PRINTER'S NO. 582
No. 539 Session of 2001
INTRODUCED BY GEORGE, McCALL, HANNA, PETRARCA, SOLOBAY, SURRA,
LaGROTTA, EACHUS, LAUGHLIN, WATERS, WALKO, WANSACZ, STEELMAN,
HARHAI, TIGUE, MANDERINO, LEVDANSKY, MICHLOVIC, WOJNAROSKI,
TRAVAGLIO, CORRIGAN, STABACK, GRUCELA, FEESE, LESCOVITZ,
YUDICHAK, DeWEESE, CRUZ, CURRY, CAWLEY, SATHER, SCRIMENTI,
HERMAN, BELARDI, CALTAGIRONE, BELFANTI, FAIRCHILD, COSTA,
RUBLEY AND JOSEPHS, FEBRUARY 7, 2001
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
FEBRUARY 7, 2001
AN ACT
1 Providing for water resources conservation, planning and
2 management; providing for drought response authority;
3 imposing powers and duties on the Department of Environmental
4 Protection in relation thereto; providing for penalties and
5 enforcement; establishing the Water Conservation Fund; and
6 making repeals.
7 TABLE OF CONTENTS
8 Section 1. Short title.
9 Section 2. Legislative findings and declaration.
10 Section 3. Definitions.
11 Section 4. Statewide and regional water resources
12 advisory committees.
13 Section 5. Powers and duties of Environmental Quality Board.
14 Section 6. Powers and duties of department.
15 Section 7. State water plan.
16 Section 8. Conservation areas.
17 Section 9. Water use registration and reporting.
1 Section 10. Withdrawals or diversions requiring permits.
2 Section 11. Permit requirements.
3 Section 12. General permits.
4 Section 13. Conservation.
5 Section 14. Drought response planning and authority.
6 Section 15. Public nuisances.
7 Section 16. Enforcement, penalties and remedies.
8 Section 17. Water Conservation Fund.
9 Section 18. Fees.
10 Section 19. Savings provision.
11 Section 20. Existing rights and remedies preserved.
12 Section 21. Severability.
13 Section 22. Repeals.
14 Section 23. Effective date.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Short title.
18 This act shall be known and may be cited as the Water
19 Resources Conservation and Management Act.
20 Section 2. Legislative findings and declaration.
21 (a) Findings.--The General Assembly finds as follows:
22 (1) As trustee of this Commonwealth's water resources,
23 the Commonwealth has a duty to preserve the natural, scenic,
24 historic and esthetic values of the environment and to
25 conserve, protect, manage and maintain those resources for
26 the benefit of all the people, including generations yet to
27 come.
28 (2) The preservation of instream flows to protect stream
29 ecology, aquatic organisms and water-related environmental
30 values is essential to carry out the Commonwealth's trustee
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1 responsibilities and must be assured when providing for the
2 reasonable instream and offstream uses of water, including,
3 but not limited to, municipal, public, commercial, industrial
4 and agricultural water supply, recreation, navigation, energy
5 production and waste assimilation.
6 (3) Planning for and development and management of
7 adequate supplies of water are necessary to minimize the
8 effects of overuse of water and recurring periods of drought.
9 Severe shortages and overuse may render water resources
10 incapable of meeting essential needs, cause conflicts between
11 diverse users of the common resource, disrupt or damage
12 economic activities and contribute to pollution and
13 unsanitary conditions, all of which are detrimental to the
14 health, safety and welfare of the people of the Commonwealth.
15 (4) Water resources on or beneath the surface of the
16 ground or in the atmosphere are interconnected and part of a
17 single hydrologic resource which can be used conjunctively.
18 Their development, management and use must therefore be
19 coordinated and comprehensive in order to further the
20 purposes of this act.
21 (5) Comprehensive water resources planning and
22 management must rely on accurate information on water
23 availability and present and anticipated water use and demand
24 in order to identify resource shortfalls, potential conflicts
25 and areas requiring special protection and to recommend and
26 implement programs needed to address identified concerns. A
27 continually updated State water plan will aid both the
28 governmental and the private sectors in making informed
29 decisions regarding wise development, management and use of
30 this Commonwealth's water resources.
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1 (6) The conservation of water resources reduces the
2 impact of withdrawals and diversions upon water resources.
3 Conservation provides a degree of drought protection, may
4 delay or obviate the need for construction or expansion of
5 capital projects and is a water management tool available to
6 all water resources users.
7 (7) Because of the severe water supply shortages that
8 could occur due to overuse and recurring periods of drought,
9 the Commonwealth agencies responsible for water resources
10 planning and management must have adequate drought response
11 authority in order to protect the public health, safety and
12 welfare.
13 (8) In recognition of the public's dependence on water
14 supplied by public water supply agencies, such agencies'
15 statutory authorization to acquire water rights, to divert,
16 withdraw and use water resources and to exercise eminent
17 domain power must be continued.
18 (9) Close coordination and cooperation among Federal,
19 State, interstate and local agencies and public and private
20 organizations in matters relating to the water resources of
21 this Commonwealth are in the public interest.
22 (b) Declaration.--It is the purpose of this act to protect
23 the public health, safety and welfare and to further the intent
24 of section 27 of Article I of the Constitution of Pennsylvania
25 by establishing a comprehensive and systematic planning and
26 regulatory program for the conservation, utilization,
27 evaluation, equitable distribution, management and development
28 of this Commonwealth's water resources to protect water
29 resources and to ensure an adequate supply of water for the
30 benefit of all the people.
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1 Section 3. Definitions.
2 The following words and phrases when used in this act shall
3 have the meanings given to them in this section unless the
4 context clearly indicates otherwise:
5 "Acquire" or "acquisition." To obtain, secure or become
6 vested with water rights by purchase, agreement, lease,
7 transfer, gift, devise, adverse possession, prescription,
8 eminent domain, waiver of damages, settlement of damages,
9 appropriation or other lawful method or the rights acquired.
10 "Conjunctive use." The use of two or more water resources as
11 components of a single unit employing management techniques and
12 methods which serve to optimize the conservation of the water
13 resources.
14 "Conservation area." A specific watershed or hydrologic unit
15 of this Commonwealth considered and designated by the Department
16 of Environmental Protection and the Environmental Quality Board
17 as being in need of special protection pursuant to section 8
18 because of unique or restricted water resources.
19 "Conservation practices." Those practices and measures which
20 are designed to:
21 (1) reduce the demand for water;
22 (2) improve efficiency in use and reduce leakage, losses
23 and waste of water;
24 (3) improve reuse and recycling of water; and
25 (4) increase the supply of water.
26 "Consumptive use." A use of water diverted or withdrawn from
27 a water resource in such a manner that it is not returned to the
28 water resource at or near the point from which it was taken and
29 that results in diminution in quantity or impairment of quality
30 of the water resource.
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1 "Department." The Department of Environmental Protection of
2 the Commonwealth.
3 "Divert" or "diversion." The direct or indirect taking or
4 impoundment of water from any water resource, whether or not the
5 water is returned to its source, consumed, made to flow into
6 another water resource or discharged elsewhere. The term
7 includes the transfer of water through interconnections between
8 water users.
9 "Environmental Hearing Board." The board established
10 pursuant to the act of July 13, 1988 (P.L.530, No.94), known as
11 the Environmental Hearing Board Act.
12 "Environmental Quality Board." The board established
13 pursuant to section 1920-A of the act of April 9, 1929 (P.L.177,
14 No.175), known as The Administrative Code of 1929, for the
15 purposes set forth in that section.
16 "Hydrologic unit." A geographic area having water resources
17 which are hydrologically connected, including any surface
18 watershed or basin, groundwater basin, aquifer or aquifer
19 system.
