Recently state and local newspapers have run opinion pieces that have brought attention to Maryland’s “rain tax,” which is technically a “fee” that nine counties and Baltimore City have been required to levy. The purpose of the “fee” is to pay to help clean the Chesapeake Bay by constructing things that will filter stormwater of nitrogen, phosphorous and sediment before that water reaches the Chesapeake Bay. These improvements are referred to “retrofits,” and they include stormwater management ponds, planting trees, converting pavement to grass, and a number of other improvements. The purpose of these “fees” (the rain tax) is to address problems created by previous construction of impervious surfaces (i.e., water does not penetrate through such surfaces). New construction has separate requirements to address the stormwater runoff from them.

The current effort by Maryland to filter and improve the stormwater that runs off of these impervious areas is being made pursuant to a Consent Order between Maryland and the EPA. Through litigation in U.S. District Court, the EPA was requiring those states (Maryland, Virginia, Pennsylvania, West Virginia and New York) whose waters flow into the Chesapeake Bay to take remedial measures to clean the stormwater that runs off of these old impervious surfaces. Maryland has been addressing this primarily through stormwater runoff permits, issued by the Maryland Department of Environment. Frederick County is currently in the process of renewing its stormwater discharge permit. The cost of this permit to County taxpayers is currently approximately $4 million/year. However, statements from the MDE have indicated that it is contemplating significant increases in the new permit requirements—perhaps to as high as $100 million/year. Such increases would be excessive, and would result in minimal improvements in the quality of water leaving Frederick County.

Because of the enormity of this State-mandated expense, the County is being forced to work to prevent implementation of excessive, unreasonable and unfeasible taxes and fees that would have negligible effect in improving stormwater runoff. This matter is scientifically and administratively complex. The following paragraphs are intended to help explain various aspects of this problem.

First, the “rain tax,” or “stormwater retrofit fees” is being assessed to address stormwater runoff issues of the past. This “fee” is to remedy the wrongs of the past, including problems that may have been created a hundred years ago. It is to remedy rainwater runoff from impervious surfaces, including roads, schools and other buildings. This being the case, it is obvious that the new law, which mandates that only ten of Maryland’s 24 jurisdictions must levy this “fee” is unfair. All jurisdictions should be required to address this issue, not just 40% of the land areas that have contributed to the problem.

Second, as currently worded, the new law that requires Frederick County to impose this “rain tax” (actually, it is technically called a “fee” for several reasons)—the wording in the new law only requires the County to collect a “fee,” but it does not require that the “fee” be of any minimal amount. So the Frederick County fee will have negligible impact on our taxpayers—only 1 cent per property.

Third, although the amount of the Frederick County fee will be minimal, the County will still have to pay for stormwater retrofits as required by the State of Maryland’s Department of Environment (MDE) through the stormwater permit process. Thus, the County currently spends approximately $4 million/year to meet our current stormwater permit requirements. Regardless of what moneys the County collects from the new “rain tax,” the County will still have to pay for the retrofits required by the MDE stormwater permits.

Fourth, a major concern for the County is: “What new and additional retrofit requirements will the MDE impose on Frederick County in the new stormwater permit that is being negotiated?” Our concern is that the MDE will increase the retrofit requirements from $4 million/year to $150 million/year. Again, this fee has nothing to do with new construction—this is exclusively to provide retrofits to remove nutrients from stormwater due to insufficient filtering of stormwater runoff caused by impervious surfaces that were built in the past. The County’s great concern is that MDE could order the County to increase its retrofit requirements from $4 million/year to $100 million/year. This would increase our financial burden by 25 times. The per person financial burden in Frederick County would increase from $16.5/person/year to $412/person/year. (For a family of four, this would create an increased County tax burden in the amount of $1,600/year. Thus, you can understand why this is such a grave concern for all of us.

Fifth, regardless of what revenues a county may derive from the new rain tax, MDE imposes on each jurisdiction stormwater retrofit requirements that are very expensive (as explained in the previous paragraph). But the imposition of these remedial assessments is not currently being evenly levied around the state. The impact per person of these costs is four times greater on Frederick County residents than on Montgomery County residents and on Anne Arundel County residents. This is unfair. This is wrong! Frederick County has no choice but to prepare to defend our taxpayers if the new MDE retrofit permit requirements are too expensive.

Sixth, while the need for stormwater retrofits can be traced to certain impervious surfaces, the State is not requiring that only those causing properties pay for the required retrofits. For a multitude of reasons, at this point I am not aware of any jurisdiction that is only requiring the properties that caused the problem to fix the problem. If the state were to do this, it would cause a few properties to suffer dramatic losses in value. The economic effects of such an approach would be devastating.

Seventh, in my opinion, the State should address this problem on a state-wide level—rather than kicking the problem down the line to the counties, and then requiring some counties to handle amounts that are much more costly (per person) than other counties. In addition, because the State has taken the approach to kick the problem down the line to the counties, the State has not calculated the costs that its policies would demand from the counties. This is a major problem.

Eighth, the imposition of the stormwater retrofits stems from litigation between the EPA and several states (including Pennsylvania, Virginia and Maryland), in which Maryland and the other states agreed to comply with certain requirements of the Clean Water Act. But Maryland’s approach to compliance is markedly different from that of Virginia and Pennsylvania. Although Maryland produces only 20% of the water that reaches the Bay, Maryland’s approach to the settlement agreement has been much more costly per person than the approaches taken by Pennsylvania and Virginia. (For example, Virginia successfully sued the EPA to block EPA from enforcing a stormwater retrofit requirement. This victory saved Virginia approximately $70 million.) The lack of uniformity has resulted in great unfairness to Maryland taxpayers; the approach is also causing businesses to avoid Maryland or to move away from Maryland.

Ninth, Maryland has yet to invoke the “feasibility” protection that the Clean Water Act recognizes. In other words, the Clean Water Act recognizes that a jurisdiction need not make retrofits where the cost to do so is not feasible. Frederick County is urging the MDE to take into consideration the “feasibility” limitation as it sets stormwater retrofit requirements in the forthcoming stormwater discharge permit. We hope that the State will recognize and apply the “feasibility” limitation, so that Frederick County is not forced to challenge a permit for failing to recognize this feasibility limitation.

Tenth, there are multiple scientific issues related to cleaning up the bay and through what retrofit requirements to set. Identifying the specific causes is not a precise calculation, but rather is the product of modeling that has multiple assumptions. In addition the cost effectiveness of various remediation efforts is questionable at best. Further, the current State remediation approaches is not addressing some practices, such as law fertilizer practices, that are a major cause of pollution. When these multiple issues are bundled together, we have a State-wide Bay cleanup approach that is extremely costly, but which is not expected to bring any significant improvement of the Bay waters. More simply stated, it is a colossal waste of taxpayers money.

Eleventh, Frederick County joined the Clean Chesapeake Coalition to join together with other Maryland counties who are also worried about the excessive and punitive stormwater retrofit requirements. One of the accomplishments of this Coalition is that it has brought to the attention of the citizens of Maryland the need for the State to address the primary sources of Bay pollution, including the waters from the Susquehanna River that flow over the Conowingo Dam.