Funding Stormwater Controls in Maryland

Robert E. Jenkins, April 2015

Introduction

Urban stormwater runoff is the fastest growing, controllable source of primary pollutants

impacting the health of the Chesapeake Bay (US EPA 2010). With annual increases in human

population and expansion of urbanized areas, pollutant loadings are projected to increase by

over two million pounds within the next 20 years (MDE 2013) . Given the uncertainties of being

able to reduce these targeted pollutants from the other major source sectors- agricultural,

industrial, publicly owned treatment works (POTW), atmospheric deposition- it is critical that the

urban stormwater source be controlled. Of the many environmental issues facing the

Chesapeake Bay and Maryland, urban stormwater runoff and the appropriate way to address

and fund reductions are among the most contentious. A critical component to the success of

controlling urban stormwater will be the development of an adequate and stable funding

program. The recent controversy that surrounds the so called "Rain Tax" illustrates the difficulty

that is associated with developing such a funding base.

Among many state residents there is a general lack of understanding of the requirements for

stormwater mitigation, as well as a specific lack of understanding of the stormwater remediation

fee, i.e. the "Rain Tax". A recent poll of Maryland voters found that 50% of those surveyed

believe that residents will be taxed when it rains (Raabe 2015). Confusion also exists over the

how urban stormwater mitigation is funded, the great variability by which mitigation fees are

determined and then utilized at the county level, as well as the disparity that exists from

jurisdiction to jurisdiction. In the same poll referenced above, 75% of voters surveyed were

unsure of the fee structure within their local jurisdiction, with most unwilling to hazard a guess

(Raabe 2015). The current approach in Maryland requires certain counties, specifically those

with Municipal Separate Storm Sewer System (MS4) permits, to pay a stormwater mitigation

fee, while other counties do not. In order to effectively address the issue of urban stormwater

mitigation, current policies should be revamped and uniformly applied, and education and

economic incentivization plans more fully developed in order to engage all stakeholders.

Background

The Chesapeake Bay Watershed consists of six states: New York, Pennsylvania, Virginia, West

Virginia, Delaware, Maryland, and the District of Columbia, with a combined population of over

18 million. The Bay Watershed drains approximately 64,000 acres of land into the Bay proper,

with the freshwater drainage contributing approximately half of the Bay's 18 trillion gallon

volume. The Chesapeake Bay supports significant plant and animal life, as well as providing

recreational and economic opportunities.

The Bay is currently in a state of ill health, which Bay states have been attempting to address

for more than 40 years. The Bay's ill health is due in no small part to the effects of the primary

pollutants nitrogen, phosphorous, and sediment, which is typically expressed as total

suspended solids (TSS). Excess loadings of the primary pollutants has resulted in:

decreased water clarity

extensive algal blooms that block sunlight from beds of underwater grasses

degradation of habitat for submerged aquatic vegetation and biota such as the blue

crab and oyster

creation of hypoxic/anoxic dead zones which are incapable of supporting and

sustaining viable populations of underwater life

Current estimates indicate that approximately 20% of the nutrient, and 40% of the sediment

pollutant loadings reaching the Chesapeake Bay are due to urban stormwater runoff (Fig. 1).

These pollutant loadings originate from both natural and anthropogenic sectors and are a mix

of point and non-point sources.

Pollution originating from a single, identifiable source is considered point source. Non-point

source pollution can be generated from multiple locations and is not attributable to a specific

source. Stormwater pollution is generated as water moves over or through the ground, picking

up and transporting pollutant loads. As the runoff moves, it picks up and transports both natural

and man-made pollutants, eventually depositing them into a receiving water body. The water

carrying the pollutant loadings can originate from natural processes such as rainfall or

snowmelt, or as a result of human activities. Contaminated stormwater constitutes one of the

world’s main transport mechanisms introducing non-point source pollutants into receiving waters

(Pitt et al. 1995), but is generally treated as a point source, subject to regulation via permitting.

For a more detailed explanation of the regulatory process addressing stormwater please refer

to the "Regulations and Requirements" section of the paper.

The deterioration of the Bay and it's tributary watersheds is by no means limited to problems

attributable solely to the primary pollutants. Urbanization exerts a strong influence on the

quality of stormwater, which is being increasingly contaminated by a variety of physical,

chemical, and biological pollutants stemming from anthropogenic activities commonly practiced

in urban areas (Pitt et al. 1995; Zgheib, Moilleron, and Chebbo 2012).