20 "Instream use." Any reasonable use of water that utilizes
21 the resource in place on or above the surface of the ground. The
22 term includes, but is not limited to, recreation, navigation,
23 energy production, waste assimilation, fish and wildlife
24 habitat, the maintenance of natural, scenic, historic or
25 esthetic values of the resource and any of the uses protected
26 under the authority of the act of June 22, 1937 (P.L.1987,
27 No.394), known as The Clean Streams Law, and section 303 of the
28 Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. §
29 1251 et seq.).
30 "Interconnection." The physical connection between water
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1 users providing for the delivery of raw or treated water between
2 them, including the connections between water sources, water
3 mains and water distribution systems.
4 "Major basin." The area drained by the Great Lakes and their
5 tributaries or by one of the following major rivers and their
6 respective tributaries: Delaware River, Ohio River, Potomac
7 River and Susquehanna River.
8 "Management." Activity undertaken to develop, conserve,
9 protect and regulate the water resources of this Commonwealth to
10 ensure an adequate supply of water is available to users.
11 "Offstream use." A reasonable use of water that utilizes the
12 resource off the surface of the ground from which it is diverted
13 or withdrawn. The term includes, but is not limited to,
14 municipal, public, commercial, industrial and agricultural water
15 supply.
16 "Person." An individual, partnership, association, company,
17 corporation, municipality, municipal authority, political
18 subdivision, receiver, or trustee, or any agency, department,
19 board, commission, or authority of the Commonwealth or of the
20 Federal Government, or any other legal entity whatsoever which
21 is recognized by law as the subject of rights and duties. The
22 term shall include the officers, employees and agents of any
23 individual, partnership, association, company, corporation,
24 municipality, municipal authority, political subdivision,
25 receiver or trustee, or any agency, department, board,
26 commission or authority of the Commonwealth or of the Federal
27 Government, or any other legal entity.
28 "Public water supply agency." A community water system as
29 defined by the act of May 1, 1984 (P.L.206, No.43), known as the
30 Pennsylvania Safe Drinking Water Act, or any person providing
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1 water or authorized to supply water to the public.
2 "Safe yield." The amount of water that can be withdrawn from
3 a water resource without causing an undesired result, such as
4 long term dewatering of an aquifer, induced potential health
5 threats or impacts upon instream uses.
6 "Secretary." The Secretary of the Department of
7 Environmental Protection of the Commonwealth.
8 "State water plan." An assessment of the water resources of
9 the Commonwealth prepared by the Department of Environmental
10 Protection or its predecessor agencies pursuant to this act,
11 section 1904-A of the act of April 9, 1929 (P.L.177, No.175),
12 known as The Administrative Code of 1929, sections 5 and 304 of
13 the act of June 22, 1937 (P.L.1987, No.394), known as The Clean
14 Streams Law, or other applicable law.
15 "Water resource." Water above, on or beneath the surface of
16 the ground or in the atmosphere, whether natural or artificial,
17 wholly or partly within or on the boundaries of this
18 Commonwealth.
19 "Water rights." The right to withdraw, use, take or divert
20 water resources of this Commonwealth, including rights created
21 between sellers and buyers of water through interconnections.
22 "Withdraw" or "withdrawal." The removal or taking of water
23 from a water resource.
24 Section 4. Statewide and regional water resources advisory
25 committees.
26 (a) Statewide Water Resources Advisory Committee.--
27 (1) There is hereby established in the department a
28 Statewide Water Resources Advisory Committee. The committee
29 shall consist of: the secretary or his designee, who shall
30 be chairperson; one member appointed by the secretary from
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1 each regional advisory committee established pursuant to
2 subsection (b); and 11 additional members appointed by the
3 secretary representing the interests of business and
4 industry, energy and power, navigation, agriculture,
5 environment and conservation, public water suppliers, labor,
6 municipal governments and authorities, residential water
7 users, recreation and fish and wildlife. In appointing these
8 11 members, the secretary shall seek a diverse geographic
9 representation.
10 (2) Of the members first appointed, six members
11 appointed by the secretary shall serve for a period of three
12 years, five members shall serve for a period of two years and
13 five members shall serve for a period of one year.
14 Thereafter, each appointment shall be for a period of three
15 years. All vacancies shall be filled for the remainder of the
16 unexpired term in the same manner as the original
17 appointments to provide equitable representation of groups
18 and geographic areas. A member, upon expiration of the term,
19 shall continue to hold office until a successor is appointed.
20 (3) The advisory committee shall have an opportunity:
21 (i) To advise the department in the preparation and
22 development of the State water plan.
23 (ii) To review proposed regulations under this act
24 and advise the department.
25 (iii) To advise the department regarding issues,
26 policies and programs related to the implementation of
27 this act as may be submitted by the department to the
28 committee for review.
29 (b) Regional water resources advisory committees.--The
30 department shall establish a regional water resources advisory
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1 committee for each major basin that shall advise the department
2 in the preparation and development of the State water plan with
3 regard to their respective local and regional water resources
4 needs, priorities and objectives. The regional advisory
5 committees also shall have the duty of advising the department
6 on matters pertinent to the establishment, modification or
7 termination of conservation areas pursuant to section 8 and the
8 management of water resources in their respective regions.
9 (c) Expenses and support services.--The committees' members
10 shall serve without salary or compensation except for
11 reimbursement by the department for reasonable and necessary
12 expenses incurred in connection with their duties as approved by
13 the secretary. The department shall also provide necessary
14 administrative support services, budget and staff to the
15 committees for the carrying out of their responsibilities under
16 this section.
17 Section 5. Powers and duties of Environmental Quality Board.
18 (a) Review and approval of State water plan.--The
19 Environmental Quality Board shall review and approve the State
20 water plan and adopt such rules and regulations of the
21 department, governing the conservation, utilization,
22 development, management, equitable distribution and evaluation
23 of water resources and the administration of water management
24 programs, as it deems necessary for the implementation of this
25 act.
26 (b) Factors to be considered.--In adopting regulations under
27 this act, the board shall consider factors, including, but not
28 limited to, the following:
29 (1) The Commonwealth's duty to preserve the natural,
30 scenic, historic and esthetic values of the environment and
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1 to conserve and maintain the water resources of this
2 Commonwealth for the benefit of all the people, consistent
3 with the people's right to pure water.
4 (2) The protection of the public health, safety and
5 welfare.
6 (3) The conjunctive use and development of water
7 resources.
8 (4) The application of conservation practices as well as
9 generally accepted water resource management and hydrologic
10 principles.
11 (5) The state of scientific, hydrologic, geologic and
12 technological knowledge.
13 (6) The economic, social and environmental impact on
14 this Commonwealth, its citizens and its water resources.
15 (7) The diverse resources and needs of this
16 Commonwealth's regions and major basins.
17 Section 6. Powers and duties of department.
18 The department shall:
19 (1) Administer and enforce this act or any rules and
20 regulations adopted pursuant to it and to implement section
21 27 of Article I of the Pennsylvania Constitution.
22 (2) Maintain a comprehensive information system,
23 including, but not limited to:
24 (i) An inventory of water resources of this
25 Commonwealth.
26 (ii) A record of all registered and permitted
27 withdrawals, diversions and acquisitions made under this
28 act.
29 (iii) An assessment of present and anticipated water
30 use and demand by major basin and by significant
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1 hydrologic unit, including identification of consumptive
2 use.
3 (iv) Identification of low flow characteristics,
4 safe yield, the capability of water resources to support
5 instream and offstream uses and the minimum instream
6 flows and groundwater levels necessary to ensure adequate
7 water quantity and quality for the protection of stream
8 ecology, aquatic organisms and other environmental
9 values.
10 (v) Assessment of water resources required to
11 support areas with important or unique natural, scenic,
12 historic, esthetic, environmental or recreational values.
13 (3) Require recordkeeping, metering, measuring,
14 monitoring and reporting of such information as necessary to
15 administer and obtain compliance with this act.
16 (4) Make inspections, investigations and examinations,
17 exercise the right of entry, perform such tests or sampling
18 and require the production of such things as necessary to
19 determine compliance with or enforce this act.
