Floodplain Development Rules for Ponds in Pennsylvania

Key points

• AgencyPEMA states that proper administration and enforcement of floodplain management activities is a municipality's responsibility, that the state NFIP Coordinator administers the program in accordance with the Floodplain Management Act, and that all municipalities with a FEMA-identified Special Flood Hazard Area must participate in the NFIP under Chapter 2 of the Act.

  PEMA, "Laws, Acts, and Regulations" web page (Floodplain Management Act of 1978) [2]
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  Proper administration and enforcement of floodplain management activities, in accordance with requirements, is a municipality's responsibility; the state's National Flood Insurance Program Coordinator administers the program in accordance with this act.All municipalities with a Federal Emergency Management Agency-identified Special Flood Hazard Area must participate in the National Flood Insurance Program, as per Chapter 2 of this act.

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• ProcessPEMA's 2025 guide says the municipality must issue a floodplain development permit, or its equivalent, before any development in the Special Flood Hazard Area (SFHA). For NFIP purposes, development includes excavation, filling, paving, drilling, mining, dredging, land clearing and grading. PEMA says it is each municipality's responsibility to adopt and enforce floodplain rules meeting NFIP criteria, and a municipality may exceed the NFIP minimums.

  Applies when: Dug-out pond excavation or embankment fill anywhere in a mapped SFHA (Zones A, AE, AH, AO, etc.) PEMA, Pennsylvania Floodplain Development Guide (June 2025), §§ 1, 4 and Step 3 [3]
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  It is the responsibility of each municipality to adopt and enforce regulations for floodplain development that meet NFIP criteria. Municipalities may elect to develop ordinances, regulations, and policies that exceed NFIP minimum requirements. ... excavation, filing, paving, drilling, driving of piles, mining, dredging, land clearing, grading, and permanent storage of materials and/or equipment. ... A floodplain development permit (or its equivalent) must be issued by the municipality before development activities occur within the SFHA.

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• RequirementAt a minimum, a municipality's floodplain management regulations must apply to these kinds of work within areas subject to the 100-year flood: (i) completely new buildings or structures; (ii) substantial improvements to existing buildings or structures; and (iii) any man-made change to improved or unimproved real estate, including filling, grading, paving, excavation, mining, dredging and drilling. Excavating a dug-out pond or placing embankment fill in the 100-year floodplain therefore falls within the minimum scope of municipal floodplain regulation.

  Applies when: Any pond excavation, embankment or grading within the 100-year floodplain 12 Pa. Code § 113.8(a)(5) [5]
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  At a minimum the floodplain management regulations of municipalities shall apply to the following kinds of construction and development activities within areas subject to the 100-year flood: (i) Completely new buildings or structures. (ii) Substantial improvements to existing buildings or structures. (iii) A man-made change to improved or unimproved real estate, including, but not limited to, filling, grading, paving, excavation, mining, dredging and drilling operations.

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• DefinitionThe Act defines "obstruction" as any structure or assembly of materials, including fill, above or below the surface of land or water, and any activity that might impede, retard or change flood flows. Planting, cultivating and harvesting field and orchard crops, grazing livestock, and maintaining necessary appurtenant agricultural fencing are not obstructions and are not regulated under the Act. "Fill" means sand, gravel, earth or other material placed or deposited to form an embankment or raise the elevation of the land surface.

  Applies when: A pond embankment, spoil pile or other fill placed in a floodplain Flood Plain Management Act § 104 (definitions of "Fill" and "Obstruction") (32 P.S. § 679.104) [6]
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  Sand, gravel, earth or other material placed or deposited so as to form an embankment or raise the elevation of the land surface. ... "Obstruction." Any structure or assembly of materials including fill above or below the surface of land or water, and an activity which might impede, retard or change flood flows. The planting, cultivation and harvesting of field and orchard crops or the grazing of livestock, including the maintenance of necessary appurtenant agricultural fencing, shall not be considered an "obstruction"

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• Size cutoffIn a community with an adopted regulatory floodway, encroachments in the floodway (including fill, new construction, substantial improvements and other development) must be prohibited unless hydrologic and hydraulic analyses show no increase in flood levels during the base flood discharge. Until a regulatory floodway is designated in Zones A1-30/AE, development (including fill) is allowed only if its cumulative effect with all other existing and anticipated development will not raise the base flood elevation more than one foot at any point within the community. Exceptions: a community may permit a floodway encroachment that raises base flood elevations, or approve development in Zones A1-30, AE or AH that raises them more than one foot, only after it first applies for a conditional FIRM (and, for floodways, floodway) revision under 44 CFR 65.12 and receives FEMA approval.

  Applies when: Pond embankment, spoil or other fill in an AE zone or regulatory floodway 44 CFR 60.3(c)(10), (c)(13), (d)(3), (d)(4) [7]
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  no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1-30 and AE ... will not increase the water surface elevation of the base flood more than one foot at any point ... may approve certain development in Zones Al-30, AE, and AH ... conditional FIRM revision ... Prohibit encroachments, including fill ... within the adopted regulatory floodway unless ... any increase in flood levels ... may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations ... floodway revision

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• ProcessPer PEMA's guide, a project in the regulatory floodway must go through an encroachment review of whether it will raise flood heights; projects only in the flood fringe do not. Under NFIP rules the permissible rise from a floodway encroachment is zero. Municipalities may conduct the review or require the developer to; they may require certification that a licensed engineer conducted it, supported by a technical analysis (often a hydrologic and hydraulic study), and a "no rise certification" stating there will be no rise in flood heights.

  Applies when: Pond embankment, spoil or fill in a regulatory floodway PEMA, Pennsylvania Floodplain Development Guide (June 2025), Step 3 - Floodway Encroachment Review [3]
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  If the project occurs within the regulatory floodway, it must undergo an encroachment review to evaluate if the project will increase flood heights and downstream flooding. Development projects occurring within the flood fringe ... do not need an encroachment review. ... the permissible rise of any ... encroachment is zero. ... certification that an encroachment review has been conducted by a licensed engineer and supported by a technical analysis. ... sometimes referred to as a “no rise certification,” stating that there will be no rise in flood heights due to the project.

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• DefinitionFor Chapter 105, the "floodway" is the stream channel plus the adjoining floodplain reasonably required to carry the 100-year flood, as shown on FEMA maps and studies. Where FEMA has not mapped a floodway, it is presumed, absent contrary evidence, to extend 50 feet from the top of the stream bank. So a Chapter 105 floodway exists along streams even where FEMA has not mapped one.

  25 Pa. Code § 105.1 (definition of "Floodway") [9]
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  Floodway—The channel of the watercourse and portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by FEMA. In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

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• ExemptionDEP says Chapter 105 approval is not required for an off-stream pond that is not built in a floodway, wetland or other body of water, though a dam permit may be required if the pond's dam meets the regulated-dam criteria.

  Applies when: Off-stream pond outside any floodway (including the default 50-ft floodway), wetland or body of water DEP, "Introduction to Ponds and Chapter 105" (Off-Stream Ponds) [10]
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  Chapter 105 approval for water obstructions and encroachments is not required for ponds proposed off-stream if they are not constructed in a floodway, wetland or other body of water. However, if the pond has a dam which meets the regulated dam criteria a dam permit may be required, see above information.

