ANNAPOLIS — Republicans and Democrats alike appear to be lining up with legislation to alter and in some cases repeal the controversial stormwater pollution fee sometimes referred to as the “rain tax.”
Many have their eye on next year’s elections, and some are complaining of what they see as uneven application of the 2012 law across the jurisdictions to which it applies — eight counties and Baltimore city.
“You’re going to see a lot of stuff on the rain tax,” said Sen. Joan Carter Conway, D-Baltimore, chairwoman of the Education, Health and Environmental Affairs Committee.
Conway was one of the legislators who supported the bill a year ago. It was intended to require nine of the state’s largest counties, and the city, to meet federal mandates to reduce phosphorus, nitrogen and sediment runoff.
But implementation of the law has been different from jurisdiction to jurisdiction, and complaints have come from all directions — business owners, nonprofits and churches, and residential property owners.
Last year, Conway and other senators passed a bill that would have delayed implementation, but the effort died in the House of Delegates.
This year, a number of legislators are vowing to introduce a plethora of bills that would do everything from exempting specific counties, limiting the effect on nonprofits and churches, delaying implementation (again) or outright repealing it.
Supporters of the existing law and lawmakers who would seek to change it agree on one thing: Any bill introduced in the upcoming session that begins in January will face tough sledding in the House of Delegates and specifically in the Environmental Matters Committee.
“It’s very cute to call this a rain tax but it isn’t a rain tax,” said Del. Maggie McIntosh, D-Baltimore, the House committee’s chairwoman. “It’s serious business. This isn’t a tree-hugger goal. This is about meeting a federal mandate.”
Fined by the Feds?
McIntosh and other supporters of the law saw that any failure to meet federal requirements to eliminate pollution from stormwater runoff could result in state and federal fines. Counties could also lose their federal stormwater permits and be ordered to stop issuing building permits until they come into compliance.
As passed in 2012, the law didn’t set a specific fee. Instead, it authorized Anne Arundel, Baltimore, Carroll, Charles, Harford, Howard, Frederick and Prince George’s Counties and Baltimore city to impose a fee in order to implement stormwater management measures that would reduce polluted runoff from entering the Chesapeake Bay. Montgomery County passed a local law that implements its own stormwater fee separate from the 2012 state mandate, and is exempted from the state law.
“Our legislation was very simple,” said Del. Tom Hucker, D-Montgomery. “We didn’t mandate a one-size-fits-all, top-down fee. We wanted everybody to pay their fair share. We wanted to give people the benefit of the doubt and expect they’d be adults and pass fees in their own counties.”
Indeed, each county took its own approach. Some, such as Baltimore County, implemented flat fees for residential properties and other fees based on the amount of impervious surfaces on properties owned by commercial and nonprofit entities.
Carroll County opted not to impose a fee. Officials there claimed the county’s stormwater management plan could be paid for within its own budget.
Anne Arundel County recently passed a bill setting the fee for nonprofits at just $1. Frederick County went a giant step further, imposed a meager 1 cent fee on each property.
“Most business owners are reasonably comfortable paying fees and taxes when they know it will actually make a difference,” said M. Trent Zivcovich, a Baltimore attorney at Whiteford Taylor Preston LLP. “That being said, there is a great deal of frustration about the implementation and application of the program in the counties in terms of the fees’ charges and the credits that are available in some counties but not in others.”
Zivcovich, who is handling a number of appeals and applications for credits in counties around the state, said jurisdictions even differ on how they classify gravel lots. In Baltimore County, they’re considered impervious surfaces. Baltimore city considers them pervious and not subject to a stormwater management fee as long as they are not visibly compacted, the attorney said.
Charities feel the pinch
Also affected are nonprofits, churches and other charitable organizations — so much so that the issue will be one of the top legislative priorities in the coming session for the Archdiocese of Baltimore and the Baltimore Jewish Council.
“We have parishes that can barely afford to keep the lights on and are now left with astronomical bills they hadn’t budgeted for nor can afford,” said Sean Caine, a spokesman for the archdiocese.
