You asked if: (1) the state can take over a dam that is not properly maintained, (2) a dam owner can transfer a dam in need of repair to the state, and (3) the state provides financial aid for dam repair to nonprofit dam owners.

SUMMARY

The state has broad powers to acquire land through eminent domain for public purposes. The Department of Environmental Protection (DEP) has specific eminent domain powers, including the ability to take land, water and rights in them by eminent domain for any purpose or activity related to DEP functions.

DEP can order private owners to repair dams that pose a safety threat, and, in certain instances, repair dams at the owner’s expense. Additionally, a municipality can create a flood and erosion control board to acquire and repair a dam, and residents of a town can create a special taxing district for the same purpose. DEP says it would take possession of a dam only in extraordinary circumstances.

DEP says it does not provide financial aid to private nonprofit dam owners, but the Connecticut Development Authority (CDA) does offer low interest loans to municipal and private owners of DEP-regulated dams for dam repair.

EMINENT DOMAIN AUTHORITY

The state has broad authority to acquire land through eminent domain for public purposes. By law, DEP can take land, water, and rights in them by eminent domain for any purpose or activity related to or compatible with DEP functions (CGS § 22a-25).

DAM INSPECTION AND DAM SAFETY

The DEP enforces dam safety laws, and regularly inspects dams, dikes and similar structures to ensure they do not pose a threat to life, health or property (CGS § 22a-401 et seq. ). The DEP commissioner may order a private dam owner to remove or fix a dam she determines is unsafe, within time limits she prescribes. The commissioner may repair a dam and bill the owner for the department’s costs if (1) the owner does not comply with DEP’s repair order within the specified time, and (2) the commissioner finds the situation presents a clear and present danger to public safety (CGS § 22a-402).

FLOOD CONTROL BOARDS AND SPECIAL TAXING DISTRICTS

Flood and Erosion Control Boards

A municipal Flood and Erosion Control Board may plan, lay out, acquire, build, reconstruct, repair, maintain, supervise, or manage a flood or erosion control system, including dams and similar structures. It may buy or condemn property it needs for such a system (CGS § 25-86) or receive it as a gift (CGS § 25-98). The board may finance the system by issuing bonds, levying taxes, imposing special assessments, or any combination of these (CGS § 25-87).

The DEP commissioner can enter into agreements with any municipality through its flood control board to build small flood control systems needed to reduce or prevent flood damage (CGS § 25-76). She may enter into a cost-sharing agreement with the flood control board to prevent, correct or stop erosion or flood damage. The contract must describe the (1) nature and extent of the flood control system, (2) share of the costs to be borne by the state and the board, and (3) board’s method of financing the payment. The commissioner must approve the contract terms and has direct control of the plans, specifications, system, and construction (CGS § 25-95).

Special Taxing District

A group of residents could form a special taxing district to acquire, repair, maintain and manage a dam. A special taxing district could levy property taxes on those who benefit from the flooding or erosion control that would result from operating the dam. More information on special taxing districts (CGS § 7-324 et seq. ) is available in OLR Report 98-R-0335, attached.

CDA PROGRAM

Under CGS § 32-23x, CDA can make low interest loans to municipal and private owners of DEP-regulated dams for repairs. By law, the maximum loan is $ 250,000 and the maximum term is 20 year’s for real property and 10 years for machinery and equipment.

PF: dw