Bill Summary – FastDemocracy

BILL AS INTRODUCED                                                          H.615
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                                       H.615
 Introduced by Representatives Mihaly of Calais, Casey of Montpelier, and
                Chapin of East Montpelier
 Referred to Committee on
 Date:
 Subject: Conservation and development; dams; transfer of jurisdiction
 Statement of purpose of bill as introduced: This bill proposes to transfer the
 jurisdiction over safety for certain dams in the State from the Public Utility
 Commission to the Department of Environmental Conservation.
    An act relating to transferring safety jurisdiction over certain hydroelectric
    dams
 It is hereby enacted by the General Assembly of the State of Vermont:
 Sec. 1. 10 V.S.A. chapter 43 is amended to read:
                               CHAPTER 43. DAMS
 § 1079. PURPOSE
    It is the purpose of this chapter to protect public safety and provide for the
 public good through the inventory, inspection, and evaluation of dams in the
 State.
 § 1080. DEFINITIONS
    As used in this chapter:
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       (1) “Department” means the Department of Environmental
 Conservation.
                                        ***
       (4) “Engineer” means a professional engineer licensed under Title 26
 who has experience in the design and investigation of dams.
                                        ***
       (6)(A) “Dam” means any artificial barrier, including its appurtenant
 works, that is capable of impounding water, other liquids, or accumulated
 sediments.
          (B) “Dam” includes an artificial barrier that meets all of the
 following:
              (i) previously was capable of impounding water, other liquids, or
 accumulated sediments;
              (ii) was partially breached; and
              (iii) has not been properly removed or mitigated.
          (C) “Dam” shall does not mean:
              (i) barriers or structures created by beaver or any other wild
 animal as that term is defined in section 4001 of this title;
              (ii) transportation infrastructure that has no normal water storage
 capacity and that impounds water only during storm events;
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             (iii) an artificial barrier at a stormwater management structure that
 is regulated by the Agency of Natural Resources under chapter 47 of this title;
             (iv) an underground or elevated tank to store water otherwise
 regulated by the Agency of Natural Resources;
             (v) an agricultural waste storage facility regulated by the Agency
 of Agriculture, Food and Markets under 6 V.S.A. chapter 215; or
             (vi) any other structure identified by the Department by rule.
       (7) “Federal dam” means:
          (A) a dam owned by the United States; or
          (B) a dam subject to a Federal Energy Regulatory Commission
 license or exemption.
       (8) “Intake structure” means a dam that is constructed and operated for
 the primary purposes of minimally impounding water for the measurement and
 withdrawal of streamflow to ensure use of the withdrawn water for
 snowmaking, potable water, irrigation, or other purposes approved by the
 Department.
       (9) “Nonfederal dam” means a dam that is not a federal dam.
 § 1081. JURISDICTION OF DEPARTMENT AND PUBLIC UTILITY
         COMMISSION
    (a) Powers and duties. Unless otherwise provided, the powers and duties
 authorized by this chapter shall be exercised by the Department, except that the VT LEG #372161 v.1
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 Public Utility Commission shall exercise those powers and duties over
 nonfederal dams and projects that relate to or are incident to the generation of
 electric energy for public use or as a part of a public utility system. Nonfederal
 dams at which the generation of electric energy is subject to licensing
 jurisdiction under the Federal Power Act, 16 U.S.C. chapter 12, subchapter 1,
 shall not be under the jurisdiction of the Public Utility Commission of
 Environmental Conservation.
    (b) Transfer of jurisdiction. Jurisdiction over a nonfederal dam is
 transferred from the Department to the Public Utility Commission when the
 Public Utility Commission receives an application for a certificate of public
 good for electricity generation at that dam. Jurisdiction over a federal dam is
 transferred to the Department when the license or exemption for a federal dam
 expires or is otherwise lost; when a certificate of public good is revoked or
 otherwise lost; or when the Public Utility Commission denies an application
 for a certificate of public good.
    (c) Transfer of records. Upon transfer of jurisdiction as set forth in
 subsection (b) of this section and upon written request, the State agency having
 former jurisdiction over a dam shall transfer copies of all records pertaining to
 the dam to the agency acquiring jurisdiction.
