SB1946

SECTION 1. Section 179D-1, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-1[]] Short title. This chapter shall be known and may be cited as the "Hawaii Dam Safety Act of [~~1987~~] 2007"."

SECTION 2. Section 179D-2, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-2[]] Declaration of purpose. The purpose of this chapter is to provide for the inspection and regulation of construction, operation, and removal of [~~certain~~] all dams and reservoirs in order to protect the health, safety, and welfare of the citizens of the State by reducing the risk of failure of such dams. The legislature finds and declares that the inspection and regulation of construction, operation, and removal of [~~certain~~] all dams and reservoirs are properly a matter of regulation under the police powers of the State."

SECTION 3. Section 179D-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-3[]] Definitions. The following terms, whenever used and referred to in this chapter, shall have the following respective meanings, unless a different meaning clearly appears in the context:

"Application approval" means authorization in writing issued by the board to an owner who has applied to the board for permission to construct, enlarge, repair, alter, remove, maintain, or operate a dam and which specified the condition or limitations under which work is to be performed by the owner or under which approval is granted.

"Appurtenant works" means any structure, such as spillways, either in the dam or separate therefrom, the reservoir and its rim, low level outlet works, and water conduits, such as tunnels, pipelines, or penstocks, either through the dam or its abutment.

"Board" means the board of land and natural resources.

"Certificate of approval to impound" means authorization in writing issued by the board to an owner who has completed construction, enlargement, repair, or alternation of a dam and which specifies the conditions or limitations under which the dam and reservoir are to be maintained and operated.

"Dam" means any artificial barrier, including appurtenant works, which impounds or diverts water, and which:

(1) Is twenty-five feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier, or from the lowest elevation of the outside limit of the barrier if it is not across a stream channel or watercourse to a maximum water storage elevation; or

(2) Has an impounding capacity at maximum water storage elevation of fifty acre-feet or more. This chapter does not apply to any artificial barrier which is less than six feet in height regardless of storage capacity or which has a storage capacity at maximum water storage elevation less than fifteen acre-feet regardless of height[.], unless such a barrier, due to its location or other physical characteristics, is a high hazard or moderate hazard potential dam.

"Dam rehabilitation loan program" means a low interest revolving dam rehabilitation loan program, created through this chapter.

"Department" means the department of land and natural resources.

"Emergency" includes, but is not limited to, breaches and all conditions leading to or causing a breach, overtopping, or any other condition in a dam and its appurtenant structures that may be construed as unsafe or threatening to life and property.

"Enlargement" means any change in or addition to an existing dam or reservoir that raises or may raise the water storage elevation of the water impounded by the dam.

"Owner" means any person who [~~owns, controls, operates, maintains, manages, or proposes to construct a dam or reservoir.~~] has a right, title, or interest in or to the dam or to the property upon which the dam or appurtenant works is located or proposed to be located.

"Person" [~~means any individual, partnership, corporation, company, association, organization, the State and its departments and agencies, and the political subdivisions of the State.~~] included any natural person, partnership, firm, association, organization, corporation, county, county authority, trust, receiver or trustee, limited liability company, limited liability partnership, or company, or any state department, agency, or political subdivision, or any other commercial or legal entity. Whenever used in a section prescribing and imposing a penalty or sanction, the term "person" includes the members of an association or organization, and the officers or a corporation, company, county, or county authority.

"Probable" means more than likely than not to occur; reasonably expected; realistic.

"Removal" means complete elimination of the dam embankment or structure to restore the approximate original topographic contours of the valley.

"Reservoir" means any basin which contains or will contain water impounded by a dam."

SECTION 4. Section 179D-4, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-4[]] Liability for damages. (a) Nothing contained in this chapter shall be construed to constitute a waiver of any immunity of the State and no action or failure to act under this chapter shall be construed to create any liability in the State, board, department, or its officers or employees, for the recovery of damages caused by such action or failure to act.

(b) No action shall be brought against the State, the board or the department, or any employees of the State, the board or the department for damages sustained through the partial or total failure of any dam or reservoir dealt with in this chapter or it maintenance or operation by reason of any supervision or any action taken or not taken pursuant to this chapter.

[~~(b)~~] (c) 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."

SECTION 5. Section 179D-5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-5[]] Unlawful conduct. (a) It shall be unlawful for any person to construct, enlarge, repair, alter, operate, or remove a dam or other artificial barrier covered by this chapter, except in such a manner as to conform to and comply with [~~the provisions of~~] this chapter and with all rules, orders, and permits established under this chapter.

