Missouri Revised Statutes

Chapter 236
Dams, Mills and Electric Power

August 28, 2013




Dams across nonnavigable streams--who may erect.

236.010. Any person or corporation chartered and organized to construct, operate and maintain mills, electric power and light works, or other machinery, may erect a dam across any watercourse, not being a navigable stream, if such person or corporation is the proprietor of the land through which the watercourse runs at the point where it is proposed to erect such dam, by proceeding as herein provided.

(RSMo 1939 10286)

Prior revisions: 1929 9157; 1919 7399; 1909 5456



Owner of land on one side of stream may erect dam.

236.020. Any person or corporation chartered and organized to construct, operate and maintain mills, electric power and light works, or other machinery, being the owner, in fee simple, of the land on one side of such watercourse, including a part of the bed of the stream, at a point where it is proposed to erect a dam, may, nevertheless, erect such dam by proceeding as herein provided.

(RSMo 1939 10287)

Prior revisions: 1929 9158; 1919 7400; 1909 5457



Petition to be filed in circuit court--contents.

236.030. In the case supposed in section 236.010, the person or corporation proposing to erect a dam shall file a petition in the circuit court of the county in which it is proposed to erect such mill, electric power and light works, or other machinery, in connection with the dam, and shall therein set forth:

(1) A description of the land and an abstract of the title thereto;

(2) The name of the watercourse, and a description of the point at which it is proposed to erect such dam;

(3) The altitude of the dam which it is proposed to erect; and

(4) The kind of mill, electric power and light works, or other machinery, which it is proposed to connect with the dam.

(RSMo 1939 10288)

Prior revisions: 1929 9159; 1919 7401; 1909 5458



Additional information to be set out.

236.040. In the case supposed in section 236.020, the person or corporation proposing to erect a dam shall file a petition as provided in section 236.030, and in addition thereto shall set forth:

(1) The name and place of residence of the owner of the land on the other side of the watercourse whereon to abut such dam;

(2) On what side of the watercourse it is proposed to erect such mill, electric power and light works, or other machinery in connection with the dam; and

(3) A prayer that the title to one acre of the land on the opposite side of such watercourse, to include the place where to abut such dam, may be decreed to such person or corporation, and that the same may be set apart by metes and bounds.

(RSMo 1939 10289)

Prior revisions: 1929 9160; 1919 7402; 1909 5459



Petition, where filed.

236.050. Such petition shall be filed in the circuit court of the county within which the petitioner proposes to erect such mill, electric power and light works, or other machinery.

(RSMo 1939 10290)

Prior revisions: 1929 9161; 1919 7403; 1909 5460



Writ of ad quod damnum.

236.060. Upon filing the petition, it shall be the duty of the court to cause a writ of ad quod damnum to be issued, under the seal of the court, directed to the sheriff, commanding him to summon twelve fit persons of his county to meet at the place where it is proposed to erect a dam, on a day to be named in the writ, then and there to inquire, by the said jury, touching the matters contained in the petition a copy of which shall accompany the writ.

(RSMo 1939 10291)

Prior revisions: 1929 9162; 1919 7404; 1909 5461



Duty of sheriff in executing writ.

236.070. The sheriff shall attend the jury on the day and at the place appointed, and upon full examination, inquire by such jury:

(1) What damage each proprietor will sustain by reason of inundation consequent upon the erection of the dam, as proposed;

(2) Whether the mansion house of any such proprietor, or the outhouses, curtilages or gardens thereto immediately belonging, or orchard, will be overflowed thereby;

(3) Whether and to what extent ordinary navigation and the passage of fish will be obstructed by such erection, and whether and by what means the same may be prevented or diminished; and

(4) Whether the health of the neighborhood will be materially affected in consequence of such erection.

(RSMo 1939 10292)

Prior revisions: 1929 9163; 1919 7405; 1909 5462



Acre of ground to be set apart, when.

236.080. In the case supposed in section 236.020, the sheriff shall further inquire by the jury the value of the acre of land mentioned in the prayer of the petition, and set apart the same by metes and bounds.

(RSMo 1939 10293)

Prior revisions: 1929 9164; 1919 7406; 1909 5463



Proprietor to be notified of the inquest.

236.090. In such case the sheriff shall give the proprietor of the land whereof one acre is prayed for, a reasonable notice of the time and place when and where he will take the inquest of the jury, if such proprietor be in his county, and if not, he shall set up notice at the house of the tenant of such land, and if there be no actual tenant thereof, he shall set up such notice at some conspicuous place on the land.

(RSMo 1939 10294)

Prior revisions: 1929 9165; 1919 7407; 1909 5464



Sheriff and jury may act in adjoining county.

236.100. The sheriff and jury may enter and act in an adjoining county when necessary to the discharge of their duties.

(RSMo 1939 10295)

Prior revisions: 1929 9166; 1919 7408; 1909 5465



Inquest to be in writing.

236.110. The inquest of the jury shall be reduced to writing, signed by each of the jurors, and returned by the sheriff, together with the writ and a statement of the manner in which he executed it, into the court whence it issued, without delay.

(RSMo 1939 10296)

Prior revisions: 1929 9167; 1919 7409; 1909 5466



Proceedings on return of inquest.

236.120. Upon the return of such inquest and writ, any person aggrieved by the verdict of the jury may file his objections to the proceedings under such writ, and to the verdict, and show cause why the proceedings should be quashed and the verdict set aside.

(RSMo 1939 10297)

Prior revisions: 1929 9168; 1919 7410; 1909 5467



Issues to be tried as in civil cases.

236.130. The court may thereupon direct issues to be made up and tried as in other civil cases, and if good cause be shown therefor, the court shall quash the proceedings and set aside the verdict.

