Conowingo Dam to Get Separate Nutrient Targets But Who Pays Remains Up in the Air

Maryland Reporter article (2018-04-12) reported that the Conowingo Dam will be getting its own nutrient reduction targets under the Chesapeake Bay Total Maximum Daily Load Phase III Watershed Implementation Plan (WIP). The Dam and its reservoir on the Susquehanna River has reached its capacity to trap nutrients and sediment and during major storm events can release significant pollution that disrupts efforts underway further down the main stem of the Bay and some of its tributaries.

Earlier WIPs assumed that the Dam’s nutrient and sediment trapping capacity remained intact but after research showed that the trapping capacity had been exhausted, the Bay watershed states were left with an unanticipated new source of water pollution that has to be addressed. The Dam’s pollution is estimated to generate 6 million pounds of nitrogen and 260,000 pounds of phosphorus annually that now must be offset. In response, the Dam will now have its own Phase III WIP goals, similar to those of each Bay watershed state. From the article:

The Conowingo plan will identify nutrient reduction efforts that go “above and beyond” those in the state plans. The rationale for the shared plan, [Maryland Department of the Environment Water and Science Administration Director Lee] Currey said, is that Bay-wide water quality benefited when Conowingo was trapping nutrients, effectively lessening the amount of cleanup work each state had to do. Now that those nutrients are being washed downstream, all of the jurisdictions should pool their resources and work together to offset their impact.

The article explained that the actual implementation of nutrient control actions will be focused on those areas that will have the maximum effect in offsetting the Dam’s pollution – mainly parts of Maryland, New York, and Pennsylvania. This approach is more cost effective than requiring all parts of the Bay watershed to share the Conowingo’s load equally. However, this approach leads to a secondary question – who will pay for all of this?

The cost to offset the Conowingo’s pollution load is expected to cost many millions of dollars and the article states that Exelon, the dam’s owner, will be expected to contribute a reasonable portion of the funding but it is unlikely that the company can afford all of the costs. Maryland has significant power over how much Exelon will pay as Exelon requires the State’s approval as part of its relicensing process under the Federal Energy Regulatory Commission. The Maryland Department of the Environment will make a final decision on its re-certification decision (along with conditions such as a funding requirement) in mid-May. From the article:

“Once we know how much additional capital results from [the Conowingo certification], there may be a gap,” Currey said. “Then the question is, ‘How do we best close that gap?’”

To help answer that question, the EPA will soon seek a third-party contractor to manage the implementation of the Conowingo WIP. That includes identifying where pollution control practices can be implemented most cost-effectively and overseeing pooled money to implement the plan.

But a major part of the job will be identifying sources of money that could help plug any funding gap. Options could range from finding previously untapped sources of federal funding to testing new types of public-private partnerships that could bring more nongovernmental money to the effort.

The article also discussed how the United States Environmental Protection Agency would hold Bay watershed states accountable if the Conowingo Dam fails to meet its nutrient reduction targets. A draft version of the Conowingo plan will be available for public comment in early 2019.

Useful Links

Prior Conduit Street Coverage of Conowingo Dam

 

 

Unique Long-Term Study Finds Sewer Overflows, Stormwater BMPs Have Greatest Water Quality Impacts in Gwynns Falls Watershed

Baltimore Sun article (2018-04-16) reported on a recently released study quantifying pollution sources and clean-up efforts in the Baltimore City and Baltimore Count Gwynns Falls watershed. The study was compiled by the United States Geological Survey (USGS), in partnership with Blue Water Baltimore and the Cary Institute of Ecosystem Studies. The study tracked water quality in the 171 square kilometer watershed from 1998 to 2016.

Source: USGS

The study is unusual in that it was able to analyze 20 years of water quality data for an urban area (something that does not exist for many urban environments areas) and pinpoint both water pollution sources leading to watershed degradation as well as the positive effects of various kinds of watershed restoration projects. The study factored in climate change and the increased precipitation the watershed has received over time.

The study found that a major contributor to watershed degradation was sewer overflows while the installation of stormwater best management practices (BMPs) likely have a positive effect on water quality. From the study:

However, sanitary sewer overflows and best management practices, are factors that appear to affect the water quality at Carroll Park, the most downstream location monitored in the Gwynns Falls watershed. The increasing duration of sanitary sewer overflows was related to increasing loads and concentrations of nutrients; sanitary sewer overflow volume was related to total coliform levels. In contrast, installation of  structural best management practices appears to be related to declines in phosphorus. These outcomes, while preliminary, indicate that current efforts and investments in gray and green infrastructure improvements likely positively affect the water quality of the Gwynns Falls watershed. Further, this study has established a framework to evaluate the effect of future gray infrastructure repairs in accordance with the Baltimore City and County Consent Decrees and green infrastructure installation.

Additional comments provided by the Sun article:

“We’ve known a long time, sewage bad, stormwater projects good,” said Alice Volpitta, water quality manager for Blue Water. “Now we can say with scientific certainty that that is the case, and that carries a lot of weight.” …

“This is the first time with statistical accuracy we can say sewage is really detrimental to water quality,” Volpitta said.

Peter Groffman, professor at the City University of New York Advanced Science Research Center and a senior research fellow at the Cary Institute of Ecosystem Studies in New York, said long-term data “is the only way to know for sure whether our investments in clean water infrastructure are working.”

“Even with 20 years of water quality data, we are just beginning to see the long-term effects of sewage overflows and water main breaks, along with the stormwater projects that are designed to address polluted runoff,” Groffman said.

Useful Links

USGS 2018 Report: Factors Affecting Long-Term Trends in Surface Water Quality in Gwynn Falls Watershed

Does Annapolis Landfill Project Point to the Future of Utility Scale Solar?

Bay Journal article (2018-04-16) questioned whether a new solar facility that is sited on a closed municipal landfill can help answer the land use concerns posed by utility scale solar projects. The Annapolis Renewable Energy Park, a 16 Mega Watt solar array set on roughly 80 acres that used to be the landfill for the City of Annapolis, is largest landfill-based energy generation project in the nation according to the project’s developers.

