State Warns Counties Could Face Daily Fines Over Stormwater Fees

The ongoing implementation of the state-mandated stormwater management fee (enacted in 2012 and affecting ten counties) has taken a sharp turn in recent days, as the state has intimated that substantial fines may face counties who do not comply with the state law. Media coverage and public correspondence have both spiked on the topic this week, and are encapsulated below.

A November 6 Baltimore Sun B’More Green blog post reports that the Maryland Department of the Environment (MDE) and the Office of the Attorney General (OAG) have sent letters to three counties – Carroll, Frederick, and Harford –  warning that they potentially face tens of thousands of dollars in daily fines if they are determined to be out of compliance with the 2012 stormwater fee legislation.

The warnings drew praise from environmentalists, who support the fees as a  way to make local governments do more to help clean up the Chesapeake Bay.  …

“It shows that the Maryland Department of the Environment is serious about  the law and serious about reducing the one source of pollution that continues to  increase, and that is pollution runoff,” said William C. Baker, president of the  Chesapeake Bay Foundation.  …

[MDE Water Management Director Jay Sakai] said the letters to Frederick and Harford weren’t meant to be threatening  but “just highlighting the concerns that we have.”

Sakai said state officials don’t really care about the size of the fees right  now, but wanted Baltimore City and the nine largest counties to set up a means  of paying for pollution control projects so they could comply with new  stormwater cleanup orders due to them from the MDE by year’s end.

Carroll County received a letter from the OAG warning the county that it faces civil penalties of up to $10,000 a day unless it adopts a stormwater fee.  Instead of adopting a fee, the County had created the required stormwater program fund and then identified other sources to fund the program.

Carroll Commissioner Richard Rothschild complained that the state is trying  to force the county to levy a “tax on rain,” as he put it, even though the  five-member board of commissioners agreed to pay for $20 million worth of  stormwater control projects using revenues from property taxes.  …

With the county facing potential fines that already approach $1 million,  Rothschild said Carroll officials would seek to meet with state officials and  work something out that would satisfy both sides.  …

MDE sent a letter to Frederick County warning that it could face fines of up to $32,500 per day unless the County commits more funding to stormwater programs required under the Watershed Implementation Plan (WIP) and new National Pollutant Discharge Elimination System (NPDES) Phase I Municipal Separate Storm Sewer System  (MS4) permit requirements.  The County had adopted a 1 cent stormwater fee and identified other funding for stormwater restoration projects.

Frederick officials expressed dismay at the state warning, saying they  thought they had complied with the law by adopting a 1-cent fee on all county  property owners. The 2012 law does not specify the size of the fee, they pointed  out, bristling at the mention of penalties in the state letter. …

Blaine R. Young, president of Frederick’s five-member board of commissioners,  said officials had put $3 million in the county budget to pay for stormwater  cleanup, but “we just decided not to tax our residents.”

MDE also sent a letter to the Harford County Council warning that the County faces fines similar to those of Frederick County if the County repeals its current stormwater fee.  The letter also expressed concern about the County’s decision to collect 10% of the fee while a task force reviews the fee provisions.  Harford County Executive David Craig supports a stormwater fee repeal.

William “Billy” Boniface, president of Harford’s seven-member County Council,  said he was loath to risk state enforcement action by repealing its fee before  the legislature has a chance to tinker with the law. …

Boniface contended that the state could have handled the fee startup better, but  added, “We’re still required to meet EPA requirements. And if we don’t we’re  opening ourselves up to pretty substantial fines, or even worse.”

Carroll County Letter from OAG

Frederick County Letter from MDE (Previous Conduit Street Coverage on Frederick County Letter)

Harford County Letter from MDE

A November 5 Baltimore Sun article reported on last night’s Harford County Council hearing on the County’s stormwater fee.

Some Harford officials, led by County Executive David  Craig, have vowed to repeal the watered down version of the state-mandated  fee they passed earlier this year, a move that could theoretically lead to  thousands of dollars in daily fines.

Craig said once again Tuesday that the stormwater fee legislation “was a bad  bill from the start.”

But Harford County Council President Billy Boniface says he takes seriously  the threats of fines and other sanctions and wants to “make darn sure” the  county doesn’t open itself up to any such liability, before he will go along  with a repeal effort.

He and other council members debated among themselves and with Craig’s aides  Tuesday night about how far the county should go in defying the state’s mandate  to enact a stormwater remediation fee.

The article also discusses MDE’s concerns with Harford County’s decision to collect 10% of the fee and defer the rest while a task force considers potential fee modifications.

[MDE Director of Communications Samantha Kappalman]  also said the 10 percent payment option “doesn’t meet with the intent of  the law” and said the EPA could take enforcement actions against the state if  counties do not comply, including taking away the right of the state to issue  permits through the counties.

“The bottom line is that these new stormwater permits are a critical  component of Maryland’s effort to protect and restore water quality in the  state,” Kappalman said.

A November 6 Carroll County Times editorial found the letter to Carroll County “unjustified” and “premature.”

A threat by the state Attorney General’s office to fine Carroll up to $10,000 per day because the county didn’t implement a new tax to pay for stormwater management is a bit of heavy-handedness that is both unnecessary and unjustified. …

In Carroll, the board of commissioners decided in June that, rather than implement a new tax, it would take money set aside for stormwater projects and create a new Watershed Protection and Restoration Fund, using the $20 million it has budgeted for stormwater projects over the next six years. That decision, while it may not conform to the letter of the law, does conform to the spirit of the law, at least until the point where the money is spent and the county must find additional funding for projects.

A November 6 Frederick News-Post editorial argued that the County’s 1 cent stormwater fee may be too low but imposing an annual estimated $524 per eligible property taxpayer to meet the County’s draft MS4 requirements would be “financially onerous.”  Instead, the News-Post hopes that some middle ground can be found.

Frederick County is destined to have a “rain tax” to meet the demands of its upcoming state-enforced stormwater permit. Just what that permit’s requirements will cost county property taxpayers is still to be determined. …

According to County Commissioner Paul Smith, county staff have run the numbers on the draft stormwater permit, and say it comes with a hefty price tag — $112 million over five years. As we said, per eligible property owner, that amounts to a financially onerous $524 annual tax.  …

There’s no getting around the fact that Frederick County must do its part in funding efforts to reduce stormwater runoff. On the other hand, the state must do its part by helping Frederick County — in any way possible — to fulfill its permit’s requirements as cost-effectively as possible.

We hope that’s where things are now headed.