S*1314(Rat #0471, Act #0406 of 1992)  General Bill, By Land
 A Bill to amend Article 3, Chapter 11, Title 49, Code of Laws of South
 Carolina, 1976, relating to the Dams and Reservoirs Safety Act, so as to
 provide additional requirements for owners of dams or reservoirs regarding
 transfer of ownership, maintenance, and operation and requirements for
 construction of new dams and reservoirs, provide related requirements for the
 Land Resources Conservation Commission, authorize the Commission to assess
 fines for violations, authorize the Commission to institute legal action
 instead of the Attorney General, provide for the use of civil fines collected
 under this Article, and provide for application of certain new requirements to
 dams or reservoirs constructed before and after the effective date of this
 Act.-amended title

   02/20/92  Senate Introduced and read first time SJ-9
   02/20/92  Senate Referred to Committee on Agriculture and Natural
                     Resources SJ-9
   03/31/92  Senate Committee report: Favorable with amendment
                     Agriculture and Natural Resources SJ-39
   04/22/92  Senate Amended SJ-16
   04/22/92  Senate Read second time SJ-16
   04/23/92  Senate Read third time and sent to House SJ-29
   04/28/92  House  Introduced and read first time HJ-29
   04/28/92  House  Referred to Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-30
   04/28/92  House  Recalled from Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-138
   05/12/92  House  Read second time HJ-22
   05/13/92  House  Read third time and enrolled HJ-9
   05/27/92         Ratified R 471
   06/01/92         Signed By Governor
   06/01/92         Effective date 06/01/92
   06/01/92         Act No. 406
   07/08/92         Copies available

AN ACT TO AMEND ARTICLE 3, CHAPTER 11, TITLE 49, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DAMS AND RESERVOIRS SAFETY ACT, SO AS TO PROVIDE ADDITIONAL REQUIREMENTS FOR OWNERS OF DAMS OR RESERVOIRS REGARDING TRANSFER OF OWNERSHIP, MAINTENANCE, AND OPERATION AND REQUIREMENTS FOR CONSTRUCTION OF NEW DAMS AND RESERVOIRS, PROVIDE RELATED REQUIREMENTS FOR THE LAND RESOURCES CONSERVATION COMMISSION, AUTHORIZE THE COMMISSION TO ASSESS FINES FOR VIOLATIONS, AUTHORIZE THE COMMISSION TO INSTITUTE LEGAL ACTION INSTEAD OF THE ATTORNEY GENERAL, PROVIDE FOR THE USE OF CIVIL FINES COLLECTED UNDER THIS ARTICLE, AND PROVIDE FOR APPLICATION OF CERTAIN NEW REQUIREMENTS TO DAMS OR RESERVOIRS CONSTRUCTED BEFORE AND AFTER THE EFFECTIVE DATE OF THIS ACT.

Be it enacted by the General Assembly of the State of South Carolina:

Dams and Reservoirs Safety Act, revised

SECTION 1. Article 3, Chapter 11, Title 49 of the 1976 Code is amended to read:

"Article 3

Section 49-11-110. This article may be cited as the `Dams and Reservoirs Safety Act'.

Section 49-11-120. Unless the context otherwise requires, as used in this article:

(1) `Alterations' and `repairs' mean only the alterations or repairs which may affect the safety of a dam or reservoir.

(2) `Appurtenant works' include, but are not limited to, structures such as spillways, either in the dam or separate from it, low-level outlet works, and water conduits.

(3) `Commission' means the State Land Resources Conservation Commission or its staff or agents.

(4) `Dam' means an artificial barrier with appurtenant works, including, but not limited to, dams, levees, dikes, or floodwalls for the impoundment or diversion of waters or other fluids where failure may cause danger to life or property. However, this does not include a dam:

(a) less than twenty-five feet in height from the natural bed of the stream or watercourse measured at the downstream toe of the dam, or less than twenty-five feet from the lowest elevation of the outside limit of the dam, if it is not across a stream channel or watercourse, to the maximum water storage elevation and has an impounding capacity at maximum water storage elevation of less than fifty-acre feet unless a situation exists where the hazard potential as determined by the commission is such that dam failure or improper reservoir operation may cause loss of human life;

(b) owned or operated by a department or an agency of the federal government;

(c) owned or licensed by the Federal Energy Regulatory Commission, the South Carolina Public Service Authority, the Nuclear Regulatory Commission, the United States Corps of Engineers, or other responsible federal licensing agencies considered appropriate by the commission;

(d) upon which the South Carolina Department of Highways and Public Transportation or county or municipal governments have accepted maintenance responsibility for a road or highway where that road or highway is the only danger to life or property with respect to failure of the dam.

(5) `Districts' means the soil and water conservation districts of this State. For the purposes of this article the districts may serve as agents and advisors to the commission.