MACo has noted that large scale solar projects can provide many benefits but also pose land use challenges that include the targeting of prime agricultural lands and open space. While the Maryland General Assembly responded to a MACo initiative during the 2017 Session by passing legislation (HB 1350) that provided a greater role for counties and municipalities in the siting of all kinds of energy generation facilities, there is still immense pressure to for solar developments on farmland and open space throughout Maryland. MACo has supported solar development on alternative sites, such as brownfields and greyfields.

The article stated that Maryland has developed an estimated 958 megawatts of solar and is second only to New York in solar development among Chesapeake Bay watershed states. Conversely, the article noted that Virginia’s market has just started to rapidly expand due to recent state legislation while Pennsylvania’s market remains stagnant due to “unfavorable” state rules.

The article discussed recent zoning actions taken by several counties in order to ensure solar facilities do disrupt the agricultural, natural, historical, or cultural fabric of their jurisdictions. The article cited Anne Arundel, Caroline, Frederick, Kent, and Talbot counties in particular.

The article also provided various viewpoints on the agricultural and land use issues posed by utility scale solar:

“It’s almost like the wild, wild West out there, and whoever gets their stake in the ground first wins,” said Colby Ferguson, government relations director of the Maryland Farm Bureau. …

“For every 1,000 acres taken out of [agricultural] production, we lose a farm,” Ferguson said. …

“These guys are coming in and dangling pots of money [in front of landowners],” said state Sen. J. B. Jennings, a Republican representing Baltimore and Harford counties, and a farmer himself. “It’s just taking up valuable farmland.” …

“How do we find something that’s balanced?” [Anne Arundel County Planning and Zoning Officer Philip] Hager asked. “It’s a very complex situation, with a lot of stakeholders.” …

“It’s unfortunate there’s a perception problem,” said Mike Volpe, vice president of Open Road Renewables, a Texas firm, and spokesman for a coalition of utility-scale solar developers. He pointed out that such projects can generate jobs and much-needed tax revenue for poor rural counties. …

“It’s cheaper to just go out to a farm field and drill ground screws and anchor to the ground,” said Paul Curran, managing director of BQ Energy LLC, the New York-based firm developing the [Annapolis] landfill project. It also took longer to plan and get regulators’ approval, Curran said, something many solar developers wouldn’t put up with.

Useful Links

HB 1350 of 2017

Prior Conduit Street Coverage of Solar Energy Facility Siting

Federal Court Strikes Down Maryland’s Generic Drug Price Protections

Baltimore Sun article (2018-04-13) reported that the 4th Circuit Court of Appeals in a 2-1 ruling has struck down a Maryland law regulating prices on generic drugs as violating the dormant commerce clause. The recently enacted law (HB 631 of 2017) was heavily supported by Maryland Attorney General Brian Frosh and was designed to protect consumers from rapidly increasing generic medicine costs. The law allowed the Office of the Attorney General to review generic drug prices and order price reductions or fines if the Office determined the prices increased too steeply without a valid reason.

The case was brought against Frosh and then-Maryland Secretary of Health Dennis Schrader by the Association for Accessible Medicines (AAM). The holding is the first of its kind and could chill the efforts of other states to address generic drug prices.

From the article:

“To be clear, we in no way mean to suggest that Maryland and other states cannot enact legislation meant to secure lower prescription drug prices for their citizens,” [majority opinion author Judge Stephanie Thacker] wrote. “Although we sympathize with the consumers affected by the prescription drug manufacturers’ conduct and with Maryland’s efforts to curtail prescription drug price gouging, we are constrained to apply the dormant commerce clause.” …

Judge James A. Wynn dissented from the majority opinion, saying the other judges had interpreted the commerce clause too broadly. Wynn wrote that their ruling would stop “Maryland from protecting its citizens against unconscionable pricing practices by out-of-state generic drug manufacturers.”

The article noted that Frosh is considering the State’s options, which include requesting an en banc review by all the 4th Circuit judges or appealing the case to the United States Supreme Court.

Useful Links

HB 631 of 2017

4th Circuit Court of Appeals Opinion – Association for Accessible Medicines v. Frosh, et al.

Learn the Language of the General Assembly

Frederick News-Post article (2018-04-12) recounted the linguistic take-aways from a reporter covering Session for the first time. There are numerous coded phrases that those who participate in the legislative process hear regularly and understand but those outside of the process may not fully appreciate. The article summarized the reporter’s seven favorite phrases – here are two:

“It’s a simple bill.” This extremely common preamble to an explanation of a proposed law is designed to instill confidence in colleagues and signal something along the lines of “hey, let’s just pass this thing because it ain’t that complicated.”

“A second bite at the apple.” This fruit-themed phrase is often used to express humility when given the chance to speak twice or ask repeated questions on the same issue on the floor, as in “Thank you, Speaker, for allowing me a second bite at the apple.”

The article also briefly covered the increasingly contentious Frederick County Executive republican primary race between Frederick County Council Member Kirby Delauter and Maryland Delegate Kathy Afzali.

 

Montgomery Considers Major Changes of County Stormwater Program

Bethesda Beat article (2018-04-11) reported that Montgomery County Executive Ike Leggett has proposed scaling back the County’s stormwater treatment program in response to concerns about the program’s fiscal sustainability and the inclusion of an 800 additional treated acres that the County was previously not receiving credit for. The article stated that Leggett has recommended reducing the Department of Environmental Protection’s capital budget by $240 million and is based on plans to cancel $113 million in stormwater projects, not filling seven vacant positions, and from project oversight efficiencies generated by reorganizing the Department. Leggett is also proposing no increase in the County’s stormwater remediation fee (also known as the “rain tax”).