[(b) The rules and orders adopted under this chapter shall not apply to the design and construction of dams, reservoirs, and appurtenant works existing on June 6, 1987, but the rules and orders shall establish standards consistent with such design and construction for the operation, maintenance, and repair thereof, and those rules and orders then shall be applicable to those dams, reservoirs and appurtenant works which were existing on June 6, 1987.]

(b) Any person who engages in any action made unlawful by this chapter shall be guilty of a misdemeanor. Each day of continued violation after conviction shall constitute a separate offense.

(c) The owner of a dam or reservoir that was constructed before February 1, 2007, under rules adopted by the board, shall file an application with the board for the approval of the dam or reservoir."

SECTION 6. Section 179D-6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-6[]] General powers and duties of the board of land and natural resources. (a) All dams and reservoirs in the State shall be under the jurisdiction of the board of land and natural resources. The board [~~of land and natural resources~~] shall administer the dam 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, such 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 safety practices elsewhere, as may be needed for the proper review and study of the various features of the design, construction, repair, removal, 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, such as 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 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 filing fees by rules to accompany each application as required under the provisions of this chapter.~~]

(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 supervision of dam safety;

(9) 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.

(10) Order the suspension or revocation, or both, of any application approval or certificate of approval to impound for any act for failure to comply with this chapter or with any rules, regulations, 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 to impound;

(11) 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 and regulations issued under this chapter;

(12) 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;

(13) 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. 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.

(14) Recover from the owner, in the name of the State, the expenses incurred in taking any action required by the owner of the dam in the same manner debts are recoverable by law;

(15) Assess civil and criminal penalties for violation of this chapter or any rule, regulation, standard adopted or order issued by the board pursuant to this chapter;

(16) Be authorized to place liens on the owner's property, to be collected as delinquent taxes against the lands and property are collected, if the owner neglects to pay any costs, expenses or penalties chargeable to the owner under any rule, regulation, order, condition, or other provision of this chapter;

(17) 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

(18) Take such other actions as may be necessary to carry out this part."

SECTION 7. Section 179D-7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-7[]] Administrative and judicial review. (a) The findings and order of the board, and the board's approval or disapproval of an application issued by the State are final, conclusive, and binding upon all owners, state agencies, and other government agencies, regulatory or otherwise, as to the safety of design, construction, enlargement, repair, alteration, removal, maintenance, and operation of any dam or reservoir. The board's approval of an application or a certificate of approval to impound will not be considered final if it can be demonstrated to the board that the board's approval of the relevant application or certificate of approval was based on one or more misrepresentations.

(b) Any person who is aggrieved or adversely affected by an order or action of the board shall be entitled to administrative and judicial review in accordance with chapter 91[.]; provided that the order or action shall remain in force until modified or set aside on appeal."

SECTION 8. Section 179D-8, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-8[]] Violations; penalties. [Any person violating any provision of this chapter or any permit condition or limitation established pursuant to this chapter or negligently or wilfully failing or refusing to comply with any final order of the board issued as provided herein, shall be liable for a civil penalty not to exceed $500 for each day during which said violation continues.] (a) Any person who violates any rule, regulation, order, condition, or other provision of this chapter shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 per day of such violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense.

(b) Any person who intentionally, knowingly, or after written notice to comply, violates any rule, regulation, order, condition or provision of this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty, upon conviction, of a misdemeanor and shall be subject to a fine of not less than $2,500 nor more than $25,000 per day of violation. A second or subsequent offense under this subsection shall subject the violator to a fine to the contrary, of not less than $5,000 nor more than $50,000 per day of violation.

(c) With the assistance of the attorney general, the board may seek an injunction and damages in the enforcement of this chapter.

(d) All penalties collected pursuant to this section or sums collected pursuant to this Act shall be deposited in the "Dam Safety Fund," established pursuant to this Act.

SECTION 9. Section 179D-9, Hawaii Revised Statutes, is amended to read as follows:

"[[]§179D-9[]] Enactment of rules. (a) The department shall adopt the necessary rules not later than one and one-half years after [~~June 6, 1987.~~] February 1, 2007.

(b) All laws and parts of law in conflict with this Act are hereby repealed.

(c) A declaration that certain parts of this Act are unconstitutional shall not affect the constitutionality of other parts of this Act."

SECTION 10. Chapter 179D, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part II

dam and reservoir safety

§179D-A Certificate of approval. Each dam owner shall hold a valid certificate of approval to impound in order to legally impound water under the laws of this State.

