MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Conservation and Water Resources
By: Representative Stringer
AN ACT TO PROVIDE THAT THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY SHALL ESTABLISH A FEE FOR EACH TYPE OF PERMIT, CERTIFICATION OR AUTHORIZATION REQUIRED FROM THE PERMIT BOARD, THE COMMISSION ON ENVIRONMENTAL QUALITY OR THE DEPARTMENT UNDER CERTAIN ENVIRONMENTAL PROGRAMS ADMINISTERED BY THE DEPARTMENT, WHICH MAY BE VOLUNTARILY PAID BY THE APPLICANT IN ORDER TO EXPEDITE THE PERMITTING, CERTIFICATION OR AUTHORIZATION PROCESS FOR THE APPLICANT; TO AMEND SECTIONS 17-17-27, 17-17-405, 49-17-29, 49-17-429, 51-3-5 AND 51-3-39, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The Executive Director of the Department of Environmental Quality shall establish a fee for each type of permit, certification or authorization required from the Permit Board, the Commission on Environmental Quality or the department under Sections 17-17-27, 17-17-405, 49-17-29, 49-17-429, 51-3-5 and 51-3-39, which may be voluntarily paid by the applicant in order to expedite the permitting, certification or authorization process for the applicant. The amount of the fee shall include all costs of the permitting, certification or authorization process and the compliance and support activities required for approval of the permit, certification or authorization.
(2) The fees collected for expediting the permitting, certification or authorization process shall be deposited in the special fund of the department that is used for funding the program under which the permit, certification or authorization is required, or if there is no such special fund for a program, the fees shall be deposited into the State General Fund.
SECTION 2. Section 17-17-27, Mississippi Code of 1972, is amended as follows:
17-17-27. (1) The department shall exercise such supervision over restrictions, equipment, methodology and personnel in the management of solid wastes as may be necessary to enforce sanitary requirements; and the commission shall adopt such rules and regulations as may be needed to specify methodology and procedures to meet the requirements of this chapter, which shall include at a minimum:
(a) Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter;
(b) Rules and regulations for the storage, treatment and disposal of solid wastes;
(c) Rules and regulations for the transportation, containerization and labeling of hazardous wastes, which rules shall be consistent with those issued by the United States Department of Transportation;
(d) Rules and regulations specifying the terms and conditions under which the Permit Board shall issue, modify, suspend, revoke or deny such permits as may be required by this chapter. Such rules and regulations shall include, and not by way of limitation, specific authority for the Permit Board to consider the financial capability and performance history of an applicant;
(e) Rules and regulations establishing standards and procedures for the safe storage or transportation of hazardous waste and for the safe operation and maintenance of hazardous waste treatment or disposal facilities or sites or equipment;
(f) A listing of those wastes or combinations of wastes which are not compatible, and which may not be stored or disposed of together;
(g) Procedures and requirements for the use of a manifest during the transport of hazardous wastes;
(h) Standards for financial responsibility to cover the liability, closure and post-closure of any site and perpetual care of a commercial hazardous waste landfill. Rules and regulations promulgated hereunder may include, and not by way of limitation, requirements for maintaining liability insurance coverage if such coverage is not required under rules and regulations promulgated by the United States Environmental Protection Agency;
(i) Rules and regulations establishing minimum distances within which any hazardous waste disposal facility may be located from any municipality, school, residence, church or health care facility;
(j) Other rules and regulations as the commission deems necessary to manage hazardous wastes in the state, provided that such rules and regulations shall be equivalent to the United States Environmental Protection Agency's rules and regulations.
(2) In complying with this section the commission shall consider the variations within this state in climate, geology, population density and such other factors as may be relevant to the management of hazardous wastes. It is the intent of the Legislature that commercial hazardous waste landfills be located on those sites which, by virtue of their geologic conditions, provide a high degree of environmental protection. In carrying out the intent of this provision, the commission is authorized to adopt siting criteria for commercial hazardous waste landfills which are more stringent or extensive in scope, coverage and effect than the rules and regulations promulgated by the United States Environmental Protection Agency.
