AN ACT RELATIVE TO THE INSPECTION, REGISTRATION, CONSTRUCTION AND RECONSTRUCTION OF DAMS.
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 29 of the General Laws is hereby amended by inserting after section 2EEE the following section:-
Section 2FFF. There is hereby established and set up on the books of the commonwealth an expendable trust to be known as the Dam Safety Trust. There shall be credited to the trust all receipts and revenues generated through agreements executed between the department of environmental management and public or private entities for dam safety purposes, and all fines, costs, expenses, and interest imposed pursuant to sections 44 to 48A, inclusive, of chapter 253. The amounts credited to the trust shall be available for expenditure subject to appropriation, by the department of environmental management up to an amount of $250,000 each fiscal year for the costs associated with the operations of the office of dam safety within the department, but such expenditures shall be solely for the purposes stated in this section and no funds shall be transferred from the trust to any other fund. The comptroller may assess the trust for fringe and overhead costs pursuant to section 5D and 6B. If the amount credited to the trust exceeds $250,000, the excess amount shall be deposited into the General Fund. No expenditure made from the fund shall cause the fund to become deficient at any point during fiscal year.
SECTION 2. Chapter 253 of the General Laws is hereby amended by striking out sections 44 to 48, inclusive, as appearing in the 2000 Official Edition, and inserting in place thereof the following 9 sections:-
Section 44. For the purposes of sections 44 to 48B, inclusive, the following words shall have the following meanings:-
"Appurtenant works", structures, either in dams or separate therefrom, including, but not limited to, spillways; reservoirs and their rims; low level outlet works; and water conduits, including tunnels, pipelines or penstocks, either through the dams or their abutments.
"Commissioner", the commissioner of the department of environmental management or his authorized designee.
"Dam", any artificial barrier, including appurtenant works, which impounds or diverts water, and which (1) is 25 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 the maximum water storage elevation or (2) has an impounding capacity at maximum water storage elevation of 50 acre feet or more. Any other artificial barrier, including appurtenant works, the breaching of which could endanger property or safety, may be designated by the commissioner as a dam, and shall be subject to sections 44 to 50, inclusive. The word "dam" shall not mean any of the following: (1) any appurtenant works which temporarily impounds or diverts water used on land in agricultural use as defined pursuant to section 131 of chapter 40, (2) any barrier or appurtenant works which has a size classification of small or low hazard potential classification that is used on land in agricultural use as defined in said section 131 of said chapter 40, and (3) any barrier which is not in excess of 6 feet in height, regardless of storage capacity, or which has a storage capacity at maximum water storage elevation not in excess of 15 acre feet, regardless of height. The commissioner shall make such determination by taking into consideration factors such as height, type of structure, condition of structure, volume of the impoundment, extent of development downstream, and other factors deemed appropriate by the commissioner.
"Department", the department of environmental management, as established in section 1 of chapter 21.
"Owner", the person or persons, including any individual, firm, partnership, association, syndicate, company, trust corporation, municipality, agency, political or administrative subdivision of the commonwealth or any other legal entity of any kind holding legal title to a dam, but excluding the United States, its agencies or any person who operates a dam owned by the United States.
"Unsafe dam", a dam whose condition, as determined by the commissioner, is such that a high risk of failure exists.
"Water storage elevation", the maximum elevation without encroaching on the approved freeboard at maximum design flood.
Section 45. The owner of any dam shall file with the commissioner on or before July 1, 2003, and before operating any dam constructed thereafter, on such form or forms prescribed by the commissioner, a dam registration form containing the name of the owner, the location and the dimensions of the dam and such other information as the commissioner may require by regulation. A registration form shall not be deemed received by the commissioner until all information specifically required by statute or regulation is submitted. Failure to file a dam registration form by the time prescribed shall subject the owner to fines prescribed by regulation, and an inspection by the commissioner who may enter the property of the owner to obtain the requisite information. The registered owner of any dam shall notify the commissioner, by registered or certified mail, return receipt requested, of the transfer of legal title of the dam and any of changes for which the department may require notice by regulation, not later than 10 days after the date of such transfer or change. Upon receipt and approval of the dam registration form, the department shall issue a certificate of registration to each dam owner.
Section 45A. No person shall construct or materially alter a dam without applying for and receiving permit approval from the department. The approved permit shall be recorded at the registry of deeds in the county where the dam lies prior to commencement of construction. The application for a permit shall be made on such form or forms as prescribed by the commissioner. The application shall be accompanied by plans, specifications and related documents certified by a registered professional civil engineer. The commissioner shall approve or deny an application within 60 days after receipt. Construction of the dam shall be performed under the supervision of a registered professional civil engineer retained by the applicant and shall conform with the permit and its accompanying plans, specifications and related documents. The commissioner may require the engineer to submit periodic construction reports and drawings upon completion. If, after investigation of such periodic construction reports, the commissioner determines that construction does not conform to such plans and specifications, the commissioner may order the discontinuance of the project until such time as he is satisfied that the work shall be performed in accordance with such plans. The engineer shall certify, upon completion of the work, that the dam has been constructed in accordance with the permit.
