The Real Deal - March 2013

Date: March 13, 2013

Coming to a Locality Near You - Stormwater Remediation Fees in Maryland

By: M. Trent Zivkovich, Esq.

Highlight: Maryland has new stormwater fees that are being implemented county-by-county.

The Law: On May 2, 2012, Governor O’Malley signed into law House Bill 987. In short, the law requires jurisdictions within Maryland subject to a federal Municipal Separate Storm Sewer System (MS4) Phase I permit to establish a local stormwater protection and restoration program and implement a local stormwater fee to fund that Program by July 1, 2013.

Goal: The purpose of the law is to establish the local means and funding to provide for the remediation and maintenance of the state’s stormwater management facilities, streams and creeks in its most heavily developed areas.

Counties and Property owners affected: Counties and municipalities impacted by this mandate include Anne Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s counties and Baltimore City. Property owned by the State and municipalities are exempt from the fees; federal properties and properties owned by most non-profit organizations are subject to the fees.

How the fees are calculated: The state law authorizes local jurisdictions to charge property owners fees based on a flat rate, by a graduated amount based on impervious surface or by other reasonable methods. Jurisdictions are required to give credit against the fee charged to property owners to account for measures that reduce the quantity or improve the quality of stormwater discharged from a property, along with those subject to substantial economic hardship.

With the July 1st deadline looming, many localities are now in the process of developing their local Programs and fee structures. While House Bill 987 provides relatively modest flexibility for these jurisdictions, opportunity does exist for property owners to voice their opinions. A general summary of the current status of legislation in each of these jurisdictions follows. Please note these are fluid issues; sources used in compiling this summary may not necessarily reflect the most up-to-date information and the details of each jurisdiction’s plans are certainly subject to change.

Anne Arundel County
Introduced before the County Commission on January 22, 2013, Bill No. 2-13 would establish the required program and implement the fee. The bill proposes to charge an annual flat fee ranging from $34 to $170 per dwelling unit for certain residential zoned properties. A fee of $85 per 2,800 square feet of impervious area would be charged annually for any business, commercial or industrial-zoned property, including apartment buildings. The County Department of Public Works would be tasked with establishing regulations specifying how to establish the means by which a property owner can reduce fees owed by up to 50% in accordance with the provisions of House Bill 987. Property within the City of Annapolis would be exempt from this County fee as the City already charges a municipal stormwater utility fee.

A vote on the bill had been postponed, but is currently eligible to occur March 18, 2013. Amendments could be offered to the bill at that time which would then trigger the need for a public hearing at the next scheduled Commission meeting, currently scheduled for April 1, 2013.

Baltimore County
No bill has been introduced to implement the Program. However, County staff anticipates that implementing legislation will be introduced in the near future, possibly as early as the next Council meeting currently scheduled for March 18, 2013. It is expected the legislation will be similar to that seen in other jurisdictions.

Carroll County
At this time no bill has been introduced by the Board of County Commissioners to implement the Program. The Board has charged the County’s Environmental Advisory Council (“EAC”), an established citizen stakeholder group, to study the available options and to make recommendations to the Board of County Commissioners for legislation to implement a Program and associated fee structure. The EAC is scheduled to meet twice a month between now and June, with the intent of allowing the County to implement its program by July 1, 2013. While the EAC is not accepting public comments, its meetings are open to the public. Once a bill is introduced by the Board of County Commissioners the public will have the ability to provide comment.

Charles County
County staff indicates that an external GIS consultant is currently in the process of finalizing work that will enable the County to calculate the amount of impervious surfaces on properties within the County. The County Department of Planning and Growth Management currently anticipate briefing the Charles County Commissioners on April 2, 2013, presenting the framework for a proposed new Watershed Protection and Restoration Fund. They would also provide an analysis and recommendation to the Commissioners to implement the required stormwater remediation fee. With the approval and feedback from the Commissioners, legislation would be introduced to implementing such a Program on a subsequent date. Following a public hearing and Board approval, the County’s Program would be in place by July 1, 2013.

