SB1945

SECTION 1. On March 14, 2006, just before dawn, Ka Loko dam on the island of Kauai breached. Almost 400,000,000 gallons of water -- 1,600,000 tons -- came crashing down from the Ka Loko reservoir into Kilauea bay, taking trees, cars, buildings, and human lives with it. It was a great human tragedy and an ecological disaster.

The legislature finds that a subsequent investigation began approximately August 1, 2006, and concluded with a report published January 7, 2007: Report of the Independent Civil Investigation of the March 14, 2006, Breach of Ka Loko Dam. Among its findings, the report notes that a significant portion of Hawaii's contemporary surface water system is made up of antique earthen dams and waterways from the plantation era. The majority of dams in Hawaii were developed to support the sugarcane industry, but many small farmers still utilize water from these old reservoirs today. While the sugar industry could afford to devote significant resources to maintaining the irrigation systems vital to its success, that industry is now largely gone and the water systems have suffered as a result.

The purpose of this Act is to implement recommendations from the report.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 12 to be appropriately designated and to read as follows:

"Chapter

hawaii dam and reservoir safety

PART I. GENERAL PROVISIONS

§ -1 Short title. This chapter shall be known and may be cited as the "Hawaii Dam and Reservoir Safety Act of 2007".

§ -2 Declaration of purpose. (a) The purpose of this chapter is to provide for governing the design, construction, operation, maintenance, enlargement, alteration, and repair of dams, reservoirs, and appurtenant works in the State.

(b) This chapter shall not apply to the design and construction of dams, reservoirs, and appurtenant works that already existed on February 1, 2007, but shall apply to their operation, maintenance, enlargement, alteration, repair, and removal.

(c) This chapter shall not apply to any artificial barrier that is less than six feet in height regardless of storage capacity, or 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.

§ -3 Definitions. As used in this chapter unless otherwise provided:

"Alteration" means a change to an existing dam or reservoir from the originally approved construction plans and specifications or current condition.

"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 that specifies the conditions or limitations under which work is to be performed by the owner or under which approval is granted.

"Appurtenant works" means the ancillary features of a dam, such as the spillway, reservoir and its rim, powerhouse outlet, tunnel, pipeline, and penstock.

"Authorization" means written acknowledgement form the department to proceed with proposed actions.

"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 alteration of a dam and that 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.

"Dam rehabilitation loan program" means a low interest revolving dam rehabilitation loan program.

"Day" means calendar days, including Saturdays, Sundays, and holidays.

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

"Design water level" means the maximum water elevation, including the flood surcharge, which a dam is designed to withstand.

"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 or property.

"Engineer" means a qualified professional engineer who has a background in civil engineering and:

(1) Is a licensed engineer;

(2) Is competent in areas related to dam investigation, design, construction, and operation for the type of dam being investigated, designed, constructed, or operated;

(3) Has at least five years of relevant experience in areas such as investigation, design, construction, enlargement, repair, alteration, maintenance, operation, or removal of dams;

(4) Understands adverse dam incidents, failures, and the potential causes and consequences of failures; and

(5) Continues with necessary training to keep abreast of the state of the practice in dam safety engineering.

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

"Hazard potential" means the possible adverse incremental consequences that result from the release of water or stored contents due to failure of the dam or mis-operation of the dam or appurtenances. The hazard potential classification of a dam does not reflect in any way on the current condition of the dam and its appurtenant structures, such as safety structural integrity and flood routing capacity.

"High hazard" means a dam's failure will probably cause loss of human life.

"Low hazard" means a dam's failure will result in no probable loss of human life and low economic or environmental losses; provided that economic losses are principally limited to the owner's property.

"Maximum water storage elevation" means the maximum water surface elevation of the reservoir at the crest of the spillway or, if no spillway exists, at the crest of the dam.

"Moderate hazard" means a dam's failure will result in no probable loss of human life but may result in major economic loss, environmental damage, disruption of lifeline facilities, or impact other concerns. Moderate hazard potential classification dams are often located in predominantly rural or agricultural areas but could be located in areas with population and significant infrastructure.

"Owner" means any person who 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" includes any natural person, partnership, firm, association, organization, corporation, municipality, municipal 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 of a corporation, company, county or county authority.

