Conduit Street

As reported in the Baltimore Sun, Harford County Executive David Craig issued a lengthy statement critiquing the fee which has been dubbed a “rain tax” in national news.

County Executive Craig recently signed the county’s new stormwater implementation fee into law, though the bill he signed reduced the stormwater fees to 10% of what he originally proposed for residences and businesses, at least for the first year of the fees.  The amended bill also provides for 100% exemption for properties with certain stormwater reduction systems already in place, and for a task force to study the issue and make recommendations to the County Council and Executive. As reported in the Sun.

Craig signed off on legislation passed last month that is significantly different than what he himself had proposed two months earlier. The net effect is Harford went from potentially having one of the highest residential stormwater remediation fees in the state to one of the lowest, or at least for the next year.

In a statement released today, the County Executive, who spoke out against the stormwater fee in Annapolis last year, said he concurs with the county council’s reduction of the proposed fee and creation of the task force, according to the Sun.

“I commend and thank the County Council for working with my administration on this difficult issue, and I fully support their task force to further study this heavy-handed state mandate,” the county executive’s statement Friday said.

For more information, see the full story from the Sun, Harford County’s Stormwater Fee Bill 4.25.13, and our previous posts on Conduit Street.

A May 5 Delmarvanow.com article discusses the City of Salisbury’s consideration of a stormwater fee.  The City Council was scheduled to hear a presentation by University of Maryland researchers at their May 5 meeting on the need for such a dedicated fee.

A new study calls for creating a utility to raise more than $25 million throughout 10 years to pay for maintaining and upgrading the system. The City Council is scheduled to hear a presentation today about the “Stormwater Financing Feasibility Study,” which was compiled during the course of a year by University of Maryland researchers.  …

The report suggests charging a flat fee of $40 for each residential property for the first four years. From years five through seven, it jumps to $45. By year eight, it hits $50.

Owners of other types of properties would pay a fee linked to their size and based on the flat residential fee.

Mayor Jim Ireton, though, is recommending that the council adopt a $20 annual fee for homes. If approved, the fees would begin Jan. 1, 2015, and generate about $500,000 for the remaining six months of that fiscal year, officials say.  …

Salisbury is far from alone in contemplating or approving a stormwater utility on the Lower Shore. Berlin created a utility earlier this year, charging a flat rate of $50 a home. Ocean City officials are discussing a $35-a-year fee.

Comments by legislators in an April 29 Gazette.net article raises further speculation that the General Assembly may revisit 2012 legislation requiring 10 counties to adopt stormwater management fees by July 1 of this year.  Regardless of whether the General Assembly reconsiders the stormwater fee requirements in the 2014 Session, counties must still implement some form of the fee by July 1, adding further uncertainty to what has been a challenging process for most of the affected counties.  The legislator concerns has been prompted in part due to a lack of homeowner awareness about the fee and concerns from nonprofit organizations and businesses about the size of their potential annual fee payments.

“Sometimes we do things that we have to go back and look at [again],” said Sen. Nancy J. King (D-Dist. 39) of Montgomery Village. “This could be one of them.”  …

Sen. Edward J. Kasemeyer (D-Dist. 12) of Columbia, who chairs the Senate Budget and Taxation Committee, said he certainly supported the overall goal of the fees — to support the health of the Chesapeake Bay — but the cost to businesses with large parking lots, for example, could be astronomical.

“There hasn’t been much notice. People are not aware this charge is coming their way,” Kasemeyer said.  …

Delegate Sheila Ellis Hixson (D-Dist. 20) of Takoma Park, who chairs the House Ways and Means Committee, said the legislation could certainly be considered again in the next session, and levying large fines against nonprofit groups and churches “was no one’s intent.”

The article also highlights the challenges counties face in trying to find a balance between charging a fee that accurately reflects the costs of mitigating a property’s stormwater runoff, which is mandated by the Chesapeake Bay Total Maximum Daily Load and State regulations, and not imposing onerous costs on homeowners, businesses, and nonprofits.  The 2012 legislation does require that the fee be reduced for a property owner who takes steps to mitigate a property’s runoff.

