Dam and Reservoir Safety

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

in effect

HRS §179D-21 Certificate of approval to impound

179D-21. Certificate of approval to impound No owner of a dam or reservoir shall impound water without a valid certificate of approval to impound water at the dam or reservoir. L 2007, c 262, pt of §1

HRS §179D-22 Entry upon property

179D-22. Entry upon property (a) The department shall have the right to direct and conduct investigations as it may reasonably deem necessary to carry out its duties as prescribed in this part. For this purpose, the agents or employees of the department or any authorized representatives may enter at reasonable times, without prior notice, any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam, reservoir, or other artificial barrier dealt with in this chapter; provided that if an emergency situation arises as determined by the department, the agents or employees of the department, or any authorized representatives shall have the right to enter without prior notice, any property, public or private, for the purpose of investigating the condition, construction, or operation of any dam, reservoir, or other artificial barrier subject to this chapter, and to take any remedial actions, without a search warrant or liability for trespass. (b) It shall be unlawful for any person to refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection and who presents appropriate credentials. It shall also be unlawful to obstruct, hamper, or interfere with any representative while in the process of carrying out the representative's official duties. (c) Notwithstanding any other provision of law to the contrary, the board and its agents, engineers, and other employees, for the purposes of enforcing this chapter, may enter upon any land or water in the State that is the subject of an inspection, investigation, or remedial actions without a search warrant or liability for trespass. [L 2007, c 262, pt of §1]

HRS §179D-23 Injunctive relief

179D-23. Injunctive relief Whenever in the judgment of the department any person has engaged in or is about to engage in any act or practice that constitutes or will constitute an unlawful action under this chapter, the department may apply to the circuit environmental court of the county in which the unlawful act or practice has been or is about to be engaged in, or in which jurisdiction is appropriate, for an order enjoining the act or practice, or for an order requiring compliance with this chapter. Upon a showing by the department that a person has engaged in or is about to engage in any unlawful act or practice, a permanent or temporary injunction, restraining order, or other order shall be granted without the necessity of showing lack of an adequate remedy at law. [L 2007, c 262, pt of §1; am L 2014, c 218, §8]

HRS §179D-25 Establishment of dam and reservoir safety special fund

179D-25. Establishment of dam and reservoir safety special fund (a) There is established in the department a special fund, to be designated the dam and reservoir safety special fund. The fund shall be administered by the board. The following shall be deposited into the dam and reservoir safety special fund: (1) Appropriations by the legislature; (2) All fees and administrative charges collected under this chapter or any rule adopted thereunder; (3) Moneys collected as fines or penalties imposed under this chapter or any rule adopted thereunder; (4) Moneys derived from public or private sources to benefit dam and reservoir safety; (5) Moneys collected in full or partial satisfaction of liens created under this chapter; (6) Any moneys collected from the sale of retail items by the department relating to dam and reservoir safety; (7) Any other moneys collected pursuant to this chapter or any rules adopted thereunder; and (8) Moneys derived from interest, dividends, or other income from other sources. (b) The board may expend moneys from the dam and reservoir safety special fund for: (1) Conducting investigations, research, and the collection of data, including technological advances made in dam and reservoir safety practices elsewhere; (2) Conducting investigations, monitoring, and inspection programs and activities, and enforcement; (3) Preparing and disseminating information to the public concerning activities authorized under this chapter; (4) Training and providing educational activities for department staff and dam and reservoir owners; (5) Employing any necessary remedial measures to protect persons and property in accordance with this chapter; (6) The costs and expenses of the coordination, assistance, control, regulation, abatement, and inspection provided by this chapter; and (7) Other purposes for the administration of the dam and reservoir safety program under this chapter or any rule adopted thereunder, including but not limited to funding permanent or temporary positions that may be appointed without regard to chapter 76. The board shall provide coordination and assistance to the proper state or county agency or agencies to control any dam, reservoir, and appurtenances subject to section 179D-24 until they have been rendered safe or the emergency has terminated. (c) Moneys on balance in the dam and reservoir safety special fund at the close of each fiscal year shall remain in that fund and shall not be transferred or lapsed to the credit of the general fund. [L 2007, c 262, pt of §1]