"Probable" means more 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.

"Repair" means construction to an existing dam that does not significantly change the reservoir's storage capacity. Repair shall not be deemed to apply to routine maintenance not affecting the safety of the structure.

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

"Spillway" means a device that safely diverts the flood of a dam without endangering its safety or integrity.

"Spillway crest" means the lowest level at which water can flow over or through the spillway.

"Storage capacity" means the total reservoir storage acre‑feet at the maximum water storage elevation.

§ -4 Exempt structures. Structures exempt from this chapter include:

(1) Highways and roadfills (except those designed or modified with the purpose of impounding water for uses other than flood detention);

(2) Dams smaller than those defined in section -3;

(3) Dams for which no loss of human life is expected and damage will occur only to the owner's property in the event of failure of the dam;

(4) Refuse embankments (e.g., solid waste disposal facilities); and

(5) Structures that store water only below the lowest point of the natural ground, unless an outlet works is constructed to develop water.

§ -5 Violations; penalties. (a) Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed $10,000 per day of the 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 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 second or subsequent offense under this subsection shall subject the violator to a fine, of not less than $5,000 nor more than $50,000 per day of violation.

§ -6 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 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 aggrieved or adversely affected by an order or action of the board is 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.

PART II. DAM MAINTENANCE

§ -11 Construction or enlargement of a dam or reservoir. (a) No person shall construct any dam or reservoir or enlarge any dam or reservoir until an application to undertake the work has been filed and written approval of the construction plans and specifications is obtained from the board.

(b) A separate application shall be filed with the board for each reservoir and dam.

(1) Name and address of the applicant;

(2) Name and address of the owner or owners of the land upon which the works are to be constructed or enlarged, and a legal description of the land;

(3) Description of the location, type, size, purpose, and height of the proposed dam, reservoir, and appurtenant works;

(4) Storage capacity and reservoir surface areas for maximum water storage elevation and design water level;

(5) Plans for any permanent instrument installations in the dam;

(6) Area of the drainage basin, rainfall and streamflow records, and flood-flow records and estimates, as accurately as may be readily obtained;

(7) Relevant construction drawings, plans, and specifications signed and sealed by the design engineer;

(8) Proposed times of commencement and completion of the proposed activity;

(9) Name and address of the person who prepared the plans and specifications;

(10) Name and address of the person who will construct or enlarge the proposed dam or reservoir and appurtenant works;

(11) A listing of all sources of inflow to the reservoir;

(12) An assessment of the consequences of dam failure on downstream areas, including:

(A) An estimation of the magnitude of the dam break flood hydrographs resulting from hypothetical dam failures occurring within the reservoir at normal storage elevation and maximum storage elevation;

(B) A general description of the areas downstream of the dam that could be affected by floodwater from a dam failure;

(C) If there is the potential for loss of life, an inundation map delineating the maximum a real extent of flooding that could be produced by a dam failure. Inundation mapping shall extend to a point downstream where the inundation from the dam failure is within the one hundred year floodplain for the affected watercourse; and

(D) The downstream hazard classification (high, moderate, or low) that reflects the current conditions of development in downstream areas.

(13) The "estimated cost", as defined in section -41(b) of this chapter, of the dam or reservoir or enlargement;

(14) Proof of financial responsibility;

(15) An emergency preparedness plan; and

(16) Other information that may be necessary for the board to determine the merits of the proposed construction or enlargement of the dam, reservoir, and appurtenant works, including any hazards to the public health, safety, or welfare, and the desirability of issuing a permit.

(d) To be approved, the relevant construction drawings, plans, and specifications shall contain sufficient detail to describe the proposed construction work.

(1) The following items, as a minimum, shall be included as part of the construction plans:

(A) Project location and vicinity maps;

(B) Site map of dam, reservoir, and appurtenances;

(D) Cross-sectional view of dam at location of maximum height;

(E) Cross-sectional views and profiles of spillway(s), outlet facilities, and other appurtenances;

(F) Steel reinforcement placement and bar sizing for concrete construction shall be shown in at least one section or profile; and

(G) The plan for diversion and control of water during construction.