(RSMo 1939 10298)

Prior revisions: 1929 9169; 1919 7411; 1909 5468



Costs, how adjudged.

236.140. The costs attending the trial of such issues shall be adjudged against the unsuccessful party, as in other civil cases.

(RSMo 1939 10299)

Prior revisions: 1929 9170; 1919 7412; 1909 5469



Court may order new writ.

236.150. The court, on motion, may order a new writ of ad quod damnum to issue, for the purpose of having the damages assessed according to law.

(RSMo 1939 10300)

Prior revisions: 1929 9171; 1919 7413; 1909 5470



Court may enter order to erect dam, when.

236.160. If no objections be filed to the proceedings under the writ or to the verdict of the jury, and it shall appear to the court, upon a view of the inquest, that the mansion house of any proprietor, or the outhouse, curtilages or gardens thereto belonging, or orchard, will not be overflowed, and that the health of the neighborhood will not be materially affected by the stagnation of water consequent upon the proposed erection, the court shall thereupon grant or refuse the permission prayed for, according to its judgment of what would be most reasonable and just under all circumstances.

(RSMo 1939 10301)

Prior revisions: 1929 9172; 1919 7414; 1909 5471



Court shall include in its order, what.

236.170. When the party petitioning prays for an acre of land whereon to abut his dam, the court shall include in its order, if the petition is granted, a judgment vesting the title of such acre of land in the party petitioning, his heirs and assigns forever.

(RSMo 1939 10302)

Prior revisions: 1929 9173; 1919 7415; 1909 5472



Privilege to erect subject to certain conditions.

236.180. The judgment and order authorized by sections 236.160 and 236.170, and the rights and privileges thereby granted, shall, in all cases, be upon and subject to the conditions following:

(1) Such conditions in reference to the obstructions to the passage of fish and ordinary navigation, as the court shall think proper to impose;

(2) That all damages and valuations assessed and made by the jury shall be paid;

(3) That the dam and mills, electric power and light works, or other machinery, shall be commenced within one year, and finished and ready for business within three years from the date of the order of permission;

(4) That whenever the dam or mill, electric power and light works, or other machinery, shall be destroyed or materially impaired, the same shall be built or repaired within three years thereafter; but if the owner of such dam or mill, electric power and light works, or other machinery, shall be an infant, or of unsound mind, or imprisoned at the time such dam or mill, electric power and light works, or other machinery, shall be destroyed or materially impaired, then within three years after such disability is removed.

(RSMo 1939 10303, A. 1949 S.B. 1080)

Prior revisions: 1929 9174; 1919 7416; 1909 5473

CROSS REFERENCE:

Dam owners to maintain fishways--fish hatchery in lieu of fishway, 252.150



Land decreed for mill privileges to revert, when.

236.190. In case of noncompliance with any of the conditions concerning the building, rebuilding or repairing, where the land of another shall have been adjudged by the court for the purpose of an abutment, the same shall revert to and revest in the original owner, his assigns or legal representatives.

(RSMo 1939 10304)

Prior revisions: 1929 9175; 1919 7417; 1909 5474



Height of dam, how increased.

236.200. Any owner of any dam or mill, electric power and light works, or other machinery, erected by virtue of this or any previous law, may increase the altitude of his dam by permission of the court, under and by the same proceedings, regulations and conditions herein provided.

(RSMo 1939 10305)

Prior revisions: 1929 9176; 1919 7418; 1909 5475



Inquest not to bar right of action, when.

236.210. The inquest of the jury, or the order and permission of the court founded thereupon, shall not bar any prosecution or action for injuries caused by the erections herein contemplated, except such as were actually foreseen and estimated by the jury.

(RSMo 1939 10306)

Prior revisions: 1929 9177; 1919 7419; 1909 5476



Power of court to prevent erection of dam.

236.220. The circuit court of the proper county shall have power, upon petition, to prevent the erection or raising of any dam, stoppage, or obstruction across any stream which shall operate as a nuisance and be injurious to any mill, electric power and light works, or other machinery erected, or which shall dam up and render impure or unwholesome or unhealthy the waters of said stream at any point where water is or may be taken from said stream to supply the inhabitants of any city or town or village in the state with water, or of any dam, the erection of which has been authorized by the order of any competent tribunal, of a date earlier than that permitting the erection and raising of such first mentioned dam, stoppage or obstruction; and such court may, upon a final hearing of such petition, order and adjudge that such dam, stoppage or obstruction be abated by the sheriff of the proper county.

(RSMo 1939 10308)

Prior revisions: 1929 9179; 1919 7421; 1909 5478



Dams without chutes declared nuisances.

236.230. Every person who shall erect or maintain, or cause to be erected or maintained, in or across any of the waters of this state, unless said waters be wholly upon his own premises, any dam or other obstruction, no matter for what purpose, and shall not place and maintain thereon an apron or chute not less than fifteen feet wide, and sloping from each side to the center, so that the center shall be at least six inches lower than either edge, and having an inclination of not more than forty-five degrees, and so situated that the main current of water, impeded in its natural flow by the dam or other obstruction, shall pass over the same, or who shall not so construct or arrange such dam or other obstruction that it shall be lowest at the point where the apron or chute shall be placed, and low enough for the free passage of fish over the same each way, whenever the stream in which the same shall be situate shall be swollen beyond its ordinary size, shall be guilty of a misdemeanor, and shall be held to be guilty of a distinct offense each day he shall be in default as aforesaid; and every dam or other obstruction erected or maintained in violation of this section, shall be a public nuisance, and may be abated as such.

