Harford County could face stiff fines and other enforcement actions from the state and federal governments if county officials repeal a local stormwater management fee, also known as the "rain tax," the state government's top environmental official warned Harford officials last month.
Some Harford officials, led by County Executive David Craig, have vowed to repeal the watered down version of the state-mandated fee they passed earlier this year, a move that could theoretically lead to thousands of dollars in daily fines.
Craig said once again Tuesday that the stormwater fee legislation "was a bad bill from the start."
But Harford County Council President Billy Boniface says he takes seriously the threats of fines and other sanctions and wants to "make darn sure" the county doesn't open itself up to any such liability, before he will go along with a repeal effort.
He and other council members debated among themselves and with Craig's aides Tuesday night about how far the county should go in defying the state's mandate to enact a stormwater remediation fee.
Earlier in the day Tuesday, the council president said he believes the county has to meet federal requirements and, in addition to facing fines, could risk losing its ability to issue stormwater permits for projects, "which could have an pretty hefty economic impact on us."
"It's not something we can keep shoving under the rug," he said.
Up to $32,500 a day
Boniface sent a letter to the Maryland Department of the Environment in early September, seeking guidance on what could happen if Harford officials repeal the unpopular fee. Secretary Robert M. Summers responded to Boniface's query in an Oct. 22 letter:
"Notwithstanding our concerns that Harford County elected to defer the collection of all but 10 percent of its proposed Watershed Protection and Restoration fee, a complete repeal of the program would place the county in non-compliance with State law, and could lead to civil enforcement action by the Attorney General's Office," Summers wrote.
The MDE secretary also warned that, in the long term, Harford County could be found to be in violation of the federal Clean Water Act and face fines and penalties of "up to $32,500 per day for each violation," if it did not meet the requirements of its Municipal Separate Storm Sewer System, or MS4, permit, which include fully funding stormwater management projects.
The permit is issued by the state, which works in conjunction with the federal Environmental Protection Agency, and the requirements have become more stringent as EPA officials require communities in the Chesapeake Bay watershed to meet a "federal pollution diet" to protect the bay, Samantha Kappalman, director of communications for MDE, said Tuesday.
The stormwater fee is designed to help counties fund local stormwater management projects, she said.
"Stormwater pollution accounts for 18 percent of the pollution that flows into the Chesapeake Bay, so less pollution's the solution and that's what these stormwater management plans are meant to accomplish," Kappalman said.
Craig unmoved
Craig, who is running for governor, has called for the council to repeal the local fee, which is being charged to businesses, residents and industry. He was unmoved by the latest threats to the county from MDE.
"These are the same penalties that the state has threatened all along, and is partly why we provisionally attempted to comply with the state's directive," the county executive said in an e-mailed statement through an aide. "However, implementation of the bill has proven infeasible, given the lack of clarity on how to address everything from projects to credits."
Harford's council members voted during the spring to allow homeowners to pay only 10 percent of a flat $125 stormwater fee – initially proposed by Craig – and then established a task force to study the fee and make recommendations to the council on an appropriate fee to charge.
"They're still meeting," Boniface said of the Harford task force members. "They're working through those issues to come up with some recommendations for us."
Craig went along with the temporary reduction but then came out in favor of repealing the local fee, saying state legislators should reconsider their prior actions.
Debating repeal
Opinions were divided on during the council's public hearing Tuesday night on the repeal legislation, which is co-sponsored by Craig and Councilmen Dion Guthrie and Joe Woods.
Representing Craig, Public Works Director Tim Whittie and legislative liaison Nancy Giorno said the county's task force has been hamstrung by inconsistencies and lack of clarity in the state legislation.
They said repealing the county's fee would allow the county to work with the state on better legislation all around.
Giorno wondered, for example, what the state law means that a program must be established by July 2013.
"Does it mean we have to have a fee in July 2013?" she asked, adding that the state enabling bill is "very difficult to implement."
"No one seems to be on the same page. We just don't believe this is the fair bill for the citizens of this county and we're hoping this bill can be repealed in the next week or two," Giorno said.
"We can help the state craft a better bill that will help with the protection of the bay," she said. "There is just too much uncertainty and too much inconsistency."
Whittie said he would have asked for two task forces, one that looks at fees and one at credits.
"You can't develop a fee when you don't know what the credit is going to be," Whittie said.
Calling the bluff
Councilman Jim McMahan said it would put taxpayers in too much danger with the state threatening to fine jurisdictions thousands of dollars a day for not having a stormwater fee.
Giorno said she did not believe that would actually happen, as the state wants to sit down with counties and work with them.
"I don't believe our taxpayers have $10,000 a day to put into a risk factor that says, 'We'll play the game here and see if they're bluffing or not,'" McMahan said.
"I don't think taking the entire thing [county fee] off the table is the wise thing to do," he said.
Woods, however, said he hopes repealing the local fee will allow the county to revisit it and get more help and involvement on the state level.
Woods also said he does not believe the state will fine the county, either, based on what a Maryland Department of the Environment official told the council at an earlier presentation.
Earlier in the day, Boniface had said he did not expect the council to act on the repeal legislation right away. "It will be the at least the next legislative session," he said.
'Well meaning' but...
Harford is one of 10 Maryland jurisdictions that must establish the fee to be in compliance with the Watershed Protection and Restoration Act of 2012.
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Northern Harford State Sen. Barry Glassman, who voted against that legislation and who is running for county executive, said during a Joppa/Joppatowne Community Council meeting Monday night that "some of this legislation is well meaning," in light of the pollution reduction goals, but added: "It was never well thought out, and they did the classic one-size-fits-all, but every county is different."
MDE's Kappalman, however, said legislators who crafted the law did realize each county is different and drafted it to require each jurisdiction to develop its own stormwater management plan based on local issues and to establish its fees accordingly.
She also said the 10 percent payment option "doesn't meet with the intent of the law" and said the EPA could take enforcement actions against the state if counties do not comply, including taking away the right of the state to issue permits through the counties.
"The bottom line is that these new stormwater permits are a critical component of Maryland's effort to protect and restore water quality in the state," Kappalman said.
But Craig said Frederick and Carroll counties also recently received letters from two different state agencies threatening two very different penalties, further evidence that the state has no idea what it is doing on this issue.
"We all want a clean and healthy Bay, but asking 10 counties to foot the bill for cleaning up runoff in a watershed that spans six states and D.C. is not logical," he said. "The state needs to go back to the drawing board. If the state is able to come up with a more workable framework, we would be happy to reexamine the issue."
Aegis staff member Bryna Zumer contributed to this article.