Physical pollutants include thermal pollution from dark impervious surfaces such as streets and

rooftops, as well as tons of litter and floatables that are transported via stormwater.

Chemical pollutants are extremely varied. A 2008 study by Zgheib established a list of 88

stormwater priority substances (i.e. 65 organic substances, 8 metals and 15 volatile organic

compounds), based on Europe's Water Framework Directive list of priority substances and the

adapted version of the Chemical Hazard Identification and Assessment Tool methodology

(Zgheib, Moilleron, and Chebbo 2012). 55 of these stormwater priority substances were found

at least once within the monitored sites, with 21 being found in all samples. By comparison, the

Clean Water Act identifies and regulates 126 priority substances. A study by Pitt determined

that of a selected group of 39 stormwater contaminants designated as toxic pollutants by the

Environmental Protection Agency (EPA), 19 were found in stormwater runoff at least 10% of the

Primary Pollutants of Concern-Sector Contributions

Figure 1. The percentages of nitrogen(1a), phosphorous(1b), and sediment(1c) contributed annually by

source to the Chesapeake Bay. Stormwater runoff consists of both regulated and unregulated sources.

All data attributable to: http://baystat.maryland.gov/causes-of-the-problems-map/.

Agriculture 37%

Wastewater Treatment

26%

Stormwater Runoff

20% 9.5 million lbs.

Septic 6% Forests

11%

Nitrogen Contribution by Source - 46.9 million lbs.

Fig. 1a

Agriculture 53% Wastewater

Treatment 20%

Stormwater Runoff

22% 640,000 lbs.

Forests 5%

Phosphorous Contribution by Source - 2.9 million lbs.

Fig. 1b

Agriculture 50%

Wastewater Treatment

1%

Stormwater Runoff

39% 492 million lbs.

Forests 10%

Sediment Contribution by Source - 1.2 billion lbs.

Fig. 1c

time (Pitt et al. 1995). Notable among the contaminants found were polyaromatic hydrocarbons

(PAH), which are a major concern with regards to public health and environmental impact due to

their carcinogenic and mutagenic properties (Hwang and Foster 2006).

Improperly disposed of pet waste and illicit sewer connections can be sources of biological

pollutants such as bacteria and viruses. The health hazards posed by organisms such as fecal

coliform bacteria are well documented.

Causes

There are three main factors influencing the continued growth of urban stormwater runoff:

changes in population, in land development, and in impervious surface.

The most recent census data from 2010 shows Maryland's population to be approximately 5.8

million residents. Decadal projections generated by the Maryland Department of Planning

predict a 20% population increase by 2040, equivalent to one million more residents in the state

within the next 25 years (MDP 2014). Both historically and in future projections, populations in

all regions of the state continue to increase, with the greatest increases occurring in areas that

are already experiencing urbanization.

The ever increasing number of residents within the state has resulted in significant changes in

land development over the same time period. Historical increases in the amount of urbanized

land in the U.S., as well as a projected increase in the amount of developed land from 5.2

percent to 9.2 percent by 2025 suggest that urbanization is a major domestic trend (Pickett and

Belt 2007). It is estimated that as of 2010, the global human population has shifted from

predominantly rural and agricultural to urban (Pickett and Belt 2007). A similar trend in the

amount of land development can be seen within Maryland (Fig 2). Maryland's total land area is

approximately 6.2 million acres with over 1.6 million acres developed, an increase of 150% over

the last fifty years (MDP 2010a). Since the early 2000's, a large portion of this development has

occurred in areas that are designated as priority funding areas. Priority funding areas are those

in which development is encouraged due to the existence of established infrastructure and the

allowance for higher population densities. These areas are typically targeted for economic

growth and development. However, "large lot" development, development of low density

residential property greater than half an acre, accounts for more than half of the developed land

within the state (MDP 2010a).

Population increases and land development changes occur both in areas where infrastructure

and services already exist, as well as in areas where they do not. The combination of

population increase and land development creates the need for maintenance of existing

infrastructure, as well as development of new infrastructure such as roads, sewers, waste

disposal, et al., resulting in an increase in impervious cover (Fig. 3)

Developed Land in Maryland: 1973-2010

Figure 2. Maps indicating the change in land development within Maryland's 6.2 million acres. All data

attributable to: Maryland Department of Planning (MDP 2010a).

