PRIOR PRINTER'S NOS. 788, 1557 PRINTER'S NO. 1619
No. 743 Session of 1977
INTRODUCED BY KURY, MURRAY, MELLOW, HOLL, WOOD AND MOORE,
APRIL 19, 1977
SENATOR MELLOW, ENVIRONMENTAL RESOURCES, RE-REPORTED AS AMENDED,
FEBRUARY 22, 1978
AN ACT
1 Providing for the regulation of land and water use for flood
2 control purposes, imposing duties and conferring powers on
3 the Department of Community Affairs, the Department of
4 Environmental Resources, and municipalities, providing for
5 penalties and enforcement and making appropriations.
6 TABLE OF CONTENTS
7 Chapter 1. Preliminary Provisions
8 Section 101. Short title.
9 Section 102. Statement of legislative findings.
10 Section 103. Statement of policy and purposes.
11 Section 104. Definitions.
12 Chapter 2. Municipal Participation in National Flood Insurance
13 Program
14 Section 201. Required participation in National Flood
15 Insurance Program.
16 Section 202. Adoption of flood plain management regulations.
17 Section 203. Relationship of flood plain management
18 regulations to the Pennsylvania Municipalities
19 Planning Code and other applicable enabling
1 legislation.
2 Section 204. Requirements of the National Flood Insurance
3 Program deemed minimum standards.
4 Section 205. Department review and approval of municipal
5 flood plain management regulations.
6 Section 206. Municipalities required to comply with
7 department regulations.
8 SECTION 207. REGULATIONS TO PROHIBIT SUBDIVISION OF FLOOD <--
9 PLAIN AREA.
10 SECTION 208. REGULATIONS TO PROHIBIT CONSTRUCTION IN FLOOD
11 HAZARD AREA WHERE ALTERNATIVES EXIST.
12 SECTION 209. REGULATIONS TO PROHIBIT UTILIZATION OF FILL IN
13 FLOOD PLAINS.
14 SECTION 210. REGULATIONS TO PROHIBIT DEVELOPMENT WHICH IS
15 DANGEROUS TO HUMAN LIFE.
16 Chapter 3. Regulation of Particular Obstructions
17 Section 301. Obstructions posting special hazards in flood
18 plains.
19 Section 302. Exclusive State jurisdiction over certain
20 obstructions in flood plains.
21 Chapter 4. Powers and Duties
22 Section 401. Powers and duties of the Department of
23 Community Affairs and the Department of
24 Environmental Resources.
25 Section 402. Additional powers and duties of the Department
26 of Community Affairs, Department of Environ-
27 mental Resources and municipalities.
28 Section 403. Inspections.
29 Section 404. Grants and reimbursement to municipalities and
30 counties.
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1 Chapter 5. Enforcement; Appeals
2 Section 501. Enforcement of Chapter 2.
3 Section 502. Civil remedies.
4 Section 503. Appeals.
5 Chapter 6. Miscellaneous; Appropriations
6 Section 601. Preservation of existing rights and remedies.
7 Section 602. Appropriations.
8 Section 603. Repealer and savings clause.
9 Section 604. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 CHAPTER 1
13 PRELIMINARY PROVISIONS
14 Section 101. Short title.
15 This act shall be known and may be cited as the "Flood Plain
16 Management Act."
17 Section 102. Statement of legislative findings.
18 (a) Flooding of large areas of land within the Commonwealth
19 causes unnecessary loss of life, destroys private and public
20 property, damages means of livelihood and economic resources;
21 disrupts commerce, communication, utility and governmental
22 services; causes pollution and unsanitary conditions; carries
23 solid waste, sewage and other materials injurious to health and
24 property; all of which is detrimental to the health, safety and
25 welfare of the people of the Commonwealth.
26 (b) Extensive expenditures of public funds have been
27 allocated to costly flood control projects, repair and
28 maintenance of public facilities and property, and relief and
29 rescue efforts, to reduce the disastrous effects of recurrent
30 flooding.
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1 (c) The exclusive use of flood control measures, such as
2 engineering projects, has failed to significantly reduce the
3 human suffering and economic losses caused by recurrent
4 flooding.
5 (d) A comprehensive and coordinated program of flood plain
6 management, based upon the National Flood Insurance Program, is
7 fundamental to the health, safety, welfare and protection of the
8 people of the Commonwealth.
9 Section 103. Statement of policy and purposes.
10 The policy and purpose of this act is to:
11 (1) Encourage planning and development in flood plains
12 which are consistent with sound land use practices.