(3) Except as hereinafter provided, hazardous wastes shall not be disposed of in this state by the use of underground injection methods, as herein defined according to 40 CFR 260.10(74) to mean "subsurface emplacement of fluids through a bored, drilled, or driven well, or through a dug well, where the depth of the dug well is greater than the largest surface dimension." This prohibition shall not apply to the disposal on the generation site of hazardous wastes generated in the production of oil or gas or in a commercial or manufacturing operation. Commercial hazardous waste underground injection wells designed or intended to dispose of multiple nonhomogeneous types of wastes from multiple sources other than the owner of the well are * * * prohibited in the State of Mississippi.
A commercial hazardous waste landfill shall not be located on the same site or within one thousand (1,000) feet of an existing or abandoned ordinary waste disposal site, unless the hazardous waste to be disposed of in the commercial landfill is specifically approved as exempted.
(4) After promulgation of the regulations required under this section, no person shall construct, substantially alter or operate any solid waste treatment or disposal facility or site, nor shall any person store, treat or dispose of any hazardous waste without first obtaining a permit from the Permit Board for such facility, site or activity. However, no person shall construct any new hazardous waste treatment or disposal facility or site or substantially alter any such existing facility or site, nor shall the Permit Board issue a permit for any such construction or alteration, until the commission has promulgated rules and regulations under the provisions of subsection (1)(j) of this section. Those rules and regulations shall be equivalent to counterpart rules and regulations of the Environmental Protection Agency whether now in effect or hereinafter promulgated. Any person who has made an application for a permit for an existing facility under this section shall be treated as having been issued such permit until such time as final administrative disposition of such application has been made unless the cause of such delay is the result of the failure of the applicant to furnish information reasonably required or requested in order to process the application. The Permit Board may charge the applicant for a permit under this subsection the fee established under Section 1 of this act in order to expedite the permitting process.
(5) Any permit issued under this section may be revoked by the issuing agency at any time when the permittee fails to comply with the terms and conditions of the permit. Where the obtaining of or compliance with any permit required under this section would, in the judgment of the department, cause undue or unreasonable hardship to any person, the department may issue a variance from these requirements. In no case shall the duration of any such variance exceed one (1) year. Renewals or extensions may be given only after an opportunity has been given for public comment on each such renewal or extension.
(6) Information obtained by the commission concerning environmental protection including, but not limited to, information contained in applications for solid or hazardous waste disposal permits shall be public information and shall be made available upon proper request. Other information obtained by the commission, department, or Permit Board in the administration of Sections 17-17-1 through 17-17-47 concerning trade secrets, including, but not limited to, marketing or financial information, treatment, transportation, storage or disposal processes or devices, methods of manufacture, or production capabilities or amounts shall be kept confidential if and only if: (a) a written confidentiality claim is made when the information is supplied; (b) such confidentiality claim allows disclosure to authorized department employees and/or the United States Environmental Protection Agency (EPA); and (c) such confidentiality claim is determined by the commission to be valid. If the confidentiality claim is denied, the information sought to be covered thereby shall not be released or disclosed, except to the Environmental Protection Agency, until the claimant has been notified in writing and afforded an opportunity for a hearing and appeal therefrom, as with other orders of the commission. Disclosure of confidential information by the EPA shall be governed by federal law and EPA regulations. Misappropriation of a trade secret shall be governed by the Mississippi Uniform Trade Secrets Act, Sections 75-26-1 through 75-26-19.
(7) Anyone making unauthorized disclosure of information determined to be confidential as herein provided shall be liable in a civil action for damages arising therefrom and shall also be guilty of a misdemeanor punishable as provided by law.
(8) Notwithstanding any other provision of this chapter, the executive director, upon receipt of information that the generation, storage, transportation, treatment or disposal of any solid waste may present an imminent and substantial hazard to the public health or to the environment, may take any legal, equitable or other action, including injunctive relief, necessary to protect the health of such persons or the environment.
