Dams and Reservoirs
Establishes the dam and reservoir repair revolving fund. Authorizes the board of land and natural resources to make loans from the fund for the alteration, repair, or removal of dams and reservoirs. Makes owner of dam or reservoir liable for damages resulting from natural causes when there is a finding of negligence. Authorizes the issuance of revenue bonds and makes an appropriation to the revolving fund.
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII
A BILL FOR AN ACT
relating to dams.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 179D, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:
"§179D-A Dam and reservoir repair revolving fund. (a) There is established a dam and reservoir repair revolving fund into which shall be deposited:
(1) Appropriations by the legislature;
(2) Funds from the issuing of revenue bonds authorized by the legislature to finance the establishment and administration of the loan program;
(3) Interest derived from monies in the fund; and
(4) Payments made on loans from the fund.
(b) Moneys in the fund shall be used by the board to:
(1) Implement emergency actions pursuant to section 179D-24;
(2) Make dam repair loans to owners of dams or reservoirs with plans and specifications for the alteration, repair, or removal of dams and reservoirs approved by the board; and
(3) Pay the debt service on revenue bonds issued by the department, and the establishment of debt service and other reserves deemed necessary by the board.
§179D-B Dam and reservoir repair loans. (a) The board may make loans from the dam and reservoir repair revolving fund to owners of dams or reservoirs with plans and specifications and an application for the alteration, repair, or removal of dams and reservoirs approved by the board. Loans granted by the board shall be for a term of not more than twenty years.
(b) Loans under this section shall bear interest at the following rates:
(1) For loans with a term of not more than five years, the interest rate shall be two per cent per year;
(2) For loans with a term of more than five years but less than ten years, the interest rate shall be four per cent per year; and
(3) For loans with a term of more than ten years, the interest rate shall be six per cent per year;
provided that loans funded by revenue bonds shall be made at cost.
(c) An owner securing the written approval of the board for the alteration, repair, or removal of a dam or reservoir may submit an application to the board for a loan from the dam and reservoir repair revolving fund. The board shall make loans from the dam and reservoir repair revolving fund based upon the availability of funds."
SECTION 2. Section 179D-3, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:
""Fund" means the dam and reservoir repair revolving fund."
SECTION 3. Section 179D-4, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Nothing in this chapter and no
order, action, or advice of the State, board, department, or any representative
thereof, shall be construed to relieve an owner or operator of a dam or
reservoir of the legal duties, obligations, or liabilities incident to the
ownership or operation of a dam or reservoir; provided that an owner or
operator of a dam or reservoir shall not be liable for damages as a result of
only natural causes [
such as earthquakes of an average recurrence interval
of one thousand years, hurricanes, or extraordinary rains of an average
recurrence interval in excess of two hundred fifty years.] except on a
finding of negligence."
SECTION 4. Section 179D-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The board shall administer the dam and reservoir safety program established by this chapter. In carrying out this chapter, the board shall cooperate, advise, consult, contract, and enter into cooperative agreements with the United States government or any of its agencies, other state agencies, and the county governments or any of their agencies. In the performance of its duties, the board shall:
(1) Establish by rules adopted under chapter 91, policies, requirements, or standards governing the design, construction, operation, maintenance, enlargement, alteration, repair, removal, and inspection of dams, reservoirs, and appurtenant works for the protection of life and property from structural failure of dams and reservoirs;
(2) Conduct investigations and the collection of data, including technological advances made in dam and reservoir safety practices elsewhere, as may be needed for the proper review and study of the various features of the design, construction, repair, removal, inspection, operation, maintenance, alteration, and enlargement of dams, reservoirs, and appurtenant works. The board may require submittal of reports of investigations from all owners;
(3) Conduct investigations and require reports from all owners to be made from time to time, including watershed investigations and studies, as may be necessary to keep abreast of developments affecting stream runoff and as required to facilitate its decisions;
(4) Be authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter. The entry shall not constitute a cause of action in favor of the owner of the land, except for damages resulting from wilful acts or negligence by the board or its agents;
(5) Require the owners to apply for, and obtain from the board written approval of plans and specifications on the construction of any new dam or reservoir or the enlargement of any dam or reservoir prior to commencement of any work;
(6) Require the owners to file an application and secure the written approval of the board before commencing the repair, alteration, or removal of a dam or reservoir, including the alteration or removal of a dam or reservoir so that it no longer constitutes a dam or reservoir as defined in this chapter. Repairs shall not be deemed to apply to routine maintenance not affecting the safety of the structure;
(7) Require owners to secure the written approval of the board to impound water;
(8) Require fees to cover the board's costs in carrying out the administration of dam and reservoir safety;
(9) Cooperate with all public and private agencies created for the purpose of enhancing dam and reservoir safety activities and training, assist these organizations and agencies in coordinating the use of their facilities, and participate in the exchange of ideas, knowledge, and data with these organizations and agencies;
(10) Prepare, publish, and issue printed pamphlets, bulletins, or advisories, or conduct training as the board deems necessary for the dissemination of information to the public;
(11) Appoint and remove agents and employees, including hearing officers, specialists, and consultants, as necessary to carry out the purposes of this chapter, who may be engaged by the board without regard to the requirements of chapter 76;
