COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 465
(By Senators Unger, Jenkins, Prezioso and Plymale)
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[Originating in the Committee on Finance;
reported February 26, 2007.]
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A BILL to amend and reenact §22-14-3 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §22-14-19, all relating to deficient
dams; establishing the Dam Safety Rehabilitation Revolving
Fund for deficient dams; and providing for promulgation of
rules.
Be it enacted by the Legislature of West Virginia:
That §22-14-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §22-14-19, all to read as
follows:
ARTICLE 14. DAM CONTROL ACT.
§22-14-3. Definition of terms used in article.
As used in this article, unless used in a context that clearly requires a different meaning, the term:
(a) "Alterations" or "repairs" means only those changes in the
structure or integrity of a dam
which that may affect its safety
,
which determination shall be made to be determined by the
secretary.
(b) "Application for a certificate of approval" means the
request in writing by a person written application provided to the
secretary requesting that
a person be issued a certificate of
approval.
(c) "Appurtenant works" means any structure or facility
which
that is an adjunct of, or connected, appended or annexed to a dam,
including, but not limited to, spillways, a reservoir and its rim,
low-level outlet works or water conduits such as tunnels, pipelines
and penstocks either through the dam or its abutments.
(d) "Certificate of approval" means the
written approval
in
writing issued by the secretary to a person who has applied to the
secretary for a certificate of approval
which that authorizes the
person to place, construct, enlarge, alter, repair or remove a dam
and specifies the conditions or limitations under which the work is
to be performed by that person.
(e)
(1) "Dam" means an artificial barrier or obstruction,
including any works appurtenant to it and any reservoir created by
it, which is or will be placed, constructed, enlarged, altered or
repaired so that it does or will impound or divert water and:
(1) (A) Is or will be twenty-five feet or more in height from the
natural bed of the stream or watercourse measured at the downstream
toe of the barrier and which does or can impound fifteen acre-feet
or more of water; or
(2)
(B) Is or will be six feet or more in height from the natural
bed of the stream or watercourse measured at the downstream toe of
the barrier and which does or can impound fifty acre-feet or more
of water
: Provided, That the term "dam" does not include;
(2) "Dam" does not mean:
(A) Any dam owned by the federal government;
(B) Any dam for which the operation and maintenance
thereof of
the dam is the responsibility of the federal government;
(C) Farm ponds constructed and used primarily for agricultural
purposes, including, but not limited to, livestock watering,
irrigation, retention of animal wastes and fish culture, and
which
that have no potential to cause loss of human life in the event of
embankment failure; or
(D) Roadfill or other transportation structures
which that do
not or will not impound water under normal conditions and
which
that have a designed culvert or similar conveyance or
such capacity
as that would be used under a state designed highway at the same
location:
Provided, however, That the secretary may apply the
provisions of section ten of this article for roadfill or other
transportation structures that become a hazard to human life or property through the frequent or continuous impoundment of water.
(f) "Deficient dam" means a noncoal-related dam that exhibits
one or more design, maintenance or operational problems that may
adversely affect the performance of the dam over a period of time
or during a major storm or other inclement weather that may cause
loss of life or property; or a noncoal-related dam that otherwise
fails to meet the requirements of this article.
(f) (g) "Department" means the Department of Environmental
Protection.
(g) (h) "Enlargement" means any change in or addition to an
existing dam which: (1) Raises the height of the dam; (2) raises
or may raise the water storage elevation of the water impounded by
the dam; (3) increases or may increase the amount of water
impounded by the dam; or (4) increases or may increase the
watershed area from which water is impounded by the dam.
(h) (i) "Person" means any public or private corporation,
institution, association, society, firm, organization or company
organized or existing under the laws of this or any other state or
country; the State of West Virginia; any state governmental agency;
any political subdivision of the state or of its counties or
municipalities;
a sanitary district;
a public service district;
a
drainage district;
a conservation district;
a watershed improvement
district;
a partnership, trust,
or estate;
a person or individual;
a group of persons or individuals acting individually or as a group; or any other legal entity
whatever. The term "person", when
used in this article, includes and refers to any authorized agent,
lessee or trustee of any of the foregoing, or receiver or trustee
appointed by any court for any of the foregoing.
(I) (j) "Reservoir" means any basin which contains or will
contain impounded water.
(j) (k) "Secretary" means the Secretary of the Department of
Environmental Protection.
(k) (l) "Natural Resources Conservation Service" means the
Natural Resources Conservation Service of the United States
Department of Agriculture or any successor or predecessor agency,
including the Soil Conservation Service.
(l) (m) "Water" means any liquid, including any solids or
other matter
which that may be contained
therein in the liquid,
which is or may be impounded by a dam.
(m) (n) "Water storage elevation" means the maximum elevation
that water can reach behind a dam without encroaching on the
freeboard approved for the dam under flood conditions.
§22-14-19. Dam Safety Rehabilitation Revolving Fund established;
disbursement of fund moneys.
(a) There is created in the State Treasury a special revenue
fund known as the Dam Safety Rehabilitation Revolving Fund. The
fund shall be comprised of money allocated to the state by the
federal government expressly for the purposes of establishing and maintaining a state Dam Safety Rehabilitation Revolving Fund. The
fund shall also include all receipts from loans made by the fund,
any moneys appropriated by the Legislature, all income from the
investment of moneys held in the fund and all other moneys
designated for deposit to the fund from any source, public or
private. The fund shall operate as a special revenue fund and all
deposits and payments into the fund do not expire to the General
Revenue Fund, but shall remain in the account and be available for
expenditure in succeeding fiscal years.
(b) The fund, to the extent that money is available, shall be
used solely to make loans to persons who own an interest in a
deficient dam to finance the engineering, design, alteration,
improvement, repair, breaching or removal of the deficient dam
necessary to correct or remove the deficiencies and other
activities as authorized by a federal grant or a legislative
appropriation. Further, the fund may be used to defray costs
incurred by the department in administering the provisions of this
subsection.
(c) The secretary shall promulgate rules, in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, to govern the disbursement of moneys from the fund, establish
a state deficient dams rehabilitation assistance program to direct
the distribution of loans from the fund, establish criteria for
eligibility to receive loans from the fund and establish the terms and conditions of the loans, including interest rates and repayment
terms.
(d) The secretary may employ qualified officers, agents,
advisors and consultants and other persons necessary to carry out
the administration and management of the fund.