AN ACT FURTHER REGULATING DAM SAFETY, REPAIR AND REMOVAL.
Whereas, The deferred operation of this act would tend to defeat its purpose, which is to provide forthwith for the repair and safety of dams, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:
SECTION 1. Chapter 21 of the General Laws is hereby amended by adding the following 4 sections:-
Section 64. The commissioner of conservation and recreation, in conjunction with the commissioner of fish and game, the division of fisheries and wildlife, and the riverways program, or any successor agencies, shall annually, on or before June 30, submit a detailed report on all dams, whether on public or private property, to the joint committee on environment, natural resources and agriculture and to the senate and house committees on ways and means. The report shall include (1) a comprehensive list of each person, agency, municipality or entity that owns and operates a dam and the location of each dam where such ownership or operation is registered with the department; (2) a list of specific owners who have failed to meet regulatory requirements including, but not limited to, registration and inspection requirements; (3) the hazard classification status of any dams that pose a threat to public health, safety, welfare, property or the environment and when or whether any such dam has been repaired; (4) a comprehensive list of dams that are abandoned as defined in section 44 of chapter 253; and (5) a comprehensive list of dams, the existence, condition or operation of which poses a threat to freshwater animal and plant and resident or migratory fish species habitat or movement.
Section 65. (a) As used in this section and section 66, the following words shall, unless the context clearly require otherwise, have the following meanings:-
“High hazard dam”, a dam located where structural failure will likely cause loss of life and serious damage to homes, industrial or commercial facilities, essential public utilities, main highways or railroads.
“Low hazard dam”, a dam located where structural failure may cause minimal property damage and loss of life is not expected.
“Significant hazard dam”, a dam located where structural failure may cause loss of life and damage to homes, industrial and commercial facilities, secondary highways or railroads or interruption of use of service of relatively important facilities.
(b) The department shall ensure that emergency action plans shall be developed for all high hazard dams and significant hazard dams. The department shall establish and make available to dam owners an emergency action plan template. The department shall ensure that necessary local and state dam safety officials have immediate access to such plans in the event of a potential dam failure.
(c) The department shall develop an inspection schedule to ensure that all high hazard dams are inspected at least every 2 years, all significant hazard dams are inspected at least every 5 years and all low hazard dams are inspected at least every 10 years.
(d) The department shall review the hazard classifications of dams at least every 10 years to ensure the accuracy of the dam classification. Requests for review of the hazard classification of a dam shall be made at the expense of the owner of the dam.
Section 66. The department may consult with and receive inspection and other support from the department of fish and game, the division of fisheries and wildlife and the riverways program, or any successor agencies, to accomplish its duties pursuant to sections 64 and 65 of this chapter and sections 44 to 48B, inclusive, of chapter 253.
SECTION 2. Chapter 21E of the General Laws is hereby amended by adding the following section:-
Section 22. Notwithstanding any general or special law to the contrary, no municipality or public entity shall be liable under this chapter for, or related to, the presence, release or threat of release of oil or any hazardous material related to a dam, as defined in section 44 of chapter 253, that occurred prior to the date a dam was acquired by a municipality or public entity; provided, however, that an activity conducted by a municipality or public entity that involves the management or removal of oil or hazardous material in relation to the management, maintenance or removal of a dam shall be performed in accordance with applicable environmental laws and permits.
SECTION 3. Chapter 29 of the General Laws is hereby amended by inserting after section 2HHHH the following section:-
Section 2IIII. (a) There shall be established and set upon the books of the commonwealth a separate fund to be known as the Dam and Seawall Repair or Removal Fund into which shall be deposited amounts credited or transferred to the fund by the general court or any other source including, without limitation, federal grants; loan repayments; investment earnings on monies in the fund; and any other amounts required to be credited to the fund by operation of law, resolution or agreement entered into by the department of conservation and recreation. The fund shall be administered by the secretary of energy and environmental affairs. Monies deposited into the fund that are unexpended at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditure in the subsequent fiscal year.
(b) Amounts credited to the fund shall be used, without further appropriation, to provide grants or loans to local governmental bodies, charitable organizations and private dam owners to finance or refinance costs of coastal and inland waterway infrastructure inspection, repair and removal projects including, but not limited to, projects related to dams, seawalls, jetties, revetments, retaining walls, levies and other means of flood control; provided, however, that 50 per cent of the total funds expended shall be on projects related to dams and 50 per cent of the total funds expended shall be on infrastructure projects related to other means of flood or wave control including, but not limited to, seawalls, jetties, revetments, retaining walls and levies. Grants from the fund shall only be available to local government bodies and charitable organizations. For the purposes of this section, a local governmental body shall include a town, city, district, commission, board and any regional local governmental unit.
