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A closer look at Hogan’s parallel between ‘rain tax’ and transportation law

Stormwater runoff in Baltimore city. The Court of Appeals last week ruled against environmental organizations which argued the Maryland Department of the Environment's stormwater permits for Baltimore and several Maryland counties were unlawfully vague because the agency did not provide clear benchmarks, guidelines and standards for stormwater. (Maximilian Franz/The Daily Record)

Stormwater runoff in Baltimore. Gov. Larry Hogan says he wants to repeal the new transportation scoring law in the same way he led a repeal of the state’s stormwater management fee. But the repeal of the so-called ‘rain tax’ still requires local governments to remediate their runoff. (Maximilian Franz/The Daily Record)

Potential changes to a controversial transportation scoring system could come down to the definition of one word: repeal.

Gov. Larry Hogan, speaking to a gathering of local government officials at the Maryland Association of Counties summer convention in Ocean City, vowed to repeal a bill he said would eliminate funding for all road and highway projects in favor of transit projects in a handful of counties. In comments to reporters, he compared the effort to one of the cornerstones of his 2014 campaign — the repeal of the stormwater management fee, the so-called rain tax.

“We’re going to repeal the bill just like we did with the rain tax,” Hogan said Saturday using the effective and politically charged label he gave to a 2012 law creating a stormwater management fee to reduce sediment and runoff pollution in nine counties and Baltimore City. “They said it would never happen. They said we could never repeal the rain tax because it passed with two-thirds majorities. We got every single legislator in both houses and in both parties who voted for it to change their vote and vote against it.”

“We’re going to bring the same kind pressure to bear on the legislature for this horrible piece of legislation and it will be repealed before it has to be enacted,” Hogan said.

Hogan’s statement comes as no surprise, given his adamant opposition to the bill that he said Saturday usurps the authority of the executive branch and local governments. It did raise questions as to what the governor means when he says repeal and compares it to a controversial fee that is still in place in many jurisdictions.

“The parallel isn’t perfect between the two bills,” said Michael Sanderson, executive director of the Maryland Association of Counties. “I think the parallel lies in the fact that many legislators who voted for the mandate for the stormwater management fee a couple of years after implementation voted for a repeal of that mandate.”

The association that represents Maryland’s 23 counties and Baltimore City opposed the transportation bill despite the fact that a number of amendments it recommended were incorporated into the new law. The group has not taken a position on Hogan’s comments this weekend because a formal bill has not been drafted, Sanderson said.

Democrats, some angry at Hogan’s elimination of the Red Line light-rail project in Baltimore and the shift of transportation funding to projects in rural, more Republican areas, pushed through a bill they said would promote public transparency by requiring the state transportation department to score and rank each local project considered for state funding. Advocates say the law gives the department and any governor the flexibility to move lower scoring projects up the list but to do so requires written justification.

State officials caused a uproar by first threatening counties with funding cuts if they did not provide a dozen detailed reports on projects they requested. Later, a second letter outlined that only seven projects would receive part of the $917 million available in the coming budget year using an internal scoring system that has not been made public.

And then last week, the department announced it would not apply the scoring system to this year’s requests at all after an attorney for the legislature said the bill was never intended to apply to projects until next year, when the department drafts the regulations establishing the formula to score projects.

Hogan’s definition of repeal, as it pertains to the stormwater management fee, appears to be a little loose, according to some advocates who ultimately supported Senate Bill 863. The bill, sponsored by Democratic Senate President Thomas V. Mike Miller Jr., competed with Hogan’s bill to repeal the fee.

Douglass Mayer, a Hogan spokesman, said there are parallels between the stormwater management and the transportation scoring laws.

“They’re both terrible laws,” Mayer said. “One was a mandate on local jurisdictions and in the other, it  removes authority.”

“When the governor says ‘repeal’ he’s talking about a full-blown repeal of House Bill 1013, and we look forward to seeing it happen with the support of local governments,” Mayer said.

Rather than repeal the fee in its entirety, Miller’s bill — which passed 185-1 between the House and Senate — merely removed the state mandate on the affected jurisdictions to establish a fee despite the fact that most had already created one and were charging residents.

Del. Richard Impallaria, R-Baltimore and Harford Counties, was the lone vote against the Senate bill and argued that it would not remove the fee.

The bill also imposed additional reporting requirements to ensure that counties could pay for the remediation and established an important key provision: Jurisdictions that were already charging the fees could not eliminate them without first providing a detailed plan to the state to pay for needed water quality projects and get the state’s permission to rescind the fee.

Since the so-called repeal was enacted, only Baltimore County has moved to phase out its fee.

The bill had the support of the environmental groups while the Maryland Association of Counties opposed it. At the bill signing, environmental advocates stood behind the governor and some, at the time, called it “a major victory” for protecting the bay.

“You could technically call it a repeal but in every real sense Miller’s bill more clearly defined each jurisdiction’s responsibility to abide by federal law,” said Tom Zolper, a spokesman for the Chesapeake Bay Foundation. Zolper added that the repeal measure clarified that counties had to pay for projects to reduce pollution from stormwater runoff “no matter what you call (the fee) or where you get it.”

Sanderson, the association of counties executive director, said many county officials are concerned about how the transportation law will be applied.

“I think there’s a lot of jurisdictions who are concerned, despite the one-year reprieve, that unless this alters course, we’ll see important projects defunded, said Sanderson, adding he thinks there is an opportunity to revamp the law if not fully rescind it. 

“Many legislators who voted for the stormwater fee, a couple of years after implementation, voted to repeal the mandate on fees. As the real scores are applied to real projects, many legislators may come to realize this bill does something they don’t support and will support a legislative repeal. In the light of day, folks will have a change of heart.”