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• Municipal floodplain regulations adopted to comply with the NFIP are minimum standards; nothing in the Act limits a municipality's power to adopt more restrictive floodplain ordinances, codes or regulations. Adoption and administration are governed by the Pennsylvania Municipalities Planning Code or other enabling legislation, and a municipality may adopt floodplain regulations for the floodplain alone without regulating the rest of the municipality.

  Flood Plain Management Act §§ 203-204 (32 P.S. §§ 679.203-679.204) [6]
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  shall be governed by the provisions of the act of July 31, 1968 (P.L.805, No.247), known as the "Pennsylvania Municipalities Planning Code," or other applicable enabling legislation; provided, that a municipality may adopt flood plain management regulations for the flood plain without adopting ordinances, codes or regulations for any other area of the municipality ... shall be deemed minimum standards for the management of the flood plains, and no provision of this act shall be construed as in any way limiting the power of any municipality to adopt more restrictive ordinances

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• RequirementPEMA's suggested ordinance prohibits fill in any Identified Floodplain Area unless a variance is obtained. Where fill is allowed by variance it must: extend at least 15 feet beyond the building line; consist only of soil or small rock (no sanitary landfill); be compacted for adequate permeability and resistance to erosion, scouring and settling; be no steeper than 1 vertical to 2 horizontal unless the Floodplain Administrator approves steeper slopes on justifying data; and not adversely affect adjacent properties.

  Applies when: Pond embankments, berms or spoil placed in a mapped floodplain in a municipality that adopted this suggested text PEMA, Suggested Provisions (July 2023), § 5.03(A) [11]
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  Within any Identified Floodplain Area, the use of fill shall be prohibited. If a variance is obtained ... laterally at least fifteen (15) feet beyond the building line ... b. consist of soil or small rock materials only - Sanitary Landfills shall not be permitted; c. be compacted to provide the necessary permeability and resistance to erosion, scouring, or settling; d. be no steeper than one (1) vertical to two (2) horizontal feet unless substantiated data justifying steeper slopes are submitted ... be used to the extent to which it does not adversely affect adjacent properties.

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• RequirementBefore issuing any permit, PEMA's suggested ordinance has the Floodplain Administrator check that all other required state and federal permits have been obtained, including under the Sewage Facilities Act, the Dam Safety and Encroachments Act (Act 1978-325), the Clean Streams Law, and Clean Water Act Section 404 (33 U.S.C. 1344). No permit may issue until that determination is made.

  Applies when: Pond needing a DEP Chapter 105 permit, a dam permit, or a Corps Section 404 authorization PEMA, Suggested Provisions (July 2023), § 3.03(B) [11]
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  Prior to the issuance of any permit, the Floodplain Administrator shall review the application for the permit to determine if all other necessary government permits required by state and federal laws have been obtained, such as those required by the Pennsylvania Sewage Facilities Act (Act 1966-537, as amended); the Pennsylvania Dam Safety and Encroachments Act (Act 1978-325, as amended); the Pennsylvania Clean Streams Act (Act 1937-394, as amended); and the U.S. Clean Water Act, Section 404, 33, U.S.C. 1344. No permit shall be issued until this determination has been made.

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• RequirementAny obstruction or conduct that violates the Act or any floodplain management regulations (including a municipal floodplain ordinance) is declared a public nuisance. Suits to restrain, prevent or abate violations may be brought at law or in equity by PEMA, DEP, any affected county or municipality, or any aggrieved person, in Commonwealth Court or the county court of common pleas; the violator can be charged the expense of the proceedings.

  Applies when: Unpermitted fill, embankment or other obstruction in a regulated floodplain Flood Plain Management Act § 502 (32 P.S. § 679.502), as amended by Act 65 of 2022 [6]
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  Any obstruction or conduct in violation of this act or of any flood plain management regulations is hereby declared a public nuisance. (b) Suits to restrain, prevent or abate violation of this act or of any flood plain management regulations may be instituted in equity or at law by the Pennsylvania Emergency Management Agency, the Department of Environmental Protection, any affected county or municipality, or any aggrieved person. ... The expense of such proceedings shall be recoverable from the violator

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Is the site in a mapped floodplain?

The Flood Plain Management Act defines the 100-year flood as the flood level that has a 1% chance of occurring each year, and the 100-year floodplain as the 100-year floodway plus the maximum area likely to be flooded by a 100-year flood as shown on federally approved floodplain maps. [6]

PEMA's 2025 guide lists Zones A, AE, AH, AO, AR and A99 as the non-coastal high-risk zones of the Special Flood Hazard Area and says municipalities must work with FEMA to delineate and adopt the regulatory floodway shown on the Flood Insurance Rate Maps. Pennsylvania's floodplain regulations for municipalities call the part of the 100-year floodplain outside the floodway the flood-fringe area. [3][5]

Where FEMA maps or studies do not show a floodway along a stream, PEMA's guide assumes it extends 50 feet landward from the top of the bank, and Chapter 105 makes a similar presumption absent evidence to the contrary. For bodies of water, which include natural and artificial lakes and ponds, DEP says that in most cases FEMA has not delineated a floodway and the 50-foot rule does not apply. [3][9][15]

DEP says many municipalities have FEMA flood insurance studies and maps showing floodway boundaries, and that asking the local municipal government will show whether a floodway has been determined along a particular watercourse or body of water. [15]

• DefinitionUnder the Act, the "one hundred-year flood" is the flood level with a 1% chance of occurring each year, and the "one hundred-year flood plain" ("flood plain") is the 100-year floodway plus the maximum area likely to be flooded by a 100-year flood as shown on the federally approved flood plain maps.

  Flood Plain Management Act § 104 (definitions of "One hundred-year flood" and "One hundred-year flood plain") [6]
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  "One hundred-year flood." The highest level of flooding that, on the average, is likely to occur every 100 years, that is, that has a 1% chance of occurring each year. "One hundred-year flood plain" or "flood plain." The 100-year floodway and that maximum area of land that is likely to be flooded by a 100-year flood shown on flood plain maps approved or promulgated by the United States Department of Housing and Urban Development.

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• DefinitionPEMA's guide explains that municipalities must work with FEMA to delineate and adopt the regulatory floodway shown on the Flood Insurance Rate Maps (FIRMs), and that where the FIRMs or studies do not show a regulatory floodway, it is assumed to extend 50 feet landward from the top of the bank. PEMA's Table 1 lists Zones A, AE, AH, AO, AR and A99 as the non-coastal high-risk zones (Special Flood Hazard Area).

  PEMA, Pennsylvania Floodplain Development Guide (June 2025), § 2.2.1 and Table 1 [3]
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  Municipalities are required to work with FEMA to delineate and adopt the regulatory floodway depicted on the FIRMs (shown in Figure 3 as the red and blue hatched area). If FIRMs or studies do not show the regulatory floodway, it is assumed to extend from the stream to 50 feet landward from the top of the bank. ... A, AE, AH, AO, AR, and A99 Zones: Non-coastal areas with a high risk

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• DefinitionThe state floodplain management regulations for municipalities (12 Pa. Code Chapter 113, adopted by the Department of Community Affairs and later DCED) define "development" as any man-made change to improved or unimproved real estate, including buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. The same chapter defines the "flood-fringe area" as the part of the 100-year floodplain outside the floodway.