(RSMo 1939 10312)

Prior revisions: 1929 9183; 1919 7425; 1909 5482



Dams deemed public nuisances, when.

236.240. All dams, stoppages and obstructions not made according to law shall be deemed to be public nuisances, and may be dealt with as such.

(RSMo 1939 10309)

Prior revisions: 1929 9180; 1919 7422; 1909 5479



Forfeiture of rights, when.

236.250. If any person or corporation, or his or its legal representatives, to whom permission to erect a dam by virtue hereof shall have been given, shall fail to build, rebuild or repair the same, together with the mill, electric power and light works, or other machinery connected therewith, according to the requirements of law or the conditions of the permission, it shall be lawful for any person owning the land on one side of the watercourse, at the point where such dam is erected, or below, to build a dam and mill, electric power and light works, or other machinery thereon, as if no such permission had been given, without incurring any liability on account of backing the water on such dam.

(RSMo 1939 10310)

Prior revisions: 1929 9181; 1919 7423; 1909 5480



Dam reconstructed and maintained when used for other purposes.

236.255. In any case where a dam has been erected for a period of thirty years or more, and property above the dam within one mile of the point where the dam is situated has been developed for use of the impounded waters above the dam, the owner of the land on either side of the stream at the point where the dam is located shall have the right and authority to repair, maintain or reconstruct the dam, even though the dam is not used for the operation of any mill, electric power and light works, or other machinery.

(L. 1953 p. 669)



Privilege to construct dam to cease, when.

236.260. If the improvement of the navigation of any stream shall be undertaken by the state, or by any county, or other lawful authority under the state, then the privilege of keeping any dam across such stream, the right to construct which may be hereafter granted, shall cease, if the same would prevent or obstruct the making of such improvement; and it shall be the duty of the owner or owners of such dam, either to remove it or to make such change in the same as will render the navigation safe and convenient, according to the plan of such improvement; said change or alteration in such dam shall be so constructed as to be approved of by the proper officers or agents who shall have the superintendence of the improvement of such stream.

(RSMo 1939 10311)

Prior revisions: 1929 9182; 1919 7424; 1909 5481



Penalty for building without permission.

236.270. Any person who shall build or heighten any dam, or any other stoppage or obstruction on or across any watercourse, without first obtaining permission from the court of the proper county, according to law, and shall thereby work any injury to any other person, shall forfeit to the party injured double damages for such injury, to be recovered by civil action.

(RSMo 1939 10307)

Prior revisions: 1929 9178; 1919 7420; 1909 5477



Right to divert stream through tunnel--conditions.

236.280. Any person or persons, firm or firms, corporation or corporations, owning lands extending across the neck of any bend in any of the rivers of this state where a tunnel through such bends would create a waterfall to create electric power, that such owner or owners shall have the right to tunnel through such bends in such neck, on his or their or its own land or lands, and take up and divert and transmit and use the waters of said river (leaving enough water in said river at the point where said diversion shall be made to meet the wants of stock and the families below such point of diversion), and use the waters so diverted to create electric power for transmission and sale to the public, and then return such waters to said river again, without the consent of the riparian owners thereof owning shore lands on the inside and outside of said bend, between the intake and output points of said tunnel, by the use of the usual condemnation proceedings in the circuit court of the county of this state in which said lands, or a part thereof, are, or may be situated, to ascertain and establish the damage that will accrue to such owner or owners of said riparian rights by reason of the use and license aforesaid, and after this has been established and decreed, and that the judgment so awarded shall be paid before diverting and using said waters.

(RSMo 1939 10313)

Prior revisions: 1929 9184; 1919 7426; 1909 5483



Definitions.

236.400. As used in sections 236.400 to 236.500, standards, rules and regulations promulgated hereunder, unless the context otherwise requires the following words and terms mean:

(1) "Agricultural dam", any dam constructed to impound water for use in irrigation, livestock watering, or commercial fish rearing and sale;

(2) "Alterations", "repairs", or either of them, such alterations or repairs as affect the safety of a dam or reservoir, or public safety, life or property;

(3) "Chief engineer", the head of the dam and reservoir safety program of the department of natural resources or his representative;

(4) "Construction permit", a written authorization issued by the council giving the owner the right to construct, alter, enlarge, reduce, repair or remove a dam or reservoir or appurtenances thereto, with such conditions as are necessary to adequately protect the public safety, life, property, the dam or reservoir;

(5) "Dam", any artificial or manmade barrier which does or may impound water, and which impoundment has or may have a surface area of fifteen or more acres of water at the water storage elevation, or which is thirty-five feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier or dam, if it is not across a streambed or watercourse, together with appurtenant works. Sections 236.400 to 236.500 shall not apply to any dam which is not or will not be in excess of thirty-five feet in height or to any dam or reservoir licensed and operated under the Federal Power Act;

(6) "Dam and reservoir safety council", as designated by sections 236.400 to 236.500 and referred to as the "council" shall consist of seven members appointed by the governor according to the provisions of sections 236.400 to 236.500;

(7) "Director", the director of the department of natural resources of the state of Missouri;

(8) "Enlargement", any change in or addition to an existing dam or reservoir which raises the height of a dam, increases the watershed for a reservoir, or raises the water storage elevation of the water impounded by a dam or reservoir;

(9) "Experienced professional engineer", an engineer registered in the state of Missouri and experienced in hydraulics, hydrology and civil engineering as applied to dam design and construction;

(10) "Maintenance", the proper keeping of all aspects of a dam or reservoir and appurtenances thereto, that pertain to safety, in a state of repair and working order as necessary to comply with sections 236.400 to 236.500, any permit hereunder, and protect public safety, life and property;

