General Provisions

HRS div. 1, tit. 12, ch. 179D, pt. I

in effect

HRS §179D-1 Short title

179D-1. Short title This chapter shall be known and may be cited as the "Hawaii Dam and Reservoir Safety Act of 2007". L 1987, c 199, pt of §1; am L 2007, c 262, §3

HRS §179D-2 Declaration of purpose

179D-2. Declaration of purpose The purpose of this chapter is to provide for the inspection and regulation of construction, enlargement, repair, alteration, maintenance, operation, and removal of all dams or reservoirs to protect the health, safety, and welfare of the citizens of the State by reducing the risk of failure of the dams or reservoirs. The legislature finds and declares that the inspection and regulation of all dams or reservoirs are properly a matter of regulation under the police powers of the State, unless specifically exempted. The board shall have jurisdiction of all dams and reservoirs until the department has completed its statewide inspections and has established and implemented rules and criteria for a five year dams and reservoirs inspection and classification processes and the board declares which dams or reservoirs are to be removed from its jurisdiction. [L 1987, c 199, pt of §1; am L 2007, c 262, §4]

HRS §179D-3 Definitions

179D-3. Definitions The following terms, whenever used and referred to in this chapter, shall have the following meanings, unless a different meaning clearly appears in the context: "Application approval" means authorization in writing issued by the board to an owner who has applied to the board for permission to construct, enlarge, repair, alter, remove, maintain, or operate a dam or reservoir and that specifies the condition or limitations under which work is to be performed by the owner or under which approval is granted. "Appurtenant works" or "appurtenance" means any structure, such as spillways in the dam or separate therefrom, the reservoir and its rim, low level outlet works, and water conduits, such as tunnels, pipelines, or penstocks, through the dam or its abutment. "Board" means the board of land and natural resources. "Certificate of approval to impound" means authorization in writing issued by the board to an owner of an existing dam or reservoir, or an owner who has completed construction, enlargement, repair, or alteration of a dam or reservoir, that specifies the conditions or limitations under which the dam or reservoir is to be maintained and operated. "Dam" means any artificial barrier, including appurtenant works that impounds or diverts water and that: (1) Is twenty-five 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 a maximum water storage elevation; (2) Has an impounding capacity at maximum water storage elevation of fifty acre-feet or more. This chapter shall not apply to any artificial barrier that is less than six feet in height regardless of storage capacity or that has a storage capacity at maximum water storage elevation less than fifteen acre-feet regardless of height; or (3) Meets additional criteria or is specifically exempt as determined pursuant to rules adopted by the board. "Department" means the department of land and natural resources. "Emergency" includes but is not limited to breaches and all conditions leading to or causing a breach, overtopping, or any other condition in a dam or reservoir and its appurtenant works that may be construed as unsafe or threatening to life and property. "Enlargement" means 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 or reservoir. "Hazard potential" means the possible adverse incremental consequences that result from the release of water or stored contents due to the failure of the dam or reservoir or the misoperation of the dam, reservoir, or appurtenances. The hazard potential classification of a dam or reservoir shall not reflect in any way on the current condition of the dam or reservoir and its appurtenant works, including the dam's or reservoir's safety, structural integrity, or flood routing capacity. "High hazard" means a dam's or reservoir's failure will result in probable loss of human life. "Low hazard" means a dam's or reservoir's failure will result in no probable loss of human life and low economic loss or environmental loss, or both. Economic losses are principally limited to the owner's property. "Operator" means any person who controls, manages, maintains, or supervises the condition and functions of a dam or reservoir. "Owner" means any person who has a right, title, or interest in or to the dam or reservoir or to the property upon which the dam, reservoir, or appurtenant works is located or proposed to be located. "Person" means any natural person, partnership, firm, association, organization, corporation, county, county authority, trust, receiver or trustee, limited liability company, limited liability partnership, or company, or any state department, agency, or political subdivision, or any other commercial or legal entity. Whenever used in a section prescribing and imposing a penalty or sanction, the term "person" includes the members of an association or organization, and the officers of a corporation, company, county, or county authority. "Physical clear access" means a roadway or path that allows timely access for inspection to a dam, reservoir, and its appurtenant works. If by a roadway, the roadway shall be maintained in an accessible condition by a four-wheel drive vehicle even during inclement weather conditions. "Probable" means more likely than not to occur; reasonably expected; realistic. "Removal" means complete or partial elimination of the dam or reservoir embankment or structure to restore the approximate original topographic contours of the valley. "Reservoir" means any basin that contains or will contain water impounded by a dam, including appurtenant works. "Significant hazard" means a dam's or reservoir's failure will result in no probable loss of human life but can cause major economic loss, environmental damage, disruption of lifeline facilities, or impact other concerns. Significant hazard potential classification dams or reservoirs are often located in predominantly rural or agricultural areas but could be located in areas with population and significant infrastructure. [L 1987, c 199, pt of §1; am L 2007, c 262, §5]

