RULES AND REGULATIONS
[4 PA.CODE CH. 119]
Prohibition of Nonessential Water Uses in a Commonwealth Drought Emergency Area
[31 Pa.B. 3529] (Edtior's Note: For the Preamble which applies to this document see 31 Pa.B. 3520 (July 7, 2001). For the text of the order of the Independent Regulatory Review Commission relating to this document, see 31 Pa.B. 3646 (July 7, 2001).)
Fiscal Note: Fiscal Note 30-56 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 4. ADMINISTRATION
PART V. EMERGENCY MANAGEMENT AGENCY
CHAPTER 119. PROHIBITION OF NONESSENTIAL WATER USES IN A COMMONWEALTH DROUGHT EMERGENCY AREA § 119.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Any water--Water from any source including publicly or privately owned surface or groundwater sources such as springs, wells, streams, or ponds, including fresh water, brackish water, wastewater and water collected directly from precipitation in rain barrels, cisterns or similar containers.
Arboretum--A place where trees, shrubs and plants are cultivated for scientific and educational purposes.
Athletic field--A surface used for organized professional or amateur sports, including racing, contained within marked boundary lines or barriers. The term does not include foul, out-of-bounds or out-of-play areas.
Beneficial use--Use of any water that is necessary to serve essential health, safety and economic needs, including the maintenance of human, animal and plant life.
Brackish water--Water containing more than 1,000 parts per million of dissolved salts.
Commonwealth Drought Coordinator--An officer of the Department appointed by the Secretary of the Department, to carry out responsibilities established in the Pennsylvania Drought Contingency Plan to coordinate Commonwealth planning, preparedness and response action to a drought or water shortage emergency.
Department--The Department of Environmental Protection of the Commonwealth.
Designated drought emergency area--The area of this Commonwealth described in the Governor's proclamation or executive order declaring a state of drought or water shortage emergency.
Effective conservation--Use of water at the minimum rate necessary for the intended purpose, in a manner that does not result in the use of water for purposes that are prohibited by this chapter and in a manner that does not allow application or runoff of water onto areas that are prohibited by this chapter.
Fresh water--Water withdrawn from a surface water or groundwater source, or from a public water supply system, located within this Commonwealth other than wastewater or brackish water. The term does not include water collected directly from precipitation in rain barrels, cisterns or similar containers.
Irrigation contractor--A person who is engaged in the business of design, installation or repair of irrigation equipment as a source of income.
Mobile equipment--A public, private or commercial automobile, truck, bus, trailer, cart, wagon, railroad car, camper, boat or other type of similar equipment.
Newly seeded or sodded grass area--A grass area from which all growth was removed or tilled under and to which new seed or sod was applied within the previous 12 months.
Nurseries--Facilities which are used to grow or keep plants, trees, shrubs, vines, bulbs, cuttings, grafts, flowering annual plants, aquatic plants, seeds, turf, grass, sod or tubers for propagation, distribution or sale.
PEMA--The Pennsylvania Emergency Management Agency.
Paved surfaces--Any surface, such as streets, roads, sidewalks, driveways, garages, parking areas, tennis courts, decks and patios, which has been covered with concrete, asphalt, tile, wood or other similar materials, but not including walls or vertical surfaces of buildings.
Professional landscaper--A person who is engaged in the business of installing or maintaining landscape materials as a full-time job.
Public water supply agency--A ''community water system'' as that term is defined in section 3 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.3).
Sand-based athletic field--An athletic field with a man-made root zone that contains a minimum of 60% of sand, by weight, in the top 4 to 12 inches of the root zone.
Waste water--Water which has been previously used for industrial, municipal, domestic or other purpose, and has not been returned to a surface water or groundwater source.
Water user--
(i) An individual, partnership, association, company, corporation, municipality, municipal authority, political subdivision or an agency of Federal, State, county or municipal government.
(ii) The term includes the officers, employees and agents of a partnership, association, company, corporation, municipality, municipal authority, political subdivision or an agency of Federal, State, county or municipal government.
§ 119.3. Scope.
This chapter applies to all water uses within this Commonwealth.
§ 119.4. Prohibition of nonessential water uses.