  Applies when: Excavating a pond or building an embankment in a mapped floodplain 12 Pa. Code § 113.1 (definitions of "Development" and "Flood-fringe area") [5]
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  Development—A man-made change to improved or unimproved real estate including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. ... Flood-fringe area—That portion of the 100-year floodplain outside of the floodway.

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The municipal floodplain permit

Every municipality notified by the federal government (the 1978 Act names the U.S. Department of Housing and Urban Development) that it has an area subject to flooding must participate in the NFIP, and must adopt the floodplain regulations needed to comply with NFIP requirements within six months after a floodplain map is approved or promulgated for it. [6]

The federal NFIP rules require a participating community to require permits for all proposed construction or other development so it can determine whether the work is proposed in a flood-prone area, and to review proposed development to assure that all permits required by federal or state law have been received, including under Clean Water Act Section 404. [7]

PEMA's suggested ordinance makes it unlawful to undertake any construction or development anywhere in the municipality without a permit from the Floodplain Administrator, and says land trusts and local, county, state and federal entities are not exempt. PEMA cautions that the suggested text is not a "model" ordinance and cannot be adopted verbatim, and that adopting it verbatim does not guarantee compliance. [11]

PEMA's 2025 template permit application lists filling, grading and excavation as development types, says no work may start until a permit is issued or the Floodplain Administrator decides one is not required, and asks whether the property is in a designated floodway; if it is, certification and supporting analysis showing no increase in the base (100-year) flood elevation must be provided before a permit issues. The template's checklist says an applicant may be required to provide items such as the top-of-fill elevation for new compacted fill, and that all other permits required by state and federal law, including Dam Safety and Encroachments Act and Clean Water Act Section 404 permits, must be submitted. [3]

PEMA's suggested ordinance requires applicants for work in an identified floodplain to file a site plan at a scale of 1 inch = 100 feet or less, and, where excavation or grading is proposed, an erosion and sedimentation control plan meeting DEP requirements. It also requires documentation, certified by a registered professional engineer or architect, that development in a Floodway Area will not raise the base flood elevation at any point, and that development in an AE area without floodway, with all other existing and anticipated development, will not raise it more than one foot. Under the same text, the Floodplain Administrator sends every application in an identified floodplain area to the County Conservation District for review and comment before a permit is issued. [11]

PEMA's 2025 template permit application and its 2023 suggested ordinance word the permit time limits differently: the template application says the permit expires if no work begins within six months of issuance, while the suggested ordinance requires work to begin within 180 days after issuance and be completed within 12 months, or the permit expires unless the Floodplain Administrator grants a written extension. Municipalities administering floodplain regulations have the power and duty under the Act to set reasonable permit-processing fees. [3][6][11]

• RequirementEvery municipality that has been notified by the U.S. Department of Housing and Urban Development (the federal agency named in the 1978 Act) that it has an area subject to flooding must participate in the NFIP. A municipality that is suspended from the NFIP after gaining eligibility must regain eligibility within 90 days of receiving its suspension notice.

  Flood Plain Management Act § 201(a), (c) (32 P.S. § 679.201) [6]
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  Each municipality which has been notified by the United States Department of Housing and Urban Development that it has been identified as having an area or areas which are subject to flooding shall participate in the National Flood Insurance Program. ... If a municipality, for whatever reason, is suspended from the National Flood Insurance Program, once having gained eligibility, such municipality shall regain eligibility within 90 days of the date of receipt of its notice of suspension.

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• RequirementEach identified municipality must adopt the floodplain management regulations (and amendments) needed to comply with NFIP requirements within six months after a floodplain map is approved or promulgated for the municipality.

  Flood Plain Management Act § 202 (32 P.S. § 679.202) [6]
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  Each municipality which has been identified by the United States Department of Housing and Urban Development as having an area or areas subject to flooding, shall adopt such flood plain management regulations, and amendments thereto, as are necessary to comply with the requirements of the National Flood Insurance Program within six months after a flood plain map is approved or promulgated for the municipality

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• RequirementUnder 44 CFR 60.3(a), a participating community must require permits for all proposed construction or other development in the community so it can determine whether it is proposed within flood-prone areas, and must review proposed development to assure that all permits required by federal or state law have been received, including under section 404 of the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act). Where FEMA has designated Zone A on the community's FHBM or FIRM, § 60.3(b) requires permits for all proposed construction and other development within Zone A and applies the (a)(2) permit-review standard there.

  44 CFR 60.3(a)(1)-(2), (b)(1)-(2) [7]
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  (1) Require permits for all proposed construction or other development in the community, including the placement of manufactured homes, so that it may determine whether such construction or other development is proposed within flood-prone areas; (2) Review proposed development to assure that all necessary permits have been received from those governmental agencies from which approval is required by Federal or State law, including section 404 ... Require permits for all proposed construction and other developments ... within Zone A ... application of the standards in paragraphs (a) (2)

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• RequirementUnder PEMA's suggested ordinance, it is unlawful for any person, partnership, business, corporation or government agency to undertake any construction or development anywhere in the municipality without a permit from the Floodplain Administrator. Land trusts and local, county, state and federal entities are not exempt.

  PEMA, Suggested Provisions (July 2023), §§ 2.02, 3.02 [11]
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  It shall be unlawful for any person, partnership, business, corporation, or government agency ... (land trusts, local, county, state, or federal entities are not exempt) to undertake, or cause to be undertaken, any construction or development anywhere within the [Name of Municipality] unless a Permit has been obtained from the Floodplain Administrator. ... A Permit shall be required before any construction or development is undertaken within any area of the [Name of municipality].

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• StatusPEMA's "Suggested Provisions" (July 2023) are the state's example floodplain ordinance, written to meet NFIP § 60.3(d) and Act 166. PEMA cautions that they cannot be adopted verbatim, are "not 'model' floodplain management regulations," and that verbatim adoption does not guarantee compliance. Each municipality must adapt them, so a landowner has to read the ordinance their own municipality actually adopted.

  PEMA, Suggested Provisions (July 2023), Explanatory Note ¶¶ 2-3 [11]
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  These provisions cannot be adopted verbatim. Every municipality making use of these provisions will have to make some choices and modifications ... These provisions are not "model" floodplain management regulations. With few exceptions, they have been prepared only with the intention of meeting the minimum requirements of Section 60.3 (d) of the National Flood Insurance Program and the Pennsylvania Flood Plain Management Act.

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• ProcessPEMA's template floodplain development permit application lists Filling, Grading and Excavation as development types. Its general provisions say no work may start until a floodplain permit is issued or the Floodplain Administrator decides one is not needed, and that the permit expires if no work begins within six months of issuance. It asks whether the property is in a designated floodway; if so, certification and supporting analysis showing no increase in the base (100-year) flood elevation must be provided before a permit issues.

  PEMA, Pennsylvania Floodplain Development Guide (June 2025), Appendix D (Floodplain Development Permit Application Template) [3]
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  No work of any kind may start until a Floodplain permit is issued or the Floodplain Administrator determines that a Floodplain permit is not required. ... This permit shall expire if no work is commenced within six months of issuance. ... ☐ Filling ☐ Grading ... ☐ Excavation ... Property Located in a Designated FLOODWAY? ☐ Yes ☐ No IF ANSWERED YES, CERTIFICATION AND SUPPORTING ANALYSIS MUST BE PROVIDED INDICATING THE PROPOSED DEVELOPMENT WILL RESULT IN NO INCREASE IN THE BASE (100-YEAR) FLOOD EVALUATIONS, PRIOR TO THE ISSUANCE OF A PERMIT TO DEVELOP

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• RequirementPEMA's template floodplain permit checklist says an applicant may be required to provide one or more listed documents before the application can be processed. The list includes the top-of-fill elevation for new compacted fill and a registered engineer's certification that activity in a regulatory floodway will not increase the 100-year flood height. The checklist also says all other government permits required by state and federal law must be submitted, listing the Pennsylvania Sewage Facilities Act (Act 537), the Pennsylvania Dam Safety and Encroachments Act (Act 325), the Clean Streams Law (Act 394), Clean Water Act Section 404, and other DEP permits.