(11) "Natural physical changes", those changes not directly or indirectly caused by man which affect the safety of the dam or reservoir;

(12) "Operation", the physical changes, natural or manmade that occur or are made to a dam or reservoir, or operation of the mechanisms or appurtenances of the dam or reservoir, which affect or may affect public safety, life or property;

(13) "Owner", a person who owns, controls, operates, maintains, manages, or proposes to construct a dam or reservoir including:

(a) The state and its departments, institutions, agencies, and political subdivisions, but not the United States government;

(b) A municipal or quasi-municipal corporation;

(c) A district;

(d) A public utility;

(e) A natural person, firm, partnership, association, corporation, political subdivision, or legal entity;

(f) The duly authorized agents, lessees, or trustees of any of the foregoing;

(g) Receivers or trustees appointed by any court for any of the foregoing;

(14) "Permit", a construction, safety or registration permit;

(15) "Permit applicant", an owner who applies for a construction, safety or registration permit;

(16) "Reduction", any decrease in the height of a dam, watershed size, or water storage elevation of the water impounded by a dam or reservoir;

(17) "Registration permit", a permit issued for a period not to exceed five years by the council to the owner of a dam or reservoir in existence on September 28, 1979, or which becomes subject to the provisions of sections 236.400 to 236.500 for such dams and reservoirs which are in a properly maintained condition or which have made and complied with recommendations for corrections of observed defects of the dam or reservoir and have been* examined and approved in accordance with sections 236.400 to 236.500 and standards, rules and regulations and guidelines issued pursuant to sections 236.400 to 236.500;

(18) "Reservoir", any impoundment which results from a dam as defined in sections 236.400 to 236.500;

(19) "Safety permit", a permit issued to the owner for a period of five years, or less if safety considerations so require, by the council indicating that the dam meets the requirements of sections 236.400 to 236.500 and the guidelines, standards, rules and regulations issued pursuant to sections 236.400 to 236.500, and containing such conditions as to operations, maintenance and repair as are necessary to adequately protect public safety, life and the dam or reservoir;

(20) "Water", water, other liquid or tailings;

(21) "Water storage elevation", that elevation of water surface at the principal spillway which could be obtained by the dam or reservoir were there no outflow and were the reservoir full of water;

(22) "Watershed", the area, usually expressed in acres of square miles, that contributes or may contribute surface water to a reservoir.

(L. 1979 H.B. 603 1)

*Words "have been" not in original rolls.



Employment of engineer and assistants--records--rulemaking, procedure.

236.405. 1. There is hereby created a dam and reservoir safety program in the department of natural resources. The council shall promulgate rules, regulations, guidelines, and standards relating to the determination of whether a dam or reservoir constitutes a danger to public safety, life or property to be effective upon approval by the director.

2. The director of the department of natural resources shall employ an experienced professional engineer as chief engineer and assistants to administer the activities of the dam and reservoir safety program.

3. The chief engineer shall be selected under the state merit system on the basis of professional experience directly related to the design and construction of dams and reservoirs.

4. The findings, opinions, and orders of the council and the chief engineer shall be kept as permanent public records in the offices of the department of natural resources.

5. No rule or portion of a rule promulgated under the authority of sections 236.400 to 236.500 shall become effective unless it has been promulgated pursuant to the provisions of section 536.024.

(L. 1979 H.B. 603 2, A.L. 1993 S.B. 52, A.L. 1995 S.B. 3)



Council established--members, terms, qualifications, officers--meetings--quorum--compensation--report.

236.410. 1. There is hereby created a "Dam and Reservoir Safety Council", whose domicile for the purposes of sections 236.400 to 236.500 shall be the department of natural resources of the state of Missouri, for the regulation of dam and reservoir safety. The council shall consist of seven members, no more than four of whom shall be members of the same political party, appointed by the governor with the advice and consent of the senate.

2. The members of the council shall have a background of academic training or professional experience directly related to the design of dams and reservoirs. At least two members of the council shall be professional engineers registered in the state of Missouri, one of whom shall represent the general public; at least one member shall be an engineering geologist; at least one member, in addition to the professional engineer, shall be a representative of the general public; two members shall be from industry, one of whom shall be earthmoving contractors; and one member shall be the owner of a dam or reservoir. Of the seven members, three shall be from each of the three United States congressional districts in this state with the highest number of dams. The members shall serve for a term of two years; except, of the first appointments three shall be appointed for one year. The governor shall fill any vacancy on the council and may remove any appointed member for cause. The council shall annually elect a chairman and vice chairman from among its members. The council shall meet regularly but not less than quarterly. Special meetings and hearings may be called upon delivery of written notice to each member of the council signed by the director, the chief engineer, the council chairman or four of the council members. Four members of the council shall constitute a quorum to transact the business of the council. The council shall decide all questions by a majority vote of those present and constituting a quorum. The members of this council shall not receive any compensations other than for actual travel and subsistence when acting officially as members of the council. The council shall prepare and present an annual report to the general assembly by December thirty-first of each year.

(L. 1979 H.B. 603 3, A.L. 1992 H.B. 1634, A.L. 2013 H.B. 28 merged with H.B. 650)

Effective 8-28-13 (H.B. 28)

10-11-13 (H.B. 650)

*H.B. 650 effective 10-11-13, see 21.250. H.B. 650 was vetoed July 12, 2013. The veto was overridden on September 11, 2013.



Council's powers and duties--public hearings required--adoption of rules and regulations, procedure.