1973

10.5% of total

land area

developed.

2010

27% of total

land area

developed.

Impervious Surface Coverage in Maryland: 1985-2010

Figure 3. Maps indicating the change in impervious surface coverage within Maryland. All data

attributable to: Maryland Department of Planning (MDP 2010b).

2010

1985

Effects

Increases in population are coupled with an increase in development, along with an expansion

of urbanized areas. As the sizes of the developed and urbanized areas increase, there is a

concomitant increase in the amount of impervious surface as well. The increase in impervious

surface results in increased runoff and pollutant loadings shunted directly into transporting water

bodies. Excess stormwater runoff has historically had a degrading impact on both terrestrial

and aquatic ecosystems (Carlson and Traci Arthur 2000) as evidenced by the physical,

chemical and biological changes that occur in more urbanized systems.

Physical

Urbanized conditions route stormwater to streams in less time and in greater quantities. The

change in shape seen on a hydrograph (Fig. 4a), is a result of urbanization impacts on drainage

networks and impervious cover (Sillanpää and Koivusalo 2015). Changes in flow regime -

magnitude, duration, frequency and timing of flows, differential flow rates - can be modified by

urbanization.

Higher peak flows can lead to stream degradation and habitat alteration as well as increasing

sediment loadings from erosion and runoff. The impacts on channelization of streams and

disengagement from their floodplains (both through incision and excavation) have increased the

efficiency with which flow is transferred from headwaters to catchment outlets (Fletcher, Vietz,

and Walsh 2014). Construction, the loss of existing vegetation, and the compaction of soil

result in the modification of natural channels and the capacity for soil absorption (Fig. 4b).

Infiltration capacity becomes almost nil with much of the remaining soil nearly impervious,

decreasing the potential for infiltration and storage, and increasing the rate at which the soil

becomes saturated (Booth 1997). The severity of a precipitation event and how stormwater

runoff occurs is effectively changed by covering land with impervious surfaces such as roads

and roofs.

Chemical

TSS loadings and the potential adsorption capacity of sediment are of particular concern. Many

studies conducted on stormwater quality (Gromaire-Mertz et al. 1999; Davis, Shokouhian, and

Ni 2001; Rügner et al. 2014) have indicated that pollution in stormwater is mainly bound to

particles. Population growth with increased urban sprawl shows a strong positive correlation

with increased traffic activity, which is responsible for high levels of PAHs in urban runoff and

the consequent degradation of water quality (Hwang and Foster 2006). PAHs are hydrophobic,

and typically found in association with particle loadings (Fig. 5). Incomplete vehicle combustion

can result in formation of soot carbon residue. Because of high porosity and the ability to form

very stable bonds, particulate soot carbon has been known to exhibit a high affinity for planar

aromatic compounds like PAHs (Hwang and Foster 2006). These higher concentrations of

PAHs in suspended sediments can be attributed to increased urban pressure, with

contaminated particles carrying an urban (PAH) signal related to surface runoff from urban

space, occurrence of coal tar sealcoats, et al. (Rügner et al. 2014).

Figure 4. Differences in stream flow (4a) and stream geometry (4b) due to change in urbanized area (US

EPA 1992; Schueler 1987).

4a

4b

Figure 5. Comparison of particulate and dissolved PAH concentrations during base flow and storm flow

(Hwang and Foster 2006).

Biological

Watershed development and impervious surface coverage has also been positively correlated

with fecal bacterial contamination in freshwater urban streams (Mallin, Johnson, and Ensign

2009) with rainfall runoff having major impacts on water quality. Positive correlations occur

between rainfall and TSS, turbidity, and fecal coliform abundance (Fig 6), with correlations

indicating increased loadings of constituents from anthropogenic and natural sources during

storms (Mallin, Johnson, and Ensign 2009).