The proposed cutbacks come while the County remains under a consent decree for failure to attain its stormwater reduction goals under its Phase I Municipal Separate Storm Sewer System (MS4) permit. The permit is required by the federal government but the terms and enforcement is set by the State. The article stated that the County has until 2020 to treat a total of 3,800 acres of impervious surface or face a $300,000 fine.

According to the article, Leggett’s proposal has produced concern in the environmental community. From the article:

Kit Gage, advocacy director for the environmental group Friends of Sligo Creek, wrote in a guest post on the local blog Seventh State, that Leggett’s proposal “makes no sense.”

“The county already has to do special projects because it didn’t do enough stormwater work,” Gage wrote, referring to the county’s failure to meet a state-mandated requirement to treat runoff from impervious surfaces such as the water that flows off roofs and across parking lots and roads. …

“This department needs to have greater efficiencies and that’s what we’re trying to do,” Leggett said in an interview last week. “We’ve slowed down capital spending related to schools, recreation, fire stations and everything else. But the environmental community wanted us to continue to increase the fee and they’re the only ones that don’t want to have a slow down. If the council wants to increase the fee—they can do so, but I’m not going to do that.”

The article stated that the County Council is scheduled to decide on Leggett’s proposed capital budget reductions in mid-May. Some Council Members also had questions concerning departmental operations and the recent accounting changes that allowed 800 additional acres to be counted towards the County’s MS4 goal:

“It does sound like a significant error was made,” Berliner said. “Typically what we expect of any administration or ourselves when a significant error is made is an after-the-fact review so we get a report exactly why was this mistake made.”

Council member George Leventhal said in an interview last week that he believes Leggett and the county budget department were correct in wondering why the county had accomplished so little toward meeting the permit requirements despite increasing the stormwater fees year after year.

The article also discussed how the Department is revamping its contract process for stormwater proecess. Rather than contract on a project-by-project basis, the new system will hold contractors responsible for certain acreage targets but allow them to decide which projects they will undertake.

2018 End of Session Wrap-Up: Environmental Legislation

This post summarizes the status of various environment bills that MACo took a position on for the 2018 Regular Session.

Septic Systems – Septic Stewardship Act of 2018: HB 361 / SB 314 is an Administration bill that would change septic fee charges and uses under the Bay Restoration Fund (BRF). The bill had three primary parts:

  1. The bill would have exempted a septic system owner from paying the BRF fee if: (1) the owner has a septic system using best available nitrogen removal technology (BAT); and (2) the owner did not receive a State or federal grant or income tax subtraction modification for installing the BAT system.
  2. The bill would have altered how the money going into the BRF septic system/cover crop account is divided. Currently, 60% of the funds going into the account goes towards septic systems (including BAT upgrades and connections to wastewater treatment plants) and 40% goes to the Maryland Agriculture Water Quality Cost Share Program within the Department of Agriculture for cover crop activities. The bill would change that distribution to 50% for septics and 50% for cover crops.
  3. The bill would have allowed BRF septic system money to be used by eligible homeowners for the reasonable cost of pumping out a septic system once every 5 years. In order to be eligible, the homeowner must reside in a local jurisdiction that has developed a “septic stewardship plan.” The plan must include provisions to ensure that septic systems are properly operated and maintained, including being subject to routine pump-outs and inspections.

Push Icons-MORE WORKMACo Position: MACo supported the bill with amendments to retain the current 60 % septic/40% cover crop allocation. MACo also noted the voluntary septic stewardship plan would provide another “tool in the toolbox” for county governments to address their septic system nitrogen loads.

FINAL STATUS: The House Environment and Transportation Committee gave HB 361 an unfavorable report. The Senate Education, Health, and Environmental Affairs Committee gave SB 314 an unfavorable report.

MACo Testimony on HB 361

MACo Testimony on SB 314

Septic Systems – BAT Septics Near Streams: HB 719 would require a property owner to install a septic system that uses BAT or replace an existing septic system with a BAT system if: (1) the system is within 1,000 feet of a “blue-line stream” that is located in the watershed of a nitrogen-impaired body of water; and (2) there is construction activity on the property requiring the approval of a general permit for stormwater. “Blue-line stream” means a stream that appears as a broken or solid blue line or purple line on a U.S. Geological Survey topographic map.

MACo Position: MACo opposed the bill, arguing that: (1) the bill’s mandate is overbroad and that the General Assembly previously rejected a similar “BAT everywhere” mandate in 2017; (2) the use of BAT systems in these areas would result in minimal nitrogen reductions for significant cost; and (3) the bill limits county flexibility in addressing septic system nitrogen pollution.

Push Icons-DEFEATEDFINAL STATUS: The House Environment and Transportation Committee gave HB 719 an unfavorable report.

MACo Testimony on HB 719

 

 

Septic Systems – Watershed Implementation Plan Credits, BRF Uses, & Septic Stewardship Plans: HB 1765 would clarify how a county may take credit for nitrogen reductions for septic systems and authorize a local jurisdiction to create a “septic stewardship plan” to assist homeowners in the maintenance and operation, including pump outs, of their septic systems. The bill would:

  1. provide that a reduction in nitrogen for upgrading a septic system to BAT may count towards the nitrogen load reduction required in a local jurisdiction’s Phase III Chesapeake Bay Watershed Implementation Plan (WIP) if there is a current operation and maintenance contract for the septic system;
  2. authorize a local jurisdiction to use up to 10% of their BRF septic account allocation to assist eligible homeowners for the reasonable cost of an operation and maintenance contract that provides for, at least once every 5 years, the pumping out of the septic system if: (i) the homeowner verifies the operation and maintenance contract; and (ii) the homeowner resides in a local jurisdiction that has established a septic stewardship plan;
  3. provide that BRF septic account funds may be used to provide financial assistance to a local jurisdiction for a septic stewardship plan in fiscal years 2020 and 2021;
  4. specify that the financial assistance for homeowners: (i) shall be based on homeowner income, with priority given to low-income homeowners; and (ii) may be provided through grants, rebates, or low- or no-interest loans;
  5. require that a septic stewardship plan include: (i) specific goals consistent with the nitrogen load reduction consistent with the local jurisdiction’s WIP; (ii) public education and outreach measures that will be taken, including best management practices, legal requirements, and existing support and financial assistance; (iii) technical guidance for the siting, design, evaluation, and construction of a septic system; (iv) a requirement that a septic system located on residential property to be pumped out, inspected, and tested at least once every 5 years; (v) certification and licensing procedures for a person that pumps out and inspects septic systems; (vi) enforcement mechanisms, compliance incentives, and penalties; (vii) funding mechanisms to support the plan and expand education, demonstration projects, and inspections; (viii) requirements for record keeping; and (ix) a process for periodically evaluating and revising the plan.

