SB284INTRODUCED
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RBJGNY-1
By Senator Chambliss
RFD: State Governmental Affairs
First Read: 03-May-23
2023 Regular Session
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6 RBJGNY-1 05/03/2023 ZAK (L) cr 2022-5217
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SYNOPSIS:
This bill would provide for the inspection of
certain dams and reservoirs by an engineer who shall
submit an accompanying report to the Alabama Department
of Environmental Management. The department would serve
as a public repository for dam related documents.
This bill would require certain dam owners to
notify the department of any new dam construction or
enlargement, as well as require certain dam owners to
develop and file emergency action plans with the
department.
This bill would also provide for a Dam
Rehabilitation Loan Program to be used in assisting dam
owners in repairing and rehabilitating their dams.
A BILL
TO BE ENTITLED
AN ACT
Relating to dam safety; to provide for the inspection
of certain dams and reservoirs by an engineer; to provide for
the Alabama Department of Environmental Management to serve as
a public repository for dam related documents; to require
certain dam owners to develop emergency action plans; to
require certain dam owners to notify the department of any new
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dam construction or enlargement; and to provide for a Dam
Rehabilitation Loan Program.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall apply only to state-owned
dams and reservoirs and dams and reservoirs whose owner or
owners have elected to be subject to this act.
Section 2. For the purposes of this act, the following
terms have the following meanings:
(1) ABANDON or ABANDONMENT. To render a dam
non-impounding by dewatering and filling the reservoir created
by the dam with solid materials, by diverting the natural
drainway around the site, or by removing a portion of a dam to
allow drainage to occur the same, or nearly the same, as
before the construction of the dam.
(2) ADVERSE CONSEQUENCES. Negative impacts that may
occur upstream, downstream, or at locations remote from the
dam. The primary concerns are loss of human life, disruption
of public infrastructure, environmental impact, and economic
loss, including property damage.
(3) ALTERATIONS or REPAIRS. Alterations or repairs to
an existing dam and appurtenant structures that affect the
safety of the dam or reservoir.
(4) APPURTENANT WORKS. The structures or machinery
incident or annexed to a dam that are built to operate,
assist, and maintain a dam. The term includes spillways,
either in the dam or separate therefrom, the reservoir and its
rim, low level outlet works, and water conduits, including
tunnels, pipelines, or penstocks, either through the dam or
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its abutments.
(5) BREACH. Partial removal of a dam, creating a
channel through the dam to the original stream bottom
elevation.
(6) DAM.
a. An artificial barrier, including appurtenant works,
with the ability to impound water, wastewater, or liquid borne
materials and to which either of the following apply:
1. Is 25 feet or more in height from the natural bed of
the stream or watercourse measured at the downstream toe of
the barrier, or from the lowest elevation of the outside limit
of the barrier, if it is not across a stream channel or
watercourse, to the maximum water storage elevation.
2. Has an impounding capacity at maximum water storage
elevation of 50 acre feet or more.
b. The term includes a fill or structure for highway or
railroad use or for any other purpose which impounds water.
c. This definition does not apply to any barrier not in
excess of six feet in height regardless of storage capacity or
which has a storage capacity at maximum water storage
elevation not greater than 15 acre feet regardless of height,
unless the barrier, due to its location or other physical
characteristics, is classified as a high hazard potential dam.
d. This definition does not apply to any dam subject to
the jurisdiction of any other state or federal agency.
e. The term does not include any obstruction in a canal
used to raise or lower water.
f. This term does not include privately owned dams,
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regardless of the hazard designation, unless the owner has
voluntarily elected to participate in the program in
accordance with this act.
(7) DAYS. In establishing deadlines, means all calendar
days, including Sundays and holidays.
(8) DEPARTMENT. The Alabama Department of Environmental
Management.
(9) DIRECTOR. The Director of the Alabama Department of
Environmental Management.
(10) EMERGENCY. Includes all conditions leading to or
causing a breach, overtopping, or any other condition of a dam
and its appurtenant structures that may be construed as unsafe
or threatening to life or property.
(11) EMERGENCY ACTION PLAN. A plan that identifies the
area that would likely be inundated by the failure of a dam
and the actions that should be taken in the event of a failure
or threatening condition at the dam.
(12) ENGINEER. An engineer who has a background in
civil engineering and:
a. Is a licensed professional engineer.
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 relevant experience in areas such as
investigation, design, construction, reconstruction,
enlargement, repair, alteration, maintenance, operation,
breach, removal, or abandonment of dams.
d. Understands adverse dam incidents, failures, and the
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potential causes and consequences of failures.
e. Continues with necessary training and continuing
education to keep abreast of the state of the practice in dam
safety engineering.
(13) ENLARGEMENT. Any change in or addition to an
existing dam or reservoir that raises or may raise the water
storage elevation of the water impounded by the dam.
(14) HAZARD POTENTIAL. The possible adverse incremental
consequences that result from the release of water or stored
contents due to failure of the dam or misoperation of the dam
or appurtenances. The hazard potential classification of a dam
does not reflect in any way on the current condition of the
dam and its appurtenant structures, including safety,
structural integrity, or flood routing capacity.