Figure 6. Dry versus wet-period concentrations of TSS, turbidity (mean + standard error of the mean),

and fecal coliform bacteria (geometric mean) in urbanized (BMC), suburban (SC), and rural (PGC)

catchments; significantly different at *p<0.05. The unit of measure for fecal coliform is colony forming

units (CFU)/100 mL. (Mallin, Johnson, and Ensign 2009)

The cited studies in the "Effects" section of the paper clearly demonstrate the negative aspects

resulting from increased urbanization and stormwater runoff. Flow regime changes due to

urbanization lead to more impactful precipitation events and loadings of sediment. Surface

water pollution by inorganic and organic chemicals, as well as by fecal bacteria, is higher in

urban watersheds with concentrations of these pollutants becoming much greater following

precipitation events. Increasing urbanization within a watershed is therefore both a source and

means of transport for physical, chemical, and biological pollutants to surface waters.

It is clear that stormwater runoff and the pollutant loadings carried within it are problematic. As

the pressures influencing runoff continue to increase, it only becomes more critical that

mitigation efforts increase as well. The initial means of addressing stormwater runoff and

mitigation is through legislation, both federally and at the state level.

Regulations and Requirements-Federal

The Clean Water Act (CWA), an improved and expanded version of the Federal Water Pollution

Control Amendments, was signed into law in 1972 despite the opposition of then-President

Richard Nixon. The main tenet of the CWA is the protection and restoration of the physical,

chemical, and biological integrity of the nation's waters, with a minimum goal of waters being

fishable and swimmable. The CWA gives the US Environmental Protection Agency (EPA)

authority to regulate pollutant loadings that are affecting the designated uses and water quality

standards of all navigable waters of the US, as well as ensuring that those same waters do not

degrade.

Section 303(d) of the CWA requires that states develop impaired waters lists for water bodies

not meeting their designated uses and water quality standards. Total Maximum Daily Loads

(TMDLs) are developed for waterbodies placed on the list, which specifies the maximum

amount of a pollutant that a waterbody can receive in order to meet water quality standards. A

TMDL consists of wasteload allocations (WLAs) for point sources (PS) and load allocations

(LAs) for nonpoint sources (NPS), with a margin of safety (MOS) included. (Eq. 1)

TMDL = ΣWLA + ΣLA + MOS (1)

Point sources are regulated through the National Pollutant Discharge Elimination System

(NPDES) program, with all PS discharges required to have an NPDES permit. Traditionally,

stormwater runoff was considered a NPS, but in 1987 the CWA was amended to designate

stormwater discharge as a point source.

Stormwater runoff is transported and discharged into receiving waters via Municipal Separate

Storm Sewer Systems (MS4s), which are controlled by public agencies (counties, state

agencies, et al.) but are not connected to POTW's. NPDES permits are written for MS4s in

order to control the wasteload allocations from stormwater runoff and to limit the transport of

harmful pollutants. As per Section 402 of the CWA, MS4 permits require controls to reduce

pollutant discharge to the Maximum Extent Practicable (MEP). (Sawyers et al. 2014) A 2002

EPA memorandum stated that Water Quality Based Effluent Limits (WQBELs) for stormwater

discharge permits may be expressed in the form of Best Management Practices (BMPs) through

an iterative approach (Wayland and Hanlon 2002). However, a more recent memorandum from

the EPA encourages the use of measurable requirements, and if possible, numeric criteria for

effluent limitations. (Sawyers et al. 2014)

Regulations governing MS4's went into effect in two Phases, both dependent on population.

Phase I was initiated in 1990 and applies to medium or large cities and jurisdictions with

populations greater than 100,000. MS4's in Phase I are assigned individual permits, either for

each outfall discharging stormwater runoff into receiving waters, or as a systemic requirement.

Under Phase I permits, there are seven standard conditions to be met (Table 1).

Phase II applies to jurisdictions with smaller urbanized populations and was initiated in 1999.

MS4's in Phase II are given general permits and are obligated by law to implement at least six

minimum measures of control (Table 2). All six control measures are facets of individual permit

requirements.

Table 1. Requirements for individual Phase I MS4 permits

Condition Purpose

Permit Administration Assign individual to liaise with MDE

Legal Authority Ensure county maintains appropriate legal authority

Source Identification Identify pollutant sources to stormwater runoff; submit specified GIS data

annually

Management Programs Implement and maintain programs to address stormwater, erosion and

sediment, illicit discharges, trash and litter; address pollutant loadings from

county facilities; public education and outreach

Restoration Plans/TMDL County-wide assessment of watersheds; restoration of 20% of county

assessed impervious surface area; assure TMDL compliance; solicit public

input as regards restoration, TMDL compliance, water quality

Assessment Controls Establish monitoring programs to determine effectiveness of restoration

plans and BMPs

Program Funding Annual reporting of costs associated with mitigation efforts; assurance of

funding; insufficient funds are not considered as noncompliance

Table 2. Control measures required under Phase II MS4 permitting

Control Measure Addresses

Public Education Impact of stormwater discharge, how public can reduce

pollutants

Public Participation Public involvement in restoration efforts

Illicit Discharge Detection/Elimination Identification and elimination of illicit connections to the

