GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	2 

HOUSE BILL 483
Committee Substitute Favorable 4/8/93

Short Title:  Dam Safety Law Improvements.	(Public)
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Sponsors:
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Referred to:  
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March 24, 1993

A BILL TO BE ENTITLED
AN ACT TO AMEND THE DAM SAFETY LAW OF 1967 TO MAKE IT MORE EFFECTIVE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-215.24 reads as rewritten:
"§ 143-215.24.  Declaration of purpose.
It is the purpose of this Part to provide for the certification and inspection of dams in the interest of public health, safety, and welfare, in order to reduce the risk of failure of dams; to prevent injuries to persons, damage to downstream property and loss of reservoir storage; and to ensure maintenance of minimum stream flows below such dams of adequate quantity and quality."
Sec. 2.  G.S. 143-215.25(2) reads as rewritten:
"(2)	'Dam' means the dam (and appurtenant works) for the impoundment or diversion of water, except that it shall not include:
a.	Any dam constructed by the United States Army Corps of Engineers, the Tennessee Valley Authority, or any other department or agency of the United States government, when such department or agency designed or approved plans and supervised construction.
b.	Any dam or flood retarding structure constructed with financial assistance from the United States Soil Conservation Service, when said agency designed or approved plans and supervised construction.
c.	The exemptions conferred by items a and b of this subdivision shall cease when the supervising federal agency relinquishes authority for the operation and maintenance to a local entity.
d.	Any dam licensed by the Federal Energy Regulatory Commission, or for which a license application is pending with the Federal Energy Regulatory Commission, or for use in connection with electric generating facilities to be constructed pursuant to a certificate of public convenience and necessity from the North Carolina Utilities Commission, provided that small power producers as defined in G.S. 62-3(27a) shall be subject to the provisions of this Part even though certified by the North Carolina Utilities Commission.
e.	Any dam under a single private ownership, providing protection only to land or other property under such ownership, and posing no threat to life or property below the property under such single ownership.
f.	Any dam less than 15 feet in height or whose impoundment capacity is less than 10 acre-feet, unless failure of the dam would cause: (i) loss of life; (ii) property damage in excess of two hundred thousand dollars ($200,000); or (iii) serious downstream environmental damage in the case of dams impounding industrial or municipal wastes."
Sec. 3.  G.S. 143-215.25(4) reads as rewritten:
"(4)	'Minimum stream flows' or 'minimum flows' means stream flows of a quantity and quality sufficient in the judgment of the Department to meet and maintain stream classifications and water quality standards established by the Department under G.S. 143-214.1 and applicable to the waters affected by the project under consideration, and to maintain adequate aquatic habitat for the length of the stream affected.  In order to ensure that such classifications, standards, and habitat requirements shall be met and maintained, the Department may impose such conditions and requirements in orders and written approvals issued under this Part as, in its judgment, may be necessary to this end, including conditions and requirements relating to the release or discharge of designated flows from impoundments, the location or design of water outlets for impoundments and of water intakes, the amount and timing of withdrawal of water from a reservoir, and the construction of submerged weirs or other devices designed to satisfy minimum stream flow requirements."
Sec. 4.  G.S. 143-215.26 reads as rewritten:
"§ 143-215.26.  Construction of dams.
(a)	No person shall begin the construction of any dam until at least 10 days after filing with the Department a statement concerning its height, impoundment capacity, purpose, location and other information required by the Department.  Persons proposing construction described in G.S. 143-215.25, sub-subdivisions (2)e and f shall comply with malaria control requirements of the Department.  If on the basis of this information the Department is of the opinion that the proposed dam is not exempt from the provisions of this Part, it shall so notify the applicant, and construction shall not be commenced until a full application is filed by the applicant and approved as provided by G.S. 143-215.29.  The Department may also require of applicants so notified the filing of such additional information as it deems necessary, including, but not limited to, streamflow and rainfall data, maps, plans and specifications.  Every applicant for approval of a dam subject to the provisions of this Part shall also file with the Department the certificate of an engineer or contractor legally qualified in the State of North Carolina that he is responsible for the design of the dam, and that said design is safe and adequate.  Should the applicant have a professional engineering staff the certificate of a registered professional engineer member of that staff legally qualified in the State of North Carolina shall constitute compliance.