(12) Catalog and maintain an inventory of all regulated dams and reservoirs in the State pursuant to this chapter without regard to chapter 91;
(13) Establish similar or consistent hazard potential classifications in conjunction with other applicable state or federal guidelines for all regulated dams and reservoirs in the State pursuant to this chapter without regard to chapter 91;
(14) Examine and approve or disapprove
applications for approval of construction, enlargement, repair, alteration, or
removal of a dam or reservoir and applications for certificates of approval to
impound; (15)] (14) Order the suspension,
revocation, or both, of any application approval or certificate of approval to
impound for any act or failure to comply with this chapter or with any rules or
orders adopted pursuant to this chapter, or with any of the conditions
contained in or attached to the application approval or certificate of approval
(16)] (15) Issue orders requiring the
adoption by an owner of remedial measures necessary for the safety of life or
public or private property, or for carrying out this chapter or rules issued
under this chapter;
(17)] (16) Order the immediate cessation
of any act that is started or continued without an application approval or
certificate of approval to impound as required by this chapter;
(18)] (17) Enter private property and
immediately take actions necessary to provide protection to life or property at
the owner's expense, including removal of the dam or reservoir. The entry
shall not constitute a cause of action in favor of the owner of the land,
except for damages resulting from wilful acts or gross negligence by the board
or its agents;
(19)] (18) Recover from the owner, in
the name of the State, the expenses incurred in taking any action required by
the owner of the dam or reservoir in the same manner debts are recoverable by
(20)] (19) Assess civil penalties for
violation of this chapter or any rule or standard adopted or order issued by
the board pursuant to this chapter;
(21)] (20) Place liens, as needed, on
the owner's property, to be collected as delinquent taxes against the lands and
property, if the owner neglects to pay any costs, expenses, or penalties
chargeable to the owner under this chapter or any rule, order, or condition
adopted, issued, or required under this chapter;
(22)] (21) With the assistance of the
attorney general, institute and prosecute all court actions that may be
necessary to obtain the enforcement of any order issued by the board in
carrying out this chapter; [ and]
(22) Make loans for the alteration, repair, or removal of dams and reservoirs;
(23) Make expenditures for emergency actions initiated by the board from the dam and reservoir repair revolving fund pursuant to section 179D-24; and
(23)] (24) Take any and all other actions
as may be necessary to carry out this chapter."
SECTION 5. Section 179D-24, Hawaii Revised Statutes, is amended to read as follows:
Emergency actions. (a) If, [ in the opinion of] through its
investigation or inspection, the department[ ,] determines that
the conditions of any dam or reservoir are so dangerous to the health and
safety of life or property as to not permit time for issuance and enforcement
of an order relative to construction, modification, maintenance, or repair of the
dam or reservoir, or the dam or reservoir is threatened by any large flood or
other natural disaster, the department may immediately employ remedial measures
necessary to protect life and property.
(b) The department shall [
coordination and assistance to] develop with the proper state or
county agency or agencies remedial measures to be executed to maintain
control of any dam or reservoir that, pursuant to subsection (a), has been
determined to be dangerous to life or property until the dam or reservoir is
deemed safe, or until any emergency conditions that precipitated taking control
of the dam or reservoir, pursuant to subsection (a), have been abated. The
department may determine the proper time at which to relinquish control of the
dam or reservoir.
(c) Any necessary and reasonable costs and expenses incurred by the department in fulfilling the duties mandated by subsections (a) and (b) in connection with a remedial or emergency action shall be recoverable by the department from the owner of any dangerous or threatened dam or reservoir.
(d) Any owner failing or refusing, after written notice has been given, to pay the reasonable costs and expenses incurred by the department pursuant to subsection (c) shall be, upon complaint by the department to the attorney general, subject to reasonable attorney fees incurred in the recovery of the costs and expenses.
(e) All moneys collected by the department pursuant to subsection (c) shall be credited to the dam and reservoir safety special fund created in section 179D-25.
(f) If a condition arises that in the opinion of the department may pose a danger to the health and safety of persons or property and sufficient time permits, the board may issue orders reciting the existence of the condition and require any actions the board deems necessary. Any person to whom an order is directed, may challenge the order, but shall immediately comply with the order, pending disposition of the person's challenge. The board shall give precedence to a hearing on the challenge over all other pending matters.
(g) When the board determines through its investigation or inspection of a dam that a danger to public safety exists that can be remedied by making repairs, breaching of the dam, or other actions that are necessary, the board shall direct the owner to immediately initiate the emergency actions necessary or the board may initiate the emergency actions to insure public safety.
(h) The emergency actions executed pursuant to (g) shall be made at the owner's expense. When emergency actions are initiated by the board, the board may use moneys from the dam and reservoir repair revolving fund, for which the owner shall reimburse that fund in lump sum or through installment payments agreed to by the board.
(g)] (i) The legislature finds
and declares that emergency actions under this section are in the public
interest and for the public health, safety, and general welfare of the State,
and authorizes the board to take any necessary actions."
SECTION 6. The director of finance is authorized to issue revenue bonds in the sum of $ or so much thereof as may be necessary and the same sum or so much thereof as may be necessary is appropriated for fiscal year 2009-2010 to be paid into the dam and reservoir repair revolving fund created in section 179D-A, Hawaii Revised Statutes.
The sum appropriated by this Act shall be expended by the department of land and natural resources for the purposes of the fund.
SECTION 7. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on July 1, 2009.