SECTION 3. Section 17-17-405, Mississippi Code of 1972, is amended as follows:
17-17-405. (1) Owners and operators of any waste tire collection site shall provide the department with information concerning the site's location, size and approximate number of waste tires that have been accumulated at the site. The department shall promptly provide that information to the chancery clerk of the county in which the site is located.
(2) It is unlawful for any person to maintain a waste tire collection site or a waste tire disposal site unless the site is authorized by the department or permitted by the Permit Board. The department or the Permit Board, as the case may be, may charge the applicant for authorization or a permit under this subsection the fee established under Section 1 of this act in order to expedite the authorization or permitting process. It is unlawful for any person to dispose of waste tires in the state unless the waste tires are disposed at an authorized waste tire collection site, a waste tire collection center, waste tire processing site or a waste tire disposal site.
(3) Each operator of a waste tire collection site in operation or accepting waste tires after January 1, 1991, shall ensure that the area is properly closed upon cessation of operations. The department may require that a closure plan be submitted with the application for authorization. The closure plan, as approved by the department, shall include at least the following:
(a) A description of how and when the area will be closed; and
(b) The method of final disposition of any waste tires remaining on the site at the time notice of closure is given to the department.
(4) The operator shall notify the department at least ninety (90) days before the date the operator expects closure to begin. No waste tires may be received by the waste tire collection site after the date closure is to begin.
(5) If the operator of a waste tire collection site fails to properly implement the closure plan, the commission shall order the operator to implement that plan, and take other steps under Section 17-17-29 to assure the proper closure of the site.
SECTION 4. Section 49-17-29, Mississippi Code of 1972, is amended as follows:
49-17-29. (1) (a) Except as in compliance with paragraph (b) of this subsection, it is unlawful for any person to cause pollution of the air in the state or to place or cause to be placed any wastes or other products or substances in a location where they are likely to cause pollution of the air. It is also unlawful to discharge any wastes, products or substances into the air of the state which exceed standards of performance, hazardous air pollutant standards, other emission standards set by the commission, or which reduce the quality of the air below the air quality standards or increments established by the commission or prevent attainment or maintenance of those air quality standards. Any such action is * * * declared to be a public nuisance.
(b) It is unlawful for any person to build, erect, alter, replace, use or operate any equipment which will cause the issuance of air contaminants unless that person holds a permit from the Permit Board (except repairs or maintenance of equipment for which a permit has been previously issued), or unless that person is exempted from holding a permit by a regulation promulgated by the commission. Concentrated animal feeding operations may be a source or a category of sources exempted under this paragraph. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on June 1, 1998. The Permit Board may charge the applicant for a permit under this paragraph the fee established under Section 1 of this act in order to expedite the permitting process.
(2) (a) Except as in compliance with paragraph (b) of this subsection, it is unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state. It is also unlawful to discharge any wastes into any waters of the state which reduce the quality of those waters below the water quality standards established by the commission; or to violate any applicable pretreatment standards or limitations, technology-based effluent limitations, toxic standards or any other limitations established by the commission. Any such action is declared to be a public nuisance.
(b) It is unlawful for any person to carry on any of the following activities, unless that person holds a current permit for that activity from the Permit Board as may be required for the disposal of all wastes which are or may be discharged into the waters of the state, or unless that person is exempted from holding a permit by a regulation promulgated by the commission: (i) the construction, installation, modification or operation of any disposal system or part thereof or any extension or addition thereto, including, but not limited to, systems serving agricultural operations; (ii) the increase in volume or strength of any wastes in excess of the permissive discharges specified under any existing permit; (iii) the construction, installation or operation of any industrial, commercial or other establishment, including irrigation projects or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical or biological properties of any waters of the state in any manner not already lawfully authorized; (iv) the construction or use of any new outlet for the discharge of any wastes into the waters of the state. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on June 1, 1998. The Permit Board may charge the applicant for a permit under this paragraph the fee established under Section 1 of this act in order to expedite the permitting process.