Section 46. The owner of any dam shall cause to be filed with the commissioner, on or before January 1, 2004, and periodically thereafter, as required by regulation, in accordance with the hazard potential classification of the dam, as noted in the certificate of the registration, on a form or forms prescribed by the commissioner, a dam inspection form, containing information relative to the present condition, safety and adequacy of the dam and such other information as the commissioner may require by regulation, signed by a registered professional civil engineer. Failure to file a dam inspection form by the time prescribed, according to the classification of the dam, shall subject the owner to fines prescribed by regulation, and an inspection by the commissioner who may enter the property of the owner to perform his own inspection. The cost of the inspection plus interest shall be assessed against the owner. If the commissioner determines the dam to be unsafe after receiving the dam inspection form, after the commissioner's inspection, or at any other time, the commissioner may within a period of time fixed by regulation order the owner of the dam to: (1) take immediate corrective action, including the alteration, repair or removal of the dam or drawing down of the impounded water to abate a threat to safety and property; or (2) cause a thorough evaluation of the dam by a registered professional civil engineer, who shall recommend the course of action necessary to bring the dam into a safe condition and establish a time schedule by which the work shall be accomplished. The evaluation shall include such tests as the commissioner may require. The commissioner shall record notice of such order in the registry of deeds in the county where the dam lies. The cost of such recording, plus interest from the date of recording, may be assessed against the owner. If the commissioner orders an evaluation, the owner shall meet with the representatives of the commissioner to establish the course of action and schedule for completion. Notice of such work and schedule for completion shall be provided to the owner and recorded by the commissioner in the registry of deeds in the county where the dam lies. The commissioner may inspect the work to the extent necessary to establish compliance with the order. When the work has been completed, the owner shall file plans and descriptions of the work with the commissioner as actually constructed, together with any other pertinent and required data. The commissioner may make examinations and tests as he deems necessary. The costs of the examinations and tests may be assessed against the owner plus interest from the date of the assessment. Proof of prior satisfactory inspection of a dam within the appropriate time period for that dam, as defined by the inspection schedule established under regulations promulgated by the commissioner, may be deemed sufficient for the purpose of filing the dam inspection form required by this section. In no case shall this provision allow a dam to exceed the maximum time period between inspections as established by regulation.
Section 46A. When a dam has been deemed safe, removed, or constructed pursuant to an order of the commissioner; or a dam has been evaluated, constructed, repaired or altered to the satisfaction of the commissioner under a properly issued permit, the commissioner shall issue a certificate of compliance to the owner approving the dam but subject to such terms and conditions, if any, as the commissioner deems necessary for the protection of life and property. Such certificate shall be recorded by the owner in the registry of deeds in the county where the dam lies.
Section 47. (a) If the owner fails to take corrective action or fails to file an evaluation report, within the time specified in the order, as required in section 46, or if the owner of the dam cannot be determined, the commissioner may take such action as he deems necessary to repair or mitigate the unsafe condition and put the dam in an acceptable structural and operational condition in accordance with the existing rules and regulations of the department. Any emergency action taken by the owner of a dam pursuant to the commissioner's order or any emergency action taken by the commissioner may be taken without any prior filing with the conservation commission under section 40 of chapter 131. If water has been drawn off or the structure has been altered pursuant to an order by the commissioner, the impoundment shall not be refilled without approval of the commissioner. The commissioner may enter private property to take action to enforce sections 44 to 47, inclusive. The commissioner may enter into contracts to take actions, draw off water or make temporary repairs without complying with the competitive bidding requirements in chapter 149, if such action is necessary to abate a threat to safety or property.
(b) Any person performing substantial repairs without complying with sections 44 to 48A, inclusive, or who fails to comply with the provisions of this chapter or of any order, regulation or requirement of the department relative to dam safety, shall be fined an amount not to exceed $500 for each offense, to be fixed by the court. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense.
(c) The attorney general, upon notice by the commissioner, shall institute an action to recover such fine and to enjoin the alteration, construction and use of such structure.
Section 48. The commissioner shall make such orders as he may deem just as to the payment by the owner to the commonwealth or other party of the costs and expenses incurred by them under the preceding 4 sections, with interest, from the time they were paid by the commonwealth. Notice shall be given to the state treasurer and the owner or other party for the amount due to the commonwealth. Any action taken by the commissioner pursuant to section 47 shall create a lien upon the lot of land on which the dam is situated and upon the buildings and structures on said lot to secure payment for all costs incurred by the commissioner in correcting the unsafe condition, plus interest. The attorney general, upon notice by the commissioner, shall institute an action to enforce such lien.
Section 48A. During each fiscal year, the department of environmental management shall prepare a report on the overall effectiveness of the dam inspection and regulation program under sections 44 to 48, inclusive, including, but not limited to, the number of inspections conducted per year, a listing of identified deficient dams in the commonwealth and steps taken to remedy deficiencies. The department shall submit the report to the joint committee on natural resources and agriculture and to the senate and house committees on ways and means, and shall make it available to all interested parties.
Section 48B. The owner of a dam shall be responsible for liability for damage to property of others or injury to persons, including but not limited to loss of life, resulting from the operation, failure of or misoperation of a dam. The provisions of sections 44 to 48, inclusive, shall not relieve from or lessen the responsibility of any person owning, or operating a dam from any damages to persons or property caused by dam defects, nor shall the commissioner be held liable by reason of the inspections required or permits issued.
SECTION 3. The department of environmental management shall adopt initial regulations pursuant to sections 44 to 48, inclusive, of chapter 253 of the General Laws on or before April 1, 2003.