PRINTER'S NO. 321
No. 317 Session of 1997
INTRODUCED BY MUSTO, STOUT, SALVATORE, HELFRICK, WILLIAMS,
BODACK, HECKLER, AFFLERBACH, TOMLINSON, O'PAKE, COSTA,
STAPLETON, LEMMOND, MELLOW, KASUNIC AND BELAN,
JANUARY 31, 1997
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 31, 1997
AN ACT
1 Providing for the conservation and management of water
2 resources; establishing a Statewide committee and regional
3 water resource advisory committees and providing for their
4 powers and duties; providing for additional duties of the
5 Department of Environmental Protection, the Environmental
6 Hearing Board and the Environmental Quality Board; providing
7 for a State Water Plan, for conservation areas, for permits
8 for the withdrawal or diversion of water, for drought
9 planning, for enforcement, for civil and equitable remedies
10 and for civil and criminal penalties; establishing the Water
11 Conservation Account; providing for the establishment and
12 collection of certain fees; and making repeals.
13 TABLE OF CONTENTS
14 Chapter 1. Preliminary Provisions
15 Section 101. Short title.
16 Section 102. Legislative findings and declaration.
17 Section 103. Definitions.
18 Chapter 3. Administering Agencies
19 Section 301. Statewide and regional water resource advisory
20 committees.
21 Section 302. Powers and duties of Environmental Quality Board.
1 Section 303. Powers and duties of department.
2 Chapter 5. Water Conservation and Management
3 Section 501. State Water Plan.
4 Section 502. Conservation areas.
5 Section 503. Water use registration and reporting.
6 Section 504. Withdrawals or diversions requiring permits.
7 Section 505. Permit requirements.
8 Section 506. General permits.
9 Section 507. Conservation.
10 Section 508. Drought response planning and authority.
11 Chapter 7. Enforcement
12 Section 701. Enforcement generally.
13 Section 702. Duty to provide access.
14 Section 703. Enforcement orders.
15 Section 704. Equitable relief.
16 Section 705. Summary offense.
17 Section 706. Misdemeanor.
18 Section 707. Civil penalties.
19 Section 708. Civil action to compel compliance.
20 Section 709. Penalties to be concurrent.
21 Section 710. Separate offenses.
22 Section 711. Appealable actions.
23 Section 712. Public nuisances.
24 Section 713. Existing rights and remedies preserved.
25 Chapter 9. Financial Provisions
26 Section 901. Water Conservation Account.
27 Section 902. Fees.
28 Chapter 21. Miscellaneous Provisions
29 Section 2101. Savings provision.
30 Section 2102. Severability.
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1 Section 2103. Repeals.
2 Section 2104. Effective date.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 CHAPTER 1
6 PRELIMINARY PROVISIONS
7 Section 101. Short title.
8 This act shall be known and may be cited as the Water
9 Resource Conservation and Management Act.
10 Section 102. Legislative findings and declaration.
11 (a) Findings.--The General Assembly finds that:
12 (1) Planning for and development and management of
13 adequate supplies of water are necessary to minimize the
14 effects of overuse of water and recurring periods of drought.
15 Severe shortages and overuse may render water resources
16 incapable of meeting essential needs, cause conflicts between
17 diverse users of the common resource, disrupt or damage
18 economic activities and contribute to environmental
19 degradation, pollution and unsanitary conditions, all of
20 which are detrimental to the health, safety and welfare of
21 the people of this Commonwealth.
22 (2) 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 (3) The preservation of stream 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
2 reasonable water withdrawal and nonwithdrawal uses.
3 (4) The public interest requires that water resources
4 allocated but not used be made available for allocation and
5 use by others. In order to discourage speculation in or
6 holding of water rights, due diligence is required in
7 implementing permitted allocations and uses.
8 (5) Water resources on or beneath the surface of the
9 ground or in the atmosphere are interconnected and part of a
10 single hydrologic resource which can be used conjunctively.
11 Their development, management and use must therefore be
12 coordinated and comprehensive in order to further the
13 purposes of this act.
14 (6) Comprehensive water resources planning and
15 management must rely on accurate information on water
16 availability and present and anticipated water use and demand
17 in order to identify resource shortfalls, potential conflicts
18 and areas requiring special protection and to recommend and
19 implement programs needed to address identified concerns. A
20 continually updated State Water Plan will aid both the
21 governmental and the private sectors in making informed
22 decisions regarding wise development, management and use of
23 this Commonwealth's water resources.
24 (7) The conservation of water resources reduces the
25 impact of withdrawals and diversions upon water resources.
26 Conservation provides a degree of drought protection, may
27 delay or obviate the need for construction or expansion of
28 capital projects and is a water management tool available to
29 all water resources users.
30 (8) Because of the severe water supply shortages that
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1 could occur due to overuse and recurring periods of drought,
2 the Commonwealth agencies responsible for water resources
3 planning and management must have adequate drought response
4 authority in order to protect the public health, safety and
5 welfare.
6 (9) In recognition of the public's dependence on water
7 supplied by public water supply agencies, these agencies'
8 statutory authorization to acquire water rights, to divert,
9 withdraw and use water resources and to exercise eminent
10 domain power must be continued.
11 (10) Close coordination and cooperation among Federal,
12 interstate, State and local agencies and public and private
13 organizations in matters relating to the water resources of
14 this Commonwealth are in the public interest.
15 (b) Declaration.--It is the purpose of this act to protect
16 the public health, safety and welfare and to further the intent
17 of section 27 of Article I of the Constitution of Pennsylvania
18 by establishing a comprehensive and systematic planning and
19 regulatory program for the conservation, utilization,
20 evaluation, equitable distribution, management and development
21 of this Commonwealth's water resources to protect water
22 resources and to ensure an adequate supply of water for the
23 benefit of all the people.
24 Section 103. Definitions.
25 The following words and phrases when used in this act shall
26 have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Acquire" or "acquisition." To obtain, secure or become
29 vested with water rights by purchase, agreement, lease,
30 transfer, gift, devise, adverse possession, prescription,
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1 eminent domain, waiver of damages, settlement of damages,
2 appropriation or other lawful method or the rights acquired.
3 "Conjunctive use." The use of two or more water sources as
4 components of a single unit employing management techniques and
5 methods which serve to optimize the conservation of the water
6 resources.
7 "Conservation area." A specific watershed or hydrologic unit
8 of this Commonwealth considered and designated by the Department
9 of Environmental Protection as being in need of special
10 protection under section 502 because of unique or restricted
11 water resources.
12 "Conservation practices." Those practices and measures which
13 are designed to accomplish the following:
14 (1) To reduce the demand for water.
15 (2) To improve efficiency in use and reduce leakage,
16 losses and waste of water.
17 (3) To improve reuse and recycling of water.
18 (4) To increase the supply of water.
19 "Consumptive use." Any use of water diverted or withdrawn
20 from a water resource in such a manner that is not returned to
21 the water resource at or near the point from which it was taken
22 which results in diminution in quantity of the water resource.
23 "Department." The Department of Environmental Protection of
24 the Commonwealth.
25 "Divert" or "diversion." The direct or indirect taking or
26 impoundment of water from any water resource, whether or not the
27 water is returned to its source, consumed, made to flow into
28 another water resource or discharged elsewhere. The term
29 includes the transfer of water through interconnections.
30 "Environmental Hearing Board." The board established under
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1 the act of July 13, 1988 (P.L.530, No.94), known as the
2 Environmental Hearing Board Act.
3 "Environmental Quality Board." The board established under
4 section 1920-A of the act of April 9, 1929 (P.L.177, No.175),
5 known as The Administrative Code of 1929.
6 "GPD." Gallons per day.
7 "Hydrologic unit." A geographic area having water resources
8 which are hydrologically connected, including any surface
9 watershed or basin, groundwater basin, aquifer or aquifer
10 system.
11 "Interconnection." The physical connection between water
12 users providing for the delivery of raw or treated water between
13 them, including the connections between water sources, water
14 mains and water distribution systems.