  Applies when: Applying to a municipality for a floodplain permit for a pond PEMA, Pennsylvania Floodplain Development Guide (June 2025), Appendix D, Section 4 (Permit Submittal Checklist) [3]
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  The application may be required to provide one or more of the following documents ... ☐Top of new compacted fill elevation measured in feet. ... ☐Certification from a registered engineer that the proposed activity in a regulatory floodway will not result in any increase in the height of the “100-year” flood ... All other necessary government permits required by state and federal law must be submitted: ☐Pennsylvania Sewage Facilities Act 537 ☐Pennsylvania Dam Safety and Encroachment Act 325 ☐Pennsylvania Clean Streams Act 394 ☐U.S. Clean Water Act, Section 404

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• RequirementPEMA's suggested ordinance requires applicants for work in an identified floodplain to file a site plan at a scale of 1 inch = 100 feet or less. It also requires engineer- or architect-certified documentation that development in a Floodway Area will not raise the base flood elevation at any point, and that development in an AE area without floodway, together with all other existing and anticipated development, will not raise it more than one foot. Where excavation or grading is proposed, the applicant must file an erosion and sedimentation control plan meeting DEP requirements.

  Applies when: Pond excavation or embankment in an identified floodplain area PEMA, Suggested Provisions (July 2023), § 3.04(C)(2), (4)(c), (4)(d), (4)(i) [11]
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  a scale of one (1) inch being equal to one hundred (100) feet or less ... certified by a registered professional engineer or architect, to show that the effect of any proposed development within a Floodway Area ... will not increase the base flood elevation at any point. ... without floodway ... when combined with all other existing and anticipated development, will not increase the base flood elevation more than one (1) foot at any point ... where any excavation or grading is proposed, a plan meeting the requirements of the Department of Environmental Protection

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Floodway no-rise and the one-foot rule

PEMA's guide says a project in the regulatory floodway must undergo an encroachment review of whether it will raise flood heights, while projects only in the flood fringe do not. Municipalities may conduct the review or require the developer to, and may require certification that a licensed engineer conducted it, supported by a technical analysis (often a hydrologic and hydraulic study), and a "no rise certification" stating there will be no rise in flood heights. [3]

Where a municipality has no mapped regulatory floodway, PEMA says it must evaluate all development to make sure it will not raise flood waters by more than one foot. If the engineering analysis finds a project would contribute to an increase in the base flood elevation, PEMA describes a more complicated process requiring FEMA approval, and additional analysis and certifications may be required, including a request for a Letter of Map Amendment (LOMA) or Letter of Map Change (LOMC). [3]

PEMA's suggested ordinance permits no encroachment in a Floodway Area, including fill, unless hydrologic and hydraulic analysis shows no increase in flood levels during the base flood, and allows no new construction or development there unless the appropriate DEP Regional Office permit is obtained. In an AE zone without a floodway, it permits no development, including fill, unless hydrologic and hydraulic analysis shows that, together with all other existing and anticipated development, it will not raise flood levels more than one foot anywhere in the community. Separately, § 5.03(A) of the same text prohibits fill in any Identified Floodplain Area unless a variance is obtained. [11]

PEMA's suggested ordinance has the municipality or applicant apply to FEMA for conditional approval under 44 CFR 65.12 before the municipality permits any of the following: development that raises base flood elevations in a floodway; development in Zones A1-30/AE without a designated floodway that raises the base flood elevation more than one foot; or alteration or relocation of a stream. The same text then has the community adopt ordinances reflecting the post-project flood elevations or floodway and, after construction, submit as-built certifications so FEMA can revise the map. [7][11]

Where a pond project alters or relocates a watercourse, the federal rules require the community, in riverine situations, to notify adjacent communities and the State Coordinating Office beforehand, send copies of the notices to the Federal Insurance Administrator, and assure that the altered or relocated section keeps its flood-carrying capacity. PEMA's suggested ordinance adds that no encroachment, alteration or improvement of any kind may be made to a watercourse until adjacent municipalities that may be affected have been notified and all required DEP Regional Office permits or approvals are obtained, and that FEMA and PEMA must be notified before any alteration or relocation. [7][11]

• Size cutoffPer PEMA's guide, where a municipality has no mapped regulatory floodway it must evaluate all development to make sure it will not raise flood waters by more than one foot. If the engineering analysis finds a project would contribute to an increase in the base flood elevation, a more complicated process requiring FEMA approval applies, and additional analysis and certifications may be required, including a request for a Letter of Map Amendment (LOMA) or Letter of Map Change (LOMC).

  PEMA, Pennsylvania Floodplain Development Guide (June 2025), Step 3 ("Lack of Regulatory Floodway") [3]
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  If your municipality does not have a mapped regulatory floodway, the community must evaluate all development activities to ensure it will not increase flood waters by more than one foot. ... if the engineering analysis and encroachment review find that the project will contribute to an increase in the BFE, there is another, more complicated process for the applicant, which requires FEMA approval ... Additional analysis and certifications may be required ... including a request for a Letter of Map Amendment (LOMA), Letter of Map Change (LOMC), and others.

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• RequirementIn PEMA's suggested ordinance, no encroachment in a Floodway Area (including fill, new construction, substantial improvements or other development) is permitted unless hydrologic and hydraulic analysis shows no increase in flood levels during the base flood. No new construction or development is allowed in a Floodway Area unless the appropriate permit is obtained from the DEP Regional Office.

  Applies when: Pond, embankment or spoil in a FEMA floodway PEMA, Suggested Provisions (July 2023), § 4.02(A)(1)-(2) [11]
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  Within any floodway area, no encroachments, including fill, new construction, substantial improvements, or other development shall be permitted unless it has been demonstrated through hydrologic and hydraulic analysis ... would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. 2. Within any floodway area, no new construction or development shall be allowed, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• RequirementFor AE zones with base flood elevations but no designated floodway, PEMA's suggested ordinance allows development (including fill) only if hydrologic and hydraulic analysis shows it, together with all other existing and anticipated development, will not raise flood levels more than one foot anywhere in the community. It also bars new construction or development within 50 feet landward of the top of bank of any watercourse unless the appropriate DEP Regional Office permit is obtained.

  Applies when: Pond work in an AE zone where FEMA has not delineated a floodway PEMA, Suggested Provisions (July 2023), § 4.02(B)(2)(i)-(ii) [11]
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  No encroachments, including fill, new construction, substantial improvements, or other development shall be permitted in an AE Zone without floodway, unless ... the proposed development together with all other existing and anticipated development, would not result in an increase in flood levels of more than one foot within the entire community ... No new construction or development shall be located within the area measured fifty (50) feet landward from the top-of-bank of any watercourse, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• ProcessUnder PEMA's suggested ordinance, before a municipality permits (a) development that raises base flood elevations in a floodway, (b) development in Zones A1-30/AE without a designated floodway that raises the base flood elevation more than one foot, or (c) alteration or relocation of a stream, the municipality or applicant must apply to FEMA for conditional approval under 44 CFR 65.12. The community must adopt ordinances reflecting the post-project flood elevations or floodway, and after construction submit as-built certifications so FEMA can revise the map.