HRS §179D-26 Liens

179D-26. Liens (a) Costs of construction, enlargement, repair, alteration, or removal work done to render a dam, reservoir, or appurtenances safe shall constitute a statutory lien against all property of the owner. Notwithstanding any other law to the contrary, the lien shall be considered prior and superior to all other mortgages, liens, or encumbrances of record even if those other mortgages, liens, or encumbrances were filed before the lien pursuant to this subsection becomes due. (b) Liens pursuant to subsection (a) may be perfected and foreclosed in advance of construction, enlargement, repair, alteration, or removal or after completion of the construction, enlargement, repair, alteration, or removal. If perfected in advance, the lien shall be perfected by the filing of an affidavit of the board setting forth the estimate of the costs of construction, enlargement, repair, alteration, or removal within the county in which the dam or reservoir is located in the same manner as prescribed for mechanic's liens. When the affidavit is filed, the amount set forth in the affidavit shall be a lien in that amount against all property of the owner. If the actual cost of construction, enlargement, repair, alteration, or removal exceeds the estimated cost, the board may amend the affidavit setting forth the additional estimated cost. If the estimated cost exceeds the actual costs of construction, enlargement, repair, alteration, or removal at completion, the board shall file an amended affidavit at completion. If a lien is perfected in advance and the construction, enlargement, repair, alteration, or removal is not commenced within two years from the date of perfection, the lien shall be void. The board shall file a satisfaction of lien upon payment of the costs of construction, enlargement, repair, alteration, or removal by the owner. [L 2007, c 262, pt of §1]

HRS §179D-27 Dams and reservoirs completed prior to July 6, 2007

179D-27. Dams and reservoirs completed prior to July 6, 2007 (a) Every owner of a dam or reservoir that falls within the definition of a dam or reservoir in this chapter and was completed prior to July 6, 2007 shall file with the board a separate application for a certificate of approval to impound and any other supporting information as required by the board for each dam or reservoir. Each application shall also be accompanied by application fees as required by the board. During the application process for a certificate of approval to impound, the owner or operator of a dam or reservoir may continue to impound water, unless the board determines that the dam or reservoir may pose a danger to the health and safety of persons or property. (b) The board shall give notice to file an application for certificate of approval to impound to owners of dams or reservoirs who have failed to file such applications as required by this chapter. (c) The notice provided for in this section shall be delivered by certified mail to the owner at the owner's last address of record in the office of the county tax assessor in which the dam or reservoir is located. The mailing shall constitute service. (d) The board shall make inspections of any dams and reservoirs, unless the data, records, and inspection reports on file with it are found adequate to enable a determination of whether or not the certificate of approval to impound should be issued. (e) The board shall require owners of the dams and reservoirs to perform at their expense any work or tests as may reasonably be required to disclose information sufficient to enable the board to determine whether to issue certificates of approval to impound, or to issue orders directing further work at the owner's expense necessary to safeguard life and property. For this purpose, the board may require an owner or operator to lower the water level of, or to drain, the dam or reservoir. (f) If, upon inspection or upon completion to the satisfaction of the board of all work that may be ordered, the board finds that the dam and reservoir are safe to impound water, a certificate of approval to impound shall be issued. The board may find that the dam or reservoir will not safely impound water and may refuse to issue a certificate of approval to impound. Upon finding that the dam or reservoir is unsafe to impound water, the board shall issue a written notice to the owner. After receipt of the notice, the owner shall no longer cause or allow the dam and reservoir to impound water. [L 2007, c 262, pt of §1]

HRS §179D-28 Dams and reservoirs under construction, enlargement, repair, alteration, or removal before July 6, 2007

179D-28. Dams and reservoirs under construction, enlargement, repair, alteration, or removal before July 6, 2007 (a) Any dam or reservoir that falls within the definitions of a dam or reservoir in this chapter and which the board finds was under construction, enlargement, repair, alteration, or removal, and based on its findings not more than ninety per cent constructed, enlarged, repaired, altered, or removed on July 6, 2007, except as provided in subsection (b), shall be subject to the same provisions in this section as a dam or reservoir commenced after that date. Every owner of a dam or reservoir subject to this section shall file an application with the board for the board's written application approval of the plans and specifications for the dam or reservoir. (b) Construction, enlargement, repair, alteration, or removal work on the dam or reservoir may proceed; provided an application for approval of the plans and specifications is filed; until: (1) An application approval is received by the owner approving the dam or reservoir; or (2) An order is received by the owner specifying how the construction, enlargement, repair, alteration, or removal must be performed to render the dam or reservoir safe. After receipt of an application approval or order specifying how construction, enlargement, repair, alteration, or removal of the dam or reservoir must be performed, work thereafter must be in accordance with the application approval or order. [L 2007, c 262, pt of §1]

HRS §179D-29 Annual report

179D-29. Annual report The department shall submit an annual report to the governor and the legislature by January 5 of each year concerning the activities of the department relating to this chapter for the preceding fiscal year. The report shall include but not be limited to information on the following: (1) Approvals of plans and specifications for the construction of dams and reservoirs and for alterations, modifications, repairs, removal, and enlargements of any dams and reservoirs; (2) A listing of dam and reservoir safety inspections made; (3) Use of appropriated funds; (4) Rules adopted or amended; (5) Enforcement orders and proceedings; (6) Dam and reservoir failures and department evaluations of the reasons for the failure, if known; and (7) Any other available data regarding the effectiveness of the State's dam and reservoir safety program. [L 2007, c 262, pt of §1]