15 "Major basin." The area drained by the Great Lakes and their
16 tributaries or by one of the following major rivers and their
17 respective tributaries: Delaware River, Ohio River, Potomac
18 River and Susquehanna River.
19 "Management." Any activity undertaken to develop, conserve,
20 protect and regulate the water resources of this Commonwealth to
21 ensure an adequate supply of water is available to users.
22 "Nonwithdrawal use." Any reasonable use of water that is not
23 withdrawn. These uses include, but are not limited to,
24 recreation, navigation, energy production, fish and wildlife
25 habitat, the maintenance of natural, scenic, historic or
26 esthetic values of the resource and the uses protected under the
27 authority of the act of June 22, 1937 (P.L.1987, No.394), known
28 as The Clean Streams Law, and the Federal Water Pollution
29 Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.).
30 "Person." An individual, partnership, association, company,
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1 corporation, municipality, municipal authority, political
2 subdivision, receiver or trustee, or any agency, department,
3 board, commission or authority of the Federal Government or of
4 the Commonwealth, or any other legal entity whatsoever which is
5 recognized by law as the subject of rights and duties. The term
6 shall include the officers, employees and agents of any
7 individual, partnership, association, company, corporation,
8 municipality, municipal authority, political subdivision,
9 receiver or trustee, or any agency, department, board,
10 commission, or authority of the Federal Government or of the
11 Commonwealth, or any other legal entity.
12 "Public water supply agency." A community water system as
13 defined by the act of May 1, 1984 (P.L.206, No.43), known as the
14 Pennsylvania Safe Drinking Water Act, or any person providing
15 water or authorized to supply water to the public.
16 "River basin commission." A regulatory commission created by
17 Federal interstate compact and vested with the authority to
18 manage water resources of a river basin.
19 "Safe yield." The amount of water that can be withdrawn or
20 diverted from a water resource without causing an undesired
21 result, such as long-term dewatering of an aquifer, induced
22 potential health threats or impacts upon withdrawal or
23 nonwithdrawal uses.
24 "Secretary." The Secretary of Environmental Protection of
25 the Commonwealth.
26 "State Water Plan." An assessment of the water resources of
27 this Commonwealth prepared by the Department of Environmental
28 Protection or its predecessor agencies under this act, section
29 1904-A of the act of April 9, 1929 (P.L.177, No.175), known as
30 The Administrative Code of 1929, sections 5 and 304 of the Act
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1 of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
2 Law, or other applicable law.
3 "Water resources." All water above, on or beneath the
4 surface of the ground or in the atmosphere, whether natural or
5 artificial, wholly or partly within or on the boundaries of this
6 Commonwealth.
7 "Water rights." The right to withdraw, divert or use water
8 resources of this Commonwealth, including the transfer of water
9 through interconnections.
10 "Withdraw," "withdrawal" or "withdrawn." The removal or
11 taking of water from its natural course.
12 "Withdrawal use." Any reasonable use of water which is
13 withdrawn. These uses include, but are not limited to,
14 municipal, public, commercial, industrial and agricultural water
15 supply. The term includes the transfer of water through
16 interconnections.
17 CHAPTER 3
18 ADMINISTERING AGENCIES
19 Section 301. Statewide and regional water resource advisory
20 committees.
21 (a) Statewide water resources advisory committee.--
22 (1) There is hereby established in the department a
23 Statewide Water Resource Advisory Committee. The Statewide
24 advisory committee shall consist of the secretary or his
25 designee, who shall be chairman, one member appointed by the
26 secretary from each regional advisory committee established
27 under subsection (b) and 11 additional members appointed by
28 the secretary representing the interests of business and
29 industry, energy and power, navigation, agriculture,
30 environment and conservation, public water suppliers, labor,
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1 municipal governments and authorities, residential water
2 users, recreation, and fish and wildlife. In appointing these
3 11 members, the secretary shall seek a diverse geographic
4 representation.
5 (2) Of the members first appointed, six members
6 appointed by the secretary shall serve for a period of three
7 years, five members shall serve for a period of two years and
8 five members shall serve for a period of one year.
9 Thereafter, each appointment shall be for a period of three
10 years. All vacancies shall be filled for the remainder of the
11 unexpired term in the same manner as the original
12 appointments to provide equitable representation of groups
13 and geographic areas. A member, upon expiration of the term,
14 shall continue to hold office until a successor is appointed.
15 (3) The Statewide advisory committee shall:
16 (i) Advise the department in the preparation and
17 development of the State Water Plan.
18 (ii) Review proposed regulations under this act and
19 advise the department.
20 (iii) Advise the department regarding issues,
21 policies and programs related to the implementation of
22 this act as may be submitted by the department to the
23 committee for review.
24 (b) Regional water resources advisory committees.--The
25 department shall establish a regional water resource advisory
26 committee for each major basin that shall advise the department
27 in the preparation and development of the State Water Plan with
28 regard to their respective local and regional water resource
29 needs, priorities and objectives. The regional advisory
30 committees also shall have the duty of advising the department
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1 on matters pertinent to the establishment, modification or
2 termination of conservation areas under section 502 and the
3 management of water resources in their respective regions.
4 (c) Expenses and support services.--The committees' members
5 shall serve without salary or compensation except for
6 reimbursement by the department for reasonable and necessary
7 expenses incurred in connection with their duties as approved by
8 the secretary. The department shall also provide necessary
9 administrative support services, budget and staff to the
10 committees for the carrying out of their responsibilities under
11 this section.
12 Section 302. Powers and duties of Environmental Quality Board.
13 (a) Duties generally.--The Environmental Quality Board shall
14 have the power and its duty shall be to review and approve the
15 State Water Plan and to adopt such rules and regulations of the
16 department, governing the conservation, utilization,
17 development, management, equitable distribution and evaluation
18 of water resources and the administration of water management
19 programs, as it deems necessary for the implementation of this
20 act.
21 (b) Factors considered for regulations.--In adopting
22 regulations under this act, the board shall consider factors,
23 including, but not limited to, the following:
24 (1) The Commonwealth's duty to preserve the natural,
25 scenic, historic and esthetic values of the environment and
26 to conserve and maintain the water resources of this
27 Commonwealth for the benefit of all the people, consistent
28 with the people's right to pure water.
29 (2) The protection of the public health, safety and
30 welfare.
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1 (3) The conjunctive use and development of water
2 resources.
3 (4) The application of conservation practices as well as
4 water resource management and hydrologic principles.
5 (5) The state of scientific, hydrologic, geologic and
6 technological knowledge.
7 (6) The economic, social and environmental impact on
8 this Commonwealth, its citizens and its water resources.
9 (7) The diverse resources and needs of this
10 Commonwealth's regions and major basins.
11 (8) The maintenance of adequate water quality and
12 quantity to ensure the protection, propagation and
13 maintenance of aquatic resources of this Commonwealth,
14 including fisheries and the protection of withdrawal and
15 nonwithdrawal uses.
16 Section 303. Powers and duties of department.
17 The department shall have the power and its duty shall be to:
18 (1) Administer and enforce the provisions of this act or
19 any rules and regulations adopted under it and to implement
20 section 27 of Article I of the Constitution of Pennsylvania.
21 (2) Maintain a comprehensive information system,
22 including, but not limited to:
23 (i) An inventory of water resources of this
24 Commonwealth.
25 (ii) A record of all registered and permitted
26 withdrawals, diversions and acquisitions made under this
27 act.
28 (iii) An assessment of present and anticipated water
29 use and demand by major basin and by significant
30 hydrologic unit, including identification of consumptive
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1 use.
2 (iv) Identification of low-flow characteristics,
3 safe yield, the capability of water resources to support
4 withdrawal and nonwithdrawal uses and the minimum stream
5 flows and groundwater levels necessary to ensure adequate
6 water quantity and quality for the protection of stream
7 ecology, aquatic organisms and other environmental
8 values.
9 (v) Assessment of water resources required to
10 support areas with important or unique natural, scenic,
11 historic, esthetic, environmental or recreational values.
12 (3) Require recordkeeping, metering, measuring,
13 monitoring and reporting of such information as necessary to
14 administer and obtain compliance with this act.
