Township of New Garden, PA Article I General Provisions

§ 165-1 Short Title.

This chapter shall be known as the "New Garden Township Stormwater Management Ordinance."

§ 165-2 Statement of findings.

The governing body of the municipality finds that:

A. Due to state mandate, New Garden Township is being required to adopt increased stormwater management regulations. This should result in improvement in control of water flows and velocities and reduced erosion and sedimentation. This should improve stormwater management and potentially reduce flooding and improve the quality of surface and ground water to downstream communities.

B. Inadequate management of accelerated stormwater runoff resulting from land disturbance and development throughout a watershed increases flooding, flows and velocities, contributes to erosion and sedimentation, overtaxes the capacity of streams and storm sewers, greatly increases the cost of public facilities to convey and manage stormwater, undermines floodplain management and flood reduction efforts in upstream and downstream communities, reduces infiltration and groundwater recharge, increases nonpoint source pollution to waterways, and threatens public health and safety.

C. Inadequate planning and management of stormwater runoff resulting from land disturbance and development throughout a watershed can harm surface water resources by changing the natural hydrologic patterns, accelerating stream flows (which increase scour and erosion of stream beds and stream banks, thereby elevating sedimentation), destroying aquatic habitat, and elevating aquatic pollutant concentrations and loadings such as sediments, nutrients, heavy metals, and pathogens. Groundwater resources are also impacted through loss of recharge.

D. A comprehensive program of stormwater management, including minimization of impacts of new development, redevelopment, and other earth disturbance activities causing accelerated runoff and erosion and loss of natural infiltration, is fundamental to the public health, safety, and general welfare of the people of the municipality and all of the people of the commonwealth, their resources, and the environment.

E. Stormwater is an important water resource that provides infiltration and groundwater recharge for water supplies and baseflow of streams, which also protects and maintains surface water quality.

F. Impacts from stormwater runoff can be minimized by reducing the volume of stormwater generated and by using project designs that maintain the natural hydrologic regime and sustain high water quality, infiltration, stream baseflow, and aquatic ecosystems. Cost-effective and environmentally sensitive stormwater management can be achieved through the use of nonstructural site design techniques that minimize impervious surfaces, reduce disturbance of land and natural resources, avoid sensitive areas (i.e., riparian buffers, floodplains, steep slopes, wetlands, etc.), and consider topography and soils to maintain the natural hydrologic regime.

G. Public education on the control of pollution from stormwater is an essential component in successfully addressing stormwater.

H. Federal and state regulations require the municipality to implement a program of stormwater controls. The municipality is required to obtain a permit and comply with its provisions for stormwater discharges from its separate storm sewer system under the National Pollutant Discharge Elimination System (NPDES).

I. Nonstormwater discharges to municipal or other storm sewer systems can contribute to pollution of the waters of the commonwealth.

§ 165-3 Purpose.

The purpose of this chapter is to protect public health, safety and general welfare, property and water quality by implementing drainage and stormwater management practices, criteria, and provisions included herein for land development, construction and earth disturbance activities, to achieve the following throughout the municipality:

A. Reduce the frequency and magnitude of flooding and stormwater impacts affecting people, property, infrastructure and public services.

B. Sustain or improve the natural hydrologic characteristics and water quality of groundwater and surface waters.

C. Protect natural resources, including riparian and aquatic living resources and habitats.

D. Maintain the natural hydrologic regime of land development sites and their receiving watersheds.

E. Minimize land disturbance and protect and incorporate natural hydrologic features, drainage patterns, infiltration, and flow conditions within land development site designs.

F. Reduce and minimize the volume of stormwater generated, and manage and release stormwater as close to the source of runoff as possible.

G. Provide infiltration and maintain natural groundwater recharge to protect groundwater supplies and stream baseflows, prevent degradation of surface water and groundwater quality, and to otherwise protect water resources.

H. Reduce stormwater pollutant loads to protect and improve the chemical, physical, and biological quality of ground and surface waters.

I. Reduce scour, erosion and sedimentation of stream channels.

J. Reduce flooding impacts and preserve and restore the natural flood-carrying capacity of streams and their floodplains.