236.415. 1. The council considering recommendations of the chief engineer shall, subsequent to a public meeting, adopt, subject to the approval of the director, the general technological guidelines and the standards, guidelines, rules and regulations applicable to permits, the design, construction, maintenance, operation, alteration, repair, enlargement, reduction, removal or natural physical changes that may occur to a dam or reservoir. Violations of guidelines, standards, rules and regulations are violations of sections 236.400 to 236.500 permitting the revocation, suspension, or refusal to issue any permit required by sections 236.400 to 236.500. No standards, guidelines, rules, or regulations shall be adopted, or any amendment or repeal thereof shall be effective, except after a public hearing to be held after thirty days' prior notice by advertisement or press release, and publication as required in chapter 536 of the date, time and place of the hearing and opportunity given to the public to be heard.

2. At the hearing, opportunity to be heard by the council with respect to the subject thereof shall be afforded any interested person upon written request to the council, addressed to the chief engineer, received not later than seven days prior to the hearing and may be afforded to other persons if convenient. In addition, any interested person, whether or not heard, may submit, within seven days subsequent to the hearings, a written statement of his views. The council may solicit the views, in writing, of persons who may be affected by, or interested in, proposed rules and regulations, standards or guidelines. Any person heard or represented at the hearing or making written request for notice shall be given written notice of the action of the council with respect to the subject thereof.

3. The council upon hearing the recommendations of the chief engineer and reviewing the application for a construction or registration permit shall approve or deny the permit application. The council may delegate authority to approve or deny permit applications to the chief engineer, whose actions shall be subject to appeal to the council as provided in subsection 2 of section 236.425.

4. No standard, rule or regulation or guideline, or amendment or repeal thereof, adopted by the council shall be in force and effect until it has been approved in writing by the director and the requirements of chapter 536 are satisfied. The affirmative vote of at least four members of the council shall be required for adoption.

(L. 1979 H.B. 603 4, A.L. 1995 S.B. 3)



Inspection of dams and reservoirs, when--report on conditions.

236.420. The council, with the advice and assistance of the chief engineer, shall carry out a state program of inspection of dams and reservoirs in accordance with regulations adopted by the council. All dams and reservoirs in this state shall be inspected on a periodic basis to determine if they constitute a threat to public safety, life or property. The chief engineer shall submit reports to the director and the council concerning the condition of each dam or reservoir inspected, and recommendations as to any alterations or repairs needed.

(L. 1979 H.B. 603 5)



Chief engineer's duties--search warrants--council to hear certain appeals.

236.425. 1. The chief engineer shall administer the provisions of sections 236.400 to 236.500 by:

(1) Recommending general technological guidelines that pertain to the design, construction, maintenance, operation, use, alteration, repair, enlargement, reduction, or natural physical changes of, or that may occur to, a dam or reservoir including their removal; except that, detailed technical specifications shall not be promulgated to regulate the design, construction, operation, maintenance, use, alteration, repair or removal of a dam or reservoir. Such guidelines shall not be effective until adopted by the council and approved by the director at a public meeting, after notice requirements set forth in subsection 1 of section 236.415 herein have been satisfied;

(2) Making* recommendations concerning the issuing, continuing in effect, revoking, modifying, suspending, or denying, under such conditions as prescribed by sections 236.400 to 236.500 and such rules as may be adopted to protect public safety, life, property, dams and reservoirs, construction permits for the construction, alteration, enlargement, reduction, repair or removal of dams or appurtenances thereto, and safety and registration permits to insure continuing protection of public safety, life, property, dams and reservoirs, for all dams subject to the provisions of sections 236.400 to 236.500;

(3) Making such investigations, including hearings, as are proper to protect public safety, life and property from an unsafe dam or reservoir, and to determine whether any permits should be issued, continued, revoked, modified, suspended, or denied or whether any violations of sections 236.400 to 236.500, standards, or rules or regulations have occurred or are occurring;

(4) Entering, at any reasonable time, any private or public premises as necessary to make an investigation or inspection of a dam or reservoir, or records kept, pertaining thereto, and such inspection shall follow reasonable notice to the owner given prior to such investigation or inspection except in the case of an emergency threatening public safety, life or property, in which case such inspection or investigation may be made without prior notice. A suitably restricted search warrant, upon a showing of probable cause in writing and upon oath, shall be issued by any judge having jurisdiction, to the chief engineer or his representative for the purpose of enabling him to make the inspection.

2. The council shall meet with or hear the appeal of a permit applicant and his representative upon request of the permit applicant if the chief engineer has rejected the application for a construction, safety or registration permit.

(L. 1979 H.B. 603 6)

*Words "To make" appear in original rolls.



Employees, council to provide for.

236.430. The council shall retain, employ, provide for and compensate within appropriations available therefor, such consultants, assistants, and other employees on a full- or part-time basis as may be necessary to carry out the provisions of sections 236.400 to 236.500 and prescribe the times at which they shall be appointed and their powers and duties.

(L. 1979 H.B. 603 7)



Permits required, when, procedure to obtain--chief engineer to make recommendation--exemptions--plans to be filed.

236.435. 1. Prior to the commencement of the construction, alteration, enlargement, reduction or removal of a dam or reservoir, the owner shall apply to the council and upon satisfying the requirements of sections 236.400 to 236.500 and the rules, regulations and standards promulgated pursuant hereto, obtain a construction permit.

2. The application for a construction permit shall bear the seal and signature of an experienced professional engineer registered in Missouri or employed by a qualified engineering division of a state or federal agency regularly engaged in dam construction for soil and water conservation, or irrigation or relating to wildlife conservation and shall be accompanied by the design report and plans and specification of the proposed design, alteration, enlargement, reduction, repair or removal of the dam or reservoir.