§179D-B Entry upon property. (a) The department shall have the right to direct and conduct such investigations as it may reasonably deem necessary to carry out its duties as prescribed in this part. For this purpose, the agents or employees of the department or any authorized representatives may enter at reasonable times, without prior notice, on any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam or other artificial barrier dealt with in this part. If the owner of the property refuses to allow the inspection, the department may seek a search warrant to allow the inspection. If the department has been refused inspection of drawings, operational records, or other information concerning a dam or reservoir, the department may seek an administrative subpoena compelling production of the drawings, operational records, or other information.

(b) It shall be unlawful for any person to refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection and who presents appropriate credentials. It shall also be unlawful to obstruct, hamper, or interfere with any such representative while in the process of carrying out his official duties.

§179D-C Injunctive relief. Whenever in the judgment of the department any person has engaged in or is about to engage in any act or practice which constitutes or will constitute an unlawful action under this part, the person may make application to the circuit court of the county in which the unlawful act or practice has been or is about to be engaged in, or in which jurisdiction is appropriate, for an order enjoining such act or practice, or for an order requiring compliance with this part. Upon a showing by the department that such person has engaged in or is about to engage in any such act or practice, a permanent or temporary injunction, restraining order, or other order shall be granted without the necessity of showing lack of an adequate remedy at law.

§179D-D Emergency actions. (a) If, in the opinion of the department, conditions of any dam or reservoir are so dangerous to the health and safety of life or property as not to permit time for issuance and enforcement of an order relative to construction, modification, maintenance, or repair, or the dam is threatened by any large flood, the department may immediately employ remedial measures necessary to protect such life and property.

(b) The department shall maintain complete control of any such dam or reservoir which, pursuant to subsection (a), has been determined to be dangerous to life or property until such dam or reservoir is deemed safe, or until any emergency conditions which precipitated the department taking control of any such dam or reservoir, pursuant to subsection (a) of this section, have abated. The department may determine the proper time at which to relinquish control of any such 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 such 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 such costs and expenses.

(e) All moneys collected by the department pursuant to subsection (c) shall be credited to the Dam Safety Fund created in section 179D-E.

§179D-E Establishment of dam safety fund. (a) All fees, penalties, interest, fines, or charges collected by the board under this chapter shall be deposited in the dam safety fund, which is established in the state treasury. The money in that fund shall be available to the board, upon appropriation by the legislature, for the administration of the dam safety program.

(b) The dam safety fund shall also be funded through monies appropriated by the legislature and monies collected by the board in full or partial satisfaction of liens created by subsection (c)(2). Moneys in the fund may be used to employ remedial measures necessary to protect life and property in accordance with this section and section 179D‑C. The board shall administer the fund. On notice from the board, the state treasurer shall invest and divest moneys in the fund and moneys earned from investment shall be credited to the fund. Moneys in the dam safety fund are exempt from lapsing.

(1) The board shall remain in full charge and control of the dam, reservoir, and appurtenances until they have been rendered safe or the emergency has terminated;

(2) The costs and expenses of the control, regulation, abatement, and inspection provided by this section, including costs of construction, enlargement, repair, alteration or removal work done to render the dam, reservoir, or appurtenances safe, shall constitute a statutory lien against all property of the owner. The lien shall be considered prior and superior to all other mortgages, liens or encumbrances of record even if those other mortgages, liens, or encumbrances were filed before the lien becomes due.

(3) The lien referred to in subsection (c)(2) may be perfected and foreclosed in advance of construction, enlargement, repair, alteration, or removal or after completion of the construction, enlargement, repair, alteration, or removal. If perfected in advance, the lien shall be perfected by the filing of an affidavit of the board setting forth the estimate of the costs of construction, enlargement, repair, alteration, or removal within the county in which the dam is located in the same manner as prescribed for mechanic's liens. When the affidavit is filed, the amount set forth in the affidavit shall be a lien in such amount against all property of the owner. If the actual cost of construction, enlargement, repair, alteration, or removal exceeds the estimated cost, the board may amend the affidavit setting forth the additional estimated cost. If the estimated cost exceeds the actual costs of construction, enlargement, repair, alteration, or removal at completion, the board shall file an amended affidavit at completion. If a lien is perfected in advance and the construction, enlargement, repair, alteration, or removal is not commenced within two years from the date of perfection, the lien shall be void. The board shall file a satisfaction of lien upon payment of the costs of construction, enlargement, repair, alteration, or removal by the owner;

(4) Moneys collected in full or partial satisfaction of a lien created pursuant to subsection (c)(2) shall be deposited in the dam safety fund established by subsection (a).

§179D-F Dam rehabilitation loan program. (a) The board shall create a dam rehabilitation loan program, or may partner with other public or private agencies or organizations to create a dam rehabilitation loan program. The program shall initially be funded with $2,000,000 through moneys appropriated by the legislature and deposited into the dam safety fund.

