Repeal the Rain Tax and Save the Bay

Last week Governor Hogan unveiled legislation that would repeal Maryland’s “Rain Tax”. The “Rain Tax” allows local governments to collect fees for stormwater clean- up from property owners. Currently, the “rain tax” is imposed on the ten jurisdictions of Maryland that are within Chesapeake Bay watershed. These jurisdictions are Baltimore City and nine counties; Montgomery, Frederick, Harford, Howard, Anne Arundel, Prince George’s, Baltimore, Carroll and Charles.

The current “rain tax” gives full authority for those jurisdictions to determine how much “rain tax” should be imposed on property owners. Simply put, each county’s local government decides arbitrarily what is appropriate for the residents to pay. The law only says “requiring each a county and or municipality to establish and collect a stormwater remediation fee in accordance with this Act; requiring each a county and or municipality to set the amount of a residential stormwater remediation fee in a certain manner; authorizing a county or municipality to use certain calculation methods to set a stormwater remediation fee”.

Governor Hogan’s proposed legislation will enable local governments to decide whether or not they still want to impose the “rain tax” on their residents for stormwater clean- up. It is important to stress that this proposed legislature will not remove responsibility from the local officials prevent polluted stormwater from reaching the Chesapeake Bay.

Montgomery County, MD has multiple taxes justified in the name of the Bay such as “bag” tax that is imposed on paper (biodegradable) and plastic bags, a flash tax and water quality charge but the Bay has not been fixed. But when you ask the average Montgomery County residents that call themselves environmentalists where all the money goes that have been collected for the Bay most of them have no idea but assume that we need to collect more money to save the Bay. One of the Montgomery County Delegates, who calls himself a progressive Democrat, this past election ran and won attacking Maryland farmers as if farmers are responsible for the Bay pollution. There is a large scientific community in Montgomery County (Great Seneca Science Corridor) that is silent on this issue for a good reason for it. There are better ways to save the Bay but a little history would be in order.

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In 1972, Congress passed the Clean Water Act (CWA). In 2010, the Obama Environmental Protection Agency (EPA) established a new regulation “Chesapeake Bay Total Maximum Daily Load (TMDL)” under the federal Clean Water Act. The purpose of the new regulation was to reduce pollutants in the Chesapeake Bay. In May of 2012, based on these federal regulations O’Malley signed into law MD House Bill (HB987). One of the first counties to implement the “rain tax”, charging the property owners based on the amount of impervious area that can’t absorbed the stormwater was Montgomery County. The county has had water quality charge on the property owners for many years prior to the rain tax. The “rain tax” enables Montgomery County government to increase water quality charge that is also a phased-in tax that scheduled to increase every year. The “rain tax” had a botched roll out in Montgomery County because the estimates of the rain tax were based on the outdated satellite images. According to some estimates it would cost around $14.4 billion dollars for Maryland to reduce the pollutants in the Bay.

The main pollutants of the Chesapeake Bay are nitrogen, phosphorus and sediments. However, the Maryland Department of Environment mainly focused on the reduction of nitrogen.  According to the Chesapeake Bay Program the main sources of nitrogen pollution are: the Conowingo Dam on the Susquehanna River 71,000 tons; Agriculture 9,975 tons; Wastewater treatment plants (WWTP) 7,185 tons; stormwater 4,740 tone and septic 1,500 tons. The total annual load of nitrogen is 169,000 tons.
Firstly, the biggest nitrogen polluter in the Bay is  the  Conowingo Dam on the Susquehanna River responsible for 71,000 tons/year of nitrogen in the Bay but the environmental groups and the Maryland Department of the Environment were silent on it. According to the Maryland Policy Institute’s published report  “A Better Way to Restore the Chesapeake Bay”, the estimated over $14 billion for nitrogen mitigation is made up mostly, $13.5 billion in all, in mitigating WWTP, stormwater, and septic systems. But together they are only responsible for 13,425 tones/year or 7% total nitrogen pollution in the Bay. James Simons, the author of the ”A Better Way to Restore the Chesapeake Bay” report, stated that ”the discharges from Conowingo have increased as the dam has gradually lost its ability to trap sediments and nutrients since construction in 1928. Currently there is an estimated 174 million tons of sediment behind the dam with 3 million more added each year, which Simons says has been largely ignored in the EPA mandate”. At the end of the day, the rain tax will not solve the problem because the dam is too old and large amount of nitrogen will still flow into the Chesapeake Bay. Thus, solution #1 is to fix the Conowingo Dam on the Susquehanna River.

Secondly, wastewater treatment plants are responsible for 7,185 tons of nitrogen. The Clean Water Act (CWA) was based on an outdated Biochemical Oxygen Demand (BOD) test that was developed around 1920 and has many deficiencies. In short, BOD5 only measures 5 day reading of the biochemical processes of sewage water as opposed to 30 days reading as it requires for full analysis of the biochemical processes of carbonaceous waste and nitrogenous waste. The EPA tried to correct the mistake in 1984 used the same BOD5 but with a minor modification (C-BOD5) but again used only 5 day tests that doesn’t address the all biochemical processes. Peter Maier, PhD, PE in his blog described the deficiencies of the CWA tests and challenges that wastewater treatment plan faces . Simply put, imagine if a biochemical test observed drug activity only for 5 days as opposed to 30 days.  The biochemical processes are slow and 5 days is not enough to show the accurate picture of biochemical processes. The EPA needs to revise their BODs tests that were used to determine standards for the Clean Water Act to accurately assess the situation of the wastewater treatment plants.

Thirdly, storm water runoff accounts for 4,740 tons of nitrogen in the Bay. Montgomery County is one of the biggest polluter of the Chesapeake Bay. As the population of the county approaches to 1 million the demand of the housing is growing also. Most parts of the county are overdeveloped with very large impervious area. Moreover, in the late 90s until early 2011, county officials were approving construction projects that would require high artificial hills in order to add a curb appeal and make house look more expensive. At that time it was a common practice for reviewers of the Montgomery County Department of Permitting Services to approve projects that require 3:1 slope ratio. For example, 3:1 ratio is for every 3 ft. run 1 ft. up. 6 ft. run 2 ft. up, 9 ft. run 3 ft. up etc. It also depends on the starting point and the entire land development area. The end result is beautiful – a house high on the hill. A lot of times vegetation has a hard time to grow due to lack of water adding to runoff. During the same time period it was very trendy in Montgomery County to build extremely high earth berms to add a dramatic effect but again vegetation has a trouble growing on these berms. The County Code does not prevent such 3:1 ratios. Limiting the ratios could have dramatic effects.

Finally, septic tanks account only for 1, 500 tons/year of nitrogen. Old septic tanks are replaced as a part of the review process when a property owner applies for addition of existing homes, or if the septic system is failing. New construction automatically has to have a new state of the art septic system that is complained with the new EPA mandates.

The rain tax should be repealed and Hogan proposal gives a nice fresh review of pollution of the Chesapeake Bay and how it actually can be prevented.



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