  Applies when: Embankment dam or channel work that would raise the base flood elevation or relocate a stream PEMA, Suggested Provisions (July 2023), § 5.01(B) [11]
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  any development that causes a rise in the base flood elevations within the floodway; or • any development occurring in Zones A1-30 and Zone AE without a designated floodway, which will cause a rise of more than one foot in the base flood elevation; or • alteration or relocation of a stream ... 1. apply to FEMA for conditional approval of such action prior to permitting the encroachments to occur. ... evidence to FEMA of the adoption of floodplain management ordinances incorporating the increased base flood elevations ... provide as-built certifications. FEMA will initiate a final map revision

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• RequirementIn riverine situations, an NFIP community must notify adjacent communities and the State Coordinating Office before any alteration or relocation of a watercourse, submit copies of the notices to the Federal Insurance Administrator, and assure that the flood-carrying capacity of the altered or relocated section is maintained.

  Applies when: On-stream pond or dam that alters or relocates a stream channel 44 CFR 60.3(b)(6)-(7) [7]
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  (6) Notify, in riverine situations, adjacent communities and the State Coordinating Office prior to any alteration or relocation of a watercourse, and submit copies of such notifications to the Federal Insurance Administrator; (7) Assure that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained;

  Open eCFR / Office of the Federal Register (opens in a new tab)

• RequirementPEMA's suggested ordinance says no encroachment, alteration or improvement of any kind may be made to a watercourse until all adjacent municipalities that may be affected have been notified and all required DEP Regional Office permits or approvals have been obtained. The work must not reduce or impede the watercourse's flood-carrying capacity, and FEMA and PEMA must be notified before any alteration or relocation of a watercourse.

  Applies when: On-stream (embankment) pond or any stream relocation for a pond PEMA, Suggested Provisions (July 2023), § 5.01(A) [11]
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  No encroachment, alteration, or improvement of any kind shall be made to any watercourse until all adjacent municipalities which may be affected by such action have been notified by the municipality, and until all required permits or approvals have first been obtained from the Department of Environmental Protection Regional Office. ... will not reduce or impede the flood carrying capacity of the watercourse in any way. ... FEMA and the Pennsylvania Emergency Management Agency shall be notified prior to any alteration or relocation of any watercourse.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• RequirementPEMA's suggested ordinance (§ 5.01(D)) prohibits any new construction or development within 50 feet landward of the top of bank of any watercourse anywhere in the Identified Floodplain Area.

  Applies when: Pond excavation or embankment within 50 ft of a stream bank in a mapped floodplain, where the municipality adopted this provision PEMA, Suggested Provisions (July 2023), § 5.01(D) [11]
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  Within any Identified Floodplain Area, no new construction or development shall be located within the area measured fifty (50) feet landward from the top-of-bank of any watercourse.

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How the local permit relates to DEP Chapter 105

Chapter 105 says the structures and activities it regulates, which include water obstructions and encroachments other than dams in, along, across or projecting into a watercourse, floodway or body of water, are regulated under both the Dam Safety and Encroachments Act and § 302 of the Flood Plain Management Act. Except as § 302 otherwise provides, that section gives DEP (named in the Act as the Department of Environmental Resources) exclusive jurisdiction under the Act over any obstruction otherwise regulated under the Water Obstructions Act, flood control projects of a governmental unit, highways or other obstructions of the Commonwealth or a political subdivision, and obstructions owned or maintained by a public utility. [6][8]

DEP waives the Chapter 105 permit for a water obstruction in a stream or floodway with a drainage area of 100 acres or less. The waiver does not apply to wetlands in the floodway, and DEP may require a permit if, upon complaint or investigation, it finds that a waiver-eligible structure or activity has a significant effect upon safety or the protection of life, health, property or the environment. The waiver's text does not say whether it covers a pond embankment or pond excavation (see Conflicts). [14]

A standard Chapter 105 application for a dam, water obstruction or encroachment in a floodway delineated on a FEMA map must include an analysis of the project's impact on the floodway delineation and water surface profiles and a letter from the municipality commenting on it; if the analysis shows increased flood elevations, the applicant must add a risk assessment. DEP's Small Projects application may be used for work in streams and floodplains where insignificant impacts on safety and on the protection of life, health, property and the environment can be shown without detailed studies, but not for work in wetlands; under it, the final grade of excavations, regradings and similar floodplain work must on average match the existing land surface grade, and structures need a letter from the municipality indicating consistency with its floodplain management program. [15][16]

Bridges and culverts regulated under Chapter 105, which may include a pond access-road crossing, must be consistent with local floodplain management programs and pass the 100-year flood with less than a 1.0-foot increase in the natural unobstructed 100-year water surface elevation, or with no increase at all if the structure is in a floodway delineated on a FEMA map. DEP may approve exceptions if the applicant prepares a risk assessment demonstrating, and DEP finds, that the structure will not significantly increase the flooding threat to life and property or the environment and, where applicable, is consistent with municipal NFIP floodplain management programs and a FEMA Flood Insurance Study. [17]

PEMA's guide notes that projects altering watercourses or wetlands face separate federal and state permitting, which may include Clean Water Act Section 404 permits from the U.S. Army Corps of Engineers, Chapter 105 permits from DEP, and others from county conservation districts and municipalities. [3]

A separate DEP floodplain permit under 25 Pa. Code Chapter 106 applies only to highway obstructions and floodplain obstructions constructed, owned or maintained by the Commonwealth, a political subdivision or a public utility, so it does not reach a pond owned by a private landowner that is not a public utility. DEP says Chapter 106 in practice covers the floodway fringe, because floodway work is already regulated under Chapter 105, and the same Joint Permit Application is used for both. [15][18]

• RequirementThe structures and activities DEP regulates under Chapter 105 are regulated under both the Dam Safety and Encroachments Act and section 302 of the Flood Plain Management Act. They include water obstructions and encroachments other than dams, temporary or permanent, located in, along, across or projecting into a watercourse, floodway or body of water.

  Applies when: Any pond work in a stream, its floodway, or an existing body of water 25 Pa. Code § 105.3(a), (a)(4) [8]
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  The following structures or activities are regulated under the act and section 302 of the Flood Plain Management Act (32 P.S. § 679.302): ... (4) Water obstructions and encroachments other than dams located in, along or across, or projecting into a watercourse, floodway or body of water, whether temporary or permanent.

  Open Pennsylvania Code & Bulletin (Legislative Reference Bureau) (opens in a new tab)

• RequirementExcept as otherwise provided in § 302, the Act gives the state (the Department of Environmental Resources, whose functions passed to DEP) exclusive jurisdiction under the Act over four classes of obstructions: (1) any obstruction otherwise regulated under the Water Obstructions Act; (2) flood control projects built, owned or maintained by a governmental unit; (3) highways or other obstructions built, owned or maintained by the Commonwealth or a political subdivision; and (4) obstructions owned or maintained by a public utility. No person may construct, modify, remove, abandon or destroy any of these in the 100-year floodplain without first obtaining a DEP permit; the permit becomes effective 60 days after DEP receives the application unless DEP disapproves it.

