Senate Bill No. 467
(Senators Unger, Prezioso, Plymale, Jenkins, Foster,
Stollings, Hunter and Love, original sponsors)
[Passed March 8, 2008; in effect ninety days from passage.]
AN ACT to amend and reenact §22-14-3, §22-14-15 and §22-14-19 of
the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto three new sections, designated
§22-14-20, §22-14-21 and §22-14-22, all relating to dam
safety; defining terms; providing for the establishment,
administration and management of the Dam Safety Rehabilitation
Revolving Fund; providing moneys for the fund; providing
eligibility requirements to receive loans from the fund;
providing rule-making authority; providing application
requirements for loans from the fund; establishing loan
agreement requirements; providing for collection of moneys due
the fund; providing authority to the Department of
Environmental Protection for deficient dams that are privately
owned by a noncompliant dam owner; and establishing civil penalties.
Be it enacted by the Legislature of West Virginia:
That §22-14-3, §22-14-15 and §22-14-19 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto three new sections, designated
§22-14-20, §22-14-21 and §22-14-22, 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) "Authority" means the Water Development Authority provided
in section four, article one, chapter twenty-two-c of this code.
(e) "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.
(f) (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
(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.
(g) "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.
(h) "Department" means the Department of Environmental
(i) "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.
(j) "Noncompliant dam owner" means an owner who has received
two or more orders to repair or remove a deficient dam without
completion of the repairs or removal within time frames established
by the secretary.
(k) "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.
(l) "Reservoir" means any basin which contains or will contain
(m) "Secretary" means the Secretary of the Department of
(n) "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.
(o) "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.
(p) "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.
§22-14-15. 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 secretary, of not more than five
thousand dollars for each day the violation continues, not to
exceed a maximum of twenty thousand dollars. In assessing any
penalty, the secretary 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 proposed by the secretary for legislative
approval pursuant to article three, chapter twenty-nine-a of this
code. No assessment may 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 civil 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 secretary
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
secretary shall inform the alleged violator of the time and place
of the hearing. Within thirty days following the informal hearing,
the secretary shall issue and furnish to the violator a written
decision, and the reasons for the decision, concerning the
assessment of a civil administrative penalty. The authority to
levy a civil 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 twenty thousand 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
eighteen 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 any certificate
issued under or subject to the provisions of this article is
subject to a civil penalty not to exceed twenty-five thousand
dollars per day of the violation and any person who violates any
provision of this article or of any rule or who violates any
standard or order promulgated or made and entered under the
provisions of this article is subject to a civil penalty not to
exceed twenty-five thousand dollars per day of the violation. The
civil penalty may be imposed and collected only by a civil action
instituted by the secretary in the circuit court of Kanawha County
or in the county in which the violation or noncompliance exists or
is taking place.
Upon application by the secretary, the circuit courts of this state or the judges thereof in vacation may by injunction compel
compliance with and enjoin violations of the provisions of this
article and rules proposed in accordance with section four of this
article, the terms and conditions of any certificate of approval
granted under the provisions of this article or any order of the
secretary or Environmental Quality Board and the venue of any
action shall be in the circuit court of Kanawha County or in the
county in which the violation or noncompliance exists or is taking
place. The court or the judge thereof in vacation may issue a
temporary or preliminary injunction in any case pending a decision
on the merits of any injunctive application filed. In seeking an
injunction, it is not necessary for the secretary 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 in this article have not been exhausted or
invoked against the person or persons against whom the relief is
The judgment of the circuit court upon any application filed
or in any civil action instituted under the provisions of this
section is final unless reversed, vacated or modified on appeal to
the Supreme Court of Appeals. An appeal shall be sought in the manner provided by law for appeals from circuit courts in other
civil cases, except that the petition seeking review of an order in
any injunction proceeding must be filed with the Supreme Court of
Appeals within ninety days from the date of entry of the judgment
of the circuit court.
(d) Upon request of the secretary, the Attorney General or the
prosecuting attorney of the county in which the violation occurs
shall assist the secretary 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.
§22-14-19. 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 on the list of deficient dams created pursuant to
section twenty of this article 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, a legislative
appropriation or by the secretary pursuant to section twenty-two of
this article. The fund may also be used to defray costs incurred
by the department or the authority in administering the provisions
of this subsection.
(c) The secretary, in consultation with the authority, 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. The
secretary may initially promulgate rules or amendments to rules as
emergency rules pursuant to the provisions of said article.
(d) The secretary and the authority may employ qualified officers, agents, advisors and consultants and other persons
necessary to carry out the administration and management of the
(e) The authority shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to govern the pledge of loans to secure
bonds of the authority.
(f) Disbursements from the fund shall be authorized for
payment in writing by the director of the authority or the
director's designee. Moneys in the fund shall not be commingled
with other money of the authority.
§22-14-20. Dam Safety Rehabilitation Revolving Fund program.
(a) The secretary shall develop a state list of deficient dams
using a priority ranking system based on factors designed by the
secretary. Only dams on the list of deficient dams are eligible
for a loan from the Dam Safety Rehabilitation Revolving Fund.