(15) HIGH HAZARD POTENTIAL DAM. A dam assigned the high
hazard potential classification where the dam's failure or
misoperation will likely cause loss of human life.
(16) LOW HAZARD POTENTIAL DAM. A dam assigned the low
hazard potential classification where failure or misoperation
results in no probable loss of human life and low economic or
environmental losses with those economic losses that do occur
being principally limited to the owner's property.
(17) PARTICIPATING OWNER. The state and its
departments, institutions, or agencies that own a dam or
reservoir. The term may also include all of the following that
elect to be included in this definition by written affidavit
delivered to the department:
a. Any municipal or quasi-municipal corporation.
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b. Any county or quasi-county corporation.
c. Any public utility.
d. Any district as defined by Section 11-99A-2, Code of
Alabama 1975.
e. Any person.
f. The duly authorized agent, lessee, or trustee of any
of the foregoing.
g. Receivers or trustees appointed by any court for any
of the foregoing.
(18) PERSON. Any individual, bankruptcy trustee, firm,
association, organization, partnership, business trust,
corporation, LLC, LLP, or company.
(19) PROBABLE. More likely than not to occur;
reasonably expected; realistic.
(20) RECONSTRUCTION. Removal and replacement of an
existing dam or a portion thereof.
(21) REMOVAL. Complete elimination of the dam
embankment or structure to restore the approximate original
topographic contours of the valley.
(22) RESERVOIR. Any area that contains or will contain
impounded water, wastewater, or liquid-borne materials by
virtue of its having been impounded by a dam. This term does
not include privately owned reservoirs, regardless of the
hazard designation, unless the owner has elected to
participate in the program in accordance with this act.
(23) SIGNIFICANT HAZARD POTENTIAL DAM. A dam assigned
the significant hazard potential classification where failure
or misoperation results in no probable loss of human life but
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can result in major economic loss, environmental damage,
disruption of lifeline facilities, or other issues impacting
public safety and welfare.
(24) WATER STORAGE ELEVATION. The maximum elevation of
water surface which can be obtained by the dam or reservoir.
Section 3.(a) The department has neither inspection nor
regulatory duty or responsibility.
(b) Records pertaining to dams and reservoirs kept by
and in the possession of the department shall be public
documents. The department shall act as a repository to allow
public access to documents related to dams.
(c) Nothing in this act shall be construed to relieve a
participating owner or operator of a dam or reservoir of the
legal duties, obligations, or liabilities incident to the
ownership or operation of the dam or reservoir.
Section 4. (a) A participating owner shall ensure plans
and specifications for initial construction, reconstruction,
enlargement, alteration, repair, operation, breach,
abandonment, or removal of dams and reservoirs, and the
supervision of the construction of dams and reservoirs shall
be in the charge of an engineer and assisted by qualified
geologists and other specialists as necessary.
(b) A participating owner of any dam or reservoir shall
ensure the dam or reservoir is inspected a minimum of once
every two years by an engineer who shall file with the
department a record of the inspection.
(c) A participating owner shall notify the department
in writing of the construction or the enlargement of any dam
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or reservoir. Plans and specifications signed and sealed by
the design engineer shall accompany the notification.
(d) Prior to the transfer of ownership of any dam or
reservoir, the current participating owner shall notify the
department of any proposed change in ownership. The subsequent
owner may elect to continue participating in the inspection
program but may also elect to cease participation with no
penalty.
Section 5. (a) It shall be the duty of the inspecting
engineer to assign a hazard potential classification to dams
and reservoirs.
(b) In order to protect life and property,
participating owners of high and significant hazard potential
dams and reservoirs shall develop and file with the department
an emergency action plan prepared by an engineer in
consultation with the director of the local emergency
management organization for the county or municipality in
which the dam or reservoir is located which shall be
implemented in the event of an emergency involving that
participating owner's dam or dams. The participating owners of
such dams shall periodically test and update this emergency
action plan. This plan shall include all of the following
elements:
(1) Emergency notification plan with flowchart.
(2) Statement of purpose.
(3) Project description.
(4) Emergency detection, evaluation, and
classification.
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(5) General responsibilities.
(6) Preparedness.
(7) Inundation maps or other acceptable description of
the inundated area.
(8) Appendices.
(c) Participating owners of dams and reservoirs have
the responsibility for determining when an emergency involving
a dam or reservoir may exist. When the participating owner of
a dam or reservoir makes this determination, the participating
owner shall immediately implement the emergency action plan
required by this section, notify any person who may be
endangered if the dam should fail, notify emergency management
organizations, and take additional actions necessary to
safeguard life, health, and property.
Section 6. (a) The department shall create a Dam
Rehabilitation Loan Program or may partner with other public
or private agencies or organizations to create a Dam
Rehabilitation Loan Program, which shall be a revolving fund
to be used exclusively for the purposes of this act.