13 (2) Protect people and property in flood plains from the
14 dangers and damage of floodwaters and from materials carried
15 by such floodwaters.
16 (3) Prevent and eliminate urban and rural blight which
17 results from the damages of flooding.
18 (4) Authorize a comprehensive and coordinated program of
19 flood plain management, based upon the National Flood
20 Insurance Program, designed to preserve and restore the
21 efficiency and carrying capacity of the streams and flood
22 plains of the Commonwealth.
23 (5) Assist municipalities in qualifying for the National
24 Flood Insurance Program.
25 (6) Provide for and encourage local administration and
26 management of flood plains.
27 (7) Minimize the expenditure of public and private funds
28 for flood control projects and for relief, rescue and
29 recovery efforts.
30 Section 104. Definitions.
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1 The following words and phrases when used in this act shall
2 have, unless the context clearly indicates otherwise, the
3 meanings given to them in this section:
4 "Department." The Department of Community Affairs of the
5 Commonwealth of Pennsylvania.
6 "FILL." SAND, GRAVEL, EARTH OR OTHER MATERIAL PLACED OR <--
7 DEPOSITED SO AS TO FORM AN EMBANKMENT OR RAISE THE ELEVATION OF
8 THE LAND SURFACE.
9 "Flood." A general but temporary condition of partial or
10 complete inundation of normally dry land areas from the overflow
11 of streams, rivers or other waters of the Commonwealth.
12 "Flood plain management regulations." Zoning ordinances,
13 subdivision regulations, building codes, health regulations,
14 special purpose ordinances and other applications of police
15 power. The term describes such State or local regulations, in
16 any combination thereof, which provide standards for the purpose
17 of flood damage, prevention and reduction.
18 "Floodproofing." Structural or other changes or adjustments
19 to properties or obstructions for the reduction or elimination
20 of flood damages to such properties and obstructions or to the
21 contents of any structure.
22 "Municipality." A city, borough, town or township or any
23 similar general purpose unit of government, or county or other
24 governmental unit when acting as an agent thereof, or any
25 combination thereof acting jointly.
26 "NEW MOBILE HOME PARK OR MOBILE HOME SUBDIVISION." A PARCEL <--
27 (OR CONTIGUOUS PARCELS) OF LAND DIVIDED INTO TWO OR MORE MOBILE
28 HOME LOTS FOR RENT OR SALE FOR WHICH THE CONSTRUCTION OF
29 FACILITIES FOR SERVICING THE LOT ON WHICH THE MOBILE HOME IS TO
30 BE AFFIXED (INCLUDING AT A MINIMUM, THE INSTALLATION OF
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1 UTILITIES, EITHER FINAL SITE GRADING OR THE POURING OF CONCRETE
2 PADS, AND THE CONSTRUCTION OF STREETS) IS COMPLETED ON OR AFTER
3 THE EFFECTIVE DATE OF FLOOD PLAIN MANAGEMENT REGULATIONS ADOPTED
4 BY A COMMUNITY.
5 "Obstruction." Any structure or assembly of materials
6 INCLUDING FILL above or below the surface of land or water, and <--
7 an activity which might impede, retard or change flood flows.
8 The planting, cultivation and harvesting of field and orchard
9 crops or the grazing of livestock, including the maintenance of
10 necessary appurtenant agricultural fencing, shall not be
11 considered an "obstruction" under this definition and shall not
12 be subject to regulation under this act.
13 "One hundred-year flood." The highest level of flooding
14 that, on the average, is likely to occur every 100 years, that
15 is, that has a 1% chance of occurring each year.
16 "One hundred-year flood plain" or "flood plain." The 100-
17 year floodway and that maximum area of land that is likely to be
18 flooded by a 100-year flood shown on flood plain maps approved
19 or promulgated by the United States Department of Housing and
20 Urban Development.
21 "Person." An individual, partnership, public or private
22 association or corporation, firm, trust, estate, municipality,
23 governmental unit, public utility or any other legal entity
24 whatsoever which is recognized by law as the subject of rights
25 and duties.
26 "Public utility service." The rendering of the following
27 services for the public:
28 (1) gas, electricity or steam production, generation,
29 transmission or distribution;
30 (2) water diversion, pumping, impoundment or
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1 distribution;
2 (3) railroad transportation of passengers or property;
3 (4) operation of a canal, turnpike, tunnel, bridge,
4 wharf or similar structure;
5 (5) transportation of natural or artificial gas, crude
6 oil, gasoline or petroleum products, materials for
7 refrigeration or other fluid substances by pipeline or
8 conduit;
9 (6) telephone or telegraph communications; and
10 (7) sewage collection, treatment or disposal.