HRS §179D-6 General powers and duties of the board of land and natural resources

179D-6. General powers and duties of the board of land and natural resources (a) All dams or reservoirs in the State shall be under the jurisdiction of the board until the board declares which dams or reservoirs are to be removed from its jurisdiction. (b) The board shall administer the dam and reservoir safety program established by this chapter. In carrying out this chapter, the board shall cooperate, advise, consult, contract, and enter into cooperative agreements with the United States government or any of its agencies, other state agencies, and the county governments or any of their agencies. In the performance of its duties, the board shall: (1) Establish by rules adopted under chapter 91, policies, requirements, or standards governing the design, construction, operation, maintenance, enlargement, alteration, repair, removal, and inspection of dams, reservoirs, and appurtenant works for the protection of life and property from structural failure of dams and reservoirs; (2) Conduct investigations and collect data, including technological advances made in dam and reservoir safety practices elsewhere, as may be needed for the proper review and study of the various features of the design, construction, repair, removal, inspection, operation, maintenance, alteration, and enlargement of dams, reservoirs, and appurtenant works. The board may require submittal of reports of investigations from all owners; (3) Conduct investigations and require reports from all owners to be made from time to time, including watershed investigations and studies, as may be necessary to keep abreast of developments affecting stream runoff and as required to facilitate its decisions; (4) Be authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter. The entry shall not constitute a cause of action in favor of the owner of the land, except for damages resulting from wilful acts or negligence by the board or its agents; (5) Require the owners to apply for, and obtain from the board written approval of plans and specifications on the construction of any new dam or reservoir or the enlargement of any dam or reservoir prior to commencement of any work; (6) Require the owners to file an application and secure the written approval of the board before commencing the repair, alteration, or removal of a dam or reservoir, including the alteration or removal of a dam or reservoir so that it no longer constitutes a dam or reservoir as defined in this chapter. Repairs shall not be deemed to apply to routine maintenance not affecting the safety of the structure; (7) Require owners to secure the written approval of the board to impound water; (8) Require fees to cover a portion of the board's costs in carrying out the administration of dam and reservoir safety; (9) Cooperate with all public and private agencies created for the purpose of enhancing dam and reservoir safety activities and training, assist these organizations and agencies in coordinating the use of their facilities, and participate in the exchange of ideas, knowledge, and data with these organizations and agencies; (10) Consider dams and reservoirs as important water resources for the State that provide significant benefits to the general public, including irrigation for agriculture and other important uses, and acknowledge the need for dams and reservoirs to be consistently maintained and operated in a safe and feasible manner that sustains their roles as important water resources; provided that public safety concerns are addressed; (11) Prepare, publish, and issue printed pamphlets, bulletins, or advisories, or conduct training as the board deems necessary for the dissemination of information to the public; (12) Appoint and remove agents and employees, including hearing officers, specialists, and consultants, as necessary to carry out the purposes of this chapter, who may be engaged by the board without regard to the requirements of chapter 76; (13) Catalog and maintain an inventory of all regulated dams and reservoirs in the State pursuant to this chapter without regard to chapter 91; (14) Establish similar or consistent hazard potential classifications in conjunction with other applicable state or federal guidelines for all regulated dams and reservoirs in the State pursuant to this chapter without regard to chapter 91; (15) Examine and approve or disapprove applications for approval of the construction, enlargement, repair, alteration, or removal of a dam or reservoir and applications for certificates of approval to impound; (16) Order the suspension, revocation, or both, of any application approval or certificate of approval to impound for any act or failure to comply with this chapter or with any rules or orders adopted pursuant to this chapter, or with any of the conditions contained in or attached to the application approval or certificate of approval to impound; (17) Issue orders requiring the adoption by an owner of remedial measures necessary for the safety of life or public or private property, or for carrying out this chapter or rules issued under this chapter; (18) Order the immediate cessation of any act that is started or continued without an application approval or certificate of approval to impound as required by this chapter; (19) Enter private property and immediately take actions necessary to provide protection to life or property at the owner's expense, including removal of the dam or reservoir. The entry shall not constitute a cause of action in favor of the owner of the land, except for damages resulting from wilful acts or gross negligence by the board or its agents; (20) Recover from the owner, in the name of the State, the expenses incurred in taking any action required by the owner of the dam or reservoir in the same manner that debts are recoverable by law; (21) Assess civil penalties for violation of this chapter or any rule or standard adopted or order issued by the board pursuant to this chapter; (22) Place liens, as needed, on the owner's property, to be collected as delinquent taxes against the lands and property, if the owner neglects to pay any costs, expenses, or penalties chargeable to the owner under this chapter or any rule, order, or condition adopted, issued, or required under this chapter; (23) With the assistance of the attorney general, institute and prosecute all court actions that may be necessary to obtain the enforcement of any order issued by the board in carrying out this chapter; and (24) Take any and all other actions as may be necessary to carry out this chapter. [L 1987, c 199, pt of §1; am L 2007, c 262, §7; am L 2011, c 154, §1]

