H 4396 Session 109 (1991-1992)
H 4396 General Bill, By Wilkes
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, authorize the Land Resources
Conservation Commission to assess fines for violations, and provide for the
use of civil fines collected under this Article.
02/12/92 House Introduced and read first time HJ-9
02/12/92 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-10
03/18/92 House Committee report: Favorable with amendment
Agriculture, Natural Resources and Environmental
Affairs HJ-9
03/26/92 House Debate adjourned until Thursday, April 2, 1992 HJ-2
04/02/92 House Amended HJ-20
04/02/92 House Read second time HJ-20
04/02/92 House Unanimous consent for third reading on next
legislative day HJ-20
04/03/92 House Read third time and sent to Senate HJ-2
04/06/92 Senate Introduced and read first time SJ-12
04/06/92 Senate Referred to Committee on Agriculture and Natural
Resources SJ-12
Indicates Matter Stricken
Indicates New Matter
AMENDED
April 2, 1992
H. 4396
Introduced by REP. Wilkes
S. Printed 4/2/92--H.
Read the first time February 12, 1992.
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, AUTHORIZE THE LAND
RESOURCES CONSERVATION COMMISSION TO ASSESS FINES
FOR VIOLATIONS, AND PROVIDE FOR THE USE OF CIVIL
FINES COLLECTED UNDER THIS ARTICLE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 3, Chapter 11, Title 49 of the 1976 Code is
amended to read:
"Article 3
Dams and Reservoirs Safety Act
Section 49-11-110. This article shall may be cited
as the `Dams and Reservoirs Safety Act'.
Section 49-11-120. Unless the context otherwise requires, the
following definitions shall be as used in this article:
(1) `Alterations' and `repairs' mean only such the
alterations or repairs which may affect the safety of a dam or reservoir.
(2) `Appurtenant works' include, but are not limited
to, such structures such as spillways, either in
the dam or separate therefrom 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 any an artificial barrier,
together 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, except.
However, this shall does not include a
dam:
(a) Any dam which is or shall be 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 or shall have 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) Any dam owned or operated by any
a department or an agency of the federal
government.;
(c) Any dam 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
deemed considered appropriate by the
commission.;
(d) Any dam 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 any of 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 shall include
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 shall must be performed
by a qualified registered professional engineer.
(8) `Enlargement' means any 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 any a reservoir which
contains or shall contain 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 shall
make 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 such the dams; to,
prevent injuries to persons and damage to property;, and
to confer upon the Land Resources Conservation
commission the regulatory authority to accomplish such
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 as provided for in this article shall be
are the responsibility of the commission. The commission may
employ such engineers and technicians as it
deems considers necessary to implement this article for
which appropriations are available.
Section 49-11-150. The owners owner of
any a dam or reservoir heretofore or hereafter
constructed in this State are solely is responsible for
maintaining such 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. If in the judgment of the Commission a dam
or reservoir is or has become unsafe and is dangerous to life or
property, The commission shall may issue an order
to directing the owner of such a dam or
reservoir to make at his expense such the necessary
maintenance, alteration, repair, or removal as may be
necessary to protect life and property from injury. 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 any 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 such the dam or reservoir to
provide data, records, and design plans of the structure as may be
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 prior to
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 owner's
owners' dam or reservoir is a danger to life or property stating
the nature of the complaint; unsafe and
(2) a preliminary inspection has been made and the
with findings therein.
(E) The owner of a dam or reservoir which has been
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 such the findings are
delivered. The owner may submit written or present oral evidence which
shall 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 shall may
be granted when there appears substantial and immediate danger of dam
failure.
Section 49-11-190. (A) The commission shall
immediately shall order remedial measures necessary to protect
life or property if the condition of any 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
any a dam or reservoir capable of danger to life or
property.
(B) In applying emergency measures the commission shall
have has the following limited powers to order the owner
to:
(1) lower the water level by releasing water from the reservoir;
(2) completely empty the reservoir
completely;
(3) take such other steps as may be essential to
safeguard life and property.
(C) In case of For an emergency where the owner
finds repairs are necessary to safeguard life or property, he may start
such the repairs immediately but shall notify the
commission at once of the proposed repair and work under way.
(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 such actions
as may be necessary to provide protection to life or property
including removal of the dam. The commission thereafter may
recover from the owner, in the name of the State, the expenses incurred
in taking such the action in the same manner as
debts are recoverable by law.
Section 49-11-200. (A) The construction of any a
new dam or reservoir or enlargement, removal, or repair
shall may not hereafter be commenced
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 is such to
render any of renders the requirements of Section
49-11-200(a) 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 shall must be filed with the commission upon
forms to be provided by it, except that only one application need
be filed for a dam and the reservoir which will contain the water
impounded by the dam.
The application shall must be accompanied by maps
and plans and specifications of such a character and size
and setting forth such pertinent details and dimensions as
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. Every An applicant for approval
of a dam or reservoir subject to the provisions of Section
49-11-200 shall 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 such 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 their
its authorized agents may inspect the dam or reservoir and
surrounding area to determine the safety of such the
structure.
(B) Any An authorized member, agency,
or representative of the commission may enter any state or
private lands and natural or artificial waterways in the State for the
purpose of discharging 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 the
provisions of this article.
(D) The commission shall issue all orders, permits, or
licenses set forth in this article.
Section 49-11-250. Nothing contained in this article and no
action or failure to act under this article shall be construed:
(1) to impose any imposes liability on the
State, the commission, districts, or any
an agency, officer or its officers or employees
thereof for the recovery of damages caused by such
the action or failure to act; or
(2) to relieve 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) Any A person
violating the provisions of this article shall be deemed
is guilty of a misdemeanor and, upon conviction,
shall must be punished by a fine of
fined not less than one hundred dollars nor more than
five hundred dollars. Each day the violation continues after notice to
take corrective action shall constitute 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) In addition, Upon a violation of
any provisions of this article or the related
regulations promulgated under it, the commission may request
the Attorney General to bring injunctive relief in the name of the
commission.
(D) Any A person against whom
any a final order or decision has been made, except
in cases of emergency as for emergencies specified in
Section 49-11-190, shall have a right of may appeal
under the Administrative Procedures Act, Sections 1-23-110 to
1-23-400. The burden of proof shall be is on the
party attacking any an order or a decision of
the commission to show that such 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."
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.
SECTION 3. This act takes effect upon approval by the Governor.
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