The archdiocese is particularly concerned about the fees it now pays in Baltimore city. The bill for parish schools, charities, hospitals and universities totals $700,000, according to Caine.
“New Cathedral Cemetery alone is $30,000,” Caine said.
“All of us have an interest in doing our part to be good stewards of the environment,” Caine said. “We have no problem contributing. We just think it should be more reflective of the services we already provide.”
Cailey Locklair, a lobbyist for the Baltimore Jewish Council, was unable to provide an exact figure for costs to synagogues and other related charities. But she said costs — and how the fees are set — are a big concern.
“The fees are all over the place,” Locklair said. “I think for everybody this is going to be a really big issue. I think there is the will for people on both sides of this issue to take a look at it.”
McIntosh, however, said she is hesitant to alter the law for nonprofits and other religious institutions and added that in many cases those organizations already get a discount and can take advantage of grants and waivers.
“I think nonprofits should pay and I think religious institutions should pay,” McIntosh said. “In Baltimore city churches already get an 85 percent discount. The argument there is that churches do good and contribute in other ways.”
The politics of rain
As the last General Assembly session of the current term nears, there is mounting political pressure to alter or even repeal an unpopular tax.
In Baltimore County, the Republican Party is paying for billboards criticizing Del. John Olszewski Jr., D-Baltimore County, and his father, Baltimore County Councilman John Olszewski Sr., for their support of the stormwater management fee.
John Olszewksi Jr., has announced he intends to run for the state Senate and wants to succeed Sen. Norman Stone, a fellow Democrat who has served in the legislature for over 50 years. The billboards bought by the Republicans are in highly traveled areas of the district, which is home to mostly blue-collar Democrats who have traditionally been fiscally conservative and supported Republicans such as former Rep. Helen Delich Bentley and former congressman and Gov. Robert Ehrlich.
John Olszewski Jr. was traveling outside the country, but in a series of text messages, the delegate who voted in favor of the fee in 2012 said he was considering bills to alter the law.
One of those changes would allow each affected county to decide if it wants to set a fee or absorb the costs into its budget and require “offsets for best practices that reduce runoff,” Olszewski Jr. wrote.
“We obviously have a federal mandate and a responsibility to clean up the bay, but my changes contemplate making it clear that local jurisdictions have maximum flexibility in meeting the requirement,” Olszewski Jr. wrote. “Moreover, we should reward those doing the things that reduce the runoff we are attempting to reduce.”
Del. Pat McDonough, R-Baltimore County, said he is considering a introducing a bill that would remove Baltimore and Harford Counties from the tax. He is also considering filing suit in an attempt to stop its implementation, he said.
For her part, Conway, the chairwoman of the Senate committee, said she believes there will also be bills that will seek to reduce or eliminate fees to nonprofits and religious institutions and a return from last session of the bill that sought to delay implementation.
“They might have legs in the Senate but I doubt they’ll have legs in the House,” Conway said.
Hucker, of Montgomery County, and McIntosh agreed.
“I haven’t yet seen any proposed change that I’d support,” Hucker said.
“There are a lot of good ideas we could look at to help the counties meet their goals,” McIntosh said. “I think delaying or repealing is not the way to go.”
But there are others, such as Carroll County Republican Sen. Joseph Getty, who believe compromise can come from the pressure of an election year.
“I don’t have a sense of what bills will have legs but as the June 24 primary approaches you’ll see some pretty unusual coalitions pop up,” Getty said.
About this series
This is the first of a weekly series of articles by The Daily Record’s Bryan P. Sears highlighting issues in the upcoming General Assembly session in preparation for Annapolis Summit 2014, a two-hour program on Jan. 8 featuring Gov. Martin O’Malley, Senate President Thomas V. Mike Miller and House Speaker Michael Busch.
The summit will be hosted by Marc Steiner, whose The Marc Steiner Show on WEAA 88.9 FM is broadcasting a weekly feature on the same subjects as the newspaper series. This topic will air on WEAA Friday at 10 a.m. and will be posted at steinershow.org.
Next week: The 2014 budget