Statewide initiatives could affect township

By on May 31, 2012

By: GARY P. KLINGER Record Express Correspondent, Staff Writer

Two new statewide initiatives could soon be making an impact on how local municipalities do business.

The Storm Water Management Act, which is commonly referred to as Act 167 could be approved by the Pennsylvania Department of Environmental Protection (DEP) as early as Sept. 1. According to Act 167, municipalities would be required to implement a county-adopted and DEP approved plan within six months after the new act would go into affect. The other is referred to as Act 13 and deals with local regulations "relating to oil and gas regulations."

Both new acts could prove problematic for municipalities across Lancaster County, as they would both be state mandated programs without state funding to back them up.

Township Solicitor Josele Cleary, of the law firm of Morgan, Hallgren, Crosswell and Kane P.C., presented two informational letters to Warwick Township Supervisors at the May 16 board meeting. Cleary had attended an April 23 meeting held by representatives from the Lancaster County Planning Commission to discuss plans to implement new county ordinances in compliance with Act 167. The county plans to adopt a "model ordinance," which could then be adopted by each local municipality as a guide to storm water management plans.

A public comment period on the "model ordinance" will take place May 29 through July 10 with county commissioners planning to approve the ordinance at a meeting July 25. Anticipating final DEP clearance by Sept. 1, Warwick Township Supervisors would have to bring local ordinances into compliance by March 2013.

Once enacted, Act 167 would require the township to monitor and regulate storm water run-off to assure water quality and safety as part of the broader Chesapeake Bay initiatives. These new regulations would apply to run-off from such things as parking lots, roadways and storm water basins. It would also require better maintenance of storm water management systems in all forms.

Exactly how that level of monitoring and regulation would be carried out as a practical matter remains to be seen. One possibility might be to pass some of the costs associated with meeting Act 167 regulations onto developers, and perhaps even homeowners with storm water drains or basins located on their property. This could potentially be structured much like street light taxes on property owners with street lights in front of their homes in order to cover electrical costs associated with them.

Whether funding comes directly from individual tax payers or indirectly through higher local taxes in general, Warwick Township will likely not be alone in the challenge of funding these new programs.

In addition, Cleary points out that the new county-wide Act 167 plan would replace all of the previously approved watershed Act 167 plans enacted at the local level.

"Those municipalities will also have to bring their existing storm water management ordinances into conformance with the Model Ordinance within six months after DEP approval," said Cleary in her letter.

Cleary pointed out that the "model ordinance" will not contain any design standards. Instead, it will contain performance standards such as volume and peak rate of discharge. This way local municipalities can choose their own design standards as long as they meet the performance standards called for in the act. However, applying a standard such as "to the maximum extent practical" can leave much to interpretation, potentially making the uniform compliance and enforcement of the standards costly and difficult.

Cleary suggests that at least some design standards should be adopted as a part of the new ordinance.

"If there are no design standards in the township’s ordinance, the township cannot deny approval of any proposal which meets the performance standards," said Cleary. "Thus a developer who wishes to use inferior materials which will only last five years and/or which might require extensive maintenance by homeowners could refuse to change the design to be something that would be longer lasting and more easily maintained."

Cleary recommended Supervisors work with engineers in determining minimum characteristics for storm water management facilities and material to enable long-term maintenance and minimize maintenance costs.

Cleary also updated Supervisors with regard to Act 13, which was signed into law by Governor Tom Corbett Feb. 14. Cleary is concerned that while much of Act 13 does not affect Lancaster County municipalities since there are no known Marcellus shale or other natural gas or oil deposits in the county, there are "poorly drafted provisions of Act 13 which affect all municipalities in the Commonwealth."

Historically, great latitude has been given to the gas industry regarding where they could place a gas compression station or pipeline. Warwick Township, like many county municipalities, has no ordinances in place at this time on the matter. What concerns supervisors is that while the act has been signed by the governor, it remains unclear to what extent, if any, it may impact the township.

"There are currently no answers to numerous…questions," Cleary pointed out in her letter to supervisors. "Even with all of these questions, Act 13 provides that any person may bring an action in Commonwealth Court to invalidate the ordinance. The person does not have to follow any of the procedures in the Pennsylvania Municipalities Planning Code (MPC) to challenge the validity of a zoning ordinance. If the person challenging the action is successful, Commonwealth Court may order the municipality to pay the challenger’s attorneys’ fees if the Commonwealth Court determines that the municipality disregarded Act 13."

Even though Warwick Township may not have shale, oil or gas deposits, because of certain provisions of the Act, it may be forced to implement ordinances in order to protect against potential lawsuits.

Both letters were meant to be informational in nature and not designed to spur specific action at this time. For now, Solicitor Cleary will continue to keep Supervisors up to speed in the event further action becomes necessary.