Battles Over Stormwater: Maryland Counties Fight The 'Rain Tax'

by McCarter & English: Climate Change & Renewable Energy
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It's not secession like Colorado but three Maryland counties are staging their own Fort Sumter. This past Tuesday the Carroll County Council received a notice from the State that the County did not appear to be meeting its obligations under the 2012 Stormwater Management – Watershed Protection and Restoration Program Act.  Penalties of $10,000 per day were threatened. Frederick and Harford Counties have received similar letters.  The County fathers (and mothers) have been nonplussed. As quoted in the Baltimore Sun, Frederick County Commissioner Billy Shrive responded:  "I've been dealing with bullies since I was in kindergarten, and I don't tolerate it."

Under the Act (Md. Env. 4-202.1) Baltimore City and the 9 Maryland counties and with the most significant runoff into the Chesapeake Bay were obligated to take steps to mitigate their stormwater discharges. One requirement was to put in place a funding mechanism for such improvements (the stormwater remediation fee, or the rain tax, depending on your perspective). Carroll County declined to establish any mechanism. Frederick County set a fee of one cent per real estate parcel. Harford County set what appeared to be a reasonable fee, but then whacked off 90% of it pending further study. The State was not amused - hence the letters and threats.

What is this so-called rain tax?  Each county is permitted to set up its own parameters but basically the idea is to address the amount of stormwater runoff a property generates and assess a fee accordingly.  As set forth in the statute, the fee is to be "based on the share of stormwater management services related to the property and provided by the county or municipality."  A county may set a flat fee, set a fee based on impervious surfaces, or use some other method. 

In Baltimore City the essential element is the amount of impervious surfaces on a property. Simply stated, that is roofs and pavement, but it also could include gravel roads and decks, but not include graveled settling basins or decks that drain to landscaping below.  The City is using aerial photographs as the basis for calculation of impervious surface square footage. This is converted to Equivalent Residential Units to establish the fee.

There are lots of things knowledgeable Maryland practitioners can do to help their clients navigate the intricacies of the Act. Indeed, they can make their clients real money.  At a Maryland Bar Association Environmental Law Section meeting yesterday a consultant explained how over $100,000 was saved for one client in pushing for exemptions, credits and applicable definitions.

But there was a larger lesson as well that would apply to any jurisdiction where storm sewers exist. A representative of Blue Water Baltimore noted that with climate change, the 100-year storm is now the 25-year storm. This is a common mantra and useful to keep in mind even if inaccurate. The 100-year storm is now the 25-year storm in some places. In other places it is now the 200-year storm. This is because with climate change some places will become drier and some wetter.  For practitioners counseling their clients, in becoming-wetter locales one should be paying attention to the age of the storm sewer infrastructure and considering whether it is sized for increased flows; also of importance is the effect of an infrastructure failure on the business plan. In becoming-drier locations one should apply converse thinking and further be skeptical of assessments or assertions of the need for oversized storm sewers. 

Creedence Clearwater Revival asked "Who'll Stop the Rain?" We submit it is the wrong question.  Stormwater creates problems because of its velocity and its volume.  Modern society packs down and covers the earth so that rain cannot percolate in and thus, for example, a small stream carrying stormwater is greatly amplified.  To mitigate velocity and volume is going to cost money.  Thus a better question would be:  Who'll Pay for the Rain?  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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