PROPOSED RULEMAKING
[4 PA. CODE CH. 120]
Local Water Rationing Plans
[30 Pa.B. 5748] Editor's Note: For the Preamble which applies to this document, see 30 Pa.B. 5735 (November 4, 2000).
Fiscal Note: 30-58. (1) General Fund; (2) Implementing Year 2000-01 is Unknown; (3) 1st Succeeding Year 2001-02 is Unknown; 2nd Succeeding Year 2002-03 is Unknown; 3rd Succeeding Year 2003-04 is Unknown; 4th Succeeding Year 2004-05 is Unknown; 5th Succeeding Year 2005-06 is Unknown; (4) 1999-00 Program--Not Applicable; 1998-99 Program--Not Applicable; 1997-98 Program--Not Applicable; (7) Various appropriations in the Department of Environmental Protection; (8) recommends adoption. Any additional cost that the Commonwealth incurs due to this rulemaking is expected to be minimal and would be absorbed in the Department of Environmental Protection budget.
Annex A
TITLE 4. ADMINISTRATION
PART V. EMERGENCY MANAGEMENT
CHAPTER 120. LOCAL WATER RATIONING PLANS § 120.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Applicant--The governing body of a political subdivision[, a purveyor] or a public water supply agency which experiences a local water shortage in the service area covered by its plan.
Commonwealth Drought Coordinator--An officer of the Department appointed by the Secretary of the Department, to carry out, as agent of PEMA, responsibilities established in the Pennsylvania Drought Contingency Plan to coordinate Commonwealth planning, preparedness and response action to a drought or water shortage emergency.
[Council--The Pennsylvania Emergency Management Council].
* * * * * Designated drought emergency area--The area of this Commonwealth described in the Governor's proclamation or executive order declaring a state of drought and water shortage emergency.
* * * * * Plan--Local Water Rationing Plan--A drought response plan for the equitable allocation of limited water supplies, submitted by a public water supply agency [, purveyor] or the governing body of a political subdivision and approved by the [Council] Commonwealth Drought Coordinator.
* * * * * Public water supply agency--A [person, partnership, association, corporation, municipality or municipal authority, district or other entity supplying or authorized to supply water to the public] ''community water system'' as that term is defined in section 3 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.3).
[Purveyor--The owner or operator of a public water supply agency, including, public utilities, municipalities, municipal authorities, associations and other organizations which supply water to the public including the officers, employes and agents of the owner or operator.]
* * * * * Service area--The geographical area serviced by a [purveyor] public water supply agency.
* * * * * [Special emergency area--The area described in the Governor's Proclamation declaring a state of drought and water shortage emergency.]
* * * * * § 120.2. Purpose.
This chapter establishes procedures for the [Department, PEMA and the Council] Commonwealth Drought Coordinator, as agent for PEMA, to review and approve plans [for] by public water supply agencies [, purveyors ] or [municipalities] political subdivisions in response to a [declared local] state of drought or water shortage [or drought] emergency that has been declared by the Governor within specified areas of this Commonwealth.
§ 120.3. Objective of a plan.
The objective of a plan is to balance the daily demands placed upon a [local] public water supply [system] agency with the requirement to maintain a sufficient water supply to meet the long term needs that may be placed upon the public water supply [system] agency during a period of water shortage or drought emergency. In particular, the water conservation measures of a plan are intended to:
* * * * * § 120.4. Responsibility to monitor local water supply and implement water conservation measures.
(a) Each public water supply agency[, purveyor] or governing body of each political subdivision [in] which has a source of water or a service area within an area affected by drought conditions or a local water shortage shall monitor the level of its water supply and estimate the availability of future water supply sources, the rate of present and anticipated water usage and the effectiveness of water conservation measures being implemented by them.
(b) Each public water supply agency[, purveyor] or governing body of each political subdivision [in] which has a source of water or a service area within an area affected by drought conditions or a local water shortage shall take prompt action to implement water conservation measures. These measures may include:
* * * * * (4) Implementing a plan as provided in §§ 120.5 and 120.6 (relating to implementation of plans; and implementation of further water usage reductions).
§ 120.5. Implementation of plans.
(a) Plan.
(1) Each public water supply agency[, purveyor] or governing body of a political subdivision is authorized to develop a plan. A plan [may] shall contain provisions to:
(i) Prohibit nonessential water use, if the restrictions do not conflict with [similar regulations already promulgated by the Council for the same geographical area covered by the proposed plans] Chapter 119 (relating to prohibition of nonessential water uses in a Commonwealth drought emergency area).