15 (4) Make inspections, investigations and examinations,
16 exercise the right of entry, perform such tests or sampling
17 and require the production of such things as necessary to
18 determine compliance with or enforce this act.
19 (5) Provide water conservation education, technical
20 assistance and advice to persons subject to the provisions of
21 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 orders, assess civil penalties and initiate
27 those proceedings as may be necessary and appropriate for the
28 enforcement of this act and any rules, regulations, orders or
29 permits issued under this act.
30 (9) Recommend to the Environmental Quality Board such
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1 rules and regulations as it deems necessary to implement this
2 act.
3 (10) Cooperate and coordinate with appropriate river
4 basin commissions and Federal, interstate, State, 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 or
12 Federal, interstate, State or 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, interstate, State or other agencies for the purpose
2 of delegating any of its authority under this act. Any such
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 (13) Conduct informal negotiation proceedings for
8 settlement of disputes over water use or allocation,
9 provided, that representatives of all persons having an
10 interest in the water in controversy shall agree in writing
11 to any settlement reached.
12 (14) Enter into contracts, including, but not limited
13 to, grants, and such other cooperative arrangements, at its
14 discretion and under those terms and conditions as may be
15 deemed appropriate, with river basin commissions or Federal,
16 interstate, State or other agencies, or with private
17 contractors, in support of implementation of its powers and
18 duties under this act. The department shall monitor and
19 supervise activities conducted under those agreements for
20 consistency with the department's rules, regulations and
21 policies.
22 CHAPTER 5
23 WATER CONSERVATION AND MANAGEMENT
24 Section 501. State Water Plan.
25 (a) Preparation and submission.--Within three years of the
26 effective date of this act, the department shall prepare and
27 submit an updated State Water Plan to the Environmental Quality
28 Board for consideration and approval. The updated plan shall be
29 prepared with the advice of and in consultation with the
30 Statewide and regional water resource advisory committees, the
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1 Pennsylvania Emergency Management Agency, the Pennsylvania
2 Public Utility Commission and with other State, regional and
3 local agencies and organizations, as deemed appropriate by the
4 department. The applicable drought response sections of the plan
5 shall be included by reference in the Pennsylvania Emergency
6 Management Plan maintained under 35 Pa.C.S. Pt. V (relating to
7 emergency management services), and the department shall be
8 responsible for writing the applicable drought water management
9 sections of the Pennsylvania Emergency Management Plan as
10 requested by the Pennsylvania Emergency Management Agency.
11 (b) Scope.--The plan shall be a comprehensive plan for the
12 immediate and long-range protection, conservation, utilization,
13 evaluation, development, equitable distribution and management
14 of the water resources of this Commonwealth, consistent with the
15 public interest and the preservation of the natural, scenic,
16 historic and esthetic values of the environment. The plan shall
17 include:
18 (1) Identification of major water resources issues.
19 (2) Analysis of identified issues.
20 (3) That combination of policies, programs,
21 institutional arrangements and recommendations that address
22 the total water quantity needs and objectives of the
23 Commonwealth and will guide the department's actions in
24 managing the water resources of the Commonwealth in the
25 public interest.
26 (c) Factors considered.--In developing the plan
27 consideration shall be given to:
28 (1) Local and regional water resources needs, priorities
29 and objectives.
30 (2) National, interstate, and State water resources
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1 policies and objectives, including those identified in
2 statutory law, regulations, compacts, interstate agreements
3 or comprehensive plans adopted by Federal, interstate, State
4 or river basin commission agencies.
5 (3) Identification of areas needing special protection.
6 (4) The conjunctive use, development and management of
7 water resources.
8 (5) The application of conservation practices and water
9 resource management and hydrologic principles, including the
10 protection of stream flows and provision for consumptive use
11 makeup.
12 (6) The benefits, costs and economic, social and
13 environmental impacts of alternative policies, programs,
14 institutional arrangements and recommendations.
15 (d) Procedure.--Following initial approval of the plan by
16 the Environmental Quality Board, the department shall review and
17 resubmit the plan to the board at least every six years
18 thereafter in consultation with the Statewide and regional water
19 resource advisory committees and others as deemed appropriate by
20 the department and shall propose revisions as necessary or
21 appropriate.
22 (e) Public review.--The department shall publish in the
23 Pennsylvania Bulletin public notice of the availability of the
24 plan for review at the department's regional offices and shall
25 accept public comment for a period of at least 30 days prior to
26 submission or resubmission of the plan to the Environmental
27 Quality Board.
28 Section 502. Conservation areas.
29 (a) Establishment.--The department may propose and the
30 Environmental Quality Board may, by regulation, establish a
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1 procedure for the designation by the department of conservation
2 areas that need special protection upon a finding that current
3 or projected demands on and uses of water resources in those
4 areas:
5 (1) exceed or threaten to exceed the safe yield of the
6 water resources;
7 (2) create or will cause a shortage of water having
8 sufficient quality to meet needs;
9 (3) impair or will have substantial adverse impact on
10 withdrawal or nonwithdrawal uses, water quality or the
11 environment; or
12 (4) conflict with the requirements or effectuation of
13 the State Water Plan or the comprehensive plan of an
14 applicable river basin commission.
15 (b) Modification or termination.--The department may modify
16 or terminate the conservation area status of an area upon a
17 finding that the conditions prompting the designation have
18 significantly changed or no longer exist. A change in status
19 shall be effective upon publication by the department of public
20 notice in the Pennsylvania Bulletin.
21 Section 503. Water use registration and reporting.
22 (a) General rule.--Any person whose existing, new or
23 increased withdrawal or diversion from one or more water
24 resources of this Commonwealth causes his total withdrawal or
25 diversion to equal or exceed an average rate of 10,000 GPD in
26 any 30-day period, or such other amount as may be established by
27 regulation, and all public water supply agencies shall register
28 with the department the source and amount of their withdrawal or
29 diversion. Registrations shall be submitted to the department on
30 the forms and with the accompanying data as shall be prescribed
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1 by the department or hereafter required by regulation and with
2 the fees as set by this act or subsequent regulation.
3 (b) Effective date and renewals.--The registration
4 requirement shall take effect one year from the effective date
5 of this act. Registrations shall be renewed according to
6 staggered three-year cycles to be established by the department
7 by notice published in the Pennsylvania Bulletin, or such other
8 reporting period as may hereafter be established by regulation,
9 except that any person who, after registering a withdrawal or
10 diversion exceeding 100,000 GPD, increases by 20% or more the
11 amount of the registered withdrawal or diversion before the
12 renewal date of his registration shall submit to the department
13 supplemental information within 60 days of commencing the
14 increased withdrawal or diversion.
15 (c) Measurements, records and reports.--The department may
16 require any person subject to subsection (a) or section 504 to
17 install, use and maintain metering equipment or methods, to
18 perform measuring, to maintain and retain records of information
19 from metering and measuring activities, to submit reports of
20 metering and measuring results and to provide such other
21 information as may be required to determine compliance or
22 noncompliance with this act, with regulations promulgated under
23 this act or with the terms or conditions of any permit or order
24 issued under this act. The department may also require any
25 person subject to subsection (a) or section 504 to establish and
26 maintain other records and to make other reports and to furnish
27 information to the department as the department may prescribe as
28 being necessary to assist the department in fulfilling the
29 purposes of this act or to demonstrate compliance with the
30 requirements of this act, the regulations promulgated hereunder
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1 or the terms and conditions of any permit or order issued to
2 that person.
3 (d) Waiver or modification of requirements.--The
4 Environmental Quality Board may adopt regulations, providing for
5 the waiver or modification of registration, recordkeeping or
6 reporting requirements for any classification or volume of
7 withdrawal or diversion, where the board finds that the
8 withdrawal or diversion is temporary in nature or unlikely to
9 have any significant effect on the water resource or other water
10 use in the area or that these requirements are unnecessary to
11 obtain information required to adequately assess water uses,
12 monitor demands or prepare an accurate and complete State Water
13 Plan.
14 (e) Construction of section.--Registration of a withdrawal
15 or diversion under this section shall not be construed as a
16 determination of water rights, a prior appropriation of water
17 resources, conferring of superiority of right in respect to the
18 use of those water resources or approval of the withdrawal or
19 diversion by any agency of the Commonwealth or by any river
20 basin commission.