MACo Position: MACo supported the bill, arguing that it gives counties another “tool in the toolbox” to meet their nitrogen reduction goals under their WIPs. As a county exhausts its options for connecting failing septic systems to public sewer or upgrading them to BAT systems, it may make sense for the county to encourage the proper operation and maintenance of septic systems.

Push Icons-IMPROVEDFINAL STATUS: The General Assembly passed HB 1765 with MACo-supported amendments that: (1) authorized a local jurisdiction with a septic stewardship plan to receive nitrogen reduction credit for the pumping out of a septic system; (2) clarified that it is a local jurisdiction’s governing body that must adopt the septic stewardship plan, after consultation with the jurisdiction’s local health department; (3) ensuring that the appropriate local officials have access to the Department of the Environment’s BAT septic database for credit calculation purposes; and (4) several other technical and clarifying changes.

MACo Testimony on HB 1765

Sea Level Rise and Coastal Flooding – Construction Standards, Adaptation, and Mitigation: As introduced, HB 1350 / SB 1006 would : (1) add new requirements to the Coast Smart siting and design criteria; (2) subject local structure and highway facility projects to the Coast Smart criteria if the State funds at least 30% of the project; (3) require local jurisdictions subject to nuisance flooding to draft a plan to address the flooding and submit the plan to the Maryland Department of Planning (MDP) for approval once every 5 years; (4) require MDP to establish a saltwater intrusion adaptation plan; (5) require the Board of Public Works to establish criteria for when state funds may be used for sea level rise and coastal flooding mitigation; and (6) require real estate vendors to provide notice to potential purchasers of certain property vulnerable to sea level rise.

MACo Position: MACo opposed the bill, arguing that: (1) the application of the Coast Smart siting and design should be required to apply to local projects where the majority of funding is provided by local governments; and (2) preparing and submitting a nuisance flooding plan to MDP for formal approval increases county costs and risks MDP imposing costly, unnecessary, or ill-fitting mandates on a county.

Push Icons-IMPROVEDFINAL STATUS: The General Assembly passed HB 1350 and SB 1006 with MACo-supported amendments that: (1) limited the application of Coast Smart design and siting criteria to local structure projects where at least 50% of the project costs are funded with State funds and the project costs at least $500,000; and (2) required affected counties to develop a nuisance flooding plan but removed the MDP approval component. The amendments also added the State Treasurer or the Treasurer’s designee to the Coast Smart Council, included the Maryalnd Emergency Management Agency in State mitigation efforts, and deleted the real estate vendor notice provision.

MACo Testimony on HB 1350

MACo Testimony on SB 1006

Mosquito Spraying – Notice to Municipalities: HB 400 would require the State, a county, or a bi-county agency to provide at least 24 hours of notice to a municipality before spraying for mosquitoes within the boundaries of the municipality. The state, county, or bi-county agency must provide the municipality the location of spraying and the planned date and time of the spraying.

MACo Position: MACo supported the bill with amendments to waive the 24-hour notice when the spraying is needed to control an outbreak of a virus, contagion, or similar public health threat. In that case, notice should be provided as soon as practicable.

Push Icons-IMPROVEDFINAL STATUS: The General Assembly passed HB 400 with the MACo amendments.

MACo Testimony on HB 400

 

 

Recycling – Mattresses and Box Springs: HB 850 would require a county to include a strategy for managing the disposal of mattresses and box springs in their recycling plan by October 1, 2019. The strategy must include: (1) eliminating the disposal of mattresses and box springs from landfills and incinerators; (2) preventing the dumping of mattresses and box springs; (3) recycling mattresses and box springs; and (4) promoting related business and social programs that create jobs for unemployed, homeless, disabled, or formerly incarcerated individuals and disadvantaged youths. The Maryland Department of the Environment would provide technical support but no financial support.

MACo Position: MACo opposed the bill, noting that: (1) the bill would impose a costly new mandate on county governments that could be very difficult for certain counties to achieve; and (2) the mandate imposed by the bill is counter to the General Assembly’s recycling approach that has been in place for more than a decade. MACo cited many alternative recycling solutions the General Assembly has passed or considered since 2005 for other problem waste stream items that did not involve an unfunded mandate on county governments.

Push Icons-DEFEATEDFINAL STATUS: The House Environment and Transportation Committee gave HB 850 an unfavorable report.

MACo Testimony on HB 850

2018 End of Session Wrap-Up: Government Liability & Courts

This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2018 Regular Session.

Attorney Fees for Constitutional Violations: HB 1270 / SB 1042 would authorize a court to award a prevailing party reasonable attorney’s fees and expenses in a civil action against the State or a local government to enforce a “self-executing” provision of the Maryland Constitution or Declaration of Rights. “Self-executing” is defined as a provision so complete that it may be enforced by a court without the need for further legislative authority or direction.

While a prevailing plaintiff can collect attorney’s fees based on a variety of factors and considerations detailed in the bill, a prevailing defendant is only allowed to recover fees if the court determines that the plaintiff’s suit was made in bad faith or without substantial justification. Attorney’s fee awards in local government cases are subject to the liability cap of the Local Government Tort Claims Act (LGTCA).

