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”
Energy & Environmental
Borough of Phoenixville Closes on Partial Sale of Water System
On December 4, 2019, the Borough of Phoenixville, Chester County (“Borough”) closed on the sale of a portion of its water system to Aqua Pennsylvania, Inc. (“Aqua”) for $3.46 million. Importantly, the Borough will retain full ownership and control of its water treatment plant and continue furnishing water distribution service to residents within the Borough. …
Steelton Borough Authority Closes on Sale of Water Assets
On October 9, 2019 Steelton Borough Authority (Authority) closed on the sale of its water assets to Pennsylvania-American Water Company for $21.750 million in cash and $35.7 million in committed capital improvements. As a part of the transaction, the Authority and the Borough of Steelton (Borough) repaid or defeased all of their debt, opening the …
Fiscal Code Provides Potential Funding for Water, Sewer and Storm Water Projects
Now that most of the dust has settled on the 2019/2020 budget, municipal and Authority water, wastewater and storm water system service providers should note that the Fiscal Code provides a funding opportunity.
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New House Proposal Would Subject Municipal Water, Wastewater Authorities to Additional Oversight
On February 12, 2019, Representative Tina Davis introduced a bill proposing to establish a new regulatory commission with oversight over municipal water and wastewater authorities. H.B. 494 would establish a Municipal Water and Wastewater Authority Oversight Commission (“Authority Commission”). Representative Davis previously sponsored H.B. 798, which would have amended the Public Utility Code to subject municipal water and wastewater authorities to regulation by the Pennsylvania Public Utility Commission (“PUC”). Introduced in 2017, H.B. 798 failed to move out of the Consumer Affairs Committee.
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Stormwater Fee Proposals Reintroduced in Pennsylvania General Assembly
Republican Representative Garth Everett, in a cosponsorship memorandum posted on February 1st, announced plans to reintroduce a package of bills that would expand the ability of municipalities throughout Pennsylvania to assess stormwater management fees. These proposals, contained in former House Bills 913 through 916 (2017-2018 session), died in the Senate last term after being passed with bipartisan support by the House.
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Commonwealth Court Requires Reexamination of PA Monetization Deal
On October 11, 2018, the Commonwealth Court of Pennsylvania (“Court”) vacated the Pennsylvania Public Utility Commission (“PUC”) Order approving the acquisition of the wastewater system assets of New Garden Township and New Garden Sewer Authority (collectively “New Garden”) by Aqua Pennsylvania Wastewater, Inc. (“Aqua”). Aqua’s Application sought PUC approval of the acquisition, a Certificate of Public Convenience to furnish wastewater service to customers in and around the service territory of New Garden, and, approval of a rate base predicated on the acquisition price, rate commitments and transaction costs.…
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Pennsylvania Legislature Approves New Municipal Alternative Energy Program
On May 23, the Pennsylvania House of Representatives approved Senate Bill 234, which creates the Property Assessed Clean Energy (PACE) Program. SB 234, which was approved by the Senate in January of this year, would help owners of agricultural, commercial and industrial properties obtain low-cost, long-term financing for energy efficiency, water conservation and renewable energy projects. The program would not include multifamily housing or other residential property.
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Sewer Authorities Could Owe Compensation for Repeated Sewage Overflows
Sewage backups tend to make relationships between landowners and their municipal sewer authorities rather, well, messy. When property is impacted by a sewer authority’s negligence, landowners would typically find a remedy in a trespass action. However, a recent decision by the Commonwealth Court of Pennsylvania holds that repeated sewage backups may cause a de facto taking under the Pennsylvania Eminent Domain code, requiring compensation to the landowner. This is yet another area of concern and possible liability for municipal authority operators.
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Challenges Mounting to Stormwater Fee Programs in Pennsylvania
Across much of the United States, the number of municipalities imposing stormwater management fees upon property owners has increased dramatically in recent years. The rising prevalence of stormwater management fees has predictably led to local and state court challenges by businesses, as non-residential property owners are typically more severely impacted by stormwater management fees in…