Firm Attorneys Produce Memorandum on Stormwater Management Charges

Funding for municipal stormwater management is a topic of much current interest and discussion because many municipal storm sewer systems are now regulated under the Clean Water Act through the NPDES MS4 stormwater discharge permit program.

To advance this discussion, George M. Aman III, (is a specialist in municipal finance), and Alan W. Flenner, (an attorney and a registered professional engineer), recently completed a legal memorandum on the legality and calculation of municipal charges for management of stormwater.

The memorandum discusses the limited existing statutory authorization in Pennsylvania for stormwater charges. It also analyzes the constitutional question raised for stormwater charges by the "uniformity clause" of the Pennsylvania Constitution, which is similar to the uniformity clauses in the constitutions of several other states. For that reason, the memorandum also reviews decisions of other states. If a stormwater management charge were legally a tax, it would then violate the uniformity clause. On the other hand, if it confers a "special benefit" on established categories of users, then it may qualify as a user charge.

The memorandum also reviews case law from other states on rate structures for stormwater charges. Charges are typically based upon such factors as the hydrologic impact of development, the amount of impervious surface created by development, and the ratio of impervious to pervious surface. A related issue is what exemptions from the charge are appropriate.

For further information or a copy of the memorandum, please call George Aman or Alan Flenner at 610-275-0700.