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

 

 

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

Round-up of the 2018 Session for Counties

MACo’s legislative efforts earned an 80% success rate – and as usual, the counties’ voice makes a difference in Annapolis. Bills we support are more likely to pass, and bills we oppose are more likely to fail.

2018 Legislative Results Infographic

MACo’s legislative initiatives, priorities, and positions are directed by its Legislative Committee. This body comprises elected representatives from all of MACo’s members – the 24 county jurisdictions (including Baltimore City).

The “one county, one vote” system of deciding the Association’s legislative strategies, ensures that all counties have an equal voice. All 24 jurisdictions participated regularly in the weekly meetings throughout the session – where they also engaged with policy leaders and advocates who joined the meeting to address county leadership.

Our policy staff have compiled updates and results on all of the bills the Legislative Committee decided to take action on this year.

For the 2018 End of Session Wrap-up for each subject MACo covers, click below:

2018 End of Session Wrap-Up: Assessments and Taxation

2018 End of Session Wrap-Up: Business Affairs

2018 End of Session Wrap-Up: Disparity Grants

2018 End of Session Wrap-up: Economic Development Tax Credits

2018 End of Session Wrap-Up: Education

2018 End of Session Wrap-Up: Elections

2018 End of Session Wrap-Up: Employee Benefits & Relations

2018 End of Session Wrap-Up: Environmental Legislation

2018 End of Session Wrap-Up: Finance and Procurement

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

2018 End of Session Wrap-Up: Health & Human Services

2018 End of Session Wrap-Up: Housing & Community Development

2018 End of Session Wrap-Up: Intergovernmental Relations *MACo Initiative Area*

2018 End of Session Wrap-Up: Parks & Recreation

2018 End of Session Wrap-Up: Pensions

2018 End of Session Wrap-Up: Planning & Zoning

2018 End of Session Wrap-Up: Property Taxes

2018 End of Session Wrap-Up: Public Information & Ethics * MACo Initiative Area *

2018 End of Session Wrap-Up: Public Safety and Corrections

2018 End of Session Wrap-Up: Road Funding * MACo Initiative Area *

2018 End of Session Wrap-Up: School Construction * MACo Initiative Area *

2018 End of Session Wrap-Up: State Budget & Fiscal Affairs

2018 End of Session Wrap-Up: Tax Sale Bills

2018 End of Session Wrap-Up: Transportation and Public Works

2018 End of Session Wrap-up: Wynne Tax Bills

2018 End of Session Wrap-Up: County Tax Revenues

2018 End of Session Wrap-Up: Other Tax Bills

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.

Final Fate of Controversial FCA Legislation Up to the House

The House Environment and Transportation Committee is considering whether to take action on legislation pertaining to the Maryland Forest Conservation Act (FCA). HB 766 (sponsored by Delegate Anne Healey) and SB 610 (sponsored by Senator Ron Young) are a legislative priorities of both the Chesapeake Bay Foundation and Maryland League of Conservation Voters.

As originally introduced, the legislation would have created a new definition under the FCA of “priority retention area” that would have included contiguous growth forests and other forested areas. These retention areas would be prohibited from being disturbed unless an applicant has provided a set of written justifications that is affirmatively approved by the State (if the project is occurring on State-owned lands) or a local authority (if the project is within a local jurisdiction). The justifications must include: (1) an explanation of the reasons that the development cannot be altered to preserve the priority retention area; (2) 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 (3) a description of the forest conservation best practices or techniques that were considered and rejected and the reasons for any rejections.

A State or local authority may not approve a written justification based: (1) solely on cost; (2) on a preference to maintain a preferred site design; (3) a desire to obtain maximum zoning density or intensity; or (4) a desire to conduct mass grading or clearing of the development site. If the justifications were approved, the project developer must mitigate by replanting trees at a 1:1 ratio. The bill also contained language regarding when a forest conservation plan must be reviewed, when the Department of Natural Resources must update its Forest Conservation Act Technical Manual, and how a local government may use fee-in-lieu monies.

MACo supported the legislation with amendments, noting that while the technical manual update, fee-in-lieu provisions, and forest conservation plan reviewing timing were reasonable changes, there were significant issues with the priority retention definition, written justifications, and 1:1 replanting ratio proposed by the bill. MACo expressed concern that the bill would disrupt long-term planned development with priority funding areas and locally designated growth areas and greatly increase both the cost and difficulty of completing Smart Growth-friendly projects.

