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A Discussion on the Watershed Protection and Restoration Program

In 2008, the United States Federal Government, through the authority vested in the Environmental Protection Agency, mandated a cleanup of the Chesapeake Bay (Executive Order 13508: Chesapeake Bay Protection and Restoration).

Previous voluntary measures requested from all of the states draining to the Chesapeake Bay did not provide sufficient positive results. Therefore, the EPA set forth new regulations that apply to the states of Maryland, Pennsylvania, New York, Delaware, and West Virginia; the Commonwealth of Virginia; and the District of Columbia. In order to achieve cleaner water draining into the Chesapeake Bay, the EPA prescribed a “pollution diet” – known as the Chesapeake Bay Total Maximum Daily Load (TMDL) – that mandated reduction in pollutant loading into the Chesapeake Bay from all of these states. Each state was required to submit a detailed plan outlining their actions to reduce the loading of pollutants into the Chesapeake Bay by the year 2025. This Watershed Implementation Plan is referred to as WIP.

The WIP program is comprised of three phases, which are scheduled to occur between 2010 and 2025.

Phase 1, or WIP1, which required each state to identify generalized strategies for addressing pollutant target goals, was submitted to the Federal Government by the States and reviewed by the EPA in 2010. Upon acceptance and approval of the WIP1 program, the EPA then required a more detailed approach specifically identifying how they would achieve these goals – Phase 2. Specifically in Maryland, through the Maryland Department of the Environment (MDE), the State of Maryland divided the approved WIP1 program responsibilities among its counties and municipalities.

Each county and municipality (local jurisdiction) was then required to put forth its own strategic plan known as Watershed Implementation Plan Phase 2, or WIP2. WIP2 required a very detailed program of obtaining pollutant level reduction into the Chesapeake Bay, measuring phosphorus, nitrogen and suspended solids, as well as identifying specific controls and practices that will be implemented no later than 2017 to meet the EPA’s interim water quality goals.

Lastly, the EPA expects the states and the District to submit Phase 3, known as WIP3, in 2017 with actions and controls that will be implemented between 2018 and 2025 to achieve the ultimate water quality standards for the Chesapeake Bay.

Within the State of Maryland, the two local jurisdictions of Anne Arundel and Caroline Counties, were selected by MDE to fully understand the impact of this Federal mandate through a pilot program. These two Counties were required to submit their detailed WIP2 report to MDE, including estimated costs to achieve the EPA and MDE mandate. The projected costs for each were staggering. As an example, Anne Arundel County cleanup measures to reduce their pollutant loading into the Chesapeake Bay were estimated to be $2.3billion.

How are these programs being funded?

With the State’s adoption of the Watershed Protection and Restoration Program (HB987 – April, 2012), specific jurisdictions are now mandated to establish their own fee called a Water Protection Restoration Fund (WPRF) or Stormwater Management (SWM) Utility Fee, which would be assessed based on a property owner’s annual property tax bill. Jurisdictions not affected by this mandate, are looking to establish their own version of a SWM utility fee to raise funds to address their WIP requirements. The following jurisdictions, subject to an NPDES Phase 1 MS4 permit and to the WPRF, are implementing their respective program on July 1, 2013 coined the “Rain Tax”: Montgomery County Prince George’s County Charles County Frederick County Baltimore County Howard County Carroll County Baltimore City Anne Arundel County Harford County In addition to these jurisdictions, several other municipalities currently have, or will be proposing, similar programs (i.e. City of Rockville, City of Gaithersburg, and City of Annapolis). In accordance with HB-987, each of the above listed jurisdictions shall establish a process to allow property owners to reduce their respective rain tax fee.

These processes vary by jurisdiction, however most have provisions for receiving reduction credits for non-residential properties.

Many jurisdictions are currently setting up a policy where a non-residential property owner may appeal the rain tax assessment for a fee reduction if the property owner can demonstrate that the jurisdiction’s calculation for on-site impervious surface is incorrect. Further, some jurisdictions offer a fee reduction of up to a 50% - 60% maximum if the property owner can certify that they have existing stormwater BMPs in place that are functioning as designed, being properly maintained, and are managing a specific drainage area to the facility. Credit reductions could range (10% - 60% max) depending on what the BMP is managing (Water Quality volume requirements, ground water recharge requirements, and/or channel protection volumes) and when it was constructed. For commercial properties with large amounts of impervious cover, such a reduction of an annual fee could be significant. Along with a fee credit or reduction program, most jurisdictions also have in place or are establishing an appeal process. This process differs from the fee reduction program where fees are offset by the placement and maintenance of SWM features. In the appeal process case, an appeal can be submitted should a property owner feel their property has been improperly assessed; misidentification of owner, error in equivalent residential unit (ERU) calculation or estimate of impervious surface totals are examples of a basis for an appeal. Finally, the regulations developed within the various jurisdictions include a financial hardship exemption for qualifying property owners.

Soltesz understands these latest programs and can navigate clients through determining which approach to take in ultimately reducing the impact of the rain tax on their properties. We can provide fee verification services and credit qualification services. Please contact us for more detailed information specific to your local jurisdiction.