11 "SPECIAL HAZARD OBSTRUCTION." THIS SHALL INCLUDE BUT NOT BE <--
12 LIMITED TO HOSPITALS, NURSING HOMES, JAILS, FACILITIES FOR THE
13 PRODUCTION OR STORAGE OF HAZARDOUS MATERIALS AND FACILITIES
14 NECESSARY FOR EMERGENCY RESPONSE.
15 "SUBSTANTIAL IMPROVEMENT." ANY REPAIR, RECONSTRUCTION OR
16 IMPROVEMENT OF A STRUCTURE, THE COST OF WHICH EQUALS OR EXCEEDS
17 50% OF THE MARKET VALUE OF THE STRUCTURE EITHER:
18 (1) BEFORE THE IMPROVEMENT OR REPAIR IS STARTED; OR
19 (2) IF THE STRUCTURE HAS BEEN DAMAGED, AND IS BEING
20 RESTORED, BEFORE THE DAMAGE OCCURRED.
21 FOR THE PURPOSES OF THIS DEFINITION "SUBSTANTIAL IMPROVEMENT" IS
22 CONSIDERED TO OCCUR WHEN THE FIRST ALTERATION OF ANY WALL,
23 CEILING, FLOOR OR OTHER STRUCTURE PART OF THE BUILDING
24 COMMENCES, WHETHER OR NOT THAT ALTERATION AFFECTS THE EXTERNAL
25 DIMENSIONS OF THE STRUCTURE. THE TERM DOES NOT, HOWEVER, INCLUDE
26 EITHER:
27 (I) ANY PROJECT FOR IMPROVEMENT OF A STRUCTURE TO
28 COMPLY WITH EXISTING STATE OR LOCAL HEALTH, SANITARY OR
29 SAFETY CODE SPECIFICATIONS WHICH ARE SOLELY NECESSARY TO
30 ASSURE SAFE LIVING CONDITIONS; OR
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1 (II) ANY ALTERATION OF A STRUCTURE LISTED ON THE
2 NATIONAL REGISTER OF HISTORIC PLACES OR A STATE INVENTORY
3 OF HISTORIC PLACES.
4 "Watershed." The entire region or area drained by a river or
5 other body of water, whether natural or artificial.
6 CHAPTER 2
7 MUNICIPAL PARTICIPATION IN NATIONAL FLOOD INSURANCE PROGRAM
8 Section 201. Required participation in National Flood Insurance
9 Program.
10 (a) Each municipality which has been notified by the United
11 States Department of Housing and Urban Development that it has
12 been identified as having an area or areas which are subject to
13 flooding shall participate in the National Flood Insurance
14 Program.
15 (b) If a municipality WITH AN AREA OR AREAS SUBJECT TO <--
16 FLOODING is not participating in the National Flood Insurance
17 Program at the time this act becomes effective, such
18 municipality shall apply for eligibility and fully comply with
19 the requirements for participation within six months of the
20 effective date of this act, or six months from the date of
21 notification by the United States Department of Housing and
22 Urban Development that it has been identified as having an area
23 or areas subject to flooding, whichever is first.
24 (c) If a municipality, for whatever reason, is suspended
25 from the National Flood Insurance Program, once having gained
26 eligibility, such municipality shall regain eligibility within
27 90 days of the date of receipt of its notice of suspension.
28 Section 202. Adoption of flood plain management regulations.
29 Each municipality WHICH HAS BEEN IDENTIFIED BY THE UNITED <--
30 STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AS HAVING AN
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1 AREA OR AREAS SUBJECT TO FLOODING, shall adopt such flood plain
2 management regulations, and amendments thereto, as are necessary
3 to comply with the requirements of the National Flood Insurance
4 Program within six months after a flood plain map is approved or
5 promulgated for the municipality by the United States Department
6 of Housing and Urban Development.
7 Section 203. Relationship of flood plain management regulations
8 to the Pennsylvania Municipalities Planning Code
9 and other applicable enabling legislation.
10 The adoption and administration by municipalities of flood
11 plain management regulations, or amendments thereto, which are
12 necessary to comply with the requirements of the National Flood
13 Insurance Program shall be governed by the provisions of the act
14 of July 31, 1968 (P.L.805, No.247), known as the "Pennsylvania
15 Municipalities Planning Code," or other applicable enabling
16 legislation; provided, that a municipality may adopt flood plain
17 management regulations for the flood plain without adopting
18 ordinances, codes or regulations for any other area of the
19 municipality, notwithstanding any provision of the
20 Municipalities Planning Code or other applicable enabling
21 legislation.