(ii) Establish equitable water rationing provisions for residential, nonresidential, [health care facilities] and other water users together with appropriate implementing procedures.
* * * * * (2) ''Guidelines for the Development of a Local Water Rationing Plan'' and a ''Model Local Water Rationing Plan'' may be obtained from the Department. Public water supply agencies are encouraged to contact the Department's Bureau of [Water Resources Management] Watershed Conservation, Post Office Box [8761] 8555, Harrisburg, Pennsylvania 17105-8761, (717) [541-7800] 772-4048, for specific assistance in developing a system-specific plan.
(b) Review and approval by [Council] Commonwealth Drought Coordinator. The [Council] Commonwealth Drought Coordinator will [consider] review local water rationing plans submitted [to it] for review and approval in accordance with the following procedures:
(1) The public water supply agency[, purveyor] or governing body of the affected political subdivision shall apply in writing to the [Council] Commonwealth Drought Coordinator for approval of its plan. The written request for approval shall include the following elements:
(i) A plan as approved by the public water supply agency[, purveyor] or governing body of the affected political subdivision.
* * * * * (iii) An express request for approval of the plan by the [Council] Commonwealth Drought Coordinator.
(iv) The signature of an authorized representative of the public water supply agency[, purveyor] or governing body of the affected political subdivision.
(2) [The written request for approval of the plan shall be sent to the Commonwealth Drought Coordinator for initial review and approval.] If the plan includes a service area which is not included in a currently effective Governor's proclamation, the following procedures will be followed:
(i) The Commonwealth Drought Coordinator will determine whether or not the request, together with other available information, establishes the existence of a water shortage emergency that will require the Governor to issue a proclamation declaring a state of local drought and water shortage emergency for the affected area, and will make a recommendation to PEMA.
[(3) Having determined] If PEMA concurs in the existence of a local water shortage emergency, PEMA will submit to the Governor a proposed proclamation to declare a state of local drought and water shortage emergency for the affected area described in the proclamation.
[(4)] (iii) After the Governor signs the proclamation, PEMA will[, within not more than 72 hours immediately following the determination, call the Council into emergency session to review the written request for approval of the plan] notify the Commonwealth Drought Coordinator that the plan may be approved and put into effect.
(3) [For plans] Any plan that [cover] covers emergency service areas already included [under] in a [previously signed] currently effective Governor's proclamation [, the council may meet in a regularly scheduled or emergency session as determined by PEMA] will go into effect upon its approval by the Commonwealth Drought Coordinator.
[(5) At a regular or emergency session, the Commonwealth Drought Coordinator, or a designee, will brief the Council on the water shortage conditions that warrant the adoption of the plan. The Council will consider and adopt plans subject to the conditions or modifications as approved by the Council. The plan will become effective on the date of its approval by the Council, unless otherwise stated.]
(c) Mandatory implementation of plans.
(1) After the Governor has issued a proclamation declaring a state of local drought and water shortage emergency for an area of [the] this Commonwealth, [the Governor or the Council] the Commonwealth Drought Coordinator may direct a public water supply[, purveyor] agency or governing body of a political subdivision that is located within or has a source of water within the [declared] designated drought emergency area to prepare and submit a plan to the [Council] Commonwealth Drought Coordinator for review and approval.
(2) The public water supply agency[, purveyor] or governing body of a political subdivision shall submit its plan to the [Council] Commonwealth Drought Coordinator, in accordance with the procedures described in subsection (b), within 10 calendar days after receiving written notification from the [Council] Commonwealth Drought Coordinator that the adoption and implementation of a plan by that public water supply agency[, purveyor] or political subdivision is necessary to deal with the circumstances of the drought and water shortage emergency. [The Governor's Proclamation that declares a state of local drought and water shortage emergency may also order public water supply agencies, purveyors or governing bodies of political subdivisions located within the declared drought emergency area to prepare and submit their plans to the Council within 30 calendar days after the issuance of the proclamation. The plan that is submitted by the public water supply agency, purveyor or political subdivision shall contain all or portions of the ''Model Local Water Rationing Plan'' as directed by the Council.
(3) At regular or emergency session, the Commonwealth Drought Coordinator, or a designee, will brief the Council on the adoption of the submitted plan. The Council will consider and adopt the plan subject to conditions or modifications as approved by the Council. The plan will become effective on the date of its approval by the Council, unless otherwise stated.]
(d) Approval of a plan. Upon approval by the [Council] Commonwealth Drought Coordinator of a plan submitted under subsection (b) or (c), the Commonwealth Drought Coordinator [Department] will:
(1) [Issue] Require the applicant to issue a notice to [a] at least one newspaper serving the area covered by the plan, which will advise residential and nonresidential water customers or other persons doing business in the emergency service area of the approval of the plan and its effective date.
