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Under (Storm) Water

By John J. Baranski, Jr., Esquire

The new regulations (Federal, state and local) designed to protect the Chesapeake Bay are requiring increased efforts to control and retain storm water run-off.  Small, on-lot detention facilities, such as seepage pits and rain gardens, are becoming more and more common in new construction, and are in addition to the large, community-sized detention basins historically used for storm water detention.  All of these on-lot facilities have to be maintained in perpetuity, and the York County Conservation District is charged with inspection and enforcement in the event of a failure to maintain.  The obligation to maintain the on-lot facilities will become the individual property owner’s obligation, while a Home Owners’ Association will continue to maintain the community detention basins.  Both the individual property owner and the Home Owners’ Association are subject to fines if the facilities are not maintained.

The Pennsylvania Department of Environmental Protection (DEP) has a strong desire to make sure that new homeowners know what they are getting into when purchasing a home with on-lot detention facilities.  Since these facilities require perpetual maintenance in order for them to function properly, DEP through the York County Conservation District, has given itself the power, under the federal Clean Streams Law, to inspect and to fine land owners if these facilities fall into disrepair.  Initially, the developer is responsible for the maintenance of the facilities under the Storm Water Discharge Permit (NPDES Permit) that it must obtain in order to build homes.

However, when construction is completed, the developer will request that the NPDES permit be terminated, passing on the maintenance obligation to the individual property owner or to the Home Owners’ Association.

DEP has developed various forms to implement this policy.  A developer will need to file a Notice of Termination to terminate an NPDES Permit.  The Notice of Termination must include a completeness review and a fieldwork checklist. There also are requirements for a new property owner notice and as-built drawings for the stormwater facilities that must be recorded.  This information can be very difficult to obtain after the fact when all lots have been conveyed over several years to end buyers in a multi-year project.  In addition, the cost of as-built drawings for each lot showing an on-lot detention facility could be cost prohibitive, unless the cost is built into the price of the lot.

Other forms that need to be recorded include: a notice for any parcel with discharge facilities using Best Management Practices (BMPs) so that a title search will put the new owner on notice of the requirements for maintenance of the BMPs; a disclaimer form to be signed by each new owner accepting responsibility for the BMPs; and, a notice to be given to a potential buyer of a lot with BMPs prior to the buyer signing a contract of sale that puts the buyer on notice of the maintenance obligations.

The Notice of Termination form requires the developer to compile copies of these forms, and supply them with the Notice of Termination when it is filed with the York County Conservation District at the end of the project.  The developer needs to be accumulating these forms at each sale.  If not, the developer may find it difficult to obtain the signatures from all lot owners especially in a project that has taken several years to complete.

These forms are in addition to the standard Storm Water Operations and Maintenance Agreement (O & M Agreement) that DEP published a few years ago that requires a developer to sign and record as part of plan approval.  Apparently, the recorded O & M Agreement is not sufficient notice to an end buyer of the obligation to maintain the storm water facilities.  DEP does not want to let a developer off the hook from the responsibility of maintaining the storm water facilities as required under the NPDES permit unless the developer can clearly show at the time of Notice of Termination that the end buyer understands the obligations for maintenance of the storm water facilities in perpetuity, has accepted those obligations, and understands the potential for fines that come with ownership of a lot with storm water facilities.

Contact Attorney Baranski for more information on how to comply with these regulations or to obtain copies of DEP’s forms at JBaranski@blakeyyost.com.