OP-ED: MS4 Regulations – Dangerous Overreach by the Harrisburg Bureaucracy

Sadly, the birthplace of liberty and freedom has become one of the highest taxed and over-regulated states in the nation.  It seems that Harrisburg bureaucrats are continuously looking for new ways to extort revenue from its citizens. We all know the sting of taxation, where sadly, Pennsylvania leads the way in so many areas. 

The latest example of overreach and overregulation comes in the form of the so called “rain tax.”

Our state Department of Environmental Protection’s (DEP) extreme interpretation of federal guidelines under the “Clean Water Act” has resulted in expensive and excessive mandates which are putting landowners, business owners and local governments under duress.

The Clean Water Act, enacted in 1972 (and amended in 1987 and 2002), is about cleaning U.S. waterways, something that we all support. It has two major sections; one covers water quality standards for navigable waters, (i.e. Chesapeake Bay). The other covers stormwater and is known as “MS4” (Municipal Separate Storm Sewer System). This requires municipalities to build two separate systems – one for sewage and another for stormwater.

The law requires reasonable progress toward pollution reduction and specifies that actions must be within the economic capability of permit holders.  However, DEP has pushed MS4 requirements far beyond the bounds of sanity. 

A week rarely passes without me hearing from multiple residents who have been severely impacted by Harrisburg’s latest revenue scheme. Since 2017, DEP has combined water quality standard requirements with MS4 and expanded beyond the original scope of the law. It now taxes impervious surfaces (which are not included in the Clean Water Act) and it applies MS4 requirements to any stormwater source, whether or not it discharges into navigable waterways.

This oppressive government overreach has resulted in a program that is crushing our municipalities. MS4 was never intended to force small towns to spend hundreds of thousands of dollars on what is essentially a new public utility that gobbles up taxpayer money whether or not it rains!

For example, Greencastle is subject to these regulations and its first billing cost taxpayers almost $300,000. The 1.6-square mile borough is home to only 4,000 residents. 

Additionally, DEP has also levied specific pollution reduction demands based upon confusing models with questionable data.  But, this has not stopped the bureaucracy from making local governments pay.  For example, Chambersburg was ordered to reduce pollutants by 900,000 pounds by 2023 based upon this almost impossible to understand data and this will cost taxpayers hundreds of thousands of dollars.

Statewide, there are 1,061 municipalities that are required to have MS4 permits. Originally, the permits required them to institute six minimum control measures: (1) public education and outreach; (2) public involvement and participation; (3) illicit discharge detection and elimination; (4) construction site run-off control; (5) post-construction site run-off control; and (6) pollution prevention.

DEP “allows” municipalities to come up with their own strategies for addressing stormwater, as long as they meet pollution reduction demands set by the state. But those mandates are unfunded, meaning each community has to find a way to pay for the programs, structures, and improvements.  For those who refuse to submit to this bureaucracy, they are threatened with hefty fines.

What is most bothersome is that PA bureaucrats interpret the stormwater mandates in ways that were not originally envisioned. MS4 standards and requirements have become arbitrary and capricious, and are impossible to achieve. Further, MS4 was not supposed to exceed a permit holders’ financial and logistical capabilities.

I have studied this matter and I am concerned about overreach that is not substantiated by the language delineated at the federal level.  Additionally, DEP has not even completed, and in many cases, has not commenced the data collection from the areas that are being monitored.  Literally, municipalities are being taxed without historic data to measure against (hence the highly theoretical modeling being used in its place).

As a result of this unacceptable situation, I asked DEP several questions in a letter dated Nov. 22nd.

First, I requested the specific and applicable section of the law where penalties are addressed. Second, I asked DEP to point out the portion of the code that dictates municipal compliance, and any background information showing how municipalities were mandated to participate. Third, I asked for a specific list of regulations and any related language from the U.S. Environmental Protection Agency and/or the Chesapeake Bay Commission that are being used by DEP to justify the MS4 and water quality requirements.

Despite all of the costs and headaches affiliated with this program, minimum control measures aimed at controlling preventable pollution have not reduced the volume of contaminants flowing into local and regional waterways at a fast enough rate to please DEP.

Hence, the issue has taken on a life of its own.  Nothing in the federal regulations or statutes justifies this extreme government overreach.

Having reviewed the documentation and regulations, not to mention the questionable modeling that is being used, it seems that the level of cost in money and resources is largely being driven by unelected state bureaucrats.  This is unacceptable and it’s time for Harrisburg to work for the people and not the other way around.

Please do not hesitate to reach out to me regarding your experiences in complying with MS4 mandates. As always, I can be reached by phone at any of my offices (Capitol: 717-787-4651; Adams County: 717-334-4169; Franklin County: 717-264-6100; York County: 717-632-1153) or by email at senatordoug@pasen.gov.

You can also contact me via my website: (https://senatormastriano.com/contact-me/).

I look forward to hearing from you.

      Senator Mastriano represents the 33rd District in the Pennsylvania Senate. The District includes Adams County and parts of Franklin, Cumberland and York counties.