22 Section 204. Requirements of the National Flood Insurance
23 Program deemed minimum standards.
24 The flood plain management regulations adopted by a
25 municipality in order to comply with the requirements of the
26 National Flood Insurance Program shall be deemed minimum
27 standards for the management of the flood plains, and no
28 provision of this act shall be construed as in any way limiting
29 the power of any municipality to adopt more restrictive
30 ordinances, codes or regulations for the management of flood
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1 plains.
2 Section 205. Department review and approval of municipal flood
3 plain management regulations.
4 (a) The department shall, in consultation with the
5 Department of Environmental Resources, review and approve all
6 municipal flood plain management regulations, and amendments
7 thereto, for the purpose of assuring that such regulations
8 comply with the requirements of the National Flood Insurance
9 Program and that such regulations are coordinated and uniformly
10 enforced throughout each watershed.
11 (b) The department, in consultation with the Department of
12 Environmental Resources, shall adopt, and periodically review
13 and amend, regulations including but not limited to:
14 (1) Criteria and standards for the coordination and
15 uniform enforcement of municipal flood plain management
16 regulations under the National Flood Insurance Program.
17 (2) Procedures, requirements and standards for
18 submission, review and approval of municipal flood plain
19 management regulations pursuant to this section.
20 (c) Prior to adoption of department regulations pursuant to
21 this section, the department shall hold at least one public
22 hearing, after public notice, in each major river basin of the
23 Commonwealth. Prior to any amendment of department regulations,
24 the department shall hold at least one public hearing after
25 public notice.
26 Section 206. Municipalities required to comply with department
27 regulations.
28 Each municipality participating in the National Flood
29 Insurance Program shall comply with any regulations adopted by
30 the department pursuant to this chapter within six months of the
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1 effective date of such regulations. A municipality shall be
2 deemed to have complied with department regulations if it has
3 received department approval as provided for in this chapter.
