HB652 HD1

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:

(1) Establishing a dam safety special fund for monitoring and enforcing the safety of dams and reservoirs throughout the State;

(2) Establishing the dam rehabilitation loan program to provide funds to dam owners to make repairs and alterations to dams and reservoirs to increase their safety and effectiveness and prevent future dam failures; and

(3) Making an appropriation for the dam safety special fund and the dam rehabilitation loan program.

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

"§179D-A Dam safety special fund. (a) There is established, in the state treasury, the dam safety special fund. All moneys received by the board from:

(1) Fees, penalties, interest, fines, or charges collected under this chapter;

(2) Appropriations by the legislature; and

(3) Payments made on loans pursuant to part ;

(4) Moneys collected in full or partial satisfaction of liens created by subsection (d)(2)

shall be deposited in the dam safety special fund.

(b) Moneys in the special fund shall be used by the board, upon appropriation by the legislature, to administer the dam safety program and may be used to employ remedial measures necessary to protect persons and property in accordance with this chapter.

(c) The board shall administer the dam safety special fund. On notice from the board, the director of finance shall invest and divest moneys in the special fund, and moneys earned from investment shall be credited to the special fund. Moneys on balance in the special fund at the close of each fiscal year shall remain in that fund and shall not lapse to the credit of the general fund.

(d) The board may expend moneys from the dam safety special fund subject to the following provisions:

(1) 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. Notwithstanding any other law to the contrary, 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 pursuant to this paragraph becomes due; and

(2) Liens pursuant to paragraph (1) 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 that 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.

§179D-B 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) The number of safety inspections made and the results thereof;

(2) Use of appropriated funds;

(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."

SECTION 3. Chapter 179D, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . DAM REHABILITATION LOAN PROGRAM

§179D-C Dam rehabilitation loan program; establishment and funding. (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 from moneys appropriated by the legislature and deposited into the dam safety special fund.

(b) The legislature may appropriate additional funding to expand the financial size of the dam rehabilitation loan program.

(c) The dam rehabilitation loan program shall be subsequently funded with additional moneys appropriated by the legislature and deposits of fees, penalties, interest, fines, or charges collected by the board under this chapter, and any interest earned on the investment of moneys in the dam safety special fund by the director of finance.

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

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

(f) Moneys collected for the dam rehabilitation loan program and deposited into the dam safety special fund.

§179D-D Allowable loans. (a) The board may grant loans from the dam safety fund to dam owners to defray the costs of repairing dams that the board determines to be dangerous to the safety of persons and property but that are not in an emergency condition.

(b) Loans shall be granted on the terms and conditions as may be imposed by the board. The following provisions shall apply:

(1) The board may take any administrative or legal action necessary for the administration of the dam rehabilitation loan program;

(2) If the balance of the dam safety special 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;

(3) 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 established by the board by rule;

(4) Each loan shall be evidenced by a contract between the dam owner and the board, acting on behalf of the State. The contract shall provide for the loan of a stated amount to defray partial or total costs of repairing the dam. The contract shall provide for equal annual payments of principal and interest for the term of the loan.

§179D-E Eligibility. (a) Rehabilitation projects that are in compliance with applicable laws and rules and are permitted, accepted, and approved by the board shall be eligible to be funded through the dam rehabilitation loan program.

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

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

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

(e) 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.

(f) Rehabilitation costs for any dam in the State are eligible for loans under this part, subject to the provisions of this section, except for dams owned by the federal government.

(g) Any costs directly related to compliance with other laws and rules, above the State's minimum dam safety requirements, shall be eligible for loans under this part as part of an overall rehabilitation project.

(h) Any costs for a fish passage, if required by the State, shall be eligible only if the fish passage is part of an overall rehabilitation project.

(i) Costs for lake enhancement projects, including but not limited to lake dredging, sediment removal, or boat ramps, that do not enhance the safety of the dam shall not be eligible to be funded through the dam rehabilitation loan program.

§179D-F Security interests. (a) The board may take a security interest, if necessary, in any property owned by the dam owner in exchange for the loan. If the board chooses to take a security interest, the board shall take the necessary actions to perfect the security interest.

(b) The attorney general or the board's legal counsel, with the consent of the board, may commence any actions necessary to enforce the contract and achieve repayment of loans provided by the board.

§179D-G Enforcement. Notwithstanding any other provision of law to the contrary, the board and its agents, engineers, and other employees, for the purposes of enforcing this chapter, may enter upon any land or water in the State that is the subject of a dam rehabilitation loan program loan without a search warrant or liability for trespass.

§179D-H Dam owners; requirements for participation. Dam owners participating in the dam rehabilitation loan program shall:

(1) Maintain an operation and maintenance plan with written, regularly scheduled reports to the board, 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 due care, due 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 and report this plan to 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 agency to the dam, reservoir, or appurtenances; and

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

§179D-I Administration. The board shall adopt the following guidelines for administering the dam rehabilitation loan program:

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

(2) Complete rehabilitations shall be encouraged, but phased projects may be funded;

(3) Removal of dams as a rehabilitation alternative may be allowed;

(4) As part of the application process, owners shall be required to demonstrate the ability to appropriately operate and maintain the dam after rehabilitation is complete;

(5) Owners may partner with an individual, local agency, or organization, for purposes of the loan and for purposes of operation and maintenance; and

(6) If a dam is exempt from state regulation, to obtain funding through the dam rehabilitation loan program, the project must adhere to state standards for design, construction, and the rules adopted by the board pursuant to this chapter."

SECTION 4. 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.

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

"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.

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

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

"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.

"Removal" or "remove" 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, 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~~], that were existing on June 6, 1987.

[[]§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) 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;

(10) 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;

(11) 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

(12) Take any other actions necessary to carry out the purpose of this chapter.

[[]§179D-7[]] Administrative and judicial review. 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. (a) 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~~] the violation continues.

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

(c) All penalties collected pursuant to this section or rules adopted by the board pursuant to this chapter shall be deposited in the dam safety special fund.

[[]§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 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2007-2008, and the same sum, or so much thereof as may be necessary for fiscal year 2008-2009, for personnel and resources for the department of land and natural resources to implement this Act.

The sums appropriated shall be expended by the department of land and natural resources for the purposes of this Act.

SECTION 6. In codifying the new sections added by section 2 and 3 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 7. 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 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, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	652
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 1
STATE OF HAWAII