Agenda Item 8

January 15,2013

Public Hearing

MEMORANDUM

TO:

FROM:

County Council

*,Michael Faden, Senior Legislative Attorney

SUBJECT:

Public Hearing:

Bill 34-12, Stormwater Management

Charge

Water Quality Protection

Bill 34-12, Stormwater Management - Water Quality Protection Charge, sponsored by

the Council President at the request of the County Executive, was introduced on November 27,

2012. A Transportation, Infrastructure, Energy and Environment Committee worksession is

tentatively scheduled for January 17,2013 at 9:30 a.m.

Bill 34-12 would

• subject all properties not otherwise exempt under state law to the Water Quality

Protection Charge;

• allow certain property owners to obtain a credit equal to a certain percentage of the

Charge;

• exempt certain property owners that are able to demonstrate substantial financial

hardship;

• provide for a phase-in of certain increases to the Charge; and

• generally amend County law regarding the Water Quality Protection Charge.

This packet contains:

Bill 34-12

Legislative Request Report

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Bill No.

34-12

Concerning: Stormwater Management ­

Water Quality Protection Charge

Revised: 11-20-12

Draft No.

L

Introduced:

November 27,2012

Expires:

May 27.2014

Enacted: _ _ _ _ _ _ _ _ __

Executive: _ _ _ _ _ _ _ __

Effective: _ _ _ _ _ _ _ _ __

Sunset Date: -:.N-'-'o::.:..:n=e_ _ _ _ __

Ch. _ _, Laws of Mont. Co. _ __

COUNTY COUNCIL

FOR MONTGOMERY COUNTY, MARYLAND

By: Council President at the Request of the County Executive

AN

ACT to:

(1)

(2)

(3)

(4)

(5)

subject all properties not otherwise exempt under state law to the Water Quality

Protection Charge;

allow certain property owners to obtain a credit equal to a certain percentage of

the Charge;

exempt certain property owners that are able to demonstrate substantial financial

hardship;

provide for a phase-in of certain increases to the Charge; and

generally amend County law regarding the Water Quality Protection Charge.

By amending

Montgomery County Code

Chapter 19, Erosion, Sediment Control and Storm Water Management

Sections 19-20, 19-28, 19-29, 19-35

Boldface

Underlining

[Single boldface brackets]

DQuble underlining

[[Double boldface brackets]]

* * *

Heading or defined term.

Added to existing law by original bill.

Deletedfrom existing law by original bill.

Added by amendment.

Deletedfrom existing law or the bill by amendment.

Existing law unaffected by bill.

The County Council for Montgomery County, Maryland approves the following Act:



BILL

No. 34-12

Sec.

1.

Sections 19-20, 19-28, 19-29 and 19-35 are amended as follows:

19-20.

Purpose of article; scope.

*

*

*

[Associated nonresidential property: A nonresidential property from which

stormwater drains into a stormwater management facility that primarily

serves one or more residential properties.]

*

*

*

Impervious area

or

impervious surface:

Any surface that prevents or

significantly impedes the infiltration of water into the underlying soil,

including any structure, building, patio, [deck,] sidewalk, compacted gravel,

pavement, asphalt, concrete, stone, brick, tile, swimming pool, or artificial

turf.

Impervious surface also includes any area used by or for motor

vehicles or heavy commercial equipment, regardless of surface type or

material, including any road, [road shoulder,] driveway, or parking area.

*

Person:

An

individual~[,

*

*

corporation, firm, partnership, joint venture,

agency, organization, municipal corporation,]

!!

legal entity; or

!!

department,

agency, or instrument of the County or.,. [state agency, or any combination of

them] to the extent allowed

Qy

law, of federal, state, or local government.

*

*

19-28.

*

*

Inspection and maintenance of stormwater management systems.

*

*

(b)

Maintenance ofnew stormwater management systems.

(1)

Before issuing a sediment control permit to develop any

property that requires implementation of best management

practices, the Department must require the property owner to

execute an easement and an inspection and maintenance

Q

~

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BILL No. 34-12

agreement that is binding on each later [owner[s]] owner of the

land to be served by any private stormwater management

system.

(2) The easement must give the County a perpetual right of access

to the stormwater management system at all reasonable times to

inspect, operate, monitor, install, construct, reconstruct, modify,

maintain, clean, or repair any part of the storm water

management system

[within]

in the area covered by the

easement as needed to assure that the system remains in proper

working condition under approved design and environmental

standards.