4 SECTION 207. REGULATIONS TO PROHIBIT SUBDIVISION OF FLOOD <--
5 PLAIN AREA.
6 THE REGULATIONS PROMULGATED BY THE DEPARTMENT SHALL PROHIBIT
7 THE SUBDIVISION OR PROPERTY LOCATED WITHIN A DESIGNATED FLOOD
8 HAZARD AREA WHERE THE PROPOSED SUBDIVISION WOULD CREATE LOTS
9 WHICH ARE LOCATED WHOLLY WITHIN THE FLOOD HAZARD AREA OR WHICH
10 WOULD CREATE LOTS WHICH DO NOT CONTAIN SUFFICIENT NONFLOOD AREA
11 TO PERMIT THE IMPROVEMENT THEREOF.
12 SECTION 208. REGULATIONS TO PROHIBIT CONSTRUCTION IN FLOOD
13 HAZARD AREA WHERE ALTERNATIVES EXIST.
14 THE REGULATIONS PROMULGATED BY THE DEPARTMENT SHALL PROHIBIT
15 THE BUILDING OF STRUCTURES IN A DESIGNATED FLOOD HAZARD AREA
16 WHERE THE STRUCTURE SOUGHT TO BE BUILT CAN FEASIBLY BE LOCATED
17 ON THE SAME PARCEL OF LAND IN AN AREA SAFE FROM FLOODING.
18 SECTION 209. REGULATIONS TO PROHIBIT UTILIZATION OF FILL IN
19 FLOOD PLAINS.
20 THE REGULATIONS PROMULGATED BY THE DEPARTMENT SHALL REQUIRE
21 THAT IN ALL INSTANCES WHERE IT IS NECESSARY TO ELEVATE A
22 PROPOSED STRUCTURE IN ORDER TO MEET THE MINIMUM ELEVATION
23 REQUIREMENTS OF THE NATIONAL FLOOD INSURANCE PROGRAM THE
24 REQUIRED ELEVATION SHALL BE ACCOMPLISHED THROUGH THE USE OF
25 PILINGS OR COLUMNS RATHER THAN FILL IN ORDER TO MAINTAIN THE
26 STORAGE CAPACITY OF THE FLOOD PLAIN AND TO MINIMIZE THE
27 OBSTRUCTION OF FLOOD FLOWS INCIDENT TO THE USE OF FILL AND
28 THEREBY REDUCE THE RISK OF FLOOD DAMAGE.
29 SECTION 210. REGULATIONS TO PROHIBIT DEVELOPMENT WHICH IS
30 DANGEROUS TO HUMAN LIFE.
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1 THE REGULATIONS PROMULGATED BY THE DEPARTMENT SHALL PROHIBIT
2 THE CONSTRUCTION OR SUBSTANTIAL IMPROVEMENT OF STRUCTURES IN AN
3 AREA WHICH HAS BEEN IDENTIFIED AS A FLOOD HAZARD AREA ON A FLOOD
4 INSURANCE RATE MAP PROMULGATED BY THE DEPARTMENT OF HOUSING AND
5 URBAN DEVELOPMENT WHICH MAY ENDANGER HUMAN LIFE.
6 CHAPTER 3
7 REGULATION OF PARTICULAR OBSTRUCTIONS
8 Section 301. Obstructions posting special hazards in flood
9 plains.
10 (a) The department shall by regulation publish a list of
11 obstructions which it determines present a special hazard to the
12 health and safety of the public or occupants or may result in
13 significant pollution, increased flood levels or flows or debris
14 endangering life and property, if such obstructions are located
15 in all or a designated portion of the flood plain. These
16 obstructions include, but are not limited to: hospitals, nursing
17 homes, jails, NEW MOBILE HOME PARKS, SUBDIVISION OR SUBSTANTIAL <--
18 ADDITIONS TO MOBILE HOME PARKS OR SUBDIVISIONS, facilities for
19 the production or storage of TOXIC, BUOYANT, FLAMMABLE OR <--
20 OTHERWISE hazardous materials and facilities necessary for
21 emergency response.
22 (b) Construction of any structure or commencement of any
23 activity listed as a special hazard by department regulations in
24 a flood plain or such portion of the flood plain designated by
25 the regulations shall be prohibited except in accordance with a
26 special exception issued pursuant to this section.
27 (c) A municipality administering flood plain management
28 regulations may issue a special exception if the applicant
29 demonstrates and the municipality determines that the structure
30 or activity will be located, constructed and maintained in a
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1 manner which:
2 (1) will fully protect the health and safety of the
3 public or occupants;
4 (2) will prevent any significant possibility of
5 pollution, increased flood levels or flows, or debris
6 endangering life and property; and
7 (3) will comply with the requirements of the National
8 Flood Insurance Program.
9 Approval of any special exception shall be conditioned upon
10 compliance with all feasible floodproofing and other
11 requirements necessary to minimize damage, and the hindrance of
12 flood flows and to minimize potential danger to life and
13 property.
14 (d) Written notice of municipal approval of a special
15 exception shall be filed with the department. The special
16 exception shall become effective 30 days following the receipt
17 of notice by the department unless the special exception is
18 disapproved by the department. If the department disapproves a
19 special exception, it shall notify the municipality and
20 applicant of the reasons for disapproval.
21 Section 302. Exclusive State jurisdiction over certain
22 obstructions in flood plains.
23 (a) Except as otherwise provided in this section, the
24 Department of Environmental Resources shall have exclusive
25 jurisdiction under this act to regulate:
26 (1) any obstruction otherwise regulated under the Water
27 Obstructions Act;
28 (2) any flood control project constructed, owned or
29 maintained by a governmental unit;
30 (3) any highway or other obstruction, constructed, owned
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1 or maintained by the Commonwealth OR A POLITICAL SUBDIVISION <--
2 THEREOF; and
3 (4) any obstruction owned or maintained by a person
4 engaged in the rendering of a public utility service.
5 (b) No person shall construct, modify, remove, abandon or
6 destroy any structure or engage in any activity specified in
7 subsection (a) in the 100-year flood plain unless such person
8 has first applied for and obtained a permit from the Department
9 of Environmental Resources. The department may impose such
10 permit terms and conditions as it deems necessary to carry out
11 the purposes of this act. THE PERMIT SHALL BECOME EFFECTIVE 60 <--
12 DAYS FOLLOWING THE RECEIPT OF THE APPLICATION BY THE DEPARTMENT
13 UNLESS THE APPLICATION IS DISAPPROVED BY THE DEPARTMENT. IF THE
14 DEPARTMENT DISAPPROVES THE APPLICATION IT SHALL NOTIFY THE
15 APPLICANT OF THE REASONS FOR DISAPPROVAL.
16 (c) The Environmental Quality Board shall adopt such
17 regulations and standards as are necessary to carry out this
18 section in accordance with the purposes of this act, including
19 provisions for the payment of reasonable nonrefundable filing
20 fees.
