New Jersey § 58:4-5

§ 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.