Task Force Considers Changes to Septics Bill, BRF Increase

During its October 25 meeting, the Task Force on Sustainable Growth and Wastewater Disposal heard reports from its four workgroups, and entertained discussion of initial areas of “consensus” on a range of topics related to the proposed septic system legislation (HB 1107 / SB 846) from the 2011 session. 

MACo testified against the 2011 legislation, arguing that it went beyond simply trying to address water pollution issues and instead would make significant changes to local land use decisions with little consideration of potential consequences.  Following the legislation’s failure, the Task Force was created via executive order to recommend changes to the legislation and consider other growth issues.  House Environmental Matters Chair Maggie McIntosh chairs the Task Force.  Sustainable Growth Commission Chair Jon Laria is the vice-chair.    The Task Force’s final report is due December 1.

The Task Force is composed of 28 members, including two MACo representatives.    In order meet their many charges, Task Force split into four workgroups:  (1) Where and How We Grow in Maryland, chaired by Secretary of Planning Richard Hall; (2) Funding Sustainable Communities and Growth, chaired by Secretary of Natural Resources John Griffin; (3) Existing Infrastructure and Available Technologies, chaired by Secretary of the Environment Robert Summers; and (4) Impact of Agriculture and Agricultural Land Values, chaired by Secretary of Agriculture Earl “Buddy” Hance.  Non-members were also allowed to participate in the discussions (and many including MACo did).

Each workgroup presented its report, identifying areas of consensus and non-consensus within the workgroup.  The findings were also summarized in two power point presentations:  one for the Infrastructure, Agriculture, and Growth workgroups and one for the Funding workgroup.  While only a few areas of true consensus emerged from the meeting, the workgroup reports allow the Task Force to focus on the identified issues.

The following list summarizes issues raised by the workgroups that MACo believes are the most important for county governments and local land use policies.  One factor that has been publicly acknowledged by many of the involved stakeholder groups is that the proposal to address septic systems – while nominally a matter of environmental protection – is also very much a debate about land use policies, and what level of government should control them.

Where and How Can Development Happen on Septic Systems?

The 2011 legislation would have banned the use of septic systems for “major subdivisions”, which it defined as 5 or more housing units.  The Growth workgroup discussed this matter extensively, and while the topic did not make the final list of “consensus” areas, there was general agreement that some type of multi-tiered approach should be considered, in recognition of those areas that have little growth option besides septic systems.  Workgroup members did have differences concerning the specific details of such an approach.

Counties and other participants have argued that any blanket restriction is misplaced when considering a locally designated growth area where public water and sewer capacity is unavailable.  In such an area, the one-size-fits-all state septic system limitation should be waived, and growth could take place by means that are suitable and approved under the local jurisdiction’s comprehensive plan and zoning.  Shared or community facilities might be viable in limited circumstances, but are generally not cost-effective and come with significant oversight challenges.

How Is a “Major Subdivision” Defined?

The definition of a “major subdivision” as 5 or more units was, according to the Maryland Department of Planning (MDP) derived as an average of county definitions.  However, there has been discussion by the Task Force over the appropriateness of setting the definition at 5 and the propriety of a limit affecting all areas of the State equally.

The workgroups presented several possible options for the Task Force to consider, each of which would grant counties some added flexibility beyond the 2011 legislation.

  • Increase the number of septic systems that comprise the State’s definition of a major subdivision by an unspecified amount.
  • Reference the definition of major subdivision used by each county, with that definition serving as the particular limit for that county.  However, there would be a maximum cap of 8 units, regardless of the county’s definition.  (MDP has indicated county definitions range from 4 to 8 units). 
  • Allow a flexible definition of major subdivision that would be proportional based on total lot size – i.e, a 100 acre lot may have more development capacity than a 10 acre lot.

“Best Available Technology” (BAT) Required for Septic Systems

Among the provisions of last year’s bill, as well as stand-alone legislation (HB 177 / SB 160) that also failed, was a requirement that all new development on septic systems be installed using BAT.  Currently, this standard applies only to new development or replacement systems within the Critical Areas (areas within close proximity of the Chesapeake Bay, the Atlantic Ocean, and their major direct tributaries.)

