HB1905 HD2

SECTION 1. On March 14, 2006, just before dawn, Ka Loko dam on the island of Kaua‘i breached. Almost four hundred million gallons of water crashed down from the Ka Loko reservoir into Kilauea bay, taking trees, cars, buildings, and human lives with it. Seven people tragically lost their lives that morning in the flood. The legislature finds that this was a great human tragedy and an ecological disaster that must never be repeated.

The purpose of this Act is to ensure the health, safety, and welfare of the citizens of the State by creating a program for monitoring and enforcing the safety of dams and reservoirs throughout the State so that we are never again faced with the tragedy like the Ka Loko dam breach.

SECTION 2. Chapter 179D, Hawaii Revised Statutes, is amended by adding nine new sections to be appropriately designated and to read as follows:

"§179D-A Certificate of approval. No dam owner may impound water unless the owner holds a valid certificate of approval to impound.

§179D-B Entry upon property. (a) The department shall have the right to direct and conduct investigations as reasonably necessary to carry out its duties under this chapter. For this purpose, the agents or employees of the department or any authorized representatives shall have the right to enter at reasonable times, without prior notice, any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam or other artificial barrier subject to this chapter. 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 the representative while in the process of carrying out 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 that constitutes or will constitute an unlawful act or practice under this chapter, the department may apply to the circuit court of the circuit 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 the act or practice or for an order requiring compliance with this chapter. Upon a showing by the department that the person has engaged in or is about to engage in the unlawful 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 persons or property as not to permit time for issuance and enforcement of an order relating to construction, modification, maintenance, or repair, or if the dam is threatened by any large flood, the department may immediately employ remedial measures necessary to protect persons and property.

(b) The department shall provide coordination and assistance to the proper state or county agencies to maintain control of any dam or reservoir that has been determined to be dangerous to persons or property under subsection (a) until the dam or reservoir is deemed safe or until any emergency conditions that precipitated taking control of the dam or reservoir under subsection (a) have been abated. The department may determine the proper time at which to relinquish control of any dam or reservoir subject to this section.

(c) Any necessary and reasonable costs and expenses incurred by the department in fulfilling its duties pursuant to this section in connection with a remedial or emergency action shall be recoverable by the department from the owner of the dam or reservoir.

(d) In addition, any owner failing or refusing, after written notice has been given, to pay the reasonable costs and expenses incurred by the department as specified in subsection (c) shall be subject, upon complaint by the department to the attorney general, to reasonable attorney fees incurred in the recovery of costs and expenses.

§179D-E Dams and reservoirs completed prior July 1, 2007. (a) Every owner of a dam or reservoir completed prior to July 1, 2007, 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. Each application shall also be accompanied by applicable 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 dams or reservoirs who have failed to file applications required in subsection (a).

(c) The notice in subsection (b) shall be served upon the dam owner by certified mail to the owner's last address of record in the office of the county tax assessor in which the dam is located.

(d) The board shall make inspections of dams and reservoirs subject to this section, unless the data, records, and inspection reports on file with the board are adequate for the board to determine 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, any work or tests necessary 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 persons and property. For this purpose, the board may require an owner to lower the water level in, or 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 of refusal to the owner. Upon receipt of the notice, the owner shall cause the dam and reservoir to no longer impound water.

§179D-F Dams and reservoirs under construction, enlargement, repair, alteration, or removal prior to July 1, 2007. (a) Any dam or reservoir that the board finds was under construction, enlargement, repair, alteration, or removal and, based on its findings, was not ninety per cent constructed, enlarged, repaired, altered, or removed prior to July 1, 2007, shall be subject to the same requirements under this chapter as a dam or reservoir commenced after that date. Every owner of a dam and reservoir subject to this section shall file an application with the board for the board's application approval of the plans and specifications.

(b) Construction, enlargement, repair, alteration, or removal work on 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, any further work shall be in accordance with the application approval or order.

§179D-G Annual report. (a) The department shall submit an annual report concerning the activities of the department relating to this chapter to the governor and the legislature no less than twenty days prior to the convening of each regular session.

(b) 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) The number of safety inspections made and the results thereof;

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

(4) Rules adopted or amended;

(5) Enforcement orders and proceedings;

(6) Dam failures and department evaluations of the reasons for dam failure; and

(7) Any other available data regarding the effectiveness of the State's dam and reservoir safety program.

§179D-H Limitations of liability. (a) 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:

(1) The construction, maintenance, operation, or failure of a dam or appurtenant works; or

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

(b) The State assumes no ownership obligations, responsibilities, or liabilities if the recipient of a loan under part II defaults.

