A. If the Department of Conservation and Recreation determines that a plan of development proposed by a developer or subdivider is wholly or partially within a dam break inundation zone and would change the spillway design flood standards of an impounding structure pursuant to § 10.1-606.3, a locality shall require, prior to its final approval of a subdivision or development, that a developer or subdivider of land submit an engineering study in conformance with the Virginia Soil and Water Conservation Board's standards under the Virginia Dam Safety Act (§ 10.1-604 et seq.) and the Virginia Impounding Structure Regulations (4VAC50-20). The study shall provide a contract-ready cost estimate for conducting the upgrades. The Department of Conservation and Recreation shall verify that the study conforms to the Board's standards. Following receipt of a study, the Department shall have 15 days to determine whether the study is complete. The Department shall notify the developer or subdivider of any specific deficiencies that cause the study to be determined to be incomplete. Following a determination that a submission is complete, the Department shall notify the developer or subdivider of its approval or denial within 45 days. Any decision shall be communicated in writing and shall state the reasons for any disapproval.

B. Following the completion of the engineering studies in accordance with subsection A, and prior to any development within the dam break inundation zone, a locality shall require that a developer or subdivider of land pay 50 percent of the contract-ready costs for necessary upgrades to an impounding structure attributable to the development or subdivision, together with administrative fees not to exceed one percent of the total amount of payment required or $1,000, whichever is less. Necessary upgrades shall not include costs associated with routine operation, maintenance, and repair, nor shall necessary upgrades include repairs or upgrades to the impounding structure not made necessary by the proposed development or subdivision.

C. Where a payment under subsection B is required, such payment shall be made by the developer or subdivider in accordance with the following provisions:

1. A locality may elect to receive such payment. Upon receipt, payments shall be kept in a separate account by the locality for each individual improvement project until such time as they are expended for the improvement project; however, any funds not committed by the dam owner within six years of the time of deposit shall be refunded to the developer or subdivider. The locality may issue an extension of up to an additional four years for the use of the funds if the dam owner shows that sufficient progress is being made to justify the extension and the extension is approved by the Virginia Soil and Water Conservation Board prior to the expiration of the six-year period. Should the locality be unable to locate the developer or subdivider following a period of 12 months and the exercise of due diligence, the funds shall be deposited in the Dam Safety, Flood Prevention and Protection Assistance Fund for the provision of grants and loans. Any locality maintaining an account in accordance with this section may charge an administrative fee, not to exceed one percent of the total amount of payment received or $1,000, whichever is less.

2. If the locality elects not to receive such payment, any payments shall be made to the Dam Safety, Flood Prevention and Protection Assistance Fund pursuant to § 10.1-603.19:1. The funds shall be held by the Virginia Resources Authority for each improvement project until such time as they are expended for the improvement project; however, any funds not committed by the dam owner within six years of the time of deposit shall be refunded to the developer or subdivider. The Board may issue an extension of up to an additional four years for the use of the funds if the dam owner shows that sufficient progress is being made. Should the Department of Conservation and Recreation be unable to locate the developer or subdivider following a period of 12 months and the exercise of due diligence, the funds shall be deposited in the Dam Safety, Flood Prevention and Protection Assistance Fund for the provision of grants and loans. The Virginia Resources Authority shall not have any liability for the completion of any project associated with the moneys they manage in the Dam Safety, Flood Prevention and Protection Assistance Fund.

D. No locality shall be required to assume financial responsibility for upgrades except as an owner of an impounding structure.

E. The owner of the impounding structure shall retain all liability associated with upgrades in accordance with § 10.1-613.4.

2008, c. 491.