HRS §179D-30 Dam and reservoir owners; general requirements and responsibilities

179D-30. Dam and reservoir owners; general requirements and responsibilities Dam and reservoir owners subject to regulation under this chapter shall, among other general requirements and responsibilities: (1) Maintain an operation and maintenance plan, including an owner or operator, as the case may be, inspection and monitoring program, with written, regularly scheduled reports to the board, to maintain and keep the structure, its appurtenant works, and access in the state of repair and operating condition required by the exercise of due care, with regard for the safety of persons or property, sound and accepted engineering principles, and the rules adopted by the board; (2) Establish an emergency action plan for high and significant hazard potential dams and reservoirs and provide this plan to the board, state and county civil defense agencies, and other necessary parties, with regard for the safety of persons or property, sound and accepted engineering principles, and the rules adopted by the board; (3) Cooperate with the board's agents, engineers, and employees in carrying out this chapter; (4) Facilitate access by any necessary state agencies or authorized representative, to the dam, reservoir, or appurtenances. Access by a four-wheeled-drive vehicle to the dam or reservoir site, and appurtenances if required by the board, shall be maintained at all times; provided that if vehicular access to the dam or reservoir site cannot be maintained during periods of inclement weather, the dam or reservoir owner for high and significant hazard potential dams or reservoirs shall have redundant early warning systems in place, as approved by the board; and (5) Furnish upon request the plans, specifications, operating and maintenance data, or other information that is pertinent to the dam and reservoir structure and appurtenances as indicated in this chapter. [L 2007, c 262, pt of §1]

HRS §179D-31 Dam and appurtenance improvement or removal grant program; special fund; established

179D-31. Dam and appurtenance improvement or removal grant program; special fund; established (a) There is established a dam and appurtenance improvement or removal grant program, to be developed and administered by the department for the improvement or removal of deficient dams in the State. (b) The dam and appurtenance improvement or removal grant program shall provide funding to owners of private dams for plans, design, construction, and equipment to improve or remove deficient dams and appurtenances, as determined by the department. (c) Each award shall be approved by the board before disbursement and shall be subject to conditions imposed by the board. (d) The department may award grants based on criteria that shall be developed by the department. Each applicant shall meet the following requirements: (1) The applicant shall be an owner of a high hazard or significant hazard dam or appurtenance that is regulated under this chapter; (2) The applicant shall be the owner of a regulated dam or appurtenance that has been determined to have one or more deficiencies; provided that priority shall be given to dams or appurtenances rated to be in poor or unsatisfactory condition; (3) The applicant shall indicate on the application that the proposed plans, design, construction, and equipment shall be intended for remediation or removal of the dam or appurtenance; (4) If the applicant is an entity other than an individual, the applicant shall: (A) Be licensed to conduct business in the State; and (B) Have bylaws or policies that describe the manner in which business is conducted, prohibit nepotism, and provide for the management of potential conflicts of interest; (5) The applicant shall agree to comply with all applicable federal and state laws prohibiting discrimination against any person on the basis of race, color, national origin, religion, creed, sex, age, sexual orientation, disability, or any other characteristic protected under applicable federal or state law; (6) The applicant shall agree that grant moneys are not to be used for purposes of entertainment or perquisites; (7) The applicant shall agree that all activities and improvements undertaken with funds received shall comply with applicable federal, state, and county laws, including statutes, ordinances, applicable building codes, and rules; (8) The applicant shall agree to make available to the department all records that the applicant may have relating to the grant and allow state agencies to monitor the applicant's compliance with the purpose of this chapter; (9) The applicant shall establish, to the satisfaction of the department, that sufficient funds are available for the completion of plans, design, and construction, or equipment needed for the purpose for which the grant is awarded; provided that the grant amount shall be included among the calculation of sufficient funds; and (10) The applicant shall comply with other requirements or conditions as the department or board may prescribe. (e) Notwithstanding any provision to the contrary, there is established in the department a special fund to be designated as the dam and appurtenance improvement or removal grant program special fund. The fund shall be administered by the department. The following shall be deposited into the dam and appurtenance improvement or removal grant program special fund: (1) Appropriations by the legislature; (2) Moneys derived from public or private sources to benefit dam and appurtenance improvement or removal; (3) Any other moneys collected pursuant to this section or any rules adopted pursuant to this section; and (4) Moneys derived from interest, dividends, or other income from other sources. (f) The department may expend moneys from the dam and appurtenance improvement or removal grant program special fund in accordance with this section and other purposes for the administration of the dam and appurtenance improvement or removal grant program under this section or any rule adopted pursuant to this section, including but not limited to funding for permanent or temporary positions. [L 2023, c 134, §3; am L 2024, c 232, §2]

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