HRS §179D-7 Administrative and judicial review

179D-7. Administrative and judicial review (a) The findings and order of the board, and the board's approval or disapproval of an application issued by the State are final, conclusive, and binding upon all owners, state agencies, and other government agencies, regulatory or otherwise, as to the safety of design, construction, enlargement, repair, alteration, removal, maintenance, and operation of any dam or reservoir. The board's approval of an application or a certificate of approval to impound shall not be considered final if it can be demonstrated to the board that the board's approval of the relevant application or certificate of approval was based on one or more misrepresentations. (b) Any person who is aggrieved or adversely affected by an order or action of the board shall be entitled to administrative and judicial review in accordance with chapter 91; provided that the order or action shall remain in force until modified or set aside on appeal. [L 1987, c 199, pt of §1; am L 2007, c 262, §8]

HRS §179D-8 Violations; penalties

179D-8. Violations; penalties (a) Except as otherwise provided by law, the board may set, charge, and collect administrative penalties and recover administrative fees and costs, including attorney's fees and costs, or bring legal action to recover administrative penalties, fees, and costs, including attorney's fees and costs, or payment for damages or for the cost to correct damages resulting from a violation of this chapter or any rule, order, or condition adopted, issued, or required under this chapter. The administrative penalty shall not exceed $25,000 per day of a violation, and each day during which the violation continues shall constitute an additional, separate, and distinct violation. The board shall effectuate rules, procedures, and fee schedules to carry out the purposes of this section. (b) Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony, and upon conviction thereof, shall be punished as follows: (1) For a first conviction, by a mandatory fine of not less than $2,500 but not more than $25,000 per day of violation, imprisonment, or both; and (2) For a second or subsequent conviction, by a mandatory fine of not less than $5,000 but not more than $50,000 per day of violation, imprisonment, or both. (c) Any criminal action against a person for any violation of this chapter shall not preclude the State from pursuing civil legal action to recover administrative penalties, fees, and costs against that person. Any civil action against a person to recover administrative penalties, fees, and costs for any violation of this chapter or any rule, order, or condition adopted, issued, or required under this chapter shall not preclude the State from pursuing any criminal action against that person. (d) With the assistance of the attorney general, the board may seek an injunction and damages in the enforcement of this chapter. (e) All penalties, fees, and costs collected pursuant to this section or rules adopted by the board pursuant to this chapter, shall be deposited in the dam and reservoir safety special fund. [L 1987, c 199, pt of §1; am L 2007, c 262, §9]

HRS §179D-9 Enactment of rules

179D-9. Enactment of rules The department shall adopt the necessary rules not later than one and one-half years after July 1, 2007. L 1987, c 199, pt of §1; am L 2007, c 262, §10

Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0179D/HRS_0179D-.htmFetched: 11/10/2026