20 (5) Provide water conservation education, technical
21 assistance and advice to persons subject to this act.
22 (6) Collect fees and civil penalties and accept and
23 administer funds from any source to aid in carrying out this
24 act.
25 (7) Issue, deny, modify, suspend and revoke permits.
26 (8) Issue such orders, assess civil penalties and
27 initiate such proceedings as may be necessary and appropriate
28 for the enforcement of this act and any rules, regulations,
29 orders or permits issued under this act.
30 (9) Recommend to the Environmental Quality Board the
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1 designation, modification and termination of conservation
2 areas pursuant to section 8.
3 (10) Cooperate and coordinate with appropriate river
4 basin commissions and Federal, State, interstate, local,
5 public water supply and other agencies for efficient planning
6 for the conservation, utilization, evaluation, equitable
7 distribution, management and development of water resources
8 and to avoid duplicative requirements to which water users
9 may be subject.
10 (11) Enter into administrative agreements, at its
11 discretion, with appropriate river basin commissions and
12 Federal, interstate and other agencies for any of the
13 following purposes:
14 (i) To facilitate the submission and coordinated
15 review of project approvals and permit applications
16 related to water resources.
17 (ii) To avoid unnecessary duplications of staff
18 functions, hearings and project approvals or permit
19 requirements.
20 (iii) To provide for coordinated inspection,
21 monitoring and enforcement of applicable laws and
22 regulations.
23 (iv) To accept delegations of authority for the
24 regulation or management of water resources.
25 (v) To coordinate the development of water resources
26 contingency plans and to ensure coordinated and effective
27 response to water resources shortages and drought
28 emergencies.
29 (12) Enter into administrative agreements, at its
30 discretion, with appropriate river basin commissions or
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1 Federal, State, interstate or local agencies for the purpose
2 of delegating any of its authority under this act. Any
3 commission or agency acting under a delegation agreement
4 shall have the same powers and duties otherwise vested in the
5 department to implement this act, to the extent delegated by
6 the agreement.
7 Section 7. State water plan.
8 (a) Preparation and submission.--Within three years of the
9 effective date of this act, the department shall prepare and
10 submit an updated State water plan to the Environmental Quality
11 Board for consideration and approval. The updated plan shall be
12 prepared with the advice of and in consultation with the
13 Statewide and Regional Water Resources Advisory Committees
14 established pursuant to section 4, the Pennsylvania Emergency
15 Management Agency, the Pennsylvania Public Utility Commission
16 and with other local, regional and State agencies and
17 organizations, as deemed appropriate by the department.
18 (b) Contents.--The State water plan shall be a comprehensive
19 plan for the immediate and long-range protection, conservation,
20 utilization, evaluation, development, equitable distribution and
21 management of the water resources of this Commonwealth,
22 consistent with the public interest and the preservation of the
23 natural, scenic, historic and esthetic values of the
24 environment. The State water plan shall include:
25 (1) Identification of major water resources issues.
26 (2) Analysis of identified issues.
27 (3) That combination of policies, programs,
28 institutional arrangements and recommendations that address
29 the total water quantity needs and objectives of the
30 Commonwealth and will guide the department's actions in
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1 managing the water resources of this Commonwealth in the
2 public interest.
3 (c) Factors to consider.--In developing the State water
4 plan, the department shall consider the following factors:
5 (1) Local and regional water resources needs, priorities
6 and objectives.
7 (2) National, State and interstate water resources
8 policies and objectives, including those identified in
9 legislation, regulations, compacts, interstate agreements or
10 comprehensive plans adopted by Federal, State or basin
11 commission agencies.
12 (3) Identification of areas needing special protection.
13 (4) The conjunctive use, development and management of
14 water resources.
15 (5) The application of conservation practices and
16 generally accepted water resource management and hydrologic
17 principles, including the protection of instream flows and
18 provision for consumptive use makeup.
19 (6) The benefits, costs and economic, social and
20 environmental impacts of alternative policies, programs,
21 institutional arrangements and recommendations.
22 (d) Periodic review and resubmission.--Following initial
23 approval of the State water plan by the Environmental Quality
24 Board, the department shall review and resubmit the State water
25 plan to the board at least every six years thereafter in
26 consultation with the Statewide and regional water resources
27 advisory committees and others as deemed appropriate by the
28 department and shall propose revisions as necessary or
29 appropriate.
30 (e) Publication.--The department shall publish in the
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1 Pennsylvania Bulletin public notice of the availability of the
2 State water plan for review at the department's regional offices
3 and shall accept public comment for a period of at least 30 days
4 prior to submission or resubmission of the State water plan to
5 the Environmental Quality Board.
6 Section 8. Conservation areas.
7 (a) Establishment.--The department may propose and the
8 Environmental Quality Board may by regulation establish and
9 delineate conservation areas that need special protection upon a
10 finding that current or projected demands on and uses of water
11 resources in those areas:
12 (1) exceed or threaten to exceed the safe yield of the
13 water resources;
14 (2) create or will cause a shortage of water having
15 sufficient quality to meet needs;
16 (3) impair or will have substantial adverse impact on
17 instream uses, water quality or the environment;
18 (4) conflict with the requirements or effectuation of
19 the State water plan.
20 (b) Modification or termination.--Upon recommendation of
21 department, the Environmental Quality Board may approve the
22 modification or termination of the conservation area status of
23 an area upon a finding that the conditions prompting the
24 delineation have significantly changed or no longer exist. Such
25 change in status shall be effective upon publication by the
26 department of public notice in the Pennsylvania Bulletin.
27 Section 9. Water use registration and reporting.
28 (a) Registration required.--
29 (1) Any person whose existing, new or increased
30 withdrawal or diversion from one or more water resources of
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1 the Commonwealth causes that person's total withdrawal or
2 diversion to equal or exceed an average rate of 10,000
3 gallons per day in any 30-day period, and all public water
4 supply agencies shall register with the department the source
5 and amount of their withdrawal or diversion.
6 (2) Registrations shall be submitted to the department
7 on such forms and with such accompanying data as shall be
8 prescribed by the department or required by regulation and
9 with such fees as established by this act or regulation.
10 (b) Term or registration.--
11 (1) The registration requirement shall take effect one
12 year from the effective date of this act. Except as provided
13 in paragraph (2), registrations shall be renewed according to
14 staggered three-year cycles to be established by the
15 department by notice published in the Pennsylvania Bulletin
16 or such other reporting period as may be established by
17 regulation.
18 (2) Any person who after registering a source proposes
19 to increase by 20% or more the amount of a registered
20 withdrawal or diversion before the renewal date of such
21 registration shall submit to the department supplemental
22 information at least 30 days prior to commencing the
23 increased withdrawal or diversion.
24 (c) Reporting.--The department may require any person
25 withdrawing or diverting water resources of this Commonwealth:
26 (1) To install, use and maintain such metering equipment
27 or methods.
28 (2) To perform such measuring.
29 (3) To maintain and retain such records of information
30 from metering and measuring activities.
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1 (4) To submit such reports of metering and measuring
2 results.
3 (5) To provide such other information as may be required
4 to determine compliance or noncompliance with this act, with
5 regulations promulgated under this act or with the terms or
6 conditions of any permit or order issued pursuant to this
7 act.
8 (6) To establish and maintain such other records and to
9 make such other reports and to furnish such information to
10 the department as the department may prescribe as being
11 necessary to assist the department in fulfilling the purposes
12 of this act or to demonstrate compliance with the
13 requirements of this act, the regulations promulgated under
14 this act, or the terms and conditions of any permit or order
15 issued to that person.
16 (d) Regulations.--The Environmental Quality Board may adopt
17 regulations, providing for the waiver or modification of
18 registration, recordkeeping or reporting requirements for any
19 classification or volume of withdrawal or diversion, where the
20 board finds that such withdrawal or diversion:
21 (1) is temporary in nature;
22 (2) is unlikely to have any significant effect on the
23 water resource or other water use in the area; or
24 (3) that such requirements are unnecessary to obtain
25 information required to adequately assess water uses, monitor
26 demands or prepare an accurate and complete State water plan.
