NORTH CAROLINA GENERAL ASSEMBLY
1967 SESSION
CHAPTER 1068
HOUSE BILL 993
AN ACT TO PROVIDE FOR CERTIFICATION AND INSPECTION OF CERTAIN DAMS, UNDER THE SUPERVISION OF THE NORTH CAROLINA DEPARTMENT OF WATER RESOURCES.
The General Assembly of North Carolina do enact:
Section 1. Short Title. This Act shall be known and may be cited as the Dam Safety Law of 1967.
Sec. 2. Declaration of Purpose. It is the purpose of this Act to provide for the certification and inspection of certain dams in the interest of public health, safety, and welfare, in order to reduce the risk of failure of such dams; to prevent injuries to persons, damage to property and loss of reservoir storage; and to ensure maintenance of stream flows below such dams of adequate quantity and quality.
Sec. 3. Definitions. As used in this Act, unless the context otherwise requires:
(1) "Department" means the North Carolina Department of Water Resources.
(2) "Board" means the North Carolina Board of Water Resources.
(3) "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 paragraph shall cease when the supervising federal agency relinquishes authority for operation and maintenance to a local entity.
d. Any dam licensed by the Federal Power Commission, or for which a license application is pending with the Federal Power 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.
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 (measured from original stream bottom to crest of dam) or whose impoundment capacity is less than 10 acre-feet, or any dam costing less than five thousand dollars($5,000.00).
(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 State Stream Sanitation Committee under the North Carolina Stream Sanitation Law and applicable to the waters affected by the project under consideration. In order to ensure that such classifications and standards shall be met and maintained, the Department may impose such conditions and requirements in orders and written approvals issued under this Act 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.
(5) "Person" includes any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized or existing under the laws of this State or of any other state or country.
Sec. 4. Construction of Dams. (a) No person shall begin the construction of any dam, as defined by this Act, 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 Section 3, subparagraphs (3)e. and f. will comply with malaria control requirements of the State Board of Health. 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 Act, 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 Section 7 of this Act. 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 Act 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 will constitute compliance.
(b) When an application has been completed pursuant to the preceding subsections, the Department shall refer copies of the completed application papers to the State Board of Health, the Wildlife Resources Commission, the Department of Conservation and Development, the State Highway Commission, and such other State and local agencies as it deems appropriate for review and comment.
Sec. 5. Repair, Alteration, or Removal of Dam. (a) Before commencing the repair, alteration or removal of a dam, application shall be made for written approval by the Department, except as otherwise provided by this Act. The application shall state the name and address of the applicant, shall adequately detail the changes it proposes to effect and shall be accompanied by maps, plans and specifications setting forth such details and dimensions as the Department requires. The Department may waive any such requirements. The application shall give such other in formation concerning the dam and reservoir required by the Department, such information concerning the safety of any change as it may require, and shall state the proposed time of commencement and completion of the work. When an application has been completed it shall be referred by the Department for agency review and report, as provided by subsection (b) of Section 4 of this Act in the case of original construction.
(b) When repairs are necessary to safeguard life and property they may be started immediately but the Department shall be notified forthwith of the proposed repairs and of the work under way, and they shall be made to conform to its orders.
Sec. 6. Action by Board Upon Applications. (a) Following receipt of agency comments the Board shall approve, disapprove, or approve subject to conditions necessary to ensure safety and to satisfy minimum stream flow requirements, all applications made pursuant to this Act.
(b) A defective application shall not be rejected but notice of the defects shall be sent to the applicant by registered mail. If the applicant fails to file a perfected application within 30 days the original shall be canceled unless further time is allowed.
(c) If the Board disapproves an application, one copy shall be returned with a statement of its objections. If an application is approved, the approval shall be attached thereto, and a copy returned by registered mail. Approval shall be granted under terms, conditions and limitations which the Board deems necessary to safeguard life and property.
(d) Construction shall be commenced within one year after the date of approval of the application or such approval is void. The Board upon written application and good cause shown may extend the time for commencing construction. Notice by registered mail shall be given the Board at least 10 days before construction is commenced.
Sec. 7. Supervision by Qualified Engineers; Reports and Modification During Work. (a) Any project for which the Board's approval is required under Sections 4 and 5 shall be designed and supervised by an engineer legally qualified in the State of North Carolina.
(b) During the construction, enlargement, repair, alteration or removal of a dam, the Board may require such progress reports from the supervising engineer as it deems necessary.
(c) If during construction, reconstruction, repair, alteration or enlargement of any dam, the Board finds the work is not being done in accordance with the provisions of the approval and the approved plans and specifications, it shall give written notice by registered mail or personal service to the person who received the approval and to the person in charge of construction at the dam. The notice shall state the particulars in which compliance has not been made, and shall order immediate compliance with the terms of the approval, and the approved plans and specifications. The Board may order that no further construction work be undertaken until such compliance has been effected and approved by the Board. A failure to comply with the approval and the approved plans and specifications shall render the approval revocable unless compliance is made after notice as provided in this Section.
Sec. 8. Notice of Completion; Certification of Final Approval. (a) Immediately upon completion, enlargement, repair, alteration or removal of a dam, notice of completion shall be given the Board. As soon as possible thereafter supplementary drawings or descriptive matter showing or describing the dam as actually constructed shall be filed with the Board in such detail as the Board may require.
