April Showers Bring May Fees

Unfunded government mandates come in many forms. One of the newest challenges to municipal governments is based upon mother nature and rainfall, which eventually becomes stormwater, and is now the subject of considerable new and complicated governmental regulations.

A few decades ago, municipalities began to adopt ordinances in order to require the collection and/or retention and/or detention of stormwater. As housing projects and other commercial developments were created on what was previously undeveloped land, additional impervious coverage was created. As a result of that development, rainwater was not able to replenish itself into the ground or the water table, and unregulated stormwater caused problems with runoff and other types of erosion.

In the early days of the regulations, the concern was to regulate volume of stormwater runoff and to eliminate sheet flow runoff or directly discharging stormwater onto another property, which could lead to damage. Failing to properly manage the stormwater resulted in extensive soil erosion and flash flooding of property that had never been subject to flooding previously.

This led to municipalities and counties enacting stormwater management ordinances that required, typically, some type of detention of stormwater to limit the rate it could be discharged onto other properties and to ensure that post-development stormwater rates did not increase from pre-development stormwater rates. Many of the requirements would result in the creation of basins which were designed to hold or retain water, either temporarily or permanently.  Although the regulations required basin maintenance, unfortunately, many times, enforcement of these regulations was lacking.

In more recent times, all levels of government have become more interested in the quality of stormwater in addition to regulating the quantity of stormwater. Beginning with the Clean Streams Law and other state and federal regulations, the Environmental Protection Agency began to promulgate regulations that were passed down through state agencies, including Pennsylvania’s Department of Environmental Protection. These regulations required municipalities to begin to regulate not only quantity but the quality of stormwater.

Some of the most high profile cases involve lawsuits concerning the discharge of solids and other sediments into the Chesapeake Bay from areas known as the “Chesapeake Bay Watershed.” As a result of the lawsuits and other regulations, state entities began to impose stringent requirements on municipalities with respect to stormwater management and how stormwater would be treated and ultimately returned to the ecological system. 

Currently, municipalities are required to have stormwater management ordinances, which are reviewed and updated on a regular basis to continue to ensure that stormwater is reduced from development projects, and that the quality of water is enhanced to ensure that plants and animal life prosper. 

Best management practices have been developed whereby stormwater is better filtered and cleaned before returning to regular streams and tributaries. Best management practices now include rain barrels, rain gardens with plantings that are more naturalized in an attempt to absorb and infiltrate the water into the ground rather than to simply have the water run off the surface. 

These requirements, however, come with a cost. Initially, Pennsylvania passed legislation to permit the creation of Stormwater Authorities to regulate and charge fees to conduct stormwater management activities. Although these fees are required to be uniform and reasonable, they are typically based on the amount of stormwater the properties create.  In addition, credits can be given for those properties that attempt to infiltrate or use best management practices to limit stormwater and encourage infiltration into the ground and, ultimately, the water table.

Finally, more recently, the state legislature is looking into methods to permit municipalities to directly charge for stormwater management fees rather than to force them to create authorities for that purpose.  While the goal of these regulations is worthy in that it will allow stormwater to return to groundwater sources, there are obvious costs that we all must bear in order to achieve this goal.  As a result, stormwater management facilities are becoming that much more complicated and expensive and the failure of municipalities to comply can result in fines and other penalties imposed by both the State and Federal Government.  Based upon the ever-changing rules and regulations, it is fair to say that municipalities will continue to be challenged by these current and new regulations that are likely to result.

Charles D. Garner, Jr., Esquire is an attorney in the law firm of Wolf, Baldwin & Associates, P.C., which maintains offices in Pottstown, Reading and West Chester.  He has significant experience in municipal representation, zoning and land use matters.  He and the firm have other diverse experience including small business representation, municipal employment negotiation and litigation, contracts and civil litigation, and estate planning and administration.  Mr. Garner can be reached at 610.323.7436 or by email to cgarner@wolfbaldwin.com.