Perhaps not since the Chestertown Tea Party has legislation raised the ire of Maryland citizens so dramatically. When the U.S. Environmental Protection Agency (EPA) established the Chesapeake Bay Total Maximum Daily Load (TMDL) program, Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia were ordered to take dramatic pollution reduction steps to meet EPA water quality standards in the Chesapeake Bay.
Many Maryland counties already have stormwater management programs and charge their residents related fees. Yet, Maryland’s legislature responded further by enacting legislation to implement a watershed protection and restoration program (HB 987) which includes provisions requiring the imposition of stormwater remediation fees. As a result, nine counties and Baltimore City became obligated to establish stormwater remediation fees to fund local watershed protection and restoration programs.
Unfortunately, HB 987 provides no clear direction regarding funding or specific measures to meet its goals. Although vigorously contested, the Maryland legislature approved (and the governor signed) HB 987 just minutes before the end of the 2012 session. Other than imposing a July 1, 2013 deadline for the counties to establish their stormwater remediation fees to implement the watershed programs, HB 987 includes little else to definitively mandate how the counties are expected to meet the TMDL goals. More glaring is the fact that, while HB 987 covers certain issues regarding the relationship between impervious surfaces and possible stormwater management technologies, it leaves the fee calculation methodology wholly open. Thus, each county is permitted to calculate its fees at a flat rate, a graduated rate (based on impervious surfaces) or “another method of calculation” without consideration of what any other county’s fee method is. The result – public activism. Although most counties have adopted traditional fee criteria, Frederick County has openly challenged HB 987’s lack of clarity, by imposing a minimal 1¢ per eligible parcel ordinance solely to comply with the July 1st stormwater fee mandate. Frederick County’s fee is estimated to generate a mere $487.81 per year! In another protest move, Anne Arundel County’s county executive attempted to veto its proposed HB 987 compliance legislation.
Recognizing its citizens’ strong views, perhaps Maryland should follow the lead of some other states and fight the need for HB 987 in the courts. Virginia waged a successful case against the EPA with a court holding that “Stormwater runoff is not a pollutant, so the EPA is not authorized to regulate it.” Using a different approach, the Missouri Supreme Court is hearing arguments that the St. Louis Sewer Department’s imposition of stormwater remediation fees is effectively a tax requiring taxpayer approval prior to implementation.
Stay tuned! Perhaps this storm will produce another instance when politicians – as occurred at the tea party in Chestertown on May 23, 1774 – will end up all wet.