27 (e) Registration not determinative.--No registration of a
28 withdrawal or diversion under this section shall be construed as
29 a determination of water rights, a prior appropriation of water
30 resources, conferring of superiority of right in respect to the
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1 use of those water resources or approval of the withdrawal or
2 diversion by any agency of this Commonwealth or by any river
3 basin commission.
4 Section 10. Withdrawals or diversions requiring permits.
5 (a) Significant user.--No person may withdraw or divert
6 water resources of this Commonwealth whose total withdrawal or
7 diversion from one or more water resources equals or exceeds an
8 average rate of 100,000 gallons per day in any 30-day period or
9 such other amount as may be established by regulation without
10 first obtaining a written individual or general permit from the
11 department in accordance with section 11 or 12.
12 (b) Public water supply agency.--No public water supply
13 agency may withdraw or divert water resources of this
14 Commonwealth or acquire any water rights without first obtaining
15 a written individual or general permit from the department in
16 accordance with section 11 or 12 unless:
17 (1) The public water supply agency withdraws, diverts
18 and uses water resources only on its riparian land.
19 (2) The public water supply agency's total withdrawal or
20 diversion from one or more water resources does not equal or
21 exceed an average rate of 10,000 gallons per day in any 30-
22 day period or such other amount as may be established by
23 regulation.
24 (c) Permit requirement effective date.--Except as provided
25 in subsection (d), the permit requirement contained in
26 subsection (a) or (b) shall take effect on the following dates
27 or such other dates, including interim dates for the submission
28 of a complete permit application under section 11 or 12, as may
29 be established by regulation:
30 (1) For acquisitions, withdrawals or diversions equal to
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1 or exceeding 2,500,000 gallons per day, four years from the
2 effective date of this act.
3 (2) For acquisitions, withdrawals or diversions equal to
4 or exceeding 750,000 gallons per day but less than 2,500,000
5 gallons per day, five years from the effective date of this
6 act.
7 (3) For acquisitions, withdrawals or diversions equal to
8 or exceeding 250,000 gallons per day but less than 750,000
9 gallons per day, six years from the effective date of this
10 act.
11 (4) For acquisitions, withdrawals or diversions equal to
12 or exceeding 100,000 gallons per day but less than 250,000
13 gallons per day, eight years from the effective date of this
14 act.
15 (5) For acquisitions, withdrawals or diversions by
16 public water supply agencies of less than 100,000 gallons per
17 day, ten years from the effective date of this act.
18 (d) Existing approvals.--
19 (1) Except as provided in paragraph (2) a person or
20 public water supply agency which on the effective date of
21 this act holds a valid permit, order of confirmation or
22 approval to withdraw, use or divert water resources or to
23 acquire water rights issued under one of the following acts
24 or compacts may continue to exercise their rights under such
25 approvals until the applicable date specified in subsection
26 (c) for obtaining a permit under this act:
27 (i) The act of June 14, 1923 (P.L.704, No.294),
28 entitled "An act relating to limited power permits and
29 limited water supply permits from the Water Supply
30 Commission of Pennsylvania and the conditions thereof, to
20010H0539B0582 - 20 -
1 the flooding and use by holders of limited power permits
2 of islands owned by the Commonwealth, to the unlawful use
3 for water or steam power development of dams and changes
4 in streams hereafter constructed or made otherwise than
5 under limited power permits, and to proceedings for the
6 enforcement of this act."
7 (ii) The act of June 24, 1939 (P.L.842, No.365),
8 referred to as the Water Rights Law.
9 (iii) The Delaware River Basin Compact, authorized
10 under the act of July 7, 1961 (P.L.518, No.268), known as
11 the Delaware River Basin Compact.
12 (iv) The Susquehanna River Basin Compact, authorized
13 under the act of July 17, 1968 (P.L.368, No.181),
14 referred to as the Susquehanna River Basin Compact Law.
15 (2) Any person or public water supply agency subject to
16 the acts listed in paragraph (1) shall obtain a permit under
17 this act prior to the occurrence of any of the following, or
18 the applicable date specified in subsection (c), whichever is
19 sooner:
20 (i) expiration of its existing approval;
21 (ii) commencement of a new or increased withdrawal
22 or diversion after the effective date of this act; or
23 (iii) acquisition by a public water supply agency of
24 new water rights beyond that contained in its existing
25 approval.
26 (3) The issuance, modification, suspension or denial of
27 a permit under this act shall substitute for and act as a
28 revocation of any previous authority granted under the acts
29 listed in paragraph (1).
30 (e) Permits within conservation areas.--
20010H0539B0582 - 21 -
1 (1) Within any conservation area established by the
2 Environmental Quality Board, no person may withdraw or divert
3 water resources of this Commonwealth whose total withdrawal
4 or diversion from one or more water resources equals or
5 exceeds an average rate of 10,000 gallons per day in any 30-
6 day period or such other amount as may be established by
7 regulation without obtaining a written individual or general
8 permit from the department in accordance with section 11 or
9 12. The permit requirement of this subsection shall take
10 effect:
11 (i) Upon the effective date of the conservation area
12 determination, as to any withdrawal or diversion
13 commenced or increased after the effective date of the
14 conservation area determination.
15 (ii) One year following the effective date of the
16 conservation area determination, as to any acquisition,
17 withdrawal or diversion developed and commenced prior to
18 the effective date of the conservation area
19 determination.
20 (2) A person or public water supply agency withdrawing
21 water resources within a delineated conservation area under a
22 valid permit issued under section 11 or 12 shall be deemed to
23 comply with the permit requirements of this subsection. That
24 permit shall be subject to modification as necessary to
25 comply with the requirements of this act and the regulations
26 adopted under this act.
27 (f) Compliance with other requirements.--A person otherwise
28 subject to the requirements of this section shall comply
29 immediately with all operating, monitoring, conservation,
30 registration, recordkeeping, reporting and other provisions of
20010H0539B0582 - 22 -
1 this act and the regulations adopted under this act, regardless
2 of the date by which such person must comply with the permit
3 requirement.
4 Section 11. Permit requirements.
5 (a) Applications.--
6 (1) (i) Applications for permits shall be submitted in
7 writing to the department on such forms and with such
8 accompanying data as shall be prescribed by the
9 department and shall include maps, plans, drawing
10 specifications, yield data, water quality data,
11 delineation of service territory and such other
12 information as the department may require to determine
13 compliance with this act and the regulations adopted
14 under this act. Each application shall also be
15 accompanied by a permit application fee established by
16 this act or regulation.
17 (ii) The submission of a new application shall be
18 required if a permittee's withdrawal(s) or diversion(s)
19 exceed the quantity specified in an existing permit or a
20 permitted public water supply agency proposes the
21 expansion of its service territory beyond that identified
22 in its existing permit.
23 (2) Applicants must demonstrate that:
24 (i) They have a legal right to withdraw, divert, use
25 or acquire water resources of this Commonwealth.
26 (ii) Their proposed withdrawal, diversion, usage or
27 acquisition will not interfere with or result in any
28 adverse impact on any existing registered or permitted
29 withdrawal, diversion, usage or acquisition and that it
30 is protective of stream ecology, aquatic organisms,
20010H0539B0582 - 23 -
1 related environmental values and existing and planned
2 future land uses.
3 (iii) Conservation practices have been or will be
4 pursued.
5 (3) Prior to taking action on a permit application, the
6 department shall require every applicant to give at least 30-
7 days written notice to each municipality in which the
8 proposed withdrawal, diversion or acquisition is located. The
9 department shall provide public notice in the Pennsylvania
10 Bulletin upon the receipt of a completed permit application
11 and shall provide a 30-day public comment period before
12 taking action on a permit application. The department shall
13 also provide public notice in the Pennsylvania Bulletin of
14 the permits granted under this act.
