Administration/ MACo Septics Amendments – What Happened?

As previously reported on Conduit Street, the Senate adopted significant amendments to Governor Martin O’Malley’s septic system legislation (SB 236) by a decisive 31-14 vote after an intense debate on March 23.  The amendments were the result of an agreement between the O’Malley Administration, MACo, the Maryland Farm Bureau, the Maryland State Builders Association, and the Maryland Association of Realtors.  Senator Thomas “Mac” Middleton offered the amendments on behalf of the Administration after the Senate Education, Health, and Environmental Affairs Committee, which had heard the bill and worked on other amendments, decided to take no position on the Administration amendments. Senator Brian Frosh presented the primary opposition arguments.

The Administration amendments address almost all of MACo’s concerns, including the removal of new subdivision approval authority by the Maryland Department of the Environment (MDE), the removal of approval of the “growth tiers” by MDE and the Maryland Department of Planning, closer linkage of the Tier III and Tier IV definitions to local planning and zoning criteria, and a revised grandfathering system that accounts for jurisdictional differences on how soil percolation tests are conducted.  The basic requirement that a local jurisdiction must adopt the tiers in order to authorize a major subdivision on septic system remains unchanged, as does the limitation that major subdivisions on septic systems can only occur in Tier III and in narrow circumstances Tier IV.

The amended bill still contains major restrictions on the use of new major subdivisions on septic systems and when combined with forthcoming offset requirements and growth restrictions under the federally mandated Chesapeake Bay Total Maximum Daily Load (TMDL), will limit “sprawl” development.  The amended bill is expected to pass a final Senate vote on Monday and then go to the House.

SB 236 with Administration Amendments

Chart Showing Major Changes of Administration Amendments to SB 236

Summary of Tier Criteria and Restrictions Under Administration Amendments 

Media Reaction

A March 23 Baltimore Sun blog post characterized the amendments as “gutting” the bill and provided details of the Senate’s floor debate.

The debate had an unusual dynamic: It pitted two top Democrats [Senators Middleton and Frosh] — both committee chairs — against one another. Baltimore Sen. Bill Ferguson tweeted a colleague’s comment that the floor debate was was [sic] the “clash of the titans.”

The bill still needs final Senate approval, and then will move to the House of Delegates. Some believe the House will pass a stronger bill which would force a conference committee where differences can be worked out. In one scenario, the conference could produce a stronger version of the Senate bill.

Gov. Martin O’Malley said in an interview that as long as the final product “establishes some parameters” and “some minimum standards to prevent this acceleration” of sprawl, he would view it as “a positive move forward.”

A March 24 article discusses the debate and vote and highlights opposing views on local land use and control held by Senator Middleton and Senator Richard Madaleno.

“Land use is a very hot topic for local governments, and Maryland statute has always left local zoning to local authorities,” said Sen. Thomas Mac Middleton, D-Charles, who offered the amendments on behalf of the administration. “Those of us who came from local government take that right very seriously.”  …

Middleton said the bill as amended still sets a national standard for smart growth.

“The bill really sets Maryland way out as national leader in moving development out of the rural areas and into more concentrated areas,” Middleton said. “It’s probably one of the most aggressive land use efforts that I’ve ever seen…the bill stops a lot of development dead in its tracks.”  …

In the article Senator Madaleno offers an argument for more centralized land use planning:

“The fundamental question before us is who makes the proper decision. In this case, I think we need to err on relying on the decisions of the state to insure there is a consistent policy statewide — because of the impact it has on infrastructure and the environment.”

A March 24 Frederick News Post article discusses the concerns of farmers and the reaction of some environmental groups to the Administration amendments.

“We work long hours and put a lot of heart and soul into what we do,” [New Market farm owner Lisa Gaver] said. “We certainly don’t invest in our operation and in land and buildings … to have someone arbitrarily go through and take that value away without just consideration.”

Farmers generally don’t have much cash, and most of their money is invested in their land. Decisions that decrease their property values not only eat at their equity, but also diminish their power to borrow against their land when financing farm improvements and equipment purchases, said Tom Browning, legislative chairman for the Frederick County Farm Bureau.  …

Even bill proponents acknowledged the plan was complicated and highly technical. And with the amendment, an environmental group was even unsure whether the legislation would make a significant dent in the spread of septics. The bill’s effectiveness will likely depend heavily on how counties choose to treat it, said Jenn Aiosa, Maryland senior scientist for the Chesapeake Bay Foundation.

Finally, a March 22 Washington Post article highlights Senator Paul Pinsky’s concerns over “rogue counties” overriding the intent of the bill and an Administration official’s acknowledgement that the original bill may have gone too far in taking away local land use authority.

Several lawmakers said the changes made Thursday would take the teeth out of this year’s bill, giving counties the ability to draw mapped “tiers” of development to their liking and allow major subdivisions served by septic systems on farmland or forestland.

“If there are rogue counties that want to define tiers out of the spirit of what’s in the bill, the enforcement is problematic,” said Sen. Paul G. Pinsky (D-Prince George’s), a vocal proponent of the idea. “Look, I hope all the counties abide by the spirit of the law, but it falls on them.”

An administration official disputed characterizations that the bill would be feckless.

The bill “would have taken a pretty extraordinary measure of giving state control over local zoning,” the official said. “We decided, let’s get the policy implemented and not get stuck on who gets final say in how the map looks.”

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