EVALUATING THE CREATION OF STORMWATER AUTHORITIES IN PENNSYLVANIA
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1 EVALUATING THE CREATION OF STORMWATER AUTHORITIES IN PENNSYLVANIA American Water Resources Association Pennsylvania Section 2014 Annual Conference Prepared by: Alexandra Chiaruttini Partner, Chair of Environmental Practice
2 Overview Legal Authority to Create Stormwater Authorities Limitations on Powers Conferred Challenges to Creation and Implementation Case Study: York County
3 Why Are We Talking About Stormwater Authorities Now? MS4 Program Expansion Stormwater is a Pollutant Source in Impaired Watersheds Regional Approaches are Rational and Cost Effective
4 Legal Authority In the past year, the state legislature revised the Municipality s Authorities Act. The MAA sets forth specific (and limited) statutory power for municipal authorities in Pennsylvania. The revision specifically authorizes the creation of stormwater authorities for, planning, implementation, and management.
5 Legal Authority Cont d Arguably, this language is sufficiently broad to allow all obligations and actions required to create fully functioning local stormwater authorities. Joint local authorities or regional authorities are also authorized.
6 Definition of Stormwater System There currently exists a bit of a discrepancy between what the US EPA views as a stormwater system and how PA DEP interprets stormwater system. US EPA believes that everything within a local jurisdiction constitutes the local stormwater system. PA DEP asserts that only the portions of the stormwater system not dedicated and not located on private lands constitute the local stormwater system.
7 Definition of Stormwater System Cont d Relevance of this issue relates to the extent of the system (a) that falls within an MS4 permit; and (b) that is the direct liability of the local government and/or permittee. Recognize the extent of obligations under an MS4 permit. 6 MCMs: (a) public ed and outreach; (b) public participation and involvement; (c) illicit discharge detection and elimination; (d) construction site runoff control; (e) stormwater management pre and post development; and (f) pollution prevention and good housekeeping. Extensive recordkeeping requirements that flow from MCMs.
8 Examples of Stormwater Fees Established in Pennsylvania Mt. Lebanon (W. PA) homerule jurisdiction; not broadly applicable. Lancaster City established stormwater fees as part of sewer system and I&I reduction program. Philadelphia Water Department possesses specific and unique legal authority within its jurisdiction. Philosophic approaches as well as fee schemes can be informative, however.
9 Key Limitations of Legal Authority for New Stormwater Authorities The new statutory language does not go far enough to specifically authorize collection of fees or allow authority to enforce fees. The Pennsylvania Water Services Act, 53 P.S , et seq., only permits shut off of water service for failure to pay a rental, rate or charge for sewer, sewerage or sewage treatment service and water.
10 Consideration of Fee Schedule There is NO guidance in statute that sets forth how to create a stormwater fee, unlike tapping fees. Requires extreme care in evaluating the existing system/facilities, O&M, administration costs, and future needs. Estimated/projected maintenance or repair costs in future. Map and evaluate system fully, include needed repairs, itemize immediate, short and long term systemic issues.
11 Consideration of Fee Schedule Cont d Consider structure of fees based on use category, amount of impervious surface, location in system, etc. Requires funding and administration of General Fund or Stormwater Fund if $$ is going into local government and not Authority. Fee Schedules can be challenged. Determine what entity would defend.
12 Fees Thoughtfully Consider 1. Whether to do a leaseback of facilities from local entity (Borough/Twp/City) to Authority? 2. How maintenance will be funded? 3. How fees will be established? Who (entity)? How (ordinance, resolution)?
13 Fees Thoughtfully Consider Cont d 4. How fees will be collected (billed and collected), administered, and enforced? Who (entity)? How (complaint, water shut off, lien, wrap into tax millage)? 5. Consider what minimal fee would be costeffective to pursue if collection were required.
14 Case Study York County Different approach occurring in York County to address CBPR Plan requirement for MS4 jurisdictions. Regional Approach to stormwater and project funding. Most cost effective projects in most important locations of County.
15 Case Study York County Cont d 2 year process of meetings guided by County Planning and grant-funded consultant. Regional approach with County Planning as administrator/facilitator.
16 Case Study York County Cont d 43+ local jurisdictions signed on to Intermunicipal Agreement. 1. Focused on impaired segments in County. 2. Preference for projects in participating jurisdictions, but not required. 3. Focused on environmental (N/P/Sed. reduction), public benefits, and cost effectiveness. 4. Short, mid and long term project list from all participants.
17 Case Study York County Cont d 7 Member Management Committee; Regional Committee all participants. Vote on Stormwater BMP projects to fund or partially fund each year. 1 st Year 2015; Plan being finalized for Annual Meeting of Regional Committee. Annual funding set forth in Agreement; enforceable in a number of ways.
18 Consideration of County Authority 12 steps away from a County Authority decision, but a Feasibility Study committee is operating now. CBPR Plan project will introduce jurisdictions to joint funding and cooperative approach.
19 Consideration of Private Authorities in Pennsylvania Movement at the PUC to begin to look at private/publically traded stormwater authorities, like water companies. This may become another sector for private business to enter, as the costs and obligations and regulations become more onerous local governments will increasingly wish to unload.
20 Consideration of Private Authorities in Pennsylvania Cont d Already private entities purchasing subdivision stormwater systems in certain areas of Pennsylvania. Private entities may be viewed as more competent to run this like a business and PUC regulation provides some additional protections for consumers than unregulated public utilities.
21 Appropriate solutions will differ from area to area. But, we will see shifts in this area of regulation as well as permitting and operation.
22 If you have any questions or would like additional information: Phone: (717) Website:
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