The Maryland State Bar Association hosted its 2013 Land Use Institute on April 26 and included presentations from the Maryland Department of Planning, Maryland Department of the Environment (MDE), and MACo.  Among the topics discussed was the implementation and policy challenges raised by HB 987 of 2012, which requires 10 counties to adopt a stormwater management fee by July 1, 2013.

During a MDE presentation entitled “State Environmental Management of Growth and Development for the Bay,” Principal Counsel Steven Johnson stated that MDE believes it has the authority to fine counties that fail to adopt a fee under HB 987, but that it would be unlikely for MDE to exercise that power.  Mr. Johnson’s assertion is derived from the fact that the provisions of HB 987 are located within the same stormwater management subtitle as § 4-215 of the Environment Article.  That section outlines potential criminal, civil, and administrative penalties for stormwater violations.  Section 4-215(c) allows MDE or the Department of Natural Resources to bring a civil action against any person for any violation of the subtitle, with fines of up to $10,000 a day (no cap) and § 4-215(d) allows MDE to impose up to $1,000 a day in administrative penalties (with a total cap of $20,000).

MACo Legal and Policy Counsel Les Knapp also discussed the impacts of recent state environmental initiatives, including the Chesapeake Bay Total Maximum Daily Load and the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236 - the septic system legislation), on local land use.  Queen Anne’s County Planning and Zoning Director Steve Cohoon discussed whether local governments can still actually plan.  Amanda Conn, Assistant Attorney General for MDP, outlined the key components of SB 236.

MACo’s MSBA Presentation

MDE Stormwater Fee FAQ

An April 20 Washington Examiner article announces the recent extension of Montgomery County’s stormwater  management fee to nonresidential properties and discusses some of the controversy surrounding an exemption in state law for State and local government properties.

Montgomery County is one of 10 counties that was required to charge a stormwater management fee and establish a watershed protection and restoration program under HB 987 of 2012.  The stated purpose of the legislation was to provide a funding mechanism for urban counties with significant stormwater runoff to meet their stormwater sector nutrient and sediment target goals under the federally mandated Chesapeake Bay Total Maximum Daily Load (TMDL) and any fees collected must go towards stormwater mitigation and stream restoration purposes.  Property owners may offset reduce the fee if they mitigate stormwater runoff on their own properties.  The legislation also exempted properties owned by the State or a local government from paying the fee.

From the article:

The Water Quality Protection Charge — decried as a “rain tax” by opponents — will be charged to property owners based on how much of their property consists of impervious materials like concrete or pavement that rain can’t pass through. Residential property owners have paid it since the state General Assembly passed a law in 2012 to put Maryland in compliance with an Environmental Protection Agency mandate. Montgomery County voted last week to extend the fee to nonresidential properties — except for government buildings.

“There’s a historical exemption for state bodies and local jurisdictions because of separation of powers,” said Samantha Kappalman, a spokeswoman for the Maryland Department of the Environment.

“It’s been long-running that there’s a state exemption from local fees.”  …

The article notes that while some State agencies are performing stormwater mitigation on their own properties, certain activists would like to see governments also subject to the fee.

“This unfunded mandate is proving how dysfunctional government is, and placing all the responsibility on property owners isn’t fair,” said Americans for Prosperity-Maryland Grassroots Director Nick Loffer. “It’s time for government to respect taxpayers by thinking these things out.”

MACo supports the exemption for county governments for several reasons.  All of the affected counties are subject to a federal National Pollutant Discharge Elimination System Phase I municipal separate storm sewer system permit and are essentially required to mitigate stormwater runoff on their own properties in order to meet their TMDL nutrient and sediment goals.  Also, it would make no sense for a county to charge a fee on itself as any money to pay such a fee would ultimately come from the taxpayers of that jurisdiction.

The 10 counties required to adopt a stormwater fee under HB 987 include:  Anne Arundel, Baltimore City, Baltimore County, Carroll, Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s.