PA Environment Digest Blog: Bay Journal: 2 Small PA Communities Say No To MS4 Stormwater Pollution Prevention Program Until Financial Relief Can Be Found

This is the way the 4,000 residents in the small borough of Greencastle, [Franklin County], figure it: They occupy a mere 1.6 square miles. They have a state-of-the-art sewage plant. There are no farms in the town. Almost all of the housing developments have rain-catching basins. A streetsweeper cleanses streets frequently.

They say they are not sending a lot of polluted stormwater into the lone small stream that runs through town, later joining the Potomac River and, ultimately, the Chesapeake Bay. The stream, Moss Spring, trickles less than a mile through the town, and half of it moves underground through protected pipes.

Yet, as part of the Bay cleanup effort, they have been ordered by the state to cut 94,000 pounds of sediment from area streams by 2023 to make up for the town’s contribution to stormwater runoff.

“Ninety-four thousand pounds,” scoffed Lorraine Hohl, Greencastle’s manager. “We would be sinking if it was that amount of sediment.”

Town officials estimate it would cost nearly $2 million to accomplish the reductions, and the municipal budget would soar by 90 percent.

Already, angry officials say, they are spending more on stormwater controls than police and other public services.

Churches, schools, the Little League, residents, seniors and people on fixed incomes-- even a homeowner with a shed on the lawn-- are facing significant stormwater fees based on impervious surfaces. And most of that, they say, is going to engineering consultants and attorneys.

The state and federal government’s stormwater requirements on nearly 1,000 municipalities in Pennsylvania are an unfunded mandate that simply is not sustainable, they say.

So, they’re not going to do it.

On Nov. 20, after their request to meet with state officials to discuss a more “common sense” approach fell on deaf ears, officials from Greencastle and surrounding Antrim Township pulled the plug on their work.

At a joint public meeting, officials agreed to suspend paying for engineering and bidding work on a planned joint $2.3 million stormwater project until state environmental officials, as well as Gov. Tom Wolf, answer questions. They also urged the six other townships and boroughs in Franklin County to join the mini revolt.

Greencastle suspended its collection of stormwater fees, and Antrim Township delayed its planned fee collection.

“We don’t like to waste money,” said Brad Graham, Antrim Township administrator. The township must reduce sediment by 245,000 pounds. It had requested a waiver from the state, but it was denied.

Graham said the decision to stop work on the stormwater project wasn’t made flippantly, and officials realize they could be found in noncompliance.

Seeking better solutions

The requirements are part of a state permitting process that applies to some towns and cities that discharge stormwater runoff into local streams and rivers. The MS4 permits-- for municipal separate storm sewer systems-- regulate the discharges and can set conditions that jurisdictions must meet to help protect water quality from pollution.

“We’re not saying we’re not contributing. We want to do the right things. We just need to have a reality check and make sure it’s done on a firm scientific basis,” said Steve Miller, president of Greencastle Borough Council. “Right now, I see a plan based on hope.”

Some state legislators are cheering their stance.

“I applaud them for that,” said state Rep. Dan Moul [R-Adams], who derisively refers to MS4 as a “rain tax. This is one of the most flawed regulations that [PA Department of Environmental Protection] has ever put forward. I have no desire to see communities piss their money away like that, and that’s what they are doing.”

“I thought it was a very reasonable thing for those municipalities to do,” added state Rep. Paul Schemel [R-Franklin], whose district includes Greencastle and Antrim Township. “It’s appropriate for municipalities who are forced to implement this to hit the pause button so we can catch up and make sure we are not doing more than is required.”

State Sen. Doug Mastriano [R-Franklin] said bluntly, “I tell them to resist. It’s a bunch of baloney. Impervious surface is not included in the Clean Water Act. It was added in Harrisburg by bureaucrats. And I say no, this is out of line.”

Added James Wheeler of the Pennsylvania Association of Township Supervisors, “We’re not encouraging resistance, but it is happening. It may be what’s needed to bring attention to EPA that they are being a little hard-headed. We have to back off, and let’s come up with another solution.”

Outcries against one of the nation’s toughest stormwater regulations are not just over busted budgets.

There is widespread suspicion about the computer modeling that is used to estimate the amount of sediment and nutrient pollution generated by different parts of the Bay watershed.

In the case of stormwater runoff from developed areas, the model uses satellite views of impervious surface, soil conditions, landscape features and estimates of annual rainfall. They do not include before-and-after sampling of water quality from streams and rivers.

