96306-2:n:01/28/2008:MCS/aw LRS2008-337




HB454
By Representatives Wood, Canfield, McCutcheon, Laird, Bridges and Fite
RFD Commerce
Rd 1 14-FEB-08


SYNOPSIS:This bill would provide for the inventory and classification of dams by the Water Resources Division of the Alabama Department of Economic and Community Affairs; to define terms associated with the safety of dams; to provide that no action for damages could be brought against the state by reason of any action taken or not taken by the state pursuant to this act; to authorize the promulgation of rules; and to provide for criminal and civil violations.
 Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.
 The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL
TO BE ENTITLED
AN ACT

To provide for the inventory and classification of dams by the Water Resources Division of the Alabama Department of Economic and Community Affairs for the purpose of assuring the safety of state dams; to define certain terms associated with dams and dam safety; to provide that no action for damages shall be bought against the state by reason of any action taken or not taken by the state pursuant to this act; to authorize the promulgation of rules; to provide criminal and civil penalties for violations; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the "Alabama Dam Inventory and Classification Act."

Section 2. (a) It is the purpose of this act to provide for the inventory and classification of dams in order to protect the health, safety, and welfare of all the citizens of the state.

(b) The Legislature finds and declares that the inventorying and classification of dams is properly a matter for regulation under the police powers of the state for the safety, protection, and welfare of the citizens of Alabama.

Section 3. As used in this act, the following terms shall have the following meanings:

(1) ABANDON or ABANDONMENT. To render a dam non-impounding by dewatering and making the dam incapable of impounding water.

(2) ADVERSE CONSEQUENCES. Negative impacts that may occur upstream, downstream, or at locations remote from a dam as a direct and proximate result of the existence or operation of the dam. The primary concerns for adverse consequence are loss of human life, loss of critical infrastructure, property damage, and lifeline disruption.

(3) ALTERATIONS or REPAIRS. Alterations, modifications, or repairs to existing dams or appurtenant works as may directly affect the safety of the dam or reservoir, as determined by the office.

(4) APPROVAL. Authorization in writing issued by the director to an owner who has applied to the office for permission to construct, reconstruct, enlarge, repair, alter, modify, remove, maintain, operate, or abandon a dam, and which specifies the conditions or limitations under which work is to be performed by the owner or under which approval is granted.

(5) APPURTENANT WORKS. The term includes, but is not limited to, such structures as spillways, either in the dam or separate therefrom; the reservoir and its rim; low-level outlet works; and liquid conduits such as tunnels, pipelines, or penstocks, either through the dam or its abutments.

(6) BREACH. Partial removal of a dam, creating a channel through the dam.

(7) CERTIFICATE. For a high hazard potential dam the term means a written authorization issued by the director to construct or operate, or both, a dam. For all other dams the term means a written acknowledgement of dam construction or removal solely for inventorying purposes.

(8) CONSTRUCT or CONSTRUCTION. The design, building, alteration, reconstruction, or enlargement of any dam for the impoundment or diversion of water or liquid substance and shall include any activity which, other than routinely as part of an approved maintenance program, repairs or restores the dam, or alters its design, shape, or structural characteristics.

(9) CRITICAL INFRASTRUCTURE. Systems and assets associated with or impacted by dams or impoundments, whether physical or virtual, so vital to Alabama that the incapacity or destruction of such a system or asset would have a debilitating impact on security, economic stability, public health or safety, or any combination of those matters, consistent with the "Critical Infrastructure Protection Act of 2001."

(10) DAM. Any artificial barrier, including appurtenant works, which impounds or diverts water, wastewater, or liquid-borne materials and which meets any of the following criteria:

a. Has an impounding capacity at maximum water storage elevation of at least 50 acre-feet.

b. Is 25 feet or more in height.

c. Will create a probable loss of human life in the event of failure or improper operation, regardless of height or storage capacity.

d. Will create a probable loss of critical infrastructure in the event of failure or of improper operation, regardless of height or storage capacity.

(11) DIRECTOR. The Director of the Office of Water Resources or his or her designee. The director or designee must be an engineer. The director must have a current license to practice engineering in the State of Alabama.

(12) ENGINEER. A qualified professional engineer. The term qualified professional engineer as used in this act is intended to mean an individual who has a background in civil engineering and meets all the following qualifications:

a. Is a licensed professional engineer in the state.

b. Is competent in areas related to dam investigation, design, construction, and operation for the type of dam being investigated, designed, constructed, or operated.

c. Has at least seven years of relevant experience in areas such as investigation, design, construction, reconstruction, enlargement, repair, alteration, maintenance, operation, breach, removal, or abandonment of dams.

d. Either (i) understands adverse dam incidents, failures, and the potential causes and consequences of failures; or (ii) is the state conservation engineer of the Department of Conservation and Natural Resources.

(13) ENLARGE or ENLARGEMENT. Any change in or addition to an existing dam or impoundment which raises or may raise the maximum water storage elevation of the liquid impounded by the dam or reservoir.

