Pennsylvania Supreme Court’s Stormwater Decision Is a Gut-Punch to Clean Water Efforts
The Supreme Court affirmed a decision by the Commonwealth Court in 2023 that the Borough of West Chester’s stormwater charge applied to West Chester University of Pennsylvania property within the borough is to be considered a tax, not a fee.
The decision could open the door to allowing all Commonwealth properties to be exempt from any stormwater utility fees. These unpaid fees would then eventually fall on private citizen ratepayers, leaving everyday Pennsylvanians on the hook to make up the difference.
As heavy rainfall flows over hard surfaces like roads and parking lots, it picks up oil, grease, dirt, and nutrients like nitrogen and phosphorus and washes it into nearby rivers and streams. Stormwater fees pay for projects that reduce pollution and flooding by better controlling this dangerous runoff.
Threats from outdated, undersized, and dilapidated stormwater infrastructure go beyond stream pollution. It can worsen flooding in roads and basements, sweep away property, and even endanger public safety. That damage will only increase as precipitation continues to intensify due to climate change.
Chesapeake Bay Foundation Vice President for Litigation and General Counsel Paul Smail issued the following statement:
“This is a gut punch to everyone working for cleaner rivers and streams in Pennsylvania. Every resident in the Commonwealth deserves clean streams and a clean environment, and thousands of Pennsylvanians pay stormwater utility fees to help manage polluted runoff.
“It’s unacceptable that institutions benefiting from work to prevent pollution and flooding do not want to pay their fair share. We look forward to working with the General Assembly and Administration to make sure that they do just that.”
In July of 2023, CBF filed an amicus brief asking the Supreme Court to reverse the lower court’s decision.
The brief stated that “the State’s properties discharge large quantities of polluted stormwater, not just in West Chester Borough. The Commonwealth’s opposition to paying any stormwater utility fees while simultaneously administering a stormwater compliance system admonishing the public to pay its fair share is an unjust double standard.”
A law signed by then Governor Corbett in 2013 allowed certain local governments to form stormwater authorities. Those entities can collect fees from residents for the management, maintenance, and improvement of stormwater infrastructure.
CBF Pennsylvania Staff Attorney Trisha Salvia added the following statement.
“Simply put, Pennsylvania needs to pay its fair share of stormwater costs for state-owned properties. Public and private landowners, including businesses, churches, and the federal government, are already paying to support stormwater improvements in their local communities.”