Also, officials feel they are being forced to underwrite a costly conservation initiative that will, in the end, not significantly help Pennsylvania meet its huge nutrient-reduction pollution commitments made under the Chesapeake Bay cleanup agreement.

And many believe that Pennsylvania is forcing municipalities to do more than is actually required under federal law.

The MS4 initiative under the federal Clean Water Act has applied to cities in Bay drainage states since 1997 and to smaller municipalities since 2003. Any municipality with an “urban area” with separate storm sewer systems has to comply.

A costly problem

When rain and snowmelt flow over asphalt, roofs, parking lots, roads and other hard surfaces, it whisks trash, dirt, oil, pet waste, lawn fertilizer and other pollutants into local waterways, degrading water quality and eroding banks. In addition, runoff from farm fields and lawns carries nutrients, one of the biggest problems affecting the Bay.

Housing developments and suburbs have made stormwater a significant source of pollution in some rivers and in the Chesapeake Bay. Stormwater is the only source of Bay pollutants that is still on the rise, according to the state-federal Bay Program partnership.

Far from the days when stormwater control meant shunting it to the nearest ditch, communities with systems that manage stormwater and sewage separately must reduce the overall amount of stormwater runoff and improve its quality.

Each must manage stormwater in new developments, have public education about stormwater, detect and eliminate illicit discharges, control runoff from construction sites and prevent runoff from municipal operations.

But in 2018, after a settlement with a state environmental group and under pressure from the U.S. Environmental Protection Agency, Pennsylvania added a Chesapeake Bay Pollution Reduction Plan that, for the first time, required municipalities to reduce a specific amount of sediment.

DEP said the new permits would better clean up local streams and help the state gain ground in its large shortfall to reduce nutrients flowing into the Bay.

Municipalities now have to calculate their sediment loads, then reduce discharges by 10% over five years. Popular measures include stream restorations that repair eroding banks and restore floodplains as well as retrofits for old flood control ponds to make the water infiltrate into the ground.

But, even if achieved, those reductions will only result in a 1 percent decrease in the state’s nitrogen goal, according to the Pennsylvania State Association of Township Supervisors.

“What I’m afraid of is we are spending billions of dollars to treat a small part of the problem,” said state Sen. Gene Yaw [R-Lycoming], who is one of Pennsylvania’s representatives on the [interstate] Chesapeake Bay Commission, a body of legislators from across the Bay region, [and Majority Chair of the Senate Environmental Committee,].

DEP acknowledges that MS4 requirements won’t resolve the state’s considerable nutrient runoff problem. But, said DEP spokeswoman Elizabeth Rementer, “The principal reason for the MS4 program is to address local water quality improvements.”

Some 962 communities in the Bay drainage area of Pennsylvania will have to spend an estimated $74 million annually to reach the 10 percent reduction. The supervisors association warned that it would bankrupt communities and shut down economic growth. DEP said the average cost per municipality is $683,585.

To date, 92 municipalities without urbanized areas have been granted waivers to the regulations. Others, such as Antrim Township, have been denied.

Frustration & concerns

The two upstart Pennsylvania communities have been the squeaky wheel for a while.

In September, the state Senate Environmental Committee came to Antrim Township to hold a public hearing on statewide MS4 complaints. The hearing filled a church.

Local business owners, residents, officials and legislators criticized the program nearly nonstop for more than three hours, pressing two DEP representatives for answers and change.

Using computer models to estimate sediment loadings rather than sampling the water quality in local streams was roundly attacked.

“Impaired waters are not in our municipality,” said Sylvia House, zoning officer for Antrim Township. “We are using formulas and modeling software programs to give us assumed data. We cannot show progress if we do not know what our starting point is. We need to know what the value and quality of the water is with real analytical testing so we have a baseline to work with.”

When an official from another county in Pennsylvania testified that they sampled a stream above and below a restoration site before beginning to document progress, Rep. Moul leaned into the microphone and said, “God, that makes common sense. Pass that on to the DEP guy in back. That’s the way we should be doing it, to isolate the problem and attack the problem rather than just spending money throughout the state.”

DEP defends sediment load computer modeling, saying isolated stream samples don’t give a clear picture of a stream’s health over time. Instead, approved models take into account the variability in water quality and downstream bank erosion from flooding. Instream modeling is used to calibrate computer modeling, the agency said.

A Greencastle business owner talked about how an unexpected $18,000 stormwater fee rocked the company, not to mention his share levied on his home, another small business he owns and an anticipated hike in school taxes.

“I feel like I’m being quadrupled-bit,” lamented Brian Harbaugh, owner of Precision Manufacturing & Engineering Co. “I have no problem with saving the Bay. But what determined that a small borough like Greencastle should be classified as a MS4 district?

“Drive the back roads and see where the sediment comes from,” added Harbaugh, referring to farmland.

Echoing the sentiment often expressed at the hearing, Harbaugh said, “I believe most townships and boroughs don’t have the ability to decipher what is being asked of them.

No instructions are passed to them from EPA or DEP on what to fix and how to fix it. They just pass this mandate down along the line and leave it to municipalities. Please ease the financial burden that you are creating.”

Summed up Rep. Moul: “The common denominators that I’ve heard today are: too vague, too costly, no empirical data and calculations based on assumptions.”

“There needs to be some kind of final decision on how much, how fast,” said Wheeler supervisors association. “Our guys are saying it’s too much, too fast.”

In response to the criticisms, DEP’s Ramez Ziadeh said DEP was implementing a federal mandate from EPA. He said DEP has fought for and gained more flexibility from EPA, such as allowing larger MS4 projects and allowing them to be outside municipal boundaries.

But at another state committee hearing on MS4 problems in December in Franklin County, the barrage of criticism continued.

Mike Ross, president of the Franklin County Area Development Corp., warned legislators that the “extreme” stormwater regulations “could cause companies to relocate out of the area.”

Rep. Schemel, who has met with regional EPA officials about the pushback and raised questions with DEP, says he hopes the state will request an extension for implementing the tougher MS4 regulations “and set a time to work out the kinks and make these municipalities part of it.”

Asked about the widespread criticism of the MS4 program, an EPA spokesman said the agency has met with local officials and legislators over the last two years “to address their concerns and clear up misunderstandings regarding stormwater fees.

“EPA helped DEP develop a Frequently Asked Questions document to answer questions by the regulated community and offered technical assistance as well as support to DEP to train inspectors and hold forums for the regulated community to understand permit obligations,” said spokesman Chad Nitsch.

Because MS4 is an unfunded mandate, municipalities have had little help in financing projects other than forcing fees on property owners. Just before Christmas, Congress approved $24 million to be spent on grants to communities for stormwater control in states in the Chesapeake Bay region.

Some Pennsylvania municipalities have joined together to form regional municipal authorities to reduce costs. And increasingly, adjoining municipalities have undertaken joint stream restoration projects in shared watersheds.

DEP has been encouraging both strategies.

State legislators said they have asked DEP and EPA to shut down implementation of MS4 permitting until relief can be found for financial and implementation burdens.

But DEP says it won’t. “DEP continues to listen to the concerns of legislators and their municipalities, but there is no plan to halt the requirements of the current permit,” said spokeswoman Rementer. “Lessons learned from this permit term, however, will inform the next permit, which begins in 2023.”

[Note: Franklin County was one of four pilot counties that developed a local stakeholder-drive plan to achieve a 46 percent reduction in nitrogen and a 70 percent reduction in phosphorus nutrient runoff in the county.

[The Plan was presented to the statewide Chesapeake Bay Watershed Implementation Plan Steering Committee in March 2019. Click Here for more.

[After a Chesapeake Bay briefing on January 8, Sen. Yaw, Chair of the interstate Chesapeake Bay Commission and Majority Chair of the Senate Environmental Committee, told a reporter having the General Assembly raise the amount of money needed to implement Pennsylvania’s Clean Water Plan to meet its Chesapeake Bay obligations “isn’t going to happen.” Click Here for more.

[So politicians in Harrisburg, apparently, aren’t going to do anything to address the financial needs of communities like these two in Franklin County.

[On January 8, Maryland Gov. Larry Hogan directed his state’s Attorney General to pursue legal actions against Pennsylvania and EPA for failing to do their parts to implement clean water plans. Click Here for more.

[For more information on how Pennsylvania plans to meet its Chesapeake Bay cleanup obligations, visit DEP’s PA’s Phase 3 Watershed Implementation Plan webpage.

[Click Here for a summary of the steps the Plan recommends.]

(Photo: Brad Graham, administrator of Antrim Township, PA, looks over a stream that the township and adjacent town of Greencastle had eyed for restoration as part of state requirements to reduce sediment pollution from stormwater. The municipalities dropped the project to protest the requirements that officials say are too expensive, unjustified and not based on water quality sampling.)

(Reprinted from Chesapeake Bay Journal.)

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