PROPOSED RULEMAKING

ENVIRONMENTAL
QUALITY BOARD

[ 25 PA. CODE CH. 85 ]

Bluff Recession and Setback

[38 Pa.B. 4617]
[Saturday, August 23, 2008]

   The Environmental Quality Board (Board) proposes to amend Chapter 85 (relating to bluff recession and setback), to make minor editorial changes, clarify municipal response on designation, add the City of Erie to the list of municipalities having a bluff recession hazard area, clarify minimum setback distances, add a deed and plat notice requirement and delete requirements for specific supporting documentation.

   This proposal was adopted by the Board at its June 17, 2008, meeting.

A.  Effective Date

   These amendments will be effective upon final-form publication in the Pennsylvania Bulletin.

B.  Contact Person

   For further information, contact Shamus Malone, Chief of Monitoring and Technical Assistance, PA Coastal Resources Management Program, P. O. Box 2063, Harrisburg, PA 17105-2063, (717) 772-4785.

   Information regarding submitting comments on the proposed rulemaking appears in Section J of this preamble. Persons with a disability may use the AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department of Environmental Protection's (Department) web site: www.depweb.state.pa.us.

C.  Statutory Authority

   The proposed amendments are published under the statutory authority of the Bluff Recession and Setback Act (32 P. S. §§ 5201--5315).

D.  Background and Purpose

   In response to a 2001 petition to the Board by Millcreek Township, Erie County, to clarify the designation of Bluff Recession Hazard Areas along Lake Erie, the Department conducted a study of this Commonwealth's entire Lake Erie shoreline to determine Bluff Recession Hazard Areas. Considering the results of this study and other related studies and data, and responses from the coastal municipalities along Lake Erie concerning tentative designations of bluff recession hazard areas, the Department recommended including the City of Erie as a municipality identified as having a bluff recession hazard area.

   A majority of the shoreline of the City of Erie is along the southern edge of Presque Isle Bay, sheltered from open lake wave energies by the protective land feature of Presque Isle Peninsula. However, approximately 1.5 miles of the City's eastern shoreline are outside Presque Isle Bay and are exposed to open lake wave energies. The bluffs adjacent to this section of shoreline are undercut by wave attack, have steep slopes, are periodically devoid of vegetation and have experienced active bluff recession or have been heavily protected. If left unregulated with setbacks and improvement limitations, existing and future development in this area will be subject to property damage from bluff recession. Therefore, this portion of the City of Erie is designated as having a bluff recession hazard area and the City of Erie should be included as a regulated municipality in Chapter 85.

   The compelling public need for this proposed rulemaking is based on the six basic purposes stated in the Bluff Recession and Setback Act and Chapter 85. Those purposes are:

   *  To encourage planning and development in bluff areas that is consistent with sound land use practices.

   *  To protect people and property in bluff areas from the dangers and damages associated with the inevitable recession of bluffs.

   *  To prevent and eliminate urban and rural blight which results from the damages of bluff recession.

   *  To minimize the expenditure of public and private funds for shoreline protection and bluff stabilization structures and activities.

   *  To authorize a comprehensive and coordinated program to regulate development activities through the use of setback ordinances in Bluff Recession Hazard Areas to preserve and restore the natural ecological systems, and to prevent continuing destruction of property and structures.

   *  To encourage local administration and management of bluffs consistent with the duty of the Commonwealth as trustee of natural resources, and the constitutional right of the people to the preservation of the natural, scenic, aesthetic and historic values of the environment.

E.  Summary of Regulatory Requirements

   A brief description of the proposed amendments follows:

Subchapter A. General Provisions

   Section 85.1 (relating to definitions) is proposed to be amended by adding the ''Board'' as a definitional term and clarifying the definitions for ''Act,'' ''Person,'' ''Plat'' and ''Structure.''

Subchapter B. Procedure for Designation of Areas With Bluff Recession Hazards.

   This subchapter is proposed to be amended by making minor editorial changes to §§ 85.11 and 85.13 (relating to general requirements; and Department notification to municipalities) and adding clarifying language to §§ 85.14 and 85.15 (relating to municipal response on designation; and Department notification to the Environmental Quality Board).

Subchapter C. Bluff Recession Hazard Areas Setback Requirements

   This subchapter is proposed to be amended by making changes to § 85.22(c) (relating to methods of determining minimum bluff setback distances) to change the minimum allowable bluff setback distance from 50 feet to 25 feet.

   This subchapter is proposed to be amended by making minor editorial changes to § 85.23 (relating to modification of minimum bluff setback distances) and to move § 85.22(b) to § 85.25(b) for clarity.

   In addition, § 85.26 (relating to designated municipalities and minimum bluff setback distances for identified categories of structures) is proposed to be amended by making minor editorial changes along with an important clarification in subsection (c) that this table sets minimum setback requirements and adds the City of Erie as a designated municipality.

   Following formal approval and designation of this additional bluff recession hazard area, the City of Erie will be required to adopt and implement a bluff setback ordinance within 6 months. The existing Chapter 85 has been in existence since 1980. Eight municipalities were originally identified as having bluff recession hazard areas. The proposed rulemaking adds one additional municipality to this list, based on the results of a recently completed study of bluff recession hazards along Pennsylvania's Lake Erie shoreline.

   The City of Erie has permitting, technical and administrative capabilities and no additional staff or support capabilities are anticipated to be needed to administer a bluff setback ordinance. The cost of administering the ordinance is reflected by the number of building permits issued for structures in the bluff recession hazard area. Since the City of Erie already has a building permit system in place, administering the bluff setback ordinance should require only minimal costs and no additional resources.

   Subsections § 85.26(d) and (e) are proposed to be added to clarify that municipalities may adopt more restrictive bluff setback distances and that the Uniform Construction Code (see 34 Pa. Code § 401.1) or local zoning regulations may also apply.

Subchapter D. Municipal Bluff Setback Ordinance and Regulations

   This subchapter is proposed to be amended by making minor editorial changes to §§ 85.32, 85.35 and 85.37 (relating to time limit for municipal adoption of bluff setback ordinance and regulations; municipal adoption of more restrictive ordinance; and contents of ordinance and regulations submitted by municipality). A cross reference to the Solid Waste Management Act (35 P.S. §§ 6018.101--6018.1003) and regulations is proposed to be added to § 85.37(4)(i)(B) and a clarification made to § 85.37(7) regarding notice to applicants.

   A new requirement is proposed in § 85.37(7)(i) and (ii) for every deed or plat within the bluff recession hazard area to include an appropriate bluff recession hazard area notice.

Subchapter E. Department Oversight of Municipal Compliance

   This subchapter is proposed to be amended by deleting § 85.41 (relating to general requirements), deleting the requirement for notification by certified letter in § 85.42(b) and making minor editorial changes to § 85.42(d).

Subchapter F. Grants and Reimbursements to Municipalities

   This subchapter is proposed to be amended by making minor editorial changes to § 85.52 (relating to limitation of grants and reimbursements) and replacing the specific list of records and supporting documentation required in § 85.55 (relating to records and audits) with the requirement that the records be maintained in accordance with generally accepted accounting practices.

   As required by statute, the Department reimburses affected municipalities up to 75% of the costs incurred to develop an ordinance, and up to 50% of the cost of ongoing administration. Currently, the grant amount budgeted and spent by the Department for ongoing administrative costs for the eight municipalities is $4,400 annually. For various reasons, one being the addition of another municipality (City of Erie) to the municipalities needing reimbursement for administrative costs, the Department has increased the budgeted amount for this activity in future grant years.

   The Department provides free annual training to affected municipalities to keep them up to date with new methods of monitoring development activities in bluff recession hazard areas. Furthermore, this proposed rule making would result in only minimal changes to the primary technical guidance document used to help the municipalities with daily implementation of their bluff setback ordinances. This change would be to include the City of Erie as one of the regulated municipalities.

Subchapter G. Appeals

   This subchapter is proposed to be amended by making a minor editorial change to § 85.61(b)(1) (relating to appeals).

   The Department is seeking public comment on the possible future inclusion of a section in Chapter 85 on proper vegetation management. This would be a regulatory section that would require coastal property owners to adhere to certain vegetation management practices to ensure bluff stability on their properties and adjoining properties. Poor vegetation management practices (indiscriminant felling of mature trees or property wide topping and thinning mature tree canopies) at the bluff crest or on the bluff face can have devastating effects on bluff stability that usually initiate large scale bluff recession that can result in property loss and/or structural damage.

F.  Benefits

   The benefit of this proposed rulemaking is the protection of the health and safety of coastal property owners, the prevention of the destruction of property and structures in designated bluff recession hazard areas, and the prevention of the introduction of debris and hazardous materials into the coastal environment. Federal funds will be available through the Coastal Resources Management (CRM) Program to help develop and implement any necessary ordinance. Future monitoring, training and technical assistance will also be provided by the CRM Program.

   Also of interest to the public is the availability of Technical Advisory Services (TAS) provided by the Department to coastal property owners along the Lake Erie shoreline. The TAS is a free service implemented by the staff of the CRM Program and has been in existence for 25 years. The TAS provides technical advice to existing and prospective shoreline and bluff property owners on the causes and effects of shoreline erosion and of progressive bluff recession. This service is highly successful and is credited with saving millions of dollars in property values. The TAS also provides information regarding best management practices for the proper management of bluff and shoreline properties along Lake Erie. Under a Direct Action Policy in the Federal and State approved and jointly funded CRM Program, '' . . . the Program shall provide technical assistance and advice concerning the design of structural and non structural methods of shore protection and bluff stabilization.''

G.  Pollution Prevention

   The Federal Pollution Prevention Act of 1990 established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials, and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This proposed rulemaking promotes a multimedia pollution prevention approach for the proposed regulated area of the City of Erie. The construction setbacks in Chapter 85 for new construction and improvements to existing structures within the bluff recession hazard areas will promote safe and sensible practices by placing new construction outside and away from bluff recession hazard areas, making all new construction moveable and minimizing improvements to existing structures in bluff recession hazard areas. The proposed setbacks for new construction (from the bluff crest) are 25 feet for residential, 25 feet for commercial and 25 feet for industrial. Regulating new construction to keep it out of and away from the bluff recession hazard area will in effect prevent pollution of Lake Erie waters by avoiding collapse of structures into the waters of Lake Erie, caused by erosion and progressive bluff recession.

H.  Sunset Review

   This regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 13, 2008, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review of these issues by the Department, the General Assembly and the Governor prior to final publication of the rulemakings.

J.  Public Comment

   Written comments. Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by October 22, 2008. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by October 22, 2008. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final-form rulemaking will be considered.

   Electronic comments. Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board by October 22, 2008. A subject heading of the proposal and a return name and address must be included in each transmission.

K.  Public Hearings

   The Board will hold one public hearing for the purpose of accepting comments on this proposal. The hearing will be held as follows:

September 23, 2008	Tom Ridge Environmental Center
10 a.m.	301 Peninsula Drive
	Suite 1 Room 108 Erie, PA 16505-2042

   Persons wishing to present testimony at the hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.

   Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact the Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.

JOSEPH R. POWERS,   
Acting Chairperson

   Fiscal Note: 7-704. (1) General Fund:

		Environmental Protection Operations	Environmental Program Management
(2)	Implementing Year 2008-09 is	$1,125	$375
(3)	1st Succeeding Year 2009-10 is	$750	$250
	2nd Succeeding Year 2010-11 is	$750	$250
	3rd Succeeding Year 2011-12 is	$750	$250
	4th Succeeding Year 2012-13 is	$750	$250
	5th Succeeding Year 2013-14 is	$750	$250
(4)	2007-08 Program--	$98,582,000	$39,909,000
	2006-07 Program--	$89,847,000	$36,868,000
	2005-06 Program--	$87,897,000	$37,049,000
(7)	Environmental Protection Operations and Environmental Program Management; (8) recommends adoption. Revenue is expected to cover increased costs beginning in 2009-2010.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARMTENT OF ENVIRONMENTAL PROTECTION

CHAPTER 85. BLUFF RECESSION AND SETBACK

Subchapter A. GENERAL PROVISIONS

§ 85.1. Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--[The act of May 13, 1980 (No. 1980-48)] Bluff Recession and Setback Act (32 P. S. §§ 5201--5215).

*      *      *      *      *

   [Persons--] Person

   (i)  An individual, partnership, public or private association or corporation, firm, trust estate, municipality, governmental unit, public utility or other legal entity which is recognized by law as the subject of rights and duties.

   (ii)  [When] Whenever used in [a] any section prescribing or imposing a penalty, the term [shall include] includes the members of a partnership; the officers, members, servants and agents of an association, officers, agents and servants of a corporation but [shall exclude] excludes any department, board, bureau or agency of the Commonwealth.

   Plat--A map, drawing or print accurately drawn to scale showing the proposed or existing [the Commonwealth] location of all structures.

*      *      *      *      *

§ 85.2. Scope.

   This chapter is adopted in accordance with the duties relating to bluff recession placed on the Department by the act, and [they shall apply] applies to all municipalities designated as having bluff recession hazard areas and to all persons constructing, installing or engaging in substantial improvement to any structure or utility facility within bluff recession hazard areas.

Subchapter B. PROCEDURE FOR DESIGNATION OF AREAS WITH BLUFF RECESSION HAZARDS

§ 85.11. General requirements.

   The Department is authorized [by] under section 4 of the act (32 P. S. § 5204) to identify areas in this Commonwealth [which have] that contain bluff recession hazard areas. Prior to formal designation by the [Environmental Quality Board] EQB, the tentatively identified municipality will be invited to submit comments to the Department concerning the designation.

§ 85.13. Department notification to municipalities.

   Following completion of the study, the Department will, by certified letter, notify the governing body of the municipality that it has been tentatively designated as possessing a bluff recession hazard area. The letter [shall] will contain [all of] the following information:

*      *      *      *      *

   (6)  Specification of [the] a 60-day time [limits] limit for comment.

   (7)  Notice that [a] one or more public [hearing] hearings will be held concerning the designation of bluff recession hazard areas by the [Environmental Quality Board] EQB prior to formal designation.

§ 85.14. Municipal response on designation.

   (a)  Each municipality tentatively identified by the Department as possessing a bluff recession hazard area will be invited to submit written comments concerning the tentative designation to the Department within 60 days of receiving the notification letter of the Department.

   (b)  If a municipality disagrees with the letter of the Department tentatively designating it as possessing a bluff recession hazard area and the required setback distances, the appropriate representatives of the Department will contact and offer to meet with representatives of the municipality to review, discuss and attempt to resolve the differences. This meeting will be scheduled within 30 days from the date the letter is received from the municipality.

   (c)  If a municipality does not comment within the time prescribed in § 85.13(6) (relating to Department notification to municipalities), it will be presumed that the municipality is in agreement with the designation and the required setback distance.

§ 85.15. Department notification to the [Environmental Quality Board] EQB.

   (a)  [When the Department receives comments from a tentatively designated municipality, it] Following the close of the municipal comment period on the tentative designation, the Department will prepare and transmit to the [Environmental Quality Board a request for] EQB a proposed rulemaking proposing formal designation of the bluff recession hazard area of the municipality and the establishment of bluff setback distances in the bluff recession hazard area. The [request] proposed rulemaking will contain [, at a minimum, all of] the following:

*      *      *      *      *

   (3)  [All comments] Comments received from the affected municipality.

*      *      *      *      *

   (b)  [In the event a municipality disagrees with the letter of the Department tentatively designating it as possessing a bluff recession area and the required setback distances and has not submitted comments acceptable to the Department, the appropriate representatives of the Department will contact and offer to meet with representatives of the municipality to review, discuss, and attempt to resolve the differences. This meeting will be held within 30 days from the date of the letter received from the municipality.

   (c)  In the event a municipality fails to comment within the time prescribed in § 85.13(6) (relating to Department notification to municipalities), the Department will assume the municipality is in agreement and will note that municipality provided no comment concerning the designation and the required setback distance within the allotted time.

   (d)]  Following transmittal of the [request] proposed rulemaking by the Department to the [Environmental Quality Board] EQB, the [Environmental Quality Board] EQB will give public notice and hold one or more public hearings on the [request] proposed rulemaking to formally designate areas within municipalities as bluff recession hazard areas.

   [(e)] (c)  Following public hearings, the Department will consider the comments received [at the public hearing] and make appropriate revisions to the [request and resubmit it] proposed rulemaking. The Department will then submit the proposed rulemaking to the [Environmental Quality Board] EQB for final action. Following [an affirmative action by the Environmental Quality Board] adoption by the EQB and publication of the formal designation, the Department will notify the municipality that it must within 6 months comply with the act and this chapter.

Subchapter C. BLUFF RECESSION HAZARD AREAS SETBACK REQUIREMENTS

§ 85.22. Methods of determining minimum bluff setback distances.

   (a)  The Department will develop minimum bluff setback distances for each municipality tentatively designated as having a bluff recession hazard area by applying the following formula:

Rate of Bluff	×	Appropriate life	=	Minimum Bluff
Recession		span of structure		Setback Distance

   [(b)  When the Department receives the completed application, it will review the application based on the criteria for a variance pursuant to § 85.37(4) (relating to contents of ordinance and regulations submitted by municipality) within 45 days, and send a certified letter to the applicant approving or disapproving the variance. A copy of this letter will be sent to the municipality for its permanent record. If the Department does not take action regarding the application within 45 days, the application will be deemed approved.]

   (1)  The rate of bluff recession is the average annual rate of recession for all the municipality's [bluff] bluffs as calculated by the Department.

   (2)  The appropriate life span of structure is 50 years for residential homes, 75 years for commercial structures, and 100 years for light and heavy industrial structures.

   [(c)  In no case shall the] (b) The minimum bluff setback distance may not be less than [50] 25 feet. When use of the formula identified in subsection (a) would produce a minimum bluff setback distance of less than [50] 25 feet, the formula [shall] does not apply and [50] 25 feet shall be the minimum bluff setback distance.

§ 85.23. Modification of minimum bluff setback distances.

   A minimum bluff setback distance for a municipality may be modified upon presentation of formal studies acceptable to the Department documenting annual recession rates at variance with the recession rate data of the Department. Upon Department review and acceptance of the data as accurate and compatible with the objectives of the act, a new minimum bluff setback distance will be calculated. The Department will request the [Environmental Quality Board] EQB to amend the designation in accordance with this subchapter concerning the minimum bluff setback distances.

§ 85.25. Variances granted by the Department.

   (a)  During the period between [Environmental Quality Board] EQB designation of a bluff recession hazard area and the approval of the Department of a bluff setback ordinance and regulations of a municipality, the Department may grant variances to the bluff setback requirements for all construction in a designated bluff recession hazard area. A property owner shall file an application with the Department for a variance to allow construction on his property.

   (b)  When the Department receives the completed application for a variance, it will review the application based on the criteria for a variance under § 85.37(4) (relating to contents of ordinance and regulations submitted by municipality) within 45 days, and send a certified letter to the applicant approving or disapproving the variance. A copy of this letter will be sent to the municipality for its permanent record. If the Department does not take action regarding the application within 45 days of receipt of this application, the application will be deemed approved.

§ 85.26. Designated municipalities and minimum bluff setback distances for identified categories of structures.

   (a)  Under § 85.15 (relating to Department notification to the [Quality Board] EQB), the municipalities identified in subsection (c) have been designated as possessing a bluff recession hazard area.

*      *      *      *      *

   (c)  [Designated municipalities and setback distances in feet.] Regardless of any other provision of law or ordinance, the minimum setback distances in the named municipalities must be in accordance with the following table:

Municipality (by geographic location)	Residential	Commercial	Light and Heavy Industrial
Springfield Township Erie County	100`	150`	200`
Girard Township Erie County	60`	90`	120`
Lake City Borough Erie County	60`	90`	120`
Fairview Township Erie County	50`	75`	100`
Millcreek Township Erie County	50`	75`	100`
[Fairview Township Erie County]	[50`]	[75`]	[100`]
Erie City Erie County	25`	25`	25`
Lawrence Park Township Erie County	50`	75`	100`
Harborcreek Township Erie County	50`	75`	100`
North East Township Erie County	50`	75`	100`

   (d)  The setback distances listed in subsection (c) are minimum distances. The actual distance of the area subject to bluff recession may be greater in certain areas. Nothing in this chapter guarantees that bluff recession will not occur beyond the specified setback distances during the usable life span of a structure originally installed or constructed in accordance with the setback requirements at the time of installation or construction. Because of variations in the bluff recession rates, municipalities may adopt more restrictive ordinances in accordance with § 85.35 (relating to municipal adoption of more restrictive ordinance).

   (e)  If the setback distance for the placement of structures regulated under another law or ordinance, such as the Uniform Construction Code (see 34 Pa. Code § 4401.1) or zoning regulation, is greater than that specified in subsection (c), the greater setback distance shall apply within the bluff recession hazard area.

Subchapter D. MUNICIPAL BLUFF SETBACK ORDINANCE AND REGULATIONS

§ 85.32. Time limit for municipal adoption of bluff setback ordinance and regulations.

   Each municipality, following publication of the formal [Quality Board] EQB designation of a bluff recession hazard area, shall within 6 months of receiving notification amend or adopt and implement a bluff setback ordinance and regulations which are consistent with the requirements of § 85.37 (relating to contents of ordinance and regulations submitted by municipality).

§ 85.35. Municipal adoption of more restrictive ordinance.

   No provision of the act shall be construed [as in any way limiting] to limit the power of any municipality to adopt more restrictive ordinances, codes, or regulations governing construction and development in bluff recession hazard areas that are established under §§ 85.22--[85.24] 85.26 [(relating to bluff recession hazard areas setback requirements)].

§ 85.37. Contents of ordinance and regulations submitted by municipality.

   The ordinance and regulations submitted by a municipality to the Department shall include at a minimum the following components:

*      *      *      *      *

   (3)  A municipality shall provide a procedure, as a part of the ordinance and regulations, that enables monitoring of substantial improvements to structures bisected by or within the bluff setback distance. The procedure must ascertain the market value of the [property] structure prior to the first improvement and document subsequent improvements to the structure to ensure that they do not exceed 50% of the market value for a consecutive 5-year period. At the request of the municipality, the Department will provide assistance to the municipality in developing this procedure.

   (4)  The municipality shall provide a variance to its bluff setback ordinance and regulations only in the following cases:

   (i)  When a parcel established prior to a bluff recession hazard area [designated] designation does not have adequate depth considering the minimum bluff setback requirements to provide for any reasonable use of the land, a variance may be applied for. The variance shall be authorized when the following standards and criteria are met:

   (A)  The structure and all associated structures and [utilities] utility facilities shall be located on the property as far landward of the bluff line as allowed by other municipal ordinances.

   (B)  The structure shall be designed and constructed to be movable. Construction activities [shall] must meet the minimum erosion and sediment control practices established [by] under Chapter 102 (relating to erosion and sediment control) and reflect guidance contained in municipal stormwater ordinances or county watershed stormwater management plans. [All construction materials, including foundations, shall be removed and disposed of in accordance with Chapter 75 (Reserved) as part of the moving operation.] As part of the moving operation, all construction materials, including foundations, shall be removed and disposed of in accordance with the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003) and the regulations promulgated thereunder. Access to and from the structure shall be of sufficient width and acceptable grade to allow for moving of the structure.

*      *      *      *      *

   (7)  [The municipality has alerted and shall continue to alert permit applicants, when permits are granted, that the bluff setback requirements are at best a minimum distance and, because of variations in local bluff recession rates, cannot guarantee that a structure located in a bluff recession hazard area will not be endangered by bluff recession within its useful life span.] When an applicant submits an application for a permit for any construction or development activities in areas subject to bluff recession hazards, the municipality shall alert the applicant of the minimum bluff setback prescribed in § 85.26(c) (relating to designated municipalities and minimum bluff setback distances for identified categories of structures).

   (i)  A deed for the transfer of property within designated bluff recession hazard areas shall include appropriate notice that it is within a bluff recession hazard area.

   (ii)  After ______ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), a plat approved for subdivision or land development under a municipal ordinance for areas within the bluff recession hazard area must include appropriate notice by the municipal zoning administrator.

Subchapter E. DEPARTMENT OVERSIGHT OF MUNICIPAL COMPLIANCE

§ 85.41. [General requirements] (Reserved).

   [As required by section 7 of the act (32 P. S. § 5207) the Department will adopt procedures and regulations for the review and approval of municipal ordinance and regulations.]

§ 85.42. Department review and approval of a municipality setback ordinance and regulations.

*      *      *      *      *

   (b)  The Department will, upon ascertaining that the proposed bluff setback ordinance and regulations meet the minimum requirements [set forth] in § 85.37 (relating to contents of ordinance and regulations submitted by municipality), notify the municipality [by certified letter] of the approval of the ordinance and regulations.

*      *      *      *      *

   (d)  [Should] If the Department, during the review of the proposed ordinance and regulations, [find] finds that the ordinance and regulations do not meet the minimum requirements of this chapter, the Department will disapprove the ordinance and regulations and will notify the municipality. The letter will contain the reasons for disapproval and suggestions for correcting the problem. Upon receipt of this letter, the municipality shall have 30 days to correct the problem and resubmit the proposed ordinance and regulations. If the municipality disagrees with the findings of the Department, the municipality may appeal the decision of the Department under the procedures in [this chapter] § 85.61 (relating to appeals).

*      *      *      *      *

Subchapter F. GRANTS AND REIMBURSEMENTS TO MUNICIPALITIES

§  85.52. Limitation of grants and reimbursements.

   Grants [shall] will be available from the Department to municipalities to reimburse them for allowable costs incurred in complying with [the requirements of] the act. Grants [shall] will be limited to:

*      *      *      *      *

   (2)  Fifty percent of the allowable costs for the ongoing administration of an ordinance incurred by a municipality. Allowable costs for administration of bluff setback ordinance [shall] do not include those costs [which] that are offset by reasonable permit fees imposed by the municipality.

§ 85.55. Records and audits.

   (a)  Municipalities shall maintain books, records, documents, correspondence and other evidence pertaining to the costs and expenses incurred under § 85.52 (relating to limitation of grants and reimbursements) to the extent and in [such] detail [as] that will properly reflect all costs, direct and indirect, of labor, materials, equipment, supplies and services, and other costs and expenses of whatever nature for which funding has been provided under the grant. [Such] The records shall be maintained in accordance with generally accepted accounting principles. [A detailed explanation of the accounting procedures and types of records are contained in the ''Manual of Accounting and Related Financial Procedures for Pennsylvania Municipalities,'' published and distributed by the Department of Community Affairs, Forum Building, Harrisburg, Pennsylvania 17120.]

   (b)  A municipality shall maintain accounting records and supporting documentation which identify all revenue and costs from the effective date to expiration date of the grant. [As a minimum, the following books of account shall be used:] The accounting records shall be maintained in accordance with generally accepted accounting practices.

   [(1)  Cash receipts journal.

   (2)  Cash disbursement journal.

   (3)  Payroll journal.

   (4)  General journal.

   (c)  In the event a municipality records transactions by the accrual method of accounting, additional records shall be required.

   (d)  The following documentation should be retained in file:

   (1)  Copies of revenue documents.

   (2)  Original vendor invoices.

   (3)  Payroll records.

   (4)  Cancelled checks.

   (5)  Worksheets used to prepare grant reports and other related grant information. All records should be retained for a period of three years from the grant expiration date or until all pending matters are resolved.]

Subchapter G. APPEALS

§ 85.61. Appeals.

*      *      *      *      *

   (b)  An appeal of an action under the act [shall] does not act as a supersedeas. A supersedeas may be granted by the [Environmental Hearing Board] EQB upon a showing by the petitioner that:

   (1)  [that irreparable] Irreparable harm to the petitioner or other interested parties will result if supersedeas is denied.

   (2)  [That there] There is a likelihood of the success of the petitioner on the merits.

   (3)  [That the] The grant of a supersedeas will not result in irreparable harm to [the] this Commonwealth.

[Pa.B. Doc. No. 08-1523. Filed for public inspection August 22, 2008, 9:00 a.m.]

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