MACo Position: MACo opposed the bill, arguing that the bill: (1) has an overbroad scope that goes beyond similar fee shifting provisions from other states; (2) would lead to increased claims against the State and local governments; (3) creates an unequal “playing field” between plaintiffs and defendants; (4) would increase costs to local governments; and (5) lacks equivalent protections found at the federal level or in other states with a fee-shifting provision, such as an offer of judgment, vicarious liability, or respondent superior.

Push Icons-DEFEATEDFINAL STATUS: The House Judiciary Committee heard HB 1270 but took no further action on the bill. The Senate Judicial Proceedings Committee heard SB 1042 but took no further action on the bill.

MACo Testimony on HB 1270

MACo Testimony on SB 1042

 

Constitutional Right to Healthy Environment and Communities: SB 873 would amend the Maryland Constitution to create a new environmental right under the Declaration of Rights for any “person.” “Person” is defined as any: (1) resident of the state; (2) corporation incorporated under the laws of the state; or (3) a partnership, organization, association, or legal entity doing business in the state. The right would provide for “clean air, pure water, healthy communities, an environment free of conditions that degrade public health or natural resources, and the preservation of the natural, scenic, historic, and aesthetic values of the environment.”

MACo Position: MACo opposed the bill, arguing that: (1) the bill’s language is vague and overbroad and would likely affect many core local government services, such as transportation, water and sewer services, and planning and zoning; (2) adequate legal remedies already exist to address valid environmental concerns without the need to create a costly and unnecessary alternative; and (3) the bill would apply broad federal standing requirements to state cases that are more limited in scope than federal causes of action.

Push Icons-DEFEATEDFINAL STATUS: The Senate Education, Health, and Environmental Affairs Committee heard SB 873 but took no further action on the bill.

MACo Testimony on SB 873

 

Comparative Fault – Motor Vehicle Accidents Involving Pedestrians and Bicycles: SB 465 would establish a comparative fault standard in civil actions involving a plaintiff who was a pedestrian or driving a nonmotorized vehicle, such as a bicycle, and a defendant who was driving a motor vehicle at the time of the accident. The bill is based on a recommendation from the Task Force to Study Bicycle Safety in Maryland.

MACo Position: MACo opposed the bill, arguing that the bill would upset Maryland’s long-established and carefully constructed contributory negligence system and failed to address several related legal structures, such as joint and several liability or the “last clear chance” exception, that currently work because Maryland has a contributory negligence system. MACo also cited concerns over an increase in litigation and liability imposed on local governments.

Push Icons-DEFEATED

FINAL STATUS: The Senate Judicial Proceedings Committee gave SB 465 an unfavorable report.

MACo Testimony on SB 465

 

Speed Cameras – Calibration and Trial Requirements: HB 1151 would alter several calibration and trial requirements for speed camera programs. The bill would:

  1. require that a speed camera recorded image show an accurate representation of the linear distance traveled by the motor vehicle between each time-stamped image;
  2. require the annual calibration of a speed camera include a check on all key systems relevant to the accuracy of the system;
  3. require each local jurisdiction with a speed camera program to publish online the results of each annual calibration, including the certificate of calibration;
  4. require the speed monitoring system operator, law enforcement officer who signed the citation, or the technician who performed the annual calibration check to be present at a speed camera trial if the defendant provides 10 days written notice; and
  5. provide that if a person who received a speed camera citation makes a reasonable request for data other than a recorded image from the speed camera and the request is denied by the local jurisdiction, there is a rebuttable presumption that the citation issued was an erroneous violation.

MACo Position: MACo opposed the bill, noting that: (1) images generated by more accurate speed camera technologies, such as LIDAR, cannot be utilized to show liner distance traveled over time; (2) the General Assembly has consistently rejected expanding the annual calibration requirement; (3) requiring the presence of the law enforcement officer who signed the citation or the technician performing the annual calibration (who may be based in another state) with 10 days notice is impractical, costly, and impossible to meet; and (4) the rebuttable presumption provision will encourage numerous broad-based information requests by defendants hoping to have the citation voided due to the presumption.

Push Icons-DEFEATED

FINAL STATUS: The House Environment and Transportation Committee gave HB 1151 an unfavorable report.

MACo Testimony on HB 1151

 

Speed Cameras – Operation in School Zones: HB 1365 would alter several operational requirements of local government speed camera programs. The bill would:

  1. require a local jurisdiction that has a speed camera program in school zones to ensure that each sign designating a school zone is next to a device that displays a real-time posting of the speed at which a driver is traveling;
  2. limit the operation of school zone speed cameras to 1 hour before until 1 hour after instructional hours on days when school is in Session (current law is 6:00 am to 8:00 pm Monday through Friday);
  3. limit the location of school zone speed cameras only on a highway in the school zone that fronts the school’s main entrance or the entrance that experiences the greatest amount of student and school bus traffic; and
  4. limit a contractor’s fee to 30% or less of the gross revenue generated by the speed camera system.

MACo Position: MACo opposed the bill, arguing that: (1) the real-time posting of speed is costly and unnecessary based on current signage requirements; (2) changing the hours of operation would create an inconsistent and confusing patchwork across the state; and (3) the bill’s location restrictions are illogical as the school may not be location where speeding poses the greatest risk to students.

Push Icons-DEFEATED

FINAL STATUS: The House Environment and Transportation Committee gave HB 1365 an unfavorable report.

MACo Testimony on HB 1365

 

For more information on all of the government liability legislation that MACo tracked in the 2018 General Assembly, click here.

2018 End of Session Wrap-Up: Parks & Recreation

This post summarizes the status of various parks and recreation bills that MACo took a position on for the 2018 Regular Session.

Synthetic Turf Fields and Playgrounds – Prohibition on State Funding: HB 505 / SB 763 would require the state or local unit that is constructing a playground or athletic field to give a preference, to the maximum extent practicable, to natural surface materials if state funds are involved. The bill would also prohibit the use of state funds, including Program Open Space monies, to build a new or replacement playground or athletic field with a synthetic surface.