(3) (a) Except as otherwise provided in this section, the Permit Board created by Section 49-17-28 shall be the exclusive administrative body to make decisions on permit issuance, reissuance, denial, modification or revocation of air pollution control and water pollution control permits and permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17), and all other permits within the jurisdiction of the Permit Board. After consideration of alternative waste treatment technologies available to control air and water pollution and odor, including appropriate siting criteria, the commission may promulgate regulations establishing conditions, limitations and exemptions under which the Permit Board shall make these decisions. Regulations promulgated by the commission which establish exemptions as authorized under this section shall apply to any applicable facility in operation on the effective date of that regulation and to any applicable facility constructed or operated after the effective date of that regulation. The Permit Board may issue multiple permits for the same facility or operation simultaneously or in the sequence that it deems appropriate consistent with the commission's regulations. Except as otherwise provided in this paragraph, the Permit Board, under any conditions that the board may prescribe, may authorize the Executive Director of the Department of Environmental Quality to make decisions on permit issuance, reissuance, denial, modification or revocation. The executive director shall not be authorized to make decisions on permit issuance, reissuance, denial, modification or revocation for a commercial hazardous waste management facility or a municipal solid waste landfill or incinerator. A decision by the executive director shall be a decision of the Permit Board and shall be subject to formal hearing and appeal as provided in this section. The executive director shall report all permit decisions to the Permit Board at its next regularly scheduled meeting and those decisions shall be recorded in the minutes of the Permit Board. The decisions of the Permit Board shall be recorded in minutes of the Permit Board and shall be kept separate and apart from the minutes of the commission. The decision of the Permit Board or the executive director to issue, reissue, deny, modify or revoke permits shall not be construed to be an order or other action of the commission.
(b) The Executive Director of the Department of Environmental Quality shall also be the Executive Director of the Permit Board and shall have available to him, as Executive Director of the Permit Board, all resources and personnel otherwise available to him as executive director of the department.
(c) All persons required to obtain an air pollution control or water pollution control permit, a permit under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within the jurisdiction of the Permit Board shall make application for that permit with the Permit Board. The Permit Board, under any regulations as the commission may prescribe, may require the submission of those plans, specifications and other information as it deems necessary to carry out Sections 49-17-1 through 49-17-43 and Title 17, Chapter 17, or to carry out the commission's regulations adopted under those sections. The Permit Board, based upon any information as it deems relevant, shall issue, reissue, deny, modify or revoke air pollution control or water pollution control permit or permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within the jurisdiction of the Permit Board under any conditions as it deems necessary that are consistent with the commission's regulations. The Permit Board's action of issuance, reissuance, denial, modification or revocation of a permit as recorded in its minutes shall constitute a complete decision of the board. All permits issued by the Permit Board shall remain in full force and effect until the board makes a final determination regarding any reissuance, modification, or revocation thereof. The Permit Board shall take action upon an application within one hundred eighty (180) days following its receipt in the board's principal office. No action which affects revocation of an existing permit shall take effect until the thirty (30) days mentioned in paragraph (4)(b) of this section has expired or until a formal hearing as prescribed in that paragraph is held, whichever is later.
(d) The Permit Board may adopt rules of practice and procedure governing its proceedings that are consistent with the commission's regulations. All hearings in connection with permits issued, reissued, denied, modified or revoked and all appeals from decisions of the Permit Board shall be as provided in this section.
(e) Upon any conditions that are consistent with the commission's regulations and subject to those procedures for public notice and hearings as provided by law, not inconsistent with federal law and regulations, the Permit Board may issue general permits and, where appropriate, may consolidate multiple permits for the same facility or operation into a single permit.
