Municipal Stormwater Fee Legislation Under Consideration

Elevated stormwater runoff caused by buildings and pavement is a major contributor to water quality impairments and flooding. Municipalities with their authority over land development are primary stakeholders in efforts to improve water quality and reduce flooding through stormwater management improvements. Because of the high cost of addressing adverse impacts from past development, and rising cost to maintain existing and new stormwater management infrastructure, municipalities are considering new ways to finance their stormwater programs.

Municipalities in the past have relied on grants, loans and general funds to finance their stormwater programs. More recently, cities, townships and boroughs are considering dedicated and stable sources of funding for stormwater programs including the formation of municipal stormwater authorities and the establishment of stormwater fees. Unlike general tax revenue, revenue generated via stormwater fees is dedicated solely to stormwater management programs and projects.

State elected officials have and continue to develop legislation that clarifies a municipality’s ability to create dedicated stormwater funding programs. Municipalities have long formed local and regional authorities that provide drinking water or treat sewage. These authorities are separate governmental units that can assess fees in order to develop and deliver their services to the public. Many municipalities were reluctant to consider forming stormwater authorities because the word “stormwater” was not explicitly stated in the Municipal Authorities Act (MMA).

That changed in July of 2013 when Senate Bill 351, introduced by Senator Ted Erikson, was signed into law by Governor Corbett as Act 68. Act 68 essentially added “Storm water Planning, Management, and Implementation” as an activity that a municipal authority can take on.  In 2014, the MAA was again amended to specifically authorize the establishment of stormwater fees.

But that is not the end of the legislative story; although Act 68 enables stormwater authorities, it did not address the question of whether a municipality or borough can directly assess its own stormwater fee without first forming a separate authority. Some municipalities may be reluctant to enter into or form a new authority, which they view as independent and not under their control. Municipalities may also prefer what they view as the simpler route of assessing their own stormwater fee without having to create or enter into an entirely new organization.

To make this issue more complicated, townships in Pennsylvania fall under several designations depending on their population density. As density increases, second class townships can become first class townships if they choose. Any township, regardless of class, can also choose to be “home rule”, whereupon it does not follow Pennsylvania Township Code except where limited by state law. Boroughs are another class of municipality, an urbanized area smaller than a city. Boroughs can also choose to be “home rule”.

Why the emphasis on “home rule” in this discussion of stormwater fees? Home rule townships and boroughs do not see any legal issue associated with assessing their own stormwater fee. Some, like Radnor Township, being home rule, proceeded down the path in 2013 of assessing their own stormwater fee without forming an authority.

Boroughs and Class 1 and 2 townships interested in assessing their own stormwater fee may get clarification on this issue soon, as three separate bills were introduced by house legislators in 2015.

House Bill 1325 introduced on June 12, 2015, would enable second class townships to assess fees based on the characteristics of the subject property, allowing the funds to be used for the installation and maintenance of stormwater best management practices. The bill includes a provision enabling the board of supervisors to enact and enforce ordinances that govern the installation and maintenance of stormwater facilities.

House Bill 1394 introduced on June 24, 2015, would enable boroughs to enact and enforce ordinances that govern the installation and maintenance of stormwater facilities. The bill is less direct in its discussion of a borough stormwater fee program. It states that a borough may pay for work or activity authorized under the ordinance from “money of the borough available for that purpose”.

House Bill 1661 introduce on October 23, 2015 would enable first class townships to do a number of things including:

  • Install facilities to manage surface water runoff.
  • Acquire a facility by purchase, deed of dedication or eminent domain proceedings (from property owners in township) for the management of surface water runoff.
  • Install projects consistent with Act 167 Stormwater Management Act and Watershed Storwmater Management Plans approved by PA DEP. If no such plans exist, the bill requires that the stormwater project plans be submitted to the County Conservation District for review.
  • Enact and enforce ordinances that govern the installation and maintenance of stormwater facilities.
  • Assess a stormwater fee based on the characteristics of subject property, allowing the funds to be used for the installation or maintenance of stormwater facilities.

This pending legislation should help clarify a municipality’s ability to create stable and long term sources of funding to address stormwater issues. Municipalities can collaborate and consider the formation of stormwater authorities that can more efficiently address tributary and watershed scale stormwater impacts. They can also work individually through stormwater fee programs. Authority and fee programs are a powerful finance tool that can help municipalities fund the installation and maintenance of stormwater best management projects, leading to clean water, reduced flooding, and healthier streams. We will provide updates on the status of the three pending bills described above.

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