In today’s Legal Intelligencer, Scott Gould and Steve Mazura discuss the most recent round of permits for small municipal separate storm sewer systems (MS4s) in Pennsylvania, related potential impacts on development, and creative approaches to stormwater management.  The full article is available at the link provided above and excerpts are below.  The article is definitely worth a read for all developers, municipal officials and staff, and land use professionals.

“The most recent round of permits for small municipal separate storm sewer systems (MS4s) in Pennsylvania requires municipalities with MS4s to regulate stormwater in a manner that will impact development. MS4 municipalities with stormwater systems that discharge into ‘impaired’ waters must develop and implement pollution reduction plans (PRPs) to demonstrate measurable reductions in pollutant discharges, including those impaired waters with total maximum daily loads (TMDLs), or ‘pollution budgets,’ established for them. For the first time, the permit scheme holds municipalities accountable to show numeric reductions in pollutant loads from stormwater. . . . In Pennsylvania, there are 953 small MS4s, nearly half of which are subject to the new PRP or TMDL plan requirements.  . . .  Small MS4s have historically been required to only implement six minimum control measures . . . [but] now MS4s in impaired watersheds must actually reduce their sediment and nutrient loadings.”

“It is clear that the new requirements imposed on small MS4s have potentially significant impacts to development, particularly within the Chesapeake Bay watershed. But they also may provide an avenue for creative developers, consultants, and environmental practitioners to implement better stormwater management projects in a manner that supports not only the development, but also the community.”

“[C]reative approaches by developers may [ ] provide a path that takes advantage of the municipalities’ need for sediment and nutrient reductions and potentially turn these new MS4 requirements to work in a developer’s favor. . . . Several larger developments have utilized large-scale floodplain restoration as the stormwater BMPs. One example is a commercial development that straddled a stream containing significant legacy sediment. The developer proposed a floodplain restoration that involved removal of hundreds of cubic yards of sediment and creation of over seven acres of wetlands, with nature and walking trails along its banks. While this may appear cost prohibitive, by eliminating the on-site PCSM BMPs (basins, rain gardens, etc.) and using the constructed wetlands as the BMP controls for volume and rate of stormwater runoff (consistent with the PADEP stormwater BMP manual), the restoration project actually freed up enough land to create an additional commercial lot, the value of which offset the cost of the floodplain restoration. That type of project . . . is expected to produce sediment credits over and above the required stormwater controls that may, in itself, ultimately provide all of that municipality’s required Chesapeake Bay suspended solids and nutrient reductions. . . .”

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.