K. Protect adjacent and downgradient lands from adverse impacts of direct stormwater discharges.

L. Minimize impervious surfaces and connected impervious surfaces to promote infiltration and reduce the volume and impacts of stormwater runoff.

M. Provide proper long-term operation and maintenance of all permanent stormwater management facilities, BMPs and conveyances that are implemented within the municipality.

N. Reduce the impacts of runoff from existing developed land undergoing redevelopment while encouraging new development and redevelopment in urban areas and areas designated for growth.

O. Implement an illicit discharge detection and elimination program that addresses nonstormwater discharges.

P. Provide performance standards and design criteria based on watershed-based stormwater management planning.

Q. Provide standards to meet certain NPDES stormwater permit requirements.

R. Meet legal water quality requirements under state law, including regulations at 25 Pa. Code Chapter 93, to protect, maintain, reclaim and restore the existing and designated uses of the waters of the commonwealth.

S. Implement the requirements of total maximum daily load (TMDLs) where applicable to waters within or impacted by the municipality.

T. Provide review procedures and performance standards for stormwater planning and management.

U. Fulfill the purpose and requirements of Pennsylvania Act No. 167 (PA Act 167, § 3):

	(1)	Encourage planning and management of stormwater runoff in each watershed which is consistent with sound water and land use practices.
	(2)	Authorize a comprehensive program of stormwater management designated to preserve and restore the flood-carrying capacity of commonwealth streams; to preserve to the maximum extent practicable natural stormwater runoff regimes and natural course, current and cross-section of water of the commonwealth; and to protect and conserve groundwaters and groundwater recharge areas.
	(3)	Encourage local administration and management of stormwater consistent with the commonwealth's duty as trustee of natural resources and the people's constitutional right to the preservation of natural, economic, scenic, aesthetic, recreational and historic values of the environment.

§ 165-4 Statutory authority.

A. The municipality is empowered or required to regulate land use activities that affect runoff and surface and ground water quality and quantity by the authority of:

(1) The Act of October 4, 1978, P.L. 864 (Act 167), 32 P.S. § 680.1 et seq., as amended, the Storm Water Management Act (hereinafter referred to as "the Act");

(2) The Pennsylvania Municipalities Planning Code, Act of July 31, 1968 (Act 247),[1] as reenacted and amended; and

[1] Editor's Note: See 53 P.S. § 10101.

(3) The Second Class Township Code, 53 P.S. § 65101 et seq.

B. Furthermore, the municipality is a municipal separate storm sewer system community under Phase II of the National Pollution Discharge Elimination System (NPDES) Stormwater Program of the Environmental Protection Agency (EPA) and is thereby empowered to regulate stormwater by the authority of the Clean Streams Law, 35 P.S. § 691.1 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq.

§ 165-5 Applicability.

A. The following activities are regulated by this chapter:

(1) All regulated activities, as defined in this chapter, including but not limited to new development, redevelopment, and earth disturbance activities, that are located within the municipality shall be subject to regulation by this chapter.

(2) When a building and/or grading permit is required for any regulated activity on an existing parcel or approved lot created by a subdivision and/or improved as a land development project, issuance of the permit shall be conditioned upon adherence to the terms of this chapter.

(3) This chapter contains the stormwater management performance standards and design criteria that are necessary from a watershed-based perspective. The municipality's stormwater management conveyance and system design criteria (e.g., inlet spacing, inlet type, collection system design and details, outlet structure design, etc.) shall continue to be regulated by the applicable municipal ordinance(s) and applicable state regulations or as included in § 165-25 of this chapter.

B. Duty of persons engaged in a regulated activity. Notwithstanding any provision(s) of this chapter, including exemptions, any landowner or any person engaged in the alteration or development of land which may affect stormwater runoff characteristics shall implement such measures as are reasonably necessary to prevent injury to health, safety, or other property. Such measures also shall include actions as are required to manage the rate, volume, direction, and quality of resulting stormwater runoff in a manner which otherwise adequately protects health, property, and water quality of waters of the commonwealth.