21 (d) The Department of Environmental Resources may, in
22 accordance with regulations adopted by the Environmental Quality
23 Board, delegate its authority under this act and the Storm Water
24 Management Act to regulate and permit obstructions having only
25 local significance, other than those prescribed in subsection
26 (a)(2), (3) and (4), to a municipality administering flood plain
27 management regulations.
28 (e) The Department of Environmental Resources shall regulate
29 those obstructions subject to exclusive State jurisdiction in a
30 manner consistent to the maximum extent possible with the
19770S0743B1619 - 14 -
1 standards and criteria established in municipal flood plain
2 management regulations.
3 (f) The Department of Environmental Resources may modify,
4 suspend or revoke any permit issued under this act if it finds
5 that the permittee has violated the permit terms and conditions
6 or the provisions of this act and regulations adopted hereunder,
7 or that any change has occurred in the physical condition of the
8 site which will materially affect safe construction and
9 maintenance of the structure or activity.
10 CHAPTER 4
11 POWERS AND DUTIES
12 Section 401. Powers and duties of the Department of Community
13 Affairs and the Department of Environmental
14 Resources.
15 (a) The Department of Community Affairs shall have the power
16 and its duty shall be to:
17 (1) Coordinate the administration of municipal flood
18 plain management regulations in the Commonwealth.
19 (2) Require the submission of municipal flood plain
20 management regulations and municipal records and reports, as
21 necessary to carry out the purposes of this act.
22 (3) Provide technical assistance for the purpose of
23 assisting municipalities in complying with the provisions of
24 this act.
25 (4) Draft, publish and approve, for use by
26 municipalities, model flood plain ordinances, codes and
27 regulations which comply with the requirements of the
28 National Flood Insurance Program and the regulations adopted
29 pursuant to this act.
30 (b) The Department of Community Affairs and the Department
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1 of Environmental Resources shall exercise the joint powers and
2 their duties shall be to:
3 (1) Cooperate with appropriate agencies of the United
4 States or of other states or any interstate agencies with
5 respect to the planning and management of flood plains.
6 (2) Serve as the agencies of the Commonwealth for the
7 receipt of moneys from the Federal Government or other public
8 or private agencies or persons and expend such moneys as
9 appropriated by the General Assembly for studies and research
10 with respect to the planning and management of flood plains.
11 Section 402. Additional powers and duties of the Department of
12 Community Affairs, Department of Environmental
13 Resources and municipalities.
14 In conjunction with their responsibilities otherwise provided
15 under this act, the Department of Community Affairs, the
16 Department of Environmental Resources and every municipality
17 administering flood plain management regulations shall have the
18 additional power and its duty shall be to:
19 (1) Investigate complaints and conduct surveys of flood
20 plains and obstructions.
21 (2) Institute prosecutions and civil proceedings to
22 enforce the provisions of this act.
23 (3) Conduct educational programs with respect to flood
24 plain management.
25 (4) Establish reasonable fees for permit processing for
26 the program that the agency or municipality administers.
27 (5) Do any other acts not inconsistent with this act
28 which are necessary or proper for its effective
29 implementation.
30 Section 403. Inspections.
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1 (a) An agent or employee of the Department of Community
2 Affairs, the Department of Environmental Resources, or of a
3 municipality administering flood plain management regulations
4 shall have the power and duty to, upon presentation of proper
5 credentials:
6 (1) Enter any land for the purpose of surveying flood
7 plains.
8 (2) Enter any land in a flood plain for the purpose of
9 ascertaining the location and condition of obstructions.
10 (3) Enter land or, while under construction, any
11 structure located in a flood plain for the purpose of
12 ascertaining the compliance or noncompliance with the flood
13 plain management regulations adopted pursuant to this act.
14 (b) Whenever an agent or employee of the Department of
15 Community Affairs, the Department of Environmental Resources, or
16 municipality charged with the enforcement of the provisions of
17 this act has been refused access to property for the purposes of
18 conducting a survey or inspection as authorized by this section
19 or reasonably requires access to such property without prior
20 notice to the owner, such agent or employee may apply for an
21 inspection warrant to any Commonwealth official authorized by
22 law to issue a search or inspection warrant to enable him or her
23 to have access and inspect such property. It shall be sufficient
24 probable cause to issue an inspection warrant that the
25 inspection is necessary to properly enforce the provisions of
26 this act.
27 Section 404. Grants and reimbursements to municipalities and
28 counties.
