Bill 3730

                    Current Status

Bill Number:               3730
Ratification Number:       526
Act Number                 447
Introducing Body:          House
Subject:                   Dams and Reservoirs Safety Act

(A447, R526, H3730)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 3 TO CHAPTER 11 OF TITLE 49 SO AS TO PROVIDE FOR DAMS AND RESERVOIRS SAFETY AND TO REPEAL ACT 60 OF 1977, RELATING TO DAMS AND RESERVOIRS SAFETY.

Be it enacted by the General Assembly of the State of South Carolina:

Dams and Reservoirs Safety Act

Section 1. The Code of Laws of South Carolina, 1976, is amended by adding Article 3 to Chapter 11 of Title 49 to read:

"Article 3

Section 49-11-110. This article shall be cited as the 'Dams and Reservoirs Safety Act.'

Section 49-11-120. Unless the context otherwise requires, the following definitions shall be used in this article.

(1) 'Alterations' and 'repairs' mean only such alterations or repairs which may affect the safety of a dam or reservoir.

(2) 'Appurtenant works' include but are not limited to such structures as spillways, either in the dam or separate therefrom, low level outlet works and water conduits.

(3) 'Commission' means the Land Resources Conservation Commission, its staff or agents.

(4) 'Dam' means any artificial barrier, together with appurtenant works, including but not limited to dams, levees, dikes or floodwalls for the impoundment or diversion of wakr or other fluids where failure may cause danger to life or property, except this shall not include:

(a) Any dam which is or shall be less than twenty-five feet in height from the natural bed of the stream or watercourse measured at the downstream toe of the dam, or twenty-five feet from the lowest elevation of the outside limit of the dam, if it is not across a stream channel or watercourse, to the maximum water storage elevation or has or shall have an impounding capacity at maximum water storage elevation of less than fifty-acre feet unless a situation exists where the hazard potential as determined by the Commission is such that dam failure or improper reservoir operation may cause loss of human life.

(b) Any dam owned or operated by any department or agency of the federal government.

(c) Any dam owned or licensed by the Federal Energy Regulatory Commission or the South Carolina Public Service Authority.

(d) Any dam upon which the South Carolina Department of Highways and Public Transportation or county or municipal governments have accepted maintenance responsibility for a road or highway where that road or highway is the only danger to life or property with respect to failure of the dam.

(5) 'Districts' mean any of the soil and water conservation districts of this State. For the purposes of this article the districts may serve as agents and advisors to the Commission.

(6) 'Danger to life or property' means a situation exists where the hazard potential as determined by the Commission is such that dam failure or improper reservoir operation may cause injury to persons, loss of human life or damage to property.

(7) 'Detailed inspection' means all studies, investigations and analyses necessary to evaluate conclusively the structural safety and hydraulic capacity of a dam or reservoir and appurtenant works. This inspection may include but is not limited to soil analyses, concrete or earth stability analyses, materials testing, foundation explorations, hydrologic analyses, including basin studies and flood potential. This inspection shall be performed by a qualified registered professional engineer.

(8) 'Enlargement' means any change in or addition to an existing dam or reservoir which raises or may raise the water storage elevation of the water impounded by the dam or reservoir.

(9) 'Owner' means those who own, control, operate, maintain, manage or propose to construct a dam or reservoir.

(10) 'Removal' means destruction or breaching of an existing dam or drainage of water impoundment or reservoir.

(11) 'Reservoir' means any reservoir which contains or shall contain the impoundment of water by a dam or reservoir.

(12) 'Order' means a written document prepared and issued by th!e Commission which mandates specific actions to be accomplished by a dam owner within a specified time frame. Failure to comply shall make the owner subject to penalties outlined in Section 49-11-260.

(13) 'Unsafe' means the condition of a dam is such that repairs or alterations are necessary to reduce the risk of dam failure.

Section 49-11-130. It is the purpose of this article to provide for the certification and inspection of certain dams in South Carolina in tlle interest of public health, safety and welfare in order to reduce the risk of failure of such dams; to prevent injuries to persons or damage to property; and to confer upon the Land Resources Conservation Commission the regulatory authority to accomplish such purposes.

Section 49-11-140. The authority for the safe maintenance of the dams and reservoirs of this State and the powers of inspection and certification as provided for in this article shall be the responsibility of the Commission. The Commission may employ such engineers and technicians as it deems necessary to implement this article for which appropriations are available.

Section 49-11-150. The owners of any dam or reservoir heretofore or thereafter constructed in this State are solely responsible for maintaining such dam or reservoir in a safe condition throughout the life of the structure.

Section 49-11-160. If in the judgment of the Commission a dam or reservoir is or has become unsafe and is dangerous to life or property, the Commission shall issue an order to the owner of such dam or reservoir to make at his expense such maintenance alteration, repair or removal as may be necessary to protect life and property from injury.

Section 49-11-170. (a) The existence of a darn which may be unsafe and a danger to life or property may be brought to the attention of the Commission by complaint, staff, or authorized investigation or by other means.

(b) Upon staff or other authorized investigations or upon receipt of a written private complaint alleging that; the person or property of the complainant is endangered by the construction, maintenahce, operation or condition of any dam or reservoir, the Commission shall cause a preliminary inspection of the structure and downstream development to be made by field observations to determine if the complaint is meritorious. The Commission may require the owner of such dam or reservoir to provide data, records, and design plans of the structure as may be specified by regulations.

(c) If upon the preliminary inspection it is determined that the dam or reservoir is unsafe and is dangerous to life or property, the Commission may order the owner at his expense to make a detailed inspection of the dam and reservoir and surrounding area and to provide to the Commission within a time frame specified by the Commission plans prepared by a qualified registered professional engineer for correction of all deficiencies of the dam or to provide to the Commission plans and specifications for removal of the dam. In either instance the plans must be approved by the Commission prior to implementation and implemented within a time frame specified by the Commission.

(d) The Commission shall give the owner notice of its action when:

(1) a complaint has been filed alleging that the owner's dam or reservoir is unsafe and a danger to life or property stating the nature of the complaint;

(2) a preliminary inspection has been made and the findings therein.

(e) The owner of a dam or reservoir which has been determined through a preliminary inspection to be unsafe and a danger to life or property may request a hearing before the Commission within thirty days after notice of such findings are delivered. The owner may submit written or present oral evidence which shall be considered by the Commission in the issuance of the order.

Section 49-11-180. (a) The Commission may solicit voluntary compliance by the owner of a dam or reservoir found to be unsafe and a danger to life or property to take remedial steps necessary to render the dam safe.

(b) Extension of time to complete work specified in an order may be granted by the Commission. No extension shall be granted when there appears substantial and immediate danger of dam failure.

Section 49-11-190. (a) The Commission shall immediately order remedial measures necessary to protect life or property if the condition of any dam or reservoir is so dangerous to the safety of life orproperty as not to permit time for the issuance and enforcement of a repair order or passing or imminent floods threaten overtopping erosion or destruction of any dan1 or reservoir capable of danger to life or property.

(b) In applying emergency measures the Commission shall have the following limited powers to order the owner to:

(1) lower the water level by releasing water from the reservoir;

(2) completely empty the reservoir;

(3) take such other steps as may be essential to safeguard life and property.

(c) In case of an emergency where the owner finds repairs are necessary to safeguard life or property, he may start such repairs immediately but shall notify the Commission at once of the proposed repair and work under way.

(d) When the owner fails to comply with the emergency order or cannot be ascertained or found the Commission or its authorized agents may enter and immediately take such actions as may be necessary to provide protection to life or property including removal of the dam. The Commission thereafter may recover from the owner, in the name of the State, the expenses incurred in taking such action in the same manner as debts are recoverable by law.

Section 49-11-200. (a) The construction of any dam or reservoir or enlargement, removal or repair shall not hereafter be commenced until the owner has applied for and obtained from the Commission written approval of plans and specifications.

(b) Where the location and size of the dam or reservoir is such to render any of the requirements of Section 49-11-200(a) and Section 49-11-210 unnecessary, the Commission may grant approval and waive certain nonessential requirements in instances including, but not limited to, small dams and reservoirs for agricultural, fish or wildlife, or recreational uses on private lands and of no danger to otller life or property downstream.

Section 49-11-210. A separate application for each dam or reservoir and all enlargements, removals or repairs to existing dams or reservoirs shall be filed with the Commission upon forms to be provided by it, except that only one application need be filed for a dam and the reservoir which will contain the water impounded by the dam.

The application shall be accompanied by maps and plans and specifications of such character and size and setting forth such pertinent details and dimensions as the Commission by regulation requires.

Section 49-11-220. Every applicant for approval of a dam or reservoir subject to the provisions of Section 49-11-200 shall also file with the Commission a design approved by a registered professional engineer legally qualified in the State.

Dams designed by the USDA-Soil Conservation Service or other federal agencies do not require certification by a registered professional engineer.

Section 49-11-230. (a) The Commission may make necessary inspections during the construction of new dams and reservoirs, enlargements, removal and repairs of dams and reservoirs and during work done pursuant to repair orders to enforce compliance with the approved plans and specifications or provisions of the order.

(b) If water is to be released during such construction, repair or removal, the Commission shall specify the maximum discharge rate allowable to avoid endangering or causing injury to downstream owners.

Section 49-11-240. (a) The Commission or their authorized agents may inspect any dam or reservoir and surrounding area to determine the safety of such structure.

(b) Any authorized member, agent or representative of the Commission may enter any state or private lands and natural or artificial waterways in the State for the purpose of discharging the duties set forth in this article.

(c) The Commission shall formulate reasonable regulations including but not limited to minimum safety design standards for impoundments, safety inspection standards; water discharge or drawdown rates and levels in unsafe impoundments and for other purposes necessary to administer the provisions of this article.

(d) The Commission shall issue all orders, permits or licenses set forth in this article.

Section 49-11-250. Nothing contained in this article and no action or failure to act under this article shall be construed (1) to impose any liability on the State, Commission, districts or any agency, officer or employees thereof for the recovery of damages caused by such action or failure to act; or (2) to relieve the owner or operator of a dam or reservoir of the duties, obligations, responsibilities or liabilities arising from or incldent to the ownershiip oroperation of a dam or reservoir.

Section 49-11-260. Any person violating the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars. Each day the violation continues after notice to take corrective action shall constitute a separate offense.

In addition, upon violation of any provisions of this article or the regulations promulgated under it, thle Commission may request the Attorney General to bring injunctive relief in the name of the Commission.

Any person against whom any final order or decision has been made, except in cases of emergency as specified in Section 49-11-190, shall have a right of appeal under the Administrative Procedures Act, Article II of Act 176 of 1977. The burden of proof shall be on the party attacking any order or decision of the Commission to show that such order is unlawful or unreasonable."

Repeal

Section 2. Act 60 of 1977 is repealed.

Time effective

Section 3. This act shall take effect upon approval by the Governor.