(b) The secretary shall develop an application, including
eligibility requirements for persons applying for loans to correct
or remove deficient dams. The eligibility requirements shall
include, at a minimum, that the:
(1) Dam is on the list of deficient dams;
(2) Person is in a state of readiness to proceed to planning,
design or construction and expend loan payments in a timely manner;
(3) Person has demonstrated the ability to repay the loan; and
(4) Person is in compliance with section five of this article.
(c) A person who owns an interest in a deficient dam on the
list of deficient dams may apply to the department for a loan from
the fund on forms designed and approved by the secretary.
(d) Following approval by the secretary of the application for
a loan and a determination by the secretary and the authority that
moneys are available for a loan, the secretary may direct the
authority to enter a loan agreement with the person submitting the
(e) At the direction of the department pursuant to subsection
(d) of this section, the authority shall enter into a loan
agreement with a person approved for a loan. The loan agreement is
binding under the laws of West Virginia and shall contain
provisions as required by the secretary, including:
(1) The cost of the project, the amount of the loan and the
terms of repayment of the loan and the security for the loan which
may include a deed of trust or other appropriate security
instrument creating a lien on the project or any other collateral
the secretary may require;
(2) The specific purposes for which the proceeds of the loan
are required to be expended, the procedures as to the disbursement
of loan proceeds including an estimated monthly draw schedule and
the duties and obligations imposed upon the applicant in regard to
the acquisition or construction of the project;
(3) The agreement of the applicant to repay the obligations of
the applicant under the loan agreement, including provisions that
revenue may be pledged for the repayment of the loan together with
all interest, fees and charges on the loan and all other financial
obligations of the applicant under the loan agreement;
(4) If notes or other interim obligations are being issued by
the applicant, the agreement of the applicant to take other
repayment actions that are required of the applicant under the loan
(5) The agreement of the applicant to accept the authority's
enforcement remedies pursuant to section twenty-one of this article
in the event of any default under the loan; and
(6) The agreement of the applicant to comply with all
applicable federal and state statutes and rules and regulations and
all applicable local ordinances pertinent to the financing,
acquisition, design, construction, operation, maintenance and use
of the project.
(f) (1) If the secretary assumes full charge and
responsibility over a dam pursuant to section twenty-two of this
article, and seeks to expend money from the fund for the purpose of
repairing or removing a dam or taking other remedial action, the
secretary shall, prior to seeking a requisition from the fund,
provide the authority with the following information:
(A) The location of the dam;
(B) The owners of the dam; and
(C) The maximum amount estimated for repairing or removing the
dam or taking other remedial action.
(2) The authority shall then determine whether sufficient
moneys are available to satisfy the maximum amount estimated for
the dam and still meet all loan obligations of the fund.
(g) The obligation of the authority to enter into loan
agreements is conditioned on the availability of moneys in the fund
in amounts and on terms and conditions as, at the direction of the
secretary, will enable the authority to make loans.
(h) The ability of the secretary to use moneys in the fund
pursuant to section twenty-two of this article is conditioned upon
the availability of moneys in the fund.
§22-14-21. Collection of money due to the fund.
(a) In order to ensure the timely payment of all sums due and
owing to the fund under a revolving fund loan agreement between the
state and a person, and notwithstanding any provisions of this code
to the contrary, the authority has and may, at its option, exercise
the following rights and remedies in the event of any default under
a loan agreement:
(1) The authority may directly impose, in its own name and for
its own benefit, service charges upon all users of a project funded
by a loan distributed pursuant to this article and may proceed
directly to enforce and collect service charges, together with all necessary costs of the enforcement and collection;
(2) The authority may exercise, in its own name or in the name
of and as the agent for a person, all of the rights, powers and
remedies of the person with respect to the project or which may be
conferred upon the person by statute, rule, or judicial decision,
including all rights and remedies with respect to users of the
project funded by the loan distributed to that person pursuant to
this article; and
(3) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
person of all of the terms and conditions of the loan agreement,
(A) The adjustment of service charges as required to repay the
loan or otherwise satisfy the terms of the loan agreement;
(B) The enforcement and collection of service charges; and
(C) The enforcement of all rights and remedies conferred by
statute, rule, regulation or judicial decision, including, but not
limited to, all rights associated with a security or other interest
in real or personal property with the right to foreclose upon a
default under a loan agreement.
(b) The rights and remedies enumerated in this section are in
addition to rights and remedies conferred upon the authority by law
or pursuant to the loan agreement.
§22-14-22. Authority of Department of Environmental Protection for deficient dams that are privately owned by a
noncompliant dam owner.
(a) The secretary may assume full charge and responsibility
over a dam and may expend money from the Dam Safety Rehabilitation
Revolving Fund for the purpose of repair or removal of the dam or
other remedial action, if:
(1) The dam is a deficient dam;
(2) The dam is privately owned; and
(3) The owner is a noncompliant dam owner.
(b) All costs incurred by the secretary to repair or remove
the dam or take other remedial action shall be promptly repaid by
the owner upon request or, if not repaid, the secretary may recover
costs and damages from the owner by appropriate civil action.
Moneys obtained from the civil action shall be promptly deposited
in the fund.