Examiner Article Questions State and Local Government Stormwater Fee Exemption

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.