Maximum Extent Practicable (MEP)

Construction Site Control Erosion and sediment control at construction sites;

compliance to Maryland Annotated Code's more stringent

requirements equates to compliance with NPDES permit

Post-Construction Control Stormwater management within new developments;

compliance to Maryland Annotated Code's requirement for

jurisdictional stormwater management plans equates to

compliance with NPDES permit

Housekeeping Reduction of pollutant loadings from municipal facilities

Though EPA is the federal authority, a great deal of latitude has been given to states through

cooperative federalism to assess whether water bodies are meeting their designated uses.

States establish TMDLs for those waters that are impaired (303d list), and are responsible for

the NPDES permitting of point sources. In Maryland, the agency responsible for such actions is

the Department of the Environment (MDE). In cases where jurisdictions are not meeting their

permit requirements, or there exists unregulated stormwater discharges -high growth areas,

areas with significant impervious cover, headwater areas- both EPA and MDE have Residual

Designation authority allowing them to designate such areas for NPDES permitting. (US EPA

2010)

Regulations and Requirements-Maryland

A summary of the legal history of stormwater mitigation in Maryland

1982 MD General Assembly passes Stormwater Act; put in place to address the

stormwater runoff impacts from new development.

1990 Implementation of Phase I (medium to large cities or counties, population greater

than 100,000) NPDES permitting for all MS4's addressing stormwater discharge.

1999 Implementation of Phase II general permitting; Phase II includes small MS4's

within urbanized areas. Measurable goals for each control measure must be in place.

MDE has the authority to require a jurisdiction to obtain an individual permit.

1982

Stormwater Act

1990

Phase 1

2000

Stormwater Design Manual

2007

Stormwater Act

2012

HB 987

2015

SB 863

2000 Adoption of the Stormwater Design Manual; main goals are the protection of state

waters from urban stormwater runoff, and to provide guidance on the design and quality

of constructed Best Management Practices (BMP's).

2007 MD General Assembly passes the Stormwater Act of 2007; requires the use of

Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP).

2010 Chesapeake Bay TMDL; improvement of the Bay health through reduction of

pollutant loadings; states responsible for determining when and how goals are met.

Due to the lack of progress and visible results in the overall health of the Bay and

in accordance with the CWA, the EPA issued the Chesapeake Bay TMDL for the

primary pollutants. All jurisdictions within the Bay watershed are required to

meet 60% of their reduction goals by 2017, with full implementation in place by

2025. The means by which reduction goals are met are determined by the

jurisdictions themselves, and developed in the form of a Watershed

Implementation Plan (WIP), a blueprint as to how and when the reduction goals

will be met. The cost for Maryland to meet its reduction goals is estimated to be

~ $7.5 billion.

2012 House Bill 987; requires jurisdictions having Phase 1 MS4 permits to implement a

Watershed Protection and Restoration Program (WPRP), which is to be funded by

application of a stormwater remediation fee. Jurisdictional discretion is given in

determining the dollar value of the fee, and how the fee is assessed. Fees generated

are to be used exclusively for stormwater mitigation projects.

2014 Larry Hogan elected as the new Governor of Maryland; one of his main campaign

platforms is the elimination of stormwater mitigation fees.

2015 House Bills 481,773, 874; Senate Bills 36, 42, 588, *863[RaL1]; proposed bills

seeking to repeal or modify HB 987

Both Federal and State policies mandate reductions in stormwater runoff and its associated

pollutant loadings. The next step in the process is the implementation of reductions. Computer

programs such as MAST can be used to compare the effectiveness of BMPs at reducing

pollutant loadings on a per acre basis, but do not account for the monies required. To assess

the effectiveness of BMPs in mitigating stormwater runoff goes beyond the scope of this paper.

What is important to note is that there are costs associated with all levels of stormwater

reductions: capital, operation and maintenance, permit requirements, BMP retrofitting or

installation, TMDL requirements, WIPs, et al.