15 (b) Permit issuance.--
16 (1) The department may grant a permit for the
17 continuation of an existing withdrawal or diversion or a
18 public water supply agency's acquisition of water rights or
19 for a new or increased withdrawal, diversion or public water
20 supply agency's acquisition if the department determines that
21 the withdrawal, diversion or acquisition is:
22 (i) Consistent with the State water plan.
23 (ii) Complies with the provisions of this act, the
24 regulations adopted under this act and all other
25 applicable laws administered by the department or a river
26 basin commission created by interstate compact.
27 (iii) In the case of a public water supply agency,
28 is reasonably necessary for the present and future needs
29 of the area served by that agency.
30 (iv) Satisfies the criteria contained in subsection
20010H0539B0582 - 24 -
1 (a)(2).
2 (2) The department may not issue or amend any permit
3 under this act and may suspend or revoke any permit
4 previously issued if it finds that the applicant, or a
5 partner, owner, associate, officer, parent or subsidiary
6 corporation or contract operator, has shown a lack of ability
7 or intention to comply with any provisions of Federal law or
8 the laws of this Commonwealth or other states or a
9 regulation, order or permit of the department regarding water
10 resources withdrawals, diversions or acquisitions, as
11 indicated by past or continuing violations unless the lack of
12 intention or ability to comply is being or has been corrected
13 to the satisfaction of the department.
14 (3) Where the department finds that:
15 (i) the quantity of existing or proposed
16 withdrawals, diversions or acquisitions exceeds the safe
17 yield of the affected water resource;
18 (ii) the proposed withdrawal, diversion or
19 acquisition is inconsistent with the State water plan or
20 otherwise creates a conflict among water users;
21 the department may deny the request, require adjustments in
22 the quantities withdrawn or modify or condition withdrawals,
23 diversions or acquisitions as necessary to assure that the
24 water resources are conserved, equitably shared and
25 efficiently used in the public interest and in accordance
26 with any regulations adopted hereunder.
27 (4) Any permitted acquisition, diversion or withdrawal
28 granted under this act shall lapse if the permittee fails to
29 effectuate the withdrawal, diversion or acquisition by an
30 actual taking and use of water resources within the time
20010H0539B0582 - 25 -
1 specified in the permit, which may not exceed four years,
2 unless the permittee applies for and is granted an extension
3 as the department deems necessary to enable the permittee to
4 complete the project required for the taking of the water
5 resources.
6 (c) No prior appropriations.--
7 (1) No allocation of water resources made pursuant to
8 this section shall:
9 (i) constitute a prior appropriation of the water
10 resources of this Commonwealth; or
11 (ii) confer any superiority of right in respect to
12 the use of those water resources.
13 (2) A public water supply agency granted a permit for
14 the acquisition of water rights shall be in the same position
15 as a holder of water rights under common law.
16 (d) Permit duration.--
17 (1) A permit issued or renewed under this section shall
18 be for a fixed term not to exceed ten years. A permit may be
19 renewed by the department upon the filing of a new
20 application.
21 (2) The terms and conditions of an expired permit shall
22 be automatically continued pending the issuance of a new
23 permit where:
24 (i) the permittee has submitted a timely and
25 complete application for a new permit; and
26 (ii) the permittee has paid the fees required by
27 this act or the regulations promulgated under this act;
28 and
29 (iii) the department is unable, through no fault of
30 the permittee, to issue or deny a new permit before the
20010H0539B0582 - 26 -
1 expiration date of the previous permit.
2 (e) Permit conditions.--
3 (1) (i) The department shall impose such permit terms
4 and conditions, including standard conditions, regarding
5 conservation, development, operation, monitoring of
6 withdrawals and diversions and acquisition of water
7 rights as are reasonably necessary to protect the public
8 interest in water resources and to assure consistency
9 with the State water plan and compliance with this act,
10 the regulations adopted under this act and other laws
11 administered by the department and any river basin
12 commission created by interstate compact.
13 (ii) The conditions shall include, but are not
14 limited to, requirements related to implementing
15 conservation practices, metering, consumptive use makeup,
16 minimum instream flow to protect aquatic life and
17 downstream users, and equitable distribution of water
18 resources.
19 (2) The withdrawal, diversion, development, operation
20 and use of water or exercise of water rights authorized by
21 permit may be suspended or made subject to special limits or
22 conditions in the event of an emergency declared by the
23 Governor under the Emergency Management Services Code, 35
24 Pa.C.S. Part V (relating to Emergency Management Services),
25 or any successor statute or by a river basin commission
26 pursuant to an interstate compact.
27 (f) Permit modification, suspension and revocation.--In
28 addition to its powers under section 16(d), the department may
29 at any time modify, suspend or revoke a permit to:
30 (1) Respond to new information or changed hydrologic
20010H0539B0582 - 27 -
1 conditions.
2 (2) Resolve previously unforeseen conflicts or impacts.
3 (3) Protect the public interest, considering
4 conservation, development, equitable distribution of
5 available water resources and the maintenance of water
6 quantity and quality to preserve instream, offstream and
7 downstream uses.
8 (4) Assure compliance with this act, regulations adopted
9 under this act and other laws administered by the department
10 or any river basin commission created by interstate compact.
11 (5) Correct any violation of this act or regulations
12 adopted under this act, or of a condition of the permit,
13 including taking appropriate action pursuant to subsection
14 (b)(2).
15 (g) Permit nontransferable.--No permit may be transferred
16 without written approval by the department.
17 (h) Emergency permits.--In the event of an emergency
18 requiring immediate action to protect health, safety or welfare,
19 and where the circumstances do not allow a complete review of an
20 application as required by this act, the department may issue an
21 emergency permit authorizing such withdrawals, diversions and
22 acquisitions as necessary. In issuing emergency permits under
23 this section, the department shall not be required to comply
24 with the requirements of subsection (a)(3).
25 (i) Eminent domain.--All public water supply agencies
26 holding a permit issued under this act shall have the power and
27 may exercise the right of eminent domain with respect to any
28 withdrawal, diversion or acquisition authorized by the permit.
29 Section 12. General permits.
30 (a) General rule.--The department may, in accordance with
20010H0539B0582 - 28 -
1 regulations adopted by the Environmental Quality Board, issue
2 general permits on a watershed, basin, management area, regional
3 or Statewide basis for any category of withdrawal, diversion or
4 public water supply acquisition if the department determines
5 that the withdrawals, diversions or acquisitions in such
6 category:
7 (1) Can be adequately regulated and managed utilizing
8 standardized specifications and conditions.
9 (2) Will have an insignificant effect upon water
10 resources.
11 (b) Content.--General permits shall specify such siting,
12 operating and other conditions as are necessary to conserve,
13 preserve, maintain and manage water resources and to protect
14 health, safety, welfare and the environment and under which
15 withdrawals, diversions and acquisitions can be developed and
16 operated without applying for and obtaining individual permits.
17 (c) Registration.--The department shall require and
18 applicant for a general permit to register any withdrawal,
19 diversion or acquisition to be developed or operated under such
20 general permit, on such forms and with such accompanying data as
21 the department may prescribe.
22 (d) Publication.--General permits shall be published in the
23 Pennsylvania Bulletin at least 30 days prior to the effective
24 date of the permit.
25 Section 13. Conservation.
26 (a) Water conservation technical assistance program.--The
27 department shall establish, implement and administer a water
28 conservation technical assistance program which shall:
29 (1) Provide for technical staff assistance in the
30 formulation and implementation of effective water
20010H0539B0582 - 29 -
1 conservation practices by persons subject to the provisions
2 of this act.
3 (2) Develop incentives to encourage water users to
4 implement new or innovative conservation practices.
5 (b) Water conservation information and education program.--
6 The department shall establish, implement and administer a water
7 conservation education program and materials for school-age
8 children and shall make water conservation information available
9 for dissemination to the public.