(6) `Danger to life or property' means a situation exists where the hazard potential as determined by the commission is such that dam failure or improper reservoir operation may cause injury to persons, loss of human life, or damage to property.

(7) `Detailed inspection' means all studies, investigations, and analyses necessary to evaluate conclusively the structural safety and hydraulic capacity of a dam or reservoir and appurtenant works. This inspection includes, but is not limited to, soil analyses, concrete or earth stability analyses, materials testing, foundation explorations, and hydrologic analyses, including basin studies and flood potential. This inspection must be performed by a qualified registered professional engineer.

(8) `Enlargement' means a change in or an addition to an existing dam or reservoir which raises or may raise the water storage elevation of the water impounded by the dam or reservoir.

(9) `Owner' means those who own, control, operate, maintain, manage, or propose to construct a dam or reservoir.

(10) `Removal' means destruction or breaching of an existing dam or drainage of water impoundment or reservoir.

(11) `Reservoir' means a reservoir which contains the impoundment of water by a dam or reservoir.

(12) `Order' means a written document prepared and issued by the commission which mandates specific actions to be accomplished by a dam owner within a specified time frame. Failure to comply makes the owner subject to penalties outlined in Section 49-11-260.

(13) `Unsafe' means the condition of the dam is such that repairs or alterations are necessary to reduce the risk of dam failure.

Section 49-11-130. It is the purpose of this article to provide for the certification and inspection of certain dams in South Carolina in the interest of public health, safety, and welfare in order to reduce the risk of failure of the dams, prevent injuries to persons and damage to property, and confer upon the commission the regulatory authority to accomplish the purposes.

Section 49-11-140. The authority for the safe maintenance of the dams and reservoirs of this State and the powers of inspection and certification provided in this article are the responsibility of the commission. The commission may employ engineers and technicians it considers necessary to implement this article for which appropriations are available.

Section 49-11-150. The owner of a dam or reservoir constructed in this State solely is responsible for maintaining the dam or reservoir in a safe condition throughout the life of the structure. The owner of a dam or reservoir shall inform the commission in writing within thirty days after title to the dam or reservoir legally has been transferred from his ownership. The notice must include the name and address of the new owner. The owner of a dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as a high or significant hazard under existing regulations, shall provide the commission a current emergency action plan in the format the commission by regulation requires.

Section 49-11-160. The commission may issue an order directing the owner of a dam or reservoir to make at his expense the necessary maintenance, alteration, repair, or removal upon a finding that the dam or reservoir:

(a) is or has become unsafe and is dangerous to life or property;

(b) is not maintained in good repair or operating condition; or

(c) is not maintained or operated in accordance with the terms and conditions of the certificate of completion and operation issued by the commission.

Section 49-11-170. (A) The existence of a dam which is not maintained in good repair or operating condition or may be unsafe and a danger to life or property may be brought to the attention of the commission by complaint, staff, or authorized investigation or by other means.

(B) Upon staff or other authorized investigations or upon receipt of a written private complaint alleging that the person or property of the complainant is endangered by the construction, maintenance, operation, or condition of a dam or reservoir, the commission shall cause a preliminary inspection of the structure and downstream development to be made by field observations to determine if the complaint is meritorious. The commission may require the owner of the dam or reservoir to provide data, records, and design plans of the structure specified by regulations. (C) If upon the preliminary inspection it is determined that the dam or reservoir is unsafe and is dangerous to life or property, the commission may order the owner at his expense to make a detailed inspection of the dam and reservoir and surrounding area and to provide to the commission within a time frame specified by the commission plans prepared by a qualified registered professional engineer for correction of all deficiencies of the dam or to provide to the commission plans and specifications for removal of the dam. In either instance the plans must be approved by the commission before implementation and implemented within a time frame specified by the commission. If upon inspection it is determined that the dam or reservoir has not been maintained in good repair or operating condition, the commission may order the owner at his expense to accomplish the necessary maintenance or to obtain a permit for removal and to remove the dam within a time frame specified by the commission.

(D) The commission shall give the owner notice of its action when:

(1) a complaint has been filed alleging that the owners' dam or reservoir is unsafe and a danger to life or property stating the nature of the complaint;

(2) a preliminary inspection has been made with findings.

(E) The owner of a dam or reservoir determined through a preliminary inspection not to be maintained in good repair or operating condition or to be unsafe and a danger to life or property may request a hearing before the commission within thirty days after notice of the findings are delivered. The owner may submit written or present oral evidence which must be considered by the commission in the issuance of the order.

Section 49-11-180. (A) The commission may solicit voluntary compliance by the owner of a dam or reservoir found to be unsafe and a danger to life or property to take remedial steps necessary to render the dam safe.

(B) Extension of time to complete work specified in an order may be granted by the commission. No extension may be granted when there appears substantial and immediate danger of dam failure.