29 (a) The Department of Community Affairs is authorized to
30 administer grants to municipalities and counties to assist or
19770S0743B1619 - 17 -
1 reimburse them for costs in preparing official plans and actual
2 administrative costs and revisions to official plans for flood
3 plain management required by this act, and for carrying out
4 related studies, surveys, investigations, research and analyses.
5 Grants and reimbursements shall be made from and to the extent
6 of funds appropriated by the General Assembly for such purposes,
7 and shall be made in accordance to rules and regulations adopted
8 by the Department of Community Affairs and in accordance with
9 the following:
10 (1) The grant shall be equal to:
11 (i) 50% of the allowable costs for preparation of
12 official plans or revisions thereto incurred by any
13 municipality or county which prior to the effective date
14 of this act adopted a flood area management program which
15 complies with Title 24, section 1910.3(c) or 1910.3(d) of
16 the regulations of the Department of Housing and Urban
17 Development, Federal Insurance Administration; or
18 (ii) 50% of the allowable costs for preparation of
19 official plans or revisions thereto incurred by any
20 municipality or county not covered by subclause (i); and
21 (iii) 50% of the allowable costs for administration
22 of official plans incurred by any municipality or county.
23 Allowable costs for administration of official plans
24 shall not include those costs which are offset by
25 reasonable permit fees imposed by the municipality or
26 county.
27 (2) For the purposes of this section, such State grants
28 shall be in addition to grants for similar purposes made to
29 any municipality or county by the Federal Government:
30 Provided, That the grants authorized by this section shall be
19770S0743B1619 - 18 -
1 limited such that the total of all State and Federal grants
2 does not exceed 50% of the allowable costs incurred by the
3 municipality or county.
4 (b) Nothing in this section shall be construed to impair or
5 limit application of this act to any municipality or person, or
6 to relieve any municipality or person of duties imposed under
7 this act.
8 (c) If, in any fiscal year, appropriations are insufficient
9 to cover the costs or grants and reimbursements to all
10 municipalities or counties eligible for such grants and
11 reimbursements in that fiscal year, the Department of Community
12 Affairs shall report such fact to the General Assembly and shall
13 request appropriation of funds necessary to provide the grants
14 authorized in this section. If such a deficiency appropriation
15 is not enacted, any municipality or county which has not
16 received the full amount of the grant for which it is eligible
17 under this section shall be as a first priority reimbursed from
18 appropriations made in the next successive fiscal year.
19 CHAPTER 5
20 ENFORCEMENT: APPEALS
21 Section 501. Enforcement of Chapter 2.
22 (a) If the department finds that a municipality has failed
23 to comply with any requirement of Chapter 2, or any department
24 regulations adopted pursuant thereto, the department shall
25 provide a written notice of violation to the municipality.
26 (b) If within 60 days of receipt of the notice of violation,
27 the municipality has failed to comply with the requirement or
28 regulation, the department may issue an order to the
29 municipality and its officers requiring compliance with such
30 requirement or regulation. Any order issued under this
19770S0743B1619 - 19 -
1 subsection shall take effect upon receipt of notice, unless the
2 order specifies otherwise. Any appeal of an order issued under
3 this subsection shall be in accordance with section 503.
4 (c) Any municipality or person failing to comply with an
5 order issued pursuant to this section from which no appeal has
6 been taken, which has been sustained on appeal, or for which no
7 supersedeas has been granted, shall be deemed in contempt of
8 such order. Upon petition and certification of the order by the
9 department, the Commonwealth Court or the court of common pleas
10 of the county in which the municipality is located shall, if it
11 finds that the municipality and its officers are not in
12 compliance with the order, adjudge the same in contempt and
13 shall assess civil penalties of an amount not less than $100 nor
14 greater than $10,000 per violation plus $500 for each continuing
15 day of violation.
16 (d) Where the municipality or its offices have not as of the
17 date of hearing before the court complied with the department's
18 order, the court shall specifically order full compliance with
19 the department's order by a date set by the court and may issue
20 any further order as may be appropriate.
21 (e) Upon petition by the department, if the court finds
22 after hearing that the municipality or its officers have failed
23 to comply with any order issued pursuant to subsection (d) by
24 the date set by the court, the court may, as a last resort,
25 issue an order empowering the department to adopt and administer
26 flood plain management regulations for the municipality.
