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Thursday, July 25, 2013

Stormwater Dischargers May Soon Have to Pay in PA

Two weeks ago, Pennsylvania took a huge step forward to empower its municipalities to better manage stormwater with the signing into law of Senate Bill 351, which amended the Commonwealth’s statutes governing municipalities to specifically allow the creation of municipal stormwater authorities (MSAs).

A handful of municipalities in PA have already created MSAs, but there have reportedly been several more municipalities that have considered creating MSAs but have been reluctant to do so in the absence of a statute explicitly authorizing such bodies.  This legislation provides that authorization for creation of MSAs that are empowered to finance, build, maintain, and operate municipal stormwater projects and infrastructure. This authorization would include assessing usage fees.

Local governments in Pennsylvania have needed additional tools to help them address the escalating costs of managing stormwater to address both flooding problems and regulatory requirements for surface water quality.  I’ve read about complaints from many smaller municipalities about unfunded mandates from both the Pennsylvania Department of Environmental Protection (PADEP) and the U.S. Environmental Protection Agency (EPA).  And it is understandable that a second-class township in Pennsylvania might not have the budget to take on ambitious stormwater management projects without significant tax increases to their residents.  This newly passed legislation expressly allows municipalities in PA to create municipal stormwater authorities to deal with PADEP and EPA stormwater mandates.

Establishing an MSA would help create a stable source of funding for municipal stormwater management planning and infrastructure and even for flood mitigation projects.   MSAs can assess property owners that discharge stormwater to public infrastructure or to surface waters of the Commonwealth based on the volume of stormwater they discharge.  These MSA usage fees would provide incentives for private property owners to install and maintain stormwater management infrastructure on their own properties, thus reducing costs to local governments and taxpayers for managing runoff from larger private tracts.  The United States Geological Survey estimates that, in urban areas, impervious surfaces (parking lots, sidewalks, and buildings) account for 53.9% of the surface area.  That means that, in urban areas, less than half of the land surface is available to allow stormwater to infiltrate into the ground.  Therefore, appropriate controls must be in place to prevent oil, grease, and debris from being washed into surface waters with stormwater runoff from these extensive urban and suburban impervious surfaces.

To put this into proper perspective, about two years ago PADEP initiated a requirement that new development projects (post-construction) must manage all of their stormwater on-site for any storm events up to 2-year storms (in other words, storms in which the maximum rainfall statistically would occur only once every 2 years).  Developers don't like having to build large stormwater retention basins, because these structures take up land that they would otherwise build on or pave over (creating even more impervious surfaces).  The on-going problem in PA stems from projects that were approved and built more than a couple of years ago.  Those are the properties that need to step up now and pay for their share of the public infrastructure, along with all properties that rely on public infrastructure to manage runoff in excess of 2-year storms.

I know there will be some people griping that this legislation somehow amounts to a new tax – a stormwater tax.  Hogwash.  One of the first things that any student of economics learns is TANSTAFL – the acronym standing for, “There Are No Such Things As Free Lunches.”  Whether we’re talking lunch or stormwater discharge, if you are not paying for it yourself, someone else is paying for it.  In the case of a shopping center discharging huge volumes of stormwater runoff from their expansive parking lots during and following intense rain events, that property is sending way more stormwater runoff to the nearest body of surface water than the undeveloped land would have discharged.  Therefore, that shopping center should improve their capacity to retain and infiltrate stormwater on their own property.  If they chose to ignore that responsibility, the local taxpayers should not pay for infrastructure to mitigate that runoff, and they should not be inconvenienced by flash flooding from inadequate, private stormwater management facilities.  Thus, a usage fee assessed by an MSA is exactly that – a fee for services rendered.  Cutting off a property owner from a free lunch – in this case taxpayer subsidized stormwater management – is clearly NOT a tax.

To be fair in this post, I have to direct some blame to municipalities themselves for, in most cases, having archaic and counter-productive zoning and land development ordinances that require far more parking capacity (and thus more impervious surfaces) than is really necessary at big box developments.  More realistic parking space requirements and provisions to allow rain gardens and some of the newer types of permeable pavement (ie. pervious surfaces) would go a long way to ease the stormwater impact of new commercial projects and to retrofit existing commercial developments.       

This new legislation simply makes MSAs legally legitimate entities.  It does not mandate any municipality to create an MSA.  Municipal leaders, both elected and volunteers, need to take the next step and form exploratory committees to thoroughly evaluate the pros and cons of creating an MSA for their municipalities.  Once municipalities look past the red herring of the "new tax" claim, I think it will be clear for most local governments that an MSA would greatly benefit their residents by relieving part of the current stormwater burden on their Public Works budgets.

(all photos copyrighted by author)

7/26/13 - Additional Info on SB 351
Last week when I first learned about SB 351, I wrote to my State Senator, Pat Browne, a co-sponsor of this legislation, to find out whether this legislation would apply to the case of multiple municipalities that wanted to create a joint MSA.  This would be significant, because stormwater and floodwater management must really be addressed in terms of an entire watershed.  And I've never seen a watershed whose boundaries followed the convoluted boundaries of any one particular municipality.  Good news.  I just received the following response from the Legislative Counsel in Sen. Browne's office, Vicki Wilken.  She said:
"It is my understanding from speaking with the prime sponsor of the legislation, Senator Erickson, that the intent of the legislation was to allow municipal authorities to do just as you mention in your email, allow those municipalities in the same watershed basin to work together on storm water management planning and projects.

 "SB 351 amends the Municipality Authorities Act (Chapter 56 of Title 53) by adding storm water management planning and projects to the purposes and powers of municipal authorities.   In addition, the act provides municipal authorities with the ability to engage in water management planning and projects, but they are not required to do so.  Further, those existing authorities may include these in their operation of existing projects."

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