(2) The following items, as a minimum, shall be included as part of the construction specifications:

(A) Type, class, or description of all materials to be used;

(B) The requirements for fill placement, moisture conditioning, and minimum level of compaction of all earthen zones; and

(e) The board, when in its judgment it is necessary, shall also require the following:

(1) Data concerning subsoil and rock foundation conditions and the materials involved in the construction or enlargement of the dam or reservoir;

(2) Investigations of, and reports on, subsurface conditions exploratory pits, trenches and adits, drilling, coring, and geophysical tests to measure in place and in the laboratory the properties and behavior of foundation materials at the dam and reservoir site;

(3) Investigations and reports on the geology of the dam or reservoir site, possible geologic hazards, seismic activity, faults, weak seams and joints, availability and quality of construction materials, and other pertinent features;

(4) Separate emergency preparedness plans for construction and post construction periods; and

(5) Other appropriate information as may be necessary.

(f) A nonrefundable filing fee in accordance with part V shall accompany each application; provided that no fee shall be required of any federal, state, or county agency.

(g) Dams and reservoirs that are ninety per cent or more constructed or enlarged on the effective date of this chapter as determined by the board and that are subject to this chapter shall not be required to pay a filing fee but shall submit an application for approval pursuant to this section. Application approvals of dams and reservoirs that are made subject to this chapter that are found by the board to have been less than ninety per cent constructed, enlarged, repaired, altered, or removed on the effective date of this chapter shall be accompanied by fees reduced by the percentage of construction or enlargement found by the board to have been completed on that date.

§ -12 Repair or alteration of dam, reservoir, or appurtenant works; removal of dam or reservoir. (a) Before commencing the repair or alteration of an existing dam, reservoir, or appurtenant works, or the removal of a dam or reservoir so that it no longer constitutes a dam or reservoir as defined in this chapter, the owner shall file an application for the work and secure the written approval of the board; provided that owners proposing routine maintenance not affecting the safety of the structure are exempted from this requirement.

(b) Each application shall include such pertinent information and data concerning the dam, reservoir, or appurtenant works as may be required by the board, as follows:

(1) Proposed times of commencement and completion of remedial construction;

(2) Names and addresses of applicant and contractor;

(3) Changes that the work covered in the application is proposed to effect, with appropriate references to the existing dam or reservoir;

(4) Relevant construction plans and specifications signed and sealed by the design engineer;

(5) The "estimated cost," as defined in sections -41(b) of this chapter, of the repair, alteration, or removal of the dam or reservoir;

(6) Proof of financial responsibility;

(7) An emergency preparedness plan; and

(8) Other information appropriate for a thorough consideration of the safety of the work, as may be required by the board.

(c) To be approved, the relevant construction drawings, plans, and specifications shall contain sufficient detail to describe the proposed construction work.

(1) The following items, as a minimum, shall be included as part of the construction plans:

(A) Project location and vicinity maps;

(B) Site map of dam, reservoir, and appurtenances;

(D) Cross-sectional view of dam at location of maximum height;

(E) Cross-sectional views and profiles of spillway(s), outlet facilities, and other appurtenances;

(F) Steel reinforcement placement and bar sizing for concrete construction shall be shown in at least one section or profile; and

(G) The plan for diversion and control of water during construction; and

(2) The following items, as a minimum, shall be included as part of the construction specifications:

(A) Type, class, or description of all materials to be used;

(B) The requirements for fill placement, moisture conditioning, and minimum level of compaction of all earthen zones; and

(d) The board, when in its judgment it is necessary, shall also require the following:

(1) Data concerning subsoil and rock foundation conditions and the materials involved in the construction or enlargement of the dam or reservoir;

(2) Investigations of, and reports on, subsurface conditions, exploratory pits, trenches and adits, drilling, coring, and geophysical tests to measure in place and in the laboratory the properties and behavior of foundation materials at the dam and reservoir site;

(4) Separate emergency preparedness plans for construction and post construction periods; and

(5) Other appropriate information as may be necessary.

(e) A non-refundable application fee in accordance with part 5 shall accompany each application; provided that no fee shall be required of any federal, state, or county agency.