MACo Position: MACo opposed the bill, noting that: (1) synthetic turf fields can provide better recreational benefits over regular turf; (2) prior research have not shown that synthetic fields pose health risks; (3) the General Assembly has previously considered and rejected synthetic turf bans or prohibitions; and (4) there are several comprehensive synthetic turf health studies underway that should be allowed to be completed before making any decision regarding their usage.

Push Icons-DEFEATEDFINAL STATUS: The House Appropriations Committee heard HB 505 but took no further action on the bill. The Senate Budget and Taxation Committee heard SB 763 but took no further action on the bill.

MACo Testimony on HB 505MACo Testimony on SB 763

Splash Pads – Regulation: HB 1217 would authorize the governing body of a county to adopt and enforce rules and regulations to govern the sanitary condition of splash pads and any sanitary feature connected to a splash pad. “Splash pad” is defined as an outdoor play area: (1) with sprinklers, fountains, nozzles, and other devices or structures that spray water; (2) in which water is not allowed to accumulate; and (3) that is not used for submersion of the human body.

SB 924 had the same language as HB 1217 but would authorize the Secretary of Health to adopt the rules and regulations instead of a county governing body.

MACo Position: MACo supported HB 1217, arguing that county governments should have the authority to address the sanitary condition of splash pads and any sanitary facility connected to them (such as restrooms). Such an approach allows for local concerns to be addressed while avoiding a “one-size-fits-all” approach.

MACo supported SB 924 with amendments to make the bill identical to HB 1217.

Push Icons-IMPROVEDFINAL STATUS: The Senate amended SB 924 to be identical to HB 1217 and the General Assembly passed both bills.

MACo Testimony on HB 1217

MACo Testimony on SB 924

For more information on all of the Parks and Recreation legislation that MACo tracked in the 2018 General Assembly, click here.

2018 End of Session Wrap-Up: Planning & Zoning

This post summarizes the status of various planning and zoning bills that MACo took a position on for the 2018 Regular Session.

Forest Conservation Act – Technical Study and Program Review: As introduced, HB 766 / SB 610 would:

  1. expand the “priority retention area” definition (those areas where trees cannot be cut down unless specific findings are made) to include: (i) contiguous forest that is at least 5 acres in a Priority Funding Area, 10 acres in a local watershed that is less than 40% forested, or 20 acres; (ii) areas either identified in Maryland’s Environmental Resources and Land Information Network (MERLIN) or iMap database as a targeted ecological area or forest interior-dwelling species habitat that meet specified conditions; and (iii) forests in a drinking water reservoir or wellhead protection area;
  2. specify that trees in a priority retention area may only be disturbed upon written justifications submitted by the project applicant and approved by the State or local authority that include: (i) an explanation of the reasons that the development cannot be altered to preserve the priority retention area; (ii) a description of the alternatives that were considered, including applications for local variances that would facilitate forest conservation but not affect public safety, and that no other alternatives exist; and (iii) a description of the forest conservation best practices or techniques that were considered and rejected and the reasons for any rejections;
  3. prohibit the State or a local authority from approving a written justification based: (i) solely on cost; (ii) on a preference to maintain a preferred site design; (iii) on a desire to obtain maximum zoning density or intensity; or (iv) on a desire to conduct mass grading or clearing of the development site;
  4. require that if trees in a priority retention area are cleared, the trees are subject to a 1 acre to 1 acre replanting ratio;
  5. move the review of the forest conservation plan to be concurrent with the review for the sketch or concept plans, site development plans, or preliminary review plans, subdivision plans, or the grading or sediment control permits, whichever may be submitted first;
  6. provide that a local authority may enter into a memorandum of understanding or similar agreement with the Maryland Forestry Foundation, district forestry boards, or other nonprofits to: (i) collaborate on replanting requirements; or (ii) provide grants for reforestation projects; and
  7. require the Department of Natural Resources (DNR) to publish a Forest Conservation Act Technical Manual and update it at least once every 10 years.

MACo Position: MACo supported the bill with amendments, noting support for the general ideas of providing greater local program flexibility, moving the forest conservation plan review earlier in the development process, and requiring DNR to periodically update its Technical Manual. However, MACo expressed concern over the bill priority retention area definition, written justifications, and mandatory 1:1 replanting ratio, noting that these provisions: (1) run counter to the core Smart Growth principle of concentrating growth; (2) would disrupt long-term local comprehensive planning and water and sewer planning; (3) would greatly prolong the approval process and create new avenues for litigation; and (4) potentially increase project costs. MACo also questioned the conflicting information provided by different datasets used by both the bill proponents and opponents and urged that there be a clear and uniform understanding of the data before making broad changes.

Push Icons-MORE WORKFINAL STATUS: The Senate passed an amended version of SB 610 that struck the bill’s original provisions and changed it into a “Task Force on the Forests Conservation Act Offset Policy.” MACo objected to the Task Force, noting it had an unbalanced membership, did not address MACo’s underlying data concerns, and appeared to have predetermined outcomes.

The House Environment and Transportation Committee struck the Task Force and amended both SB 610 and HB 766 into a “Technical Study and Programmatic Review” that would have had the Department of Legislative Services review: (1) forest and tree canopy coverage, health, and trends in the state; (2) the effectiveness of various aspects of the Forest Conservation Act; and (3) a review of the effectiveness and obstacles faced by local forest conservation programs.

The House passed both amended forms of HB 766 and SB 610 but the bills did not cross back over to the Senate before Sine Die and both bills ultimately failed.

MACo Testimony on HB 766

MACo Testimony on SB 610

Energy Generating Systems – Change or Mistake Rule: HB 1588 would prohibit a legislative body from granting a zoning amendment under the “change or mistake” rule if the primary reason for the property-owner’s challenge was due to the siting of an energy generating system.

MACo Position: MACo supported the bill as a way to protect a local jurisdiction’s land use designations and remove a concern that the siting of an energy generating facility could be used to challenge the zoning of that property or adjacent properties.