Frederick County
Frederick County is currently preparing a draft ordinance to adopt the required Program that will be introduced to the Board of County Commissioners in the coming weeks. A Division of Community Development staff presentation was made to the Commissioners on March 7, 2013, during which various proposals were presented to establish a funding system similar to those introduced in other counties. The final form and rate structure has yet to be determined, but it is anticipated the Program will be in effect by July 1, 2013.

Note that the City of Frederick has a pre-existing fee program dedicated to stormwater management so properties within the City limits will not be subject to the County Program once implemented.

Harford County
Bill No. 13-12 to implement the required program was introduced to the County Council on February 19, 2013. A public hearing on the bill is currently scheduled for March 19, 2013. The bill proposes to charge an annual flat fee of $125 for any property zoned for residential (except for apartment buildings) or agricultural use. A fee of $7 per 500 square feet of impervious area would be charged annually for any business, commercial or industrial-zoned property, including apartment buildings.

The fee will not apply to properties within the city/town limits of Aberdeen, Bel Air or Havre de Grace as they are not subject to the County’s MS4 permit.

Howard County
Bill No. CB8-2013 was formally introduced to the City Council on February 4, 2013, to implement the required Program. A separate Resolution, CR21-2013 has been presented to the County Council to establish rates charged to property owners under the County program established by CB8-2013. As proposed, the bill and resolution would establish an annual fee of $7.80 per “Impervious Unit” (500 square feet of impervious area) charged to any residential, commercial or industrial property owner in the County.

However, the County would apply a 50% reduction to the impervious area assessed for a property subject to a Site Development Plan that was filed with the County on or after January 1, 2003, rounded to the nearest whole Impervious Unit. Annual credits for the use of stormwater treatment practices on properties not eligible for this automatic reduction would also be available. A public hearing on the bill and resolution occurred on February 19, 2013. The bill and resolution were both tabled by the County Council at their last meeting on March 4th; they will be subject to a vote of the Council on or after March 28th.

Montgomery County
Montgomery County already charges a stormwater utility fee. However, Bill 34-12 was introduced in the County Commission on November 27, 2012 to amend the existing program as it currently only applies to residential properties within the County, and not industrial and commercial properties. The proposed bill, together with proposed Executive Regulations, would establish a new fee program with annual single-family residential rates ranging from $31 to $278. Multifamily, commercial and industrial properties would be charged annually based upon a rate of $93 per 2,406 square feet of impervious area on the property.

One distinction observed in the Montgomery County program is the more-expansive specific definition of what exactly constitutes “impervious area.” For instance, Montgomery County’s proposed bill specifies that it also includes “any surface that prevents or significantly impedes the infiltration of water into the underlying soil”, and includes “compacted gravel”, “artificial turf” or “any areas used by or for motor vehicles or heavy commercial equipment, regardless of surface type or material.” In contrast, House Bill 987 and many of the County bills simply define “impervious surface” as “a surface that does not allow stormwater to infiltrate into the ground”, and includes “rooftops, driveways, sidewalks, or pavement.”

The fee would not apply in the Cities of Rockville or Takoma Park as they have their own existing stormwater programs. However, it would apply in the City of Gaithersburg as it has elected to utilize the County’s Program. A public hearing on the bill occurred on January 15, 2013. The County Council’s Transportation, Infrastructure, Energy & Environment Committee is currently scheduled to review the legislation on March 11, 2013.

Prince George’s County
Prince George’s County already charges a stormwater utility fee that generally satisfies certain requirements of House Bill 987. However, the County and local municipalities that would otherwise be subject to House Bill 987’s requirements have been in reported discussions to determine if and how the County program should be adopted by those local municipalities. In addition, County staff are evaluating how they should amend their existing program, fee structure and system of charges and anticipate presenting their findings to the Office of the County Executive and County Council later this month. This final program will require legislative approval from the County Council prior to enactment by July 1, 2013.

Baltimore City
Bill No. 12-0155 was introduced to the City Council on November 19, 2012, to implement the required program. A public hearing on the bill is currently scheduled for April 2, 2013. The bill proposes to charge a flat fee of $48, $72 or $144 per year for single-family residential zoned properties based on the amount of impervious surfaces they contain. A fee of $72 per 1,050 square feet of impervious area would be charged annually for all other properties in the City.