(b) When an existing dam is enlarged, the supplementary drawings and descriptive matter need apply only to the new work.
(c) The completed work shall be inspected by the supervising engineers, and upon finding that the work has been done as required and that the dam is safe and satisfies minimum stream flow requirements, they shall file with the Board a certificate that the work has been completed in accordance with approved design, plans, specifications and other requirements. Unless the Board has reason to believe that the dam is unsafe or is not in compliance with any applicable requirement, regulation, or law, the Board shall grant final approval of the work in accordance with the certificate, subject to such terms as it deems necessary for the protection of life and property.
(d) Pending issuance of the Board's final approval, the dam shall not be used except on written consent of the Board, subject to conditions it may impose.
Sec. 9. Supervision over Maintenance and Operation of Dams. The Board shall have jurisdiction and supervision over the maintenance and operation of dams to safeguard life and property and to satisfy minimum stream flow requirements. The Board is hereby authorized to adopt such standards for maintenance and operation of dams as may be necessary for the purposes of this Act. In its discretion the Board may vary the standards applicable to various dams, giving due consideration to the minimum flow requirements of the stream, the type and location of the structure, the hazards to which it may be exposed, and the peril of life and property in the event of failure of a dam to perform its function.
Sec. 10. Inspection of Dams. (a) The Board is hereby authorized at any time to inspect through consulting engineers any dam upon receipt of a written request of any affected person or agency, or upon its own motion. Within the limits of available funds the Board shall endeavor to provide for inspection of all dams at intervals of approximately five years.
(b) If the Board finds that any dam is not sufficiently strong, or is not maintained in good repair or operating condition, or is dangerous to life or property, or does not satisfy minimum stream flow requirements, the Board shall issue an order directing the owner or owners of the dam to make at his or their expense such maintenance, alteration, repair, reconstruction, change in construction or location, or removal as may be deemed necessary by the Board within a time to be limited by the order, not less than 90 days from the date of issuance of each order, except in the case of extreme danger to the safety of life or property, as provided by subsection (c) of this Section.
(c) If at any time the condition of any dam becomes so dangerous to the safety of life or property, in the opinion of the Board, as not to permit sufficient time for issuance of an order in the manner provided by subsection (b) of this Section, the Board may immediately take such measures as may be essential to provide emergency protection to life and property, including the lowering of the level of a reservoir by releasing water impounded or the destruction in whole or in part of the dam or reservoir. The Board may recover the costs of such measures from the owner or owners by appropriate legal action.
Sec. 11. Judicial Review. If an applicant under this Act, or owner of a dam which is the subject of an application, or any landowner whose property would be endangered by failure of a dam, are dissatisfied with any final order or decision of the Board issued under this Act, he (or they, as the case may be) shall have a right of appeal to the Superior Court pursuant to the provisions of Article 33 of Chapter 143 of the General Statutes.
Sec. 12. Investigations by Department; Rules and Regulations; Employment of Consultants. The Department shall make such investigations and assemble such data as it deems necessary for a proper review and study of the design and construction of dams, reservoirs and appurtenances, and for such purposes may enter upon private property. The Board may adopt such rules and regulations as may be necessary to carry out the purposes of this Act. The Board may employ or make such agreements with geologists, engineers, or other expert consultants and such assistants as it deems necessary to carry out the provisions of this Act.
Sec. 13. Liability for Damages. No action shall be brought against the State of North Carolina, the Department or Board of Water Resources or any agent or employee of such Department or Board, for damages sustained through the partial or total failure of any dam or its maintenance by reason of any supervision or other action taken pursuant to or under this Act. Nothing in this Act shall relieve an owner or operator of a dam from the legal duties, obligations and liabilities arising from such ownership or operation.
Sec. 14. Violations; Penalties. (a) Penalties for violations. Any person who shall be adjudged to have violated this Article shall be guilty of a misdemeanor and shall be liable to a penalty of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each violation. In addition, if any person is adjudged to have committed such violation willfully, the court may determine that each day during which such violation continued constitutes a separate violation subject to the foregoing penalty.
(b) In addition, upon violation of any of the provisions of this Act, or the regulations of the Department hereunder, the Director of the Department may, either before or after the institution of proceedings for the collection of the penalty imposed by this Act for such violation, institute a civil action in the Superior Court in the name of the State upon relation of the Director of the Department for injunctive relief to restrain the violation and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Act for any violation of the same.
Sec. 15. Rights of Investigation, Entry, Access and Inspection. The Board shall have the right to conduct such investigations as it may reasonably deem necessary to carry out its duties prescribed in this Act, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam or associated equipment facility or property, and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the construction or operation of any dam: Provided, that no person shall be required to disclose any secret formula, processes or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person shall refuse entry or access to any authorized representative of the Board who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties.
Sec. 16. Codification. The various Sections of this Act shall be given appropriate numbers and codified by the Attorney General in Article 21 of Chapter 143 of the General Statutes of North Carolina. In the event that the 1967 General Assembly enacts more than one law concerning water resources, which several laws contain identical or substantially identical provisions concerning any matter — including without limitation, notice and hearing provisions, definitions and penalties — the Attorney General in codifying said laws is authorized in each such instance to combine said duplicating provisions in a single Section, subsection or paragraph, as may be appropriate.
Sec. 17. All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.
Sec. 18. This Act shall take effect January 1, 1968.
In the General Assembly read three times and ratified, this the 3rd day of July, 1967.