27 (f) Whenever pursuant to subsection (e) the department
28 adopts and administers flood plain management regulations for a
29 municipality, such regulations shall apply notwithstanding any
30 municipal flood plain management regulation; provided, that any
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1 zoning or other ordinance adopted by a municipality shall remain
2 effective to the extent such ordinance is more restrictive than
3 the flood plain management regulation adopted by the department.
4 (g) Upon a determination by the department that the
5 municipality has adopted and is able to administer flood plain
6 management regulations which comply with the requirements of
7 Chapter 2 and any department regulations adopted pursuant
8 thereto, the department or the municipality may petition the
9 court requesting that the court terminate its order empowering
10 the department to adopt and administer flood plain management
11 regulations for the municipality.
12 Section 502. Civil remedies.
13 (a) Any obstruction or conduct in violation of this act or
14 of any flood plain management regulations is hereby declared a
15 public nuisance.
16 (b) Suits to restrain, prevent or abate violation of this
17 act or of any flood plain management regulations may be
18 instituted in equity or at law by the department, the Department
19 of Environmental Resources, any affected county or municipality,
20 or any AGGRIEVED person. Such proceedings may be prosecuted in <--
21 the Commonwealth Court, or in the court of common pleas of the
22 county where the obstruction exists, conduct occurs, or the
23 public affected, and to that end jurisdiction is hereby
24 conferred in law and equity upon such courts. Except in cases of
25 emergency where, in the opinion of the court, the circumstances
26 of the case require immediate abatement of the unlawful
27 obstruction or conduct, the court may, in its decree, fix a
28 reasonable time during which the person responsible for the
29 unlawful obstruction or conduct shall correct or abate the same.
30 The expense of such proceedings shall be recoverable from the
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1 violator in such manner as may now or hereafter be provided by
2 law.
3 Section 503. Appeals.
4 (a) Any person aggrieved by any action of the Department of
5 Community Affairs shall have the right within 30 days of receipt
6 of notice of such action to appeal such action and request a
7 hearing in accordance with the act of June 4, 1945 (P.L.1388,
8 No.442), known as the "Administrative Agency Law."
9 (b) Any person aggrieved by an action of the Department of
10 Environmental Resources in granting, modifying, suspending or
11 revoking a permit or in issuing an order shall have the right
12 within 30 days of receipt of notice of such action to appeal
13 such action to the Environmental Hearing Board, pursuant to
14 section 1921-A of the act of April 9, 1929 (P.L.177, No.175),
15 known as "The Administrative Code of 1929," and the
16 "Administrative Agency Law."
17 (c) An appeal of any action under this act shall not act as
18 a supersedeas. A supersedeas may be granted by the agency
19 hearing the appeal upon a showing by the petitioner:
20 (1) that irreparable harm to the petitioner or other
21 interested parties will result if supersedeas is denied;
22 (2) that there is a likelihood of the petitioner's
23 success on the merits; and
24 (3) that the grant of a supersedeas will not result in
25 irreparable harm to the Commonwealth.
26 The agency hearing the appeal may grant such a supersedeas
27 subject to such security as it may deem proper.
28 CHAPTER 6
29 MISCELLANEOUS; APPROPRIATIONS
30 Section 601. Preservation of existing rights and remedies.
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1 (a) No provision of this act shall be construed to permit an
2 activity or condition otherwise prohibited by law, or to affect
3 the rights of the Commonwealth, persons, counties or
4 municipalities to proceed in courts of law or equity to suppress
5 nuisances or to enforce common law or statutory rights.
6 (b) It is hereby declared to be the purpose of this act to
7 provide additional and cumulative remedies to abate nuisances.
8 Section 602. Appropriations.
9 (a) The sum of $750,000, or as much thereof as may be
10 necessary, is hereby appropriated for the fiscal period
11 beginning July 1, 1978, and ending June 30, 1979, to the
12 Department of Community Affairs for the purposes of
13 administrative and general expenses in implementing the
14 provisions of this act.
15 (b) The sum of $250,000, or as much thereof as may be
16 necessary, is hereby appropriated for the fiscal period
17 beginning July 1, 1978, and ending June 30, 1979, to the
18 Department of Environmental Resources for the purposes of this
19 act.
20 Section 603. Repealer and savings clause.
21 (a) All acts or parts of acts inconsistent herewith are
22 hereby repealed to the extent of such inconsistency.
23 (b) The provisions of this act shall not affect any suit or
24 prosecution pending or to be instituted to enforce any right or
25 penalty or punish any offense under the authority of any act of
26 Assembly or part thereof repealed by this act.
27 Section 604. Effective date.
28 This act shall take effect immediately.
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