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 § 1082. AUTHORIZATION
    (a) No person shall construct, enlarge, raise, lower, remodel, reconstruct, or
 otherwise alter any nonfederal dam, pond, or impoundment or other structure
 that is or will be capable of impounding more than 500,000 cubic feet of water
 or other liquid after construction or alteration, or remove, breach, or otherwise
 lessen the capacity of an existing nonfederal dam that is or was capable of
 impounding more than 500,000 cubic feet within or along the borders of this
 State where land in this State is proposed to be overflowed, or at the outlet of
 any body of water within this State, unless authorized by the State agency
 having jurisdiction so to do Department, provided that an application for
 activities that require authorization under 30 V.S.A. § 248 also shall be
 approved by the Public Utility Commission. However, in the matter of flood
 control projects where cooperation with the federal government is provided for
 by the provisions of section 1100 of this title, that section shall control.
    (b) For the purposes of this chapter, the volume a dam or other structure is
 capable of impounding is the volume of water or other liquid, including any
 accumulated sediments, controlled by the structure with the water or liquid
 level at the top of the lowest nonoverflow part of the structure.
    (c) An intake structure in existence on July 1, 2018 that continues to
 operate in accordance with a valid Department permit or approval that contains
 requirements for inspection and maintenance subject to section 1105 of this VT LEG #372161 v.1
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 title shall have a rebuttable presumption of compliance with the requirements
 of this chapter and rules adopted under this chapter, provided that no
 presumption of compliance shall apply if one or both of the following occur on
 or after July 1, 2018:
       (1) the owner or operator of the intake takes an action that requires
 authorization under this section; or
       (2) the Department issues an order under section 1095 of this title
 directing reconstruction, repair, removal, breaching, draining, or other action it
 considers necessary to improve the safety of the dam.
 § 1083. APPLICATION
    (a) Any person who proposes to undertake an action subject to regulation
 pursuant to section 1082 of this title shall apply in writing to the State agency
 having jurisdiction Department. The application shall set forth:
       (1) the location; the height, length, and other dimensions; and any
 proposed changes to any existing dam;
       (2) the approximate area to be overflowed and the approximate number
 of or any change in the number of cubic feet of water to be impounded;
       (3) the plans and specifications to be followed in the construction,
 remodeling, reconstruction, altering, lowering, raising, removal, breaching, or
 adding to;
       (4) any change in operation and maintenance procedures; and VT LEG #372161 v.1
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          (5) other information that the State agency having jurisdiction
 Department considers necessary to review the application.
    (b) The plans and specifications shall be prepared under the supervision of
 an engineer.
 § 1084. DEPARTMENT OF FISH AND WILDLIFE; INVESTIGATION
    The Commissioner of Fish and Wildlife shall investigate the potential
 effects on fish and wildlife habitats of any proposal subject to section 1082 of
 this title and shall certify the results to the State agency having jurisdiction
 Department prior to any hearing or meeting relating to the determination of
 public good and public safety.
 § 1085. NOTICE OF APPLICATION
    Upon receipt of the application required by section 1082 of this title, the
 State agency having jurisdiction Department shall give notice to the legislative
 body of each municipality in which the dam is located and to all interested
 persons. The Department shall provide notice and an opportunity for public
 comment in accordance with chapter 170 of this title.
          (1) The Department shall proceed in accordance with chapter 170 of this
 title.
          (2) For any project subject to its jurisdiction under this chapter, the
 Public Utility Commission shall hold a hearing on the application. The
 purpose of the hearing shall be to determine whether the project serves the VT LEG #372161 v.1
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 public good as defined in section 1086 of this title and provides adequately for
 the public safety. The hearing shall be held in a municipality in the vicinity of
 the proposed project and may be consolidated with other hearings, including
 hearings under 30 V.S.A. § 248 concerning the same project. Notice shall be
 given at least 10 days before the hearing to interested persons by posting in the
 municipal offices of the towns in which the project will be completed and by
 publishing in a local newspaper.
