PRINTER'S NO. 1763
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1598
Session of
2021
INTRODUCED BY BOBACK, SAPPEY, PICKETT, HELM, HENNESSEY AND
SAINATO, JUNE 10, 2021
REFERRED TO COMMITTEE ON VETERANS AFFAIRS AND EMERGENCY
PREPAREDNESS, JUNE 10, 2021
AN ACT
Amending the act of October 4, 1978 (P.L.851, No.166), entitled
"An act providing for the regulation of land and water use
for flood control purposes, imposing duties and conferring
powers on the Department of Community Affairs, the Department
of Environmental Resources, and municipalities, providing for
penalties and enforcement and making appropriations,"
replacing references to the Department of Community Affairs
with the Pennsylvania Emergency Management Agency; in
miscellaneous and appropriations, repealing provisions
related to appropriations; and making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The title of the act of October 4, 1978 (P.L.851,
No.166), known as the Flood Plain Management Act, is amended to
read:
AN ACT
Providing for the regulation of land and water use for flood
control purposes, imposing duties and conferring powers on
the [Department of Community Affairs] Pennsylvania Emergency
Management Agency, the Department of Environmental
[Resources] Protection, and municipalities, providing for
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penalties and enforcement and making appropriations.
Section 2. The definition of "department" in section 104 of
the act is repealed:
Section 104. Definitions.
The following words and phrases when used in this act shall
have, unless the context clearly indicates otherwise, the
meanings given to them in this section:
["Department." The Department of Community Affairs of the
Commonwealth of Pennsylvania.]
* * *
Section 3. Sections 205, 206, 207, 301, 302(b), 401, 402,
403, 404, 501 and 502 of the act are amended to read:
Section 205. [Department review] Review and approval of
municipal flood plain management regulations.
(a) The [department] Pennsylvania Emergency Management
Agency shall, in consultation with the Department of
Environmental [Resources] Protection, review and approve all
municipal flood plain management regulations, and amendments
thereto, for the purpose of assuring that such regulations
comply with the requirements of the National Flood Insurance
Program and that such regulations are coordinated and uniformly
enforced throughout each watershed.
(b) The [department] Pennsylvania Emergency Management
Agency, in consultation with the Department of Environmental
[Resources] Protection, shall adopt, and periodically review and
amend, regulations including but not limited to:
(1) Criteria and standards for the coordination and
uniform enforcement of municipal flood plain management
regulations under the National Flood Insurance Program.
(2) Procedures, requirements and standards for
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submission, review and approval of municipal flood plain
management regulations pursuant to this section.
(c) Prior to adoption of [department] Pennsylvania Emergency
Management Agency regulations pursuant to this section, the
[department] Pennsylvania Emergency Management Agency shall hold
at least one public hearing, after public notice, in each major
river basin of the Commonwealth. Prior to any amendment of
[department] Pennsylvania Emergency Management Agency
regulations, the [department] Pennsylvania Emergency Management
Agency shall hold at least one public hearing after public
notice.
Section 206. Municipalities [required to comply] compliance
with [department] Pennsylvania Emergency Management
Agency regulations.
Each municipality participating in the National Flood
Insurance Program shall comply with any regulations adopted by
the [department] Pennsylvania Emergency Management Agency
pursuant to this chapter within six months of the effective date
of such regulations. A municipality shall be deemed to have
complied with [department] Pennsylvania Emergency Management
Agency regulations if it has received [department] Pennsylvania
Emergency Management Agency approval as provided for in this
chapter. The [department] Pennsylvania Emergency Management
Agency shall not adopt regulations more strict than the
regulations of the National Flood Insurance Program and shall
not require the regulations of the municipalities to be more
strict than the regulations of the National Flood Insurance
Program: Provided, however, That these limitations shall not
apply to section 207 or the special hazards under sections 301
and 302.
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Section 207. Regulations to prohibit development which has been
determined as dangerous to human life.
