Is there preemption?
Yes, but not completely. Preemption applies to runoff in the same way that it applies to Concentrated Animal Feeding Operations and Concentrated Animal Operations (or CAFOs and CAOs) under the Nutrient Management Act (NMA), 3 Pa.C.S. §§ 501-522.
What is the preemption statute?
The NMA regulates runoff from agricultural operations above a certain size. This chapter and its provisions are of Statewide concern and occupy the whole field of regulation regarding nutrient management and odor management, to the exclusion of all local regulations. However, section 519 of the NMA only prohibits local regulation of nutrient and odor management “to the extent that it is more stringent than, inconsistent with, or in conflict with the [NMA] or its regulations.”
Local governments can enact ordinances that are consistent with and no stricter than the state Act and its regulations. Local governments must also defer to state law regarding the storage, handling, or land application of animal manure.
Are there exceptions?
Yes. However, a burdensome regulation of agricultural operations too small to fall within the NMA could be reasonably challenged. Rules created as exceptions to the preemption statute would likely benefit from narrow language that clearly shows the new rule is not stricter than or in conflict with the NMA.