RULES AND REGULATIONS
Title 4--ADMINISTRATION
PENNSYLVANIA EMERGENCY MANAGEMENT AGENCY
[4 PA. CODE CH. 118]
Reductions of Major Water Uses
[31 Pa.B. 3520] The Pennsylvania Emergency Management Agency (PEMA) under the authority contained in section 7313 of the Emergency Management Services Code, 35 Pa.C.S. § 7313 (relating to power to adopt regulations) amends Chapters 118, 119, and 120 (relating to reductions of major water use in a Commonwealth Drought Emergency Area; prohibition of nonessential water uses in a Commonwealth Drought Emergency Area; and local water rationing plans). The amendments to Chapter 118 will make them applicable Statewide, rather than just in the Delaware River Basin. The amendments to Chapter 119 include changes to the definition section and to the list of exceptions to the nonessential water use bans. The provisions of Chapter 119a are eliminated and incorporated into Chapter 119. The amendments to Chapter 120 are primarily procedural. Overall, the amendments will move the Commonwealth toward full-time drought preparedness and management. Implementation of actual emergency provisions of the regulations, including the nonessential water use bans, will only be effective during a declared drought emergency and within the declared emergency area. PEMA adopts these final-form regulations to read as set forth in Annex A. These final-form regulations were previously published as proposed rulemaking at 30 Pa.B. 5735 (November 4, 2000).
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Background and Purpose
The drought experience of 1998-99 offered insight into many ways in which the drought emergency regulations found in Chapters 118--120 have become outdated with the passage of nearly 20 years since they were initially written and nearly 10 years since they were last revised. Technology and social trends have advanced in ways that earlier drafters of the regulations could not have envisioned. As an example, irrigation practices have advanced with new technologies, and it may now be more efficient to irrigate in many cases with automated irrigation systems than to water with a hand-held hose.
Overall, the Commonwealth's experience has also shown the potential for more efficient ways to manage water use during drought emergencies. Experience has shown, for example, that a permanent Commonwealth Drought Coordinator, with authority to approve drought plans prior to a drought, rather than during an emergency, would enable PEMA to focus more closely on drought emergency operations, and at the same time would provide for more meaningful reductions in and more efficient use of available water resources.
The amendments will move the Commonwealth toward full-time drought preparedness and management. Implementation of actual emergency provisions of the regulations, including the nonessential water use bans, will only be effective during a declared drought emergency and within the declared emergency area, as is presently the case. However, the revised regulations will be effective at all times, rather than only during declared drought emergencies. They will also be effective Statewide, rather than only in the declared emergency area. This will enable the designation of a permanent Commonwealth Drought Coordinator within the Department of Environmental Protection (DEP). The revised regulations will authorize the Commonwealth Drought Coordinator to receive and approve drought management plans on an ongoing basis from water users across the Commonwealth, thus allowing more opportunity to provide education and technical assistance to water users to guide them in the development of their individual drought plans. It will also allow more time for the Commonwealth Drought Coordinator and DEP staff to adequately review plans and to approve them prior to an actual emergency. This is in concert with new provisions in the regulations that require certain classes of water users, such as golf courses, to operate according to an approved water use plan during an emergency.
Drafts of the proposed rulemaking were made available at informational meetings held during April 2000 in Harrisburg, Bethlehem and Pittsburgh. Notices of the meetings and availability of the draft regulations also were published in newspapers of general circulation across the Commonwealth and in the Pennsylvania Bulletin with a public comment period that ended April 30, 2000. The public comments received were taken into consideration in the drafting of these final-form drought regulations.
C. Comments
Written comments, suggestions and changes were solicited within a 30-day period after the proposed rulemakings were published in the Pennsylvania Bulletin. Comments were received from Representative Russell H. Fairchild, the Philadelphia Suburban Water Company, Reliant Energy Company, the Pennsylvania Landscape and Nursery Association, Carpenter Specialty Alloys, Penreco and the Pennsylvania State University.
Following the close of the public comment period, PEMA received comments from the Independent Regulatory Review Commission (IRRC). The regulations contained in Annex A are responsive to the comments and suggestions received from the commentators and IRRC. For ease of reference, PEMA will address the comments in the order in which the regulatory sections appear in the three different regulatory chapters.
Chapter 118. Reductions Of Major Water Use in a Commonwealth Drought Emergency Area Section 118.1. Definitions.
Comment: The definition of ''Commonwealth Drought Coordinator'' should be consistent with the definition of the same term in §§ 119.1 and 120.1 (relating to definitions).
Response: The definition of ''Commonwealth Drought Coordinator'' has been revised to be consistent in all three sections of the chapters.
Comment: The definition of ''consumptive water use'' appears to contain a typographical error by including the word ''or'' in the definition.
Response: The word ''or'' following the word ''used'' has been deleted.
Comment: The definition of ''designated drought emergency area'' should be applied to specific water supplies impacted by a drought and not generically applied to a general region, such as a county. Some water suppliers are impacted significantly by a drought while others are not.
Response: The Governor has historically declared drought emergencies on a county-wide basis. This declaration process has worked very well over the past 20 years for the management of drought emergencies in this Commonwealth. As a result, neither PEMA nor DEP believe there is a need to change this drought declaration process.
Comment: The definition of ''public water supply agency'' references a statutory standard of ''. . . 15 service connections . . .'' but §§ 118.2 and 118.4(a)(1) relax the standard to ''50 or more connections.'' What is the basis for the relaxation? Second, the ''50 or more customer connections'' standard should be included in the definition of a public water supply agency.
Response: The definitions in Chapters 118, 119 and 120 are consistent. Because the definition needs to be consistent in all three chapters, it is essential that the Chapter 118 definition not be changed to achieve a mere internal consistency within that one chapter. Furthermore, this definition was included in the regulations at the request of the public water supply industry. The ''50 or more customer connections'' standard has been used by the DEP for the past 20 years because systems with fewer than 50 customer connections generally have operations that are not conducive to the type of drought contingency planning required by these regulations. For these reasons, no changes have been made to this definition.
Section 118.2. Purpose.
Comment: In the last sentence of this section, the phrase ''directs by directing'' appears to be incorrect.
Response: The words ''by directing'' have been deleted.
Section 118.4. Contingency plans.
Comment: Subsection (b)(6) requires a plan of action, including ''public notice.'' Examples of public notice should be included in the regulation.
Response: The subsection has been revised to read ''public notice such as newspaper, radio or television notice.''
Comment: Subsection (b)(7) references § 120.9(d). Should it reference 120.9(e)?
Response: The subsection is revised to read ''§ 120.9(e).''
Comment: A commentator disagreed with PEMA's plan to carve out generic special water rationing exemptions for the food and pharmaceutical industries.
Response: The commentator has misconstrued the intent of § 118.4(b). No exemptions are carved out in this section for the food and pharmaceutical industries. Instead, the regulations stipulate that these industries shall be considered by public water supply agencies when they prepare their drought contingency plans. Therefore, no revision is needed for this subsection.
Comment: Subsection (b)(7)(i), as well as § 118.6(a)(1) refer to the ''relative impact of water use reductions.'' How is this going to be measured?
Response: The word ''relative'' has been deleted from this subsection because no measurement of the impact of water use reductions will be required.
Comment: Subsection (b)(7)(i)(C), as well as § 118.6(a)(2)(iii) use the phrase ''essential public utility services,'' which should be defined.
Response: The phrase ''essential public utility services'' has been replaced with ''delivery of electric generation services.''
Section 118.5 Contingency plans--self supplied commercial and industrial users.
Comment: Subsection (a)(1) indicates that a facility shall ''develop and adopt'' a drought contingency plan. It may be interpreted that ''adopt'' means to implement. The words ''and adopt'' should be stricken.
Response: The commentator has misinterpreted the meaning of ''adopt.'' This subsection only requires that the plan be adopted by some official corporate action before it is submitted to the Commonwealth Drought Coordinator for review. A plan that has been prepared by staff but not formally adopted by a corporation's managers is not an officially approved and recognized planning document of the corporation.
Comment: In subsection (a)(3), the phrase ''a reasonable time'' is used. The regulation should specify a time frame or detail the criteria upon which a ''reasonable time'' will be determined.
Response: The language has been changed to ''within the time frame specified in the request.''
Comment: Add a paragraph to § 118.5 that allows the Commonwealth Drought Coordinator to allow continued water withdrawal by those water users that directly impact public health.
Response: Section 118.5 merely requires self-supplied commercial and industrial water users to submit a drought contingency plan to the Commonwealth Drought Coordinator when their water use exceeds 500,000 gallons per day. Because every drought contingency plan must identify actions that a facility can take to achieve a phased reduction of its normal water withdrawal ranging from 5% to 50%, the Commonwealth Drought Coordinator can certainly consider such factors as the facility's operational impact (such as, electric generation) upon the public's health and welfare in determining the actual percentage of water use reduction that the facility would have to implement during a drought emergency. Therefore, because the plans provide the Commonwealth Drought Coordinator with a great deal of flexibility in determining the degree of water use reductions, there is no need to identify or establish special exceptions for any particular type of facility in the regulations.
Comment: Section 118.5 should not require contingency plans if a facility can demonstrate that it returns all or a vast majority of the water it withdraws to the water body from which the water was withdrawn.
Response: The purpose of the drought contingency plans is to enable industrial and commercial operations to anticipate measures they could take if they were required to implement water use reductions. Those reductions could be forced upon a facility by its particular water resource conditions, absent any action taken by the Commonwealth Drought Coordinator. For this reason, all self-supplied commercial and industrial water users need to develop a drought contingency plan that can be implemented in response to a wide range of drought conditions or factors. A facility cannot be automatically exempted from the requirements of this subsection simply because it does not consume all of the water that it takes from the environment. Instead, a facility can petition for either a partial or total exemption from this requirement under § 118.8 (relating to procedures for exemptions or variance from water use reductions by self-supplied industrial or commercial water users).
Comment: Water use reduction plans that are developed by businesses should include the ability to use site-specific hydrogeological data to determine if rationing is necessary.
Response: The regulations clearly permit an industrial water user or business to use its unique hydrogeological conditions at the site of the facility in developing and implementing its drought contingency plan.
Section 118.6. Implementation of reductions by self-supplied industrial and commercial water users.
Comment: This section contains the only provision to consider public health and safety and essential public utility services. It may be more efficient to consider those factors when crafting the drought contingency plans, not when implementing them. Even thinking about a 50% reduction in withdrawals by electric generating facilities is impractical and should not be an issue before the Commonwealth Drought Coordinator during an emergency.
Response: The purpose of the plans is to enable industrial and commercial operations to anticipate measures they could take if they were required to implement reductions. Those reductions could be forced upon them by water resource conditions, absent any action by the Commonwealth Drought Coordinator. The Commonwealth Drought Coordinator will only be making decisions about industrial or commercial reductions after drought conditions have become so extreme as to warrant mandatory water use reductions. Only at the time of the actual drought emergency will the Commonwealth Drought Coordinator be able to consider such factors as the public health and safety in determining the various levels of reductions and the types of industry and commerce to be impacted by his decision. For this reason, electric generating facilities need to develop drought contingency plans in the same manner as other facilities.
Comment: The Commonwealth Drought Coordinator should consider a company's water recycling efforts when making a water rationing decision concerning that company.
Response: Subsection (a)(2) does this.
Section 118.7. Penalties and enforcement.
Comment: IRRC recommended that this section be moved to the end of the chapter.
Response: This section has been moved to the end of the chapter.
Section 118.8. Procedure for exemptions or variances from water use reductions by self-supplied industrial or commercial water users.
Comment: Subsection (c)(3) uses the phrase ''a reasonable time,'' which should be specified or the phrase should be deleted.
Response: The phrase has been deleted.
Comment: Subsection (c)(3) refers to ''other appropriate Commonwealth agencies.'' Those agencies should be specified in the regulations.
Response: We disagree. The appropriate Commonwealth agency or agencies to be consulted will depend upon the circumstances or nature of the water use reductions. It is not appropriate to predetermine which Commonwealth agencies may need to be consulted in the decisionmaking process. Those decisions must be made at the time of the actual drought emergency.
Comment: Subsection (c)(4) uses the phrase ''when possible.'' What circumstances would prevent the Commonwealth Drought Coordinator from meeting the 7- or 1-day time frames specified?
Response: It is not possible to anticipate all such circumstances. However, circumstances beyond the control of the Commonwealth Drought Coordinator such as illness or hospitalization, unavailability of staff support, telecommunications failures or other types of administrative problems could impact upon the 7- or 1-day time frames.
Comment: Subsection (c)(7) states that PEMA will provide the applicant with an opportunity for a hearing and may appoint an administrative law judge of the Pennsylvania Public Utility Commission (PUC) as hearing examiner. Within what time frame will the hearing be provided, and under what circumstances will PEMA appoint a PUC administrative law judge?
Response: An appeal hearing will be held not later than 7 business days after PEMA has received the appeal request from the water user. It is anticipated that PUC administrative law judges will be used for all of the appeal hearings.
Comment: Subsection (c)(9) should specify the time frame within which PEMA will issue a final decision on the appeal.
Response: PEMA will notify the applicant of its final decision within 2 business days after it has received a written recommendation from the hearing examiner (PUC administrative law judge).
Section 118.9. County drought management task force.
Comment: The right bracket is missing at the end of the deleted text in this section.
Response: This was a typographical error in the proposed rulemaking.
Comment: Subsection (a)(2) could be interpreted to require all officials in each county to serve on their county task forces. This should be clarified.
Response: A new sentence has been added to the subsection which states that each county may determine the number and composition of representatives from the various identified groups that will sit on the county task force.
Comment: Subsection (a)(3) should specify the required time frames for submission of the county task force reports to the Commonwealth Drought Coordinator.
Response: A new sentence has been added to the subsection which states that the county commissioners shall submit a report either monthly or within a shorter time frame as determined by the Commonwealth Drought Coordinator.
Chapter 119. Prohibition Of Nonessential Water Uses in a Commonwealth Drought Emergency Area. Section 119.1 Definitions.
Comment: The definition of ''Commonwealth Drought Coordinator'' should be consistent with the definition of the same term in §§ 118.1 and 120.1.
Response: The definition of ''Commonwealth Drought Coordinator'' has been revised to be consistent in all three sections.
Comment: Under the definition of ''athletic field,'' what does the term ''racing'' refer to?
Response: Any type of racing such as automobile or horse racing.
Comment: A definition of ''professional landscaper'' should be added to this section.
Response: We do not believe that these regulations provide the proper authority for PEMA to establish a professional status for landscapers. As a result, PEMA will not attempt to regulate which persons or businesses may engage in landscaping activities in this Commonwealth.
Section 119.4 Prohibition of nonessential water uses.
Comment: The last sentence of the opening paragraph neither narrows the nonessential water use restrictions, nor clarifies the exceptions. Therefore, the sentence should be deleted.
Response: We disagree. The sentence clarifies the fact that using water under one of the exceptions does not allow the same water to be used for consequential uses. For example, watering shrubs does not allow overspray or runoff to water any surrounding grass. Therefore, a method of watering shrubs must be used that does not result in the watering of grass as a consequence.
Comment: Paragraph (2)(iv)(F) is not related to plan approvals and should be included as a separate paragraph (2)(v), and subsequent paragraphs should be renumbered.
Response: We agree. The paragraphs have been revised as suggested.
Comment: Paragraph (3)(ii) allows the watering of landscaped areas, trees and shrubs between 5 p.m. and 9 a.m. Water bags, used to water trees, are installed and left in place for several days and would therefore not meet the time-of-day restriction. Has PEMA considered exempting the use of water bags from the time-of-day restriction?
Response: No exemption is required because water bags are an irrigation method that conforms with this paragraph. It is our understanding that water bags empty within 1 to 2 hours after being filled, so they should be filled between 5 p.m. and approximately 7 a.m. to ensure that they are applying water only during the times prescribed in the regulations.
Comment: In paragraph (4), the regulation establishes a time frame for plan approval of ''no earlier than 3 years prior to the month of use during an emergency.'' How was the 3-year time frame determined?
Response: DEP's water use managers considered the typical time frame for changing irrigation practices at golf courses and the effort required to update and obtain the Commonwealth Drought Coordinator's approval of a water use plan. Based upon these factors, the water use managers determined that 3 years was a reasonable time to insure an up-to-date plan without unduly burdening the golf course industry.
Comment: Paragraphs (2)(iv)(D) and (4)(iv) require meter records to be available to representatives of the local law enforcement authority or the Commonwealth Drought Coordinator. It is not clear who is to make the records available.
Response: These regulatory sections have been revised to state that the golf course operator must make the records available.
Comment: Paragraph (4)(vi) allows the watering of heat-sensitive grasses with a hand-held hose with an automatic-shutoff nozzle. Has PEMA considered allowing automated systems if they are timed and supervised?
Response: A primary purpose of the golf course revisions was to eliminate the use of automated systems for daytime syringing of heat-sensitive grasses. The golf course industry advised us that by allowing them to use a specified water allotment during the prescribed hours, such a practice would virtually eliminate the need for further syringing of heat-sensitive grasses.
Comment: Paragraphs (5)(i)--(iv) list exceptions to prohibitions on washing paved surfaces. The regulations should clearly state whether paved surfaces can be washed to meet a permit or other regulatory requirement.
Response: A new subsection has been added to this paragraph which states that water may be used at a minimum rate necessary to comply with a permit or other regulatory requirement.
Comment: Paragraph (7)(i) establishes the same day for citizens with an even or no street address to wash cars. Why have the even and no street addresses been combined?
Response: Because about half of the ''no street addresses'' would be ''even addresses'' if they had an address. This means that only the other half of the ''no street addresses'' will be true additions on the Wednesday car wash day. Since most of these addresses are rural addresses and are less likely to be customers of public water supply systems, there should not be any undue burden to the water supply systems resulting from this combination of even or no street addresses.
Comment: Paragraph (7)(ii) allows commercial car washes to operate. This should be limited to those car washes that recycle water.
Response: Information obtained in prior droughts revealed that most commercial car washes do recycle water. These operations involve people's livelihoods and one of the primary purposes of these regulations is to protect the welfare and livelihoods of the citizens of this Commonwealth during a drought emergency. Eliminating the exception for those car washes that do not recycle water would simply set the stage for those business owners to request water use variances because of extraordinary hardship to their livelihood. For this reason, the exception will not be limited to only those car washes that recycle water.
Comment: Paragraph (7)(vi) allows professional mobile wash businesses to wash commercial, government or other vehicles as part of normal business practices. Why should government be treated any better than the average citizen?
Response: Government vehicles require periodic washing the same as commercial and other vehicles. For this reason, the phrase ''commercial, government or other'' has been deleted from the paragraph.
Comment: Paragraph (7)(v)(B) revises the day that car dealers without a street address may wash cars so that they will be allowed to wash on the same day as dealers with an even street address. Why have they been combined?
Response: To provide equal treatment for all commercial car dealers located in the same area.
Section 119.6 Procedure for exemptions or variances from the prohibition of nonessential uses of water.
Comment: The section should clearly state that an exemption applies only until the expiration of the drought emergency and does not apply to future drought emergencies.
Response: PEMA agrees. The section has been revised to state that the water use variance or exemption will expire with the termination of the drought emergency proclamation, unless otherwise specified in the variance or exemption.
Comment: Subsection (b) does not appear to recognize large water supply systems or those with many different sources. Under this subsection, what criteria will be used to determine ''the ability of law enforcement agencies locally or throughout the drought emergency area to enforce these or other emergency regulations?''
Response: This subsection was added to the regulations with large water systems in mind because the large systems generally have adequate water sources. However, those large systems also may have service areas so expansive and disjointed that enforcement of the non-essential water use regulations may or may not apply on opposite sides of streets or from one housing development to the next. These situations make enforcement activities difficult for local law enforcement agencies. As a result, law enforcement agencies will be advised to consider the totality and continuity of the public water supply agency's service areas within municipalities or the county. PEMA, DEP and the county emergency management agencies will coordinate law enforcement activities through the operation of the county drought task forces.
Comment: Under subsection (c), what factors will PEMA consider to determine ''other personal or economic loss which is substantially more severe than the sacrifices borne by other water users''?
Response: This is the existing language in the regulation and does not represent a change. During past droughts, the Commonwealth Drought Coordinator has considered all of the personal, business or other factors presented by the party seeking the variance or exemption. This process has worked well and neither PEMA nor DEP wants to establish any further criteria in this subsection that might hinder or adversely impact the ability of the Commonwealth Drought Coordinator to deal with the volume of variance or exemption requests received during a drought emergency.
Comment: Subsection (d)(5) states, ''When possible . . .'' the drought coordinator will provide a decision within certain time frames. What circumstances would prevent the Commonwealth Drought Coordinator from rendering a decision within these time frames?
Response: Circumstances beyond the control of the Commonwealth Drought Coordinator such as illness or hospitalization, unavailability of staff support, telecommunications failures or other types of administrative problems could impact upon the 7- or 1- day time frames.
Chapter 120. Local Water Rationing Plans Section 120.1 Definitions.
Comment: The definition of ''Commonwealth Drought Coordinator'' should be consistent with the definition of the same term in §§ 118.1 and 119.1.
Response: The definition of ''Commonwealth Drought Coordinator'' has been changed to be consistent in all three sections.
Section 120.2 Purpose.
Comment: Chapter 120 applies primarily to water supply agencies and to governing bodies of local governments. This leaves open the possibility that water suppliers and local governments may independently develop and try to implement inconsistent local water rationing plans. No local plan should be developed or implemented that is inconsistent with an approved plan developed by a water supplier.
Response: No local water rationing plan can be approved or implemented without the approval of the Commonwealth Drought Coordinator. It is the Commonwealth Drought Coordinator's responsibility to ensure that all local water rationing plans meet the same planning standards and requirements. Furthermore, a local government would only seek approval for a water rationing plan for an area that is directly served by the municipality. This review process will ensure that all local government water rationing plans are consistent with each other.
Section 120.5 Implementation of plans.
Comment: Subsection (a)(2) references two guidance documents relating to water rationing and states that public water supply agencies ''are encouraged to'' contact the DEP for assistance in developing a plan. Regulations establish binding norms of general applicability and future effect. The provisions in this paragraph are not mandates. Therefore, paragraph (2) should be deleted.
Response: PEMA disagrees. Regulations may reference guidance documents that are helpful to the regulated community. For this reason, the subsection has been revised to read, ''may contact the Department . . .'' We believe it is important to provide this source of guidance to the water users. However, we do not want to mandate that they contact the Department if they are capable of developing their plans without further guidance.
Comment: Subsection (d)(1) requires notice in ''at least one newspaper serving the area covered by the plan.'' To insure adequate coverage, the regulation should require the notice to be published in a newspaper of general circulation for the area covered by the plan. Additionally, should the notice also include where the public can review a copy of the plan or how the public can obtain a copy as required by paragraphs (3) and (4)?
Response: We agree with this comment and have revised the subsection accordingly.
Section 120.8 Service interruptions.
Comment: It may not be practical for a water supplier to operate curb stops or install flow restrictors on single user services. Are the provisions of this section intended to apply to individual service connections or to larger portions of a water system?
Response: It is generally intended to apply to ''all or part of'' the water supply service area, as stated in subsection (b)(1), although the public water supplier is authorized to implement service interruptions as it ''deems appropriate.''
Section 120.11 Enforcement by political subdivision ordinance.
Comment: Subsection (a)(1), as published in the Pennsylvania Bulletin, repeats the phrase ''plan has been.'' This typographical error should be corrected.
Response: The correction has been made.
Section 120.14 Repeal of a plan.
Comment: The title of this section references a ''repeal.'' However, the text of this section references both repeal and amendment. The title should be revised accordingly.
Response: The title to this section has been changed to read ''Repeal or amendment of a plan.''
Section 120.15 Notification of termination.
Comment: This section should require notices to be published in a newspaper ''of general circulation'' for the area covered by the plan.
Response: The suggested revision has been made.
Benefits, Costs and Compliance Benefits
These final-form regulations will benefit the public by protecting water resources during a declared drought emergency and will prevent water supply shortages by curtailing nonessential water use. The procedures will be streamlined for adoption of drought contingency plans and local water rationing plans.
The exact fiscal impact of the amendments cannot be calculated. For most affected persons or businesses, the impact will be positive in terms of reducing possible economic hardship. Paperwork will be reduced by the amendments to Chapter 119 by reducing the number of variance applications prepared by individuals, business and industry. Additionally, DEP and PEMA will not have to process as many applications.
The benefits of the amendments in conserving a natural resource are impossible to quantify. Reductions in water use, although inconvenient to many users, will serve to extend available supplies, thus insuring that water is available for public health and safety needs and economic productivity. The availability of existing supplies will be extended by reducing the daily withdrawal of water from sources, providing an opportunity for replenishment over time should there be adequate precipitation. Extending supplies also provides an opportunity for water suppliers to develop alternative sources.
Savings will generally accrue to all the regulated community, to the extent that property and employment is protected by the revisions. These savings will occur in the form of reduced damage to or loss of grass or landscape materials. The revisions have been designed to better protect property, health and employment. Jobs in the golf, landscape/nursery, mobile washing, and food processing and vending industries will be better protected. Athlete safety will be enhanced on athletic fields. Actual or estimated values for these savings, which will only accrue during an actual declared drought emergency, are not available.
Savings may likewise accrue to local governments or school districts, to the extent that they own or maintain athletic fields, golf courses and landscape/nursery materials. Health, safety and employment will be better protected for them also.
Savings will accrue to DEP through reduced time required for processing requests for variances from the nonessential water use bans. The revisions are designed to resolve most of the problems in the current regulations that lead to requests for variances. In the 1999 drought, nearly 250 variance requests were processed, requiring approximately 1 man-hour each.
Compliance Costs
In general, the revisions will not result in additional costs to the regulated community. Exceptions may include golf course and sand-based athletic field owners. In both of these cases, the revisions will require metering of irrigation water used during drought emergencies, and in the case of golf courses, metering of 5 prior years' irrigation water use will also be required. Meter installation costs for athletic fields should be less than $250. For golf courses, meter installation should be in the $700-1,500 range, depending upon the size and type of meters required. Meter reading costs for athletic fields should be minimal. For golf courses, meter reading on a daily basis by grounds keepers should not impose any significant additional costs. Automatic recorders may be installed, if desired, to avoid the need for manual daily reading.
Because the revisions are designed to make the regulations clearer, and many of the compliance problems experienced with the current regulations are being addressed in the revisions, costs to local enforcement agencies should be reduced. Local governments may experience additional costs associated with municipally-owned athletic fields or golf courses, as described above.
The primary cost to DEP will be in staff time to review and approve irrigation plans submitted by approximately 800 golf courses and 50 sand-based athletic fields. Approximately 0.5 to 2.5 hours per plan may be required for review and approval. This represents a one-time resource commitment of up to 2,000 man-hours. Semiautomation of the process may reduce this requirement significantly, perhaps to as little as 250-500 man-hours.
Compliance Assistance Plan
The DEP provides guidance, sample plans and technical assistance to public water suppliers for developing drought contingency plans, water rationing plans and water conservation plans and programs. Similar materials will be developed for industrial/commercial water users to aid them in the development of drought contingency plans.
Web-based, self-instructional application forms will be developed for submitting golf course and athletic field drought operations plans, and technical assistance will be provided as appropriate.
Paperwork Requirements
Owners of golf courses and sand-based athletic fields will be required to submit a drought operations plan for approval by the Commonwealth Drought Coordinator, prior to irrigation of the facilities within a declared drought emergency area. The final-form regulations will allow submittal and approval of those plans prior to the declaration of an emergency, at the option and advantage of the owner.
During declared drought emergencies only, owners of golf courses and sand-based athletic fields within the declared emergency area will be required to report irrigation usage to the Commonwealth Drought Coordinator, on a monthly basis. Owners of golf courses should also record usage for a 5-year period prior to a drought emergency; this information will be included in their application for approval of a drought operations plan.
Owners of public water supply systems and large self-supplied industrial or commercial water users whose sources or service areas are located within a declared emergency area may be required by the Governor or the Commonwealth Drought Coordinator to submit drought contingency plans, during the declared emergency. The regulations provide for the submittal and approval of the plans prior to an emergency, again at the option and advantage of the owner.
Sunset Review
PEMA will review these regulations on an annual basis to determine whether the regulations effectively fulfill the goals for which they were intended.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 24, 2000, a copy of the proposed rulemaking, published at 30 Pa.B. 5735 was submitted to IRRC and the Chairpersons of the Senate State Government Committee and the House Veterans Affairs and Emergency Preparedness Committee for review and comment.
In compliance with section 5(c) of the Regulatory Review Act, PEMA also provided IRRC and the Committees with copies of the comments received from the public. In preparing these final-form regulations, PEMA has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), these final-form regulations were deemed approved by the House and Senate Committees on June 20, 2001. IRRC met on June 21, 2001 and approved the amendments in accordance with section 5.1(e) of the Regulatory Review Act.
Contact Person
Questions regarding these final-form regulations may be directed to Mark Goodwin, Chief Counsel, Pennsylvania Emergency Management Agency, 2605 Interstate Drive, Harrisburg, PA 17110-9364.
Findings
PEMA finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These regulations are necessary and appropriate for the administration of 35 Pa.C.S. §§ 7101--7707 (relating to the Emergency Management Services Code) (code).
Order
PEMA, acting under the authority of the code, orders that:
(a) The regulations of PEMA, 4 Pa. Code Chapters 118--120, are amended by amending §§ 118.1--118.10, 119.1, 119.3, 119.4--119.6, 120.1--120.9, 120.11 and 120.13--120.15; and by deleting §§ 118.7, 119.7, 119a.1--119a.5 and 120.10 to read as set forth in Annex A. (Editor's Note: The Annexes for Chapters 119, 119a and 120 appear at 31 Pa.B. 3529 and 3534, respectively.)
(b) PEMA shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to legality and form as required by law.
(c) PEMA shall certify this order and Annex A and shall deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DAVID L. SMITH,
DirectorFiscal Note: Fiscal Note 30-55 remains valid for the final adoption of the subject regulations.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 31 Pa.B. 3646 (July 7, 2001).)
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