10 (c) Conservation credits.--
11 (1) The department shall propose and the Environmental
12 Quality Board shall adopt regulations to establish
13 requirements for implementing conservation credits for
14 persons who have adopted within the ten years prior to the
15 effective date of this act or who adopt in the future
16 conservation practices which can be demonstrated to have
17 resulted in a significant and quantifiable reduction in the
18 use of water resources.
19 (2) Conservation credits shall be available to reduce or
20 eliminate the requirements for restrictions on or reductions
21 of water use during times of water shortage or drought.
22 Section 14. Drought response planning and authority.
23 (a) Local drought advance planning.--
24 (1) Each person whose total withdrawal or diversion from
25 one or more water resources equals or exceeds 100,000 gallons
26 per day in any 30-day period and all public water supply
27 agencies shall develop and submit to the department for
28 approval a drought contingency plan within one year of the
29 effective date of this act for withdrawals or diversions
30 commenced prior to or within one year of the effective date
20010H0539B0582 - 30 -
1 of this act.
2 (2) A drought contingency plan shall be submitted to the
3 department for approval within one year of the commencement
4 of any future new diversion or withdrawal by:
5 (i) A public water supply agency.
6 (ii) Any person whose total withdrawal or diversion
7 from one or more water resources equals or exceeds
8 100,000 gallons per day in any 30-day period, or such
9 other amount as may hereafter be established by
10 regulation.
11 (iii) Any person subject to the permit requirement
12 in a delineated conservation area.
13 (3) Each drought contingency plan shall be submitted to
14 the department in such form and with such accompanying data
15 as shall be prescribed by the department.
16 (4) Each drought contingency plan shall contain the
17 following, as a minimum:
18 (i) The name, address and telephone number of the
19 person responsible for directing operations during a
20 drought emergency.
21 (ii) A description of the water resources used,
22 including all interconnections, the location and safe
23 yield of each resource and data indicating the monthly
24 average and peak day rates of withdrawal and usage from
25 each source and in total for each calendar month during
26 the previous calendar year, or most recent 12-month
27 period for which data is available.
28 (iii) A description of the method, location and
29 rates of waste water disposal from the system or estimate
30 of consumptive use, if applicable.
20010H0539B0582 - 31 -
1 (iv) A description of the conservation measures
2 previously undertaken to reduce water use and potential
3 measures which could be implemented to reduce water use
4 during a drought, including the impact of the measures on
5 production, employment and economics, if applicable.
6 (v) A description of the criteria to be used to
7 identify the onset of water shortage problems.
8 (vi) A plan of action which will be taken to respond
9 to a drought or water supply shortage, including
10 conservation practices, development of emergency or
11 alternative supplies, and rationing, to achieve a phased
12 reduction of total withdrawal and use by percentage, such
13 as 5%, 15%, 25% and 50% of predrought withdrawal and
14 usage.
15 (b) Drought Response Authority.--
16 (1) Whenever a drought or water resources emergency is
17 declared by the Governor under the Emergency Management
18 Services Code, 35 Pa.C.S. Part V (relating to Emergency
19 Management Services) or by a river basin commission pursuant
20 to an interstate compact, the department, in consultation
21 with the Pennsylvania Emergency Management Agency, may
22 undertake emergency management actions necessary to assure
23 equitable sharing of available water supplies and
24 conservation of water resources in a manner consistent with
25 the State water plan.
26 (2) The department's emergency management actions may
27 include, but are not limited to, the following measures:
28 (i) Ordering the temporary reduction or suspension
29 of nonessential water uses.
30 (ii) Ordering temporary suspension of withdrawals,
20010H0539B0582 - 32 -
1 diversions or acquisitions or temporary modification of
2 conditions in existing permits, including restrictions on
3 the timing or quantity of water use.
4 (iii) Directing the storage and release of water in
5 public and private reservoir facilities subject to State
6 regulation.
7 (iv) Cooperating with Federal agencies responsible
8 for operation of Federal reservoir facilities to develop
9 and implement emergency schedules for storage and release
10 of water.
11 (v) Requiring the emergency interconnection of water
12 supplies and prescribe the delivery of water through
13 those interconnections.
14 (vi) Mandating implementation of drought contingency
15 plans and specific water conservation measures.
16 (vii) Regulating the withdrawal or diversion of
17 water resources in designated drought emergency areas in
18 excess of such quantities as may be prescribed by order
19 of the department or regulation adopted by the
20 Environmental Quality Board, and establishing
21 requirements for emergency withdrawal permits.
22 (c) Cooperation with other agencies.--The department shall
23 cooperate with appropriate Federal, interstate and other
24 agencies to plan effective responses to any water resources
25 emergency. The department may accept the delegation of authority
26 from any river basin commission or Federal or interstate agency
27 relating to emergency management of water resources in this
28 Commonwealth.
29 Section 15. Public nuisances.
30 (a) General rule.--A violation of any provision of this act,
20010H0539B0582 - 33 -
1 or any regulation of the department, or any order of the
2 department, or any term or conditions of any permit, shall
3 constitute a public nuisance.
4 (b) Liability.--Any person committing such a violation shall
5 be liable for the costs of the abatement of the public nuisance
6 caused by such violation.
7 (c) Jurisdiction.--The Environmental Hearing Board and any
8 court of competent jurisdiction are hereby given jurisdiction
9 over actions to recover the costs of such abatement.
10 (d) Abatement.--Any activity or condition declared by this
11 act to be a nuisance or which is otherwise in violation of this
12 act shall be abatable in the manner provided by law or equity
13 for the abatement of public nuisances.
14 Section 16. Enforcement, penalties and remedies.
15 (a) Duty to comply with orders of the department.--It shall
16 be the duty of any person to comply with any order issued by the
17 department under this act. If such person fails to comply with
18 the order within such time, if any, as may be specified, the
19 person shall be guilty of contempt and shall be punished by the
20 court in an appropriate manner and for this purpose, application
21 may be made by the department to the Commonwealth Court, which
22 court is hereby granted jurisdiction.
23 (b) Unlawful conduct.--It shall be unlawful for any person:
24 (1) to fail to comply with or to cause or assist in the
25 violation of any provision of this act or any regulation,
26 permit or order adopted under this act;
27 (2) to fail to comply with an order or permit condition
28 within such time, if any, as may be specified;
29 (3) to hinder, obstruct, prevent or interfere with the
30 department or its personnel in their performance of any duty
20010H0539B0582 - 34 -
1 hereunder;
2 (4) to violate the provisions of 18 Pa.C.S. § 4903
3 (relating to false swearing) or 4904 (relating to unsworn
4 falsification to authorities) in regard to submissions
5 required under this act.
6 (c) Duty to provide access.--
7 (1) The department may conduct such inspections, tests
8 or sampling, or examine or require production of books,
9 papers and records, including, but not limited to,
10 computerized records and physical evidence pertinent to any
11 matter under investigation pursuant to this act as it deems
12 necessary to determine compliance with this act, the
13 regulations adopted under this act or any order or permit
14 issued pursuant to this act.
15 (2) For this purpose, the duly authorized agents and
16 employees of the department may enter and examine any
17 property, facility, operation or activity governed by this
18 act, upon presentation of appropriate credentials, without
19 prior notice at all reasonable times, during regular business
20 hours of the operation and times when activity is being
21 conducted.
22 (3) The owner, operator or other person in charge of the
23 property, facility, operation or activity, upon presentation
24 of proper identification and purpose for inspection by the
25 agents or employees of the department, shall give the agents
26 and employees free and unrestricted entry and access.
27 (4) Upon being refused entry or access sought under this
28 subsection, the department's agent or employee may obtain a
29 search warrant or other suitable order for the purposes of
30 inspecting, examining or seizing any property, facility,
20010H0539B0582 - 35 -
1 book, record or other physical evidence, or of conducting
2 tests or taking samples.
3 (5) It shall be sufficient probably cause to show any of
4 the following:
5 (i) That the inspection, examination, test or
6 sampling is pursuant to a general administrative plan to
7 determine compliance with this act.
