Report Title:

Department of Land and Natural Resources; Dam Safety

 

Description:

Grants department of land and natural resources the right to enter property, public or private, to inspect dams.  Allows board of land and natural resources to direct owner or, in its discretion, to take immediate action to initiate emergency measures to insure public safety.  Establishes dam and reservoir repair revolving fund.  (HD1)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1905

TWENTY-FOURTH LEGISLATURE, 2007

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to dam safety.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  On March 14, 2006, just before dawn, Ka Loko dam on the island of Kaua‘i breached.  Almost four hundred million gallons of water crashed down from the Ka Loko reservoir into Kilauea bay, taking trees, cars, buildings, and human lives with it.  Seven people tragically lost their lives that morning in the flood.  The legislature finds that this was a great human tragedy and an ecological disaster that must never be repeated.

     The purpose of this Act is to ensure the health, safety, and welfare of the citizens of the State by creating a program for monitoring and enforcing the safety of dams and reservoirs throughout the State so that we are never again faced with the tragedy like the Ka Loko dam break.

     SECTION 2.  Chapter 179D, Hawaii Revised Statutes, is amended by adding six new sections to be appropriately designated and to read as follows:

     "§179D-A  Entry upon property.  (a)  The department shall have the right to direct and conduct investigations as reasonably necessary to carry out its duties under this chapter.  For this purpose, the agents or employees of the department or any authorized representatives shall have the right to enter at reasonable times, without prior notice, any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam or other artificial barrier subject to this chapter.  If the owner of the property refuses to allow the inspection, the department may seek a search warrant to allow the inspection.  If the department has been refused inspection of drawings, operational records, or other information concerning a dam or reservoir, the department may seek an administrative subpoena compelling production of the drawings, operational records, or other information.

     (b)  It shall be unlawful for any person to refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection and who presents appropriate credentials.  It shall also be unlawful to obstruct, hamper, or interfere with the representative while in the process of carrying out official duties.

     §179D-B  Injunctive relief.  Whenever, in the judgment of the department, any person has engaged in or is about to engage in any act or practice that constitutes or will constitute an unlawful act or practice under this chapter, the department may apply to the circuit court of the circuit in which the unlawful act or practice has been or is about to be engaged in, or in which jurisdiction is appropriate, for an order enjoining the act or practice or for an order requiring compliance with this chapter.  Upon a showing by the department that the person has engaged in or is about to engage in the unlawful act or practice, a permanent or temporary injunction, restraining order, or other order shall be granted without the necessity of showing lack of an adequate remedy at law.

     §179D-C  Dam and reservoir repair revolving fund.  (a)  There is established a dam and reservoir repair revolving fund into which shall be deposited:

     (1)  Appropriations by the legislature;

     (2)  Interest and fees collected by the department under this chapter;

     (3)  Any federal funds that are made available; and

     (4)  Payments made on loans from the fund.

     (b)  Moneys in the fund shall be used by the board to:

     (1)  Implement emergency measures pursuant to section 179D-D; or

     (2)  Make dam repair loans to owners of dams or reservoirs with plans and specifications for the alteration, repair, or removal of dams and reservoirs approved by the board.

     §179D-D  Emergency measures.  (a)  When the department determines through its investigation or inspection of a dam or reservoir that there is condition that may pose an imminent danger to public safety and that repairs, breaching of the dam, or other actions are immediately necessary, the board shall direct the owner to immediately initiate the emergency measures necessary or the board, in its discretion, may initiate the emergency measures to ensure public safety.

     (b)  Emergency measures shall be made at the owner's expense.  When emergency measures are initiated by the board, the board may use moneys from the fund, for which the owner shall reimburse the fund in lump sum or through installment payments agreed to by the board.

     (c)  The legislature finds and declares that emergency measures under this section are in the public interest and for the public health, safety, and general welfare of the State and authorizes the board to take any necessary actions.

     §179D-E  Annual report.  (a)  The department shall submit an annual report concerning the activities of the department relating to this chapter to the governor and the legislature no less than twenty days prior to the convening of each regular session.

     (b)  The report shall include but not be limited to information on the following:

     (1)  A listing of the safety inspections made;

     (2)  Use of appropriated funds;

     (3)  Receipts generated for inspections of dams and reservoirs;

     (4)  Rules adopted, amended, or repealed;

     (5)  Enforcement orders and proceedings;

     (6)  Dam failures and department evaluations of the reasons for the dam failures, if determined; and

     (7)  Any other available data regarding the effectiveness of the State's dam and reservoir safety program.

     §179D-F  Limitations of liability.  (a)  This chapter does not create any liability for damages against the board, its officers, agents, or employees caused by or arising out of any of the following:

     (1)  The construction, maintenance, operation, or failure of a dam or appurtenant works; or

     (2)  The issuance and enforcement of an order or a rule issued or adopted by the board to carry out the board's duties.

     (b)  The State assumes no ownership obligations, responsibilities, or liabilities for any actions taken pursuant to section 179D-D."

     SECTION 3.  Section 179D-1,Hawaii Revised Statutes, is amended to read as follows:

     "[[]§179D-1[]]  Short title.  This chapter shall be known and may be cited as the "Hawaii Dam Safety Act [of 1987]".

     SECTION 4.  Section 179D-2, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§179D-2[]] Declaration of purpose. The purpose of this chapter is to provide for the inspection and regulation of construction, operation, and removal of certain dams and reservoirs in order to protect the health, safety, and welfare of the citizens of the State by reducing the risk of failure of [such] the dams[.] and reservoirs.  The legislature finds and declares that the inspection and regulation of construction, operation, and removal of certain dams and reservoirs are properly a matter of regulation under the police powers of the State."

     SECTION 5.  Section 179D-3, Hawaii Revised Statutes, is amended:

     1.  By adding a new definition to be appropriately inserted and to read as follows:

     ""Emergency" includes but is not limited to breaches and all conditions leading to or causing a breach, overtopping, or any other condition in a dam and its appurtenant structures that may be construed as unsafe or threatening to persons or property."

     2.  By amending the definition of "reservoir" to read as follows:

     "Reservoir" means any basin [which] that contains or will contain water impounded by a dam[.]; provided that an impoundment actively managed for agricultural purposes that is not built into a stream channel or riverbed and for which the inflow of water can be completely closed shall not be considered a reservoir."

     SECTION 6.  Section 179D-4, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§179D-4[]] Liability for damages.  (a)  Nothing contained in this chapter shall be construed to constitute a waiver of any immunity of the State and no action or failure to act under this chapter shall be construed to create any liability in the State, board, department, or its officers or employees, for the recovery of damages caused by such action or failure to act.

     (b)  No action shall be brought against the State, the board, or the department, or against any officer or employee of the State, the board, or the department for damages sustained through the partial or total failure of any dam or reservoir addressed in this chapter or its maintenance or operation by reason of any supervision or other action taken or not taken pursuant to this chapter.

     [(b)] (c)  Nothing in this chapter and no order, action, or advice of the State, board, or department, or any representative thereof, shall be construed to relieve an owner or operator of a dam or reservoir of the legal duties, obligations, or liabilities incident to the ownership or operation of a dam or reservoir; provided that an owner or operator of a dam or reservoir shall not be liable for damages as a result of only natural causes such as earthquakes, hurricanes, or extraordinary rains of an average recurrence interval in excess of two hundred fifty years."

     SECTION 7.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 8.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 10.  This Act shall take effect on July 1, 2050.