2015-2016 Bill 4565: Dams and Reservoirs Safety Act - South Carolina Legislature Online

1 South Carolina General Assembly 2 121st Session, 2015-2016 3 4 H. 4565 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Reps. Lucas, Bales, Clyburn, Hosey, Henegan, Allison, Henderson, Ballentine, Forrester, 10 Daning, Crosby, Duckworth, Clemmons, Spires, Pope, Herbkersman, Newton, Southard, Horne, Kennedy 11 and CobbHunter 12 Document Path: l:\council\bills\nl\13564sd16.docx 13 14 Introduced in the House on January 12, 2016 15 Currently residing in the House Committee on Agriculture, Natural Resources and Environmental 16 Affairs 17 18 Summary: Dams and Reservoirs Safety Act 19 20 21 HISTORY OF LEGISLATIVE ACTIONS 22 23 Date Body Action Description with journal page number 24 12/10/2015 House Prefiled 25 12/10/2015 House Referred to Committee on Agriculture, Natural Resources and Environmental 26 Affairs 27 1/12/2016 House Introduced and read first time 28 1/12/2016 House Referred to Committee on Agriculture, Natural Resources and Environmental 29 Affairs 30 31 View the latest legislative information at the website 32 33 34 VERSIONS OF THIS BILL 35 36 12/10/2015 37 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND ARTICLE 3, CHAPTER 11, TITLE 49, CODE OF 12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE 13 DAMS AND RESERVOIRS SAFETY ACT, SO AS TO 14 FURTHER PROVIDE FOR THE REQUIREMENTS, 15 REGULATORY PROVISIONS, AND PROCEDURES 16 APPLICABLE TO DAM AND RESERVOIR SAFETY TO 17 INCLUDE DAM CLASSIFICATION, PERMITTING, 18 REGISTRATION, INSPECTION, EMERGENCY ACTION AND 19 MAINTENANCE PLANS, FINANCIAL ASSURANCE 20 REQUIREMENTS, AND OTHER RELATED MEASURES, 21 AND TO REVISE CIVIL AND CRIMINAL PENALTIES FOR 22 VIOLATIONS. 23 24 Be it enacted by the General Assembly of the State of South 25 Carolina: 26 27 SECTION 1. Article 3, Chapter 11, Title 49 of the 1976 Code is 28 amended to read: 29 30 “Article 3 31 32 Dams and Reservoirs Safety Act 33 34 Section 4911110. This article shall be cited as the ‘Dams and 35 Reservoirs Safety Act’. 36 37 Section 4911120. Unless the context otherwise requires, as 38 used in this article: 39 (1) ‘Alterations’ and ‘repairs’ mean only the alterations or 40 repairs which may affect the safety of a dam or reservoir.

[4565] 2 1 (2) ‘Appurtenant works’ include, but are not limited to, 2 structures such as spillways, either in the dam or separate from it, 3 lowlevel outlet works, and water conduits. 4 (3)(2) ‘ Auxiliary spillway ’ means a secondary spillway 5 designed to operate only during large floods to pass flows, and is 6 in addition to a service spillway. 7 (3) ‘Department’ means the South Carolina Department of 8 Health and Environmental Control or its staff or agents. 9 (4) ‘Dam’ means an artificial barrier with appurtenant works, 10 including, but not limited to, dams, levees, dikes, or floodwalls for 11 the impoundment or diversion of waters or other fluids where 12 failure may cause danger to life or property. However, this article 13 does not include apply to a dam: 14 (a) less than twentyfive feet in height from the natural bed of 15 the stream or watercourse measured at the downstream toe of the 16 dam, or less than twentyfive feet from the lowest elevation of the 17 outside limit of the dam, if it is not across a stream channel or 18 watercourse, to the maximum water storage elevation and has an 19 impounding capacity at maximum water storage elevation of less 20 than fiftyacre feet unless a situation exists where the hazard 21 potential as determined by the department is such that dam failure 22 or improper reservoir operation may cause loss of human life, 23 damage to highways or railroads, cause interruption of use or 24 service of public utilities, cause damage to homes, commercial and 25 industrial buildings, or may cause the failure of one or more 26 downstream dams which could cause any of the above-listed 27 consequences; 28 (b) owned or operated by a department or an agency of the 29 federal government; 30 (c) owned or licensed by the Federal Energy Regulatory 31 Commission, the South Carolina Public Service Authority, the 32 Nuclear Regulatory Commission, the United States Corps of 33 Engineers, or other responsible federal licensing agencies 34 considered appropriate by the department; 35 (d) upon which the Department of Transportation or county 36 or municipal governments have accepted maintenance 37 responsibility for a road or highway where that road or highway is 38 the only danger to life or property with respect to failure of the 39 dam. (5) ‘ Dam-size classification’ means the classification for 40 dam size utilized for all purposes under this article, calculated by 41 height of the dam and storage capacity of the reservoir, in 42 accordance with the table below. Size classification may be

