AS Title 46, Chapter 17: Supervision of Safety of Dams and Reservoirs

Chapter 17. Supervision of Safety of Dams and Reservoirs. Sec. 46.17.010. Purpose. It is the purpose of this chapter to provide for the regulation, supervision, and periodic inspection by the department of privately owned and state-owned dams, reservoirs, and appurtenant works in order to ensure that the design, construction, enlargement, alteration, repair, maintenance, operation, and removal of dams and reservoirs is consistent with the protection of life and property. Sec. 46.17.020. Administration and staffing. The department shall supervise the safety of dams and reservoirs. The department shall employ a licensed and qualified engineer, experienced in the design and construction of dams and reservoirs, and other employees necessary for performing the duties under this chapter. Under AS 36.30 (State Procurement Code), the department may contract with engineering consultants to assist in the performance of the department's duties under this chapter. Sec. 46.17.030. Regulations and orders. The department shall adopt regulations and issue orders necessary to carry out this chapter. Sec. 46.17.040. Approval required. (a) Except in the performance of routine maintenance and operations not affecting structural safety, a person may not construct, enlarge, repair, alter, remove, maintain, operate, or abandon a dam or reservoir without the approval of the department. (b) The owner of a dam or reservoir that was constructed before May 31, 1987, shall, under regulations adopted by the department, file an application with the department for the approval of the dam or reservoir. (c) An applicant under this section shall comply with the requirements of other applicable statutes. Sec. 46.17.050. Inspections. At least once every five years the department shall inspect every dam and reservoir that is subject to this chapter. The department may require the owner of a dam or reservoir to perform the required inspection, according to the department's inspection standards, using a qualified engineer approved by the department. To protect public safety, the department may inspect, or may require the owner to inspect, a dam or reservoir more frequently than every five years. The department may require the owner of the dam or reservoir to pay the cost of an inspection under this section. Sec. 46.17.060. Entry upon property. (a) If the department has given two weeks' written notice of intent to inspect a dam or reservoir and the owner 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) If the department has reason to believe that a dam or reservoir may be unsafe or presents an imminent threat to life or property, the department may enter the dam or reservoir premises without notice. Sec. 46.17.070. Determining danger. In determining whether a dam or reservoir, or proposed dam or reservoir, constitutes or would constitute a danger to life or property, the department shall consider whether the structural integrity of the dam or reservoir might be endangered by overtopping, seepage, settlement, erosion, cracking, earth movement, earthquakes, or the failure of bulkheads, flashboards, gates, or conduits. The department may consider other relevant conditions. If it determines that the dam or reservoir is unsafe, the department shall order the owner to take the action that the department considers necessary to protect life and property. Sec. 46.17.080. Injunction and damages. With the assistance of the attorney general, the department may seek an injunction and damages in the enforcement of this chapter, a department order issued under this chapter, or a regulation adopted under AS 46.17.030 . Sec. 46.17.090. Judicial review. A final action of the department under this chapter is subject to judicial review as provided in AS 44.62 (Administrative Procedure Act). Sec. 46.17.100. Other government agencies. (a) The department may enter into cooperative agreements with municipalities and other state and federal agencies to carry out this chapter. (b) If the action would conflict with the powers and duties vested in the department, a municipality may not (1) regulate, supervise, inspect, or provide for the regulation, supervision, or inspection of a dam or reservoir; (2) provide for the construction, maintenance, operation, removal, or abandonment of a dam or reservoir; or (3) limit the size of or the amount of water that may be stored in a dam or reservoir. (c) This chapter does not apply to a federally-owned or operated dam or reservoir or a dam or reservoir regulated by the Federal Energy Regulatory Commission. (d) This chapter does not affect the powers of the Department of Environmental Conservation or the Department of Fish and Game. Sec. 46.17.110. Action against state for damages. (a) Except as provided in (b) of this section, a person may not bring an action against the state, the department, or agents or employees of the state, for the recovery of damages caused by the partial or total failure of a dam or reservoir, or by the operation of a dam or reservoir, or by an act or omission in connection with (1) approval of the construction of a dam or reservoir, or approval of flood-handling plans during or after construction; (2) issuance or enforcement of orders relating to maintenance or operation of the dam or reservoir; (3) control or regulation of the dam or reservoir; (4) measures taken to protect against failure of the dam or reservoir during an emergency; or (5) investigations or inspections authorized under this chapter. (b) A person may bring an action against the state for the recovery of damages caused by an action undertaken by a dam owner that was negligently ordered by the state over the owner's objection. Sec. 46.17.120. Duties of owner. This chapter does not relieve an owner of a dam or reservoir of the duties or liabilities incident to the ownership or operation of the dam or reservoir. Sec. 46.17.150. Penalties. (a) A person is guilty of a class A misdemeanor if the person knowingly (1) violates a provision of this chapter, (2) violates the terms of an approval, order, regulation, or requirement of the department under this chapter; or (3) obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter. (b) Each day that a violation continues constitutes a separate offense. Sec. 46.17.900. Definitions. In this chapter, unless the context requires otherwise, (1) “alteration” means only an alteration that might directly affect the safety of the dam or reservoir, as determined by the department; (2) “appurtenant works” includes structures including spillways, either in a dam or separate from it; a reservoir and its rim; low level outlet works; and water conduits including tunnels, pipelines, or penstocks, whether running through the dam or through its abutments; (3) “dam” includes an artificial barrier, and its appurtenant works, which may impound or divert water and which (A) has or will have an impounding capacity at maximum water storage elevation of 50 acre-feet and is at least 10 feet in height measured from the lowest point at either the upstream or downstream toe of the dam to the crest of the dam; (B) is at least 20 feet in height measured from the lowest point at either the upstream or downstream toe of the dam to the crest of the dam; or (C) poses a threat to lives and property as determined by the department after an inspection; (4) “department” means the Department of Natural Resources; (5) “enlargement” means an alteration of an existing dam or reservoir that raises or is capable of raising the water storage elevation, or that increases the quantity of water impounded by the dam or reservoir; (6) “owner” means a person who owns, controls, operates, maintains, manages, or proposes to construct a dam or reservoir, and includes (A) a public utility; and (B) the appointed or authorized agents, employees, lessees, receivers, or trustees of an owner; (7) “person” has the meaning given in AS 01.10.060 , and includes the state and political subdivisions of the state, including the Alaska Railroad Corporation and the University of Alaska; (8) “repair” means only a repair that might directly affect the safety of the dam or reservoir, as determined by the department; (9) “reservoir” means a basin, appurtenant to a dam, that is capable of impounding water.