MACo also questioned the conflicting forest coverage and loss data that were being raised by the bill’s proponents and opponents and argued that establishing a data baseline was crucial before making broad changes to the FCA. The Maryland Municipal League also supported the bill with similar amendments. Opponents to the bill included NAIOP-MD (representing commercial builders) and the Maryland Building Industry Association.

While the House did not take any action on HB 766 after its February 21st bill hearing, the Senate passed a greatly amended version of SB 610 that struck the entire bill and replaced it with a “Task Force on the Forest Conservation Act Offset Policy.” MACo opposed the Task Force version of SB 610, noting that the Task Force membership was unbalanced, that its charge appeared to generate pre-determined outcomes, and that the House had already considered and rejected a very similar Task Force last year (see SB 365 of 2017).

Based on its actions last year, MACo does not believe the House will support the Task Force language found in SB 610. However, the House is considering whether to create a technical data study of both forest and tree canopy coverage in Maryland and programmatic review of state and local FCA programs. Consistent with MACo’prior statements, MACo could support such a study as long as the study considers all of the state’s tree replanting and forest programs and does not narrowly focus on outcomes solely under the FCA.

Useful Links

HB 766 of 2018

MACo Testimony on HB 766

SB 610 of 2018

MACo Testimony on SB 610

SB 365 of 2017

PSC Rules Against Frederick County in LeGore Solar Project Case

Frederick News-Post article (2018-03-26) reported that the Maryland Public Service Commission (PSC) by a 3-2 majority issued an order on March 23 that granted Coronal Energy a Certificate of Public Convenience and Necessity for its LeGore  Bridge Solar Center Project in Frederick County. The County had requested a second chance to review the LeGore Project in light of revised local zoning that the County had adopted but the PSC rejected this argument.

The key issue in the order was whether a moratorium on solar projects declared by County Executive Jan Gardner prevented Coronal Energy from receiving a special exception for the LeGore Project from the county’s Board of Zoning Appeals. The Board of Zoning Appeals approval came 13 days after the executive order banning new projects was issued. The County subsequently adopted a new zoning ordinance that limits solar projects to 75 acres and prohibits them from being located on prime farmland. The LeGore project violates both of the new ordinance’s provisions. The PSC order stated that the LeGore Project was in compliance with all local zoning laws at the time the special exception was granted.

From the article:

County Executive Jan Gardner (D) declined to comment Monday on the outcome of the county’s appeal, filed in November, while she considers further legal action.

“At this point we do still have several options to consider. … We are considering the options we have available,” county spokeswoman Vivian Laxton said. …

The case is a good example for counties and municipalities that are considering passing a local solar ordinance to act quickly, said Leslie Knapp, legal and policy counsel for the Maryland Association of Counties. …

“We appreciate the diligence by the Maryland Public Service Commission in review of the LeGore Bridge Solar Center and their decision to uphold the order to grant the Certificate of Public Convenience & Necessity,” said Andrew Foukal, [Coronal Energy’s] senior vice president of operations, in an email.

 The article also noted that two members of the PSC wrote a dissenting opinion in the case, arguing that the moratorium put Coronal Energy on notice and that the PSC holding to not give “significant weight” to the County’s recommendations.

Useful Links

Bay TMDL Update: Conowingo, Climate Change, Growth & Phase III WIP Timeline

The Local Government Advisory Committee (LGAC) met via teleconference on March 21, 2018, and received updates on the implementation and development timeline of the Phase III Watershed Implementation Plans (WIPs) under the Chesapeake Bay Total Maximum Daily Load (TMDL). LGAC is composed of county and municipal members from each of the Bay watershed states and advises the Chesapeake Bay Program Executive Council on local government roles and challenges in meeting Bay TMDL goals.

The following information is summarized from a revised Phase III WIP implementation timeline and a presentation by the Chesapeake Bay Program (links to both are at the end of this article).

Phase III WIP Timeline

The Phase III WIPs are currently being drafted by all Bay watershed states and must detail how the states will meet their final nitrogen, phosphorus, and sediment reduction goals under the Bay TMDL by 2025. Phase III WIP development began in 2016.

The revised timeline indicates the United States Environmental Protection Agency will finalize Phase III WIP expectations in March, 2018, and state pollution reduction targets will be finalized by May, 2018. Draft Phase III WIPs will be due in March, 2019, with finalized versions posted by June, 2019.