[4565] 3 1 determined by either storage or height, whichever gives the larger 2 size capacity. 3 4 CATEGORY IMPOUNDMENT HEIGHT 5 STORAGE (Feet) 6 (Acre Feet) 7 Very Small Less than 50 and Less than 25 8 9 Small Equal to or Greater than or Equal to or Greater than 10 50 and Less than 1000 25 and Less than 40 11 12 Intermediate Equal to or Greater than or Equal to or Greater than 13 1000 and Less than 50,000 40 and Less than 100 14 15 Large Equal to or Greater than 50,000 or Equal to or Greater than 100 16 17 (6) ‘Dam hazard-potential classification’ is the classification 18 for dam hazard potential utilized for all purposes under this article, 19 in accordance with the table below. The hazards pertain to 20 potential loss of human life or property damage in the event of 21 failure or improper operation of the dam or appurtenant works. 22 Probable future development of the area downstream from the dam 23 that would be affected by its failure must be considered in 24 determining the classification. Dams are subject to reclassification 25 if the department determines that the hazard has changed. 26 27 HAZARD CLASSIFICATION HAZARD POTENTIAL 28 High Hazard (Class I) Dams located where failure will likely 29 cause loss of life or serious damage to 30 a home, industrial and commercial 31 facility, important public utility, 32 main highway, or railroad. 33 Significant Hazard (Class II) Dams located where failure will not likely 34 cause loss of life, but may damage a home, 35 industrial and commercial facility, 36 secondary highway or railroad or cause 37 interruption of use or service of a relatively 38 important public utility. 39 Low Hazard (Class III) Dams located where failure may cause 40 minimal property damage to others. Loss 41 of 42 life is not expected. 43 44 (5)(7) ‘Districts’ means the soil and water conservation districts 45 of this State. For the purposes of this article the districts may serve 46 as agents and advisors to the department. 47 (6)(8) ‘Danger to life or property’ means a situation exists 48 where the hazard potential as determined by the department is such

[4565] 4 1 that dam failure or improper reservoir operation may cause injury 2 to persons, loss of human life, or damage to property. 3 (7)(9) ‘Detailed inspection’ means all studies, investigations, 4 and analyses necessary to evaluate conclusively the structural 5 safety and hydraulic capacity of a dam or reservoir and 6 appurtenant works, prepared in accordance with the requirements 7 of Section 4911150. This inspection includes, but is not limited to, 8 soil analyses, concrete or earth stability analyses, materials testing, 9 foundation explorations, and hydrologic analyses, including basin 10 studies and flood potential. This inspection, investigation, or 11 analyses must be performed by a qualified registered professional 12 an engineer. 13 (10) ‘ Emergency Action Plan’ means a written plan to be 14 provided and periodically updated by owners of high and 15 significant hazard dams including information and specific actions 16 necessary to properly respond to a dam-related emergency. The 17 emergency action plan shall include, at a minimum: 18 (a) an emergency alert notification plan on a format sheet 19 supplied by the department. All pertinent names and telephone 20 numbers required on the form must be furnished; 21 (b) full computergenerated breach analyses with contour 22 maps showing the inundated areas below the dam for the cases of 23 sunnyday breach with water at normal pool level and breach of the 24 dam during passage of the design storm at the point when water 25 elevation is at its maximum level in the reservoir; 26 (c) a written listing of the specific actions that must be taken 27 if there is reason to conclude the dam is near failure or has failed. 28 This shall include the responsibility of the dam owner to notify any 29 downstream property owners. 30 (11) ‘Engineer’ means an individual who is a professional 31 engineer currently licensed and registered to practice engineering 32 in the State of South Carolina. 33 (8)(12)‘Enlargement’ means a change in or an addition to an 34 existing dam or reservoir which raises or may raise the water 35 storage elevation of the water impounded by the dam or reservoir. 36 (13) ‘ Inspection and maintenance plan’ means a written plan of 37 procedures to conduct routine activities involved in the operation 38 and maintenance of a dam and all appurtenant works in safe 39 condition in accordance with all permit or application approval 40 terms and conditions, which is prepared in accordance with 41 Section 4911150. 42 (9)(14)‘Owner’ means those who own, control, operate, 43 maintain, manage, or propose to construct a dam or reservoir.

[4565] 5 1 (10) ‘Removal’ means destruction or breaching of an existing 2 dam or drainage of water impoundment or reservoir. 3 (15) ‘ Preliminary Inspection’ means an inspection by the 4 department, its employees, or agents to assess the condition of a 5 dam or reservoir in response to a complaint or as part of the 6 department’s routine inspection and regulation of dams pursuant to 7 this article. 8 (11)(16) ‘Reservoir’ means a reservoir which contains the 9 impoundment of water by a dam or reservoir an area which 10 contains or will contain the water, wastewater, or liquidborne 11 materials by virtue of its having been impounded by a dam. 12 (12)(17) ‘Order’ means a written document prepared and issued 13 by the department which mandates specific actions to be 14 accomplished by a dam owner within a specified time frame. 15 Failure to comply makes the owner subject to penalties outlined in 16 Section 4911260. 17 (13) ‘Unsafe’ means the condition of the dam is such that 18 repairs or alterations are necessary to reduce the risk of dam 19 failure. 20 21 Section 4911130. It is the purpose of this article to provide for 22 the certification permitting and inspection of certain dams in South 23 Carolina in the interest of public health, safety, and welfare in 24 order to reduce the risk of failure of the dams, prevent injuries to 25 persons and damage to property, and confer upon the department 26 the regulatory authority to accomplish the purposes. 27 28 Section 4911140. The authority for the safe maintenance of the 29 dams and reservoirs of this State and the powers of inspection and 30 certification permitting provided in this article are the 31 responsibility of the department. The department may employ 32 engineers and technicians it considers necessary to implement this 33 article for which appropriations are available. 34 35 Section 4911150. (A)(1) The owner of a dam or reservoir 36 constructed in this State solely is the entity solely responsible for 37 maintaining the dam or reservoir in a safe condition throughout the 38 life of the structure. 39 (2) The owner shall submit a dam registration to the 40 department by October first following the effective date of this 41 item. Annually by October first of each year thereafter the owner 42 shall update the dam registration as required to provide current 43 information to the department.

[4565] 6 1 (B) The owner of a dam or reservoir shall inform the 2 department in writing within thirty days after title to before 3 ownership or control of the dam or reservoir legally has been will 4 be transferred from his ownership. The notice must include the 5 name and address of the new owner, and an updated dam 6 registration form signed by the new owner. 7 (C) The owner of a dam or reservoir whose failure likely would 8 cause loss of life or substantial property damage, a dam or 9 reservoir classified as a high or significant hazard under existing 10 regulations, shall provide the department a current emergency 11 action plan in the format prescribed by the department by 12 regulation requires. The owner of a dam classified as a high or 13 significant hazard is responsible for updating and evaluating the 14 emergency action plan annually, and shall provide affirmation on a 15 form provided by the department that the emergency action plan is 16 both current and effective. The emergency action plan and each 17 annual update must be submitted to the department and a copy of 18 each must be provided to the state emergency management official 19 and the county emergency management official of the county in 20 which the dam is located by October first of each year. 21 (D) The owner shall submit an inspection and maintenance plan 22 to the department with the dam registration, and annually shall 23 submit a dam safety declaration on a form provided by the 24 department on or before October first of each year. An inspection 25 and maintenance plan shall include: 26 (1) detailed descriptions of all procedures governing the 27 operation, monitoring, and inspection of the dam, including those 28 governing the reading of instruments and the recording of 29 instrument readings, the maintenance of the dam; and the 30 preparation and circulation of notifications of deficiencies and 31 potential deficiencies; 32 (2) a schedule for inspections and maintenance at least 33 annually; and 34 (3) other elements as may be required by the department 35 based on its consideration of public safety and the specific 36 characteristics of the dam and its location. 37 The department may review and require the owner to amend any 38 inspection and maintenance plan at any time to protect life, 39 property, or infrastructure. 40 (E)(1) The owner of a dam classified as a high or significant 41 hazard is responsible for a ‘detailed inspection’ of the dam, as 42 defined in this article, to be conducted at least every five years. If 43 there has been significant changes in the watershed contributing

[4565] 7 1 runoff to the reservoir or changes to the downstream land use by 2 construction of homes or infrastructure that could impact the 3 hazard classification, an inspection and interim evaluation must be 4 conducted and provided to the department for review. 5 (2) The owner of any other dam regulated by the department 6 is responsible for a detailed inspection of the dam or reservoir to 7 be conducted at least every ten years. If there has been significant 8 changes in the watershed contributing runoff to the reservoir or 9 changes to the downstream land use by construction of homes or 10 infrastructure that could impact the hazard classification, an 11 inspection and interim evaluation must be conducted and provided 12 to the department for review. 13 (3) A detailed inspection report shall include, but is not 14 limited to: 15 (a) a review of all relevant documents, studies, plans, 16 hazard classifications, photos, or any other information related to 17 the dam and its appurtenant works, including the inspection and 18 maintenance plan, detailed inspection reports or other inspection 19 reports generated since the last detailed inspection, and the 20 emergency action plan; 21 (b) the narrative results of a visual inspection of the dam, 22 including the embankment, spillway, outlet, closure dikes, and 23 other appurtenant structures, focusing on initial or progressive 24 signs of the manifestation of potential failure modes. Specific note 25 must be made as to whether any deficiencies reported in previous 26 reports, and any corrective action required by the department, have 27 been fully resolved or implemented. The report shall include dated 28 photographs of the specific observations made and any 29 deficiencies or potential deficiencies identified during the visual 30 inspection; 31 (c) a review and evaluation of any instrumentation data 32 generated since the completion of the last safety inspection, and 33 any recommendations for addressing gaps or other deficiencies or 34 potential deficiencies in monitoring; 35 (d) identification of deficiencies or potential deficiencies 36 along with recommendations and a schedule for any corrective 37 actions necessary to fully resolve the deficiencies or potential 38 deficiencies, which recommendations may include additional 39 investigations, such as revised hydrologic and hydraulic analyses, 40 stability analyses, or underwater inspections; 41 (e) an evaluation of the dam, including its function, 42 structural stability, and spillway capacity, that may utilize 43 calculations or computer modeling of the hydrologic, hydraulic,

[4565] 8 1 stability or structural analyses, conclusions as to whether the dam 2 is in a safe condition, and the basis for the conclusions; and 3 (f) any recommended change in the hazard classification 4 or modification of the emergency action plan due to changes in the 5 dam or inundation area, including, specifically, changes in land 6 use. 7 (4) All detailed inspection reports must be retained by the 8 dam owner and kept in good order. 9 (5) The department may review any detailed inspection 10 report at any time to protect life, property or infrastructure, may 11 require additional information or clarification of the report, or may 12 provide comments to be addressed in a revised detailed inspection 13 report upon a finding that it was not prepared in compliance with 14 this article or generally accepted engineering practices in the field 15 of dam design and safety. The owner shall revise the detailed 16 inspection report to fully incorporate or resolve the department’s 17 comments and resubmit it to the department within sixty days of 18 the owner’s receipt of the department’s comments, unless another 19 time frame is either requested by the owner and agreed to by the 20 department, or imposed by the department in the interests of public 21 safety for a dam that has a condition rating of ‘unsafe’ or 22 ‘unsound’. 23 (F) Within thirty days of any detailed inspection of a dam, the 24 results must be submitted to the department in writing and signed 25 by the engineer who conducted the detailed inspection. Any 26 nonemergency repairs required as a result of a detailed inspection 27 must be submitted to the department for written approval prior to 28 implementation as required in this article. 29 (G) The owner of a dam classified as a high or significant 30 hazard shall notify the department in writing, on a form provided 31 by the department, within five calendar days of any flow in an 32 erodible auxiliary spillway. The department may require 33 additional information to be submitted in order to protect public 34 safety, property, or infrastructure. 35 36 Section 4911155. (A) The owner of a dam classified as high 37 or significant hazard shall provide to the department evidence of 38 financial assurance in the form of a bond, letter of credit, cash 39 escrow, or other acceptable assurance as prescribed by the 40 department in an amount appropriate to safely remove the dam or 41 reservoir should removal become necessary for the protection of 42 life, property, or infrastructure. The amount of proposed financial 43 assurance required must be submitted to the department by the

[4565] 9 1 owner with the dam registration, and shall include a written 2 statement, dated no earlier than one year prior to submission, from 3 an engineer declaring the approximate cost for removal of the dam. 4 (B) The owner annually shall adjust the financial assurance 5 required under this section for inflation. The adjustment may be 6 made by recalculating the removal cost estimate in current dollars 7 in consultation with an engineer, or by using an inflation factor 8 derived from the most recent Implicit Price Deflator For Gross 9 National Product as published by the United States Department of 10 Commerce in its Survey of Current Business. 11 (C) The owner annually shall provide proof that the financial 12 assurance instrument required by this section remains valid. 13 (D) All annual updates under this section must be submitted to 14 the department with the annual registration update, on or before 15 October first of each year. 16 (E) The department may adjust the amount of financial 17 assurance required if it determines that the proposed amount is 18 insufficient to safely remove the dam, should removal become 19 necessary. 20 21 Section 4911160. The department may issue an order directing 22 the owner of a dam or reservoir to make at his the owner ’ s expense 23 the necessary maintenance, alteration, repair, or removal upon a 24 finding that the dam or reservoir: 25 (a) is or has become unsafe and is dangerous to life or 26 property; 27 (b) is not maintained in good repair or operating condition; 28 or 29 (c) is not maintained or operated in accordance with the 30 terms and conditions of the certificate of completion and operation 31 issued by the department any provision of this article or any 32 regulations promulgated under this article. 33 34 Section 4911170. (A) The existence of a dam which is not 35 maintained in good repair or operating condition or may be unsafe 36 and a danger to life or property may be brought to the attention of 37 the department by complaint, staff, or authorized investigation or 38 by other means. 39 (B) Upon staff or other authorized investigations or upon 40 receipt of a written private complaint alleging that the person or 41 life, property, or infrastructure of the complainant is endangered 42 by the construction, maintenance, operation, or condition of a dam 43 or reservoir, the department shall cause a preliminary inspection of

[4565] 10 1 the structure and downstream development to be made by field 2 observations to determine if the complaint is meritorious. The 3 department may require the owner of the dam or reservoir to 4 provide data, records, and design plans of the structure specified 5 by regulations. 6 (C) Notwithstanding the existence of any complaint or deficient 7 condition of a dam, the department shall endeavor to conduct a 8 preliminary inspection on all dams with the following frequency, 9 within the limits of available funds: 10 (1) high hazard classification dams annually; 11 (2) significant hazard classification dams every three years; 12 and 13 (3) low hazard classification dams every five years. 14 (D) If upon the preliminary inspection it is determined that the 15 dam or reservoir is unsafe and is dangerous to life or property, the 16 department may order the owner at his expense to make a detailed 17 inspection of the dam and reservoir and surrounding area and to 18 provide to the department within a time frame specified by the 19 department plans prepared by a qualified registered professional an 20 engineer for correction of all deficiencies of the dam or to provide 21 to the department plans and specifications for removal of the dam. 22 In either instance the plans must be approved by the department 23 before implementation and implemented within a time frame 24 specified by the department. If upon results of a preliminary or 25 detailed inspection it is determined determine that the dam or 26 reservoir has not been maintained in good repair or operating 27 condition, the department may order the owner at his expense to 28 accomplish the necessary maintenance or to obtain a permit for 29 removal and to remove the dam within a time frame specified by 30 the department. 31 (D)(E) The department shall give the owner notice of its action 32 when: 33 (1) a complaint has been filed alleging that the owners’ dam 34 or reservoir is unsafe and a danger to life or property stating the 35 nature of the complaint; 36 (2) a preliminary inspection has been made with findings. 37 (E) The owner of a dam or reservoir determined through a 38 preliminary inspection not to be maintained in good repair or 39 operating condition or to be unsafe and a danger to life or property 40 may request a hearing before the board of the department within 41 thirty days after notice of the findings are delivered. The owner 42 may submit written or present oral evidence which must be

[4565] 11 1 considered by the board of the department in the issuance of the 2 order. 3 4 Section 4911180. (A) The department may solicit voluntary 5 compliance by the owner of a dam or reservoir found to be unsafe 6 and a danger to life or property to take remedial steps necessary to 7 render the dam safe. 8 (B) Extension of time to complete work specified in an order 9 may be granted by the department. No extension may be granted 10 when there appears substantial and immediate danger of dam 11 failure. 12 13 Section 4911190. (A) The department immediately shall order 14 remedial measures necessary to protect life or property if the 15 condition of a dam or reservoir is appears so dangerous to the 16 safety of life or property as not to permit time for the issuance and 17 enforcement of a repair order or passing or imminent floods 18 threaten overtopping erosion or destruction of a dam or reservoir 19 capable of danger to life or property. 20 (B) In applying emergency measures the department has the 21 following limited powers to order the owner to: 22 (1) lower the water level by releasing water from the 23 reservoir; 24 (2) empty the reservoir completely; 25 (3) take other steps essential to safeguard life and property. 26 (C) For an emergency where the owner finds repairs are 27 necessary to safeguard life or property, he may start the repairs 28 immediately but shall the owner immediately must implement the 29 emergency action plan for the dam or reservoir, and shall take any 30 additional steps essential to safeguard life and property and notify 31 the department at once of the emergency condition and any 32 proposed repair and work underway as soon as possible, but not 33 later than twentyfour hours after the emergency condition is 34 known by the owner. 35 (D) When the owner fails to comply with the emergency order 36 or cannot be ascertained or found, the department or its authorized 37 agents may enter and immediately take actions necessary to 38 provide protection to life or property, including removal of the 39 dam. The department may recover from the owner, in the name of 40 the State, the expenses incurred in taking the action in the same 41 manner debts are recoverable by law. 42

[4565] 12 1 Section 4911200. (A) The construction of a new dam or 2 reservoir or enlargement, removal, or repair modifications to 3 include reconstruction, enlargement, repair, alteration, breach, or 4 removal of an existing dam or reservoir may not begin until the 5 owner has applied for and obtained from the department written 6 approval of plans and specifications. 7 (B) Where the location and size of the dam or reservoir renders 8 the requirements of subsection (A) and Section 4911210 9 unnecessary, the department may grant approval and waive certain 10 nonessential requirements in instances, including, but not limited 11 to, small dams and reservoirs for agricultural, fish or wildlife, or 12 recreational uses on private lands and of no danger to other life or 13 property downstream. 14 15 Section 4911210. (A) A separate permit application for each 16 dam or reservoir and all enlargements, removals, or repairs 17 modifications to include reconstruction, enlargement, repair, 18 alteration, breach, or removal to existing dams or reservoirs must 19 be filed with the department upon forms to be provided by it, 20 except only one application need be filed for a dam and the 21 reservoir which will contain the water impounded by the dam. The 22 application must be accompanied by maps and plans and 23 specifications of a character and size and setting forth pertinent 24 details and dimensions required by regulation the department. The 25 application for construction of a new dam or reservoir whose 26 failure likely would cause loss of life or substantial property 27 damage, a dam or reservoir classified as a high or significant 28 hazard under existing regulations, must include a fullydeveloped 29 an emergency action plan in a format prescribed by the department 30 by regulation requires. After the dam or reservoir is constructed, 31 this emergency action plan must be updated by the owner of the 32 dam or reservoir each time it becomes noncurrent. 33 (B) The following minimum items must be required and 34 approved prior to the initiation of the construction: 35 (1) c onstruction plans and specifications prepared by an 36 engineer; 37 (2) hazard potential identification; 38 (3) statement of ownership; 39 (4) hydrologic and hydraulic design computations; 40 (5) structural design computations; 41 (6) geotechnical data and design computations; 42 (7) instrumentation plan;

[4565] 13 1 (8) operation plan during construction and the life of the 2 structure; 3 (9) maintenance plan; 4 (10) emergency action plan; 5 (11) agreement to submit asbuilt plans certified by the design 6 engineer; and 7 (12) statement of financial assurance in accordance with this 8 article. 9 (C) The modification or repair of existing dams must be 10 coordinated with and approved by the department. Minor 11 maintenance work shall be included in the approval of the original 12 inspection and maintenance plan. All construction plans and 13 specifications must be prepared by an engineer. The department 14 may require any or all of the information required in subsection 15 (B) prior to approving a proposed modification or repair of an 16 existing dam. 17 (D) The following items are required and must be approved 18 prior to the initiation of the removal or abandonment of a dam: 19 (1) method of dewatering, including testing for 20 environmentally sensitive discharges; 21 (2) method of breaching or abandonment; 22 (3) means to control erosion at the site during and after the 23 breach; 24 (4) means to control sediment transport from the reservoir, 25 including testing and control of environmentally sensitive material, 26 means to maintain breach area, upstream and downstream channel, 27 and reservoir bed after the breach; 28 (5) time schedule and sequence of construction; 29 (6) submission of asbuilt plans; and 30 (7) hydraulic evaluation and remapping of downstream flood 31 areas, as necessary. 32 (E) All construction plans and specifications must be prepared 33 by an engineer. 34 35 Section 4911220. An applicant for approval of a dam or 36 reservoir subject to Section 4911200 also shall file with the 37 department a design approved by a registered professional an 38 engineer legally qualified in the State. Dams designed by the 39 USDASoil Conservation Service or other federal agencies do not 40 require certification by a registered professional an engineer. 41 42 Section 4911230. (A) The department may make necessary 43 inspections during construction of new dams and reservoirs,