 § 1086. DETERMINATION OF PUBLIC GOOD; CERTIFICATES
    (a) “Public good” means the greatest benefit of the people of the State. In
 determining whether the public good is served, the State agency having
 jurisdiction Department shall give due consideration to, among other things,
 the effect the proposed project will have on:
       (1) the quantity, kind, and extent of cultivated agricultural land that may
 be rendered unfit for use by or enhanced by the project, including both the
 immediate and long-range agricultural land use impacts;
       (2) scenic and recreational values;
       (3) fish and wildlife;
       (4) forests and forest programs;
       (5) [Repealed.]
       (6) the existing uses of the waters by the public for boating, fishing,
 swimming, and other recreational uses;
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       (7) the creation of any hazard to navigation, fishing, swimming, or other
 public uses;
       (8) the need for cutting clean and removal of all timber or tree growth
 from all or part of the flowage area;
       (9) the creation of any public benefits;
       (10) attainment of the Vermont water quality standards;
       (11) any applicable State, regional, or municipal plans;
       (12) municipal grand lists and revenues;
       (13) public safety; and
       (14) in the case of the proposed removal of a dam that formerly related
 to or was incident to the generation of electric energy, but that was not subject
 to a memorandum of understanding dated prior to January 1, 2006 relating to
 its removal, the potential for and value of future power production.
    (b) If the State agency having jurisdiction Department finds that the project
 proposed under section 1082 of this title will serve the public good, and, in
 case of any waters designated by the Secretary as outstanding resource waters,
 will preserve or enhance the values and activities sought to be protected by
 designation, the agency shall issue its order approving the application. The
 order shall include conditions for attainment of water quality standards, as
 determined by the Agency of Natural Resources, and such other conditions as
 the agency having jurisdiction Department considers necessary to protect any VT LEG #372161 v.1
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 element of the public good listed in subsection (a) of this section. Otherwise it
 shall issue its order disapproving the application.
    (c) The State agency having jurisdiction Department shall provide the
 applicant and interested persons with copies of its order.
    (d) In the case of a proposed removal of a dam that is under the jurisdiction
 of the Department and that formerly related to or was incident to the generation
 of electric energy but that was not subject to a memorandum of understanding
 dated before January 1, 2006 relating to its removal, the Department shall
 consult with the Department of Public Service regarding the potential for and
 value of future power production at the site.
 § 1087. REVIEW OF PLANS AND SPECIFICATIONS
    For any proposal subject to authorization under section 1082 of this title, the
 State agency having jurisdiction Department shall employ require an engineer
 to investigate the property, review the plans and specifications, and make
 additional investigations as the State agency having jurisdiction Department
 considers necessary to ensure that the project adequately provides for the
 public safety. The engineer conducting an investigation under this section
 shall be an employee of the Department or shall be operating under the
 supervision of the Department as an independent consultant. The engineer
 shall report his or her the engineer’s findings to the State agency having
 jurisdiction Department.
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 § 1089. EMPLOYMENT OF ENGINEER
    With the approval of the Governor, the State agency having jurisdiction
 Department may employ require an engineer to investigate the property,
 review the plans and specifications, and make such additional investigation as
 the State agency Department shall deem necessary, and such. The engineer
 conducting an investigation under this section shall be an employee of the
 Department or shall be operating under the supervision of the Department as
 an independent consultant. The engineer shall report to the State agency his or
 her Department the engineer’s findings in respect thereto and the Department
 shall approve or disapprove the findings.
 § 1090. CONSTRUCTION SUPERVISION
    The construction, alteration, or other action authorized in section 1086 of
 this title shall be supervised by an engineer employed by the applicant. Upon
 completion of the authorized project, the engineer shall certify to the agency
 having jurisdiction Department that the project has been completed in
 conformance with the approved plans and specifications.
 § 1095. UNSAFE DAM; PETITION; HEARING; EMERGENCY
    (a) On receipt of a petition signed by no not fewer than ten 10 interested
 persons or the legislative body of a municipality, the State agency having
 jurisdiction Department shall, or upon its own motion it may, institute
 investigations by an engineer as described in section 1087 of this title VT LEG #372161 v.1
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 regarding the safety of any existing nonfederal dam or portion of the dam of
 any size. The agency Department may fix a time and place for hearing and
 shall give notice in the manner it directs to all interested persons. The engineer
 shall