Senate Bill No. 221

(By Senator Dittmar)

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[Introduced January 27, 2000; referred to the Committee on Natural Resources; and then to the Committee on Finance.]
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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 failure. 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 for which 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 impounded water.
(k) "Soil conservation service" means the soil conservation service of the United States department of agriculture or any successor agency.
(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 registration.

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 orders, in 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 districts;
(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 notice; and
(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 inclusion in 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.
Any person 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. Provided, 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 revoked.
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 two hundred 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 be added.