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

County Ag Preservation Bill Increases Acquisition Ability, Lessens Administrative Burdens

MACo Legal and Policy Counsel Les Knapp testified in support of a bill providing greater flexibility to county agricultural preservation programs before the House Environment and Transportation Committee on February 14, 2018. The bill (HB 620) was sponsored by Delegate Eric Luedtke.

HB 620 provides 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.

Knapp noted that the bill provided both administrative benefits as well as increasing the ability of a county program to complete worthy preservation projects. From MACo’s testimony:

Assembling projects for preservation under a county agricultural program can be both complex and time-consuming, especially when the project involves multiple properties. Extending the
current remittance time period from 3 to 6 years allows counties additional time to manage more complex projects or accumulate enough funds to afford a purchase that would otherwise be
beyond the local program’s reach. As the bill’s fiscal note states, there is minimal impact on MALPF.

Likewise, extending the time period from 3 years to 5 years for the recertification of county agricultural preservation programs that have proven to be consistently effective lessens an
administrative burden on the county programs, as well as MDP and MALPF. It can also limit uncertainty for well-performing programs regarding the recertification process. The bill does not
alter any recertification criteria and MDP and MALPF may still choose to recertify a program for just 3 years.

The Maryland Farm Bureau, Partners for Open Space, and the Montgomery Agricultural Land Preservation Advisory Board also testified in support of the bill. The Chesapeake Bay Foundation offered an amendment that would allow MDP and MALPF to review a program that has been granted a 5-year recertification after just 3 years if there is a material change in the county’s land use ordinance that would increase development in targeted agricultural preservation areas. No one testified in opposition to the bill.

There is no Senate cross-file to HB 620.

Useful Links

HB 620 of 2018

MACo Testimony on HB 620

Delegate Eric Luedtke Webpage

MACo Resists Septic Bill’s Proposed Funding Shift to Cover Crops

MACo Legal and Policy Counsel Les Knapp offered amendments to an Administration bill on septic systems before the Senate Education, Health, and Environmental Affairs Committee on February 13, 2018. The amendments would cancel a proposed shift in funding from the septic system account within the Bay Restoration Fund (BRF) to the cover crop program.

In MACo’s written testimony, Knapp briefly addressed each of the bill’s components:

SB 314 has three primary components. First, the bill exempts 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. The exemption could apply to about 3,800 BAT systems, resulting in an annual decrease of $230,000 in BRF fees. MACo has no issue with this provision given the relatively small fiscal cost and equity principles involved.

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.” MACo supports the potential flexibility this voluntary program could provide. It is MACo’s understanding that counties would be able to continue to prioritize connecting failing septic systems to public sewer and upgrading systems to BAT over pumpouts.

Finally, the bill would alter the funding distribution ratios between septic systems and cover crops. The bill would change the current 60% septic system/40% cover crop allocation to a 50/50 split. MACo is opposed to this change, as it would reduce available BRF septic system monies by $2.97 million annually. The BRF septic system account is one of the only State funding sources to address the needs of the septic system sector and this funding should not be reduced. Consequently, MACo supports an amendment to delete the bill’s proposed 50/50 split and retain the 60/40 allocation under current law.

Governor Larry Hogan’s Deputy Legislative Officer Mathew Palmer and Maryland Secretary of the Environment Benjamin Grumbles testified in support of the bill. The Maryland Realtor’s Association supported the bill with the same amendment as MACo. The Chesapeake Bay Foundation, Clean Water Action, and the Maryland Onsite Wastewater Professionals Association (MOWPA) all opposed the bill.

Most members of the Committee did not appear receptive to the bill.

HB 361 is the cross-file of SB 314 and is set to be heard on February 23 by the House Environment and Transportation Committee.

Useful Links

SB 314 of 2018

MACo Testimony on SB 314

Governor Larry Hogan Webpage

Future May be Bright for Renewable Energy Legislation

Maryland Matters article (2018-02-05) postulated that the future appears bright for the passage of legislation that would increase the State’s Renewable Portfolio Standard (RPS) and create incentives for clean energy jobs.

“This is big news,” said Jamie DeMarco, campaign co-manager for the Maryland Clean Energy Jobs Initiative. “This is a ‘this-year’ game now.” …

More than 650 groups have already endorsed the clean energy measure. And with 24 senators and 73 delegates signed up to be co-sponsors so far, advocates now believe there is a chance of passing the legislation this year. …

There are no GOP co-sponsors so far, but Jamie DeMarco said he is confident that some Republican lawmakers will support the measure.

SB 732, sponsored by Senator Brian Feldman, would increase the RPS from the current 25 percent renewable goal by 2020 to a 50 percent renewable goal by 2030. The bill also includes provisions for offshore wind, incentives for green energy jobs, a study on electricity rate impacts, and a phasing out of preferences for waste to energy and waste-derived fuel technologies. The bill is scheduled to be heard by the Senate Finance Committee on March 6. Delegate William Frick is expected to introduce the cross-file in the House of Delegates.

HB 878, sponsored by Delegate Shane Robinson, would taken an even more aggressive stance, setting a 100% renewable energy goal by 2035.

The article noted that the Governor Larry Hogan Administration is reviewing the legislation but has not yet taken a position.

Useful Links

SB 732 of 2018

HB 878 of 2018

“A Better Maryland” Arrives in Kent County

Kent County News article (2018-02-02) reported on the recent Maryland Department of Planning (MDP) listening session in Kent County to hear feedback about the new State Development Plan, “A Better Maryland.” The article noted that the plan will be developed in three phases and be finalized in June of 2019. Currently MDP is in a listening and information gathering phase.

The article noted that Kent County residents were able to use their cell phones to respond to questions and send live feedback via text messages. Responses were displayed in real time.

“We want involvement in this process from beginning to end, by as many people as we can possibly get,” [MDP local assistance and training manager Joe] Griffiths said.

The first question, “In one word, what is your community’s greatest strength?” received the largest number of votes for agriculture, while heritage and community were also discussed. …

Another question asked of residents was, “What factor is most important for a high quality of life in your community?” The largest percentage of responses dealt with open space and the environment.

The article noted that the top two answers for the question about what the state development plan should address was agriculture and transportation. Residents also offered their thoughts about local heritage, jobs, diversity, education, and a third Chesapeake Bay bridge crossing.

The Kent County Commissioners also offered their thoughts on what the state should be focusing on as part of “A Better Maryland:”


“I think the general sentiment is, cliche, ‘if it ain’t broke don’t fix it,’” [Commissioner William] Pickrum said. “Most of the residents here are very happy with the way the county is.” …

Commissioner Bill Short said he felt differently about the infrastructure and economic development of Kent County. He hoped that state leadership or state financial aide could help the county grow. …

Commissioner Ron Fithian said the marina industry in Kent County is a big business and some state environmental regulations on marinas can become obstacles for those businesses.

Useful Links

A Better Maryland Webpage

A Better Maryland Event Calendar

A Better Maryland Survey Page

Better Maryland Interactive Rackcard