(f) The Permit Board shall not issue any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation before January 1, 2000, unless the department received the application for that operation's new or modified permit before February 28, 1998, or except as provided in this paragraph (f). In issuing or modifying any permit for which the department received an application before February 28, 1998, the Permit Board shall apply those siting criteria adopted or used by the commission before February 28, 1998, unless federal law or regulations require more stringent criteria. The moratorium established in this paragraph shall not apply to the issuance of any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation that uses an animal waste management system which the applicant demonstrates to the Permit Board is innovative in significantly reducing the effects of the operation on the public health, welfare or the environment and which is approved by the Permit Board. The Permit Board shall not issue or modify more than five (5) permits under this innovative animal waste management system technology exemption to the moratorium.
(g) Each applicant for a permit for a new outlet for the discharge of wastes into the waters of the state who is required to obtain a certificate of public convenience and necessity from the Public Service Commission for such wastewater system shall submit financial and managerial information as required by the Public Utilities Staff. Following review of that information, the Executive Director of the Public Utilities Staff shall certify in writing to the executive director of the department, the financial and managerial viability of the system if the Executive Director of the Public Utilities Staff determines the system is viable. The Permit Board shall not issue the permit until the certification is received.
(4) (a) Except as required by this section, before the issuance, reissuance, denial, modification or revocation of any air pollution control or water pollution control permit, permit required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within its jurisdiction, the Permit Board, in its discretion, may hold a public hearing or meeting to obtain comments from the public on its proposed action. Before the issuance, reissuance, denial, modification pertaining to the expansion of a facility, transfer or revocation of a permit for a commercial hazardous waste management facility or a commercial municipal solid waste landfill or incinerator, the Permit Board shall conduct a public hearing or meeting to obtain comments from the public on the proposed action. That hearing or meeting shall be informal in nature and conducted under those procedures as the Permit Board may deem appropriate consistent with the commission's regulations.
(b) Within thirty (30) days after the date the Permit Board takes action upon permit issuance, reissuance, denial, modification or revocation, as recorded in the minutes of the Permit Board, any interested party aggrieved by that action may file a written request for a formal hearing before the Permit Board. An interested party is any person claiming an interest relating to the property or project which is the subject of the permit action, and who is so situated that the person may be affected by the disposition of that action.
The Permit Board shall fix the time and place of the formal hearing and shall notify the permittee of that time and place.
In conducting the formal hearing, the Permit Board shall have the same full powers as to subpoenaing witnesses, administering oaths, examining witnesses under oath and conducting the hearing, as is now vested by law in the Mississippi Public Service Commission, as to the hearings before it, with the additional power that the Executive Director of the Permit Board may issue all subpoenas at the instance of the Permit Board or at the instance of any interested party. Any subpoenas shall be served by any lawful officer in any county to whom the subpoena is directed and return made thereon as provided by law, with the cost of service being paid by the party on whose behalf the subpoena was issued. Witnesses summoned to appear at the hearing shall be entitled to the same per diem and mileage as witnesses attending the circuit court and shall be paid by the person on whose behalf the witness was called. Sufficient sureties for the cost of service of the subpoena and witness fees shall be filed with the Executive Director of the Permit Board at the time that issuance of the subpoena is requested. At a hearing, any interested party may present witnesses and submit evidence and cross-examine witnesses.
The Permit Board may designate a hearing officer to conduct the formal hearing on all or any part of the issues on behalf of the Permit Board. The hearing officer shall prepare the record of the formal hearing conducted by that officer for the Permit Board and shall submit the record to the Permit Board.
Upon conclusion of the formal hearing, the Permit Board shall enter in its minutes the board's decision affirming, modifying or reversing its prior decision to issue, reissue, deny, modify or revoke a permit. The Permit Board shall prepare and record in its minutes findings of fact and conclusions of law supporting its decision. That decision, as recorded in its minutes with its findings of fact and conclusions of law, shall be final unless an appeal, as provided in this section, is taken to chancery court within twenty (20) days following the date the decision is entered in the board's minutes.