The inspection and maintenance agreement must

require the owner to be responsible for all maintenance of any

completed

ESD

treatment

system

and

nonstructural

maintenance of anyon-site stormwater management facility if

the development consists of residential property or [associated]

of nonresidential

property

that

contains

a

storm water

management facility built or retrofitted

Qy

the County_

Otherwise, the inspection and maintenance agreement must

require the owner to be responsible forever for all maintenance

of the entire on-site stormwater management system, including

maintaining in good condition, and promptly repairing and

restoring, each ESD practice, grade surface, wall, drain, dam

and structure, vegetation, erosion and sediment control

measure, and any other protective device [forever].

(3) The owner must record the easement and agreement

In

the

County land records and deliver a certified copy of each

recorded document to the Departments of Permitting Services

4

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BILL No.

34-12

and Environmental Protection before the Department may issue

a completion certificate.

(4) After the Department Issues a completion certificate for

construction of a new stormwater management. facility, the

County must perform all structural maintenance on the facility

if the facility serves residential property or [associated] is

~

facility built or retrofitted

.by

the County that serves

nonresidential property.

No other person may perform

structural maintenance on a stormwater management facility

that the County is required to structurally maintain without the

County's written consent.

(5) Any repair or restoration and maintenance performed under this

Section must comply with each previously approved or newly

submitted plan and any reasonable corrective measure specified

by the Director of Environmental Protection.

(c)

Maintenance ofexisting stormwater management ffacilities] systems.

(1) The owner of a stormwater management facility that is not

subject to

subsection (b) must perform all

structural

maintenance needed to keep the facility in proper working

condition. The owner of a residential property or [associated]

nonresidential property that contains

~

~

stormwater management

facility built or retrofitted

.by

the County, or a homeowners'

association that includes the residential property, may execute a

stormwater management easement granting the County a

perpetual right of access to inspect, operate, monitor, install;

construct, reconstruct, modify, maintain, clean, or repair any

part of the stormwater management facility [within] in the

hi:/..

W\B1LLS\1234 Stormwater Management-WQPc\Bill (Final) (2). Doc

4=l



BILL No. 34-12

easement as needed to assure that the facility remains in proper

working condition under approved design standards.

(2) If the owner of a stormwater management facility grants a

storm water management easement to the County, the owner

must make any structural repairs needed to place the facility in

proper working condition, as determined by the Department of

Environmental Protection, before the County enters into an

inspection and maintenance agreement with the owner that

[obligates] makes the County [to assume responsibility]

responsible for structural maintenance of the facility. After the

owner and the County have agreed that the County will [assume

responsibility] be responsible for structural maintenance of the

facility, the owner must record in the County land records the

easement and any other agreement executed in conjunction with

the easement that binds any later owner of the land. The owner

must deliver a certified copy of each recorded document to the

Department of Environmental Protection.

(3) After the Department of Environmental Protection receives a

certified copy of the easement and agreements, the County must

structurally maintain and inspect the facility as provided in

subsection (b).

ill

If

f1

property contains an ESD treatment system that was

installed or retrofitted

Qy

the County under

f1

sediment control

permit, the inspection and maintenance agreement may require

the County to maintain the system.

*

19-29.

*

*

Stormwater management loan program.

t..5-I

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Stormwaler Managemenl-WQPOBill (Final) (2).Ooc



BILL No. 34-12

(a) The Department of Environmental Protection must create a

Stormwater Management Loan Program. The Program must provide

direct loans to eligible homeowners' associations and other residential

[and associated nonresidential] property owners to:

(1) make structural repairs to restore a stormwater management

facility to acceptable design standards before the owner

petitions the County to assume responsibility for future

structural maintenance of the facility under Section 19-28(d), or

(2) cover the cost of abandoning a facility under Section 19-28(e).

*

19-35.

*

*

*

*

Water Quality Protection Charge.

*

(b) The Charge must be imposed on each [residential property and

associated nonresidential) property, as specified in regulations

adopted by the Executive under Method (1) to administer this Section.

The regulations may define different classes of real property,

depending on the amount of impervious surface on the property,

stormwater

runoff

from

the

property,

and

other

relevant

characteristics, for purposes of applying the Charge.

A property

owner may request

f!:

credit equal to

f!:

percentage, set

Qy

regulation, of

the Charge if the property contains

f!:

storm water management system

that is not maintained

Qy

the County or the owner participates in

f!:

County-approved water quality management practice or initiative. To

receive the credit, the property owner must submit

f!:

request to the

Director of Environmental Protection in

f!:

form prescribed

Qy

the

Director not later than October

n

of the year before payment of the

Charge is due. Any credit granted under this subsection is valid for

~

J

~

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BILL

No. 34-12

years. The owner of an owner-occupied residential property that is

able to demonstrate substantial financial hardship may request an

exemption from the Charge for that property based on criteria set

Qy

regulation.

submitting

The owner-occupant may apply for the exemption

Qy

~

written request to the Director of Environmental

Protection not later than April

Charge is due.