8 (ii) That the agent or employee has reason to
9 believe that a violation of this act has occurred or is
10 likely to occur.
11 (iii) That the agent or employee has been refused
12 access to the property, facility, book, record or
13 physical evidence or has been prevented from conducting
14 tests or taking samples which activities are necessary to
15 determine compliance or to respond to a violation of this
16 act.
17 (iv) That the object of the investigation is subject
18 to regulation under this act and access, examination,
19 inspection or testing is necessary to enforce this act.
20 (d) Enforcement orders.--
21 (1) The department may issue such orders to persons as
22 it deems necessary to aid in the enforcement of this act. The
23 orders shall include, but are not limited to:
24 (i) Orders modifying, suspending or revoking
25 permits.
26 (ii) Orders requiring persons to comply with or
27 cease violations of this act, the regulations, orders or
28 permits issued under this act.
29 (iii) Orders to take corrective action or abate a
30 public nuisance.
20010H0539B0582 - 36 -
1 (iv) Orders requiring the testing, sampling or
2 monitoring of a water resource or requiring production of
3 information.
4 (2) An order issued under this act shall take effect
5 upon notice unless the order specifies otherwise.
6 (3) An appeal to the Environmental Hearing Board shall
7 not act as a supersedeas, provided, however, that, upon
8 application and for cause shown, the board may issue such a
9 supersedeas under rules established by the board.
10 (4) The department may petition the Commonwealth Court
11 for enforcement of any order or portion thereof and the
12 Commonwealth Court shall grant the petition if it finds,
13 after a hearing, that the order has been issued and has
14 either become final or, if appealed, has not been superseded
15 by the Environmental Hearing Board.
16 (5) The power of the department to issue an order under
17 this act shall be in addition to any other remedy which may
18 be available to the department under this or any other act.
19 (6) Failure to comply with any such order is hereby
20 declared to be a nuisance.
21 (e) Equitable relief.--
22 (1) In addition to any other remedies provided in this
23 act, the department may proceed in equity in the Commonwealth
24 Court or in a court of common pleas having jurisdiction to
25 restrain or prevent violations of this act or to compel
26 compliance with this act or any rule, regulation, permit or
27 order issued pursuant to this act.
28 (2) In any proceeding under this subsection, the court
29 shall, upon motion of the department, issue a prohibitory or
30 mandatory preliminary injunction if it finds that the
20010H0539B0582 - 37 -
1 defendant is engaging in unlawful conduct as defined by this
2 act or is engaged in conduct which is causing or likely to
3 cause immediate and irreparable harm to the public.
4 (3) The department shall not be required to furnish bond
5 or other security in connection with such proceedings.
6 (4) In addition to any injunction, the court, in an
7 equity proceeding under this subsection may levy civil
8 penalties as specified in this section.
9 (f) Summary offense.--
10 (1) Any person who violates any provision of this act,
11 any rule or regulation of the department, any order of the
12 department or any condition of any permit of the department
13 issued pursuant to this act commits a summary offense and,
14 upon conviction, shall be sentenced to pay a fine of not less
15 than $500 nor more than $5,000, and costs, for each separate
16 offense, or in default of payment thereof shall be sentenced
17 to imprisonment for a period of not more than 90 days for
18 each separate offense.
19 (2) Employees of the department authorized to conduct
20 inspections or investigations are hereby declared to be law
21 enforcement officers authorized to issue or file citations
22 for summary violations under this act, and the General
23 Counsel is hereby authorized to prosecute these offenses.
24 (3) For purposes of this subsection, a summary offense
25 may be prosecuted before any district justice in the county
26 where the offense occurred.
27 (g) Misdemeanor.--Any person who willfully or negligently
28 violates any provision of this act, any rule or regulation of
29 the department, any order of the department or any condition of
30 any permit of the department issued pursuant to this act, or who
20010H0539B0582 - 38 -
1 hinders, obstructs, prevents or interferes with an officer,
2 agent or employee of the department in the performance of his
3 duties, commits a misdemeanor of the third degree and, upon
4 conviction, shall be sentenced to pay a fine of not less than
5 $1,000 nor more than $10,000 for each separate offense, or to
6 imprisonment for a period of not more than one year for each
7 separate offense, or both.
8 (h) Civil penalties.--
9 (1) In addition to proceeding under any other remedy
10 available at law or in equity for a violation of any
11 provision of this act, any rule or regulation of the
12 department, any order of the department or any term or
13 condition of any permit issued by the department, the
14 department may assess a civil penalty upon a person for such
15 violation. The penalty may be assessed whether or not the
16 violation was willful or negligent.
17 (2) (i) When the department proposes to assess a civil
18 penalty, it shall inform the person of the amount of the
19 penalty. The person charged with the penalty shall then
20 have 30 days to pay the proposed penalty in full or, if
21 the person wishes to contest either the amount of the
22 penalty or the fact of the violation, the person shall
23 within 30 days forward the proposed amount of the penalty
24 to the Environmental Hearing Board for placement in an
25 escrow account with the State Treasurer or any
26 Commonwealth bank or post an appeal bond to the board in
27 the amount of the proposed penalty, provided that the
28 bond is executed by a surety licensed to do business in
29 this Commonwealth and is satisfactory to the department,
30 and shall file an appeal to the board within the same 30
20010H0539B0582 - 39 -
1 days.
2 (ii) If, through administrative or final judicial
3 review of the proposed penalty, it is determined that no
4 violation occurred or that the amount of the penalty
5 shall be reduced, the board shall, within 30 days, remit
6 the appropriate amount to the person with any interest
7 accumulated by the escrow deposit.
8 (iii) Failure to forward the money or the appeal
9 bond at the time of the appeal shall result in a waiver
10 of all legal rights to contest the violation or the
11 amount of the civil penalty.
12 (iv) The amount assessed after administrative
13 hearing or after waiver of administrative hearing shall
14 be payable to the Commonwealth of Pennsylvania and shall
15 be collectible in any manner provided by law for the
16 collection of debts.
17 (3) (i) The maximum civil penalty which may be assessed
18 pursuant to this section may not exceed $10,000 per day
19 for each violation. Each violation for each separate day
20 and each violation of any provision of this act, any rule
21 or regulation under this act, any order of the department
22 or any term or condition of the permit shall constitute a
23 separate and distinct offense under this section.
24 (ii) In determining the amount of the penalty, the
25 department shall consider:
26 (A) The willfulness of the violation.
27 (B) The effect on the water resources planning
28 process, the damage to water resources or other
29 natural resources of the Commonwealth or their uses.
30 (C) Cost of restoration or abatement.
20010H0539B0582 - 40 -
1 (D) Savings resulting to the person in
2 consequence of the violation.
3 (E) Deterrence of future violations.
4 (F) Cost to the department.
5 (G) Other relevant factors.
6 (i) Civil action to compel compliance.--
7 (1) A person having an interest which is or may be
8 adversely affected may commence a civil action on that
9 person's own behalf to compel compliance with this act or any
10 rule, regulation, order or permit issued pursuant to this act
11 against any other person withdrawing, diverting or using
12 water resources alleged to be in violation of any provision
13 of this act or any rule, regulation, order or permit issued
14 pursuant to this act.
15 (2) Notwithstanding any other provision of law, the
16 courts of common pleas shall have jurisdiction of such
17 actions and venue in such actions shall be as set forth in
18 the Rules of Civil Procedure concerning civil actions.
19 (3) No action under this subsection may be commenced if:
20 (i) the department has executed a consent order and
21 agreement, consent adjudication, consent decree or
22 similar document which binds an alleged violator to
23 corrective action and future compliance; or
24 (ii) the department has commenced and is diligently
25 prosecuting a civil action in a court of competent
26 jurisdiction or is in litigation before the Environmental
27 Hearing Board to require the alleged violator to comply
28 with this act or any rule, regulation, order or permit
29 issued pursuant to this act. In any such action any
30 person having or representing an interest which is or may
20010H0539B0582 - 41 -
1 be adversely affected may intervene as a matter of right
2 without posting bond.