C. Phased and incremental project requirements.

(1) Any regulated activity (including but not limited to new development, redevelopment, or earth disturbance) that is to take place incrementally or in phases, or occurs in sequential projects on the same parcel or property, shall be subject to regulation by this chapter if the cumulative proposed impervious surface or earth disturbance exceeds the corresponding threshold for exemption (as presented in Table 165-6.1, Thresholds for regulated activities That Are Exempt From the Provisions of This Chapter as Listed Below).

(2) The effective date of this chapter shall be the starting point from which to consider tracts as parent tracts relative to future subdivisions, and from which impervious surface and earth disturbance computations shall be cumulatively considered. For example:

If, after the effective date of this chapter, an applicant proposes construction of a six-hundred-square-foot garage, that project would be exempted from the requirements of this chapter as noted in Table 165-6.1. If, at a later date, an applicant proposes to construct a nine-hundred-square-foot room addition on the same property, the applicant would then be required to implement the stormwater management and plan submission requirements of this chapter for the cumulative total of 1,500 square feet of additional impervious surface added to the property since the effective date of this chapter.

D. Applicability of Article VIII, Prohibitions. The provisions of Article VIII, Prohibitions, apply to all activities, persons and properties within the municipality.

§ 165-6 Exemptions; modified requirements for small projects and agricultural structures.

A. Requirements for exempt activities.

(1) An exemption from any requirement of this chapter shall not relieve the applicant from implementing all other applicable requirements of this chapter or from implementing such measures as are necessary to protect public health, safety, and welfare, property and water quality.

(2) An exemption shall not relieve the applicant from complying with the requirements for state-designated special protection waters designated by PADEP as high-quality (HQ) or exceptional-value (EV) waters, or any other current or future state or municipal water quality protection requirements.

(3) An exemption under this chapter shall not relieve the applicant from complying with all other applicable municipal ordinances or regulations.

B. General exemptions. Regulated activities that involve less than 1,000 square feet of proposed impervious surfaces and less than 5,000 square feet of earth disturbance; or are listed in § 165-6C, are exempt from those (and only those) requirements of this chapter that are included in the sections and articles listed in Table 165-6.1. Exemptions are for the items noted in Table 165-6.1, only, and shall not relieve the landowner from other applicable requirements of this chapter. Exemption shall not relieve the applicant from implementing such measures as are necessary to protect health, safety and welfare, property, and water quality.

Table 165-6.1
Thresholds for Regulated Activities Exempt From Chapter Provisions Listed (See Notes below Table 165-6.1.)
Chapter Article/Section	Activities Listed in § 165-6C	< 1,000 Square Feet of Proposed Impervious Surfaces AND < 5,000 Square Feet of Proposed Earth Disturbance	> 1,000 Square Feet of Proposed Impervious Surfaces OR > 5,000 Square Feet of Proposed Earth Disturbance
Article I, General Provisions	Not exempt	Not exempt	Not exempt
Article II, Definitions	Not exempt	Not exempt	Not exempt
Article III, Stormwater Management Standards, §§ 165-16, 165-17 and 165-18	Not exempt	Not exempt	Not exempt
Article III, Stormwater Management Standards, §§ 165-15, 165-18, 165-19, 165-20, 165-21, 165-22, 165-23 and 165-24	Exempt	Exempt	Not exempt
Article IV, Site Plan Requirements	Exempt	Exempt	Not exempt
Article V, Performance and Inspection of regulated activities and Final as-built plans	Exempt	Exempt	Not exempt
Article VI, Fees and Expenses	Exempt	Exempt	Not exempt
Article VII, Operation and Maintenance	Exempt	Exempt	Not exempt
Article VIII, Prohibitions	Not exempt	Not exempt	Not exempt
Article IX, Enforcement and Penalties	Not exempt	Not exempt	Not exempt
Other erosion, sediment and pollution control requirements	Must comply with Title 25, Chapter 102, of the Pa. Code and other applicable state and municipal codes, including the Clean Streams Law.

Table 165-6.1 Notes:
1.	Specific activities listed in § 165-6C are exempt from the indicated requirements, regardless of size.
2.	A proposed regulated activity must be less than both the proposed impervious surfaces and proposed earth disturbance thresholds to be eligible for exemption from the requirements listed in this table.
3.	"Proposed impervious surface": as defined in this chapter.
4.	"Exempt": Regulated activities are exempt from the requirements of listed section(s) only; all other provisions of this chapter apply.

