ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 465
(Senators Unger, Jenkins, Prezioso and Plymale, original sponsors)
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[Passed March 9, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §22-14-3 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §22-14-19, all relating to deficient
dams; establishing the Dam Safety Rehabilitation Revolving
Fund for deficient dams; and providing for promulgation of
rules.
Be it enacted by the Legislature of West Virginia:
That §22-14-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §22-14-19, all to read as
follows:
ARTICLE 14. DAM CONTROL ACT.
§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 that may affect its safety to be
determined by the secretary.
(b) "Application for a certificate of approval" means the
written application provided to the secretary requesting that a
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility that
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 written approval
issued by the secretary to a person who has applied to the
secretary for a certificate of approval that 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)(1) "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:
(A) 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
(B) 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;
(2) "Dam" does not mean:
(A) Any dam owned by the federal government;
(B) Any dam for which the operation and maintenance of the dam
is the responsibility of the federal government;
(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 that
have no potential to cause loss of human life in the event of
embankment failure; or
(D) Roadfill or other transportation structures that do not or
will not impound water under normal conditions and that have a
designed culvert or similar conveyance or capacity that would be
used under a state designed highway at the same location: Provided,
That the secretary may apply the provisions of section ten of this
article for roadfill or other transportation structures that become
a hazard to human life or property through the frequent or
continuous impoundment of water.
(f) "Deficient dam" means a noncoal-related dam that exhibits
one or more design, maintenance or operational problems that may
adversely affect the performance of the dam over a period of time
or during a major storm or other inclement weather that may cause
loss of life or property; or a noncoal-related dam that otherwise
fails to meet the requirements of this article.
(g) "Department" means the Department of Environmental
Protection.
(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; a sanitary district; a public service district; a
drainage district; a conservation district; a watershed improvement
district; a partnership, trust, or estate; a person or individual;
a group of persons or individuals acting individually or as a
group; or any other legal entity. 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) "Secretary" means the Secretary of the Department of
Environmental Protection.
(l) "Natural Resources Conservation Service" means the Natural
Resources Conservation Service of the United States Department of
Agriculture or any successor or predecessor agency, including the
Soil Conservation Service.
(m) "Water" means any liquid, including any solids or other
matter that may be contained in the liquid, which is or may be
impounded by a dam.
(n) "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.
§22-14-19. Dam Safety Rehabilitation Revolving Fund established;
disbursement of fund moneys.
(a) There is created in the State Treasury a special revenue
fund known as the Dam Safety Rehabilitation Revolving Fund. The
fund shall be comprised of money allocated to the state by the
federal government expressly for the purposes of establishing and
maintaining a state Dam Safety Rehabilitation Revolving Fund. The fund shall also include all receipts from loans made by the fund,
any moneys appropriated by the Legislature, all income from the
investment of moneys held in the fund and all other moneys
designated for deposit to the fund from any source, public or
private. The fund shall operate as a special revenue fund and all
deposits and payments into the fund do not expire to the General
Revenue Fund, but shall remain in the account and be available for
expenditure in succeeding fiscal years.
(b) The fund, to the extent that money is available, shall be
used solely to make loans to persons who own an interest in a
deficient dam to finance the engineering, design, alteration,
improvement, repair, breaching or removal of the deficient dam
necessary to correct or remove the deficiencies and other
activities as authorized by a federal grant or a legislative
appropriation. Further, the fund may be used to defray costs
incurred by the department in administering the provisions of this
subsection.
(c) The secretary shall promulgate rules, in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, to govern the disbursement of moneys from the fund, establish
a state deficient dams rehabilitation assistance program to direct
the distribution of loans from the fund, establish criteria for
eligibility to receive loans from the fund and establish the terms
and conditions of the loans, including interest rates and repayment terms.
(d) The secretary may employ qualified officers, agents,
advisors and consultants and other persons necessary to carry out
the administration and management of the fund.