Section 49-11-190. (A) The commission immediately shall order remedial measures necessary to protect life or property if the condition of a dam or reservoir is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of a repair order or passing or imminent floods threaten overtopping erosion or destruction of a dam or reservoir capable of danger to life or property.

(B) In applying emergency measures the commission has the following limited powers to order the owner to:

(1) lower the water level by releasing water from the reservoir;

(2) empty the reservoir completely;

(3) take other steps essential to safeguard life and property.

(C) For an emergency where the owner finds repairs are necessary to safeguard life or property, he may start the repairs immediately but shall notify the commission at once of the proposed repair and work underway.

(D) When the owner fails to comply with the emergency order or cannot be ascertained or found, the commission or its authorized agents may enter and immediately take actions necessary to provide protection to life or property, including removal of the dam. The commission may recover from the owner, in the name of the State, the expenses incurred in taking the action in the same manner debts are recoverable by law.

Section 49-11-200. (A) The construction of a new dam or reservoir or enlargement, removal, or repair may not begin until the owner has applied for and obtained from the commission written approval of plans and specifications.

(B) Where the location and size of the dam or reservoir renders the requirements of subsection (A) and Section 49-11-210 unnecessary, the commission may grant approval and waive certain nonessential requirements in instances, including, but not limited to, small dams and reservoirs for agricultural, fish or wildlife, or recreational uses on private lands and of no danger to other life or property downstream.

Section 49-11-210. A separate application for each dam or reservoir and all enlargements, removals, or repairs to existing dams or reservoirs must be filed with the commission upon forms to be provided by it, except only one application need be filed for a dam and the reservoir which will contain the water impounded by the dam.

The application must be accompanied by maps and plans and specifications of a character and size and setting forth pertinent details and dimensions the commission by regulation requires. The application for construction of a new dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as high or significant hazard under existing regulations, must include a fully-developed emergency action plan in a format the commission by regulation requires. After the dam or reservoir is constructed, this emergency action plan must be updated by the owner of the dam or reservoir each time it becomes noncurrent.

Section 49-11-220. An applicant for approval of a dam or reservoir subject to Section 49-11-200 also shall file with the commission a design approved by a registered professional engineer legally qualified in the State.

Dams designed by the USDA-Soil Conservation Service or other federal agencies do not require certification by a registered professional engineer.

Section 49-11-230. (A) The commission may make necessary inspections during construction of new dams and reservoirs, enlargements, removal, and repairs of dams and reservoirs and during work done pursuant to repair orders to assure compliance with the approved plans and specifications or provisions of the order.

(B) If water is to be released during the construction, repair, or removal, the commission shall specify the maximum discharge rate allowable to avoid endangering or causing injury to downstream owners.

Section 49-11-240. (A) The commission or its authorized agents may inspect the dam or reservoir and surrounding area to determine the safety of the structure.

(B) An authorized member, agency, or representative of the commission may enter state or private lands and natural or artificial waterways in the State to discharge the duties set forth in this article.

(C) The commission shall formulate reasonable regulations, including, but not limited to, minimum safety design standards for impoundments, safety inspection standards, water discharge, or drawdown rates and levels in unsafe impoundments and for other purposes necessary to administer this article.

(D) The commission shall issue all orders, permits, or licenses set forth in this article.

Section 49-11-250. Nothing in this article and no action or failure to act under this article:

(1) imposes liability on the State, the commission, districts, or an agency or its officers or employees for the recovery of damages caused by the action or failure to act; or

(2) relieves the owner or operator of a dam or reservoir of the duties, obligations, responsibilities, or liabilities arising from or incident to the ownership or operation of a dam or reservoir.

Section 49-11-260. (A) A person violating this article is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred nor more than five hundred dollars. Each day the violation continues after notice to take corrective action is a separate offense.

(B) The commission may assess an administrative fine of not less than one hundred nor more than one thousand dollars against a person who violates this article or an order issued or regulation promulgated pursuant to it. In determining the amount of the fine the commission shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage. Fines assessed under this subsection may be appealed to the commission who may reduce them based on information presented at the appeal hearing.

(C) Upon a violation of this article or related regulations the commission may institute legal action to obtain injunctive relief in the name of the commission.

(D) A person against whom a final order or decision has been made, except for emergencies specified in Section 49-11-190, may appeal under the Administrative Procedures Act. The burden of proof is on the party attacking an order or a decision of the commission to show that the order is unlawful or unreasonable.

(E) Civil fines collected under this article must be deposited in a special account of the commission to fund educational activities relating to dams and reservoirs safety, including, but not limited to, workshops, seminars, manuals, and brochures."

Application of Section 49-11-150

SECTION 2. The requirements of Section 49-11-150 of the 1976 Code amended in Section 1 apply to dams or reservoirs constructed before and after the effective date of this act.

Time effective

SECTION 3. This act takes effect upon approval by the Governor.

Approved the 1st day of June, 1992.