In its recent decision, Appeal of Best Homes DDJ, LLC, 239-40 C.D. 2020 (Dec. 23, 2021), the Pennsylvania Commonwealth Court considered, among other issues, whether MS4 fees imposed by the City of Chester Stormwater Authority constituted an impermissible tax. The case involved a challenge by certain rate/fee-payers that the Authority’s “fees” were actually “taxes”
Grab Your Umbrella- Here Comes the Rain (Tax)
If you attend municipal meetings regularly (like yours truly), you know that stormwater management is a frequent topic of discussion and debate. Simply put, stormwater is the precipitation which flows off impervious surfaces during a weather event rather than infiltrating into the ground. Naturally, development of any type changes stormwater infiltration and runoff patterns. In today’s world, even small construction projects …
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Our Top 5 of 2020 – And Welcome to 2021!
Thank you for following our Land Use Blog throughout 2020. Without spending too much time on the past, please enjoy our Top 5 posts of 2020!
TOP 5 POSTS OF 2020
- Jon Andrews, Looking Through the Kaleidoscope – Land Use in Pennsylvania
- Claudia Shank, Simplified Zoning: Paradox or New Paradigm?
- Peter Wertz, Water Flows Downhill
PADEP Responds to COVID-19: How to Ask PADEP for a Temporary Suspension of Environmental Compliance Obligations
In response to the COVID-19 pandemic, the Pennsylvania Department of Environmental Protection (“PADEP”) recently announced the availability of a process for requesting temporary suspensions of environmental permitting and regulatory compliance obligations. Regulated entities experiencing difficulties due to COVID-19 in meeting the terms and conditions of their environmental permits or complying with environmental regulatory provisions should consider submitting a form request to PADEP for relief. Completed forms must be submitted to RA-EPCOVID19SuspReq@pa.gov. While PADEP’s offices remain closed, program staff continue to work remotely to process submitted requests.
Unless a temporary suspension is granted…
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UPDATE – 3/21/2020: The Governor’s COVID-19 Order: Compliance with Environmental Permit Requirements
Governor Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations by 8 p.m. on March 19, 2020 in response to the COVID-19 pandemic. Enforcement begins at 8:00 a.m., Monday, March 23. With the Order, the Commonwealth issued a list of life-sustaining and non-life-sustaining businesses. Residential and commercial construction were on the list of businesses that must close, absent a waiver from the Order. The Commonwealth’s list is intended to be consistent with the federal Cybersecurity and Infrastructure Security Agency (CISA) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, also released March 19, 2020. For developers and builders who may be in critical stages of construction or who have environmental responsibilities under permits (such as the PAG-02 or individual permit for discharges of stormwater associated with construction activities), an immediate shutdown simply cannot be achieved. So what are you to do?
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Force Majeure Provisions and the Impacts of COVID-19
Overview of Force Majeure
With COVID-19 headlines dominating the news cycle, and with no end in sight to the uncertainty that the virus brings, affected businesses are wise to consider whether the current pandemic qualifies as a “force majeure.” In the last few weeks, the Chinese government has issued “force majeure certificates” to domestic businesses as a way of shielding companies from breach of contract claims, American businesses are sending mass e-mails to customers explaining that the virus prevents the company’s performance or operations, and businesses in an array of industries have sent formal inquiries to their service providers seeking confirmation of continued performance.
What is “Force Majeure”
The defense of force majeure will excuse a party’s performance under a contract if …
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Governor Wolf’s Closure Order
Please see below regarding the Governor’s order from our Government Relations and Labor & Employment Groups. Do not hesitate to contact anyone at McNees with questions, including how this order might apply to your job site, project approvals or your office. McNees is a full service law firm that remains operational, remotely and in compliance with the Governor’s order. We are ready and able to continue to support our clients’ needs during this trying time.
UPDATE: Latest on Gov. Wolf’s Closure Order amid COVID-19 Outbreak
As detailed in a special edition of Capitol Buzz sent on Thursday evening, Gov. Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations in response to the COVID-19 coronavirus outbreak. The new directive, which went into effect at 8 p.m. on Thursday evening, contains the threat of enforcement action …
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**Important Notice – General Permit for Stormwater (PAG-02)**
On December 7, 2019, the Pennsylvania Department of Environmental Protection (PADEP) reissued the general permit for stormwater associated with construction activities (PAG-02). This general permit is routinely utilized in most real estate developments, solar farm installations, construction projects and other earth disturbance projects in the Commonwealth. With the permit package, PADEP made substantial changes to the terms and conditions of the permit as well as the eligibility requirements to qualify for coverage under the general permit. Importantly, the new permit automatically replaces any existing PAG-02 permit, however PADEP is requiring that permittees covered under a PAG-02 issued prior to December 7, 2019 certify whether they “remain eligible for and are able to comply with the terms and conditions of the reissued PAG-02 General Permit” in order to maintain coverage. The acknowledgment is to be made electronically on or before March 9, 2020, and the form can be found here.
Permittees who are unable to certify that they remain eligible and able to comply with the new PAG-02 must nevertheless certify to that effect and submit an application for an individual NPDES permit on or before March 9, in which case general permit coverage under the new PAG-02 will continue until the individual permit is issued. Failure to provide timely acknowledgement will result in termination of the permit coverage as of March 9, 2020. Therefore it is critical that the acknowledgment be completed for all outstanding permits, or earthmoving activities will have to cease until a new permit is obtained.
The acknowledgment has raised many questions regarding …
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Water Flows Downhill – Liability Flows Up
Sometimes, the storm hits years after a development is complete. Indeed, stormwater runoff can give rise to liability against a developer long after stormwater management facilities are constructed according to an approved final plan. Accordingly, it is important for developers to understand (1) how trespass is applied in the stormwater context and (2) that they might never be fully insulated from such claims.
Pennsylvania follows the “common-enemy rule” with respect to stormwater runoff. Under the Rule, an “upper” landowner may discharge its stormwater on the land of a “lower” landowner. However, water artificially diverted from its natural channel across a “lower” landowner’s property can be considered a trespass. In that case,…
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Attention Developers! Construction Stormwater Permitting Changes Imminent
Real estate developers, construction businesses, engineers, and others involved in development projects are subject to numerous permitting and approval requirements under local, state, and federal regulatory programs. For example, development projects in Pennsylvania involving earthmoving of more than one acre (i.e. most projects) must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for construction-related stormwater discharges, also known as PAG-02. The current PAG-02 expires on December 7, 2019. Recently, the Pennsylvania Department of Environmental Protection (“PADEP”) announced the availability of supporting documents, such as an updated Fact Sheet, and a comment period on the draft revised PAG-02. The comment period is open until only September 16, 2019.
Anyone engaged in construction, real estate development, or similar operations should review the draft revised PAG-02 permit and supporting documents, and should consider submitting comments to PADEP. PADEP anticipates the revised PAG-02 having an effective date of December 8, 2019.
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