H. B. 4059
(By Delegates DeLong, Amores, Mahan, Morgan, Pethtel, Pino,
Azinger, Hamilton, Schadler)
____________
[Introduced January 20, 2006;
referred to the Committee on the Judiciary.]
____________
A BILL to amend and reenact §7-1-3u of the Code of West Virginia,
1931, as amended; and to amend and reenact §19-21A-4 of said
code, all relating to flood plain management and flood debris
generally; requiring flood plain management plans to prohibit
or regulate placement of manufactured housing and storage of
materials which may become flood debris or present additional
flood hazards; requiring local governments establish penalties
for violations of
flood plain management plans; and
authorizing the conservation agency to remove debris and other
impediments during flood emergencies.
Be it enacted by the Legislature of West Virginia:
That §7-1-3u of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §19-21A-4 of said code be amended
and reenacted, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3u. Authority of counties and municipalities to treat streams
to prevent floods.
(a) To protect people and property from floods, counties and
municipalities are hereby empowered to rechannel and dredge
streams; remove accumulated debris, snags, sandbars, rocks and any
other kinds of obstructions from streams; straighten stream
channels; and carry out erosion and sedimentation control measures
and programs.
(b) For stream treatment to prevent floods as provided in this
section, counties and municipalities are hereby further empowered
to levy, within all constitutional and statutory limitations;
acquire property by purchase, exercise of the right of eminent
domain, lease, gift or grant; accept any and all benefits, moneys,
services and assistance which may be available from the federal and
state government or any private source; issue and sell bonds within
the constitutional and statutory limitations prescribed by law for
the issuance and sale of bonds by counties and municipalities for
public purposes generally. Any such levy shall be equal and
uniform throughout the county or municipality.
(c) The power and authority granted in this section, may be
exercised by any county or municipality in cooperation with each
other or separately as provided in section three-i of this article.
Any county or municipality which exercises any power or authority
set forth in this section shall comply with all applicable
provisions of federal and state laws and rules and regulations
lawfully promulgated thereunder.
(d) Each county commission and municipal governing body shall,
as part of its flood plain management plan, on before June 30, 2008, prohibit location of manufactured housing whether permanent
or temporary, utilized for a residence, vacation home or camp and
storage of hazardous or floatable materials, outbuildings,
culverts, pipes and fuel oil and propane tanks within the regulated
flood plain.
(1) The county commission or municipal governing body may, in
lieu of a total prohibition, require such items to be elevated
above the level of the one hundred year flood plain on reinforced
piers, securely anchored to a fixed structure on a permanent
foundation, relocated out of the regulated flood plain or utilize
other appropriate measures designed to keep such items out of
streams, resist expected flood waters and impact from debris.
(2) For purposes of this section "manufactured housing" means
a structure, transportable in one or more sections, which is built
and remains on a permanent chasse and designed to be used as a
dwelling with or without a permanent foundation; the term includes
any structure commonly referred to as factory built home, mobile
home, house trailer, modular home and any camper, trailer or
recreational vehicle located permanently or temporarily in a flood
plain.
(3) Each county commission and municipal governing body shall
establish penalties for violations of its flood plain management
plan.
(e) The term "stream" as used in this section means any
watercourse, whether natural or man-made, distinguishable by banks
and a bed, regardless of their size, through which water flows continually or intermittently, regardless of its volume.
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-4. State conservation committee; continuation.
(a) The State Conservation Committee is continued. It serves
as an agency of the state and is to perform the functions conferred
upon it in this article. The committee consists of the following
ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry
Experiment Station;
(C) The Secretary of the Department of Environmental
Protection;
(D) The State Commissioner of Agriculture, who is the
chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of
Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the
Senate, the four citizen members. Members shall be appointed for
four-year terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. In the event
of a vacancy, the appointment is for the unexpired term.