3. Any person constructing or owning a dam or reservoir, or living or owning property in an area affected, or whose safety may be affected by such dam or reservoir may consult with the chief engineer concerning such dam or reservoir.

4. The council upon hearing the recommendation of the chief engineer shall approve or deny an application for a construction permit within forty-five days after its receipt or the completion of any hearings in connection with such application, whichever is later. The permit shall be issued upon the receipt of the application if, in the judgment of the council, requirements of sections 236.400 to 236.500 and all standards, rules and regulations hereunder are satisfied and the design will be adequate to protect the public safety, life and property.

5. The council upon hearing the recommendation of the chief engineer may reject the application if it decides that there is insufficient information to determine the safety of the proposed construction, alteration, enlargement, reduction or removal of the dam or reservoir or that the construction, alteration, enlargement, reduction or removal of the dam or reservoir would endanger public safety, life or property, or otherwise not comply with sections 236.400 to 236.500 and any rules, standards, guidelines and regulations adopted hereunder.

6. A landowner who now owns or proposes to construct an agricultural dam or reservoir which will be used primarily for agricultural purposes will be exempt from all provisions of sections 236.400 to 236.500. If the council with the advice of the chief engineer, determines that the dam or reservoir is no longer used primarily for agricultural services, it shall become subject to the provisions of sections 236.400 to 236.500.

7. Dams or their construction, alterations, enlargements, reductions or removals designed by, and their construction, alteration, enlargement, reduction or repair or removal monitored by, a qualified engineer regularly engaged in dam construction for soil and water conservation or irrigation or relating to wildlife conservation are for the purposes of such construction or other listed actions exempt from the provisions of this section except that the plans for the dam shall be filed with the chief engineer prior to construction, or other listed action. Amended plans shall be filed at the completion of construction or other listed action if there have been significant deviations from the previously filed plans.

(L. 1979 H.B. 603 8)



Owner to notify council, when--council to issue safety permit--registration of existing dams, when--violations.

236.440. 1. The owner shall notify the council upon completion of construction, alteration, enlargement, or reduction of the dam or reservoir. This notification shall bear the seal and signature of an experienced professional engineer and shall be accompanied by an application for a safety permit. The owner of any dam or reservoir subject to the provisions of sections 236.400 to 236.500 shall obtain a safety permit following completion of construction.

2. Upon receipt of complete and proper application for a safety permit, including notification of completion by the owner and certification by an experienced professional engineer that the new construction, alteration, enlargement or reduction has been completed in accordance with the provisions of the construction permit and sections 236.400 to 236.500, the council shall upon receipt of the application issue a safety permit. The council upon advice of the chief engineer may deny the application if it determines that violations of the construction permit or sections 236.400 to 236.500 exist. If revisions have been made which vary substantially from the provisions of the construction permit, it must be shown that the revisions do not endanger public safety, life or property. The safety permit for dams constructed pursuant to a construction permit issued under sections 236.400 to 236.500, may contain conditions the council upon advice of the chief engineer determines are necessary for the protection of public safety, life and property and a schedule and timetable for the dam and reservoir to achieve compliance with the construction permit and provisions of sections 236.400 to 236.500, standards, rules and regulations promulgated hereunder, but such conditions shall not be more stringent or restrictive than those contained in the construction permit.

3. Owners of dams and reservoirs in existence on September 28, 1979, shall obtain registration permits for dams of fifty to seventy feet in height within four years, and for dams up to fifty feet in height within six years of September 28, 1979, or as otherwise required by the provisions of sections 236.400 to 236.500 and rules and regulations adopted hereunder. A registration permit shall be issued by the council upon the advice of the chief engineer for dams and reservoirs only after it is determined that the dam meets the standards of sections 236.400 to 236.500 and rules and regulations hereunder, and any recommendations made by the inspecting engineer pursuant thereto.

4. Upon complete and proper application for a registration permit, on forms provided by the department of natural resources, by the owner of a dam in existence upon September 28, 1979, including a certification by an experienced professional engineer or an engineering division of a state or federal agency regularly engaged in dam construction for soil or water conservation, irrigation, or relating to wildlife conservation, that the dam has been inspected in accordance with sections 236.400 to 236.500, standards, rules and regulations and guidelines promulgated hereunder, and that the owner has complied with the inspecting engineer's or agency's recommendations necessary to correct observed defects of the dam or reservoir, the council shall, upon receipt of the application, issue a registration permit. The council upon hearing the recommendations of the chief engineer may deny the application if it determines that the owner has not complied with the inspecting engineer's or agency's recommendations.

5. For dams for which construction was completed prior to the effective date of the construction permit requirements hereunder, the registration permit may contain conditions the council upon hearing recommendations of the chief engineer determines to be necessary to bring the dam and reservoir into compliance with sections 236.400 to 236.500 and standards, rules and regulations promulgated hereunder.

6. If a dam or reservoir has been removed by the owner, the council shall issue a final approval upon notification by the owner and receipt of certification by an experienced professional engineer that the removal has been carried out in accordance with the provisions of the construction permit issued for such removal. Failure to obtain final approval shall be a violation of sections 236.400 to 236.500.

7. The council shall issue safety permits for dams or their construction, alterations, enlargements, reductions or removals designed by, and their construction or other listed actions monitored by, a state or federal agency engaged in dam construction for soil and water conservation, irrigation or relating to wildlife conservation provided the owners obtain from such agency and file with the chief engineer a statement upon completion of the construction or other listed actions and at not greater than five year intervals, and with every application for renewal of a safety permit, that the dam conforms to the plans on file with the chief engineer and is in a safe, properly maintained condition.