The regulations promulgated by the [department] Pennsylvania
Emergency Management Agency shall prohibit the construction or
substantial improvement of structures in an area which has been
determined by the Environmental Quality Board as a flood hazard
area on a flood insurance rate map promulgated by the Department
of Housing and Urban Development which may endanger human life.
Section 301. Obstructions posting special hazards in flood
plains.
(a) The [department] Pennsylvania Emergency Management
Agency shall by regulation publish a list of obstructions which
it determines present a special hazard to the health and safety
of the public or occupants or may result in significant
pollution, increased flood levels or flows or debris endangering
life and property, if such obstructions are located in all or a
designated portion of the flood plain. These obstructions are
limited to: hospitals, nursing homes, jails, new mobile home
parks, subdivision or substantial additions to mobile home parks
or subdivisions.
(b) Construction of any structure or commencement of any
activity listed as a special hazard by [department] Pennsylvania
Emergency Management Agency regulations in a flood plain or such
portion of the flood plain designated by the regulations shall
be prohibited except in accordance with a special exception
issued pursuant to this section.
(c) A municipality administering flood plain management
regulations may issue a special exception if the applicant
demonstrates and the municipality determines that the structure
or activity will be located, constructed and maintained in a
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manner which:
(1) will fully protect the health and safety of the
public or occupants;
(2) will prevent any significant possibility of
pollution, increased flood levels or flows, or debris
endangering life and property; and
(3) will comply with the requirements of the National
Flood Insurance Program.
Approval of any special exception shall be conditioned upon
compliance with all feasible floodproofing and other
requirements necessary to minimize damage, and the hindrance of
flood flows and to minimize potential danger to life and
property.
(d) Written notice of municipal approval of a special
exception shall be filed with the [department] Pennsylvania
Emergency Management Agency. The special exception shall become
effective 30 days following the receipt of notice by the
[department] Pennsylvania Emergency Management Agency unless the
special exception is disapproved by the [department]
Pennsylvania Emergency Management Agency. If the [department]
Pennsylvania Emergency Management Agency disapproves a special
exception, it shall notify the municipality and applicant of the
reasons for disapproval.
Section 302. Exclusive State jurisdiction over certain
obstructions in flood plains.
* * *
(b) No person shall construct, modify, remove, abandon or
destroy any structure or engage in any activity specified in
subsection (a) in the 100-year flood plain unless such person
has first applied for and obtained a permit from the Department
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of Environmental [Resources] Protection. The [department]
Department of Environmental Protection may impose such permit
terms and conditions as it deems necessary to carry out the
purposes of this act. The permit shall become effective 60 days
following the receipt of the application by the [department]
Department of Environmental Protection unless the application is
disapproved by the [department] Department of Environmental
Protection. If the [department] Department of Environmental
Protection disapproves the application it shall notify the
applicant of the reasons for disapproval.
* * *
Section 401. Powers and duties [of the Department of Community
Affairs and the Department of Environmental
Resources].
(a) The [Department of Community Affairs] Pennsylvania
Emergency Management Agency shall have the power and its duty
shall be to:
(1) Coordinate the administration of municipal flood
plain management regulations in the Commonwealth.
(2) Require the submission of municipal flood plain
management regulations and municipal records and reports, as
necessary to carry out the purposes of this act.
(3) Provide technical assistance for the purpose of
assisting municipalities in complying with the provisions of
this act.
(4) Draft, publish and approve, for use by
municipalities, model flood plain ordinances, codes and
regulations which comply with the requirements of the
National Flood Insurance Program and the regulations adopted
pursuant to this act.
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(b) The [Department of Community Affairs] Pennsylvania
Emergency Management Agency and the Department of Environmental
[Resources] Protection shall exercise the joint powers and their
duties shall be to:
(1) Cooperate with appropriate agencies of the United
States or of other states or any interstate agencies with
respect to the planning and management of flood plains.
(2) Serve as the agencies of the Commonwealth for the
receipt of moneys from the Federal Government or other public
or private agencies or persons and expend such moneys as
appropriated by the General Assembly for studies and research
with respect to the planning and management of flood plains.
