A New (Wet) Season for Municipal Stormwater Ordinances in Chester County

 

By John R. Embick, Esq.

Co-Chair, Environmental Law Section

September 10, 2013

 

On July 2, 2013, the Pa Department of Environmental Protection (PaDEP) approved Chester County’s County-Wide Stormwater Management Plan.  This plan, styled by Chester County as an Addendum to the County’s Watersheds Plan, is required by the Pa. Storm Water Management Act, 32 P.S. §§ 680.1, et seq., the latter colloquially known as Act 167 of 1978.

Act 167 was passed in response to numerous Pennsylvania flood disasters over the years, including the infamous Johnstown Flood (multiple floods, actually: 1889 (dam failure), 1936 and 1977) and the devastation of Hurricane Agnes (1972).  Act 167 requires counties to develop plans to control land use and manage storm water so as to reduce damage and improve public safety, to effectively manage stormwater runoff, control flooding, reduce streambank erosion and sedimentation, promote groundwater recharge, and maintain or improve the water quality of receiving streams.

Act 167 can be viewed as part of a complex mosaic of federal, state, and local laws and regulations addressing problems related to non-point source runoff – the water flow that comes off of fields, lawns, forests, impervious surfaces, and initially is not emitted from a pipe or a point source.  The mosaic includes, but is not limited to: (1) the Federal Water Pollution Act and the NPDES permitting program (which now includes pre and post-construction storm water management on construction sites using storm water best management practices or BMPs), and the Municipal Separate Storm Sewer System permit program (MS4) (which controls discharges from municipal storm water systems); (2) The Federal Rivers and Harbors Act of 1899 (which controls the placement of fill in navigable waters); (3) The Pennsylvania Clean Streams Law (which includes erosion and sedimentation control regulations found at 25 Pa. Code Chapter 102); (4) The Pennsylvania Flood Plain Management Act, 32 P.S. §§ 679.101, et seq., (which controls land use in flood plains) and the companion National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001, et seq.; and (5) the Pa. Dams and Encroachment Act 32 P.S. §§ 693.1, et seq. (covering the construction of dams, wharves and docks in Pennsylvania waters (see also 25 Pa. Code Chapter 105)). Many of these myriad requirements stand alone, but many also are overlapping.

Act 167 was passed in 1978, but many counties ignored its planning mandate.  The approval of Chester County’s County-Wide Act 167 Plan comes almost 35 years after the law’s enactment.

A component of the Act 167 Plan requires all municipalities in Chester County to adopt a Stormwater Ordinance within six (6) months of final approval by PADEP of the County-Wide Act 167 Plan.  Adoption must be complete by January 2, 2014.  Municipalities may chose to adopt a Model Ordinance (contained county-wide Act 167 Plan), or may adopt an ordinance with equivalent or more stringent standards. For those municipalities that choose to amend their existing stormwater management ordinance (rather than adopt the Model Ordinance), a Matrix of Minimum Mandatory Ordinance Standards for Municipal Act 167 Ordinances is presented in Appendix E of the County-Wide Act 167 Plan.

Chester County is recommending that municipalities enact the Model Ordinance as a stand-alone ordinance. In addition, Chester County is recommending that this Model Ordinance be enacted under the provisions of the Municipalities Planning Code, advising that “enactment in this manner is anticipated to provide maximum flexibility and authority for enforcement.”

Each municipality will also have to review zoning, subdivision and development, building code, and erosion and sedimentation ordinances, as are necessary to regulate development within the municipality in a manner consistent with the County-Wide Act 167 Plan. Additional requirements are applicable for municipalities having territory in the Chester Creek, Conestoga River, Crum Creek, Darby Creek, and (East) Valley Creek watersheds.

In general, the Model Ordinance regulates activities that exceed one thousand (1,000) square feet of “Proposed Impervious Surfaces” and more than five thousand (5,000) square feet of “Earth Disturbance.”  A number of exemptions apply, including certain agricultural operations, maintenance of existing landscaping, and certain gardening activities.  However, the ordinance specially states that “[e]xemption shall not relieve the Applicant from implementing such measures as are necessary to protect health, safety, and welfare, property, and water quality.”

Since there is little time remaining between now and the deadline of January 2, 2014, municipal solicitors and engineers should be working now to get the new ordinance reviewed, advertised, commented upon, and adopted.

 Westtown Shopping Center, 2014

Westtown Shopping Center, 2014