(c) Within twenty (20) days after the date the Permit Board takes action upon permit issuance, reissuance, denial, modification or revocation after a formal hearing under this subsection as recorded in the minutes of the Permit Board, any person aggrieved of that action may appeal the action as provided in subsection (5) of this section.
(5) (a) Appeals from any decision or action of the Permit Board shall be only to chancery court as provided in this subsection.
(b) Any person who is aggrieved by any decision of the Permit Board issuing, reissuing, denying, revoking or modifying a permit after a formal hearing may appeal that decision within the period specified in subsection (4)(c) of this section to the chancery court of the county of the situs in whole or in part of the subject matter. The appellant shall give a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed by the Permit Board and to be filed with and approved by the Executive Director of the Permit Board, who shall forthwith certify the filing of the bond together with a certified copy of the record of the Permit Board in the matter to the chancery court to which the appeal is taken, which shall thereupon become the record of the cause. An appeal to the chancery court as provided in this section shall not stay the decision of the Permit Board. The aggrieved party may, within twenty (20) days following the date the board's decision after a formal hearing is entered on the board's minutes, petition the chancery court for an appeal with supersedeas and the chancellor shall grant a hearing on that petition. Upon good cause shown, the chancellor may grant that appeal with supersedeas. If granted, the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the chancellor. Appeals shall be considered only upon the record as made before the Permit Board. The chancery court shall always be deemed open for hearing of an appeal and the chancellor may hear the same in termtime or in vacation at any place in the chancellor's district, and the appeal shall have precedence over all civil cases, except election contests. The chancery court shall review all questions of law and of fact. If no prejudicial error is found, the matter shall be affirmed. If prejudicial error is found the decision of the board shall be reversed and the chancery court shall remand the matter to the Permit Board for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken from the chancery court to the Supreme Court in the manner as now required by law, except that if a supersedeas is desired by the party appealing to the chancery court, that party may apply for a supersedeas to the chancellor of that court, who shall award a writ of supersedeas, without additional bond, if in the chancellor's judgment material damage is not likely to result thereby; but otherwise, the chancellor shall require a supersedeas bond as the chancellor deems proper, which shall be liable to the state for any damage.
SECTION 5. Section 49-17-429, Mississippi Code of 1972, is amended as follows:
49-17-429. No person may install, alter or remove an underground storage tank after July 1, 1990, without first having been certified by the Commission on Environmental Quality. The commission shall adopt rules and regulations setting forth the requirements for such certification which shall include but not be limited to a certification examination. The commission may charge the applicant for certification under this section the fee established under Section 1 of this act in order to expedite the certification process.
SECTION 6. Section 51-3-5, Mississippi Code of 1972, is amended as follows:
51-3-5. (1) No person who is not specifically exempted by this chapter shall use water without having first obtained a permit as provided herein and without having otherwise complied with the provisions of this chapter, the regulations promulgated hereunder and any applicable permit conditions. The board may charge the applicant for a permit under this subsection the fee established under Section 1 of this act in order to expedite the permitting process.
(2) All persons having acquired a right to use surface water prior to April 1, 1985, are entitled to continue such use, provided that such right shall be contingent upon filing a notice of claim to such use with the commission on a form promulgated by the commission. Any person who shall fail to file that notice within three (3) years of April 1, 1985, shall be deemed to have abandoned such use and the right to such use shall automatically terminate without further action of the board.
(3) Any person using groundwater prior to April 1, 1985, for a beneficial use shall be entitled to continue such use upon the filing with the commission of a notice of claim on a form promulgated by the commission within three (3) years from April 1, 1985. Any such person failing to file the notice of claim within the prescribed period shall be deemed to have abandoned such use and the right to such use shall automatically terminate without further action by the board.
(4) Notwithstanding rights as envisioned in subsections (2) and (3) of this section, all users of water shall continue to be subject to regulations promulgated by the commission regarding the use of surface water and groundwater for the benefit of the health and public welfare of citizens of this state.