© The Committee may invite the Secretary of Agriculture of the
United States of America to appoint one person to serve with the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions,
shall adopt a seal, which shall be judicially noticed, and may
perform those acts, hold public hearings and adopt or propose for
legislative approval rules necessary for the execution of its
functions under this article.
(e) The State Conservation Committee may employ an
administrative officer, technical experts and other agents and
employees, permanent and temporary, as it requires. The
administrative officer and support staff shall be known as the West
Virginia Conservation Agency. The Committee shall determine their
qualifications, duties and compensation. The Committee may call
upon the Attorney General of the state for legal services it
requires. It may delegate to its chairperson, to one or more of
its members, or to one or more agents or employees powers and
duties it considers proper. The Committee may secure necessary and
suitable office accommodations and the necessary supplies and
equipment. Upon request of the Committee, for the purpose of
carrying out any of its functions, the supervising officer of any
state agency or of any state institution of learning shall, insofar
as may be possible, under available appropriations and having due
regard to the needs of the agency to which the request is directed,
assign or detail to the Committee, members of the staff or
personnel of the agency or institution of learning and make special
reports, surveys or studies required by the Committee.
(f) A member of the Committee holds office so long as he or she retains the office by virtue of which he or she is serving on
the Committee. A majority of the Committee is a quorum and the
concurrence of a majority in any matter within their duties is
required for its determination. The chairperson and members of the
Committee may receive no compensation for their services on the
Committee, but are entitled to reimbursement of expenses, including
traveling expenses necessarily incurred in the discharge of their
duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees
and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate public
record of all proceedings and of all resolutions, rules and orders
issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts
and disbursements.
(g) In addition to other duties and powers conferred upon the
State Conservation Committee, it may:
(1) Offer appropriate assistance to the supervisors of
conservation districts, organized as provided in this article, in
the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts,
organized under the provisions of this article, informed of the
activities and experience of all other districts organized under
this article and facilitate an interchange of advice and experience
between the districts and cooperation between them;
(3) Coordinate the programs of the several conservation districts so far as this may be done by advice and consultation;
(4) Secure the cooperation and assistance of the United States
and any of its agencies and of agencies of this state in the work
of the districts;
(5) Disseminate information throughout the state concerning
the activities and programs of the conservation districts and
encourage the formation of the districts in areas where their
organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants
and appropriations in money, services, materials or otherwise from
the United States or any of its agencies, from the State of West
Virginia or from other sources and use or expend the money,
services, materials or other contributions in carrying out the
policy and provisions of this article, including the right to
allocate the money, services or materials in part to the various
conservation districts created by this article in order to assist
them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange,
lease, gift, grant, bequest, devise or otherwise any property, real
or personal, or rights or interests in the property; maintain,
administer, operate and improve any properties acquired; receive
and retain income from the property and to expend the income as
required for operation, maintenance, administration or improvement
of the properties or in otherwise carrying out the purposes and
provisions of this article; and sell, lease or otherwise dispose of
any of its property or interests in the property in furtherance of the purposes and the provisions of this article. Money received
from the sale of land acquired in the small watershed program shall
be deposited in the special account of the State Conservation
Committee and expended as provided in this article.
(8) To promulgate emergency and legislative rules to
effectuate the provisions of this article as amended and reenacted
by the Legislature during the regular session of the Legislature in
the year two thousand five.
(9) During and after a flood event agency employees, its
agents or contractors may enter any water of the state for the
purpose of removing debris and other obstructions which impede
water flow and present additional flood hazards. The agency shall
conduct this effort as part of its current stream recovery programs
in cooperation with other federal, state and local entities. In
exercising this emergency power agency employees, its agents and
contractors are authorized to enter any property regardless of
ownership when and where necessary to most efficiently carry out
the tasks necessary to reduce additional flood hazzards during a
flood event. The exercise of this limited authority does not
constitute taking of private property or trespass.
NOTE: The purpose of this bill is enact measures to assist
local and state authorities in flood plain management and flood
clean up.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.