Costs for urban stormwater BMPs vary more widely and are more site‐ and project‐specific than

the costs of most other BMPs. (King and Hagan 2011) As mentioned in "Regulations and

Requirements-Maryland-2010" the cost for Maryland to meet the reduction goals of the Bay

TMDL alone are a staggering $7.5 billion dollars. The amount of monies needed throughout the

state highlights the crux issue of adequate funding.

Stormwater Mitigation Funding

The state has a number of methods to fund mitigation efforts:

Water Quality Revolving Loan Fund--offers money for stream corridor restoration and

protection

Chesapeake and Atlantic Coastal Bay Trust Fund--offers funds to assist with multiple

projects statewide

319 Grants--Federal grants made available by section 319 of the CWA; helps fund state

programs; provides grants to state and local projects that reduce or eliminate water

quality impairments

MDE has offered several grant programs to defray local retrofit project costs, but most

communities have relied on their local capital budgets to finance the majority of their retrofits.

(Bahr et al. 2012). Most revenue within these budgets is generated through taxes and fees.

Monies from the General Fund have traditionally been used to finance stormwater mitigation

efforts. The problem with such funding is that programs other than stormwater mitigation take

precedence resulting in budget shortfalls and insufficient funds to complete projects and meet

reduction goals.

As early as the mid-90's there was legislation in place that allowed localities to develop a fee

system. Continued inadequate funding and lack of progress in addressing stormwater runoff led

to pressure from environmental groups for a stable means of funding stormwater mitigation.

The end result was the passage of HB 987 in 2012 ("Regulations and Requirements-

Maryland"). The main impact of HB 987 was the creation of a Watershed Protection and

Restoration Program (WPRP), to be funded by application of a stormwater remediation fee.

Mitigation fees collected by jurisdictions cannot be redistributed into the General Fund. They

serve as a dedicated revenue source for projects related to reduction of stormwater pollutant

loadings: MS4 permit compliance, infrastructure upgrades, BMPs. Fees may also be used to

support stormwater educational and outreach programs.

The state has left the particulars of complying with HB 987 up to the jurisdictions. Jurisdictional

discretion was given in determining both the dollar value of the fee and the methods by which

the fee was to be assessed, however not all counties were required to comply with HB 987.

The law mandates that the 10 largest jurisdictions, those with Phase I MS4 permits, be

responsible for development of a WPRP and determining the means to fund it (Table 3).

Table 3. Listing of the jurisdictions directly impacted by House Bill 987, as well as associated

fees and the means by which they are assessed

Jurisdiction Residential Fee Based On Non-Residential

Fee

Based On

Anne Arundel $85/2940 ft2

estimated ft2

ISa $85/2940 ft2

IS actual ft2

IS

Baltimore City $12-36/quarter actual ft2

IS $18/quarter

minimum IS/ERUb (1050 ft

2

)

Baltimore $21-39/year type of dwelling $69/2000 ft2

IS actual ft2

IS

Carroll none none

Charles $43/year flat rate $43/year flat rate

Frederick $0.01/year flat rate $0.01/year flat rate

Harford $12.50/year

phase in, ($125)

IS : residential

property size $0.07/500 ft

2

phase in, ($7)

actual ft2

IS

Howard $15-90 prop. size/ ft2

IS $15/500 ft2

actual ft2

IS

Montgomery $88.50/ERU

(2406 ft2

)

ERU, type of

property

$88.50/ERU

(2406 ft2

)

ERU, type of property

Prince

Georges

$33-62/year ESUc (2465 ft2

),

zoned lot size

variable total number of ESU

(2465 ft2

)

aIS (impervious surface) bERU(Equivalent Residence Unit) is determined to be the median of impervious surfaces for all

single family homes within the county. cESU (Equivalent Service Unit) is determined to be the median of impervious surfaces for all

single family homes within the county.

As stated in the Introduction, 75% of Maryland voters surveyed were unsure of the fee structure

within their local jurisdiction, with most unwilling to hazard a guess (Raabe 2015). When looking

at the information in Table 3, it is no surprise that confusion reigns. There is no consistency in

the fee structure or the means by which they are assessed.