Section 402. Additional powers and duties [of the Department of
Community Affairs, Department of Environmental
Resources and municipalities].
In conjunction with their responsibilities otherwise provided
under this act, the [Department of Community Affairs]
Pennsylvania Emergency Management Agency, the Department of
Environmental [Resources] Protection and every municipality
administering flood plain management regulations shall have the
additional power and its duty shall be to:
(1) Investigate complaints and conduct surveys of flood
plains and obstructions.
(2) Institute prosecutions and civil proceedings to
enforce the provisions of this act.
(3) Conduct educational programs with respect to flood
plain management.
(4) Establish reasonable fees for permit processing for
the program that the agency or municipality administers.
(5) Do any other acts not inconsistent with this act
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which are necessary or proper for its effective
implementation.
Section 403. Inspections.
(a) An agent or employee of the [Department of Community
Affairs] Pennsylvania Emergency Management Agency, the
Department of Environmental [Resources] Protection, or of a
municipality administering flood plain management regulations
shall have the power and duty to, upon presentation of proper
credentials:
(1) Enter any land for the purpose of surveying flood
plains.
(2) Enter any land in a flood plain for the purpose of
ascertaining the location and condition of obstructions.
(3) Enter land or, while under construction, any
structure located in a flood plain for the purpose of
ascertaining the compliance or noncompliance with the flood
plain management regulations adopted pursuant to this act.
(b) Whenever an agent or employee of the [Department of
Community Affairs] Pennsylvania Emergency Management Agency, the
Department of Environmental [Resources] Protection, or
municipality charged with the enforcement of the provisions of
this act has been refused access to property for the purposes of
conducting a survey or inspection as authorized by this section
or reasonably requires access to such property without prior
notice to the owner, such agent or employee may apply for an
inspection warrant to any Commonwealth official authorized by
law to issue a search or inspection warrant to enable him or her
to have access and inspect such property. It shall be sufficient
probable cause to issue an inspection warrant that the
inspection is necessary to properly enforce the provisions of
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this act.
Section 404. Grants and reimbursements to municipalities and
counties.
(a) The [Department of Community Affairs] Pennsylvania
Emergency Management Agency is authorized to administer grants
to municipalities and counties to assist or reimburse them for
costs in preparing official plans and actual administrative
enforcement and implementation costs and revisions to official
plans for flood plain management required by this act, and for
carrying out related studies, surveys, investigations, research
and analyses. Grants and reimbursements shall be made from and
to the extent of funds appropriated by the General Assembly for
such purposes, and shall be made in accordance to rules and
regulations adopted by the [Department of Community Affairs]
Pennsylvania Emergency Management Agency and in accordance with
the following:
(1) The grant shall be equal to:
(i) 50% of the allowable costs for preparation of
official plans, administrative, enforcement and
implementation costs required by this act, and revisions
of official plans incurred by any municipality or county
which prior to the effective date of this act adopted a
flood area management program which complies with Title
24, section 1910.3(c) or 1910.3(d) of the regulations of
the Department of Housing and Urban Development, Federal
Insurance Administration; or
(ii) 50% of the allowable costs for preparation of
official plans, administrative, enforcement and
implementation costs required by this act, and revisions
of official plans incurred by any municipality or county
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not covered by subclause (i); and
(iii) 50% of the allowable costs for administration
of official plans incurred by any municipality or county.
Allowable costs for administration of official plans
shall not include those costs which are offset by
reasonable permit fees imposed by the municipality or
county.
(2) For the purposes of this section, such State grants
shall be in addition to grants for similar purposes made to
any municipality or county by the Federal Government:
Provided, That the grants authorized by this section shall be
limited such that the total of all State and Federal grants
does not exceed 50% of the allowable costs incurred by the
municipality or county.
(b) Nothing in this section shall be construed to impair or
limit application of this act to any municipality or person, or
to relieve any municipality or person of duties imposed under
this act.