C. Exemptions for specific activities. The following specific regulated activities are exempt from the requirements of §§ 165-15, 165-18, 165-19, 165-20, 165-21, 165-22, 165-23 and 165-24 and Articles IV, V, VI and VII of this chapter (as shown in Table 165-6.1), unless otherwise noted below. All other conveyance and system design standards established by the municipality in other codes or ordinances shall be required, and all other provisions of this chapter shall apply.

(1) Emergency exemption: emergency maintenance work performed for the protection of public health, safety and welfare. This exemption is limited to repair of the existing facility; upgrades, additions or other improvements are not exempt. A written description of the scope and extent of any emergency work performed shall be submitted to the municipality within two calendar days of the commencement of the activity. A detailed plan shall be submitted no later than 30 days following commencement of the activity. If the municipality finds that the work is not an emergency, then the work shall cease immediately and the requirements of this chapter shall be addressed as applicable.

(2) Maintenance: Any maintenance to an existing stormwater management system, facility, BMP or conveyance made in accordance with plans and specifications approved by the Municipal Engineer or municipality.

(3) Existing landscaping: use of land for maintenance, replacement or enhancement of existing landscaping.

(4) Gardening: use of land for gardening for home consumption.

(5) Agricultural-related activities:

(a) Agricultural activities (as defined in Article II).

(b) Conservation practices (as defined in Article II) that do not involve construction of any new or expanded impervious surfaces.

(c) High tunnels (as defined in Article II), if:

[Added 12-16-2019 by Ord. No. 239]

[1] The high tunnel or its flooring does not result in an impervious area exceeding 25% of all structures located on the owner's total contiguous land area; and

[2] The high tunnel meets one of the following:

[a] The high tunnel is located at least 100 feet from any perennial stream or watercourse, public road or neighboring property line;

[b] The high tunnel is located at least 35 feet from any perennial stream or watercourse, public road, or neighboring property line and located on land with a slope not greater than 7%; or

[c] The high tunnel is supported with a buffer or diversion system that does not directly drain into a stream or other watercourse by managing stormwater runoff in a manner consistent with the requirements of this chapter.

(6) Forest management: forest management operations, which are consistent with a sound forest management plan approved by the municipality and which comply with the Pennsylvania Department of Environmental Protection's management practices contained in its publication "Soil Erosion and Sedimentation Control Guidelines for Forestry" (as amended or replaced by subsequent guidance). Such operations are required to have an erosion and sedimentation control plan which meets the requirements of 25 Pa. Code Chapter 102 and meets the erosion and sediment control standards of § 165-17 of this chapter.

(7) Maintenance of existing paved surfaces. Replacement of existing paved surfaces shall meet the erosion and sediment control requirements of 25 Pa. Code Chapter 102 and § 165-17 of this chapter and is exempt from all other requirements of this chapter listed in § 165-6C above. Resurfacing of existing paved surfaces is exempt from the requirements of this chapter listed above. Construction of new or additional impervious surfaces shall comply with all requirements of this chapter as indicated in Table 165-6.1.

(8) Municipal roadway shoulder improvements: shoulder improvements conducted within the existing roadway cross-section of municipal-owned roadways, unless an NPDES permit is required, in which case the proposed work must comply with all requirements of this chapter.

(9) In-place replacement of residential dwelling unit: the replacement in the exact footprint of an existing one- or two-family dwelling unit.

(10) In-place replacement, repair, or maintenance of residential impervious surfaces: The replacement of existing residential patios, decks, driveways, pools, garages, and/or sidewalks that are accessory to an existing one- or two-family dwelling unit in the exact footprint of the existing impervious surface.