(f) The requirements of this section may be waived by the board where appropriate.

(g) Dams and reservoirs that are ninety per cent or more repaired, altered, or removed on the effective date of this chapter as determined by the board and that are subject to this chapter shall not be required to pay a filing fee but shall submit an application for approval pursuant to this section. Application approvals of dams and reservoirs that are made subject to these rules that are found by the board to have been less than ninety per cent constructed, enlarged, repaired, altered, or removed on the effective date of this chapter shall be accompanied by fees reduced by the percentage of construction, enlargement, repair, alteration, or removal found by the board to have been completed on that date.

§ -13 Supervision of plans preparation and construction inspection. An engineer shall be in charge of the preparation of all plans and specifications for the initial construction, enlargement, alteration, repair, or removal of dams and reservoirs and of the inspection of the construction. The engineer may be assisted by other specialists as required.

§ -14 Application approval. (a) The board shall act upon an application and shall take into consideration the:

(1) Cost and magnitude of the project;

(2) Engineering and physical features involved;

(3) Existing conditions; and

(4) Public interest affected.

(b) If an application is incomplete or defective, it shall be returned to the applicant. The application shall be corrected and returned to the board within sixty days or a further time as may be given by the board in order to retain its validity. If the application is not returned within the required time limit, it shall be deemed automatically rejected.

(c) After the board has determined that the application is complete and the plans and specifications conform to accepted engineering practice, the board will issue an application approval.

(d) Actual construction, enlargement, repair, alteration, or removal shall be commenced within the time frame set by the board in the application approval; otherwise, the application approval becomes void. The board, upon written application and for good cause shown, may extend an owner's time for commencing construction, enlargement, repair, alteration, or removal of a dam or reservoir.

(e) Written notice shall be provided to the board at least ten days before construction, enlargement, repair, alteration, or removal is to begin and other notices shall be given to the board as it may require.

§ -15 Revocation of approval. (a) An application approval for any construction, enlargement, alteration, repair, or removal of any dam or reservoir or its appurtenant works may be revoked in whole or in part for any:

(1) Material false statement in the application or in any report or statement of fact required pursuant to this chapter;

(2) Violation of this chapter; or

(3) Violation of the approved plans and specifications.

(b) In any proceeding for revocation, the board shall give prior written notice to the affected owner of the facts or conditions that warrant the action and provide the owner an opportunity for a hearing.

§ -16 Construction change orders. (a) All dam projects subject to this chapter shall be constructed in accordance with the application approval. Any proposed changes to the application approval that could have an effect on structural integrity or safe operations of the project shall first be presented to the board for a determination if an approval is required.

(b) If the board determines that the proposed construction change order represents a significant modification of the application approval that could have an effect on structural integrity or safe operations of the project, then approval of the change order will be required.

(c) If board approval of the proposed construction change order is required, no action shall be taken by the owner to make the construction change until approval is given by the board.

PART III. CONSTRUCTION REQUIREMENTS

§ -21 Inspection during progress of work. (a) During the construction, enlargement, repair, alteration, or removal of any dam or reservoir, the owner shall:

(1) Perform, at its own expense, work or tests necessary to insure proper compliance with the approved plans and specifications;

(2) Provide adequate supervision by an engineer during construction; and

(3) Provide any information requested by the board to determine that conformity with the approved plans and specifications is being achieved. The department, through its own engineers or by consulting engineers of its selection, may make periodic inspections at state expense for the purpose of ascertaining compliance with the approved plans and specifications.

(b) After any tests, inspections, or investigations, or at any time as the work progresses, or at any time prior to completion of the project, the department may order the owner to revise, modify, or change its plans and specifications for safety reasons; provided that the owner may request a hearing before the board to review the order.

(c) If conditions are revealed that will not permit the construction, enlargement, repair, alteration, or removal of a safe dam or reservoir, the application approval for construction, enlargement, repair, alteration, or removal shall be revoked.

(d) If at any time during the construction, enlargement, repair, alteration, or removal of any dam or reservoir the department finds that the work is not being done in accordance with approved plans and specifications, it shall give a written notice thereof to the owner. The written notice shall state the specific violations and shall order the immediate compliance with the approved plans and specifications. The department may order that no further work be done until compliance has been effected and confirmed by the department or its designated representative.