Push Icons-WONFINAL STATUS: The General Assembly passed HB 1588 with amendments clarifying that the bill’s provisions applied to the property where the energy generating system is located and land that is adjacent to or in close proximity to the property. MACo supported the amendments as clarifying.

MACo Testimony on HB 1588

Net Metering and Community Solar – County Projects: As introduced HB 934 / SB 557 would increase the maximum generating capacity of a net metering electrical generating project or a community solar project from 2 megawatts to 10 megawatts and remove any generating capacity limit if the project is located on a brownfield. The project must comply with local land use and planning laws. The bill sponsors offered amendments at each bill’s hearing to: (1) limit project size to 30 megawatts on brownfields; (2) limit the projects to county-owned property; (3) limit project ownership to a county or a third party under agreement with a county; and (4) ensure that—for community solar projects—all subscribers are located in the county undertaking the project.

MACo Position: MACo supported the bill, noting that: (1) net metering and community solar projects help create a more robust and decentralized energy grid; (2) the bill would provide greater flexibility to counties wanting undertake such projects; (3) siting community solar projects on county lands or brownfields reduces the pressure to convert prime agricultural land or open space into solar facilities; and (4) the bill does not alter the statewide maximum limit of 1,500 megawatts for net metering projects.

Push Icons-NOT IDEALFINAL STATUS: The House Economic Matters Committee gave HB 934 an unfavorable report. The Senate Finance Committee heard SB 557 but took no further action on the bill.

MACo Testimony on HB 934

MACo Testimony on SB 557

Renewable Energy Portfolio Standard – Local Energy Sources: SB 603 would require that in any year where the Renewable Energy Portfolio Standard (RPS) Tier 1 renewable source percentage exceeds 25%, at least 51% of the renewable energy credits (RECs) required must be from an energy source located in Maryland.

MACo Position: MACo opposed the bill, arguing that while the intent of the bill is good (highlighting the challenge of keeping prime farmland and open space from being taken over for energy generation), the bill does not address the forces that are driving renewable energy projects to the more rural areas of the state and simply requiring an REC mandate without other components to address those forces could actually exacerbate additional development in rural areas.

Push Icons-DEFEATEDFINAL STATUS: The Senate Finance Committee heard SB 603 but took no further action on the bill.

MACo Testimony on SB 603

 

Agritourism – Statewide Definition: HB 1120 would require a local jurisdiction to authorize “agritourism activities” on farms through a local ordinance, resolution, law, or rule. The bill’s definition of “agritourism activity” encompasses an extensive list of activities, including: farm tours; seasonal petting farms; farm museums; classes related to agricultural production or skills; bed and breakfast accommodations; festivals; weddings; and outdoor recreation activities such as swimming, paintball, and non-motorized off-road bicycling.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, stating that counties should have the authority to determine which agritourism activities are appropriate for their jurisdictions, rather than be subject to a “one-size-fits-all” mandate. MACo also questioned the inclusion of certain activities in the “agritourism activity” definition, particularly water skiing, tubing, paintballing, and mountain biking.

FINAL STATUS: HB 1120 was withdrawn by the bill sponsor.

MACo Testimony on HB 1120

Agritourism – Building Performance Standards: As introduced, HB 1141 would expand an exemption from the Maryland Building Performance Standards for the construction, alteration, or modification of an agricultural building for which agritourism is an intended subordinate use. Currently, the exemption applies to 11 counties: Calvert, Cecil, Charles, Dorchester, Frederick, Garrett, Harford, Prince George’s, St. Mary’s, Somerset, and Talbot. The bill would expand the exemption to cover all remaining counties.

Push Icons-IMPROVEDMACo Position: MACo supported the bill with an amendment to create an explicit “opt-in” provision by allowing a local legislative body of a county to decide whether or not the exemption should apply within its jurisdiction. This would allow counties that want the exemption to have it while those counties that do not want it are held harmless.

FINAL STATUS: The General Assembly passed HB 1141 with the MACo amendment.

MACo Testimony on HB 1141

Agricultural Preservation Programs – Recertification and Remittance of Unexpended Funds: HB 620 would provide that the Maryland Department of Planning (MDP) and the Maryland Agricultural Land Preservation Foundation (MALPF) may recertify a county agricultural preservation program for 5 years, instead of 3 years under current law, if they determine that the county program is consistently effective in the achievement of preservation goals. The bill also extends from 3 years to 6 years the amount of time that a county may spend agriculture transfer tax revenue before the county must remit the money to the Comptroller.

MACo Position: MACo supported the bill, noting that: (1) extending the recertification period from 3 years to 5 years for consistently effective programs lessens the administrative burden on county programs, MDP, and MALPF; and (2) extending the remittance time from 3 years to 6 years allows for the funding of more complex or costly preservation projects.

Push Icons-IMPROVEDFINAL STATUS: The House passed the bill but the Senate added amendments regarding local program recertification and review that MACo raised concern about. The bill went to conference committee and the General Assembly passed HB 620 with amendments acceptable to MACo.

The amendments: (1) require MDP and MALPF to review a county program recertification when the county revises the boundary of a priority preservation area (PPA), subtracts land from a PPA, or adopts a comprehensive rezoning policy that increase allowable nonagricultural land uses, density, or development within a PPA.

MACo Testimony on HB 620

Home Sprinkler and Fire Safety Assistance Fund – Pilot Program: HB 1389 / SB 1173 would create a Home Sprinkler and Fire Safety Assistance Fund within the Department of Housing and Community Development. The annual State budget must include an appropriation for the Fund of $300,000 for fiscal years 2020 through 2022. The Fund may award grants to applicants in the order in which they apply to offset costs of installing a sprinkler system. In order to qualify, a homebuyer must be in the process of purchasing a home that:

  1. is a single-family detached home;
  2. is less than 2,500 square feet;
  3. uses well water and is not in an area where public water is provided or where there is a plan to provide public water; and
  4. will be the homebuyer’s primary residence and owner-occupied.