(b)	When an application has been completed pursuant to the preceding subsection, the Department shall refer copies of the completed application papers to State and local agencies as it deems appropriate for review and comment."
Sec. 5.  G.S. 143-214.28A reads as rewritten:
"§ 143-215.28A.  Application fees.
(a)	In accordance with G.S. 143-215.3(a)(1a), the Commission may establish a fee schedule for processing applications for approvals of construction or removal of dams issued under this Part. In establishing the fee schedule, the Commission shall consider the administrative and personnel costs incurred by the Department for processing the applications and for related compliance activities. The total amount of fees collected in any fiscal year may not exceed one-third of the total personnel and administrative costs incurred by the Department for processing the applications and for related compliance activities in the prior fiscal year. An approval fee may not exceed the larger of two hundred dollars ($200.00) or two percent (2%) of the actual cost of construction or removal of the applicable dam. The provisions of G.S. 143-215.3(a)(1b) do not apply to these fees.
(b)	The Dam Safety Account is established.  The Dam Safety Account shall be a nonreverting account within the Department and shall be administered by the State Treasurer.  The Dam Safety Account shall be treated as a special trust fund and shall be credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.  Fees collected under this section shall be credited to the Account and shall be applied to the costs of administering this Part."
Sec. 6.  G.S. 143-215.33 reads as rewritten:
"§ 143-215.33.  Administrative hearing.
A person to whom a dam safety order is issued under this Part may contest the dam safety order by filing a contested case petition in accordance with G.S. 150B-23 within 10 days after receipt of the dam safety order."
Sec. 7.  G.S. 143-215.36(b) reads as rewritten:
"(b)	Civil Penalties. –
(1)	The Secretary may assess a civil penalty of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) against any person who violates any provisions of this Part, a rule implementing this Part, or an order issued under this Part.
(2)	If any action or failure to act for which a penalty may be assessed under this Part is willful, the Secretary may assess a penalty not to exceed five hundred dollars ($500.00) per day for each day of violation.
(3)	In determining the amount of the penalty, the Secretary shall consider the factors set out in G.S. 143B-282.1(b).  The procedures set out in G.S. 143B-282.1 shall apply to civil penalty assessments that are presented to the Commission for final agency decision.
(4)	The Secretary shall notify any person assessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail, or by any means authorized by G.S. 1A-1, Rule 4.  Contested case petitions shall be filed in accordance with G.S. 150B-23 within 30 days of receipt of the notice of assessment.
(5) 	Requests for remission of civil penalties shall be filed with the Secretary.  Remission requests shall not be considered unless made within 30 days of receipt of the notice of assessment.  Remission requests must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B and a stipulation of the facts on which the assessment was based.  Consistent with the limitations in G.S. 143B-282.1(c) and (d), remission requests may be resolved by the Secretary and the violator.  If the Secretary and the violator are unable to resolve the request, the Secretary shall deliver remission requests and his recommended action to the Committee on Civil Penalty Remissions of the Environmental Management Commission appointed pursuant to G.S. 143B-282.1(c).
(6)	If any civil penalty has not been paid within 30 days after notice of assessment has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the Superior Court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment, unless the violator contests the assessment as provided in subdivision (4) of this subsection, or requests remission of the assessment in whole or in part as provided in subdivision (5) of this subsection.  If any civil penalty has not been paid within 30 days after the final agency decision or court order has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the Superior Court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment.  Such civil actions must be filed within three years of the date the final agency decision was served on the violator.  Any sums recovered under this subsection shall be used to carry out the purposes and requirements of this Article.
(7)	The Secretary may delegate his powers and duties under this section to the Director of the Division of Land Resources of the Department."
Sec. 8.  This act is effective upon ratification.