Current through Register Vol. 46, No. 39, September 25, 2024
Whenever in the judgment of the department it may be
necessary to safeguard life or property or to protect natural resources, after
hearing on due notice, the department may, in carrying out the provisions of
ECL article 15 sections 0507 and 0511, issue an order that sets forth the
findings of fact and conclusions there from, and directs any owner to:
(1) conduct studies, investigations and
analyses in accordance with this Part necessary to evaluate the safety of the
dam, including but not limited to visual inspections, measurements, foundation
exploration and testing, materials testing, hydraulic and hydrologic analyses,
structural stability analyses and seepage investigations; and
(2) either remove the dam or construct,
reconstruct or repair the same within such reasonable time and in such manner
as shall be specified in said order. It shall be the duty of every such owner
to obey, observe and comply with such order and with the conditions therein
prescribed. The administrative procedures within the provisions of Part 622 of
this Title and article 15, Title 9 shall be applicable to hearings brought
under this Part.
(b) It shall be unlawful for
any owner to fail, omit or neglect to comply with an order issued under
subdivision (a) of this section within a reasonable time as designated by the
department.
(c) Each violation of
an order issued under this Part is a separate offense. In the case of
continuing violations, each day's continuance is deemed a separate and distinct
offense.
(d) Upon the violation of
any such order or if the owner cannot be ascertained or found, the department
or its duly appointed agent(s) may enter upon lands and waters for the purpose
of either removing or constructing, reconstructing or repairing the dam and to
take such other and further precautions which may be deemed necessary to
safeguard life or property or protect the natural resources of the State
against danger occasioned by the presence of the dam. In either removing or
constructing, reconstructing or repairing the dam or other properties so
affected the department shall make all efforts to not deviate from the method,
manner and specifications contained in the order.
(e) The department shall certify the amount
of the costs and expenses incurred by the department or any State department or
agency during the course of any work undertaken pursuant to this section for
the removal, repair, or reconstruction aforesaid in any way connected therewith
to the county legislative body of the county or counties in which the said
lands and waters are located. Upon the submission of costs by the department,
it shall be the duty of such county legislative body of each county to add the
amount so certified to the assessment rolls of such locality or localities as a
charge against the real property upon which the dam is located, designated or
described by the department as chargeable therewith, and to issue its warrant
or warrants for the collection thereof. Thereupon it shall become the duty of
such locality or localities through their proper officers to collect the amount
so certified in the same manner as other taxes are collected in such locality
or localities and when collected to pay the same to the department, who shall
thereupon, pay the same into the State Treasury. Any amount so levied shall
thereupon become and be a lien upon the real property affected thereby to the
same extent as any tax levy becomes and is a lien thereon. The department may
also assert any other rights of recovery as may exist by law for such costs and
expenses incurred.
(f) The entire
cost expended by the department to alleviate any unsafe conditions, as
determined by the department, may be charged against a dam owner in accordance
with ECL article 15, section 0507 or 0511, unless the department approves other
arrangements to repay the total or a portion of the total costs. The department
may also assert any other rights of recovery as may exist by law for such costs
and expenses incurred.
(g) Nothing
in this Part shall affect the right of any party to seek contribution from any
other person responsible for such costs pursuant to any other statute or under
common law.