  Flood Plain Management Act § 302(a)-(b) (32 P.S. § 679.302), subsec. (b) as amended by Act 65 of 2022 [6]
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  Except as otherwise provided in this section, the Department of Environmental Resources shall have exclusive jurisdiction under this act to regulate: (1) any obstruction otherwise regulated under the Water Obstructions Act; (2) any flood control project ... by a governmental unit; (3) any highway or other obstruction ... by the Commonwealth or a political subdivision thereof; and (4) any obstruction owned or maintained by a person engaged in the rendering of a public utility service. ... unless such person has first applied for and obtained a permit ... effective 60 days

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• ExemptionDEP waives the Chapter 105 permit for a water obstruction in a stream or floodway with a drainage area of 100 acres or less. The waiver does not apply to wetlands located in the floodway, and if DEP, upon complaint or investigation, finds that a waiver-eligible structure or activity has a significant effect upon safety or the protection of life, health, property or the environment, it may require the owner to apply for and obtain a permit.

  Applies when: Pond work in a stream or floodway whose upstream drainage area is 100 acres or less 25 Pa. Code § 105.12(a) (introductory text) and (a)(2) [14]
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  If the Department upon complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect upon safety or the protection of life, health, property or the environment, the Department may require the owner of the structure to apply for and obtain a permit under this chapter. ... (2) A water obstruction in a stream or floodway with a drainage area of 100 acres or less. This waiver does not apply to wetlands located in the floodway.

  Open Pennsylvania Code & Bulletin (Legislative Reference Bureau) (opens in a new tab)

• RequirementIf a proposed dam, water obstruction or encroachment is within a floodway delineated on a FEMA map, a standard Chapter 105 application must include an analysis of the project's impact on the floodway delineation and water surface profiles, plus a letter from the municipality commenting on it. If that analysis shows increased flood elevations, the applicant must add a risk assessment describing affected property and land uses and the added risk to life, property and the environment.

  Applies when: Standard (non-small-project) Chapter 105 application for a pond or dam in a FEMA-delineated floodway 25 Pa. Code § 105.13(e)(1)(vi)-(vii) [16]
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  If the proposed dam, water obstruction or encroachment is located within a floodway delineated on a FEMA map, include an analysis of the project’s impact on the floodway delineation and water surface profiles and a letter from the municipality commenting on the analysis. ... indicates increases in peak rates of runoff or flood elevations, include a description of property and land uses which may be affected and an analysis of the degree of increased risk to life, property and the environment.

  Open Pennsylvania Code & Bulletin (opens in a new tab)

• RequirementDEP's Small Projects application may be used for projects in streams and floodplains where insignificant impacts on safety and protection of life, health, property and the environment can be shown without detailed studies, and may not be used for projects in wetlands. Under its limiting criterion 9, the final grade of excavations, regradings and similar floodplain work must on average match the existing land surface grade, and for structures a letter is required from the local municipality indicating consistency with its floodplain management program.

  Applies when: Small-project Chapter 105 application for floodplain/floodway excavation DEP, Joint Permit Application Instructions (3150-PM-BWEW0036, Rev. 10/2025), Sections II.A-II.B (limiting criterion 9) [15]
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  A Small Projects Application may be made for projects in streams and floodplains where insignificant impacts on safety and protection of life, health, property and the environment can be demonstrated without detailed studies ... The Small Projects Application may not be used for projects located in wetlands. ... The final grade of excavations, regradings, parking lots and similar work in the floodplain shall, on average, match the existing land surface grade. For structures, a letter is required from the local municipality indicating consistency with their local floodplain management program.

  Open Pennsylvania Department of Environmental Protection (opens in a new tab)

• Size cutoffFor bridges and culverts regulated under Chapter 105 (which may include a pond access-road crossing), the structure must be consistent with local floodplain management programs and must pass the 100-year flood with less than a 1.0-foot increase in the natural unobstructed 100-year water surface elevation, and with no increase at all if it is in a floodway delineated on a FEMA map. DEP may approve exceptions if the applicant prepares a risk assessment demonstrating, and DEP finds, that the structure will not significantly increase the flooding threat to life and property or the environment and, if applicable, is consistent with municipal NFIP floodplain management programs and a FEMA Flood Insurance Study.

  Applies when: Culvert or bridge (e.g., farm lane or pond access crossing) over a regulated stream 25 Pa. Code § 105.161(a)(6), (e) [17]
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  The structure shall be consistent with local flood plain management programs. ... less than a 1.0-foot increase in the natural unobstructed 100-year water surface elevation, except where ... in a floodway which is delineated on a FEMA map ... no increase ... will be permitted. Exceptions ... may be approved ... if the applicant prepares a risk assessment which demonstrates, and the Department finds, that the structure will not significantly increase the flooding threat ... consistent with municipal floodplain management programs adopted under the National Flood Insurance Program and a FEMA

  Open Pennsylvania Code & Bulletin (pacodeandbulletin.gov) (opens in a new tab)

• PEMA's guide notes that projects altering watercourses or wetlands face separate federal and state permitting, which may include Clean Water Act Section 404 permits from the U.S. Army Corps of Engineers, Chapter 105 permits from DEP, and others from county conservation districts and municipalities.

  Applies when: On-stream pond, stream relocation, or pond in or near wetlands PEMA, Pennsylvania Floodplain Development Guide (June 2025), Appendix C.4 [3]
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  Special regulations and permitting requirements at both the federal and state level apply to development that is projected to alter watercourses or wetlands. Specific permits may include Section 404 of the Clean Water Act and USACE, Section 105 Permits from PDEP, and others from county conservation districts and municipalities.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• Definition25 Pa. Code Chapter 106 applies only to highway obstructions and obstructions in floodplains that are constructed, owned or maintained by the Commonwealth, a political subdivision, or a public utility. Its definition of "obstruction" is limited to structures, fill or activities owned, maintained or conducted by those entities. It therefore does not reach a pond owned by a private landowner that is not a public utility.

  Applies when: Pond or impoundment owned by a municipality, other political subdivision, the Commonwealth, or a public utility 25 Pa. Code §§ 106.1 (definition of "Obstruction"), 106.3 [18]
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  Obstruction—A structure or assembly of materials owned or maintained by the Commonwealth, a political subdivision of the Commonwealth or a public utility including fill above or below the surface of land or water ... The following highway obstructions or obstructions when located in floodplains must meet the requirements of this chapter: (1) Any highway obstruction or obstruction constructed, owned or maintained by the Commonwealth or a political subdivision of the Commonwealth; and (2) Any obstruction constructed, owned or maintained by a public utility.