The Task Force seemed to have a consensus to require BAT for all new septic systems.  However, the workgroups differed on whether existing septic systems that were failing should be replaced with BAT systems.

Historically, MACo has not taken a position on legislation requiring standards applying to individual homeowners, instead focusing in matters of implementation or intrusion into local government decision-making.

When Should the State Reach its Goals under the Chesapeake Bay Total Maximum Daily Load (TMDL)?

The Environmental Protection Agency (EPA) has set a deadline of 2025 for full implementation of the Bay TMDL.  Maryland is the only Bay State that set an earlier compliance deadline of 2020.  The Funding workgroup reached a consensus position that the deadline should be extended to 2025.  The Agriculture workgroup also proposed pushing back the deadline to 2025 or even 2030.

MACo has previously reported on this emerging development.  MACo has not taken a formal position on extending the deadline, but given the significant delay at EPA in providing counties with the necessary loading numbers for their Phase II Watershed Implementation Plans (WIPs) and the challenges counties face in identifying and completing TMDL water quality projects, will certainly consider the issue.  

What Revenue Source Should Drive WIP and Stormwater Investments?

The Funding workgroup evaluated a wide range of possible funding options and ultimately recommended increasing the Chesapeake Bay Restoration Fee (BRF) (frequently nicknamed the “flush tax” as it applies to users of public water and private septic systems).  The fee is currently $30 per year for residential users.  The workgroup has recommended that it be adjusted to $60/yr for FY 2013, to $90/yr for FY 2015, and adjusted by the cost of living thereafter.

Coupled with the extended timetable to 2025, the workgroup believes that these revenues would enable Maryland to reach its required nitrogen reduction targets, by supporting the enhancement of wastewater treatment plants, reducing or upgrading septic systems in the Critical Area, and supporting stormwater retrofits.

As the proposed BRF increase is still in the formative stage, MACo has not yet taken a position.  For the last several Sessions, legislation has been introduced that would require local governments to adopt mandatory stormwater fees.  While the Task Force has chosen not to focus on this revenue source, it is still possible that legislation could again be introduced in the 2012 Session.

How Should New Funding from the Bay Restitution Fee Be Distributed?

While MACo has not yet taken a position on a BRF increase, the MACo representative on the Funding workgroup did raise two important policy concerns were a BRF increase to occur.  First, if the BRF is increased and a local share is designated for WIP implementation, then the money should stay with the local governments to be spent on approved activities.  The local share should not revert to the State and be doled out to local governments through a grant system.  During the Funding workgroup’s deliberation, representatives of the Department of Natural Resources advocated for a grant-style system.

Second, the workgroup also considered various prioritization schedules where a local share was not provided until after several years.  Given the immediate fiscal pressures on counties and the importance of beginning WIP implementation projects sooner rather than later, the MACo representative stressed the importance of not delaying local funding assistance.  The proposal presented to the Task Force would include immediate funding for all BRF components, including a local component (although it would be in the form of State grants).

Finally, the Funding workgroup also proposed shifting the cover crop component currently under funded by the BRF over into the Chesapeake and Coastal Bays Trust Fund and provide annual funding from the Trust Fund for cover crops in an amount not less than the combined FY 2012 BRF and Trust Fund cover crop levels.  The rationale behind the proposal was to have cover crop funding come from one State source instead of two, as is the current practice.

Going Forward

Despite the lack of consensus on many issues, the workgroup reports provide a framework for focusing the discussion.  The Task Force, and possibly the workgroups, will meet several more times before the December 1 deadline.  MACo will continue to seek input from county elected officials and professional staff as the Task Force’s recommendations begin to take shape.  The Task Force’s next scheduled meeting is November 8, from 9:30 am to 12:30 pm in the House Environmental Matters Committee room in Annapolis.

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