(14) HAZARD POTENTIAL. Possible adverse consequences that result from the release of water or stored contents due to failure or improper operation of the dam or appurtenant works. The hazard potential classification of a dam does not reflect in any way on the current condition of the dam and its appurtenant works, such as, but not limited to, the safety, structural integrity, or flood routing capacity.

(15) HEIGHT. The term means either (i) the distance from the natural bed of the impoundment, stream, or watercourse measured at the downstream toe of the dam to the maximum water storage elevation; or (ii) the distance from the lowest elevation of the outside limit of the dam, if the dam is not across a stream channel or watercourse, to the maximum water storage elevation.

(16) HIGH HAZARD POTENTIAL DAM. A dam assigned the high hazard potential classification where failure or improper operation will cause probable loss of human life.

(17) LOCAL UNIT OF GOVERNMENT. Any political subdivision of this state including, but not limited to, a county, city, town, or municipality, if the political subdivision provides local governmental services in a geographically limited area of this state as its primary purpose and it has the power to act primarily on behalf of that area.

(18) LOW HAZARD POTENTIAL DAM. A dam not assigned the moderate or high hazard potential classification.

(19) MAXIMUM WATER STORAGE ELEVATION. The elevation of the top of the dam.

(20) MODERATE HAZARD POTENTIAL DAM or SIGNIFICANT HAZARD POTENTIAL DAM. A dam assigned the moderate hazard potential classification where failure or improper operation results in no probable loss of human life but will cause probable loss of critical infrastructure.

(21) OFFICE. The Office of Water Resources, a division of the Alabama Department of Economic and Community Affairs or its successor.

(22) OPERATE or OPERATION. To take actions to control the impoundment or diversion of a liquid substance by a dam.

(23) OWNER. Any person who owns, controls, operates, maintains, or manages or proposes to construct, reconstruct, enlarge, repair, alter, remove, or abandon a dam or reservoir.

(24) PERSON. Any and all persons, natural or artificial, including any individual, entity, firm, association, organization, partnership, business, trust, corporation, company, any federal agency, authority, or corporation created by the United States of America, and the state and all political subdivisions, regions, districts, municipalities, counties, and public agencies thereof.

(25) PROBABLE LOSS OF CRITICAL INFRASTRUCTURE. The loss of critical infrastructure is likely to occur, is reasonably expected to occur, or is the actual result of any action or inaction.

(26) PROBABLE LOSS OF HUMAN LIFE. Loss of human life that will likely occur, is reasonably expected to occur, or is the actual result of any action or inaction.

(27) RECONSTRUCTION. Removal and replacement of an existing dam.

(28) REMOVE or REMOVAL. Complete elimination of a dam embankment or appurtenant works, or both.

(29) RESERVOIR or IMPOUNDMENT. Any basin which contains or will contain impounded water, wastewater, or liquid-borne materials by virtue of its having been impounded by a dam.

(30) RESPONSIBLE AUTHORITY. Those state, county, city, or other offices that are charged with maintaining public safety and that are listed in any emergency action plan required by this act or any rule promulgated pursuant to this act.

(31) RULES. The most recent policies, requirements, regulations, administrative rules, or standards adopted by the office pursuant to the Alabama Administrative Procedure Act, codified as Chapter 22, Title 41, Code of Alabama 1975, as amended, in order to enforce this act.

(32) STATE. The State of Alabama.

(33) SURFACE MINING ACT. Chapter 16, Title 9 of the Code of Alabama 1975, as amended.

Section 4. (a) In addition to any other powers and duties provided in this act, the director shall perform the following duties:

(1) Exercise general supervision over the administration and enforcement of this act and the rules promulgated under this act.

(2) Advise, consult, cooperate, contract, and enter into cooperative agreements with persons, local units of government, and other governmental agencies or committees, including, but not limited to, the State Soil and Water Conservation Committee, the Alabama Department of Environmental Management, the Department of Conservation and Natural Resources, the Alabama Department of Transportation, the Alabama Association of Conservation Districts, or the Unites States Army Corps of Engineers for the purposes of carrying out this act.

(3) Take such other actions as may be necessary to carry out this act.

(4) Specify conditions under which any employee of the office or its agents may enter upon lands of owners of dams.

(5) Direct, conduct, and supervise investigations, as the director deems necessary to carry out the duties as prescribed in this section.

(b) In the performance of its duties, the office shall establish, adapt, modify, and repeal, by the promulgation of rules, such policies, requirements, conditions, or standards governing the inventory and classification of dams covered under this act, including, but not limited to, the following:

(1) Standards to govern the inventory of dams.

(2) Report necessary dam information to the National Performance of Dams Program, as requested.

(3) Report inventory and other necessary information to the National Inventory of Dams, as requested.

Section 5. (a) The office shall inventory the dams in the state and classify each dam into one of the following categories:

(1) Low hazard potential.

(2) Moderate hazard potential.

(3) High hazard potential.

(b) The office may gather necessary updated information regarding the characteristics of a dam and its surroundings in order to verify classification.

(c) The office may use information furnished to it by other persons to accomplish the purpose of this act and this section including, but not limited to, the classification of dams as set forth in subsection (a).