Whenever the Governor declares by proclamation or executive order a state of drought or water shortage emergency in an area of this Commonwealth, the following water uses shall be deemed nonessential and are prohibited within areas that have been declared to be in a state of drought or water shortage emergency, including within any public water supply agency's service area for which a source of water is located within the designated drought emergency area. Nothing in paragraphs (1)--(4) allows a prohibited use of water as either a direct or indirect effect of the exceptions contained therein.
(1) The use of any water for watering of grass, except:
(i) Water may be applied to grass areas approved prior to or during the emergency as part of a sewage or storm water treatment system utilizing spray irrigation which system was approved in a permit issued by the Department prior to the drought emergency proclamation.
(ii) Water may be used to establish and maintain newly seeded and sodded grass areas when applied between the hours of 5 p.m. and 9 a.m. by means of a bucket, can or hand held hose equipped with an automatic shut-off nozzle, or when applied between the hours of 7 p.m. and 11 p.m. by any other means designed and operated to assure effective conservation.
(iii) Water may be applied by a professional landscaper to establish and maintain newly seeded and sodded grass areas during working hours by any means designed and operated to assure effective conservation.
(iv) Water may be used by professional landscapers or irrigation contractors for the purpose of testing newly installed or repaired irrigation equipment for a period not to exceed 15 minutes per irrigation zone.
(v) Water may be applied for the purpose of grub control one time during the effective period of the Governor's proclamation of drought emergency.
(vi) Water may be used, in a manner that ensures effective conservation, to implement revegetation following earthmoving, where revegetation is required under an erosion and sedimentation control plan adopted under state law or regulation. Revegetation use shall comply with applicable best conservation management practices for revegetation prescribed by the Department and county conservation districts.
(2) The use of any water for watering athletic fields, except:
(i) Water may be applied to athletic field grass areas approved prior to or during the emergency as part of a sewage or stormwater treatment system utilizing spray irrigation, which system was approved in a permit issued by the Department prior to the drought emergency proclamation.
(ii) Water may be applied to maintain grass tennis courts, by means of a bucket, can or hand-held hose equipped with an automatic shutoff nozzle or by means of an irrigation system that is designed and operated to restrict the timing or total volume of water, when applied between the hours of 5 p.m. and 9 a.m. in a manner that ensures effective conservation.
(iii) Water may be applied to athletic field grass areas, other than sand-based athletic field grass areas, by a means and in a manner that ensures effective conservation, between 5 p.m. and 9 a.m. during 1 night per calendar week, beginning 2 weeks prior to use of the athletic field for practice, regular season play or other organized use and continuing through the end of the same practice or regular season or other organized use, in accordance with a schedule that has been submitted, at least 7 days prior to implementation, to the Commonwealth Drought Coordinator, the local law enforcement agency and, if applicable, to the public water supply agency from which the water is obtained.
(iv) Water may be applied to sand-based athletic field grass areas in accordance with a plan approved by the Commonwealth Drought Coordinator. Approval of the plan shall be in accordance with the following:
(A) The quantities of water applied shall be measured by means of a volumetric meter, and reports of weekly total water use shall be submitted electronically to the Commonwealth Drought Coordinator on a monthly basis during the emergency, in a form acceptable to the Commonwealth Drought Coordinator.
(B) Water may be applied at an average daily rate that does not exceed 54,300 gallons per acre per week.
(C) Water shall be applied by a means and in a manner that ensures effective conservation.
(D) All meters and meter records shall be made available by the athletic field operator for inspection by representatives of the local law enforcement agency or of the Commonwealth Drought Coordinator, at all times.
(E) A copy of the approved plan shall be submitted to the local law enforcement agency and, if applicable, to the public water supply agency from which the water is obtained, prior to implementation.
(F) Noncompliance by the water user with any term or condition of the approved plan shall cause the plan to be void, and any further use of water under this exception shall be prohibited.
(V) Water may be applied to establish and maintain newly seeded or sodded grass areas by means and in a manner that ensures effective conservation.
(VI) Water may be applied to athletic field nongrass areas to control dust during an athletic event, by means and in a manner that ensures effective conservation, if dust control is necessary to protect health or safety.
(VII) Water may be used by professional landscapers or irrigation contractors for the purpose of testing newly installed or repaired irrigation equipment for a period not to exceed 15 minutes per irrigation zone.
(3) The use of fresh water for irrigation and watering of outdoor gardens, landscaped areas, trees, shrubs and other outdoor plants except that fresh water may be:
(i) Used for irrigation for the production of food and fiber, and the maintenance of livestock and poultry.
(ii) Applied by means of a bucket, can, hand-held hose equipped with an automatic shut-off nozzle, or an irrigation system that is designed and operated to restrict the timing or total volume of water and to restrict the application to specific plantings and that ensures effective conservation, when applied between the hours of 5 p.m. and 9 a.m. Sources of water, other than fresh water, shall be used to the extent available.
(iii) Used by nurseries to maintain stock, by a means that ensures effective conservation, only to the extent that sources of water other than fresh water adequate to supply needs are not available or feasible to use.
(iv) Used by public gardens of National, State or regional significance, or arboretums to preserve specimens, by a means that ensures effective conservation, only to the extent that sources of water other than fresh water adequate to supply needs are not available or feasible to use.
(v) Used by a professional landscaper or irrigation contractor during working hours, by a means that ensures effective conservation.
(vi) Used, in a manner that ensures effective conservation, to implement revegetation following earthmoving, where revegetation is required under an approved erosion and sedimentation control plan adopted under state law or regulation, to the extent that sources of water, other than fresh water, adequate to supply needs are not available or feasible to use. Revegetation use shall comply with applicable best conservation management practices for revegetation prescribed by the Department and county conservation districts.
(4) The use of any water for watering any portion of golf courses, except water may be applied to greens, tees and fairways in accordance with a plan submitted by the golf course operator and approved by the Commonwealth Drought Coordinator no earlier than 3 years prior to the month of use during an emergency. Approval of the plan shall be in accordance with the following:
(i) The quantities of water applied shall be measured by means of a volumetric meter, and reports of daily total water use shall be submitted electronically to the Commonwealth Drought Coordinator on a monthly basis during the emergency, in a form acceptable to the Commonwealth Drought Coordinator.
(ii) Water may be applied at an average daily rate that does not exceed 70% of the calendar month basis quantity. The basis quantity shall be determined for each calendar month, as follows:
(A) Metered water use for the same calendar month, for each of the 5 years previous to submittal of the plan to the Commonwealth Drought Coordinator, shall be averaged, after deducting all water that was used for purposes other than irrigation of greens, tees and fairways.
(B) To the extent that metered data is not available for any year prior to July 7, 2002, or the date of installation of the current irrigation system, whichever is later, an application rate of 41,000 gallons per week per acre of greens, tees and fairways currently irrigated may be used in lieu of metered data.
(C) The basis quantity may not be less than 30,000 gallons per week per acre nor more than 54,000 gallons per week per acre.
(iii) Except as provided in subparagraphs (vi) and (vii), water shall be applied between the hours of 5 p.m. and 10 a.m.
(iv) Meters and meter records shall be made available by the golf course operator for inspection by representatives of the local law enforcement agency or of the Commonwealth Drought Coordinator, at all times.
(v) A copy of the approved plan shall be submitted to the local law enforcement agency and, if applicable, to the public water supply agency from which the water is obtained, prior to implementation.
(vi) Water may be applied between the hours of 10 a.m. and 5 p.m. with a hand-held hose equipped with an automatic shutoff nozzle, to syringe heat-sensitive grasses on tees, greens and fairways, in a manner that ensures effective conservation and so that water is applied to no grass area for a period exceeding 15 minutes in any 1 day.
(vii) Water may be used by professional landscapers or irrigation contractors during regular work hours for the purpose of testing newly installed or repaired irrigation equipment for a period not to exceed 15 minutes per irrigation zone.
(viii) Noncompliance by the water user with any term or condition of the approved plan shall cause the plan to be void, and any further use of water under this exception shall be prohibited.
(5) The use of any water for washing paved surfaces, except water may be used:
(i) For prewashing in preparation for recoating and sealing.
(ii) At the minimum rate necessary for the maintenance of tennis courts composed of clay or similar materials, by means of a bucket, can or hand-held hose equipped with an automatic shutoff nozzle.
(iii) At the minimum rate necessary for sanitation of the premises of raw or processed food, pharmaceutical or vaccine processing, storage or vending establishments, including restaurants and grocery stores.
(iv) At the minimum rate necessary for the sanitation of the premises of waste handling, storage and disposal facilities.
(v) At the minimum rate necessary to comply with permit conditions or other regulatory requirements.
(6) The use of any water for ornamental purposes, including fountains, artificial waterfalls and reflecting pools, except:
(i) Fountains or waterfalls may be operated to perform the primary and necessary aeration function for a pond that supports fish life.
(ii) Water may be used to top off ornamental water gardens or fish ponds to the minimum extent necessary to maintain fish and aquatic life.
(7) The use of any water for washing or cleaning of mobile equipment except that:
(i) An individual may wash personally owned or leased vehicles by buckets and may use a hand-held hose equipped with an automatic shutoff nozzle to prerinse and rinse (total spray period not to exceed 2 minutes), in accordance with the following schedule:
(A) Odd street addresses on first and third Saturdays of the month.
(B) Even or no street addresses on the second and fourth Saturdays of the month.
(ii) Water may be used by commercial car washes at the minimum rate necessary to ensure an effective wash.
(iii) Water may be used for cleaning of construction, emergency, public transportation or government vehicles if necessary to preserve the proper functioning and safe operation of the vehicle.
(iv) Water may be used for cleaning and sanitizing equipment used for hauling or vending raw or processed food, pharmaceuticals or vaccines for human or livestock use, or for handling waste products.
(v) Water may be used for the cleaning of new and used cars which are part of a dealer's sales inventory in accordance with the following restrictions:
(A) A vehicle may be washed in preparation for sale at the time the vehicle is received from the manufacturer or prior owner.
(B) A vehicle shall be washed no more than once every 7 days, to be determined as follows:
(I) Odd street addresses on Tuesdays.
(II) Even or no street addresses on Wednesdays.
(C) A vehicle may be washed following sale immediately prior to delivery to the purchaser.
(D) A vehicle may be washed only by a means designed and operated to assure effective conservation of water or in accordance with the procedures, excluding schedule, described in subparagraph (i).
(vi) Water may be used by professional mobile wash businesses, at the minimum rate necessary, for the washing of vehicles as part of normal business practices.
(vii) A nonprofit service organization or club may wash vehicles in conjunction with a fundraising activity in accordance with the procedures described in subparagraph (i), without restriction as to schedule.
(8) The serving of water in restaurants, clubs or eating places, unless specifically requested by the individual.
(9) The use of any water to fill and top off swimming pools, except that water may be used to fill and top off:
(i) Public swimming pools and residential swimming pools serving 25 or more dwelling units, if the pools have filtration equipment allowing for continued use and recycling of water over the swimming season.
(ii) Swimming pools operated by health care facilities used in relation to patient care and rehabilitation.
(iii) Other pools only if approved by the public water supply agency from which the water is withdrawn. If water is obtained from other sources, permission from the owner of the source is required.
(10) The use of water from a fire hydrant--including sprinkler caps--for any purpose, except for the following permissible uses:
(i) Firefighting.
(ii) Testing of fire fighting apparatus or conducting water flow tests for fire insurance classification or reclassification, if approved by the public water supply agency from which the water is obtained.
(iii) Flushing sewers, water mains or hydrants when needed to protect public health and safety, if approved by the public water supply agency from which the water is obtained.
(iv) The watering of urban gardens in the city of Philadelphia after obtaining a Water Department and Licenses and Inspection permit.
(v) The filling of tank trucks at designated facilities with the approval of the public water supply agency from which the water is obtained, or if the city of Philadelphia, after obtaining a Water Department and Licenses and Inspection permit.
(vi) Recreational use of sprinkler caps in the city of Philadelphia, under the recreational fire hydrant program at authorized locations and at times supervised by the city police, fire, recreation and park facilities.
(11) The use of any water that is not for a beneficial use.
§ 119.5. Penalties and enforcement.
A water user who violates this chapter, fails to implement the duties and responsibilities imposed by this chapter or impedes or interferes with actions undertaken or ordered under this chapter, shall be subject to the penalties provided under 35 Pa.C.S. § 7707 (relating to penalties). Violation of a provision of this chapter is a summary offense enforceable by proper law enforcement authorities or private citizens under Pa.R.Crim.P. Nos. 400--462 and 1000--1013 (relating to procedures in summary cases; and rules of criminal procedure for the Philadelphia Municipal Court). In the city of Philadelphia, this chapter shall be enforced by the Departments of Water, Police, and Licenses and Inspection.
§ 119.6. Procedure for exemptions or variance from the prohibition of nonessential uses of water.
(a) If compliance with the prohibition of nonessential use of water would result in extraordinary hardship upon a water user, the water user may apply for an exemption or variance, which would expire with the termination of the drought emergency proclamantion, unless otherwise specified in the exemption or variance.
(b) If a public water supply agency can demonstrate that compliance with the prohibition of nonessential use of water is unnecessary due to adequate water supply and it is following a drought contingency plan approved by the Commonwealth Drought Coordinator in accordance with § 118.4 (relating to contingency plans--public water supply agencies), the public water supply agency may apply for an exemption throughout all or portions of its service area. In reviewing the applications, the Commonwealth Drought Coordinator shall give primary consideration to any impacts that approval of the application may have on the overall resources of the watershed or river basin and on the ability of law enforcement agencies locally or throughout the designated drought emergency area to enforce these or other emergency regulations. This consideration alone maybe cause for denial.
(c) For purposes of this section, extraordinary hardship means a permanent damage to property, including perishable raw or processed product, or other personal or economic loss which is substantially more severe than the sacrifices borne by other water users subject to the prohibition of nonessential use of water.
(d) A water user or public water supply agency may apply for an exemption or variance under the following procedures:
(1) The water user or public water supply agency shall submit a written application with full documentation supporting the need for the requested relief to:
Commonwealth Drought Coordinator
c/o Department of Environmental Protection
Post Office Box 8555
Harrisburg, Pennsylvania 17105-8555(2) The application from a water user shall contain information specifying:
(i) The nature of the hardship claimed and the reason for the requested exemption or variance.
(ii) The efforts taken by the water user to conserve water and the extent to which water use may be reduced by the applicant without extraordinary hardship.
(3) The application from a public water supply agency shall contain information specifying:
(i) The nature of the hardship claimed and the reason for the requested exemption or variance.
(ii) The adequacy of the supply.
(iii) Evidence of compliance with an approved drought contingency plan.
(4) The Commonwealth Drought Coordinator or a designee will review the application in consultation with other appropriate Commonwealth agencies, and may request the applicant to provide within a reasonable time additional information as necessary to review the application.
(5) The Commonwealth Drought Coordinator, or a designee, is authorized to render a decision regarding applications received for exemption or variance. The Commonwealth Drought Coordinator or a designee will provide applicant notice in writing of the decision and the reasons for the decision. When possible, the Commonwealth Drought Coordinator or a designee will provide a written decision within 7 working days, or if perishable products are involved, within 1 working day, of submission of an application or will request additional information as necessary to review the application. When appropriate, the Commonwealth Drought Coordinator may issue a Statewide exemption or variance to similarly situated water users. A notice of the decision will be published in the Pennsylvania Bulletin. Unless appealed under this section, the decision of the Commonwealth Drought Coordinator or a designee shall be considered a final action on the application.
(6) A person aggrieved by a decision of the Commonwealth Drought Coordinator or a designee may, within 30 days of written notice of the decision or publication of notice of the decision in the Pennsylvania Bulletin, appeal the decision to PEMA.
(7) An appeal from an initial decision of the Commonwealth Drought Coordinator or a designee will not act as an automatic supersedeas, but, upon cause shown and when the circumstances require it, PEMA will have the power to grant a supersedeas.
(8) When an initial decision is appealed, PEMA will provide the applicant with an opportunity for a hearing not later than 7 business days after PEMA has received the appeal request. PEMA may appoint a hearing examiner, who may be an administrative law judge of the Pennsylvania Public Utility Commission. Hearings may be held telephonically.
(9) The hearing examiner will provide the record of the hearing, if any, and a recommendation to PEMA for review and adoption.
(10) PEMA, will notify the applicant in writing of its final decision and the reasons for the decision regarding the appeal within 2 business days after PEMA has received a written recommendation from the hearing examiner.
(e) An exemption or variance will only be granted to an applicant to the extent necessary to relieve extraordinary hardship and will be conditioned upon compliance with all reasonable conservation measures required by this chapter or the variance or exemption.
(f) An exemption or variance may be modified or rescinded by the Commonwealth Drought Coordinator if public health, safety and welfare require further reduction in water use.
(g) An exemption or variance granted to a water user for a specific property, purpose or person is not transferable to another property, purpose or water user without prior written approval from the Commonwealth Drought Coordinator.
§ 119.7. (Reserved).
[Pa.B. Doc. No. 01-1214. Filed for public inspection July 6, 2001, 9:00 a.m.]
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