3 (4) No action pursuant to this subsection may be
4 commenced prior to 60 days after the plaintiff has given
5 notice, in writing, of the violation to the department and to
6 any alleged violator. Notwithstanding the 60-day notice
7 requirement, any action may be initiated immediately upon
8 written notification to the department in the case where the
9 violation or order complained of constitutes an imminent
10 threat to the health or safety of the plaintiff or would
11 immediately affect a legal interest of the plaintiff.
12 (5) The court, in issuing any final order in any action
13 brought pursuant to this subsection, may award costs of
14 litigation, including attorney and expert witness fees, to
15 any party, whenever the court determines such award is
16 appropriate. Except as provided in subsection (d), the court
17 may, if a temporary restraining order or preliminary
18 injunction is sought, require the filing of a bond or
19 equivalent security in accordance with the Rules of Civil
20 Procedure.
21 (j) Penalties to be concurrent.--The penalties and remedies
22 prescribed by this act shall be deemed concurrent and the
23 existence or exercise of any remedy shall not prevent the
24 department from exercising any other remedy hereunder, at law or
25 in equity.
26 (k) Separate offenses.--Each violation on each separate day
27 shall constitute a separate offense for purposes of this act.
28 (l) Appealable actions.--Any person aggrieved by an order or
29 other administrative action of the department issued pursuant to
30 this act shall have the right, within 30 days of actual or
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1 constructive notice of the action, whichever is sooner, to
2 appeal the action to the Environmental Hearing Board in
3 accordance with the act of July 13, 1988 (P.L.530, No.94), known
4 as the Environmental Hearing Board Act, and 2 Pa.C.S. Ch. 5
5 Subch. A (relating to practice and procedure of Commonwealth
6 agencies).
7 Section 17. Water Conservation Fund.
8 (a) Funding.--All civil penalties or recovered costs and all
9 fees collected under this act shall be paid into the State
10 Treasury into a special fund known as the Pennsylvania Water
11 Conservation Fund which is hereby established. All moneys placed
12 in the fund and the interest accrued are hereby appropriated to
13 and shall be administered by the department for the following
14 purposes:
15 (1) To defray the department's direct and indirect costs
16 of administering this act and the programs authorized under
17 this act.
18 (2) To assist in financing water resources planning and
19 conservation programs and providing technical assistance.
20 (3) For such other purposes as are authorized in this
21 act.
22 (b) Other sources.--The Water Conservation Fund may be
23 supplemented by appropriations from the General Assembly, the
24 Federal, State or a local government or from any private source.
25 Section 18. Fees.
26 (a) General rule.--The department is authorized to establish
27 such fees as may be necessary to further the purposes of this
28 act. At a minimum, such fees shall be established to cover the
29 direct and indirect cost of developing and administering the
30 State water plan, registration, permitting, monitoring,
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1 reporting, conservation and enforcement program required by this
2 act. In establishing fees, the department may consider the
3 amount of the withdrawal or diversion, the resources necessary
4 to process a registration or permit, the effect of a withdrawal
5 or diversion on water resources, including consumptive use, and
6 other relevant factors.
7 (b) Interim fees.--Until alternative fees are established by
8 the department, the following interim fees shall apply:
9 (1) $25 per year or $75 every three years or pro rata
10 share for a portion thereof, for the processing of a
11 registration of any source.
12 (2) $10,000 for the processing of any application for
13 any individual permit or permit renewal for acquisitions,
14 withdrawals or diversions equal to or exceeding 10,000,000
15 gallons per day.
16 (3) $7,000 for the processing of any application for any
17 individual permit or permit renewal for acquisitions,
18 withdrawals or diversions equal to or exceeding 2,500,000
19 gallons per day but less than 10,000,000 gallons per day.
20 (4) $3,500 for the processing of any application for any
21 individual permit or permit renewal for acquisitions,
22 withdrawals or diversions equal to or exceeding 750,000
23 gallons per day but less than 2,5000,000 gallons per day.
24 (5) $1,500 for the processing of any application for any
25 individual permit or permit renewal for acquisitions,
26 withdrawals or diversions equal to or exceeding 250,000
27 gallons per day but less than 750,000 gallons per day.
28 (6) $750 for the processing of any application for any
29 individual permit or permit renewal for acquisitions,
30 withdrawals or diversions equal to or exceeding 100,000
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1 gallons per day but less than 250,000 gallons per day.
2 (7) $250 for the processing of any application for any
3 individual permit or permit renewal for acquisitions,
4 withdrawals or diversions of less than 100,000 gallons per
5 day for any general permit.
6 Section 19. Savings provision.
7 The provisions of this act shall not affect any suit,
8 prosecution, or other action instituted to enforce any right or
9 abate any violation of any act or part thereof repealed by this
10 act.
11 Section 20. Existing rights and remedies preserved.
12 (a) General rule.--Nothing in this act shall be construed in
13 a manner to repeal or supersede existing rights and obligations
14 of persons under existing law or statutes, except insofar as
15 this act is directly inconsistent with such law or statutes.
16 (b) Collection of penalties.--The collection of any penalty
17 imposed under the provisions of this act shall not be construed
18 as estopping the Commonwealth, any district attorney or
19 solicitor of a municipality or aggrieved person from proceeding
20 in courts of law or equity to abate nuisances under this act or
21 under existing law or to restrain, at law or in equity,
22 violation of this act.
23 (c) Abatement of nuisances.--It is hereby declared to be the
24 purpose of this act to provide additional and cumulative
25 remedies to abate nuisances. Nothing contained in this act shall
26 in any way abridge or alter rights of action or remedies now or
27 hereafter existing in equity, or under the common law or
28 statutory law, criminal or civil, nor shall any provision in
29 this act, or the granting of any permit under this act or any
30 act done by virtue of this act, be construed as estopping the
20010H0539B0582 - 45 -
1 Commonwealth, persons or municipalities, in the exercise of
2 their rights under the common law or decisional law or in
3 equity, from proceeding in courts of law or equity to suppress
4 nuisances or enforce common law or statutory rights.
5 Section 21. Severability.
6 The provisions of this act are severable. If any provision of
7 this act or its application to any person or circumstance is
8 held invalid, the invalidity shall not affect other provisions
9 or applications of this act which can be given effect without
10 the invalid provision or application.
11 Section 22. Repeals.
12 (a) Inconsistent.--The following acts, parts of acts and
13 amendments thereto are repealed insofar as they are inconsistent
14 with this act:
15 Act of June 14, 1923 (P.L.700, No.293), entitled "An act
16 authorizing the condemnation and appropriation of lands,
17 waters, and other property by public service companies
18 holding limited power permits and limited water supply
19 permits granted by the Water Supply Commission of
20 Pennsylvania, and providing a method for the assessment of
21 damages arising from such appropriation," insofar as it
22 relates to public water supply agencies, water supply
23 projects and limited water supply permits.
24 Act of June 14, 1923 (P.L.704, No.294), entitled "An act
25 relating to limited power permits and limited water supply
26 permits from the Water Supply Commission of Pennsylvania and
27 the conditions thereof, to the flooding and use by holders of
28 limited power permits of islands owned by the Commonwealth,
29 to the unlawful use for water or steam power development of
30 dams and changes in streams hereafter constructed or made
20010H0539B0582 - 46 -
1 otherwise than under limited power permits, and to
2 proceedings for the enforcement of this act," insofar as it
3 relates to water supply agencies, water supply projects and
4 limited water supply permits.
5 Act of June 24, 1939 (P.L.842, No.365), referred to as
6 the Water Rights Law.
7 (b) General--All other acts and parts of acts are repealed
8 insofar as they are inconsistent with this act.
9 Section 23. Effective date.
10 This act shall take effect immediately.
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