58:4-5 Alterations, additions and repairs of unsafe reservoirs or dams; duties of owner.
58:4-5. a. An owner or person having control of a reservoir or dam shall:
(1) Implement all measures required pursuant to this chapter or the provisions of P.L.1981, c.249 (C.58:4-8.1 et seq.), or any rule, regulation, code, permit or order issued pursuant thereto, including but not limited to, performance of periodic inspections required pursuant to section 2 of P.L.1981, c.249 (C.58:4-8.2) or development, updating and implementation of emergency action plans;
(2) Provide to the Department of Environmental Protection, upon request, any reports or information required pursuant to this chapter or the provisions of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto; and
(3) Implement any action ordered by the Commissioner of Environmental Protection to correct conditions that render the reservoir or dam to be considered, as determined by the commissioner, unsafe or improperly maintained or to bring the reservoir or dam into compliance with standards established pursuant to this chapter, or any rule or regulation adopted, or permit or order issued pursuant thereto.
b. If, in the judgment of the commissioner, any reservoir or dam is not sufficiently strong to resist the pressure of water that is or may be upon it or there is reasonable cause to believe that danger to life or property may be anticipated from the reservoir or dam, or if for any other cause the commissioner shall determine the reservoir or dam to be unsafe or improperly maintained, the commissioner shall take any action authorized pursuant to this section to compel compliance with the provisions of this chapter, or any rule or regulation adopted, or permit or order issued pursuant thereto, and shall determine whether the water in the reservoir or above the dam shall be drawn off in whole or in part, and what alterations, additions and repairs are necessary to be made to the reservoir or dam to make it safe and properly maintained or whether the dam or appurtenant structures located therein should be removed. The commissioner also may take action as authorized pursuant to R.S.58:4-6 against the owner or person having control of the reservoir or dam for such relief as the commissioner may determine. The commissioner shall forthwith in writing order the owner or person having control of the reservoir or dam to cause the alterations, additions and repairs to be made within the time to be limited in the order. A copy of any order issued by the commissioner pursuant to this section shall be sent to the clerk of the municipality and the clerk of the county in which the reservoir or dam is located. The commissioner also may order the water in the reservoir or above the dam to be drawn off in whole or in part as the commissioner may determine. The commissioner shall not approve the decommissioning of a reservoir or dam until the commissioner has provided 30 days' prior notice and the commissioner has complied with the provisions of R.S.58:4-10 as applicable. The notice of the proposed decommissioning shall be published at least 30 days prior to the decommissioning of the reservoir or dam in at least one newspaper of general circulation in the municipality in which the reservoir or dam is located. The commissioner shall have the right to enter upon any and all properties for the purpose of obtaining information about the safety and proper maintenance of any reservoir, dam or appurtenant structures located therein.
c. Any owner or person having control of a reservoir or dam who fails to comply with an order issued pursuant to this section or R.S.58:4-6 may be liable to the department in an amount equal to the cost of removal of the dam or appurtenant structures located therein undertaken by the department, including attorney's fees and court costs, pursuant to subsection d. of this section.
Whenever two or more owners or persons having control of a reservoir or dam are liable for the cost of removal, including attorney's fees and court costs, the department may allocate the cost of removal among the liable parties using such factors as the department determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution from any other person responsible for the cost of removal of the dam pursuant to any other statute or under common law.
d. (1) Whenever the commissioner determines that a dam is in imminent danger of failure and has reasonable cause to believe that danger to life or property may be anticipated from the reservoir, dam or appurtenant structures located therein, and the owner of the dam or person having control of the reservoir or dam has failed to comply with an order to repair the dam issued pursuant to subsection a. of this section or R.S.58:4-6, or to take such interim measures as the department determines are appropriate, including reducing the amount of water impounded by the dam or breaching the dam, the department may, in addition to actions authorized pursuant to R.S.58:4-6, enter upon any and all properties wherein the reservoir, dam or appurtenant structures are located and, using resources and personnel available to the department, remove or cause to be removed the dam or appurtenant structures located therein, allowing the water to flow freely.
Prior to any action by the department pursuant to this subsection, the owner or person having control of the reservoir or dam, shall, no later than 60 days after receipt of a notice from the department of a pending removal action, submit to the department, in writing, an acceptable implementation plan addressing the proposed actions to be taken regarding the failed or failing reservoir or dam.
(2) Any expenditures made by the department pursuant to this section shall constitute, in each instance, a debt to the State. The debt shall constitute a lien on all property owned by the owner or person having control of the reservoir or dam when a certificate of debt, incorporating a description of the property of the owner or person having control of the reservoir or dam subject to the repair, and related costs, is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment and order docket the name and address of the owner or person having control of the reservoir or dam and the amount of the lien as set forth in the certificate of debt. Upon entry by the clerk, the lien, to the amount committed by the department for dam repair, shall attach to the revenues and all real and personal property of the owner or person having control of the reservoir or dam, whether or not the owner or person having control of the reservoir or dam is insolvent.
The certificate of debt filed pursuant to this paragraph which affects the property of an owner or person having control of a reservoir or dam subject to the dam repairs shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this certificate of debt shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this certificate of debt.
The certificate of debt filed pursuant to this subsection which affects any property of an owner or person having control of a reservoir or dam, other than the property subject to the repairs, shall have priority from the day of the filing of the certificate of debt over all other claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a certificate of debt pursuant to this subsection.
Whenever the owner or person having control of the reservoir or dam is a private lake association or other body representing owners of property adjacent to the reservoir or lake created by the dam or impoundment, liens may be imposed upon the individual owners of the property represented by the association. An owner whose property has such a lien imposed may release the property from a lien claimed under this subsection by filing with the clerk of the Superior Court a cash or surety bond, payable to the department in the amount of the sums expended by the department pursuant to this section, including attorney's fees and court costs, or the value of the property after the abatement action is complete, whichever is less.
e. The provisions of this section shall not limit the use of other remedies available to the department pursuant to law.
f. The commissioner may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules or regulations necessary to implement the provisions of this section.
Amended 1981, c.249, s.7; 1994, c.84, s.1; 2005, c.228, s.1.