(b) The program shall initially be funded with monies
appropriated by the Legislature. Subsequently, the program
shall be funded through additional monies appropriated by the
Legislature, payments of principal and interest collected by
the department, monies paid to the fund pursuant to a
directive of the Legislature, and all interest earned on the
investment of monies in the fund by the State Treasurer. The
Legislature may also subsequently authorize funding to expand
the financial size of the program.
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(c) The Dam Rehabilitation Loan Program may obtain
funds through partnerships with any private or public bonding
or loaning agency or organization.
(d) State funding to the Dam Rehabilitation Loan
Program shall not be reduced because of federal funds provided
for a rehabilitation loan program.
(e) Monies in the Dam Rehabilitation Loan Program shall
not revert to the State General Fund. Monies in the fund are
exempt from lapsing.
Section 7. (a) If the balance of the Dam Rehabilitation
Loan Program exceeds one million dollars ($1,000,000), no
single loan shall be made for more than 20 percent of the
monies available in the fund. No loan shall be made to any
participating owner that, at the time of the loan application,
has more than 20 percent of the outstanding loans of the fund.
(b) The loans granted by the department shall be for a
term of not more than 20 years and the loans shall bear
interest at rates set by the department in the rules.
(c) Each loan shall be evidenced by a contract between
the participating owner and the department acting on behalf of
this state. The contract shall provide for the loan by this
state of a stated amount to defray some or all eligible costs.
The contract shall provide for equal annual payments of
principal and interest for the term of the loan.
(d) All of the following costs and fees shall be
eligible costs pursuant to subsection (c):
(1) Any costs directly related to rehabilitating safety
deficiencies of a dam.
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(2) Fees for analysis, feasibility work, alternative
evaluation, and engineering design after construction has been
initiated, or at the point that analysis has shown a dam to be
in compliance.
(3) Up to 100 percent of rehabilitation costs for a
dam. Participating owners may use multiple programs or sources
to fund the rehabilitation costs for a dam.
(4) Any costs directly related to compliance with other
laws that are above the state's minimum dam safety
requirements.
(5) Any costs for state agency-required fish passage,
if the costs are part of an overall rehabilitation project.
(e) The department may take mutually agreeable security
interest in the participating owner's property in exchange for
the loan. If the department chooses to take a security
interest in the participating owner's property, the department
shall perfect that security interest by filing appropriate
documentation with the proper authorities.
(f) The Attorney General or the department's legal
counsel, with the consent of the department, may commence
whatever actions are necessary to enforce the contract and
achieve repayment of loans provided by the department pursuant
to this act.
Section 8. The participating owner's responsibilities
under the Dam Rehabilitation Loan Program shall include all of
the following:
(1) As part of the application process, participating
owners must demonstrate the ability to appropriately operate
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and maintain the dam after rehabilitation is complete.
(2) Once a loan has been granted, creating an operation
and maintenance plan with written, regularly scheduled reports
so as to maintain and keep the structure and its appurtenant
works in the state of repair and operating condition required
by the exercise of prudence; due regard for life or property;
the application of sound and accepted engineering principles;
and applicable rules, guidelines, and policies.
(3) As part of any rehabilitation project utilizing
funds from this program, developing an emergency action plan
if one does not currently exist.
(4) Cooperating with the department's agents,
engineers, and other employees in the conduct of the statute.
(5) Facilitating access to the structure or
appurtenance.
(6) Furnishing, upon request, the plans,
specifications, operating and maintenance data, or other
information that is pertinent to the structure, appurtenance,
and loan.
Section 9. The following general loan guidelines apply:
(1) Participating owners of dams without taxing
authority shall be allowed to participate in the Dam
Rehabilitation Loan Program.
(2) Complete rehabilitations are to be encouraged, but
phased projects can be funded.
(3) Removal of dams as a rehabilitation alternative
shall be allowed.
(4) Participating owners are allowed to partner with an
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individual, local agency, or organization for purposes of the
loan and for purposes of operation and maintenance.
(5) Rehabilitation projects that are in compliance with
state statutes and rules, and are permitted, accepted, and
approved by the department are eligible to be funded through
the Dam Rehabilitation Loan Program.
(6) Costs for lake enhancement projects such as lake
dredging, sediment removal projects, or boat ramps, which do
not enhance the safety of the dam, are not eligible to be
funded through the Dam Rehabilitation Loan Program.
(7) For dams and reservoirs for which a loan has been
applied for, the department and its agents, engineers, and
other employees may enter upon the land on which the dam is
located or water which forms the reservoir without a search
warrant or liability for trespass.
(8) This act does not create a liability for damages
against the department, its officers, agents, and employees
caused by or arising out of any of the following:
a. The construction, maintenance, operation, or failure
of a dam or appurtenant works.
b. The issuance and enforcement of an order or a rule
issued by the department to carry out the department's duties.
(9) The state does not assume ownership obligations,
responsibilities, or liabilities if a participating owner
defaults on a loan.
Section 10. The department shall adopt rules as
necessary to implement and administer this act.
Section 11. This act shall become effective on the
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first day of the third month following its passage and
approval by the Governor, or its otherwise becoming law.
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