(c) On or before September 1 of each year, a local governmental body, charitable organization or private dam owner may apply to the secretary of energy and environmental affairs for assistance in financing the cost of a coastal or inland waterway infrastructure project. The secretary shall promulgate rules and regulations for the administration and implementation of this section including, but not limited to, a priority system for the approval of projects; provided, however, that priority shall be given to projects that are owned or operated by cities, towns and charitable organizations which are tax-exempt; and (i) have been classified by the department of conservation and recreation as a high hazard or significant hazard dam; (ii) have been designated by the office of coastal zone management as a critical or poor seawall; or (iii) have been identified by the United States Army Corps of Engineers as requiring imminent infrastructure improvement.
SECTION 4. The first paragraph of section 8 of chapter 44 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by adding the following clause:-
(25) For the acquisition of a dam or the removal, repair, reconstruction and improvements to a dam owned by a municipality, as may be necessary to maintain, repair or improve such dam, 40 years; provided, however, that this clause shall include dams as defined in section 44 of chapter 253 acquired by gift, purchase, eminent domain under chapter 79 or otherwise and located within a municipality, including any real property appurtenant thereto, if such dam and any appurtenant real property is not at the time of such acquisition owned or held in trust by the commonwealth.
SECTION 5. Section 44 of chapter 253 of the General Laws, as so appearing, is hereby amended by inserting after the introductary paragraph the following definition:-
“Abandoned dam”, a dam that has no identifiable owner or a dam in which the owner fails to respond to the owner’s obligations under sections 44 to 48, inclusive, and as a result of which the commissioner has taken emergency action under section 47 and created a lien upon the lots of land on which the dam is situated and upon the buildings and structures on the lots under section 48.
SECTION 6. Said section 44 of said chapter 253, as so appearing, is hereby further amended by striking out the definition of “Commissioner” and inserting in place thereof the following definition:-
“Commissioner”, the commissioner of conservation and recreation or a designee of the commissioner.
SECTION 7. Said section 44 of said chapter 253, as so appearing, is hereby further amended by inserting after the word “any”, in line 9, the following word:- man-made.
SECTION 8. Said section 44 of said chapter 253, as so appearing, is hereby further amended by inserting after the word “safety”, in line 17, the following words:- or which could cause significant harm to the aquatic ecosystem.
SECTION 9. Said section 44 of said chapter 253, as so appearing, is hereby further amended by striking out, in line 32, the words “environmental management” and inserting in place thereof the following words:- conservation and recreation.
SECTION 10. Said section 44 of said chapter 253, as so appearing, is hereby further amended by inserting after the definition of “Owner” the following definition:-
“Remove” or “Removal”, the controlled dismantlement or breaching of a dam, in compliance with applicable law, to the extent that water is not impounded or diverted by the dam and fish passage is no longer impeded; provided, however, that, following a controlled dismantlement or breaching of a dam, a minimal degree of impoundment necessary for agricultural uses or wetland retention and open water conditions may be allowed, so long as any impediment to fish passage has been removed and any threats to public safety or property have been alleviated.
SECTION 11. Section 46 of said chapter 253, as so appearing, is hereby amended by inserting after the word “unsafe”, in line 14, the following words:- or abandoned.
SECTION 12. Said section 46 of said chapter 253, as so appearing, is hereby further amended by inserting after the word “condition”, in line 22, the following words:- or to safely remove the dam.
SECTION 13. Section 46A of said chapter 253, as so appearing, is hereby amended by inserting after the word “removed,”, in line 1, the following word:- repaired.
SECTION 14. Said section 46A of said chapter 253, as so appearing, is hereby further amended by inserting after the word “approving”, in line 5, the following words:- the dam or the safe removal of.
SECTION 15. Said section 46A of said chapter 253, as so appearing, is hereby further amended by inserting after the word “property” in line 7, the following words:- or such terms and conditions, if any, as the commissioner, in consultation with the commissioner of fish and game, deems necessary for the protection of the environment.
SECTION 16. Section 47 of said chapter 253, as so appearing, is hereby amended by inserting after the word “condition” in line 6, the following words:- or remove the dam.
SECTION 17. Said section 47 of said chapter 253, as so appearing, is hereby further amended by striking out, in line 22, the figure “$500” and inserting in place thereof the following figure:- $5,000.
SECTION 18. Notwithstanding any general or special law to the contrary, on or before January 31, 2013, the comptroller shall transfer to the the Dam and Seawall Repair or Removal Fund, established in section 2IIII of chapter 29 of the General Laws, the balance of any amounts transferred to the water pollution abatement trust by the state treasurer in accordance with paragraphs (a) and (c) of section 16 of chapter 275 of the acts of 1989 and applied by the trust to make loans to local governmental units in accordance with section 26 of chapter 203 of the acts of 1992, including repayments on such loans and any investment earnings thereon.
Approved, January 9, 2013.