§179D-I Dam owners; general requirements and responsibilities. Owners of high and significant hazard potential dams and reservoirs subject to regulation under this chapter shall assume but not be limited to the following general requirements and responsibilities:

(1) Maintain an operation and maintenance plan, including an owner/operator inspection and monitoring program, with written, regularly scheduled reports to the board, so as to maintain and keep the structure, its appurtenant works, and access in the state of repair and operating condition required by the exercise of due care, with regard for the safety of persons or property, sound and accepted engineering principles, and the rules adopted by the board;

(2) Establish an emergency action plan for high and significant hazard potential dams and provide this plan to the board, state and county civil defense agencies, and other necessary parties, with due regard for the safety of persons or property, sound and accepted engineering principles, and the rules adopted by the board;

(3) Cooperate with the board's agents, engineers, and employees in carrying out the provisions of this chapter;

(4) Facilitate access by any necessary state agencies or authorized representative to the dam, reservoir, or appurtenances. Physical clear access for a four-wheeled drive vehicle to the dam or reservoir site, and appurtenances in an accessible condition even during periods of inclement weather conditions;

(5) If physical clear access to the dam or reservoir site, upstream or downstream features of a dam particularly during periods of inclement weather conditions cannot be sustained, the owner shall have redundant early warning systems in place, as approved by the board; and

(6) Furnish upon request the plans, specifications, operating and maintenance data, or other information that is pertinent to the dam structure and appurtenances as indicated in this chapter."

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

"[[]CHAPTER 179D[]]

DAMS AND RESERVOIRS

PART I. GENERAL PROVISIONS

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

[[]§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.

[[]§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:

"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.

"Application approval" means authorization in writing that is 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 that specifies the conditions or limitations under which work is to be performed by the owner or under which approval is granted.

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

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

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

(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~~] that is less than six feet in height regardless of storage capacity or [~~which~~] that has a storage capacity at maximum water storage elevation less than fifteen acre-feet regardless of height[.], unless the barrier, due to its location or other physical characteristics, is a high hazard or moderate hazard potential dam.

"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 persons or 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.~~] includes any natural person, partnership, firm, association, organization, corporation, authority, trust, receiver or trustee, limited liability company, limited liability partnership, company, or any state or county 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" shall include the members of an association or organization, and the officers of a corporation, company, county, or county authority.

"Probable" means more likely than not to occur; reasonably expected; or 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~~] that contains or will contain water impounded by a dam.

[[]§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 against any employee of the State, the board, or the department for damages sustained through the partial or total failure of any dam or reservoir addressed in this chapter or its maintenance or operation by reason of any supervision or other 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, or 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.

[[]§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.] 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, shall file an application with the board, under rules adopted by the board, for the approval of the dam or reservoir.

[[]§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 the owners to secure the written approval of the board to impound water;

[~~(7)~~] (8) Require [~~filing~~] fees [~~by rules to accompany each application as required under the provisions of this chapter.~~] 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:

(A) Any of the provisions of this chapter;

(B) Any rules or orders adopted pursuant to this chapter; or

(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 the provisions of this chapter or rules issued pursuant to this chapter;

(12) Order the immediate cessation of any act that is commenced 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 of the owner of the dam in the same manner debts are recoverable by law;

(15) Assess civil and criminal penalties for violation of any provision of this chapter or any rule 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, order, condition, or other provision of this chapter;

(17) With the assistance of the attorney general, institute and prosecute all court actions as may be necessary to obtain the enforcement of any order issued by the board in carrying out the provisions of this chapter; and

(18) Take any other actions necessary to carry out the purposes of this chapter.

[[]§179D-7[]] Administrative and judicial review. (a) The findings and orders 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 shall 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 to impound 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.

[[]§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, 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, 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 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 person who commits a second or subsequent offense under this subsection shall be subject to a fine 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.

[[]§179D-9[]] Enactment of rules. (a) The department shall adopt [~~the necessary~~] rules pursuant to chapter 91 for the purposes of this chapter, not later than one and one-half years after [~~June 6, 1987.~~] February 1, 2007."

SECTION 4. Prior to the adoption of administrative rules consistent with this Act, the department shall adopt interim administrative rules that are consistent with the rules recommended in chapter 5 of the Report of the Independent Civil Investigation of the March 14, 2006, Breach of Ka Loko Dam. The interim rules shall be exempt from the public notice and public hearing requirements of chapter 91, Hawaii Revised Statutes. Interim administrative rules adopted by the department shall be repealed upon the adoption of administrative rules pursuant to chapter 179D, Hawaii Revised Statutes.

SECTION 5. In codifying the new sections added by section 2 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 6. 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 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	1905
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 2
STATE OF HAWAII