Additionally, the homeowner must fall under the income limits established by the Maryland Mortgage Program. The Fund and grant program sunset at the end of June 30, 2022.

Push Icons-NOT IDEALMACo Position: MACo supported the bill as a way to address the financial hardship facing moderate- to low-income homebuyers, particularly in rural areas, due to increased home costs caused by a 2012 requirement that all new homes have sprinkler systems.

FINAL STATUS: The House Environment and Transportation Committee gave HB 1389 an unfavorable report. SB 1173 was withdrawn by the bill sponsor.

MACo Testimony on HB 1389

MACo Testimony on SB 1173

Developer Rights and Responsibilities Agreements – Enhanced Public Benefits: As introduced, HB 1390 would alter the requirements, contents, and application of a developer rights and responsibilities agreement (DRRA). The bill would:

  1. require a DRRA to include: (i) applicable zoning standards for the covered property; and (ii) a description of the enhanced public benefit that supports the DRRA and the proposed development of the real property and shall be bonded at the time of final development approval;
  2. limit an existing exception where a local jurisdiction may require a person to comply with local laws, rules, regulations, and policies enacted after the DRRA if essential to ensure public health, safety, or welfare, to zoning;
  3. provide that a local jurisdiction may require compliance with local laws, rules, regulations, or policies adopted after the DRRA;
  4. when determining whether to allow an amendment to a DRRA, require a local planning commission to consider and make a recommendation regarding the effect of any change in local laws, rules, regulations, or policies, including adequate public facilities ordinances, school capacity, stormwater management requirements, and forest conservation requirements;
  5. limit the initial term to of a DRRA to 5 years or less; and
  6. limit the ability to extend the term of a DRRA through amendment to one additional term to 5 years or less.

MACo Position: MACo supported the bill with amendments to remove the bonding requirement and remove or adjust the bill’s 10-year maximum lifespan for a DRRA.

Push Icons-MORE WORKFINAL STATUS: The House passed the bill with amendments striking all of the bill’s provisions except the requirement that a DRRA include a description of the enhanced public benefit that supports the DRRA. The amended bill also provided a definition for and illustrative list of enhanced public benefits. However, the Senate Education, Health, and Environmental Affairs Committee heard HB 1390 but took no further action on the bill.

MACo Testimony on HB 1390

Local Zoning Violations – Appeal From District Court: HB 1458 would authorize an appeal by a county or a defendant from a final judgment of the District Court in a local zoning violation case. The bill addresses a problem between the interaction of § 11-202 of the Land Use Article, which authorizes a county to provide for and enforce a civil penalty for a zoning violation, and § 12-401 of the Courts and Judicial Proceedings Article, which outlines District Court appeal processes for municipal infractions.

Push Icons-NOT IDEALMACo Position: MACo supported the bill, arguing that it is the intention of both the General Assembly and local governments that zoning violations be treated as any other local civil violation, with either party having the right to appeal. Otherwise, zoning violations become an oddly unique class of cases where the District Court is the final arbiter.

FINAL STATUS: The House Judiciary Committee heard HB 1458 but took no further action on the bill.

MACo Testimony on HB 1458

Sustainable Communities – Designation: As introduced, HB 1651 would require a local comprehensive plan to include a housing element that addresses: (1) the impacts and risks for gentrification; and (2) the demand for affordable housing, including an inventory for affordable housing. The bill also adds gentrification and affordable housing issues to the list of criteria that the Smart Growth Subcabinet may consider when making a Sustainable Communities designation.

MACo Position: MACo supported the bill with an amendment to strike the mandatory comprehensive planning element portion of the bill, noting that: (1) an affordable housing survey was too specific and short-term to be included in a visionary document like the comprehensive plan; and (2) counties already address housing issues in a way that best meets their needs.

Push Icons-NOT IDEALFINAL STATUS: The House passed the bill with amendments striking the mandatory comprehensive planning element and modifying the bill’s Sustainable Communities criteria language. The Senate Education, Health, and Environmental Affairs Committee heard HB 1651 but took no further action on the bill.

MACo Testimony on HB 1651

Nontidal Flooding – Historic Ellicott Workgroup on Preservation and Flooding: As introduced, HB 1408 would authorize the legislative body of a local government to allow a deviation from historic preservation standards for a “qualified historic district” in order to prevent and reduce the risk of lethal and life-threatening nontidal flooding. The bill defines “qualified historic district” as a locally designated historic district in which: (1) nontidal flooding has resulted in a demonstrable threat to the life and safety of individuals or the death of an individual; and (2) four or more repetitive loss properties are located.

MACo Position: MACo supported the bill as it would allow for a narrow exception to historic preservation standards so that a county can address valid public safety and property concerns posed by repetitive nontidal flooding.

Push Icons-NOT IDEALFINAL STATUS: The House passed HB 1408 with amendments striking the original bill and replacing it with a “Historic Ellicott City Workgroup on Preservation and Flooding.” However, the bill did not pass the Senate before Sine Die.

MACo Testimony on HB 1408

Nontidal Flooding – Use of Stormwater Remediation Fees for Flood Control Devices: As introduced, HB 1420 would clarify that monies from a local watershed and restoration fund, established by a local jurisdiction subject to a Phase I Municipal Separate Storm Sewer System (MS4) permit, may be used for projects that manage extreme volumes of nontidal floodwater in areas where historical nontidal flooding problems exist.

MACo Position: MACo supported the bill, noting that it is likely clarifying in nature and would provide certainty that the fund may be used for constructing necessary flood mitigation and treatment projects.

Push Icons-NOT IDEALFINAL STATUS: The House passed HB 1420 with amendments clarifying that flood mitigation and treatment projects constructed using the fund cannot negatively impact water quality and that the bill was limited to “qualified historic districts.” However, the bill did not pass the Senate before Sine Die.

MACo Testimony on HB 1420

For more information on all of the Planning and Zoning legislation MACo tracked in the 2018 General Assembly, click here.