(5) As soon as practicable after April 1, 1985, the board shall give notice to all persons affected by the provisions of subsections (2) and (3) of this section regarding the requirement to file the notices of claims mentioned therein. If the names and mailing addresses of such affected persons are available to the board, actual written notice, by certified mail, shall be given by the board. If such names and mailing addresses are not available to the board, notice shall be given by publication at least one time per week for not less than three (3) consecutive weeks in one or more newspapers of general circulation in each county of the state.
SECTION 7. Section 51-3-39, Mississippi Code of 1972, is amended as follows:
51-3-39. (1) Any person proposing to construct, enlarge, repair or alter a dam or reservoir in this state except as provided elsewhere in this section, before proceeding with the construction thereof, must obtain written authorization from the board. Applications shall be made on forms provided by the board, and detailed plans shall be required when deemed necessary by the board in order to determine whether the proposed construction will provide adequate safety for downstream lives and property, and will not adversely affect downstream water rights or plans for the proper utilization of the water resources of the state. The board may charge the applicant for written authorization under this subsection the fee established under Section 1 of this act in order to expedite the authorization process. However:
(a) Written construction authorization shall not be required for any dam or barrier to impound water which (i) is a peripheral dam or barrier of eight (8) feet or less in height, measured from the point of lowest elevation of the toe of the dam or barrier, regardless of impounded storage volume, (ii) impounds twenty-five (25) acre-feet or less at maximum storage volume, or (iii) which does not impound a watercourse with a continuous flow of water.
(b) Any person who seeks to build and maintain a dam on any watercourse lying in whole or in part within a levee district duly constituted under the laws of this state shall first obtain permission from the levee board of such levee district.
(c) Any person intending to acquire the right to store or use water from a reservoir formed by a dam on a watercourse regardless of whether or not written construction authorization therefor was required under this section, may do so only by making an application for a permit as provided elsewhere in this chapter.
(2) The board may request other agencies, or contract with consultants, to recommend land treatment or facilities necessary to prevent pollution of the waters of this state, or to protect the safety and general welfare of the people, and in the board's discretion, may require that these recommendations be followed before authorization to construct or modify the dam is issued, or order the removal of the dam after it has been constructed or request the commission to order the removal of the dam after it has been constructed or modified when such recommendations are not followed.
(3) The board and commission shall be authorized to make inspections of dams and reservoirs, regardless of whether or not written construction authorization therefor was required under this section, for the purpose of determining their safety, and shall require owners to perform at their expense such work as may be necessary for maintenance and operation which will safeguard life and property. * * * However, a dam or reservoir may be exempt from inspections when the commission determines that the location, size or condition is such that lives and property will not be endangered. In carrying out the provisions of this section, the board and commission are authorized to expend available state funds, to receive funds from federal agencies, to contract with consultants and/or other agencies, and the commission may issue orders to owners of dams or reservoirs found to be unsafe requiring them to take the prescribed remedial action to safeguard downstream lives and property.
(4) No dam or reservoir, regardless of whether or not written construction authorization therefor is required under this section, may be constructed in such a manner as to impair the common law or other lawful rights of water users below or plans for the proper utilization of the water resources of the state. The board is authorized to prescribe such minimum flow releases from any dam or reservoir as may be found necessary to protect downstream users or otherwise prudently manage available surface water.
(5) When the board or commission finds a dam or reservoir constructed or modified in violation of this chapter or that the owner of a dam or reservoir has allowed the structure to deteriorate and remain in an unsafe condition after having been ordered to make the necessary repairs, then the commission may cause the structure to be removed and/or the board may revoke or modify any other authorization pertaining thereto.
(6) The provisions of this section shall not be construed as creating any liability for damages against the state and/or against its officers, agents and employees.
(7) The provisions of this section shall apply also to a county board of supervisors when constructing dams or low-water control structures on lakes or bodies of water in accordance with the provisions of Section 19-5-92.
SECTION 8. This act shall take effect and be in force from and after July 1, 2011.