Some counties base their fee structure on flat rates, while other counties' rates are determined

by a designated amount of impervious surface, again with no uniform structure. In Baltimore

County, the fee structure was set based on analysis of the amount of additional funding (beyond

what is already funded) needed to meet both the anticipated NPDES – MS4 permit

requirements, the anticipated General Industrial Stormwater Discharge Permit requirements for

county owned property, and the reductions needed to meet the Baltimore County stormwater

allocation for the Chesapeake Bay TMDL. (Baltimore County 2014) Carroll County successfully

proposed to MDE that their stormwater mitigation projects be funded through an increase in

property tax. Frederick County has done the same, but has initiated the nominal charge of

$0.01 to satisfy the letter of the law.

Given the amount of monies required throughout the state for stormwater mitigation projects, it

is vital that sufficient funds be generated and made available. In the case of Maryland's 10

largest jurisdictions there is an abject failure to do so (Table 4). In every jurisdiction, the funds

generated by current stormwater fees do not meet the budget requirements, resulting in

shortfalls across the board.

Table 4. Comparison of funds generated from application of stormwater mitigation fees to

costs associated with implementation of MS4 programs.

Jurisdiction Approximate Funds

Generated by SW

Fees

Funds Budgeted for

MS4 Programs FY

2014

Approximate Budget

Shortfall

Anne Arundel $22,000,000 $26,500,000 $4,500,000

Baltimore City $24,000,000 $12,870,000 $59,000,000

Baltimore $23,000,000 $62,000,000 $39,000,000

Carroll $0 $3,145,000 (FY 2012) $3,100,000

Charles $2,100,000 $3,400,000 $1,300,000

Frederick $48000 $980,420 $930,000

Harford $1,300,000 $10,000,000 $8,700,000

Howard $10,000,000 $23,727,000 $14,000,000

Montgomery $18,500,000 $51,728,000 $33,500,000

Prince Georges

$7,900,000 $38,058,000 $30,000,000

Summary Statement

The effects of pollutant loadings on the Chesapeake Bay are well documented. Wholesale

changes in population, land use, and impervious surface are taking place statewide, and are

projected to continue on an upward trend. There are both federal and state policies in place to

address stormwater mitigation and funding, but there are inadequacies and inconsistencies in

the current means of generating funds.

HB 987 was intended to reduce the possibility of inadequate funding for stormwater mitigation.

Table 4 clearly illustrates that that has not happened. The Maryland Department of Legislative

Services found that several of the 10 jurisdictions have long term funding shortfalls for their

stormwater program, even with the established stormwater fee. (Center for Watershed

Protection 2013)

Although HB 987 implements a fee, and is the equivalent of a service charge, opponents quickly

dubbed it as "the rain tax", a title which has been polarizing and very effective in gaining support

in efforts to repeal the law. As referenced in the Introduction, 50% of Maryland voters surveyed

believe they will be taxed when it rains. The opponents of HB 987 have done an exceptional job

in mislabeling and misrepresenting the purpose it serves. There has been a failure at multiple

levels, both county and state, in providing effective communication and clarification to the

stakeholders responsible for the fee.

Recommendations Given the environmental pressures and fiscal challenges facing all jurisdictions within Maryland, it is not only necessary, but critical, that there be a dedicated means of funding stormwater mitigation. In order for successful funding efforts to be implemented the following changes should occur: A. Current policies and methods for assessing stormwater mitigation fees should be revamped and uniformly applied throughout the state. Stormwater runoff and its associated pollutant loadings are statewide problems requiring

statewide solutions. All jurisdictions within Maryland have stormwater runoff reduction goals

that must be met, regardless of population or Phase designation. Jurisdictions should continue

to determine the priority and approach they would like to take in order to implement these

reductions, however the way in which the implementations are funded needs to change.

Frederick County, for example, placing a dedicated $48,000 into stormwater mitigation funding

and relying on monies from increased property taxes and the general fund to meet the lion's

share of associated costs will not suffice. Most applications of price instruments (fees) have

failed to have the incentive effects promised in theory, either because of the structure of the

systems or because of the low levels at which charges have been set. (Parikh et al. 2005)

A more adequate, stable, and understandable fee structure could be set up based on tiered IS

zones within jurisdictions. This would be akin to a topographical IS map. Where standard topo

maps designate zones by elevation, topo IS maps would designate zones and boundaries

based on the percent of IS within an area (Fig. 7).