Conowingo Dam WIP

The water pollution caused by the Conowingo Dam will be accounted for in a separate WIP that will be overseen by a currently undetermined third party. The third party will be overseen by a steering committee from within the Bay Program. Funding for the Conowingo WIP implementation will likely come from each Bay State and the owner of the dam, Exelon.

Climate Change Impacts on the Bay

Climate change effects must be incorporated into the Phase III WIPs but specific pollution reduction goals will not be changed until 2021. Initially, states must include a narrative strategy on their current actions to address climate change.  Between now and 2021, researchers will work to develop a better understanding of the role climate change plays on the Bay and develop 2025 target loads that must be incorporated into the WIPs in 2021. (Preliminary modelling suggests that climate change will add an additional 9 million pounds of nitrogen and 500,000 pounds of phosphorus to state targets.)

The new loads will also be incorporated into each Bay state’s two-year milestones starting with the 2022-2023 milestone.

Accounting for Growth

The current plan is to use 2025 growth projections, based on each locale’s current zoning, to add additional pollution loads caused by growth into the Phase III WIP and two-year milestones. The growth projections will be updated every two years in coordination with local partners.

Other Updates

The Bay Program presentation also addressed: (1) Best Management Practice verification; (2) Bay Program funding under the FY 2018 and FY 2019 federal budgets; and (3) State spending on Bay TMDL efforts.

Useful Links

Phase III WIP Schedule (Version 4)

Chesapeake Bay Program Bay TMDL & Phase III WIP Update Presentation

 

One Septic Bill Moving, Rest Are Dead For 2018 Session

The Maryland General Assembly has considered several bills related to septic systems and the use of best available technology for nitrogen removal (BAT) during the 2018 Session. Currently, one septic bill is on track for passage while the rest have been given unfavorable reports.

The bill that is moving is HB 1765 (sponsored by Delegate Stephen Lafferty). The bill has passed the House of Delegates and will be heard by the Senate Education, Health, and Environmental Affairs Committee (the hearing date is not yet scheduled). HB 1765 provides that a county may use up to 10% of its Bay Restoration Fund (BRF) septic system allocation to assist homeowners for the reasonable cost of having an operation and maintenance contract on a septic system, including conducting pump outs. The financial assistance is only available in a local jurisdiction that has created a septic stewardship plan. The bill specifies the contents of the plan and allows BRF monies to be used for the development of the plan during FY 2020 and 2021. The financial assistance may be provided through grants, rebates, or low- or no-interest loans, with priority given to low-income homeowners. The bill also clarifies that a county may only take credit under its Watershed Implementation Plan (WIP) for nitrogen reductions from BAT upgrades if the operation and maintenance for the BAT system is current.

MACo supported the bill as providing an optional local tool to address nitrogen loading but did work with stakeholders on some clarifying amendments, including: (1) that it is the local governing body that would adopt the septic stewardship program; (2) that the Maryland Department of the Environment will work with counties to ensure access to its BAT septic system maintenance database for easy determination of who is in compliance; and (3) that counties with septic stewardship programs may also receive WIP credit for nitrogen reductions from septic pump outs.

The other three septic bills introduced during the Session are dead.

HB 361/SB 314 (sponsored by the Administration of Governor Larry Hogan)  had three components. First, the bill would have exempted a septic system owner from paying the Bay Restoration Fund (BRF) if: (1) the owner has a BAT septic system; and (2) the owner did not receive a state or federal grant or income tax subtraction modification for installing the BAT septic system. Second, the bill would have allowed BRF septic system account 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.” Third, the bill would have altered the funding distribution ratios between septic systems and cover crops from the current 60/40 split to a 50/50 split. MACo offered an amendment striking the 50/50 split change. The House Environment and Transportation Committee and the Senate Education, Health, and Environmental Affairs gave the bill unfavorable reports.

HB 458 (also sponsored Delegate Lafferty) would have required a homeowner of a home located within Chesapeake and Atlantic Coastal Bays Critical Area to ensure the home’s septic system is BAT before the home is sold or transferred. MACo did not take a position on this bill. The bill was withdrawn by its sponsor.

HB 719 (also sponsored by Delegate Lafferty) would have required a property owner to install a BAT 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. “Blue-line stream” meant a stream that appears as a broken or solid blue line or purple line on a U.S. Geological Survey topographic map. MACo opposed the bill, characterizing it as a costly and overbroad mandate that is an inefficient method for reducing nitrogen generated by septic systems. The House Environment and Transportation Committee gave the bill an unfavorable report.