8. The owner shall apply for renewal of a safety or registration permit not less than sixty days prior to expiration of the previously issued permit. The chief engineer shall determine if the dam and reservoir are essentially as described in the latest permit issued for that dam and reservoir, whether they satisfy the requirements of sections 236.400 to 236.500 and any rules, regulations, standards and guidelines adopted pursuant to sections 236.400 to 236.500 and whether any inspection conducted in connection with the permit renewal reveals any defect in the dam or reservoir which would threaten public safety, life or property. Unless the chief engineer determines that the dam and reservoir are not properly maintained, do not satisfy the requirements of the permit, act* or rules, regulations, standards and guidelines promulgated hereunder, or that defects revealed by the inspection are not corrected, the council upon hearing the recommendations of the chief engineer shall issue or renew the safety or registration permit upon forty-five days of the receipt of a complete and proper application. The council may require the owner to furnish a certification, as a part of an application to renew a permit hereunder, by an experienced professional engineer or a qualified engineering division of a state or federal agency regularly engaged in dam construction for water conservation, irrigation or relating to wildlife conservation that the dam is in a properly maintained condition and that any recommendation for correction of defects which violate sections 236.400 to 236.500, guidelines, rules, regulations and standards hereunder or which threaten public safety, life or property have been complied with and that the engineer detected no other such defects which have not been corrected.

9. If a barrier or water impoundment becomes a dam or reservoir through alteration or enlargement as defined herein, it shall be subject to the provisions of sections 236.400 to 236.500.

10. Failure to obtain and comply with a permit as required in this section is a violation of sections 236.400 to 236.500.

(L. 1979 H.B. 603 9)

*Word "act" apparently refers to "this act", now 236.400 to 236.500.



Permit may be suspended--alteration or removal may be required--violation.

236.445. 1. If it is found that a dam or reservoir presents a threat to public safety, life or property, or that the safety of the dam or reservoir is threatened, the permit for the dam or reservoir shall be suspended and shall be reinstated only when the owner at his expense has completed the necessary alteration or has established such operational procedures as the council upon hearing the recommendations of the chief engineer deems necessary for protection of the public safety, life, property, the dam or reservoir. If necessary for such protection, the council may require the owner at his expense to remove the dam or reservoir, or if the owner refuses or neglects to act, the state may alter or remove the dam or reservoir, and the chief engineer may recover the costs of such action as provided in section 236.450.

2. If the owner refuses to alter or remove a dam or reservoir as directed when found to be a threat as set forth in sections 236.400 to 236.500, he shall be in violation of sections 236.400 to 236.500 and the permit requirements hereunder, and such action shall subject the owner to the enforcement provisions contained herein and revocation of the permit.

(L. 1979 H.B. 603 10)



Removal or repair of abandoned dam--recovery of expenses.

236.450. An existing dam or reservoir which the chief engineer determines to be abandoned and considered to be a threat to public safety, life, or property may be altered, repaired, or removed upon such determination at the expense of the state of Missouri, and the chief engineer may request either the attorney general or a prosecuting attorney to bring an action in the name of the people of the state of Missouri to recover such expenses from the owner through appropriate legal processes. Such action may be brought in any county where the defendant or defendant's principal place of business is located or where the dam or reservoir is located.

(L. 1979 H.B. 603 11)



Emergency action authorized.

236.455. If it is determined at any time that the condition of a dam or reservoir is an imminent and substantial threat, and so dangerous to public safety, life or property as not to permit time for issuance of an enforcement order to correct the hazard, the chief engineer may take any appropriate action not prohibited by the constitution or laws of this state he deems necessary for emergency protection of public safety, life or property, and may request the attorney general or a prosecuting attorney to take any legal steps necessary to accomplish such action and to recover the cost of such measures from the owner by appropriate legal action.

(L. 1979 H.B. 603 12)



Transfer of ownership, notice required.

236.460. The owner shall notify the chief engineer upon the sale or other transfer of interest in a dam or reservoir, either existing or under construction, alteration or removal. The construction, safety or registration permit shall be transferred to the successive owner upon receipt of this notification and upon determination that such transfer will not endanger public safety, life, property, the dam or reservoir.

(L. 1979 H.B. 603 13)



Industrial water retention structures subject to provisions of sections 236.400 to 236.500--inspection--changes.

236.465. Irrespective of any other provisions of sections 236.400 to 236.500, the following provisions shall apply to the construction, alteration or enlargement of tailing, slime and settling ponds and to other similar industrial water retention structures included within the definitions of dam or reservoir in section 236.400:

(1) Applications for construction, safety or registration permits shall be submitted as provided in section 236.435 and section 236.440 except that design plans and specifications which outline any anticipated enlargement of the industrial water retention structure shall be included;

(2) It shall not be necessary to reapply for a permit each time the structure is enlarged if the enlargement plans have been submitted in and approved with the original application, and the provisions of subdivision (3) of this section have been satisfied;

(3) Upon notification of the chief engineer, bearing the seal and signature of an experienced professional engineer, that the initial phase of construction has been completed in accordance with the provisions of the construction permit and sections 236.400 to 236.500, or if a registration permit has been issued as provided in subdivision (1) of this section, and before any enlargement is begun, and if no violation of sections 236.400 to 236.500 can be shown, a safety permit or a registration permit with special provisions that authorize the planned enlargement to the initially constructed structure shall be issued, on application, if enlargement plans were included and approved in the original application;

(4) It is not necessary to retain continuously a professional engineer after the initial stage of construction;

(5) The dam shall be inspected by an experienced professional engineer registered in the state of Missouri as required to renew the safety permit or registration permit at five-year intervals unless safety of the public, life and property require a shorter period of time;

(6) The chief engineer shall make inspections of these structures as necessary to insure adequate protection for public safety, life and property;

(7) Where it is shown that a tailings, slime and settling pond, or other similar water retention structure is subject to inspection for safety, using standards at least as stringent as those required under sections 236.400 to 236.500, by a federal or state agency and the owner notifies the council that the structure is subject to such inspection, such structures shall be exempt from the provisions of sections 236.400 to 236.500.