(e) If the owner fails to comply with the department's written notice or the approved plans and specifications the board shall take action to revoke its approval and compel the owner to remove the incomplete structure sufficiently to eliminate any safety hazard to life or property.

§ -22 Completion of new or enlarged dam or reservoir. (a) Upon completion of a new or enlarged dam or reservoir, the owner shall provide written notification of completion to the department signed by the responsible engineer supervising construction for the owner, certifying that the project was constructed in conformance with the approved plans and specifications, accompanied by supplementary drawings or descriptive matter showing or describing the dam or reservoir as actually constructed, which shall include a record of the following:

(1) All geological boreholes and grout holes and grouting;

(2) Permanent location points, benchmarks, and instruments embedded in the structure;

(3) Tests of concrete or other material used in the construction of the dam and reservoir;

(4) Seepage flows and embedded instrument readings after a year of operation; and

(5) Construction problems encountered and solutions implemented.

(b) Supplementary drawings and descriptive matter for the enlargement of a dam or reservoir shall only apply to any new construction not already shown in the original plans on file with the department.

§ -23 Completion of repair or alteration of dam or reservoir. Upon completion of the repair or alteration of any dam or reservoir, the owner shall provide a notice of completion to the department and thereafter shall file with the department a completion report, signed by the responsible engineer supervising the work for the owner, attesting that the repairs or alterations were completed in accordance with the approved plans and specifications, accompanied by supplementary drawings or descriptive matter showing or describing the dam or reservoir as actually repaired or altered, together with all applicable maps, data, records, and information required by the department.

§ -24 Completion of removal of dam or reservoir. (a) Upon completion of the removal of a dam or reservoir, the owner shall file with the department a report regarding the manner in which the work was performed and the removal of the dam. No filing routine drawdown of reservoirs maintenance not affecting the conditions existing after shall be required for the normal operations and safety of the structure.

(b) The report shall show that a sufficient portion of the dam has been removed to permit the safe flow of water down the watercourse across or around which the dam was situated and that adequate provisions have been made by the owner to prevent any damage downstream that may result from the remaining portion of the dam due to subsequent flooding.

§ -25 Certificates of approval to impound. (a) Each dam owner shall hold a valid certificate of approval to impound in order to legally impound water under the laws of this State.

(b) An application for a certificate of approval to impound for any dam not having an application approval to construct, enlarge, alter, or repair a dam or reservoir shall be made on forms available from the board. An application for a certificate of approval to impound is not required for dams already having an application approval to construct, enlarge, alter, or repair. Any dam owner who is notified by the board of the need to apply for a certificate for approval to impound shall submit such application within thirty days of the notification.

(c) A certificate of approval to impound shall be issued by the board upon a finding by the board that the dam and reservoir are safe to impound water within the limitations prescribed in the application approval. No water shall be impounded by a dam or reservoir prior to issuance of a valid certificate of approval to impound; provided that pending issuance of a new or revised certificate of approval to impound, the owner of the dam or reservoir shall not cause the dam or reservoir to impound water beyond the limitations or conditions prescribed in the existing certificate of approval to impound.

(d) The board shall revoke, suspend, or amend any certificate of approval to impound whenever it determines that the dam or reservoir constitutes a danger to life and property. Upon the board's revocation of a certificate to impound, the owner of the dam shall take action within time limits specified by the board to alleviate the hazard associated with the dam.

(e) Certificates of approval to impound are not transferable from one person to another or from one dam to another.

§ -26 Complaints as to unsafe conditions. (a) Upon receipt of a written complaint alleging that the person or property of the complainant is endangered by the construction, enlargement, repairs, alterations, maintenance, or operation of any dam or reservoir, the department shall contact the owner and conduct an inspection unless the data, records, and inspection reports on file with the department are sufficiently adequate to determine whether the complaint is valid.

(b) In determining whether an existing dam or reservoir or proposed dam or reservoir constitutes or would constitute a danger to life or property, the department shall evaluate the possibility that the dam or reservoir might be endangered by overtopping, seepage, settlement, erosion, cracking, earth movement, earthquakes, and failure of bulkheads, flashboard, gates, and conduits that exist or that might occur in any area in the vicinity of the dam or reservoir.