1

of the

year before payment of the

*

Sec. 2.

Implementation.

(a)

*

*

Notwithstanding County Code Section 19-35(b), as amended by

Section 1 of this Act, the Director of Finance must phase in the Water

Quality Protection Charge as provided in this Section.

(b) The Director must phase in over 3 years any increase in the Charge

that results from the application of Section 19-35(b), as amended by

Section 1 of this Act, or any regulation adopted under that Section, by

including:

(1) only one-third of the additional impervious surface that has

been added to the calculation of the Charge in the fiscal year

that begins on July 1,2013;

(2) only two-thirds of the additional impervious surface that has

been added to the calculation of the Charge in the fiscal year

that begins on July 1,2014; and

(3) the full amount of the additional impervious surface that has

been added to the calculation of the Charge in the fiscal year

that begins on July 1, 2015.

(c)

The phase-in established in this Section does not apply to any portion

of the Charge that results from the inclusion in the calculation of the

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BILL

No. 34-12

Charge of any impervious surface area that is created after this Act

takes effect.

(d) To receive a credit under Section 19-35(b) for the fiscal year that

begins on July 1, 2013, the property owner must submit a request to

the Director of Environmental Protection on a form prescribed by the

Director not later than July 31, 2013.

Approved:

Nancy Navarro, President, County Council

Date

Approved:

Isiah Leggett, County Executive

Date

This is a correct copy o/Council action.

Linda M. Lauer, Clerk of the Council

Date

is-'

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LEGISLATIVE REQUEST REPORT

Bill 34-12

Stormwater Management - Water Quality Protection Charge

DESCRIPTION:

Amends the law governing the Water Quality Protection Charge by

requiring all property owners not otherwise exempt under state law to

pay the Charge, allowing property owners to obtain credits for

undertaking certain water quality protection measures on their

'properties, and authorizing financial hardship exemptions for certain

owner-occupants of residential properties.

County law does not currently authorize imposition of the WQPC on

the owner of any nonresidential property unless a portion of that

property's impervious area drains to a residential stormwater

treatment facility. The existing law classifies these properties as

associated nonresidential properties ("ANRs").

The County's

inability to levy the Charge on nonresidential properties other than

ANRs has resulted in a large number of properties whose impervious

surfaces contribute to water quality impairments while their owners

are effectively exempt from paying into the Water Quality Protection

Fund despite benefiting from the County's watershed restoration and

water quality remediation initiatives.

In 2010, the County received its third Municipal Separate Storm

Sewer System ("MS4") Permit from the Maryland Department of the

Environment. This permit, which is mandatory under the Federal

Clean Water Act, requires the County to retrofit 4,300 impervious

acres not currently treated to the maximum extent practicable. The

intent of this Bill is to make the WQPC more equitable by spreading

the cost of restoration over all properties contributing to the problem

and whose owners benefit from the County's water quality protection

programs.

The existing law provides credits specifically geared to property

owners that have installed stormwater treatment facilities on their

properties. The credits specified in the bill are intended to reduce the

amount of the Charge paid by property owners whose actions have

reduced stormwater runoff and thereby assisted the County's efforts

to comply with its MS4 Permit.

Finally, state law enacted in 2012 mandates that County law exempt

property owners who can demonstrate that paying the Charge would

create a substantial financial hardship.

PROBLEM:

GOALS AND

OBJECTIVES:

To make the WQPC more equitable by spreading the cost of

implementing the pollution control measures required under the

County's MS4 Permit to all property owners not otherwise exempt

under state law; create a systems of credits to encourage property

owners to participate in certain water quality management practices;

and bring County law into compliance with state law as it pertains to

locally levied charges to pay for stormwater remediation.

Department of Environmental Protection, Department of Finance

See Fiscal and Economic Impact Statement

See Fiscal and Economic Impact Statement

COORDINATION:

FISCAL IMPACT:

ECONOMIC

IMPACT:



EVALUATION:

EXPERIENCE

ELSEWHERE:

To be detetmined.

All the stotmwater utilities run by other jurisdictions surveyed

throughout the County charge nonresidential properties.

Steven Shofar, Division Chief, Watershed Management Division,

Department of Environmental Protection (7-7736)

Does not apply in Rockville and Takoma Park. The County collects

the Charge for Gaithersburg and provides the funds to the city minus

an administrative fee.

Class A

SOURCE OF

INFORMATION:

APPLICATION

WITHIN

MUNICIPALITIES:

PENALTIES: