H. B. 4386
(By Delegates Proudfoot and Compton)
[Introduced February 3, 2000; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact sections two, three, four, five, seven,
nine, fifteen and seventeen, article fourteen, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to the dam
control and safety act; legislative findings; intent and
purpose; defining terms; deletion of certain soil conservation
service provisions and amendment of civil penalties.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five, seven, nine, fifteen and
seventeen, article fourteen, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 14. DAM CONTROL ACT.
§22-14-2. Legislative findings; intent and purpose of article.
The Legislature finds that dams may constitute a potential
hazard to people and property; therefore, dams in this state must
be properly regulated and controlled to protect the health, safety
and welfare of people and property in this state. It is the intent
of the Legislature by this article to provide for the regulation
and supervision of dams in this state to the extent necessary to
protect the public health, safety and welfare. The Legislature has
ordained this article to fulfill its responsibilities to the
people of this state and to protect their lives and private and
public property from the danger of a potential or actual dam
The Legislature finds and declares that in light of the
limited state resources available for the purposes of this article,
and in view of the high standards to which the United States soil
conservation service designs dams, independent state review of the
plans and specifications for dams designed by the soil conservation
service and construction oversight should not be required. The
Legislature further finds and declares that dams designed and
constructed by the soil conservation service but not owned or
operated by it should be subject to the same provisions of
inspection, after construction and certification by the soil
conservation service, as other dams covered by this article, so
long as any dam under the soil conservation service program is
designed with standards equal to or exceeding state requirements
under this article.§22-14-3. Definition of terms used in article.
As used in this article, unless used in a context that clearly
requires a different meaning, the term:
(a) "Alterations" or "repairs" means only those changes in the
structure or integrity of a dam which may affect its safety, which
determination shall be made by the director.
(b) "Application for a certificate of approval" means the
request in writing by a person to the director requesting that
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility which
is an adjunct of, or connected, appended or annexed to a dam,
including, but not limited to, spillways, a reservoir and its rim,
low level outlet works or water conduits such as tunnels, pipelines
and penstocks either through the dam or its abutments.
(d) "Certificate of approval" means the approval in writing
issued by the director to a person who has applied to the director
for a certificate of approval which authorizes the person to place,
construct, enlarge, alter, repair or remove a dam and specifies the
conditions or limitations under which the work is to be performed
by that person.
(e) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to
sections section six
or eight, article one of this chapter.
(f) "Division" means the division of environmental protection.
(g) "Dam" means an artificial barrier or obstruction,
including any works appurtenant to it and any reservoir created by
it, which is or will be placed, constructed, enlarged, altered or
repaired so that it does or will impound or divert water and: (1)
Is or will be twenty-five feet or more in height from the natural
bed of the stream or watercourse measured at the downstream toe of
the barrier and which does or can impound fifteen acre-feet or more
of water; or (2) is or will be six feet or more in height from the
natural bed of the stream or watercourse measured at the downstream
toe of the barrier and which does or can impound fifty acre-feet or
more of water: Provided, That the term "dam" does not include:
(A) Any dam owned by the federal government; (B) any dam
the operation and maintenance thereof is the responsibility of the
federal government was designed and constructed by, or was
constructed under the supervision of the United States natural
resources conservation service or any dam that is subject to an
operation and maintenance agreement with the United States natural
resources conservation service; (C) farm ponds constructed and used
primarily for agricultural purposes, including, but not limited to,
livestock watering, irrigation, retention of animal wastes and fish
culture, and which have no potential to cause loss of human life in
the event of embankment failure; or (D) roadfill or other
transportation structures which do not or will not impound water under normal conditions and which have a designed culvert or
similar conveyance or such capacity as would be used under a state
designed highway at the same location: Provided, however, That the
director may apply the provisions of section ten of this article
for hazardous, nonimpounding roadfill or other transportation
structures which are brought to his or her attention that become a
hazard to human life or property through the frequent or continuous
impoundment of water.
(h) "Enlargement" means any change in or addition to an
existing dam which: (1) Raises the height of the dam; (2) raises
or may raise the water storage elevation of the water impounded by
the dam; (3) increases or may increase the amount of water
impounded by the dam; or (4) increases or may increase the
watershed area from which water is impounded by the dam.
(i) "Person" means any public or private corporation,
institution, association, society, firm, organization or company
organized or existing under the laws of this or any other state or
country; the state of West Virginia; any state governmental agency;
any political subdivision of the state or of its counties or
municipalities; sanitary district; public service district;
drainage district; soil conservation district; watershed
improvement district; partnership; trust; estate; person or
individual; group of persons or individuals acting individually or
as a group; or any other legal entity whatever. The term "person", when used in this article, includes and refers to any authorized
agent, lessee or trustee of any of the foregoing or receiver or
trustee appointed by any court for any of the foregoing.
(j) "Reservoir" means any basin which contains or will contain
(k) "Soil conservation service" means the soil conservation
service of the United States department of agriculture or any
(l) (k) "Water" means any liquid, including any solids or
other matter which may be contained therein, which is or may be
impounded by a dam.
(m) (l) "Water storage elevation" means the maximum elevation
that water can reach behind a dam without encroaching on the
freeboard approved for the dam under flood conditions.
§22-14-4. General powers and duties of director; maximum fee
established for certificates of approval and annual
The director has the following powers and duties:
(a) To control and exercise regulatory jurisdiction over
dams as provided for in this article;
(b) To review all applications for a certificate of approval
for the placement, construction, enlargement, alteration, repair or
removal of any dam;
(c) To grant, modify, amend, revoke, restrict or refuse to grant any certificate of approval if proper or necessary to protect
life and property as provided in this article;
(d) To adopt, modify, repeal and enforce rules and issue
such a manner as the director may otherwise do, to
implement and make effective the powers and duties vested in it by
the provisions of this article;
(e) To take any lawful action considered necessary for the
effective enforcement of the provisions of this article;
(f) To establish and charge reasonable fees not to exceed
three hundred dollars for the review of applications for
certificates of approval and the issuance thereof and for
assessment of an annual registration fee not to exceed one hundred
dollars for persons holding a certificate of approval for existing
dams. The director shall promulgate rules to establish a schedule
of application fees and to establish annual registration fees;
Provided, That no fee shall be assessed for dams designed and
constructed by the soil conservation service for soil conservation
(g) To employ qualified consultants or additional persons as
necessary to review applications for certificates of approval and
to recommend whether they should be approved, to inspect dams and
to enforce the provisions of this article;
(h) To cooperate and coordinate with agencies of the federal
government, this state and counties and municipalities of this state to improve, secure, study and enforce dam safety and dam
technology within this state;
(i) To investigate and inspect dams as is necessary to
implement or enforce the provisions of this article and when
necessary to enter the public or private property of any dam owner.
The director may investigate, inspect or enter private or public
property after notifying the dam owner or other person in charge of
the dam of an intent to investigate, inspect or enter: Provided,
That where the owner or person in charge of the dam is not
available, the director may investigate, inspect and enter without
(j) To prepare and publish within a reasonable time, criteria
to govern the design, construction, repair, inspection and
maintenance of proposed dams herein defined, and to review these
criteria annually in order to consider improved technology for
such the criteria.
§22-14-5. Unlawful to place, construct, enlarge, alter, repair,
remove or abandon dam without certificate of approval;
application required to obtain certificate.
It is unlawful for any person to place, construct, enlarge,
alter, repair, remove or abandon any dam under the jurisdiction of
the director until he or she has first: (a) Filed an application
for a certificate of approval with the division; and (b) obtained from the division a certificate of approval: Provided, That
routine repairs which do not affect the safety of a dam are not
subject to the application and approval requirements. A separate
application for a certificate of approval must be submitted by a
person for each dam he or she desires to place, construct, enlarge,
alter, repair, remove or abandon. One application may be valid for
more than one dam involved in a single project or in the formation
of a reservoir.
Each application for a certificate of approval shall be made
in writing on a form prescribed by the director and shall be signed
and verified by the applicant. The application shall contain and
provide information which may be reasonably required by the
director to administer the provisions of this article.
In the case of dams designed by the soil conservation service
for transfer to any political subdivision, the director shall,
within sixty days after receipt of a completed application
therefor, issue a certificate of approval without review of the
plans and specifications.§22-14-7. Granting or rejecting applications for certificate of
approval by division; publication of notice of
application; hearing upon application.
Upon receipt of an application for a certificate of approval
and the fee required under the provisions of this article, the director shall proceed to consider the application for sufficiency.
The director shall approve or disapprove the application within
sixty days after receipt.
If an application is defective, it shall be returned to the
applicant by certified or registered mail, return receipt
requested, in order that the applicant may correct any defect:
Provided, That a defective application must be returned to the
division by the applicant within thirty days after it has been
returned to the applicant or it shall be treated as a new
application: Provided, however, That for good cause shown, the
director may extend the thirty-day period.
Upon approval by the director of the sufficiency of the
application, the applicant shall immediately publish the
application as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for the publication is the county in which the
proposed dam is to be located or in which the existing dam is
located. The notice shall include, but not be limited to, the name
and address of the owner of the dam and the location of the dam for
which the application was filed.
who whose life or property may be adversely
affected by the issuance of a certificate of approval has a right
to a hearing before the director if the person demands the hearing
in writing within fifteen days of publication of the certificate of approval. The written request for hearing shall include specific
objections to the certificate of approval.
Upon receipt by the director of the written request for
hearing, the director shall immediately set a date for the hearing
and shall notify the person or persons demanding a hearing. The
hearing shall be held within ten days after receipt of the written
request. The director shall hear evidence from all interested
parties and shall either: (1) Refuse to issue a certificate of
approval; or (2) issue a certificate of approval which shall be
subject to terms, conditions and limitations as the director may
consider necessary to protect life and property.
Unless otherwise extended by the director, a certificate of
approval is valid for a period of not more than one year.
§22-14-9. Inspections during progress of work on dam.
During the placement, construction, enlargement, repair,
alteration or removal of any dam, the director shall, either with
the division's own engineers or by consulting engineers or
engineering organizations, make periodic inspections for the
purpose of ascertaining compliance with the certificate of
approval. The director shall require the owner at his or her
expense to perform work or tests as necessary and to provide
adequate supervision during the placement, construction,
enlargement, repair, alteration or removal of a dam.
That with respect to dams designed by and constructed under the supervision of the soil conservation service, as to such dams no
state inspections are required.
If at any time during placement, construction, enlargement,
repair, alteration or removal of any dam, the director finds that
the work is not being done in accordance with the provisions of the
original or revised certificate of approval, the director shall
notify the owner by certified or registered mail, return receipt
requested, to correct the deficiency, cease and desist work or to
show cause as to why the certificate of approval should not be
The notice shall state the reason or reasons why the work is
not in accordance with the certificate of approval. The director
may order that work on the dam cease until the owner has complied
with the notice.
If the director finds that amendments, modifications or
changes are necessary to ensure the safety of the dam, the director
may order the owner to revise his or her plans and specifications.
If conditions are revealed which will not permit the placement,
construction, enlargement, repair, alteration or removal of the dam
in a safe manner, the certificate of approval may be revoked.
Immediately upon completion of a new dam or enlargement,
repair or alteration of a dam, the owner shall notify the director.
Provided, That immediately upon completion of a dam constructed
under the supervision of the soil conservation service, a certification of completion shall be sent to the director by the
soil conservation service, and a complete set of design documents
"as built" plans, and specifications and safety plan of evacuation
shall be provided to the director within ninety days after
completion of the dam.§22-14-15. Civil penalties and injunctive relief.
(a) Any person who violates any provision of this article, any
certificate of approval or any rule, notice or order issued
pursuant to this article is subject to a civil administrative
penalty, to be levied by the director, of not more than
five hundred dollars for each day of the violation, not to exceed
a maximum of four hundred ten thousand dollars. In assessing any
penalty, the director shall take into account the seriousness of
the violation and any good faith efforts to comply with applicable
requirements as well as any other appropriate factors as may be
established by rules promulgated by the director. No assessment
shall be levied pursuant to this subsection until after the alleged
violator has been notified by certified mail or personal service.
The notice shall include a reference to the section of the statute,
rule, notice, order or statement of the certificate of approval's
terms that was allegedly violated, a concise statement of the facts
alleged to constitute the violation, a statement of the amount of
the administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within
which to deliver to the director a written request for an informal
hearing. If no hearing is requested, the notice becomes a final
order after the expiration date of the twenty-day period. If a
hearing is requested, the director shall inform the alleged
violator of the time and place of the hearing. Within thirty days
following the informal hearing, the director shall issue and
furnish to the violator a written decision, and the reasons
therefor, concerning the assessment of a civil administrative
penalty. The authority to levy an administrative penalty is in
addition to all other enforcement provisions of this article and
the payment of any assessment does not affect the availability of
any other enforcement provision in connection with the violation
for which the assessment is levied: Provided, That no combination
of assessments against a violator shall exceed four five hundred
dollars per day of each violation: Provided, however, That any
violation for which the violator has paid a civil administrative
penalty assessed under this subsection is not subject to a separate
civil penalty action under this article to the extent of the amount
of the civil administrative penalty paid. Civil administrative
penalties shall be levied in accordance with the rules promulgated
under the authority of section four of this article. The net
proceeds of assessments collected pursuant to this subsection shall
be deposited in the dam safety fund established pursuant to section seventeen of this article. Any person adversely affected by the
assessment of a civil administrative penalty has the right to
appeal to the environmental quality board pursuant to the
provisions of article one, chapter twenty-two-b of this code.
(b) No assessment levied pursuant to subsection (a) of this
section is due and payable until the procedures for review of the
assessment as set out in said subsection have been completed.
(c) Any person who violates any provision of this article, any
certificate of approval, rule, notice or order issued under or
subject to the provisions of this article shall be subject to a
civil penalty not to exceed ten thousand dollars per day for each
violation. Any civil penalty may be imposed and collected only by
a civil action instituted by the director, either in the circuit
court of Kanawha County, or in the county in which the violation
occurred or is occurring.
Upon application by the director, the circuit court may
enjoin compliance with the provisions of this article as well as
the rules adopted in accordance with section four of this article,
the terms and conditions of any certificate of approval granted
under this article, or any order of the director or environmental
quality board. The venue of any such action shall be in Kanawha
County or in the county in which the violation exists. The circuit
court may issue a temporary injunction in any case, pending a
decision on the merits of the petition seeking injunctive relief.
The director may seek an injunction, or may institute a civil
action against any person in violation of any provisions of this
article or any certificate of approval, rule, notice or order
issued pursuant to this article. In seeking an injunction, it is
not necessary for the director to post bond or to allege or prove
at any stage of the proceeding that irreparable damage will occur
if the injunction is not issued or that the remedy at law is
inadequate. An application for injunctive relief or a civil
penalty action under this section may be filed and relief granted
notwithstanding the fact that all administrative remedies provided
for in this article have not been exhausted or invoked against the
person or persons against whom the relief is sought.
The judgment of the circuit court upon any application filed
or in a civil action instituted under the provisions of this
section shall be final unless reversed, vacated or modified on
appeal to the supreme court of appeals. Any appeal shall be sought
in the manner provided by law for appeals from circuit courts in
civil actions, except that the petition seeking review from
decision regarding a request for injunctive relief must be filed
within thirty days from the date of entry of judgment.
(d) Upon request of the director, the attorney general or the
prosecuting attorney of the county in which the violation occurs,
shall assist the director in any civil action under this section.
(e) In any action brought pursuant to the provisions of this section, the state or any agency of the state which prevails, may
be awarded costs and reasonable attorney's fees.
§22-14-17. Schedule of annual registration fees established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a schedule
of annual registration fees which shall be assessed annually upon
each person holding a certificate of approval issued pursuant to
this article. Each person holding a certificate of approval shall
pay the prescribed annual registration fee to the division pursuant
to the rules promulgated under this article. The schedule of
annual registration fees shall be designed to establish reasonable
categories of annual registration fees, including, but not limited
to, the size of the dam and its classification. Any certificate of
approval issued pursuant to this article becomes void without
notification to the person holding a certificate of approval when
the annual registration fee is more than
one hundred eighty ninety
days past due pursuant to the rules promulgated under this section.
NOTE: The purpose of this bill is to increase civil
administrative penalties and to establish judicial enforcement
provisions to enforce compliance under the Dam Control Act. The
bill also amends legislative findings, intent and purposes clause
and definitions. The bill deletes existing provisions related to
Natural Resource Conservation Service dams. The bill provides that
dams designed or constructed by the United States are exempt from
the article. The bill clarifies exemptions to the definition of
a dam regarding roadfills, addresses who may request a hearing, and
shortens the time period in which a certificate of approval becomes
void if the annual registration fee is unpaid.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would