D. Modified requirements for small projects. Regulated activities that involve 1,000 to 2,000 square feet of proposed impervious surfaces and 5,000 to 10,000 square feet of proposed earth disturbance may apply the modified requirements presented in the "Simplified Approach to Stormwater Management for Small Projects" (Simplified Approach) (Appendix A)[1] to comply with the requirements of §§ 165-18, 165-19, 165-20, 165-21, 165-22, 165-23 and 165-24 and Articles IV, V, VI and VII of this chapter (as shown in Table 165-6.2.). The applicant shall first contact the Municipal Engineer to confirm that the proposed project is eligible for use of the Simplified Approach and is not otherwise exempt from these chapter provisions; to determine what components of the proposed project are to be considered as impervious surfaces; and to determine if other known site or local conditions exist that may preclude the use of any techniques included in the Simplified Approach. Appendix A includes instructions and procedures for preparation, submittal, review and approval of documents required when using the Simplified Approach and shall be adhered to by the applicant. All other provisions of this chapter shall apply.

Table 165-6.2
Thresholds for Regulated Activities Eligible for Modified Requirements for Chapter Provisions Listed
Chapter Article/Section	Activities Listed in § 165-6D and E
Article I, General Provisions	All provisions apply
Article II, Definitions	All provisions apply
Article III, Stormwater Management Standards, §§ 165-16, 165-17 and 165-25	All provisions apply
Article III, Stormwater Management Standards, §§ 165-15, 165-18, 165-19, 165-20, 165-21, 165-22, 165-23 and 165-24	Exempt if modified requirements of § 165-6D and/or E are applied
Article IV, Site Plan Requirements	Exempt if modified requirements of § 165-6D and/or E are applied
Article V, Performance and Inspection of regulated activities and Final as-built plans	Exempt if modified requirements of § 165-6D and/or E are applied
Article VI, Fees and Expenses	Exempt if modified requirements of § 165-6D and/or E are applied
Article VII, Operation and Maintenance	Exempt if modified requirements of § 165-6D and/or E are applied
Article VIII, Prohibitions	All provisions apply
Article IX, Enforcement and Penalties	All provisions apply
Other erosion, sediment and pollution control requirements	Must comply with Title 25, Chapter 102, of the Pa. Code and other applicable state and municipal codes, including the Clean Streams Law

Table 165-6.2 Notes:
1.	"Modified Requirements": Regulated activities listed within the sections of this chapter noted in Table 165-6.2 are eligible for exemption only from the indicated sections and subsections of this chapter and only if the modified requirements of § 165-6D and/or E are met to the satisfaction of the municipality; all other provisions of this chapter apply.

[1] Editor's Note: Appendix A is included as an attachment to this chapter.

E. Modified requirements for agricultural structures. It is the declared policy of the commonwealth to conserve and protect and to encourage the development and improvement of its agricultural lands for the production of food and other agricultural products. Municipalities must encourage the continuity, development and viability of agricultural operations within its jurisdiction. Except as necessary to protect the public health, safety and welfare, regulated activities involving proposed new or expanded impervious surfaces associated with agricultural activities are exempt from the requirements of §§ 165-15, 165-18, 165-19, 165-20, 165-21, 165-22, 165-23 and 165-24 and Articles IV, V, VI and VII of this chapter (and listed in Table 165-6.2) only when it has been demonstrated to the satisfaction of the municipality that the proposed project will comply with all of the requirements listed below. All other provisions of this chapter shall apply. To be eligible for exemption from the chapter provisions stated above, the proposed regulated activity shall:

(1) Be directly associated with an agricultural activity (as defined in Article II);

(2) Include less than 10,000 square feet of proposed new or expanded impervious surface (excluding adjoining vehicle parking and movement areas) and not more than an additional 5,000 square feet of adjoining vehicle parking and movement area;

(3) Be installed on a farm or mushroom operation that has a current mushroom farm environmental management plan (MFEMP) reviewed and deemed adequate by the Conservation District or an agricultural erosion and sediment control plan or conservation plan (as defined in Article II) that complies with the requirements of 25 Pa. Code 102;

(4) Divert runoff from the proposed new or expanded impervious surfaces (including vehicle parking and movement area) entirely away from animal management, waste management and crop farming areas and any other source of pollutants;

(5) Include BMPs that will permanently retain at least one inch of rainfall runoff from the total area of proposed new or expanded impervious surfaces and vehicle parking and movement areas;

(6) Be designed so that any point of discharge of runoff from the proposed new or expanded impervious surface (excluding vehicle movement area):

(a) Is not directly connected to, and is not directly connected to any constructed conveyance that is connected to, a municipal separate storm sewer system or public roadway;

(b) Is located at least 150 feet from any municipal separate storm sewer system or public roadway or any constructed conveyance connected to any municipal separate storm sewer system or public roadway.

(7) Either:

(a) Have all proposed new or expanded impervious surfaces and proposed vehicle parking and movement areas and BMPs included within the current MFEMP or current agricultural erosion and sediment control plan or a conservation plan for the farm or mushroom operation; or

(b) Be constructed per design plans prepared and sealed by a licensed professional in conformance with the PADEP "Best Practices for Environmental Protection in the Mushroom Farm Community" (2003 or as amended), or per design plans prepared and sealed by a licensed professional (or conservation district staff person designated by NRCS) that comply with USDA NRCS standards and specifications, and for which completion of construction will be certified by the licensed (or NRCS-designated design) professional responsible for the design; and

(8) Not be eligible for exemption if an NPDES permit is required.

§ 165-7 (Reserved)

§ 165-8 (Reserved)

§ 165-9 Compatibility with other ordinances or legal requirements.

A. Approvals issued and actions taken pursuant to this chapter do not relieve the applicant of the responsibility to secure and comply with other required permits or approvals for activities regulated by any other applicable code, rule, act, law, regulation, or ordinance.

B. To the extent that this chapter imposes more rigorous or stringent requirements for stormwater management than any other code, rule, act, law, regulation or ordinance, the specific requirements contained in this chapter shall take precedence.

C. Nothing in this chapter shall be construed to affect any of the municipality's requirements regarding stormwater matters that do not conflict with the provisions of this chapter, such as local stormwater management design criteria (e.g., inlet spacing, inlet type, collection system design and details, outlet structure design, etc.).

§ 165-10 Financial security.

For all activities requiring submittal of a stormwater management (SWM) site plan that involve subdivision or land development, or for other activities at the discretion of the Municipal Engineer, the applicant shall post financial security to the municipality for the timely installation and proper construction of all stormwater management facilities as required by the approved SWM site plan and this chapter, and such financial security shall:

A. Be equal to or greater than the full construction cost of the required facilities except to the extent that financial security for the cost of any of such improvements is required to be and is posted with the Pennsylvania Department of Transportation in connection with a highway occupancy permit application; and

B. Be determined, collected, applied and enforced in accordance with §§ 509 to 511 of the MPC and the provisions of the municipality's Subdivision and Land Development Ordinance (SALDO),[1] provided that the municipality may withhold up to 10% retainage until the project is completed.

[1] Editor's Note: See Ch. 170, Subdivision and Land Development.

§ 165-11 Waivers.

A. General. The requirements of this chapter are essential and shall be strictly adhered to. For any regulated activity where, after a close evaluation of alternative site designs, it proves to be impracticable to meet any one or more of the mandatory minimum standards of this chapter on the site, the municipality may approve measures other than those in this chapter, subject to § 165-11B and C.

B. The governing body shall have the authority to waive or modify the requirements of one or more provisions of this chapter if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the chapter is observed. Cost or financial burden shall not be considered a hardship. Modification may also be considered if an alternative standard or approach can be demonstrated to provide equal or better achievement of the results intended by the chapter. A request for modification shall be in writing and accompany the SWM site plan submission. The request shall state in full the grounds and facts on which the request is based, the provision or provisions of the chapter involved and the minimum modification necessary. The governing body shall have the authority to impose reasonable conditions on the grant of any waiver or modification.

C. PADEP approval required. For any proposed regulated activity involving earth disturbance equal to or greater than one acre, the municipality may approve measures for minimum volume and infiltration control, other than those required in this chapter, only after consultation with and evaluation by PADEP that the alternate site design meets state water quality requirements and does not conflict with state law, including but not limited to the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq.

§ 165-12 Erroneous permit.

Any permit or authorization issued or approved based on false, misleading or erroneous information provided by an applicant is void without the necessity of any proceedings for revocation. Any work undertaken or use established pursuant to such permit or other authorization is unlawful.