(L. 1979 H.B. 603 14)



Conduct of hearings--subpoenas--approval of final orders.

236.470. 1. At any public hearing all testimony taken before the council, or a hearing officer appointed by the council chairman, shall be under oath and recorded stenographically. The transcript so recorded shall be made available to any person upon payment of the usual charge therefor.

2. In any such hearing, any member of the council or the hearing officer shall issue in the name of the council notice of hearing and subpoenas. Subpoenas shall be issued and enforced as provided in section 536.077. The rules of discovery that apply in any civil case apply to hearings held by the council.

3. All hearings to approve, amend or repeal guidelines, standards or rules and regulations shall be held before at least four members of the council.

4. All other hearings may be held before one council member designated by the council chairman or a hearing officer who shall be a member of the Missouri bar and appointed by the council chairman. The hearing officer or council member shall preside at the hearing and hear all evidence and rule on the admissibility of evidence. The hearing officer or council member shall make recommended findings of fact and may make recommended conclusions of law to the council.

5. All final orders or determinations or other final actions by the council shall be approved in writing by at least four members of the council. Any council member approving in writing any final order or* determination or other final action, who did not attend the hearing, shall do so only after reviewing all exhibits and reading the entire transcript.

(L. 1979 H.B. 603 15)

*Word "of" appears in original rolls.



Immunity of officers.

236.475. In the absence of willful and wanton misconduct, no action shall be brought against the council, the chief engineer or his agents, or department employees or private individuals employed as consultants by the department for the recovery of damages caused by the partial or total failure of any dam or reservoir or through the use or operation of any dam or reservoir upon the ground that such person is liable by virtue of any of the following:

(1) The approval of a dam or reservoir or permits therefor;

(2) The issuance or enforcement of orders relating to maintenance, operation or repair of a dam or reservoir;

(3) Control and regulation of a dam or reservoir;

(4) Measures taken to protect against failure during an emergency.

(L. 1979 H.B. 603 16)



Judicial review of actions--administrative review required--interpretation of administrative actions.

236.480. 1. All final decisions, orders, actions or determinations made pursuant to the provisions of sections 236.400 to 236.500 are subject to judicial review pursuant to the provisions of chapter 536. No judicial review shall be available, however, until all administrative remedies are exhausted.

2. In any suit filed pursuant to section 536.050 concerning the validity of the standards, rules, guidelines and regulations promulgated hereunder, the court shall review the record made pursuant to their adoption to determine the validity and reasonableness of such standards, rules, guidelines and regulations and may hear such additional evidence as it deems necessary.

(L. 1979 H.B. 603 17)



Water rights preserved.

236.485. The provisions of sections 236.400 to 236.500 do not grant or diminish any right to that water entering, discharged from or impounded by a dam or contained in a reservoir.

(L. 1979 H.B. 603 18)



Enforcement of act.

236.490. All duly constituted officers of the law of this state or any political subdivision thereof shall aid in the enforcement of the provisions of sections 236.400 to 236.500.

(L. 1979 H.B. 603 19)



Legal actions for enforcement available, procedure.

236.495. 1. In carrying out the provisions of sections 236.400 to 236.500 and to the extent not inconsistent with chapter 491, the chief engineer or council may subpoena witnesses and compel their attendance, and may also require the submission of books, papers, documents or other pertinent data in any hearing or enforcement proceedings hereunder or in any case wherein a violation of this chapter is alleged. Upon failure or refusal to comply with such order or upon failure to honor a subpoena, as herein provided, the council may request the attorney general or a prosecuting attorney to apply to the circuit court having jurisdiction to enforce compliance.

2. The council may request the attorney general or a prosecuting attorney, in the name of the state, to institute a suit for injunctive relief to stop or prevent violations of the provisions of sections 236.400 to 236.500, permits, standards, orders and rules and regulations promulgated hereunder, which shall be violations of sections 236.400 to 236.500, or to restrain any violation thereof, or after written notification of violation by the council, and a reasonable time to correct such violation, for the assessment of a penalty of up to one thousand dollars per day, for each day or part thereof the violation continues to occur after such notice. Such action may be brought in any county where the defendant's principal place of business is located, where the dam or reservoir is located, or the violation does or may occur.

(L. 1979 H.B. 603 20)



Penalties.

236.500. 1. Any person who willfully violates any of the provisions of sections 236.400 to 236.500 is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than five hundred dollars nor more than ten thousand dollars, or by confinement in the county jail for a term of not less than thirty days nor more than one year, or by both such fine and confinement.

2. In the event of a continuing violation, each day that the violation continues shall constitute a separate and distinct offense.

3. Any person who willfully obstructs, hinders or prevents the council, the chief engineer or his agents or employees from performing the duties imposed by sections 236.400 to 236.500 and rules and regulations promulgated hereunder or who willfully resists the council, the chief engineer or his agents in the performance of the duties imposed on them by sections 236.400 to 236.500 and rules and regulations promulgated hereunder is guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection 1 of this section.

4. Any owner who willfully engages in the construction, repair, alteration or removal of any dam or reservoir without a construction permit or in violation of a construction permit or willfully violates the requirements of or for a safety or registration permit is guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection 1 of this section.

(L. 1979 H.B. 603 21)

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