
    Flood Control Projects
    August 28, 1972.—
   CREAMER, Attorney General,

You have asked us to construe section 602 of the Eminent Domain Code of June 22, 1964, P.L. (Special Sessions) 84, as amended by the Act of October 19, 1967, P.L. 460, 26 PS §1-602, and specifically that paragraph of that section which reads as follows:

“In case of the condemnation of property in connection with any flood control project which property is damaged by floods, the damage resulting therefrom shall be excluded in determining fair market value of the condemnee’s entire property interest therein immediately before the condemnation; provided such damage has occurred within three years of the date of taking and during the ownership of the property by the condemnee. The damage resulting from floods to be excluded shall include only physical damage to the property for which the condemnee has not received any compensation or reimbursement.”

Your question relates to the determination of when a particular project might be considered to be “in connection with any flood control project,” and how such a determination may be made.

It should be emphasized, firstly, that the project may be designated an “open-space” project, an urban renewal project, a State urban redevelopment project, etc. The source of funding and the name of the program under which such funding takes place is not determinative of whether the project is or is not “in connection with any flood control project.”

The term “flood control project,” secondly, is not defined by the act and it must be concluded, therefore, that the legislature used that term to mean any project that could be so described by the appropriate flood control experts, e.g., Army Corps of Engineers, Pennsylvania Department of Environmental Resources, as a project which, in addition to other reasons for its implementation, serves a purpose of flood control.

While many examples of land needed for flood control come to mind, e.g., land taken in connection with damming a river to reduce the risk of future flooding, or land needed to serve as a natural barrier for future floods, the decision in each case must come from the experts involved.

It should be added that the term “flood control project” certainly includes any project developed by the Water and Power Resources Board of the Department of Environmental Resources under the “Flood Control District” Act of August 7, 1936, P.L. 106, 32 PS §653, et. seq., as amended, and any project developed by local government under the Act of August 6, 1936, P.L. 95, 53 PS §2861, as amended. Neither of those acts define the phrase “flood control project” but use the term freely and describe procedures for carrying out such projects.  