Useful Links

HB 361 / SB 314 of 2018 (Septic Stewardship Act)

HB 458 of 2018 (BAT upgrades for home transfers in Critical Areas)

HB 719 of 2018 (BAT upgrades within 1000 feet of streams)

HB 1765 of 2018 (BRF uses and local septic stewardship programs)

Prior Conduit Street Coverage of Septic Stewardship Act

Agritourism Bills Propose Mandatory Definition, Building Standards Exemption

MACo Legal and Policy Counsel Les Knapp offered MACo’s thoughts on two agritourism bills before the House Environment and Transportation Committee on February 28.

HB 1120

HB 1120 would require a local jurisdictions 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. Delegate Deborah Rey is the sponsor of the bill.

In her testimony, Rey stated her intent to have the bill amended to make the bill authorizing for local jurisdictions. Knapp stated MACo’s opposition to the bill, based on the local mandate and the broadness of the agritourism definition, but noted that MACo could drop its opposition if the bill were made authorizing instead.

Land use decision-making is a primary county government responsibility and the bill would unnecessarily infringe on local autonomy. Counties already have the authority to determine which agritourism activities are appropriate for their jurisdictions. In reaching these decisions, counties consider the effects the proposed activity would have on the primary agricultural purpose of the property, adjacent properties, local infrastructure, and the historical and cultural heritage of the region. HB 1120 ignores these important local considerations in favor of an ill-fitting “one-size-fits-all” solution.

Additionally, the bill’s agritourism definition is overbroad and includes activities that have little or no direct connection with agriculture. For example, water skiing, tubing, paintballing, and mountain biking are all expressly included in HB 1120’s definition of “agritourism activity.” Requiring such non-agricultural activities to be permitted on farms risks undermining their inherent agricultural nature.

The Maryland Farm Bureau testified in support of the bill with amendments that would make local adoption optional and remove the outdoor recreation portion of the agritourism definition. There is no Senate cross-file to HB 1120.

HB 1141

HB 1141 would expand an exemption from the Maryalnd Building Perforance 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. Delegate Jay Jacobs is the sponsor of the bill.

Knapp supported the bill with an amendment to have the exemption apply to the remaining counties only if a county opts-in to the exemption. From MACo’s testimony:

MACo believes that deciding whether or not to be subject to the exemption should be left to each county governing body. While it is MACo’s understanding that the bill sponsor intends that the application of the exemption be optional for the counties not currently subject to the exemption, the bill’s provisions do not clearly specify how a county should make the choice.

Therefore, MACo supports a clarifying amendment to the bill that would 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 allows counties that want the exemption to have it while those counties that do not want it are held harmless.

Jacobs stated he had no objection to the MACo amendment. Grow and Fortify testified in support of the bill. There is no Senate cross-file to HB 1141.

Useful Links

HB 1120 of 2018

MACo Testimony on HB 1120

Delegate Deborah Rey Webpage

HB 1141 of 2018

MACo Testimony on HB 1141

Delegate Jay Jacobs Webpage

Senate Committee Kills Governor’s Septic Bill

The Senate Education, Health, and Environmental Affairs Committee gave an unfavorable vote (7-4) on Governor Larry Hogan’s “Septic Stewardship Act of 2018.” The Administration bill, SB 314, made three primary changes to the septic system account under the Bay Restoration Fund (BRF).

First, the bill exempted a septic system owner from paying the BRF if: (1) the owner has a best available technology nitrogen removal (BAT) septic system; and (2) the owner did not receive a state or federal grant or income tax subtraction modification for installing the BAT septic system.

Second, the bill would allow BRF septic system account 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.”

Finally, the bill would alter the funding distribution ratios between septic systems and cover crops. The bill would change the current 60% percent septic system/40% cover crop allocation to a 50/50 split.

As previously reported on Conduit Street, MACo supported SB 314 with an amendment to maintain the current 60/40 allocation, arguing that the BRF septic system account is one of the only State funding sources to address the needs of the septic system sector and should not be reduced.

The cross-file of SB 314 is HB 361. HB 361 is scheduled for a hearing in the House Environment and Transportation Committee on February 23. This may or may not change based on the Senate Committee’s action.

Useful Links

SB 314 of 2018

MACo Testimony on SB 314

Prior Conduit Street Coverage of the Septic Stewardship Act