Section 6. (a) The following low hazard potential dams are not required to be included in the inventory of dams maintained pursuant to this act:

(1) Any dam which is less than six feet in height, regardless of its storage capacity.

(2) Any dam which has an impounding storage capacity at maximum water storage elevation of less than 15 acre-feet, regardless of its height.

(b) The following dams shall be exempt from all regulatory requirements of this act, except as necessary to maintain the inventory of dams pursuant to this act:

(1) Any dam owned and operated by any department or agency of the United States government, provided those dams are regulated in a manner that meets or exceeds the requirements of this act.

(2) Any dam licensed by the Federal Energy Regulatory Commission, or for which a license application is pending with the Federal Energy Regulatory Commission.

(c) Any dam regulated and permitted under the Surface Mining Act is exempt from this act so long as the dam is subject to regulation by the Surface Mining Act. However, if a dam so constructed is classified by the director as a high hazard potential dam, the owner, upon the completion of the mining activity in connection with which the dam was constructed, shall either drain and reclaim the impoundment formed by the dam pursuant to the mined land use plan approved under the Surface Mining Act or stabilize the impoundment as a lake pursuant to the mined land use plan and the rules promulgated under this act. If the impoundment is reclaimed as a lake and the dam which created the impoundment remains in place as a high hazard potential dam, then before the lake is deemed to be reclaimed so as to release the owner from his or her obligations under the Surface Mining Act, the owner shall certify to the director and the owners of the properties on which the high hazard potential dam is located that the high hazard potential dam is in full compliance with this act.

(d) The owners of exempt dams shall be required to submit information to the agency in accordance with rules promulgated under this act for purposes of maintaining the inventory.

Section 7. (a) The director, or any authorized agent or contractor, is authorized and shall be permitted by the owner to make a visual inspection of a high hazard potential dam.

(b) This act shall not be construed as exempting any existing dam from compliance with applicable engineering design standards or requirements.

(c) With regard to moderate and low hazard potential dams, the office is not required to perform structural inspections of a moderate or low hazard potential dam.

Section 8. (a) It shall be unlawful for any person to refuse entry or access to any authorized representative of the office who requests entry for purposes of fulfilling the requirements of this act and who presents appropriate identification. It shall also be unlawful to obstruct, hamper, or interfere with any representative while in the process of carrying out his or her official duties, including, but not limited to, classification determination pursuant to this act and the rules promulgated under this act.

(b) Any person who is aggrieved or adversely affected by an order or action of the director or the office may seek a review of the order or action in accordance with the Alabama Administrative Procedure Act, codified as Chapter 22, Title 41, Code of Alabama 1975, as amended, in order to enforce this act.

Section 9. (a) Nothing in this act shall be construed to constitute a waiver of the sovereign immunity of the state or the office.

(b) No legal or administrative action shall be brought against the state, the office, the director, or any member, officer, or employee of the state or the office for damages sustained through the partial or total failure of any dam or for any action or inaction or responsibility pursuant to this act, including specifically, but not limited to, any action taken or not taken by the office, the director, or the employees, officers, or representatives of the office.

(c) Nothing in this act and any order, action, or advice of the director or the office or any representative thereof may be construed to relieve an owner of the legal duties, obligations, or liabilities incident to the ownership or operation of the dam.

Section 10. Any person who engages in any violation of this act or the rules promulgated under this act shall be guilty of a Class C misdemeanor. Each day of a continued violation shall constitute a separate offense.

Section 11. As an alternative to criminal enforcement pursuant to Section 10, the director may impose civil penalties in accordance with the following provisions:

(1) Whenever the director has reason to believe that any person has violated any provision of this act or rules adopted pursuant to this act, or that a person has negligently or willfully failed or refused to comply with any final order of the director, the director may cause a hearing to be conducted before a hearing officer appointed by the office. Upon a finding that a person has violated any provision of this act, the rules promulgated under this act, or any certificate condition or limitation established pursuant to this act, or that a person has negligently or willfully failed or refused to comply with a final administrative order of the director, the hearing officer shall issue a written decision. The hearing and any administrative or judicial review thereof shall be conducted in accordance with applicable Alabama law.

(2) All civil penalties recovered under this section by the office or by the Attorney General shall be deposited into the State Treasury to the credit of the State General Fund, except that portion representing the reasonable costs incurred to recover the penalties. That portion representing recovery costs shall be deposited to the credit of the operating fund of the office or the Attorney General, whichever incurred such costs.

Section 12. Any owner whose dam is in existence as of the effective date of this act will be required to comply with this act and the rules promulgated under this act once notification has been given as to the classification of the dam by the agency.

Section 13. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 14. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 15. All laws or parts of laws which conflict with this act are repealed and superseded by this act.

Section 16. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.


Economic and Community Affairs Department
Water and Waterways
Popular Names
Dams and Reservoirs
Crimes and Offenses
Criminal Law and Procedure
Civil Immunity
State of Alabama
Safety
Public Safety
Water Resources Division
Office of Water Resources