners or to “temporary owner” or operator (e.g., concessionaire) and sectors: for example, fully the assurance/supervisory checking mechanism is the contract regulate only private dams, or can be legislated. An independent body can also be set up government dams to supervise concessionaire and contracted responsibilities. self-regulate Role Compliance audit Quality assurance Direct inspection/assessment Random quality assurance audits only Allover assurance, check all information/reports Performs periodic dam safety inspections Otherwise just rubber-stamping reports and provided by owners’ engineers for every dam Function and assessments certifications provided by owners’ engineers May also do the hazard classification Highly hands-on function in a predominantly hands-o function (i.e., more hands-on) Capacity Low need for capacity/expertise in authority Medium need for capacity/expertise in authority High need for capacity/expertise in authority Accepting no liability Liability Authority makes no decisions related to Accepting some potential liability Accepting extensive potential liability the safety of the dam Source: Wishart et al 2020. A Policy Note 15 TABLE 5 Summary of minimum and maximum assurance elements Minimum assurance Maximum assurance 1. Register/inventory 1. Register/inventory 2. Dam owner education and training 2. Dam owner education and training 3. Defining dam safety responsibility and liability, negligence-based 3. Defining dam safety responsibility and liability, versus strict liability negligence-based versus strict liability 4. Checklist—determine on case-by-case basis, 4. Clearly articulated uniform laws and regulations on dam safety: considering the following: • If federal, is only state legislation possible, or both federal and state? • O&M inspections • Common law systems—enabling or specific • Instrumentation • Civil law systems—specific only • EPP • Design and review standards • Public safety 5. Full independent oversight body: • Apex ideal • Fully empowered: –– To develop norms and standards via additional regulation and/or regulatory documents –– To issue licenses and permits –– To maintain register or inventory of dams –– To supervise surveillance and maintenance of dams –– To conduct audits and inspections –– To approve inspectors –– To carry out advisory responsibilities • Quality assurance role: –– The role can range from simple compliance audit (hands-off) to more hands-on quality assurance –– A direct surveillance role is not recommended –– The optimal mix of role depends on internal financial and technical capacity, and the extent of potential residual liability the regulatory body is prepared to accept • Consider including independent, nongovernment body in regulatory framework to assist regulator in executing its functions 6. Dams classification and capture by the regulatory regime: • Register or inventory of all dams and classification • Classification based on both size and hazard • Publicly available database system maintained 7. Dam safety requirements: • Mandate criteria and/or guidelines (common law) or standards/codes (civil law) • Fit for purpose and fit for country’s circumstances • Provide for the following mandated safety requirements (noting that tailings different to water dams) including public safety during operations: –– O&M –– Inspections and dam safety reviews i. Frequency ii. Sophistication iii. Qualifications of inspector/reviewer –– EPPs i. Both for dam break and operational ii. Dam design and review • Deterministic and risk informed where appropriate (mandate risk analysis where possible) • Proportioning requirements according to hazard (continued) 16 LAYING THE FOUNDATIONS TABLE 5 (continued) Minimum assurance Maximum assurance 8. Record keeping and reporting: • Institutional reporting (authority reports to minister) and publicly available • Mandate owner record-keeping safety file with three main parts: –– As-built engineering details –– O&M data –– EPP data 9. Compliance enforcement: • Stronger penalties including criminal sanctions = increased compliance • With company owners, penalties can catch directors rather than just owners 10. Adequate funding and capacity for enforcement body: • Internal capacity or outsourced –– User pays (for example, in hydropower) and/or government budget (irrigation): more user pay is more ideal Source: Wishart et al 2020. Notes: EPP = Emergency Preparedness Plan; O&M = operation and maintenance. When combined with the comparative analysis of the country case studies, this continuum lays the foundation for the development of a consolidated regulatory framework for dam safety assur- ance and a Decision Support Tool that can be applied to country-specific settings. The Decision Support Tool enables various alternatives to be explored, ranging from minimum dam safety requirements that a regulatory framework for assuring the safety of dams and downstream com- munities should aim to achieve to more complex features suited to accommodate portfolios with different characteristics (Figure 11). The Decision Support Tool provides illustrative suggestions on dam safety standards, require- ments, or duty of care, such as the return period of the design flood, inspection frequency, and so forth. These are only indicative examples. In reality, the type of dam (such as concrete or embank- ment) and other elements also need to be considered when determining the design flood level, with some countries considering a check flood in addition to the design flood. The required level of public safety measures will also depend on the dam’s operating regime (for example, the require- ments of hydropower dams with frequent rapid turbine discharge should be high) and downstream hazard and consequence, including both the permanent and impermanent populations in down- stream areas. The Decision Support Tool provides a conceptual framework for the development or assessment of the regulatory framework for dam safety assurance. It does not incorporate specific provisions relating to other elements, such as dam safety standards and requirements. The purpose of the Decision Support Tool is to illustrate the broad range of important elements and determinants for the dam safety assur- ance system. The details of each element and determining factor, such as design standards and safety requirements, need to be assessed and developed in an adaptive manner that considers national and local contexts. For more detail on the Decision Support Tool, including references and indicative examples, see Annex E of the full report, Wishart, Marcus J., Satoru Ueda, John D. Pisaniello, Joanne L. Tingey- Holyoak, Kimberly N. Lyon, and Esteban Boj García. 2020. Laying the Foundations: A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities. Sustainable Infrastructure Series. Washington, DC: World Bank. doi:10.1596/978-1-4648-1242-2, available at: http://hdl.handle​ .net/10986/34796 FIGURE 11 Key elements and determinants informing regulatory frameworks for dam safety assurance Legal system Common law/civil law Administrative Centralized/decentralized Ownership Public Private Portfolio size Small Large Large Small Dam size Small Large Small Large Large Small Large Small Risk/ hazard Low High Low High Low High Low High High Low High Low High Low High Low Minimum Assurance Maximum Maximum Assurance Minimum Dam safety assurance regulatory continuum A Policy Note Source: Wishart et al 2020. 17 18 LAYING THE FOUNDATIONS NOTES 1. Wishart, Marcus J.; Ueda, Satoru; Pisaniello, John D.; Tingey-Holyoak, Joanne L.; Lyon, Kimberly N.; Boj García, Esteban. 2020. Laying the Foundations : A Global Analysis of Regulatory Frameworks for the Safety of Dams and Downstream Communities. Sustainable Infrastructure Series;. Washington, DC: World Bank. https://openknowledge.worldbank.org/handle/10986/34796 2. The membership of Lao PDR was approved at the ICOLD General Assembly on November 30, 2020. 3. Cameroon is a bijural system, with common law operating in anglophone regions and civil law operating in the francophone regions. 4. Canada has a legal system based in common law except for in Quebec, where a civil code system is used. 5. World Bank. 2020. Good Practice Note on Dam Safety. World Bank, Washington, DC. © World Bank. https:// openknowledge.worldbank.org/handle/10986/35484 License: CC BY 3.0 IGO. SKU W21007