(c) If an unsafe condition exists, the department shall notify the owner to take action necessary to render the condition safe, including breaching or removal of any dam found beyond repair. If the owner is unavailable or unresponsive, the board may commence action under section -32.

PART IV. MAINTENANCE AND OPERATION

§ -31 Maintenance and operation. (a) Owners shall provide for the adequate and timely maintenance, operation, and inspection of their dams and reservoirs and shall be responsible for any engineering and geologic investigations that may be required to ensure public safety. Owners or their agents shall keep available and in good order records of original construction and any modifications, and shall report to the department their maintenance, operation, and engineering activities, including horizontal and vertical controls, seepage measurements, piezometric data collection, and geologic investigations.

(b) The owner of a dam or reservoir or the owner's agent shall fully and promptly advise the department of any sudden or unprecedented flood or unusual or alarming circumstance or occurrence existing or anticipated that may adversely affect the dam or reservoir.

(c) The department, from time to time and without prior notice to the owners of dams and reservoirs, but not less than once every three years for high hazard and moderate hazard dams, and not less than once every five years for low hazard dams, either with its own engineers or by consulting engineers of its selection, shall make inspections of dams and reservoirs at the owner's expense for the purpose of determining their safety. The department shall require owners to perform at their expense any necessary remedial work and work reasonably required to disclose information sufficient to enable the department to determine conditions of dams and reservoirs in regard to their safety, including the installation, maintenance, and monitoring of necessary instrumentation. As part of the inspection, the department shall periodically review the classification of the dams by evaluating the consequences of failure applying the definitions of section -3.

(d) All costs incurred by the department to conduct the inspection shall be charged to the owner. The department shall present a bill for the expenses to the owner, and if the owner neglects for thirty days thereafter to pay it, the bill and costs become a lien upon the lands and property of the owner so liable for the payment of the bill, and shall be collected as delinquent taxes against the lands and property are collected.

§ -32 Emergency work. (a) Owners of dams and reservoirs have the primary responsibility for determining when an emergency involving a dam or reservoir exists. When the owner of a dam or reservoir determines an emergency exists, the owner shall immediately implement the emergency preparedness plan required by section -33, notify any persons who may be endangered if the dam should fail, notify emergency management organizations, and take additional actions necessary to safeguard life, health, and property.

(b) In case of an emergency where the department declares that repairs, breaching of the dam, or other actions are immediately necessary to safeguard life and property, the work shall be initiated by the owner, or by the department through its authorized agent at the owner's expense if the owner fails to do so. The department shall be notified at once of any emergency repairs or other work instituted by the owner.

(c) In applying the remedial means provided for in this section, the department in an emergency with its own forces, or by other means at its disposal, may do any or all of the following:

(1) Take full charge and control of any dam or reservoir;

(2) Lower the water level by releasing water from the reservoir;

(3) Completely drain the reservoir;

(4) Perform any necessary remedial or protective work at the site; or

(5) Take such other steps as may be essential to safeguard life and property.

(d) The department shall continue in full charge and control of the dam and reservoir and its appurtenances until they are rendered safe or the emergency occasioning the action has ceased and the owner is able to take back the operations. The department's take-over of the dam, the reservoir, or their appurtenances shall not relieve the owner of a dam or reservoir of legal liability to the department or third parties for those items that are causing an emergency situation. The department's assumption of control over the dam shall not constitute a takings and the department shall not be liable to the dam owner or others for diminution in value that may be caused by the department's work.

(e) The cost and expense of the remedial means provided in this part, including cost of any work done to render a dam and reservoir or its appurtenances safe, shall be collected by presentation of bills to owners in the same manner as other debts to the State are recoverable. If the bills are not promptly paid by the owners, the cost shall be recovered by the state from the owner by action brought by the department in a court of appropriate jurisdiction, shall become a lien upon the lands and property of the owner so liable for the payment of the bill, and shall be collected as delinquent taxes against the lands and property are collected.

(f) Where appropriate, the repairs, breaching, or other emergency work shall conform to an order issued by the department.

