Follow-up to recent article on potential new stormwater fee in the Borough of Conshohocken

On November 21st, reported that a mailer went out to property owners in the Borough of Conshohocken in November regarding a new stormwater fee that was anticipated to be added to quarterly sewer bills from the Borough of Conshohocken Authority most likely starting in April 2024. You can view the mailer here.

The November 21st article promised that we would ask some questions of the Conshohocken Sewer Authority’s board regarding this issue. Below are the questions and answers as provided by the authority.

Is the fee already approved or will it be considered after the two public meetings (the mailer was unclear whether it was approved already)?

It is anticipated that the fee structure will be considered at the Authority’s December public meeting, for implementation January 1, 2024 [December 13th at 6:00 p.m. at Conshohocken’s Borough Hall at 400 Fayette Street].

Why is the authority moving forward with the stormwater fee, while the PA Supreme Court is actively considering whether it is a tax or not?

The case currently pending with the PA Supreme Court will not affect the Authority’s ability to implement the fee. The question before the Court is whether the stormwater fee implemented by West Chester Borough is a fee or a tax, as applied to state owned properties within the Borough. As state-owned properties are exempt from local taxes, a holding that the fee was a tax would mean that such properties were exempt from payment. The Court will not be deciding whether a municipal entity can charge the fee, but only whether certain state owned properties are responsible for paying fees that are implemented.

I always thought the borough was responsible for managing and maintaining the stormwater sewers. Was there an ordinance or another type of law passed that moved this responsibility to the authority?

The Borough currently owns and maintains the stormwater management system. The proposal would involve the transfer of the system to the Authority, who would then have ultimate responsibility for maintenance of the system.  It is the intent of the Borough and the Authority to enter into an agreement whereby the Borough will serve as a contractor for the Authority that will perform the required maintenance functions. 

End of Q & A.

Regarding the appeal before the PA Supreme Court, other municipalities are taking a broader view on what the court could decide and have taken action. For example, in Upper Merion Township, its sewer authority has suspended the fee it had adopted, but not yet started collecting.

From the minutes of a March 21, 2023 meeting of the Upper Merion Sanitary & Stormwater Authority:

“Mrs. Kenney asked if there was any update on the West Chester Stormwater litigation. Mr. Hann indicated that all were waiting on the State Supreme Court to schedule which could be either late spring or summer and that a lot of municipalities have interest in the outcome. He added that he understands that municipalities who already collect a stormwater fee are getting refund requests based on the Commonwealth Courts decision.”

Further in the same minutes, “The Authority suggested that a letter or notice be sent to property owners regarding the delay in the billing of the approved stormwater fee due to pending West Chester Borough litigation and requested that a draft be presented for their review at the next meeting.”

To give a broader view, the Associated Press published an article on August 30th titled, “Municipalities say Pennsylvania court ruling on stormwater fees could drain them financially.” The article opens with, “Millions of dollars that help local governments manage stormwater runoff are at stake as the Pennsylvania Supreme Court considers a lower court’s decision that a state-owned university was not required to pay because of its tax-exempt status, a decision that also raises questions about whether the charges are even legal.”

The article also points out that in addition to deciding whether the fee is a tax, the PA Supreme Court could also tackle how the amount of the fee/tax is determined. From the article:

The court [Commonwealth] also said calculating the fee based on how large a developed property is does not necessarily correspond to the level of service that is provided, as municipalities do when they charge for other services such as water consumption.

The borough [West Chester] — and many others — levy the charge based on a property’s square footage of impervious surface, saying that buildings, parking lots and the like contribute more to runoff, and put more strain on their stormwater systems. That aspect of the case has wider ramifications for other Pennsylvania municipalities that impose similar stormwater fees.

The Borough of Conshohocken Authority is holding two public meetings to address the new fee. The meetings are scheduled for December 7th and January 18th at 6:30 p.m. in Conshohocken’s Borough Hall.

Correction – A previous version of this article stated that Upper Merion had started collecting the fee it adopted.