The Chesapeake Bay Foundation (CBF) on Thursday filed an amicus brief asking the Pennsylvania Supreme Court to reverse a Commonwealth Court decision that the Borough of West Chester’s stormwater fee is a tax as applied to West Chester University of Pennsylvania property within the borough. If the Commonwealth Court decision would stand, the state Education Department would be exempt from paying the assessment.
This decision would also open the door to allow all Commonwealth properties, not just in the Borough of West Chester, to be exempt from any stormwater utility fees, in contradiction to current case law. These unpaid fees would then eventually fall on private citizen ratepayers.
The brief states that “the State’s properties discharge large quantities of polluted stormwater, not just in West Chester Borough. The Commonwealth’s opposition to paying any stormwater utility fees while simultaneously administering a stormwater compliance system admonishing the public to pay its fair share is an unjust double standard.”
In 2013, then Governor Corbett signed into law changes to the state Municipal Authorities Act which allowed certain local governments to form stormwater authorities. These entities can collect fees from residents for the management, maintenance, and improvement of stormwater infrastructure.
There are thousands of authorities across the United States. In Pennsylvania there are currently about 65 local governments that have formed an authority. Many of these local governments include areas with state-owned land.
As stormwater passes over impervious surfaces it often picks up oil, grease, dirt, and nutrients (nitrogen and phosphorus). According to Penn State Extension, uncontrolled stormwater flows cause increased flooding, pollutant loading, erosion, and property damage. Sediment —gravel and soil particles that have been eroded from the land, frequently by stormwater—is Pennsylvania’s largest surface water pollutant by volume.
According to a 2022 statewide scientific assessment of the health of Pennsylvania’s streams, urban runoff pollutes over 3,500 miles of streams statewide and sends over 15.6 million pounds of nitrogen pollution to the Chesapeake Bay a year.
The impact of outdated, undersized, and dilapidated stormwater infrastructure goes beyond stream pollution. It can worsen flooding in roads and basements, sweep away property, and even endanger public safety. That damage will only increase as precipitation continues to intensify.
Last year, the American Society of Civil Engineers gave Pennsylvania’s stormwater infrastructure a “D” overall, suggesting significant deterioration. The report finds that $6.7 billion in investments over the next three to five years is needed to keep existing infrastructure from risking failure.
By raising funds to repair and upgrade stormwater infrastructure, authorities help local communities protect the health, welfare, and quality of life of the residents in their communities. By exempting state-owned land from paying their fair-share, stormwater discharges from these areas contribute to the problem, but not the solution.
After the amicus brief was filed with the state Supreme Court, CBF Pennsylvania Staff Attorney Trisha Salvia issued this statement.
“Public and private landowners, including businesses, churches, and the federal government, are paying to support stormwater improvements in their local communities, as a result of federal and state mandates.
“The Commonwealth should start doing its part by paying its fair share of stormwater costs for state-owned properties.
“In Harrisburg, the Commonwealth owns acres of impervious land that discharges stormwater directly into the Susquehanna River, either directly or indirectly through the city’s stormwater system.
“Capital Region Water informed a Senate committee last January that the Commonwealth has not paid what it owes, $387,000 annually since October 2020. The Hampden Sewer Authority in Cumberland County testified it is owed more than $1.2 million since October 2015.”