[4565] 14 1 enlargements, removal, and repairs of dams and reservoirs and 2 during work done pursuant to repair orders to assure compliance 3 with the approved plans and specifications or provisions of the 4 order. 5 (B) If water is to be released during the construction, repair, or 6 removal, the department shall specify the maximum discharge rate 7 allowable to avoid endangering or causing injury to downstream 8 owners. 9 10 Section 4911240. (A) The department or its authorized agents 11 may inspect the dam or reservoir and surrounding area to 12 determine the safety of the structure. 13 (B) An authorized member, agency, or representative of the 14 department may enter state or private lands and natural or artificial 15 waterways in the State to discharge the duties set forth in this 16 article. 17 (C) The department shall formulate reasonable may promulgate 18 regulations, including, but not limited to, minimum safety design 19 standards for impoundments, safety inspection standards, water 20 discharge, or drawdown rates and levels in unsafe impoundments 21 and for other purposes as necessary to administer this article. 22 (D) The department shall issue all orders, permits, or licenses 23 registrations set forth in this article. 24 25 Section 4911250. Nothing in this article and no action or 26 failure to act under this article: 27 (1) imposes liability on the State, the department, districts, 28 or an agency or its officers or employees for the recovery of 29 damages caused by the action or failure to act; or 30 (2) relieves the owner or operator of a dam or reservoir of 31 the duties, obligations, responsibilities, or liabilities arising from or 32 incident to the ownership or operation of a dam or reservoir. 33 34 Section 4911260. (A) A person violating this article is guilty 35 of a misdemeanor and, upon conviction, must be fined not less 36 than one hundred nor more than five hundred dollars. Each day the 37 violation continues after notice to take corrective action is a 38 separate offense. A person who wilfully or with gross negligence 39 or recklessness violates a provision of this article or a regulation, 40 permit, permit condition, or order of the department is guilty of a 41 misdemeanor and, upon conviction, must be fined not less than 42 five hundred dollars nor more than twentyfive thousand dollars for

[4565] 15 1 each day’s violation or imprisoned for not more than two years, or 2 both. 3 (B) The department may assess an administrative fine a civil 4 penalty of not less than one hundred nor more than one thousand 5 dollars per day against a person who violates this article or an 6 order issued or regulation promulgated pursuant to it. In 7 determining the amount of the fine penalty, the department shall 8 consider the degree and extent of harm caused by the violation and 9 the cost of rectifying the damage. Fines assessed under this 10 subsection may be appealed to the department who may reduce 11 them based on information presented at the appeal hearing. 12 (C) Upon a violation of this article or related regulations the 13 department may institute legal action to obtain injunctive relief in 14 the name of the department. 15 (D) A person against whom a final order or decision has been 16 made, except for emergencies specified in Section 4911190, may 17 appeal to the board the decision under the Administrative 18 Procedures Act. The burden of proof is on the party attacking 19 challenging an order or a decision of the department to show that 20 the order is unlawful or unreasonable. 21 (E) Civil fines collected under this article must be deposited in 22 a special account of the department to fund educational activities 23 relating to dams and reservoirs safety, including, but not limited to, 24 workshops, seminars, manuals, and brochures.” 25 26 SECTION 2. The repeal or amendment by this act of any law, 27 whether temporary or permanent or civil or criminal, does not 28 affect pending actions, rights, duties, or liabilities founded thereon, 29 or alter, discharge, release or extinguish any penalty, forfeiture, or 30 liability incurred under the repealed or amended law, unless the 31 repealed or amended provision shall so expressly provide. After 32 the effective date of this act, all laws repealed or amended by this 33 act must be taken and treated as remaining in full force and effect 34 for the purpose of sustaining any pending or vested right, civil 35 action, special proceeding, criminal prosecution, or appeal existing 36 as of the effective date of this act, and for the enforcement of 37 rights, duties, penalties, forfeitures, and liabilities as they stood 38 under the repealed or amended laws. 39 40 SECTION 3. This act takes effect upon approval by the 41 Governor. 42 XX 43

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