21 Section 504. Withdrawals or diversions requiring permits.
22 (a) Significant user.--No person may withdraw or divert
23 water resources of this Commonwealth whose total withdrawal or
24 diversion from one or more water resources equals or exceeds an
25 average rate of 100,000 GPD in any 30-day period, or such other
26 amount as may hereafter be established by regulation, without
27 first obtaining a written individual permit or coverage under an
28 applicable general permit from the department in accordance with
29 section 505 or 506.
30 (b) Public water supply agency.--No public water supply
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1 agency may withdraw or divert water resources of this
2 Commonwealth or acquire any water rights without first obtaining
3 a written individual permit or coverage under an applicable
4 general permit from the department in accordance with section
5 505 or 506, unless:
6 (1) the public water supply agency withdraws, diverts
7 and uses water resources only on its riparian land; and
8 (2) the public water supply agency's total withdrawal or
9 diversion from one or more water resources does not equal or
10 exceed an average rate of 10,000 GPD in any 30-day period, or
11 such other amount as may hereafter be established by
12 regulation.
13 (c) Permit requirement effective date.--Except as provided
14 in subsection (d), the permit requirement contained in
15 subsection (a) or (b) shall take effect on the following dates,
16 or such other dates, including interim dates for the submission
17 of a complete permit application under section 505 or 506, as
18 may hereafter be established by regulation:
19 (1) For withdrawals or diversions equal to or exceeding
20 2,500,000 GPD, four years from the effective date of this
21 act.
22 (2) For withdrawals or diversions equal to or exceeding
23 750,000 GPD but less than 2,500,000 GPD, five years from the
24 effective date of this act.
25 (3) For withdrawals or diversions equal to or exceeding
26 250,000 GPD but less than 750,000 GPD, six years from the
27 effective date of this act.
28 (4) For withdrawals or diversions equal to or exceeding
29 100,000 GPD but less than 250,000 GPD, eight years from the
30 effective date of this act.
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1 (5) For withdrawals or diversions by public water supply
2 agencies of less than 100,000 GPD, ten years from the
3 effective date of this act.
4 (d) Existing approvals.--
5 (1) Except as provided in paragraph (2), any person or
6 public water supply agency which on the effective date of
7 this act holds a valid permit, order of confirmation or
8 approval to withdraw, use or divert water resources issued
9 under one of the following acts or compacts may continue to
10 exercise their authority under those approvals until the
11 applicable date specified in subsection (c) for obtaining a
12 permit under this act:
13 (i) The act of June 14, 1923 (P.L.704, No.294),
14 entitled "An act relating to limited power permits and
15 limited water supply permits from the Water Supply
16 Commission of Pennsylvania and the conditions thereof, to
17 the flooding and use by holders of limited power permits
18 of islands owned by the Commonwealth, to the unlawful use
19 for water or steam power development of dams and changes
20 in streams hereafter constructed or made otherwise than
21 under limited power permits, and to proceedings for the
22 enforcement of this act."
23 (ii) The act of June 24, 1939 (P.L.842, No.365),
24 referred to as the Water Rights Law.
25 (iii) The Delaware River Basin Compact, authorized
26 under the act of July 7, 1961 (P.L.518, No.268), known as
27 the Delaware River Basin Compact.
28 (iv) The Susquehanna River Basin Compact, authorized
29 under the act of July 17, 1968 (P.L.368, No.181),
30 referred to as the Susquehanna River Basin Compact Law.
19970S0317B0321 - 22 -
1 (2) Any person or public water supply agency subject to
2 the statutes listed in paragraph (1) shall obtain a permit
3 under this act prior to the occurrence of any of the
4 following, or the applicable date specified in subsection
5 (c), whichever is sooner:
6 (i) expiration of its existing approval; or
7 (ii) commencement of a new or increased withdrawal
8 or diversion after the effective date of this act.
9 (3) The issuance, modification, suspension or denial of
10 a permit under this act shall substitute for and act as a
11 revocation of any previous authority granted under the
12 statutes listed in paragraph (1).
13 (e) Permits within conservation areas.--
14 (1) Within any conservation area established by the
15 department under section 502, no person may withdraw or
16 divert water resources of this Commonwealth whose total
17 withdrawal or diversion from one or more water resources
18 equals or exceeds an average rate of 10,000 GPD in any 30-day
19 period, or such other amount as may be established by
20 regulation, without obtaining a written individual permit or
21 coverage under an applicable general permit from the
22 department in accordance with section 505 or 506. The permit
23 requirement of this subsection shall take effect:
24 (i) Upon the effective date of the conservation area
25 designation, as to any withdrawal or diversion commenced
26 or increased after the effective date of the conservation
27 area determination.
28 (ii) One year following the effective date of the
29 conservation area designation as to any withdrawal or
30 diversion developed and commenced prior to the effective
19970S0317B0321 - 23 -
1 date of the conservation area determination.
2 (2) Any person or public water supply agency withdrawing
3 water resources within a delineated conservation area under a
4 valid permit issued under section 505 or 506 shall be deemed
5 to comply with the permit requirements of this subsection.
6 Any such permit shall be subject to modification as necessary
7 to comply with the requirements of this act and the
8 regulations adopted under this act.
9 (f) Compliance with other requirements.--Any person or
10 public water supply agency otherwise subject to the requirements
11 of this section shall comply immediately with all operating,
12 monitoring, conservation, registration, recordkeeping, reporting
13 and other provisions of this act and the regulations adopted
14 under this act, regardless of when or whether the person or
15 public water supply agency must comply with the permit
16 requirement.
17 Section 505. Permit requirements.
18 (a) Application.--
19 (1) Applications for permits shall be submitted in
20 writing to the department on the forms and with such
21 accompanying data as shall be prescribed by the department
22 and shall include maps, plans, yield data, water quality
23 data, delineation of service territory and other information
24 as the department may require to determine compliance with
25 this act and the regulations adopted under this act. Each
26 application shall also be accompanied by a permit application
27 fee established by this act or regulation. The submission of
28 a new application shall be required if a permittee's
29 withdrawal or diversion exceeds the quantity specified in an
30 existing permit or if a permitted public water supply agency
19970S0317B0321 - 24 -
1 proposes the expansion of its service territory beyond that
2 identified in its existing permit.
3 (2) Applicants must demonstrate the following:
4 (i) Evidence of existing permits, authorizations or
5 approvals or other basis to support the request to
6 withdraw, divert or use water resources of this
7 Commonwealth.
8 (ii) What steps have been or will be taken to
9 minimize any adverse impact the proposed withdrawal,
10 diversion or use will have on existing withdrawals,
11 diversions or uses.
12 (iii) What actions have been or will be taken to
13 protect stream flows, stream ecology, aquatic organisms
14 and related environmental values.
15 (iv) What conservation practices have been or will
16 be pursued.
17 (v) In the case of a public water supply agency,
18 that the proposed withdrawal or diversion is reasonably
19 necessary for the present purposes and future needs of
20 the area served by the agency.
21 (3) Prior to taking action on a permit application, the
22 department shall require every applicant to give at least 30
23 days' written notice to each municipality in which the
24 proposed withdrawal or diversion is located. The department
25 shall provide public notice in the Pennsylvania Bulletin upon
26 the receipt of a completed permit application and shall
27 provide a 30-day public comment period before taking action
28 on a permit application. The department shall also provide
29 public notice in the Pennsylvania Bulletin of the permits
30 granted under this act.
19970S0317B0321 - 25 -
1 (b) Permit issuance.--
2 (1) The department shall have the authority to grant a
3 permit for the continuation of an existing withdrawal or
4 diversion or for a new or increased withdrawal or diversion
5 if the department determines that the withdrawal or diversion
6 is:
7 (i) consistent with the State Water Plan and
8 comprehensive plan of any river basin commission;
9 (ii) complies with the provisions of this act, the
10 regulations adopted under this act, and all other
11 applicable laws and regulations administered by the
12 department or a river basin commission; and
13 (iii) satisfies the criteria contained in subsection
14 (a)(2).
15 (2) The department shall not issue or amend any permit
16 under this act and may suspend or revoke any permit
17 previously issued if it finds that the applicant, or a
18 partner, owner, associate, officer, parent or subsidiary
19 corporation or contract operator, has shown a lack of ability
20 or intention to comply with any provisions of Federal law or
21 the laws of the Commonwealth or other states, or a
22 regulation, order or permit of the department or river basin
23 commission regarding water resources withdrawals or
24 diversions, as indicated by past or continuing violations,
25 unless the lack of intention or ability to comply is being or
26 has been corrected to the satisfaction of the department.
27 (3) Where the department finds that the quantity of
28 existing or proposed withdrawals or diversions exceeds the
29 safe yield of the affected water resource or that the
30 proposed withdrawal or diversion is inconsistent with the
19970S0317B0321 - 26 -
1 State Water Plan or applicable comprehensive plan of any
2 river basin commission, results in environmental harm or
3 otherwise creates a conflict among water users, the
4 department may deny the request, require adjustments in the
5 quantities withdrawn or modify or condition withdrawals or
6 diversions as necessary to assure that the water resources
7 are conserved, equitably shared and efficiently used in the
8 public interest and in accordance with any regulations
9 adopted hereunder.
10 (4) Any permitted diversion or withdrawal granted under
11 this act shall lapse if the permittee does not effectuate the
12 withdrawal or diversion by an actual taking and use of water
13 resources within the time specified in the permit, not to
14 exceed four years, unless the permittee applies for and is
15 granted an extension as the department deems necessary to
16 enable the permittee to complete the project required for the
17 diversion or withdrawal.
18 (c) No prior appropriations.--No allocation of water
19 resources made under this section shall constitute a prior
20 appropriation of the water resources of this Commonwealth or
21 confer any superiority of right in respect to the use of those
22 water resources. Public water supply agencies authorized to
23 acquire water rights shall be in the same position as holders of
24 water rights under Pennsylvania common law.
25 (d) Permit duration.--A permit issued or renewed under this
26 section shall be for a fixed term not to exceed ten years. A
27 permit may be renewed by the department upon the filing of a new
28 application. Application for renewal of permits must be filed
29 with the department no later than six months prior to expiration
30 of an existing permit. The terms and conditions of an expired
19970S0317B0321 - 27 -
1 permit are automatically continued pending the issuance of a new
2 permit where the permittee has submitted a timely and complete
3 application for a new permit and paid the fees required by this
4 act or the regulations promulgated under this act and the
5 department is unable, through no fault of the permittee, to
6 issue or deny a new permit before the expiration date of the
7 previous permit.
8 (e) Permit conditions.--
9 (1) The department shall impose such permit terms and
10 conditions, including, but not limited to, standard
11 conditions, regarding conservation, development, operation
12 and monitoring of withdrawals and diversions as are
13 reasonably necessary to protect the public interest in water
14 resources and to assure consistency with the State Water Plan
15 and applicable comprehensive plan of any river basin
16 commission and compliance with this act, the regulations
17 adopted under this act and other laws and regulations
18 administered by the department and any river basin
19 commission. These conditions shall include, but are not
20 limited to, requirements related to implementing conservation
21 practices, metering or measuring, consumptive use makeup,
22 minimum stream flows to protect aquatic life and existing
23 uses and the equitable distribution of water resources.
24 (2) The withdrawal, diversion, development, operation
25 and use of water authorized by a permit may be suspended or
26 made subject to special limits or conditions in the event of
27 an emergency declared by the Governor under 35 Pa.C.S. Pt. V
28 (relating to emergency management services), or any successor
29 statute or by a river basin commission.
30 (f) Permit modification, suspension and revocation.--The
19970S0317B0321 - 28 -
1 department may at any time modify, suspend or revoke a permit
2 to:
3 (1) Respond to new information or changed hydrologic
4 conditions.
5 (2) Resolve previously unforeseen conflicts or impacts.
6 (3) Protect the public interest, considering
7 conservation, development, equitable distribution of
8 available water resources and the maintenance of water
9 quantity and quality to preserve withdrawal and nonwithdrawal
10 uses.
11 (4) Assure compliance with this act, regulations adopted
12 under this act and other laws administered by the department
13 or any river basin commission created by interstate compact.
14 (5) Correct any violation of this act or regulations
15 adopted under this act or of a condition of the permit,
16 including taking appropriate action under subsection (b)(2).
17 (g) Permit not transferable.--No permit issued under this
18 act may be transferred.
19 (h) Emergency permits.--In the event of an emergency
20 requiring immediate action to protect health, safety or welfare
21 and where the circumstances do not allow a complete review of an
22 application as required by this act, the department may issue an
23 emergency permit authorizing such withdrawals or diversions as
24 necessary. In issuing emergency permits under this section, the
25 department need not comply with the requirements of subsection
26 (a)(3).
27 (i) Eminent domain.--All public water supply agencies
28 holding a permit issued under this act shall have the power and
29 may exercise the right of eminent domain with respect to any
30 withdrawal, diversion or acquisition authorized by the permit.
19970S0317B0321 - 29 -
1 Section 506. General permits.
2 (a) General rule.--The department may, in accordance with
3 regulations adopted by the Environmental Quality Board, issue
4 general permits on a watershed, basin, management area, regional
5 or Statewide basis for any category of withdrawal or diversion
6 if the department determines that the withdrawals or diversions
7 in the category can be adequately regulated and managed
8 utilizing standardized specifications and conditions and will
9 have an insignificant effect upon water resources.
10 (b) Content.--General permits shall specify the siting,
11 operating and other conditions as are necessary to conserve,
12 preserve, maintain and manage water resources and to protect
13 health, safety, welfare and the environment and under which
14 withdrawals or diversions can be developed and operated without
15 applying for and obtaining individual permits.
16 (c) Registration.--The department shall require an applicant
17 for a general permit to register any withdrawal or diversion to
18 be developed or operated under such general permit, on the forms
19 and with such accompanying data as the department may prescribe.
20 (d) Publication.--A general permit shall be published as a
21 notice in the Pennsylvania Bulletin at least 30 days prior to
22 the effective date of the permit.
23 Section 507. Conservation.
24 (a) Water conservation technical assistance program.--The
25 department shall establish, implement and administer a water
26 conservation technical assistance program which shall provide
27 for technical staff assistance in the formulation and
28 implementation of effective water conservation practices by
29 persons subject to the provisions of this act and shall develop
30 incentives to encourage water users to implement new or
19970S0317B0321 - 30 -
1 innovative conservation practices.
2 (b) Water conservation information and education program.--
3 The department shall establish, implement and administer a water
4 conservation education program and materials for school age
5 children. In addition, water conservation information shall be
6 made available for dissemination to the public.
7 (c) Conservation credits.--The department shall propose and
8 the Environmental Quality Board shall adopt regulations to
9 establish requirements for implementing conservation credits for
10 permittees who have adopted within ten years prior to the
11 effective date of this act or who adopt in the future
12 conservation practices which can be demonstrated to have
13 resulted in a significant and quantifiable reduction in the use
14 of water resources. Conservation credits shall be available to
15 reduce or eliminate the requirements for restrictions on or
16 reductions of water use during times of water shortage or
17 drought, but may not be used to reduce or eliminate restrictions
18 on nonessential use.
19 Section 508. Drought response planning and authority.
20 (a) Local drought advance planning.--Any person whose total
21 withdrawal or diversion from one or more water resources equals
22 or exceeds 100,000 GPD in any 30-day period and all public water
23 supply agencies shall develop and submit to the department for
24 approval a drought contingency plan within one year of the
25 effective date of this act for withdrawals or diversions
26 commenced prior to or within one year of the effective date of
27 this act. The drought contingency plans shall be submitted to
28 the department for approval within one year of the commencement
29 of any future new diversion or withdrawal by a public water
30 supply agency, any person whose total withdrawal or diversion
19970S0317B0321 - 31 -
1 from one or more water resources equals or exceeds 100,000 GPD
2 in any 30-day period, or such other amount as may be established
3 by regulation, and any person subject to the permit requirement
4 in a delineated conservation area. Each drought contingency plan
5 shall be submitted to the department in the form and with such
6 accompanying data as shall be prescribed by the department in
7 consultation with the Pennsylvania Emergency Management Agency
8 and shall be updated in accordance with the schedule for
9 renewals of registrations established under section 503(b). Each
10 drought contingency plan shall contain the following, at a
11 minimum:
12 (1) The name, address and telephone number of the person
13 or persons responsible for directing operations during a
14 drought emergency.
15 (2) A description of the water resources used, including
16 all interconnections, the location and safe yield of each
17 resource and data indicating the monthly average and peak day
18 rates of withdrawal and usage from each source and in total
19 for each calendar month during the previous calendar year or
20 most recent 12-month period for which data is available.
21 (3) A description of the method, location and rates of
22 waste water disposal from the system or estimate of
23 consumptive use, if applicable.
24 (4) A description of the conservation measures
25 previously undertaken to reduce water use and potential
26 measures which could be implemented to reduce water use
27 during a drought, including the impact of the measures on
28 production, employment and economics, if applicable.
29 (5) A description of the criteria to be used to identify
30 the onset of water shortage problems.
19970S0317B0321 - 32 -
1 (6) A plan of action which will be taken to respond to a
2 drought or water supply shortage, including coordinated local
3 municipal ordinances to implement and enforce nonessential
4 water use restrictions, conservation practices, development
5 of emergency or alternative supplies and local water
6 rationing for public water suppliers. The plan shall describe
7 those actions to be taken to achieve a phased reduction of
8 total withdrawal and use by percentage of predrought
9 withdrawal and usage.
10 (b) Local concurrence.--Simultaneous with submission to the
11 department, any person or public water supply agency subject to
12 the requirements of subsection (a) shall also submit its drought
13 contingency plan to and seek the concurrence of the appropriate
14 county and local municipal government emergency management
15 agencies. If no objections are forwarded to the department
16 within 30 days of submission of the plan, the plan shall be
17 deemed acceptable to those agencies so notified. Upon approval
18 by the department, a drought contingency plan shall become a
19 part of the applicable county and local municipal government
20 emergency management plans.
21 (c) Implementation.--It shall be the duty of any person or
22 public water supply agency subject to the requirements of
23 subsection (a) to adhere to its approved drought contingency
24 plan, except that local water rationing may not be implemented
25 unless approved under 35 Pa.C.S. Pt. V (relating to emergency
26 management services).
27 (d) Drought response authority.--Whenever a water resources
28 shortage or drought emergency is declared by the Governor under
29 35 Pa.C.S. Pt. V or by a river basin commission under an
30 interstate compact, the department, in consultation with the
19970S0317B0321 - 33 -
1 Pennsylvania Emergency Management Agency, may undertake water
2 management actions necessary to assure equitable sharing of
3 available water supplies and conservation of water resources in
4 a manner consistent with the State Water Plan. The department's
5 water management actions may include, but are not limited to,
6 the following measures:
7 (1) Order temporary suspension of withdrawals or
8 diversions or temporary modification of conditions in
9 existing permits, including restrictions on the timing or
10 quantity of water use.
11 (2) Direct the level of storage and release of water in
12 public and private reservoir facilities subject to State
13 regulation.
14 (3) Cooperate with Federal agencies responsible for
15 operation of Federal reservoir facilities to develop and
16 implement emergency schedules for storage and release of
17 water.
18 (4) Require the emergency interconnection of water
19 supplies and prescribe the delivery of water through those
20 interconnections.
21 (5) Mandate implementation of drought contingency plans
22 and specific water conservation measures.
23 (6) Regulate the withdrawal or diversion of water
24 resources in designated drought emergency areas in excess of
25 those quantities as may be prescribed by order of the
26 department or regulation adopted by the Environmental Quality
27 Board and establish requirements for emergency withdrawal
28 permits.
29 (e) Variances.--The department, in coordination with the
30 Pennsylvania Emergency Management Council shall establish
19970S0317B0321 - 34 -
1 procedures for granting variances from nonessential water use
2 restrictions based on extraordinary hardship.
3 (f) Cooperation with other agencies.--The department shall
4 cooperate with appropriate Federal, interstate, State and other
5 agencies to plan effective responses to any water resources
6 emergency. The department may accept the delegation of authority
7 from any river basin commission or Federal interstate agency
8 relating to management of water resources in this Commonwealth.
9 CHAPTER 7
10 ENFORCEMENT
11 Section 701. Enforcement generally.
12 (a) Duty to comply with orders of department.--It shall be
13 the duty of any person to comply with any order issued by the
14 department under this act. If any person fails to comply with an
15 order within the time, if any, as may be specified, the person
16 shall be guilty of contempt and shall be punished by the court
17 in an appropriate manner, and for this purpose, application may
18 be made by the department to the Commonwealth Court, which court
19 is hereby granted jurisdiction.
20 (b) Unlawful conduct.--It shall be unlawful for any person
21 to fail to comply with or to cause or assist in the violation of
22 any provision of this act or any regulation, permit or order
23 adopted under this act; or to fail to comply with an order or
24 permit condition within the time, if any, as may be specified;
25 or to hinder, obstruct, prevent or interfere with the department
26 or its personnel in their performance of any duty under this
27 act; or to violate the provisions of 18 Pa.C.S. § 4903 (relating
28 to false swearing) or 4904 (relating to unsworn falsification to
29 authorities) in regard to submissions required under this act.
30 Section 702. Duty to provide access.
19970S0317B0321 - 35 -
1 (a) General rule.--The department is authorized to make
2 inspections, conduct tests or sampling or examine, seize or
3 require production of books, papers and records, including, but
4 not limited to, computerized records, and physical evidence
5 pertinent to any matter under investigation under this act as it
6 deems necessary to determine compliance with this act, the
7 regulations adopted under this act or any order or permit issued
8 under this act. For this purpose, the duly authorized agents and
9 employees of the department are authorized to enter and examine
10 any property, facility, operation or activity governed by this
11 act, upon presentation of appropriate credentials, without prior
12 notice at all reasonable times, during regular business hours of
13 the operation and times when activity is being conducted. The
14 owner, operator or other person in charge of the property,
15 facility, operation or activity, upon presentation of proper
16 identification and purpose for inspection by the agents or
17 employees of the department, shall give the agents and employees
18 free and unrestricted entry and access.
19 (b) Refusal of access.--Upon being refused entry or access
20 sought under this subsection, the department's agent or employee
21 may obtain a search warrant or other suitable order for the
22 purposes of inspecting, examining or seizing any property,
23 facility, book, record or other physical evidence or of
24 conducting tests or taking samples. It shall be sufficient
25 probable cause to show any of the following:
26 (1) That the inspection, examination, test or sampling
27 is pursuant to a general administrative plan to determine
28 compliance with this act.
29 (2) That the agent or employee has reason to believe
30 that a violation of this act has occurred or is likely to
19970S0317B0321 - 36 -
1 occur.
2 (3) That the agent or employee has been refused access
3 to the property, facility, book, record or physical evidence
4 or has been prevented from conducting tests or taking samples
5 which activities are necessary to determine compliance or to
6 respond to a violation of this act.
7 (4) That the object of the investigation is subject to
8 regulation under this act and access, examination,
9 inspection, seizure or testing is necessary to enforce the
10 provisions of this act.
11 Section 703. Enforcement orders.
12 The department may issue orders to persons as it deems
13 necessary to aid in the enforcement of this act. These orders
14 shall include, but are not limited to, orders modifying,
15 suspending or revoking permits, orders requiring persons to
16 comply with or cease violations of the provisions of this act or
17 the regulations, orders or permits issued hereunder, orders to
18 take corrective action or abate a public nuisance or orders
19 requiring the testing, sampling or monitoring of a water
20 resource or requiring production of information. Any order
21 issued under this act shall take effect upon notice, unless the
22 order specifies otherwise. An appeal to the Environmental
23 Hearing Board shall not act as a supersedeas. Upon application
24 and for cause shown, the board may, however, issue a supersedeas
25 under rules established by that board. The department may
26 petition the Commonwealth Court for enforcement of any order or
27 portion thereof, and Commonwealth Court shall grant the petition
28 if it finds, after a hearing, that the order has been issued and
29 has either become final or, if appealed, has not been superseded
30 by the Environmental Hearing Board. The power of the department
19970S0317B0321 - 37 -
1 to issue an order under this act is in addition to any other
2 remedy which may be available to the department under this or
3 any other act. The failure to comply with any order is hereby
4 declared to be a nuisance.
5 Section 704. Equitable relief.
6 In addition to any other remedies provided in this act, the
7 department may proceed in equity in the Commonwealth Court or in
8 a court of common pleas having jurisdiction to restrain or
9 prevent violations of this act or to compel compliance with this
10 act or any rule, regulation, permit, or order issued under this
11 act. In any such proceeding, the court shall, upon motion of the
12 department, issue a prohibitory or mandatory preliminary
13 injunction if it finds that the defendant is engaging in
14 unlawful conduct as defined by this act or is engaged in conduct
15 which is causing or likely to cause immediate and irreparable
16 harm to the public. The department shall not be required to
17 furnish bond or other security in connection with these
18 proceedings. In addition to any injunction, the court, in equity
19 proceedings, may levy civil penalties as specified in this
20 section.
21 Section 705. Summary offense.
22 (a) Offense defined.--Any person who violates any provision
23 of this act, any rule or regulation of the department, any order
24 of the department or any condition of any permit of the
25 department issued under this act commits a summary offense
26 punishable by a fine of not less than $500 nor more than $5,000,
27 for each separate offense or, in default of payment thereof,
28 shall be sentenced to imprisonment for a period of not more than
29 90 days for each separate offense. For purposes of this
30 subsection, a summary offense may be prosecuted before any
19970S0317B0321 - 38 -
1 district justice in the county where the offense occurred.
2 (b) Employees as law enforcement officers.--Employees of the
3 department authorized to conduct inspections or investigations
4 are hereby declared to be law enforcement officers authorized to
5 issue or file citations for summary violations under this act,
6 and the General Counsel is hereby authorized to prosecute these
7 offenses.
8 Section 706. Misdemeanor.
9 Any person who willfully or negligently violates any
10 provision of this act, any rule or regulation of the department,
11 any order of the department or any condition of any permit of
12 the department issued under this act or who hinders, obstructs,
13 prevents or interferes with an officer, agent or employee of the
14 department in the performance of his duties commits a
15 misdemeanor of the third degree punishable by a fine of not less
16 than $1,000 nor more than $10,000 for each separate offense or
17 by imprisonment for a period of not more than one year for each
18 separate offense, or both.
19 Section 707. Civil penalties.
20 (a) Authority to assess.--In addition to proceeding under
21 any other remedy available at law or in equity for a violation
22 of any provision of this act, any rule or regulation of the
23 department, any order of the department or any term or condition
24 of any permit issued by the department, the department may
25 assess a civil penalty upon a person for the violation. The
26 penalty may be assessed whether or not the violation was willful
27 or negligent.
28 (b) Procedure.--
29 (1) When the department proposes to assess a civil
30 penalty, it shall inform the person of the amount of the
19970S0317B0321 - 39 -
1 penalty. The person charged with the penalty shall then have
2 30 days to pay the proposed penalty in full or, if the person
3 wishes to contest either the amount of the penalty or the
4 fact of the violation, the person shall within 30 days
5 forward the proposed amount of the penalty to the
6 Environmental Hearing Board for placement in an escrow
7 account with the State Treasurer or any Commonwealth bank or
8 post an appeal bond to the board in the amount of the
9 proposed penalty, provided that the bond is executed by a
10 surety licensed to do business in this Commonwealth and is
11 satisfactory to the department, and shall file an appeal to
12 the board within the same 30 days.
13 (2) If, through administrative or final judicial review
14 of the proposed penalty, it is determined that no violation
15 occurred or that the amount of the penalty shall be reduced,
16 the board shall, within 30 days, remit the appropriate amount
17 to the person, with any interest accumulated by the escrow
18 deposit.
19 (3) Failure to forward the money or the appeal bond at
20 the time of the appeal shall result in a waiver of all legal
21 rights to contest the violation or the amount of the civil
22 penalty.
23 (4) The amount assessed after administrative hearing or
24 after waiver of administrative hearing shall be payable to
25 the Commonwealth of Pennsylvania and shall be collectible in
26 any manner provided by law for the collection of debts.
27 (c) Separate offenses.--The maximum civil penalty which may
28 be assessed under this section may not exceed $10,000 per day
29 for each violation. Each violation for each separate day and
30 each violation of any provision of this act, any rule or
19970S0317B0321 - 40 -
1 regulation under this act, any order of the department or any
2 term or condition of the permit shall constitute a separate and
3 distinct offense under this section. In determining the amount
4 of the penalty, the department shall consider the willfulness of
5 the violation, the effect on the water resources planning
6 process, the damage to water resources or other natural
7 resources of the Commonwealth or their uses, the cost of
8 restoration or abatement, the savings resulting to the person in
9 consequence of the violation, the deterrence of future
10 violations, the cost to the department and other relevant
11 factors.
12 Section 708. Civil action to compel compliance.
13 (a) General rule.--Any person having an interest which is or
14 may be adversely affected may commence a civil action on his own
15 behalf to compel compliance with this act or any rule,
16 regulation, order or permit issued under this act against any
17 person withdrawing, diverting or using water resources alleged
18 to be in violation of any provision of this act or any rule,
19 regulation, order or permit issued under this act. Any other
20 provision of law to the contrary notwithstanding, the courts of
21 common pleas shall have jurisdiction of such actions, and venue
22 in such actions shall be as set forth in the Pennsylvania Rules
23 of Civil Procedure concerning civil actions.
24 (b) Limitation.--No civil action may be commenced if the
25 department has executed a consent order and agreement, consent
26 adjudication, consent decree or similar document which binds an
27 alleged violator to corrective action and future compliance or
28 if the department has commenced and is diligently prosecuting a
29 civil action in a court of competent jurisdiction or is in
30 litigation before the Environmental Hearing Board to require the
19970S0317B0321 - 41 -
1 alleged violator to comply with this act or any rule,
2 regulation, order or permit issued under this act, but in any
3 such action any person having or representing an interest which
4 is or may be adversely affected may intervene as a matter of
5 right without posting bond.
6 (c) Notice.--No action under this subsection may be
7 commenced prior to 60 days after the plaintiff has given notice
8 in writing of the violation to the department and to any alleged
9 violator. Notwithstanding the 60-day notice requirement, any
10 action may be initiated immediately upon written notification to
11 the department in the case where the violation or order
12 complained of constitutes an imminent threat to the health or
13 safety of the plaintiff or would immediately affect a legal
14 interest of the plaintiff.
15 (d) Award of costs, etc.--The court, in issuing any final
16 order in any action brought under this subsection, may award
17 costs of litigation, including attorney and expert witness fees,
18 to any party, whenever the court determines such award is
19 appropriate. Except as provided in section 703, the court may,
20 if a temporary restraining order or preliminary injunction is
21 sought, require the filing of a bond or equivalent security in
22 accordance with the Pennsylvania Rules of Civil Procedure.
23 Section 709. Penalties to be concurrent.
24 The penalties and remedies prescribed by this act shall be
25 deemed concurrent, and the existence or exercise of any remedy
26 shall not prevent the department from exercising any other
27 remedy hereunder, at law or in equity.
28 Section 710. Separate offenses.
29 Each violation on each separate day shall constitute a
30 separate offense for purposes of this act.
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1 Section 711. Appealable actions.
2 Any person aggrieved by an order or other administrative
3 action of the department issued under this act shall have the
4 right, within 30 days of actual or constructive notice of the
5 action, whichever is sooner, to appeal the action to the
6 Environmental Hearing Board in accordance with the act of July
7 13, 1988 (P.L.530, No.94), known as the Environmental Hearing
8 Board Act, and 2 Pa.C.S. Ch. 5 Subch. A (relating to practice
9 and procedure of Commonwealth agencies).
10 Section 712. Public nuisances.
11 A violation of any provision of this act, any regulation of
12 the department, any order of the department or any term or
13 condition of any permit shall constitute a public nuisance. Any
14 person committing this violation shall be liable for the costs
15 of the abatement of the public nuisance caused by the violation.
16 The Environmental Hearing Board and any court of competent
17 jurisdiction are hereby given jurisdiction over actions to
18 recover the costs of the abatement. Any activity or condition
19 declared by this act to be a nuisance or which is otherwise in
20 violation of this act shall be abatable in the manner provided
21 by law or equity for the abatement of public nuisances.
22 Section 713. Existing rights and remedies preserved.
23 (a) Construction of act.--Nothing in this act shall be
24 construed in a manner to repeal or supersede existing rights and
25 obligations of persons under existing law or statute, except
26 insofar as this act is directly inconsistent with such law or
27 statute.
28 (b) Collection not estoppel.--The collection of any penalty
29 imposed under this act shall not be construed as estopping the
30 Commonwealth, any district attorney or solicitor of a
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1 municipality or aggrieved person from proceeding in courts of
2 law or equity to abate nuisances under this act or under
3 existing law or to restrain, at law or in equity, violation of
4 this act.
5 (c) Remedies additional and cumulative.--It is hereby
6 declared to be the purpose of this act to provide additional and
7 cumulative remedies to abate nuisances. Nothing contained in
8 this act shall in any way abridge or alter rights of action or
9 remedies now or hereafter existing in equity or under the common
10 law or statutory law, criminal or civil, nor shall any provision
11 in this act or the granting of any permit under this act or any
12 act done by virtue of this act be construed as estopping the
13 Commonwealth, persons or municipalities, in the exercise of
14 their rights under the common law or decisional law or in
15 equity, from proceeding in courts of law or equity to suppress
16 nuisances or enforce common law or statutory rights.
17 CHAPTER 9
18 FINANCIAL PROVISIONS
19 Section 901. Water Conservation Account.
20 (a) Establishment and purpose.--All fines, civil penalties
21 or recovered costs collected under the penalty or nuisance
22 provisions of this act and all fees shall be paid into the State
23 Treasury into a separate account to be known as the Water
24 Conservation Account. All moneys placed in the account are
25 hereby appropriated to the Department of Environmental
26 Protection on a continuing basis and shall be administered by
27 the department for the following purposes:
28 (1) To defray the department's direct and indirect costs
29 of administering this act and the programs authorized
30 hereunder.
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1 (2) To assist in financing water resources planning and
2 conservation programs and providing technical assistance.
3 (3) For such other purposes as may be necessary or
4 appropriate to implement the department's powers and duties
5 under this act.
6 (b) Other appropriations, grants, etc.--The Water
7 Conservation Account may be supplemented by appropriations,
8 grants or other moneys from the General Assembly, any Federal,
9 interstate, State or local agency or any private source.
10 (c) Exemption.--The Water Conservation Fund shall not be
11 subject to 42 Pa.C.S. Ch. 37 Subch. C (relating to judicial
12 computer system).
13 Section 902. Fees.
14 (a) Establishment and purpose.--The Environmental Quality
15 Board is authorized to establish by regulation the fees as may
16 be necessary to further the purposes of this act. At a minimum,
17 these fees shall be established to cover the direct and indirect
18 cost of developing and administering the State Water Plan,
19 registration, permitting, monitoring, reporting, conservation
20 and enforcement program required by this act. In establishing
21 fees, the board may consider the amount of the withdrawal or
22 diversion, the resources necessary to process a registration or
23 permit, the effect of a withdrawal or diversion on water
24 resources, including consumptive use, and other relevant
25 factors.
26 (b) Interim fees.--Until alternative fees are established by
27 the Environmental Quality Board, the following interim fees
28 shall apply:
29 (1) Twenty-five dollars per year, or $75 every three
30 years or pro rata share for a portion thereof, for the
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1 processing of a registration of any source.
2 (2) Ten thousand dollars for the processing of any
3 application for any individual permit or permit renewal for
4 withdrawals or diversions equal to or exceeding 10,000,000
5 GPD.
6 (3) Seven thousand five hundred dollars for the
7 processing of any application for any individual permit or
8 permit renewal for withdrawals or diversions equal to or
9 exceeding 2,500,000 GPD but less than 10,000,000 GPD.
10 (4) Three thousand five hundred dollars for the
11 processing of any application for any individual permit or
12 permit renewal for withdrawals or diversions equal to or
13 exceeding 750,000 GPD but less than 2,500,000 GPD.
14 (5) One thousand five hundred dollars for the processing
15 of any application for any individual permit or permit
16 renewal for withdrawals or diversions equal to or exceeding
17 250,000 GPD but less than 750,000 GPD.
18 (6) Seven hundred fifty dollars for the processing of
19 any application for any individual permit or permit renewal
20 for withdrawals or diversions equal to or exceeding 100,000
21 GPD but less than 250,000 GPD.
22 (7) Two hundred fifty dollars for the processing of any
23 application for any individual permit or permit renewal for
24 withdrawals or diversions of less than 100,000 GPD or for any
25 general permit.
26 CHAPTER 21
27 MISCELLANEOUS PROVISIONS
28 Section 2101. Savings provision.
29 The provisions of this act shall not affect any suit,
30 prosecution, or other action instituted to enforce any right or
19970S0317B0321 - 46 -
1 abate any violation of any act or part thereof repealed by this
2 act.
3 Section 2102. Severability.
4 The provisions of this act are severable. If any provision of
5 this act or its application to any person or circumstance is
6 held invalid, the invalidity shall not affect other provisions
7 or applications of this act which can be given effect without
8 the invalid provision or application.
9 Section 2103. Repeals.
10 (a) Inconsistent.--The following acts and parts of acts are
11 repealed insofar as they are inconsistent with this act:
12 Act of June 14, 1923 (P.L.700, No.293), entitled "An act
13 authorizing the condemnation and appropriation of lands, waters,
14 and other property by public service companies holding limited
15 power permits and limited water supply permits granted by the
16 Water Supply Commission of Pennsylvania, and providing a method
17 for the assessment of damages arising from such appropriation,"
18 insofar as it relates to public water supply agencies, water
19 supply projects and limited water supply permits.
20 Act of June 14, 1923 (P.L.704, No.294), entitled "An act
21 relating to limited power permits and limited water supply
22 permits from the Water Supply Commission of Pennsylvania and the
23 conditions thereof, to the flooding and use by holders of
24 limited power permits of islands owned by the Commonwealth, to
25 the unlawful use for water or steam power development of dams
26 and changes in streams hereafter constructed or made otherwise
27 than under limited power permits, and to proceedings for the
28 enforcement of this act," insofar as it relates to water supply
29 agencies, water supply projects, and limited water supply
30 permits.
19970S0317B0321 - 47 -
1 Act of June 24, 1939 (P.L.842, No.365), entitled "An act
2 relating to the acquisition of rights to divert water from
3 rivers, streams, natural lakes, and ponds, or other surface
4 waters within the Commonwealth or partly within and partly
5 without the Commonwealth; defining various words and phrases;
6 vesting in the Water and Power Resources Board certain powers
7 and authorities for the conservation, control and equitable use
8 of the waters within the Commonwealth in the interests of the
9 people of the Commonwealth; making available for public water
10 supply purposes, water rights heretofore or hereafter acquired
11 but not used; providing for hearings by the Water and Power
12 Resources Board and for appeals from its decisions; fixing fees;
13 granting to all public water supply agencies heretofore or
14 hereafter created the right of eminent domain as to waters and
15 the land covered by said waters; repealing all acts or parts of
16 acts inconsistent herewith, including Act No. 109, Pamphlet Laws
17 152, approved April 13, 1905, Act No. 307, Pamphlet Laws 455,
18 approved June 7, 1907, Act No. 64, Pamphlet Laws 258, approved
19 April 8, 1937."
20 (b) General.--All other acts or parts of acts inconsistent
21 with this act are repealed to the extent of such inconsistency.
22 Section 2104. Effective date.
23 This act shall take effect in 60 days.
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