(c) If, in any fiscal year, appropriations are insufficient
to cover the costs or grants and reimbursements to all
municipalities or counties eligible for such grants and
reimbursements in that fiscal year, the [Department of Community
Affairs] Pennsylvania Emergency Management Agency shall report
such fact to the General Assembly and shall request
appropriation of funds necessary to provide the grants
authorized in this section. If such a deficiency appropriation
is not enacted, any municipality or county which has not
received the full amount of the grant for which it is eligible
under this section shall be as a first priority reimbursed from
appropriations made in the next successive fiscal year.
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Section 501. Penalties.
(a) If the [department] Pennsylvania Emergency Management
Agency finds that a municipality has failed to comply with any
requirement of Chapter 2, or any [department] Pennsylvania
Emergency Management Agency regulations adopted pursuant
thereto, the [department] Pennsylvania Emergency Management
Agency shall provide a written notice of violation to the
municipality.
(b) Within 60 days of receipt of the notice of violation,
the municipality shall report to the [department] Pennsylvania
Emergency Management Agency the action which it is taking to
comply with the requirement or regulation.
(c) If within 180 days of receipt of the notice of
violation, the municipality has failed to comply with such
requirement or regulation, as determined by the [department]
Pennsylvania Emergency Management Agency, the [Secretary of
Community Affairs] Pennsylvania Emergency Management Agency
shall notify the State Treasurer to withhold payment of all
funds payable to the municipality from the General Fund or any
other fund. Upon notification, the State Treasurer shall hold in
escrow all moneys due to such municipality from the Commonwealth
until such time as the [department] Pennsylvania Emergency
Management Agency notifies the State Treasurer that the
municipality has complied with such requirement or regulation.
Section 502. Civil remedies.
(a) Any obstruction or conduct in violation of this act or
of any flood plain management regulations is hereby declared a
public nuisance.
(b) Suits to restrain, prevent or abate violation of this
act or of any flood plain management regulations may be
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instituted in equity or at law by the [department] Pennsylvania
Emergency Management Agency, the Department of Environmental
[Resources] Protection, any affected county or municipality, or
any aggrieved person. Such proceedings may be prosecuted in the
Commonwealth Court, or in the court of common pleas of the
county where the obstruction exists, conduct occurs, or the
public affected, and to that end jurisdiction is hereby
conferred in law and equity upon such courts. Except in cases of
emergency where, in the opinion of the court, the circumstances
of the case require immediate abatement of the unlawful
obstruction or conduct, the court may, in its decree, fix a
reasonable time during which the person responsible for the
unlawful obstruction or conduct shall correct or abate the same.
The expense of such proceedings shall be recoverable from the
violator in such manner as may now or hereafter be provided by
law.
Section 4. Section 602 of the act is repealed:
[Section 602. Appropriations.
(a) The sum of $750,000, or as much thereof as may be
necessary, is hereby appropriated for the fiscal period
beginning July 1, 1978, and ending June 30, 1979, to the
Department of Community Affairs for the purposes of
administrative and general expenses in implementing the
provisions of this act.
(b) The sum of $250,000, or as much thereof as may be
necessary, is hereby appropriated for the fiscal period
beginning July 1, 1978, and ending June 30, 1979, to the
Department of Environmental Resources for the purposes of this
act.]
Section 5. All activities initiated by the Department of
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Community Affairs or the Department of Community and Economic
Development shall continue and remain in full force and effect
and may be completed by the Pennsylvania Emergency Management
Agency. Orders, regulations, rules and decisions which were made
by the Department of Community Affairs or the Department of
Community and Economic Development and which are in effect on
the effective date of this section shall remain in full force
and effect until revoked, vacated or modified by the
Pennsylvania Emergency Management Agency. Contracts, obligations
and collective bargaining agreements entered into by the
Department of Community Affairs or the Department of Community
and Economic Development are not affected nor impaired by the
replacement of the Department of Community and Economic
Development with the Pennsylvania Emergency Management Agency.
Section 6. This act shall take effect in 60 days.
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