Pennsylvania Act 1998-91 — FISH AND BOAT CODE (30 PA.C.S.) - AMEND DAM MARKING

Act text

FISH AND BOAT CODE (30 PA.C.S.) - AMEND DAM MARKING
                  Act of Jun. 19, 1998, P.L. 702, No. 91              Cl. 30
                             Session of 1998
                               No. 1998-91

     HB 10

                                  AN ACT

     Amending Title 30 (Fish) of the Pennsylvania Consolidated
        Statutes, providing for marking of dams.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 30 of the Pennsylvania Consolidated
     Statutes is amended by adding a section to read:
      § 3510.  Marking of dams.
        (a)  New dams.--In issuing permits for the construction or
     installation of new run-of-the-river dams on the waters of this
     Commonwealth, the department shall include a permit advisory
     notifying the permittee of the requirements of this section. The
     permittee of a new run-of-the-river dam shall mark the areas
     above and below the dam and on the banks immediately adjacent to
     the dam with signs and buoys of a design and content determined
     by the commission to warn the swimming, fishing and boating
     public of the hazards posed by the dam.
        (b)  Existing dams.--
            (1)  The department shall compile and maintain a current
        list of existing dams on the waters of this Commonwealth that
        the department determines to be run-of-the-river type dams.
        Within three months of the effective date of this section,
        the department shall notify the permittees and owners of
        those run-of-the-river dams of the requirements of this
        section by certified letter. Within six months of receiving
        notification of the requirements of this section from the
        department, the permittees and owners of run-of-the-river
        dams shall comply with the requirements of this section to
        mark the areas above and below their dams and on the banks
        immediately adjacent to their dams during the time periods of
        the year required by the commission with signs and buoys of a
        design and content determined by the commission to warn the
        swimming, fishing and boating public of the hazards posed by
        the dam.
            (2)  If the permittee or owner of a run-of-the-river dam
        disagrees with the determination of the department, the
        permittee or owner shall file written notice with the
        Environmental Hearing Board within 30 days of receiving the
        determination. The Environmental Hearing Board shall reach a
        decision as soon as practicable. If the decision of the board
        upholds the determination of the department, the permittee or
        owner filing such notice shall have six months to comply with
        this section following the decision.
        (c)  Maintenance of signs and buoys.--
            (1)  It shall be the responsibility of the permittees and
        owners of run-of-the-river dams to maintain in proper
        location, legible condition and during the time periods of
        the year established by the commission signs and buoys
        installed pursuant to the requirements of this section.
            (2)  When a permittee or owner learns that signs or buoys
        installed under this section have been removed or defaced by
        an act of God or the acts or omissions of third parties other
        than the permittee or owner or his agent, he shall repair or
        replace the signs or buoys within 30 days unless river
        conditions during that time make such repair or replacement
        dangerous to undertake or impracticable to effect, in which
        case the permittee or owner shall repair or replace the signs
        or buoys as soon as is reasonably practicable. If a permittee
        or owner or his agent removes any signs or buoys, he shall
        have five days thereafter to repair or replace the signs or
        buoys.
        (d)  Size, content and location of signs and buoys marking
     run-of-the-river dams.--The commission, after consultation with
     the department, shall establish requirements for the content and
     location of signs and buoys to be installed under the authority
     of this section and the time periods of the year when the signs
     and buoys shall be required to be in place. The commission shall
     describe the requirements by notice published in the
     Pennsylvania Bulletin and may from time to time revise the
     requirements as circumstances require.
        (e)  Preemption of Federal law.--Any warning sign or buoy
     installed and maintained in the areas above or below a run-of-
     the-river dam or on the banks immediately adjacent to such a dam
     by a dam permittee or owner in compliance with the requirements
     of the United States Coast Guard, the Federal Energy Regulatory
     Commission or any Federal agency having jurisdiction over a run-
     of-the-river dam shall be deemed to meet the requirements
     established or imposed by or under this section regarding the
     placement of warning signs or buoys in said areas.
        (f)  Standard of care.--A dam permittee or owner who complies
     with the provisions of this section to mark a dam and who
     maintains signs and buoys as required by this section shall be
     deemed to have met the standard of care for warning the public
     of the hazards posed by the dam.
        (g)  Regulations.--The commission may promulgate regulations
     to implement the provisions of this section.
        (h)  Penalties.--
            (1)  Any person who fails to comply with subsection (a)
        or (b) shall forfeit and pay a civil penalty of not less than
        $500 nor more than $5,000. The penalty shall be recovered by
        civil suit or process in the name of the Commonwealth. Each
        calendar year of noncompliance shall constitute a separate
        violation.
            (2)  Any person who fails to comply with subsection (c)
        shall forfeit and pay a civil penalty of not less than $250
        nor more than $5,000. The penalty shall be recovered by civil
        suit or process in the name of the Commonwealth. Each
        calendar year of noncompliance shall constitute a separate
        violation.
            (3)  Any person who enters an exclusion zone marked under
        the provisions of this section commits a summary offense of
        the third degree provided that it shall not be a violation of
        this section for the permittee or owner and his agents and
        officers of the Commonwealth and local government to enter
        the exclusion zone for purposes of maintaining the dams and
        signs and buoys or for enforcement and rescue purposes.
            (4)  All fines received under this subsection shall be
        paid into the State Treasury for the use of the Fish Fund or
        Boat Fund, as appropriate.
        (i)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Department."  The Department of Environmental Protection of
     the Commonwealth.
        "Owner."  The person who owns a run-of-the-river dam
     regulated by the Department of Environmental Protection pursuant
     to the act of November 26, 1978 (P.L.1375, No.325), known as the
     Dam Safety and Encroachments Act.
        "Permit."  A permit issued by the Department of Environmental
     Protection pursuant to the act of November 26, 1978 (P.L.1375,
     No.325), known as the Dam Safety and Encroachments Act.
        "Permittee."  The person who has been issued a permit by the
     Department of Environmental Protection to maintain a run-of-the-
     river dam.
        "Run-of-the-river dam."  A manmade structure which:
            (1)  is regulated or permitted by the Department of
        Environmental Protection pursuant to the act of November 26,
        1978 (P.L.1375, No.325), known as the Dam Safety and
        Encroachments Act;
            (2)  is built across a river or stream for the purposes
        of impounding water where the impoundment at normal flow
        levels is completely within the banks and all flow passes
        directly over the entire dam structure within the banks,
        excluding abutments, to a natural channel downstream; and
            (3)  the department determines to have hydraulic
        characteristics such that at certain flows persons entering
        the area immediately below the dam may be caught in the
        backwash.
        Section 2.  This act shall take effect January 1, 1999.

     APPROVED--The 19th day of June, A. D. 1998.

     THOMAS J. RIDGE