(b) The state legislature may authorize required funding to expand the financial size of the dam rehabilitation loan program.

(c) The program shall be subsequently funded through additional moneys appropriated by the legislature and through fees, penalties, interest, fines, or charges collected by the board under this chapter, and all interest earned on the investment of moneys in the dam safety fund by the state treasurer.

(d) The dam rehabilitation loan program may obtain funds through partnerships with any private or public, bonding or loaning, agency or organization.

(e) State funding to the dam rehabilitation loan program cannot be reduced because of federal funds provided for a rehabilitation loan program.

(f) Moneys in the dam safety fund and collected for the dam rehabilitation loan program do not revert to the state general fund. Moneys in the fund are exempt from lapsing.

(g) The board may grant loans from the dam safety fund to dam owners to defray the costs of repairing dams which the board determines to be dangerous to the safety of life and property but which are not in an emergency condition. Loans shall be granted on such terms and conditions as may be imposed by the board. The following provisions apply:

(1) The board shall adopt administrative rules that are required to administer this statute.

(2) The board may take any administrative or legal action necessary for the administration of this statute.

(3) If the balance of the dam safety fund exceeds $1,000,000, no single loan shall be made for more than twenty per cent of the moneys available in the fund. No loan shall be made to any dam owner that, at the time of the loan application, has more than twenty per cent of the outstanding loans of the fund;

(4) The loans granted by the board shall be for a term of not more than twenty years; and the loans shall bear interest at rates set by the board in the rules;

(5) Each loan shall be evidenced by a contract between the dam owner and the board, acting on behalf of this State. The contract shall provide for the loan by this state of a stated amount to defray some or all of the costs of repairing the dam. The contract shall provide for equal annual payments of principal and interest for the term of the loan. Eligible cost provisions include:

(i) Any costs directly related to rehabilitating safety deficiencies of a dam shall be eligible to be funded through the dam rehabilitation loan program.

(ii) Fees for analysis, feasibility work, alternative evaluation, and engineering design, are only eligible retroactively after construction has been initiated, or at the point that analysis has shown a dam to be in compliance.

(iii) Up to one hundred per cent of rehabilitation costs for a dam may be loaned.

(iv) Dam owners may use multiple programs or sources to fund the rehabilitation costs for a dam, up to one hundred per cent of rehabilitation costs.

(v) Rehabilitation cost for any dam is eligible, except for dams owned by the federal government.

(vi) Any costs directly related to compliance with other laws and regulations, above the State's minimum dam safety requirements are eligible as part of an overall rehabilitation project.

(vii) Any costs for a state agency required fish passage is eligible if it is part of an overall rehabilitation project; but such costs are not eligible if they are not part of an overall rehabilitation project.

(6) The board may take whatever security interest it deems necessary in the dam owner's property in exchange for the loan. If the board chooses to take a security interest in the dam owner's property, the board shall perfect that security interest by filing appropriate documentation with the proper authorities.

(7) The attorney general or the board's legal counsel, with the consent of the board, may commence whatever actions are necessary to enforce the contract and achieve repayment of loans provided by the board pursuant to this section.

(h) Owners' responsibilities include:

(1) Once a loan has been granted under this chapter, the owner of a dam must have an operation and maintenance plan with written, regularly scheduled reports, so as to maintain and keep the structure and its appurtenant works in the state of repair and operating condition required by the exercise of prudence; due regard for life or property; the application of sound and accepted engineering principles; the provisions of rules, guidelines, or policies.

(2) As part of any rehabilitation project utilizing funds from this program the owner must have an emergency action plan developed (if one doesn't currently exist).

(3) Cooperate with the agency's agents, engineers, and other employees in the conduct of the chapter.

(4) Facilitate access to the structure or appurtenance.

(5) Furnish upon request the plans, specifications, operating, and maintenance data, or other information that is pertinent to the structure, appurtenance, and loan.

(i) The following general loan guidelines shall apply:

(1) Owners of dams without taxing authority should be allowed to participate in the dam rehabilitation loan program.

(2) Complete rehabilitations are to be encouraged, but phased projects can be funded.

(3) Removal of dams as a rehabilitation alternative should be allowed.

(4) As part of the application process, owners should demonstrate the ability to appropriately operate and maintain the dam after rehabilitation is complete.

(5) Owners are allowed to partner with an individual, local agency, or organization, for purposes of the loan, and for purposes of operation and maintenance.

(6) Rehabilitation projects that are in compliance with state statute and rules, and are permitted, accepted, and approved by the board are eligible to be funded through the dam rehabilitation loan program.

(7) If a dam is exempt from state regulation, to obtain funding through the dam rehabilitation loan program, the project must adhere to state standards that relate to design, construction, and this chapter.

(8) Costs for lake enhancement projects such as, lake dredging, sediment removal projects, or boat ramps, which do not enhance the safety of the dam, are not eligible to be funded through the dam rehabilitation loan program.

(9) The board and its agents, engineers, and other employees may, for the purposes of this chapter, enter upon any land or water in the State without a search warrant or liability for trespass.

(10) The state legislature authorizes staff positions, required funding, and organizational structure, to administer the dam rehabilitation loan program.

(11) This chapter does not create a liability for damages against the board, its officers, agents, and employees caused by or arising out of any of the following:

(i) The construction, maintenance, operation, or failure of a dam, or appurtenant works.

(ii) The issuance and enforcement of an order or a rule issued by the board to carry out the board's duties.

(12) The State does not assume ownership obligations, responsibilities, or liabilities if an owner defaults on a loan.

§179D-G Dams and reservoirs completed prior to effective date of this chapter. (a) Every owner of a dam that falls within the definition of a dam in this chapter and completed prior to the effective date of this chapter shall file with the board a separate application for a certificate of approval to impound and any other supporting information as required by the board for each of these dams. Each application shall also be accompanied by applicable application fees as required by the board.

(b) The board shall give notice to file an application for certificate of approval to impound to owners of such dams or reservoirs who have failed to file such applications as required by this chapter.

(c) The notice provided for in this section shall be delivered by certified mail to the owner at his last address of record in the office of the county tax assessor in which the dam is located. Such mailing shall constitute service.

(d) The board shall make inspections of such dams and reservoirs, unless the data, records, and inspection reports on file with it are found adequate to enable a determination whether or not the certificate of approval to impound should be issued.

(e) The board shall require owners of such dams and reservoirs to perform at their expense such work or tests as may reasonably be required to disclose information sufficient to enable the board to determine whether to issue certificates of approval to impound, or to issue orders directing further work at the owner's expense necessary to safeguard life and property. For this purpose, the board may require an owner to lower the water level of, or to drain, the reservoir.

(f) If, upon inspection or upon completion to the satisfaction of the board of all work that may be ordered, the board finds that the dam and reservoir are safe to impound water, a certificate of approval to impound shall be issued. The board may find that the dam or reservoir will not safely impound water and may refuse to issue a certificate of approval to impound. Upon finding the dam and reservoir are unsafe to impound water, the board shall issue a written notice to the owner, whereupon the owner shall cause the dam and reservoir to no longer impound water after receipt of the notice.

§179D-H Dams and reservoirs under construction, enlargement, repair, alteration or removal before effective date of this chapter. (a) Any dam or reservoir that falls within the definition of a dam and reservoir in this chapter and which the board finds was under construction, enlargement, repair, alteration or removal and based on its findings not ninety per cent constructed, enlarged, repaired, altered, or removed on the effective date of this chapter, except as provided in subsection (b), shall be subject to the same provisions in this chapter as a dam or reservoir commenced after that date. Every owner of such a dam and reservoir shall file an application with the board for the board's written application approval of the plans and specifications.

(b) Construction, enlargement, repair, alteration, or removal work on such a dam and reservoir may proceed, provided an application for approval of the plans and specifications is filed, until an application approval is received by the owner approving the dam and reservoir or an order is received by the owner specifying how the construction, enlargement, repair, alteration, or removal must be performed to render the dam or reservoir safe. After receipt of an application approval or order specifying how construction, enlargement, repair, alteration, or removal of the dam or reservoir must be performed, work thereafter must be in accordance with the application approval or order.

§179D-I Annual report. The department shall submit an annual report to the legislature by January 5 of each year concerning the activities of the department relating to this chapter for the preceding fiscal year. A copy of such report shall be provided to each of the following: The governor and the senate president and speaker of the house of representatives. The report shall include but not be limited to information on the following:

(1) Approvals of plans and specifications for construction of dams and reservoirs and for alterations, modifications, repairs, and enlargements;

(2) Number of safety inspections made and the results thereof;

(3) Use of appropriated funds;

(4) Receipts generated for inspections of dams and reservoirs;

(5) Rules adopted or amended;

(6) Enforcement orders and proceedings;

(7) Dam failures and reasons therefor; and

(8) Other available data regarding the effectiveness of the State's dam and reservoir safety program."

SECTION 11. Chapter 179D, Hawaii Revised Statutes, is amended by designating section 179-1 to 179-9 as part I, entitled "General Provisions".

SECTION 12. In codifying the new sections added by section 10 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 13. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1946
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII