August 2020 – The Emmett Environmental Law & Policy Clinic has released a new guide, “Legal Issues in Dam Removal: A Guide for Massachusetts Dam Owners”, which provides information on some common legal questions for dam owners in Massachusetts and their attorneys.

Many dams in Massachusetts were built decades or even centuries ago, and more than half of them are privately owned.  Private owners are considering removing their dams for a number of reasons – for example, the dams may no longer serve their original purposes and have outlasted their designed lifespans; the dams may have fallen into disrepair and present a safety hazard to downstream residents and a liability risk to owners; and/or continuing maintenance and repairs on the dams is becoming increasingly expensive.  In addition, a dam’s continued existence as a blockage on a waterway can have harmful ecological effects, such as impeding migratory fish passage, elevating water temperatures and reducing dissolved oxygen levels, and generating emissions of methane, a powerful greenhouse gas.  Thus, there is a strong case for removing many of these dams in Massachusetts.

The Clinic’s guide covers some of the legal issues and questions related to dam removal, such as the liability risk a dam owner faces for harms caused by dam failure; whether a dam owner has the legal right to remove the dam; whether a dam owner has a legal responsibility to mitigate harms to existing uses of the river that would be affected by the dam removal; who owns the land exposed in the former impoundment once the dam is removed; what responsibility the dam owner bears for contaminated sediment in the impoundment behind a dam; and how liability is allocated among engineers, contractors, and the dam owner for a dam removal project.  Please note that this guide does not address the actual regulatory approval process for removing a dam.

This guide was authored by Clinic students Mathieu Erramuzpe, JD’19 and Li Wang, JD’19; Clinic Fellow Lynne Dzubow, and Deputy Director Shaun Goho.

Click to view the guide: Legal Issues in Dam Removal: A Guide for Massachusetts Dam Owners