(g) The following emergency actions not impairing the safety of the dam may be taken by the owner without prior notification or approval of the department:

(1) Stockpiling materials such as riprap, earthfill, sand, sandbags, and plastic sheeting;

(2) Lowering the reservoir level by making releases through the outlet or a gated spillway, by pumping or by siphoning; provided that, when large releases are to be made, the department shall be notified. Lowering the water level by excavating the spillway or embankment is prohibited unless failure is imminent. In this situation, the department shall be notified as soon as reasonably possible of any emergency condition that exists and any emergency action taken;

(3) Armoring eroded areas by placing sandbags, riprap, plastic sheeting, or other available material;

(4) Plugging leakage entrances on the upstream slope;

(5) Increasing freeboard by placing sandbags or temporary earthfill on the dam;

(6) Diverting floodwaters to prevent them from entering the reservoir basin;

(7) Constructing training berms to control floodwaters;

(8) Placing sandbag ring dikes around boils at the downstream toe to provide back pressure; and

(9) Removing obstructions from outlet or spillway flow areas.

§ -33 Emergency preparedness plan. (a) Owners of high hazard and moderate hazard dams shall prepare, maintain, and implement an emergency preparedness plan for each dam or reservoir for immediate defensive action to alert and evacuate the affected population and mitigate damages to property. The emergency preparedness plan shall be submitted to the board for review and acceptance. The board may issue an acceptance after determining the emergency preparedness plan is substantially complete. The emergency preparedness plan shall contain as a minimum the following:

(1) The identification of equipment, labor, and material available for implementation of the plan;

(2) A notification procedure for informing the department and the civil defense office of the affected county;

(3) A dam failure inundation map; and

(4) A procedure for warning the affected population if failure of the dam is imminent.

(b) The owner shall submit a copy of the emergency preparedness plan to the affected county civil defense office and other emergency coordinators involved in the plan for review.

§ -34 Change in ownership. Changes in ownership of a dam shall be immediately filed with the department.

PART V. FEES

§ -41 Filing fees. (a) The owner shall submit with the application for construction, enlargement, alteration, repair or removal an amount equal to $3 for each $1,000 or fraction thereof of the estimated cost of construction including engineering costs, but the maximum fee shall not exceed $3,000, nor shall the minimum fee be less than $100.

(b) For the purposes of this chapter, the estimated cost of the construction, enlargement, alteration, repair, or removal shall include the following:

(1) The cost of all labor and materials entering into the construction of the dam and appurtenant works or reservoir;

(2) The cost of preliminary investigations and surveys;

(3) The cost of the construction plant properly chargeable to the cost of the dam or reservoir; and

(4) Any and all other items entering directly into the cost of the construction, enlargement, alteration, repair or removal.

(c) The costs of right-of-way, detached powerhouses, electrical generating machinery, and roads and railroads affording access to the dam or reservoir shall not be included among the items used in the determination of cost.

(d) An application shall not be considered by the department until the filing fee is received.

(e) If the actual cost exceeds the estimated cost by more than fifteen per cent, a further fee shall be required by the board before final approval and shall be one hundred fifteen per cent of the amount by which the original fee is less than it would have been had the cost it was based upon been the same as the actual cost. No further fee shall be required, however if such fee is to be computed at less than $20.

§ -42 Annual fees. (a) An annual fee shall be paid by the owner of the dam on or before December 31, 2007, and on or before December 31 of each succeeding year, based upon a fixed rate and height of the dam. The annual fee shall be $ per dam, plus $ per foot of height.

(b) Any owner who fails to pay any annual fee or any part of any annual fee required to be paid within the time required shall pay a penalty of ten per cent of the annual fee or part of the annual fee, plus interest at the rate of one-half of one per cent per month, or fraction thereof, from the date on which the annual fee or the part of the annual fee became due and payable to the State until the date of payment.

(c) For the purposes of this section, "height of the dam" means the vertical distance, to the nearest foot, from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the department, or from the lowest elevation of the outside limit of the barrier, as determined by the department, if it is not across a stream channel or watercourse, to the maximum possible water storage elevation."

SECTION 3. 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 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1945
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII