Pennsylvania Act 1936-46 (session 1) — FLOOD CONTROL LAW

Act text

Special Session No. 1 of 1936

No. 1936-46

(Act reenacted and amended Mar. 10, 1937,

P.L.43, No.18)

AN ACT

Relating to flood control; prescribing the powers and duties of the Water and Power Resources Board of the Department of Forests and Waters in relation to the creation of flood control districts, adoption of plans for flood control works and improvements, carrying into effect of such plans, assistance, aid and cooperation with public and private agencies and the Federal Government in Federal flood control works and improvements, and entering into compacts and agreements with other states for flood control works and improvements; conferring the power of eminent domain; providing for the setting off of benefits; imposing certain charges upon the Commonwealth; providing for appeals; and conferring certain powers on municipalities, counties, and townships, and the Department of Highways.

Be it enacted, &c., That

TABLE OF CONTENTS

Section 1. Definitions.

Section 2. Surveys.

Section 3. Notice and Public Hearing; Objections (Repealed).

Section 4. Official Plans; Notice.

Section 5. Proceedings Against Board; Hearings; Appeals.

Section 6. When Official Plans Effective.

Section 7. General Powers of Board; Payment of Taxes by Commonwealth.

Section 8. Board Designated as Agency to Receive Federal Moneys.

Section 9. Powers and Duties in Connection with Federal Works and Improvements.

Section 10. Contracts and Acquisition of Property.

Section 10.1. Adjustments.

Section 11. Power of Eminent Domain.

Section 12. United States Not to Be Liable; Federal Rules and Regulations.

Section 13. Contracts and Agreements With Municipalities and Persons.

Section 14. Relocation, Abandonment and Vacation of Roads, Streets and Bridges.

Section 14.1. Easements Over Highways, et. cetera, Given to Federal Government.

Section 15. Acceptance of Completed Federal Works and Improvements.

Section 16. Water Power and Supply.

Section 17. Source of Finances.

Section 18. Increase of Municipal Debt; Appropriations.

Section 19. Separate Accounts for Flood Control Districts.

Section 20. Cooperation with Other States.

Section 21. Constitutional Construction.

Section 1. Definitions.--The word "board," as used in this act, means the Water and Power Resources Board of the Department of Forests and Waters.

The word "person," as used in this act, shall include individuals, associations, partnerships, and corporations.

The word "plans," as used in this act, shall mean plans, maps, profiles, estimates of costs, descriptions of property to be taken, damaged or destroyed, and other data and descriptions prepared by the Water and Power Resources Board to establish the area and boundaries of a proposed flood control district, to locate adequate proposed flood control works, to determine the cost of the erection and construction of the same, and to determine property to be taken, damaged or destroyed by the construction of such works; and shall also be construed to include similar plans prepared by any agency of the Federal Government which, before adoption in this Commonwealth, shall have been incorporated into and made a part of any State official plan.

The word "municipality," as used in this act, shall include counties, cities, boroughs, incorporated towns, and townships.

(1 amended June 18, 1968, P.L.217, No.103)

Section 2. Surveys and Plans.--The Water and Power Resources Board shall have power on its own motion, or upon the petition of at least three municipalities, or upon the petition of at least three hundred persons, who are freeholders, in any drainage area, to make appropriate surveys and to prepare suitable plans for any proposed flood control district in such drainage area, or any part thereof, in order to control, store, preserve, and regulate the flow of rivers and streams and diminish or eliminate floods inimical to the public health and safety and destructive to public and private property and works.

Section 3. Notice and Public Hearing; Objections.--(3 repealed Mar. 10, 1937, P.L.43, No.18)

Section 4. Official Plans; Notice.--When the board has completed suitable plans, it shall adopt them as official plans and give public notice of such adoption in at least two newspapers in each county, wholly or partially within such flood control district, if so many are published therein, once a week for two consecutive weeks, which notice shall state that the official plans are on file in the office of the board. The board shall also give notice to all persons, whose property may be taken, damaged or destroyed in the completion of such plans, by registered mail to the last known post office address of the owner or reputed owner of the property. A certified copy of the completed suitable plans shall, upon their adoption, be recorded in the office of the recorder of deeds of each county, wholly or partially within a flood control district. Such recording shall be constructive notice to all owners whose property may be taken, damaged or destroyed in the completion of such plans.

(4 amended July 1, 1937, P.L.2458, No.458)

Section 5. Proceedings Against Board; Hearings; Appeals.--Any action in equity to restrain the board from proceeding with the official plans for any flood control district and the establishment of such district by any party aggrieved thereby, shall be heard forthwith by the court in which such proceedings may be instituted, and any appeal or appeals shall be heard by the Supreme Court in any district in which it may be in session, as is provided in cases of appeals from special or preliminary injunctions.

Section 6. When Official Plans Effective.--Official plans shall become effective for a flood control district, and the district shall be deemed established when the board shall have completed suitable plans and adopted them as official plans and given the notice of such adoption provided for in section four of this act.

The board may proceed with the exercise of the powers granted by this act whenever an official plan has become effective, but no contract shall be let, agreement executed, or condemnation proceeding be begun requiring expenditures exceeding the amount of moneys appropriated for flood control projects and not already encumbered.

(6 amended June 18, 1968, P.L.217, No.103)

Section 7. General Powers of Board; Payment of Taxes by Commonwealth.--(a) In order to carry into effect the official plans for any flood control district, the board shall have power to clean out, widen, alter, deepen or change the course, current or channel of any river or stream; to install a flood forecasting and warning system; to fill up any abandoned canal or water course; to construct and maintain levees, dikes, walls, revetments, dams, lakes, reservoirs, and other works and improvements deemed necessary to prevent floods and to control, preserve, and regulate the flow of rivers and streams; to construct or enlarge bridges and viaducts; to construct, relocate, and elevate public highways; to construct any of said works and improvements across, through or over any public highway, canal, railroad, right of way, or track; to remove or change the location of any fence, building, railroad, canal, or other improvement; to acquire by donation, lease, purchase or condemnation, and own or hold, in the name of the Commonwealth, real and personal property and easements and the public works erected and constructed under the authority of this act.

(b) Whenever in the exercise of its general powers the board shall construct dams, lakes and reservoirs, which can be otherwise utilized, the board may, on approval by the Governor, permit the Department of Forests and Waters to occupy and use said dams, lakes and reservoirs and any adjoining land acquired for flood control purposes as recreational areas. Any such use shall be subordinate to the primary purpose of flood control for which said lands were acquired and the waters impounded thereon.

(c) Whenever any lands or other property is acquired by the board to be used for reservoir purposes, the board for the assessment and revision of taxes or the county commissioners of the county wherein the same is located, shall, immediately after such acquisition, certify to the Auditor General the assessed valuation of such lands and other property at the time of such acquisition. After such acquisition, the taxing authority of each political subdivision within which such lands or other property is located, shall, from year to year, at the time of their annual levy of taxes, certify to the Auditor General the rate of their respective levies for the next year. Thereupon the Auditor General shall ascertain the amount of taxes which would have been collected upon the assessed valuation certified as hereinbefore provided, at the respective rates of the levies so certified. Upon the ascertainment of such amounts, the same shall be paid by the Commonwealth to the several political subdivisions, from time to time, from the General Fund.

(7 amended June 5, 1947, P.L.420, No.194)

Section 8. Board Designated as Agency to Receive Federal Moneys.--The board is authorized to receive on behalf of the Commonwealth of Pennsylvania any and all Federal moneys, grants, contributions, gratuities, and loans available or hereafter made available by the government of the United States, or any of its agencies or instrumentalities, for State flood control works and improvements under such rules and regulations, not inconsistent with the provisions of this act, as may be prescribed by law of the Congress of the United States, or any Federal agency or instrumentality; and to pay the same over to the State Treasurer, through the Department of Revenue as custodian. All such moneys shall be paid into the General Fund as an augmentation to the Appropriations for Flood Control Projects.

(8 amended June 18, 1968, P.L.217, No.103)

Section 9. Powers and Duties in Connection with Federal Works and Improvements.--In addition to the powers hereinbefore granted, the board is hereby empowered and directed, for and in behalf of the Commonwealth and its subdivisions, to aid, assist, and cooperate in the carrying out of any Federal flood control program or plans, and for such purposes shall have all of the powers conferred and shall be subject to all the limitations imposed by this act, including the approval of plans as provided in this act, with respect to the State-created flood control districts and the execution of the official plans for such districts, and all other powers consistent therewith, necessary or required, in order to enable the Commonwealth to participate in and receive the benefits of any Federal flood control program or plans in this Commonwealth, subject to all the limitations imposed by this act. It shall have power among others, to enter into and execute any and all contracts and agreements with agencies of the Federal Government, and to do and perform all acts necessary in connection therewith, and to assist and cooperate in constructing, erecting, financing, maintaining, using, and operating any Federal public flood control works and improvements, and to enter into and execute such contracts as may be deemed necessary and convenient to the exercise of the powers, rights, privileges, and functions conferred by this act. It shall have power to obligate the Commonwealth to pay a portion of the cost of such Federal flood control works and improvements, not, however, exceeding amounts of money available for such purposes.

The board is authorized and directed to conform and comply with all rules, regulations, and requirements of the Federal Government and its agencies and instrumentalities, subject to the limitations imposed by this act.

Section 10. Contracts and Acquisition of Property.--All work of any character whatever performed by the board under the authority of this act, except as hereinafter provided, in connection with any State public flood control works and improvements, involving an expenditure of more than a base amount of eighteen thousand five hundred dollars, subject to adjustment under section 10.1, shall be performed under written contract let by the board to the lowest responsible bidder after due advertisement as prescribed by the board; except, however, that the board may, with the approval of the Governor, enter into contracts or agreements, without advertisement, with any person, corporation or municipality, covering the removal or relocation of gas, water, and telephone, telegraph, electric light, and electric power lines, highways, railroads, or other facilities, and providing therein for said removal or relocation by the person, corporation or municipality owning such facility. The board may, with the approval of the Governor, acquire any necessary easements and rights-of-way and may pay all costs and damages necessary, arising from and incidental to said removal or relocation. Payment shall be made from the General Fund Appropriations for Flood Control Projects.

The board may sell, lease, or otherwise dispose of all property, real, personal or mixed, acquired under the provisions of this act, not needed by the Commonwealth for reservoir or flood control purposes, subject to the approval of the Governor. The moneys received through such sale, lease or other disposition shall accrue to the General Fund.

Every contract for the construction, reconstruction, alteration, repair, improvement or maintenance of public works shall comply with the provisions of the act of March 3, 1978 (P.L.6, No.3), known as the "Steel Products Procurement Act."

(10 amended Nov. 3, 2011, P.L.393, No.95)

Compiler's Note: Section 3 of Act 95 of 2011, which amended section 10, provided that Act 95 shall apply to contracts and purchases advertised on or after January 1 of the year following the effective date of section 3.

Section 10.1. Adjustments.--(a) Adjustments to the base amounts specified under section 10 shall be made as follows:

(1) The Department of Labor and Industry shall determine the percentage change in the Consumer Price Index for All Urban Consumers: All Items (CPI-U) for the United States City Average as published by the United States Department of Labor, Bureau of Labor Statistics, for the twelve-month period ending September 30, 2012, and for each successive twelve-month period thereafter.

(2) If the department determines that there is no positive percentage change, then no adjustment to the base amounts shall occur for the relevant time period provided for in this subsection.

(3) (i) If the department determines that there is a positive percentage change in the first year that the determination is made under paragraph (1), the positive percentage change shall be multiplied by each base amount, and the products shall be added to the base amounts, respectively, and the sums shall be preliminary adjusted amounts.

(ii) The preliminary adjusted amounts shall be rounded to the nearest one hundred dollars, to determine the final adjusted base amounts for purposes of section 10.

(4) In each successive year in which there is a positive percentage change in the CPI-U for the United States City Average, the positive percentage change shall be multiplied by the most recent preliminary adjusted amounts, and the products shall be added to the preliminary adjusted amount of the prior year to calculate the preliminary adjusted amounts for the current year. The sums thereof shall be rounded to the nearest one hundred dollars to determine the new final adjusted base amounts for purposes of section 10.

(5) The determinations and adjustments required under this subsection shall be made in the period between October 1 and November 15 of the year following the effective date of this subsection and annually between October 1 and November 15 of each year thereafter.

(6) The final adjusted base amounts and new final adjusted base amounts obtained under paragraphs (3) and (4) shall become effective January 1 for the calendar year following the year in which the determination required under paragraph (1) is made.

(7) The department shall publish notice in the Pennsylvania Bulletin prior to January 1 of each calendar year of the annual percentage change determined under paragraph (1) and the unadjusted or final adjusted base amounts determined under paragraphs (3) and (4) at which competitive bidding is required under this subsection for the calendar year beginning the first day of January after publication of the notice. The notice shall include a written and illustrative explanation of the calculations performed by the department in establishing the unadjusted or final adjusted base amounts under this subsection for the ensuing calendar year.

(8) The annual increase in the preliminary adjusted base amounts obtained under paragraphs (3) and (4) shall not exceed three percent.

(10.1 added Nov. 3, 2011, P.L.393, No.95)

Compiler's Note: Section 3 of Act 95 of 2011, which added section 10.1, provided that Act 95 shall apply to contracts and purchases advertised on or after January 1 of the year following the effective date of section 3.

Section 11. Power of Eminent Domain.--The board shall have power to acquire any property, easements, rights of way, and water course deemed necessary for the construction of any of its public works or improvements provided for in this act by the right of eminent domain, and shall have power to enter upon, injure or destroy any such property deemed necessary for such purposes. The proceedings for the condemnation of property and for the assessment of damages for property taken, injured or destroyed shall be in accordance with the act, approved the fifteenth day of July, one thousand nine hundred and nineteen (Pamphlet Laws, nine hundred seventy-six), entitled "An act to authorize the Board of Commissioners of Public Grounds and Buildings to acquire property for the Commonwealth by proceedings in eminent domain, where the purchase of such property has either been authorized by law or determined by the Board of Commissioners of Public Grounds and Buildings under existing laws, and an appropriation made therefor," and its amendments and supplements, except that the board may take possession of the property upon tendering the value of the property taken as determined by the board's appraisers: Provided, That any property owner, who believes the amount tendered insufficient to fully compensate him, may accept the same under protest and without prejudice to his right to apply for the appointment of a Board of View to assess the damages claimed: And provided further, That if the award of the Board of View is not greater than the amount previously tendered and accepted, then all costs of the proceeding shall be imposed on such claimant. If the award is greater than the amount tendered and paid by the board, the claimant shall be entitled to costs, and the board shall pay, in addition thereto, the difference between the amount awarded and tendered. Nothing herein contained, however, shall deprive either the board or the claimant from appealing from or filing exceptions to the report of the Board of View, but upon trial of any appeal, if the party appealing does not obtain a verdict more favorable than was the report of the Board of View, he shall not recover costs.

The board shall have like powers of eminent domain as hereinbefore granted in this section and in accordance with the same procedure provided by this section, to acquire property, easements, rights of way, and water courses deemed necessary by the board to enable the Federal Government, or any of its agencies or instrumentalities, to erect and construct suitable public flood control works and improvements in this Commonwealth, in the construction and erection of which the board has been authorized by this act to aid, assist, and cooperate.

The board shall have the power to authorize the Federal Government, or any of its instrumentalities or agencies, to acquire outside the Commonwealth such property, easements, rights of way, and water courses as are deemed necessary for the construction of any public works or improvements provided for in this act, and to order the payment therefor out of the General Fund Appropriations for Flood Control Projects to the Federal Government, or its instrumentality or agency, not, however, exceeding the unencumbered amounts of money available in the appropriations. The board shall not agree to pay any tax on or rental for any such property, easements, rights of way or water courses, nor shall the Commonwealth be liable therefor without the consent of the General Assembly. (Par. amended June 18, 1968, P.L.217, No.103)

In any case, where property necessary to be taken by eminent domain is owned by any person or municipality owning other property which will be benefited by the flood control improvement, the board shall have power to require the Board of View, appointed to assess damages against the property taken, to also assess benefits against the parts of the same property not taken, and such other property owned by the claimant benefited, to an amount not exceeding the damages claimed by the owner, and to set off the same against any damages which may be awarded for the property, or part thereof, taken.

In such case, the fact that the property claimed to be benefited was at any time previously damaged by a flood shall be conclusive evidence of the fact that benefits have accrued.

Section 12. United States Not to Be Liable; Federal Rules and Regulations.--All lands, rights in lands, rights of way, and water courses acquired under the authority of this act for State or Federal flood control works and improvements, shall be acquired without cost to the United States, and no moneys made available for flood control in this Commonwealth, by the United States, shall be used for such purposes unless in either event the Government of the United States, or any of its agencies or instrumentalities, shall first consent thereto, nor shall the Government of the United States be deemed liable for any damages, by reason of its contribution, arising in connection with the construction of any State or Federal public works or improvements. The Commonwealth hereby agrees that after such State public works and improvements are constructed where the Federal Government has contributed, the same will be operated and maintained in accordance with all rules and regulations prescribed by the Secretary of War of the United States, subject to all the limitations imposed by this act.

Section 13. Contracts and Agreements With Municipalities and Persons.--The board shall have power to enter into contracts and other agreements with municipalities, persons and authorities created under any act of Assembly for cooperation and assistance in constructing, financing, maintaining, using, and operating any State or Federal public flood control works or improvements, and to enter into and execute such contracts and agreements as may be necessary and convenient to the exercise of the powers, rights, privileges, and functions conferred by this act.

(13 amended Apr. 20, 1956, 1955 P.L.1490, No.494)

Section 14. Relocation, Abandonment and Vacation of Roads, Streets, and Bridges.--The Department of Highways and municipalities may enter into agreements with the board, or Federal agencies with the approval of the board, to relocate roads, streets, bridges, and viaducts necessitated by the construction of any State or Federal flood control works and improvements; and may agree therein to construct new roads, streets, bridges, and viaducts, and pay the cost of the same, or any part thereof, from the Motor License Fund or municipal moneys without any charge or only part of the cost charged against the moneys in the General Fund Appropriations for Flood Control Projects. The board may consent in any such agreement to pay the whole or any part of the cost of constructing such relocated roads, streets, bridges, and viaducts from the moneys in the General Appropriations for Flood Control Projects. Such relocated roads, streets, bridges, and viaducts may be constructed by the Department of Highways or by contract let by said department, or the municipality or by the board or by a Federal agency as may be agreed upon. Relocation of State highways shall be made by plans properly approved as is required by law for the relocation of State highway routes, and may be made without regard to terminal or intermediate points mentioned in the law establishing such routes. The portions of State highway routes supplied by such relocations may be abandoned by the Secretary of Highways in the manner provided by law, whereupon said abandoned portions of State highway routes shall revert to the authorities responsible for the maintenance of the public road or highway prior to its having been established as a State highway. Where any State highway route, or part thereof, shall become inundated by the waters of any flood control reservoir, or shall become unnecessary for public use and travel, or burdensome or dangerous due to the construction of any flood control reservoir, the Secretary of Highways, with the approval of the Governor, may abandon as a State highway such State highway route, or part thereof. The Secretary of Highways may also at any time, by and with the consent of the local authorities, by written order declare the portion or portions of road or roads so abandoned to be vacated and closed to public use and travel and no longer a public road, without limitation because of the length of the road to be vacated.

(14 amended June 18, 1968, P.L.217, No.103)

Section 14.1. Easements Over Highways, et cetera, Given to Federal Government.--The Secretary of Highways, for the Commonwealth, and the authorities of each municipality may, with the approval of the Water and Power Resources Board, grant easements or flowage rights to the Government of the United States, or any agency thereof, over, and to submerge during the emergency caused by floods or threatened floods, the highways, streets, roads, bridges and lands adjacent thereto which are owned or maintained by the Commonwealth or by the respective municipalities, as the case may be, in any flood area.

(14.1 added July 25, 1941, P.L.508, No.200)

Section 15. Acceptance of Completed Federal Works and Improvements.--The board shall have power to accept on behalf of the Commonwealth all Federal flood control works and improvements after the same have been completed, and to agree with the Federal Government to maintain and operate such works and improvements for the primary purpose of flood control.

Section 16. Water Power and Supply.--The rights of landowners, municipalities, and persons to the waters in a flood control district, or in waters affected by any State or Federal flood control works or improvements for domestic use, water supply, industrial purposes, water power or for any other lawful purposes shall extend only to such rights as are owned or possessed by them prior to the adoption of the official plans of such flood control works and improvements, and to such use as could be made of such waters if the public improvements and works herein authorized had not been made. Whenever such public improvements and works make possible a greater, better or more convenient use of, or benefit from the waters in a flood control district, the right of such greater, better or more convenient use of or benefit from such waters shall be the property of the Commonwealth, saving the rights of the Federal Government as to navigation. Such rights may be leased, sold or assigned only as the Legislature may hereafter provide, but at all times the primary purpose of flood control shall be preserved. All lands or property, or both, through or over which or bounding which are streams, the beds of which streams are the property of the owners of said lands, shall not be deprived of such reasonable flow of water, as shall be determined and fixed by the board as necessary for the maintenance of fish and aquatic life, and for domestic and industrial use and consumption.

Section 17. Source of Finances.--The cost and expenses of making the surveys hereinbefore provided, the preparation of official plans, all advertising, and all other necessary and incidental costs and expenses, including the expenses of the members of the board, salaries, and expenses of engineers, experts, clerks, assistants, and other employes, all court and viewers' costs assessed against the Commonwealth, and all other proper and necessary operating expenses deemed necessary by the board to carry into effect the provisions of this act, shall be paid from General Fund General Government Operations Appropriations of the Department of Forests and Waters made by the General Assembly as augmented by reimbursements received for the cost of making surveys and preparing plans for the General State Authority or other State instrumentalities or agencies of the Commonwealth. The erection and construction of public works and improvements and of all other work of any kind and character authorized by this act and the acquisition of any and all property in connection therewith shall be paid from the General Fund Appropriations for Flood Control Projects as augmented by Federal moneys available or made available to this Commonwealth as grants, contributions, gratuities, and loans for flood control works and improvements, gifts and donations received from persons, appropriations and contributions made to the board by municipalities, and contributions by other states and their political subdivisions. All moneys so made available shall likewise be available for expenditure by the board to aid and assist in the erection and construction of Federal public control works and improvements beneficial to the people of this Commonwealth of the type which may be constructed under the provisions of this act, after such Federal flood control works and improvements have been incorporated into and made a part of an official State plan.

(17 amended June 18, 1968, P.L.217, No.103)

Section 18. Increase of Municipal Debt; Appropriations.--Any municipality may incur or increase its indebtedness, in the manner provided by law, for the purpose of appropriating moneys to the board, to assist in carrying out the purpose of this act, and may make appropriations from current funds for such purpose.

Section 19. Separate Accounts for Flood Control Districts.--Where more than one flood control district is created, separate accounts shall be kept for each district, and payments from the General Fund Appropriations for Flood Control Projects for or on account of any one district shall not exceed the amount credited to such district in said appropriations.

(19 amended June 18, 1968, P.L.217, No.103)

Section 20. Cooperation with Other States.--The Water and Power Resources Board is hereby designated as the agency of the Commonwealth with power to enter into reciprocal compacts and agreements with other states in developing flood control projects and works, and shall have authority to expend moneys made available and appropriated by the General Assembly for interstate flood control works and improvements, located within or without this Commonwealth, on rivers and streams entering into or flowing out of or along the borders of this Commonwealth, and to receive, as augmentations to the General Fund Appropriations for Flood Control Projects from other states and their political subdivisions, any moneys to aid and assist in the construction of flood control works and improvements located in this State which are deemed beneficial to the inhabitants of other states. Payments on account of such interstate works and improvements may be made by the board direct to the contractor or to the agency of such other state which let the contract or is performing the work of constructing such works or improvements, or to the Federal Government, or any of its instrumentalities or agencies supervising the construction of such works or improvements.

The board is further authorized to empower the Federal Government, or any of its instrumentalities or agencies, to supervise the construction of such interstate flood control works and improvements.

(20 amended June 18, 1968, P.L.217, No.103)

Section 21. Constitutional Construction.--The provisions of this act shall be severable, and if any of the provisions shall be held to be unconstitutional, such decision shall not affect the validity of any of the remaining provisions of this act. It is hereby declared as the legislative intent that this act would have been adopted had such unconstitutional provision not be included therein.