Federal Clean Water Act regulations require municipalities that meet certain size standards based on census data, obtain NPDES permits for discharges of stormwater from their municipal separate storm sewer systems (MS4s). Phase I of this requirement occurred years ago for large MS4s such as Philadelphia and Pittsburgh. Phase II includes small and medium size MS4s.
In PA, there are 1,059 small MS4s. When stormwater runoff enters an MS4, it will be discharged into local rivers and streams without treatment. The MS4 NPDES permit coverage outlines the regulatory requirements for an MS4 program. The requirements include six Minimum Control Measures. However, since many of these small MS4s are within the Chesapeake Bay watershed and there is a TMDL for the Chesapeake Bay, these municipalities must also implement a Chesapeake Bay Pollution Reduction Plan. To implement the requirements, municipalities have begun assessing a “fee” supposedly to provide funding for local stormwater management activities and projects that are to benefit the public.
To that end, we are seeing more and more of our members’ facilities receiving notices to assess large stormwater fees that will continue on a yearly basis. The majority of these charges are based on the impervious surface area of the property without regard to whether, or to what extent, the facility actually generates stormwater into the MS4 system or receives benefits from the stormwater management programs conducted by the municipality or already manages their own stormwater covered under a DEP NPDES permit.
On October 17, 2023, PACA, in partnership with the PA Chamber of Business and Industry, filed an amicus brief which was accepted, in a related case that we believe would result in a decision that would be advantageous to our members. Several other industries and anti-business groups filed amicus briefs as well. The case is the Borough of West Chester v. PA State System of Higher Ed. & West Chester Univ. of PA of the State System of Higher Ed. disputing the Borough’s stormwater charge saying it was in fact a “tax” from which they are immune, not a “fee” for service. The Court found that it was not a “fee” for service and the Borough of West Chester appealed. This case has made its way to the PA Supreme Court.
At this time, we await the actions of others and the Court.
Should you receive an MS4 bill and you have not let Josie Gaskey know, please do so.