New policy would be set, authorizing MDE to establish both the zonal, and fee structures for

each jurisdiction. This should not prove difficult, as jurisdictions within the state already provide

MDE with GIS data showing the amount of IS jurisdiction wide, as well as having ample data

readily available for cost and funding analyses. MDE would set threshold, and standard

minimum fees for each zone in each jurisdiction. Fees would be based on the amount of

impervious surface within a designated zone, and a cost analysis of each jurisdiction's

stormwater expenditures. An example of this fee structure can be seen in Table 5.

At the discretion of a jurisdiction, fees within a given zone could be set higher than the standard

minimum, however, they could not be dropped below the minimum zonal value calculated by

MDE. Although zonal rates would not be allowed to decrease, decreases in measured IS

and/or decreased loading rates due to BMPs could result in an IS zonal downgrade and

reduction in fees for all stakeholders within the downgraded zone, thus incentivizing mitigation

efforts. While it is likely there would be a number of legal challenges to this type of action,

questions of sovereignty aside, uniformity of purpose will lead to a more efficient system.

Figure 7. Example of proposed tiered IS zone structure. Image attributable to googlemaps: https://www.google.com/maps

Table 5. Comparative proposed fee structures for stakeholders within an urbanized and rural county in Maryland

B. Effective educational and economic incentivization plans should be developed so as

to more fully engage all stakeholders.

Besides the fact that having roughly half of the state's population believes they are being taxed

when it rains, 84% of voters in the 14 counties that are not subject to the fee said they were not

sure how much the fee would be in their county (Raabe 2015). . . the correct answer is $0.

There is a disturbing lack of understanding by a large proportion of the populace. This can best

be addressed through a multi-faceted campaign that effectively utilizes traditional and social

media, in combination with educational materials that clearly and concisely define stormwater,

mitigation, and funding issues. Ideally, this would be accomplished through the use of concrete,

"real life" examples that show how stormwater runoff and mitigation directly impacts

IS Zone (%IS)

Baltimore County Fee Structure

Resident/Business ($/yr)

Garrett County Fee Structure

Resident/Business ($/yr)

90-100 50/100 25/50

75-89 40/90 20/45

60-74 30/80 15/40

90-100% IS

75-90% IS

60-75% IS

stakeholders, and highlights the benefits gained from successful mitigation efforts. The city of

Philadelphia has taken a number of steps in a similar vein, and are now reaping the benefits of

their efforts: $120 million/year in revenue, development of hundreds of "green infrastructure"

projects, reduction and treatment of stormwater. (Center for Watershed Protection 2013) The

successes seen in Philadelphia could serve as both impetus and catalyst for educational efforts

in Maryland.

Closely linked to both policy and education is incentivization to become a vested participant in

stormwater mitigation. Of the jurisdictions contributing mitigation fees, only a limited number

have initiated rebate or credit programs, while others are in the process of developing such

programs. Reimbursement for implementation of stormwater management practices would

result in some percentage of implementation costs being given back to the stakeholder. In other

areas of the US, this type of policy already exists. It has been shown that if the rebate offered is

high enough to encourage stormwater abatement behavior, a stormwater runoff reduction goal

can be met at a relatively low cost to the utility and at a low cost to the average property owner.

(Roy et al. 2008)

Credits should be offered for practices as long as they are maintained, and effective in reducing

stormwater. This could equate to a zonal reduction in IS and a reduced fee, potentially

generating greater community involvement so as to lower a zonal tier. As credits are offered as

part of the fee structure for stormwater mitigation funding, the ability to reduce damage to the

watershed, protect aquatic habitat, and improve overall water quality, will increase. The end

result would be seen as a decrease in the costs associated with stormwater mitigation. As

further incentive, increasing credit rewards could be offered to those who make improvements

beyond an established minimum. (Doll, Scodari, and Lindsey 1998)

An added benefit to establishing IS zones and educating and incentivizing stakeholders would

be the ease in implementing a flow regime approach to stormwater runoff. The idea behind this

approach is to re-naturalize hydrologic processes on a smaller individual scale, while working to

restore natural low and high flow hydrology at the catchment scale. (Fletcher, Vietz, and Walsh

2014) Effectively implementing stormwater reduction is an important step, one which would

hasten the success in meeting the achievable goals of fishable and swimmable State waters,

and a healthy Chesapeake Bay.

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