  Open Pennsylvania Code & Bulletin (pacodeandbulletin.gov) (opens in a new tab)

Variances, appeals and penalties

PEMA's guide says a person who disagrees with the local floodplain ordinance, or with a municipal decision about development in the SFHA, may appear before a Zoning Hearing Board or other applicable entity, which considers the appeal under the "Municipality's Planning Code or equivalent local ordinance." PEMA says a variance allows development the ordinance would otherwise prohibit and, because it can increase risk to life and property, variances should be granted rarely. [3]

Under PEMA's suggested ordinance, the Zoning Hearing Board may grant a variance where strict compliance would cause exceptional hardship, but no variance may cause any increase in base flood elevation in the Identified Floodplain Area or a Floodway Area, or a cumulative increase of more than one foot in an AE area without floodway. A variance must be the least modification needed, may carry conditions, and requires written notice to the applicant that it may raise flood insurance premiums and increase risk to life and property. [11]

The suggested ordinance makes a violation a misdemeanor or summary offense, as the municipality chooses, with a fine of $25 to $600 plus costs of prosecution, and lets the governing body declare noncompliant development a public nuisance to be abated. Appeals of Floodplain Administrator decisions must be filed in writing within 30 days, with the Zoning Hearing Board or the Court of Common Pleas depending on which the municipality names in its adopted text. [11]

PEMA, DEP and municipalities administering floodplain regulations have the power and duty to investigate complaints, survey floodplains and obstructions, and bring prosecutions and civil proceedings to enforce the Act. On presenting proper credentials, their agents have the power and duty to enter floodplain land to ascertain the location and condition of obstructions and compliance, and may apply for an inspection warrant if refused access or if access without prior notice is reasonably required. [6]

A person aggrieved by a DEP action under the Act granting, modifying, suspending or revoking a permit, or issuing an order, may appeal to the Environmental Hearing Board within 30 days of receiving notice. The Act says the appeal does not act as a supersedeas, and that a supersedeas may be granted if the petitioner shows that irreparable harm will result if it is denied, that the petitioner is likely to succeed on the merits, and that granting it will not cause irreparable harm to the Commonwealth. [6]

• ProcessAccording to PEMA's guide, a person who disagrees with the local floodplain ordinance's requirements or with a municipal decision about development in the SFHA may appear before a Zoning Hearing Board or other applicable entity, which considers the appeal in accordance with the "Municipality's Planning Code or equivalent local ordinance." PEMA says a variance allows development the ordinance would otherwise prohibit and, because it can increase risk to life and property, variances should be granted rarely.

  PEMA, Pennsylvania Floodplain Development Guide (June 2025), Appendices C.2-C.3 [3]
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  When a community grants a variance, it is allowing development to occur which otherwise would be prohibited by the ordinance. ... they should be granted rarely. ... If an individual disagrees with the requirements of the local floodplain ordinance or with the decisions of the municipality regarding development within the SFHA, they may appear to a Zoning Hearing Board or an applicable entity. The Zoning Hearing Board (or their equivalent) will consider the appeal in accordance with the Municipality’s Planning Code or equivalent local ordinance.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• ProcessUnder PEMA's suggested ordinance, the municipal Zoning Hearing Board may grant a variance where strict compliance would cause exceptional hardship. No variance may be granted that would cause any increase in base flood elevation in the Identified Floodplain Area or a Floodway Area, or a cumulative increase of more than one foot in an AE area without floodway. A granted variance must be the least modification needed, may carry conditions, and requires written notice to the applicant that it may raise flood insurance premiums and increase risk to life and property.

  PEMA, Suggested Provisions (July 2023), §§ 8.01-8.02 [11]
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  would result in an exceptional hardship ... Zoning Hearing Board may, upon request, grant relief ... No variance shall be granted within any Identified Floodplain Area that would cause any increase in BFE. ... Floodway Area/District that would cause any increase in the BFE. ... AE Area/District without floodway that would, together with all other existing and anticipated development, increase the BFE more than one (1) foot at any point. ... least modification necessary to provide relief. ... The granting of the variance may result in increased premium rates for flood insurance.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• PEMA's suggested ordinance proposes that violating the floodplain ordinance be a misdemeanor or summary offense (the municipality chooses), with a fine of not less than $25 nor more than $600 plus costs of prosecution; noncompliant development may be declared by the governing body to be a public nuisance and abated. Appeals of Floodplain Administrator decisions go, in writing within 30 days, to the Zoning Hearing Board or the Court of Common Pleas (the municipality chooses one in its adopted text).

  PEMA, Suggested Provisions (July 2023), §§ 3.10(B), 3.11(A) [11]
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  shall be guilty of a [misdemeanor OR summary offense] and upon conviction shall pay a fine to [Name of Municipality], of not less than Twenty-five Dollars ($25.00) nor more than Six Hundred Dollars ($600.00) plus costs of prosecution. ... may be declared by the [Board, Council, etc.] to be a public nuisance and abatable as such. ... Such appeal must be filed, in writing, within thirty (30) days after the decision, determination or action of the Floodplain Administrator.

  Open Pennsylvania Emergency Management Agency (PEMA) (opens in a new tab)

• ProcessPEMA, DEP and every municipality administering floodplain regulations have the power and the duty to investigate complaints, survey floodplains and obstructions, institute prosecutions and civil proceedings to enforce the Act, and establish reasonable fees for permit processing. Their agents have the power and duty, on presenting proper credentials, to enter land in a floodplain to ascertain the location and condition of obstructions and compliance, and may apply for an inspection warrant if refused access or if access without prior notice is reasonably required.

  Flood Plain Management Act §§ 402, 403 (32 P.S. §§ 679.402-679.403), as amended by Act 65 of 2022 [6]
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  shall have the additional power and its duty shall be to: (1) Investigate complaints and conduct surveys of flood plains and obstructions. (2) Institute prosecutions and civil proceedings to enforce the provisions of this act. ... (4) Establish reasonable fees for permit processing ... Enter any land in a flood plain for the purpose of ascertaining the location and condition of obstructions. ... has been refused access to property ... or reasonably requires access to such property without prior notice to the owner, such agent or employee may apply for an inspection warrant

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• ProcessA person aggrieved by an action of the Department (named in the Act as the Department of Environmental Resources) granting, modifying, suspending or revoking a permit, or issuing an order, under the Act has the right to appeal to the Environmental Hearing Board within 30 days of receiving notice. An appeal does not act as a supersedeas; the agency hearing the appeal may grant a supersedeas on the petitioner's showing of irreparable harm if denied, likelihood of success on the merits, and no irreparable harm to the Commonwealth.

  Flood Plain Management Act § 503(b)-(c) (32 P.S. § 679.503) [6]
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  Any person aggrieved by an action of the Department of Environmental Resources in granting, modifying, suspending or revoking a permit or in issuing an order shall have the right within 30 days of receipt of notice of such action to appeal such action to the Environmental Hearing Board ... shall not act as a supersedeas. A supersedeas may be granted ... upon a showing by the petitioner: (1) that irreparable harm ... likelihood of the petitioner's success on the merits; and (3) that the grant of a supersedeas will not result in irreparable harm to the Commonwealth.