(2) Transmit to the Legislative Reference Bureau for [suggested] publication in the Pennsylvania Bulletin, a written notice which states the approval of the plan by the [Council] Commonwealth Drought Coordinator and its effective date.
(3) [Post or require the posting of] Require the applicant to post a copy of the plan in at least one public building; for example, a library, or a city, town or municipal building within the emergency service area for the review of the water customers affected by the implementation of the plan.
(4) Require the applicant to make copies of the plan available to the water customers affected by the implementation of the plan, upon request, either electronically or in hard copy.
(e) Constructive notice. The actions described in subsection (d) constitute constructive notice under 45 Pa.C.S. § 904 (relating to constructive notice) to all residential and nonresidential water customers or other persons doing business within the emergency service area for the purpose of enforcing the plan adopted and approved by the [Council] Commonwealth Drought Coordinator.
§ 120.6. Implementation of further water usage reductions.
(a) If a public water supply agency[, purveyor] or governing body of an affected political subdivision determines that it is necessary to further decrease the water usage of its residential [or], nonresidential or other water customers, [or both,] it may request the Commonwealth Drought Coordinator to consider and approve revisions or amendments, or both, to its plan in accordance with the procedure in § 120.5(b) (relating to implementation of plans).
(b) [After consultation with PEMA the] the Commonwealth Drought Coordinator may approve the requested revisions or amendments, or both, to the plan.
(c) [An emergency session of the Council will only be called to review those requested revisions for amendments, or both, to a plan that are deemed to be extraordinary or significant in nature as determined by PEMA and the Commonwealth Drought Coordinator.
(d)] Constructive notice of approved revisions or amendments, or both, to a plan will be provided in accordance with the notification procedures described in § 120.5(d) [(relating to implementation of plans)].
§ 120.7. Enforcement of plans.
(a) The public water supply agency[, purveyor] or governing body of a political subdivision shall have primary responsibility for monitoring the compliance of residential [and], nonresidential and other water customers with its plan.
(b) The public water supply agency[, purveyor] or governing body of a political subdivision shall institute procedures to monitor closely water supplies and current water usage to determine if water reductions are being attained consistent with the water conservation figures established in its plan. A public water supply agency[, purveyor] or governing body of a political subdivision shall [establish a mechanism to] regularly advise the water customers of the effects of the water rationing program.
(c) Each public water supply agency[, water purveyor] or governing body of a political subdivision is authorized to alter meter reading schedules to assure compliance with its plan.
* * * * * § 120.8. Service interruptions.
(a) A plan shall include provisions for the implementation of temporary service interruptions. This action would be necessary to achieve water use reductions to prevent a public water supply [system] agency from depleting its water supply to the point that vital service demands, such as public health and safety, firefighting and health care facilities, cannot be met.
(b) The following governs the implementation of service interruptions:
(1) To effectuate compliance with a plan, the public water supply agency [or purveyor] is authorized and required to plan and implement service interruptions to all or part of its water supply system, as the public water supply agency [or purveyor] deems appropriate, when one or more of the following conditions are determined by the public water supply agency [or purveyor] to exist as to its water supply system:
* * * * * (2) If the public water supply agency [or purveyor] determines that service interruptions are necessary, the public water supply agency [or purveyor] shall notify its water customers through the public media, such as newspapers, radio, telephone and television, serving the water customers in its service area at least 1 day prior to the service interruptions, that a planned service interruption is to be imposed. In addition, the public water supply agency [or purveyor] shall notify the local coordinator of emergency management; PEMA; the Commonwealth Drought Coordinator; the regional office of the Department of Environmental [Resources] Protection; and the Pennsylvania Public Utility Commission, Bureau of [Safety and Compliance] Fixed Utility Services, if the public water supply agency [or purveyor] is subject to the jurisdiction of the Pennsylvania Public Utility Commission. The notice shall:
* * * * * (3) If the public water supply agency [or purveyor] imposes planned service interruptions as authorized and required by a plan, it shall provide for the continued delivery of water to health care facilities within the service area affected by the interruptions, by means of adequate, alternative delivery measures that may be necessary.
(4) If the public water supply agency [or purveyor] implements temporary service interruptions, it shall [make provision] provide, by any means possible, for the continued delivery of the water, as may be necessary, for the proper operation of sewage collection, treatment and disposal systems and facilities.
§ 120.9. Excess use charges.
(a) Excess use charges.
(1) Excess use charges are a positive means of securing compliance with a plan. If a [purveyor] public water supply agency elects to include excess use charges in a plan, the maximum excess use charge authorized to be imposed is as follows:
* * * * * (b) Water allotments. A residential or nonresidential water customer who exceeds the water allotments established by the plan shall be subject to an excess use charge. [the following:
(1)] Public water supply agencies [or purveyors] in the emergency service area are authorized to collect an excess-use charge based on the amount by which a water customer's use exceeds the water allotment established in the plan. The charges will be specified in the plan.
[(2)] (c) Disposition of excess use charges. [Monies] Moneys collected by public water supply agencies [or purveyors] through excess use charges may not be accounted for as income to the public water supply agency [or purveyor], but shall be placed in a reserve account. The disposition of funds placed in the reserve account shall be governed as follows:
[(i)] (1) Funds collected by a public utility or a municipal corporation rendering services beyond its corporate limits shall be used to offset drought related costs as directed by orders and procedures adopted by the Pennsylvania Public Utility Commission.
[(ii)] (2) Funds collected by [a municipal authority or a municipal corporation or other purveyor rendering services within its corporate limits] any public water supply agency not covered in paragraph (1), shall be used to offset drought-related costs [as directed by the Council].
[(c)] (d) Additional penalties. In addition to the excess use charge, noncompliance with the plan may result in the following:
(1) For the first excess use, the public water supply agency [or purveyor] will warn the water customer that its water use may be discontinued if the water customer continues its noncompliance practices.
(2) For the second excess use, the public water supply agency [or purveyor] may interrupt or shut off service to the water customer for a period not to exceed 48 hours per incident. As an alternative, the public water supply agency [or purveyor] may install a flow restriction in the water customer's service line for the duration of the water shortage emergency. The cost incurred by the public water supply agency [or purveyor] to interrupt or shut off and reinstate service, or to install and remove a flow restriction, shall be assessed to the water customer by the public water supply agency [or purveyor].
[(d)] (e) Appeal of decision or action. A water customer aggrieved by a decision or action taken by a public water supply agency [or purveyor] under the authority of this section may proceed in accordance with the following:
(1) Each public water supply agency [or purveyor] shall adopt procedures which provide an opportunity for the water customer to rebut the finding of a violation or to present evidence of circumstances beyond the water customer's control which resulted in the violation. Each public water supply agency [or purveyor] shall keep a record of the evidence presented by the water customer concerning the disputed violations and shall provide the water customer with a written notice of its final decision and action in the case.
(2) A water customer aggrieved by the final decision or action of a water supply [purveyor] agency may file an appeal with the Pennsylvania Public Utility Commission, if the water supply agency is regulated by the Public Utility Commission, and in all other instances with the Court of Common Pleas in the county the water service is provided, in accordance with [the provisions and procedures of] 2 Pa.C.S. §§ 551--555 and 751--754 (relating to the Local Agency Law).
§ 120.10. [Temporary suspension of water rationing provisions] (Reserved).
[(a) Water rationing provisions may be suspended for the service area of a public water supply agency or purveyor if meteorologic and hydrologic conditions create a significant improvement in the water supply of the public water supply agency or purveyor.
(b) A significant improvement shall be defined as an improvement in the ability of the public water supply agency or purveyor to supply the water demands of its water customers which is not attributable to conservation or rationing efforts and which is evidenced in the case of public water supplies using:
(1) Surface water sources, by reservoirs filled to capacity or containing at least 60 days of storage.
(2) Groundwater sources, by a recovery of the water table sufficient to allow the public water supply agency or purveyor to reasonably predict supplies which will meet demand for at lest 60 days.
(3) Both surface water and groundwater sources, by recovery sufficient to allow the public water supply agency or purveyor to reasonably predict that the combined sources can provide water to meet demand for at least 60 days.
(c) If a public water supply agency or purveyor or an applicant determines that a significant improvement in water supply has occurred, the public water supply agency or purveyor or applicant may apply for a temporary suspension of water rationing provisions through the following process:
(1) The applicant shall send to the Commonwealth Drought Coordinator an application for temporary suspension, which describes the improvement in water supply conditions in sufficient detail to demonstrate that there has been a significant improvement in the water supply.
(2) The applicant shall send a copy of the application to each public water supply agency or purveyor and local government in the emergency service area of the affected plan. The applicant shall also notify the public water supply agency or purveyors and local governments in the affected emergency service area that they shall file objections to the temporary suspension with the Commonwealth Drought Coordinator within 7 days of the Commonwealth Drought Coordinator's receipt of the application.
(3) An application to temporarily suspend water rationing provisions shall become effective 7 days after it is received by the Commonwealth Drought Coordinator unless it is objected to by PEMA, the Commonwealth Drought Coordinator, a purveyor or a local government in the emergency service are of the affected plan. If objections are filed with the Commonwealth Drought Coordinator or PEMA, the Council will consider the objections and act upon the application in the interest of effective drought response.
(4) The applicant shall publicize the temporary suspension of water rationing provisions in the manner reasonably calculated to notify persons in the affected service area.
(d) The applicant has the responsibility to immediately notify the Commonwealth Drought Coordinator if the water supply situation changes so that the applicable conditions described in subsection (b) no longer exist. Upon the notification, the Commonwealth Drought Coordinator, after consulting with PEMA, may terminate the suspension and reinstate the water rationing provisions. The applicant shall publicize the reinstatement of water rationing provisions in a manner reasonably calculated to notify persons in the affected service area.]
§ 120.11. Enforcement by political subdivision ordinance.
(a) A political subdivision may adopt an ordinance to enforce the various provisions of [its] a plan within the jurisdictional boundaries of the political subdivision, if the following actions precede the adoption of the ordinance:
(1) The plan has been [political subdivision has prepared and submitted its plan to the Council] plan has been submitted to the Commonwealth Drought Coordinator in accordance with § 120.5 (relating to implementation plans).
* * * * * (3) The [Council] Commonwealth Drought Coordinator has approved the [political subdivision's] plan and [has provided] constructive notice of the plan as described in § 120.5(d) has been provided to residential and nonresidential water customers or other persons doing business within the emergency service area of the plan.
(b) After the actions in subsection (a) have occurred, a political subdivision may adopt and publish an ordinance in accordance with its applicable county, city, borough or township code. The purpose of the ordinance shall be to [restrict nonessential water use by residential and nonresidential water customers or other persons or to impose water conservation measures] implement the plan within the jurisdictional boundaries of the political subdivision. The ordinance may include, adopt, incorporate or otherwise enact one or more sections, provisions or portions of the [political subdivision's] approved plan.
(c) [A] Any person who violates a local water rationing/conservation ordinance adopted by a political subdivision, in accordance with the procedures specified in subsections (a) and (b), shall be subject to the fines and penalties that apply to violations of that ordinance as prescribed in the county, city, borough or township code under which the ordinance was adopted.
§ 120.13. Additional water conservation and protection policies.
Nothing in a plan or this chapter limits or affects the power or authority of a political subdivision to adopt or enforce ordinances, rules, restrictions and orders for water conservation and protection of essential supplies, [if] provided that the ordinances, rules, restrictions and orders [are not inconsistent] do not conflict with [the requirements of] this chapter and Chapters 118 and 119 (relating to reductions of major water use in [the Delaware River Basin] a Commonwealth drought emergency area; and prohibition of nonessential water uses in a Commonwealth drought emergency area), and river basin commission orders or plans.
§ 120.14. Repeal of a plan.
[(a)] A plan may be amended or repealed only by action of the [Council] Commonwealth Drought Coordinator upon the written request of [a local government or a public water supply agency or a purveyor] the public water supply agency or governing body of a political subdivision that developed and submitted the plan. A request for amendment or repeal of a plan shall document the conditions justifying the amendment or repeal, be signed by an authorized representative of the [local government or a public supply agency or a purveyor] applicant and be [filed with] submitted to the Commonwealth Drought Coordinator for approval.
[(b) A plan covering the service area of a single public water supply agency or purveyor may be repealed if concurred in by both the purveyor and the local government affected and approved by the Council.
(c) A plan covering service areas of several purveyors may be:
(1) Amended to delete one or several service areas if concurred in by each purveyor and municipality affected and approved by the Council.
(2) Repealed in its entirety if requested by the water purveyors and all municipalities in the emergency service area of the plan and approved by the Council.]
§ 120.15. Notification of termination.
[Whenever conditions within a public water supply system permit the repeal of the plan, the Department will send a notice of the termination of the plan to the Legislative Reference Bureau for suggested publication in the Pennsylvania Bulletin.] Upon approval of the repeal of a plan in accordance with § 120.14 (relating to repeal of a plan), the Commonwealth Drought Coordinator will require the applicant to issue a notice to at least one newspaper serving the area covered by the plan, which will advise residential and nonresidential water customers or other persons doing business in the emergency service area of the repeal of the plan and its effective date. The Commonwealth Drought Coordinator will also transmit to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin, a written notice which states that the plan has been repealed by the Commonwealth Drought Coordinator and its effective date.
[Pa.B. Doc. No. 00-1909. Filed for public inspection November 3, 2000, 9:00 a.m.]
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