THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY WAUGH, OCTOBER 10, 2012

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, OCTOBER 10, 2012  

AN ACT

Amending the act of November 26, 1978 (P.L.1375, No.325),

entitled, as amended, "An act providing for the regulation

and safety of dams and reservoirs, water obstructions and

encroachments; consolidating and clarifying the programs of

the Department of Environmental Resources and Navigation

Commission for the Delaware River; establishing penalties and

repealing certain acts," further providing for definitions,

for proof of financial responsibility and for duties of

owners.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 3 of the act of November 26, 1978

(P.L.1375, No.325), known as the Dam Safety and Encroachments

Act, amended October 23, 1979 (P.L.204, No.70) and May 16, 1985

(P.L.32, No.15), is amended to read:

Section 3.  Definitions.

The following words and phrases when used in this act shall

have, unless the context clearly indicates otherwise, the

meanings given to them in this section:

"Appurtenant works."  Include, but are not limited to, such

structures as spillways, either in the dam or separate

therefrom; low level outlet works; and conduits such as tunnels,

pipelines or penstocks through the dam or its abutments.

"Body of water."  Any natural or artificial lake, pond,

reservoir, swamp, marsh or wetland.

"Category 1 dam."  A regulated dam or reservoir with a hazard

potential that poses any of the following:

(1)  A risk to a substantial number of homes, businesses

or schools.

(2)  A risk of excessive economic loss, such as extensive

residential, commercial or agricultural damage or substantial

inconvenience.

"Category 2 dam."  A regulated dam or reservoir with a hazard

potential that poses any of the following:

(1)  A risk to a small number of homes or small

businesses.

(2)  A risk of appreciable economic loss, such as limited

residential, commercial or agricultural damage or moderate

public inconvenience.

"Construct."  To erect, build, place or deposit, including

preliminary preparation of a site for construction.

"Dam."  Any artificial barrier, together with its appurtenant

works, constructed for the purpose of impounding or storing

water or any other fluid or semifluid; or any refuse bank fill

or structure for highway, railroad or other purposes which does

or may impound water or any other fluid or semifluid.

"Department."  The Department of Environmental Resources of

the Commonwealth of Pennsylvania.

"Encroachment."  Any structure or activity which in any

manner changes, expands or diminishes the course, current or

cross-section of any watercourse, floodway or body of water.

"Hearing board."  The Environmental Hearing Board.

["High hazard dam."  Any dam so located as to endanger

populated areas downstream by its failure.]

"Navigation Commission."  The Navigation Commission for the

Delaware River or its navigable tributaries.

"Operation."  Elements of the use, control and functioning of

a facility which may affect primarily the storage, release or

flow of water, the structural safety of a facility or

navigation, with due consideration of the other purposes of this

act.

"Owner."  Any person who owns, controls, operates, maintains,

or manages a dam or reservoir, water obstruction or

encroachment.

"Person."  Includes any natural person, partnership,

association, corporation, municipality, municipal authority,

receiver or trustee and any department, board, commission or

authority of the Commonwealth. Whenever used in a section

prescribing and imposing a penalty or sanction, the term

"person" shall include the members of an association and the

officers of a corporation, municipality or municipal authority.

"Regulated dam."  A dam so located as to pose a hazard to

populated areas downstream by its failure.

"Reservoir."  Any basin which contains or will contain the

water or other fluid or semifluid impounded by a dam.

"Safety."  Security from the risk or threat of significant

loss or injury to life, health, property and the environment.

"Water obstruction."  Includes any dike, bridge, culvert,

wall, wing wall, fill, pier, wharf, embankment, abutment or

other structure located in, along, across or projecting into any

watercourse, floodway or body of water.

"Watercourse" or "stream."  Any channel of conveyance of

surface water having a defined bed and banks, whether natural or

artificial, with perennial or intermittent flow.

Section 2.  Section 11 of the act, amended October 23, 1979

(P.L.204, No.70), is amended to read:

Section 11.  Proof of financial responsibility.

(a)  As a requirement for approval of a permit under this act

for any [category of] Category 1 dam, water obstruction or

encroachment which may present a substantial potential risk to

life or property, the Environmental Quality Board may, by

regulation, authorize the department to require proof of

financial responsibility or security assuring the proper

construction, operation, maintenance and termination of such

projects.

(b)  As proof of such responsibility or security, the

regulations may require one or more of the following:

(1)  a Certificate of Public Convenience from the Public

Utility Commission if the owner of the proposed facility is

subject to regulation under the act of May 28, 1937

(P.L.1053, No.286), known as the "Public Utility Law";

(2)  ownership or management of the facility by an agency

of the Federal, interstate, State, county or municipal

government; or

(3)  a bond or other legal device of a form acceptable to

the department, payable to the Commonwealth, which guarantees

proper construction, repair, operation and maintenance,

inspections and monitoring of the facility and removal, if

necessary. [The] For a Category 1 dam, the amount of such

shall be sufficient to cover all costs of entry, correction,

repair, operation, maintenance, inspection, monitoring or

removal of the facility by the Commonwealth in the event of

failure of the owner to comply with the provisions of this

act, or any regulation, permit or order issued hereunder.

(c)  The Commonwealth may seek reimbursement of incurred

necessary costs if the owner fails to properly construct,

operate, maintain or remove any Category 1 dam, Category 2 dam

or any other dam subject to this act.

Section 3.  Section 13 of the act, amended May 16, 1985

(P.L.32, No.15), is amended to read:

Section 13.  Duties of owners.

(a)  The owner of any dam, water obstruction or encroachment

shall have the legal duty to:

(1)  monitor, operate and maintain the facility in a safe

condition in accordance with the regulations, terms and

conditions of permits, approved operating plans and orders of

the department issued pursuant to this act;

(2)  conduct periodic inspections and analyses, as

reasonably required by the department considering the type of

facility and degree of potential hazard, and as required

submit certified reports regarding the condition of the

facility to the department: Provided, That in lieu of

certified reports from the owner, the department may accept

reports of equivalent inspections prepared by governmental

agencies;

(3)  immediately notify the department and responsible

authorities in downstream communities of any condition which

threatens the safety of the facility, and take all necessary

actions to protect life and property, including any action

required under an emergency plan or department order issued

pursuant to this act; and

(4)  prior to discontinuing use or abandonment, remove

all or part of the facility and take other actions necessary

to protect safety and the environment in a manner approved by

the department.

(b)  In addition to the duties of subsection (a), the owner

of any [high hazard] regulated dam which has been classified as

such by the Department of Environmental Resources shall post

notices in public places in any area which might be affected by

the failure of the dam.

Section 4.  This act shall take effect in 60 days.