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Act 166, Act 65 and PEMA's role

Pennsylvania's Flood Plain Management Act is Act 166 of 1978. Act 65 of 2022, approved July 11, 2022 and effective 60 days later, replaced the Act's references to the Department of Community Affairs with PEMA, and the Act's title now assigns duties and powers to PEMA, DEP and municipalities. [6][13]

Under Act 65's transition rule, orders, regulations, rules and decisions of the Department of Community Affairs or DCED that were in effect on Act 65's effective date remain in force until PEMA revokes, vacates or modifies them. 12 Pa. Code Chapter 113, the floodplain regulations for municipalities adopted by the Department of Community Affairs and later DCED, is still published in the Pa. Code (current through July 4, 2026) with "Department" defined as DCED, and no PEMA replacement rule was found. [5][6][19]

PEMA, in consultation with DEP, reviews and approves all municipal floodplain management regulations and amendments to ensure they meet NFIP requirements and are coordinated and uniformly enforced throughout each watershed. PEMA may not adopt state regulations stricter than the NFIP or require municipal regulations to be stricter, except for development dangerous to human life (§ 207) and the special hazards under §§ 301-302. [6]

The Act's special-hazard list is limited to hospitals, nursing homes, jails, new mobile home parks, and subdivision or substantial additions to mobile home parks or subdivisions; these are prohibited in the floodplain (or a designated portion of it) except under a municipal special exception that takes effect 30 days after PEMA receives notice unless PEMA disapproves it. Ponds are not on this list. [6]

PEMA says it provides community assistance visits, mapping and technical assistance, and training, and implements the NFIP; it also says every flood-prone municipality must submit an annual floodplain management report. If a municipality has not complied with Chapter 2 of the Act or PEMA's regulations within 180 days of a PEMA notice of violation, PEMA notifies the State Treasurer to withhold all Commonwealth funds payable to the municipality until it complies. [6][20]

DCED's flood maps page says legislation fully transferred the NFIP to PEMA (see Conflicts on the date it gives) and lists the PEMA Floodplain Manager contact as ra-emfloodplainmgtin@pa.gov. [12]

• StatusPennsylvania's Flood Plain Management Act is the Act of Oct. 4, 1978, P.L. 851, No. 166 ("Act 166"). As amended by Act 65 of 2022, its title now provides for regulation of land and water use for flood control purposes and imposes duties and confers powers on the Pennsylvania Emergency Management Agency (PEMA), the Department of Environmental Protection (DEP) and municipalities.

  Flood Plain Management Act, title and § 101 (Act 166 of 1978) [6]
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  Act of Oct. 4, 1978,P.L. 851, No. 166 Cl. 32 - FLOOD PLAIN MANAGEMENT ACT ... Providing for the regulation of land and water use for flood control purposes, imposing duties and conferring powers on the Pennsylvania Emergency Management Agency, the Department of Environmental Protection, and municipalities, providing for penalties and enforcement and making appropriations.(Title amended July 11, 2022, P.L.738, No.65) ... This act shall be known and may be cited as the "Flood Plain Management Act."

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• StatusAct 65 of 2022 (HB 1598), approved July 11, 2022, amended the Flood Plain Management Act to replace references to the Department of Community Affairs with the Pennsylvania Emergency Management Agency (PEMA). The act took effect 60 days after approval. It also repealed Article V-B of The Administrative Code of 1929.

  Act of July 11, 2022, P.L. 738, No. 65, title, §§ 6(2) and 7 [13]
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  replacing references to the Department of Community Affairs with the Pennsylvania Emergency Management Agency ... Article V-B of the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, is repealed. ... Section 7. This act shall take effect in 60 days. ... APPROVED--The 11th day of July, A.D. 2022.

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• StatusTransition rule: activities begun by the Department of Community Affairs or DCED continue and may be completed by PEMA, and DCA/DCED orders, regulations, rules and decisions in effect on the effective date of Act 65 remain in full force until PEMA revokes, vacates or modifies them. (Read with the fact that 12 Pa. Code Chapter 113 is still published in the Pa. Code, this appears to be why the DCED-era floodplain regulations still apply; no PEMA replacement rule was found.)

  Act 65 of 2022, § 5 (reproduced in the appendix to Act 166) [6]
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  All activities initiated by the Department of Community Affairs or the Department of Community and Economic Development shall continue and remain in full force and effect and may be completed by the Pennsylvania Emergency Management Agency. Orders, regulations, rules and decisions which were made by the Department of Community Affairs or the Department of Community and Economic Development and which are in effect on the effective date of this section shall remain in full force and effect until revoked, vacated or modified by the Pennsylvania Emergency Management Agency.

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• AgencyPEMA, in consultation with DEP, reviews and approves all municipal floodplain management regulations and amendments to ensure they meet NFIP requirements and are coordinated and uniformly enforced throughout each watershed. PEMA may not adopt state regulations stricter than the NFIP or require municipal regulations to be stricter than the NFIP, except for development dangerous to human life (§ 207) and the special hazards under §§ 301-302.

  Flood Plain Management Act §§ 205(a), 206 (32 P.S. §§ 679.205-679.206), as amended by Act 65 of 2022 [6]
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  review and approve all municipal flood plain management regulations, and amendments thereto, for the purpose of assuring that such regulations comply with the requirements of the National Flood Insurance Program and that such regulations are coordinated and uniformly enforced throughout each watershed. ... shall not adopt regulations more strict than the regulations of the National Flood Insurance Program and shall not require the regulations of the municipalities to be more strict ... That these limitations shall not apply to section 207 or the special hazards under sections 301 and 302.

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• RequirementSpecial-hazard obstructions: PEMA's list is limited to hospitals, nursing homes, jails, new mobile home parks, and subdivision or substantial additions to mobile home parks or subdivisions. These are prohibited in the floodplain (or designated portion) except under a municipal special exception, which takes effect 30 days after PEMA receives notice unless PEMA disapproves it. Ponds are not on this list.

  Flood Plain Management Act § 301(a), (b), (d) (32 P.S. § 679.301) [6]
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  These obstructions are limited to: hospitals, nursing homes, jails, new mobile home parks, subdivision or substantial additions to mobile home parks or subdivisions. ... shall be prohibited except in accordance with a special exception issued pursuant to this section. ... The special exception shall become effective 30 days following the receipt of notice by the Pennsylvania Emergency Management Agency unless the special exception is disapproved by the Pennsylvania Emergency Management Agency.

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• ProcessIf PEMA finds a municipality has not complied with Chapter 2 (NFIP participation and floodplain regulations) or PEMA's regulations, it issues a written notice of violation; the municipality must report its corrective action within 60 days, and if it has not complied within 180 days PEMA notifies the State Treasurer to withhold all Commonwealth funds payable to the municipality until compliance.

  Flood Plain Management Act § 501 (32 P.S. § 679.501), as amended by Act 65 of 2022 [6]
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  Within 60 days of receipt of the notice of violation, the municipality shall report to the Pennsylvania Emergency Management Agency the action which it is taking to comply with the requirement or regulation. ... If within 180 days of receipt of the notice of violation, the municipality has failed to comply ... the Pennsylvania Emergency Management Agency shall notify the State Treasurer to withhold payment of all funds payable to the municipality

  Open Pennsylvania General Assembly (palegis.us) (opens in a new tab)

• AgencyDCED's "Pennsylvania Flood Maps" page states that as of September 7, 2021 DCED no longer houses or has responsibility for any aspect of the National Flood Insurance Program (NFIP) and that legislation fully transferred the program to PEMA. The page lists the PEMA Floodplain Manager contact as ra-emfloodplainmgtin@pa.gov.

  DCED, "Pennsylvania Flood Maps" web page (National Flood Insurance Program section) [12]
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  As of September 7, 2021, DCED no longer houses or has responsibility for any aspect of the National Floodplain Insurance Program (NFIP). Legislation fully transferred the program to the Pennsylvania Emergency Management Agency (PEMA) ... PEMA Floodplain Manager ra-emfloodplainmgtin@pa.gov

  Open Pennsylvania Department of Community and Economic Development (DCED) (opens in a new tab)

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