MACo: Testimony against HB 1107 (the septic ban bill)

BILL NO.: House Bill 1107

TITLE: Sustainable Growth and Agricultural Preservation Act of 2011



DATE: March 11, 2011

COMMITTEE: Environmental Matters

CONTACT: Leslie Knapp Jr.

The Maryland Association of Counties (MACo) OPPOSES House Bill 1107.  The bill constitutes a major State and local government policy shift that was introduced with no prior debate or discussion.  The bill would prohibit even fairly modest subdivisions on septic systems, limit subdivision and prohibit re-subdivision of specified parcels, require the Maryland Department of the Environment (MDE) to approve street line and lot line revisions, and require even the smallest subdivisions on septic systems to use nitrogen removal technology.

Usurpation of Local Land Use

On its face, HB 1107 is cast as needed environmental legislation.  But the bill extends far more than a simple environmental protection measure; it actively intrudes on local land use decision-making to an unprecedented level and would have the practical effect of freezing growth in many rural jurisdictions.  It would override comprehensive plans and local zoning ordinances and downzone areas designated for growth in many county comprehensive plans.  It would also vest approval authority of street line and lot line revisions with MDE.  MACo believes strongly that decision-making by local elected officials provides the most accountable and appropriate means for such policy decisions.

In recent years, MACo has supported significant Smart Growth and land use legislation, including HB 1141 of 2006, which requires counties to adopt a water resource element, HB 2 of 2006, which requires counties seeking State agricultural preservation funding to adopt a priority preservation area element, HB 294/SB 273 of 2009, which revised the planning visions, and HB 297/SB 280 of 2009, which requires a county’s land use actions to be “consistent” with its comprehensive plan.  MACo has also supported environmental legislation to strengthen the critical areas, require the use of environmental site design techniques for stormwater management, and encourage the construction of high performance buildings.

However, MACo has always actively resisted attempts to vest land use decision making at the State level.  Local government officials are the most accountable to and familiar with the unique needs and concerns of their citizens.  In contrast, State officials are further removed and do not often appreciate or understand local nuances and differences.  Often, they seek to impose a “one size fits all” approach that does not mesh with the specific needs of a particular county.  The bill assumes that the State is in a better position to dictate land use decisions.

Current Rural Smart Growth Model Ineffective

The bill is also premised on a belief that the current Smart Growth model, which focuses on dense, compact, mixed use, and transit oriented development works equally well in both urban and rural settings.  However, while current Smart Growth and Priority Funding Area (PFA) categorizations have worked reasonably well in the more densely urbanized counties, they have not achieved the same outcomes in rural jurisdictions.

Unlike in urban counties, rural county growth areas and PFAs do not always overlap.  Many rural growth areas remain on septics as the density required for the development of water and sewer is too high to achieve.  Townhomes and large apartment buildings or condominiums are not economically feasible or consistent with the local character desired by existing residents.  Rural population centers tend to be spread further apart, and attempts to connect centers through roads or water and sewer linkages require the granting of a PFA exception.  Transit options in such jurisdictions are nonexistent or minimal, with short-range trolley or bus systems being the most common.  Subjecting both rural and urban counties to the same “one size fits all” model has yielded friction for years, and reinforces MACo’s belief that additional overarching policies such as those proposed in HB 1107 may cause even more imperfect fits.

Without commensurate Smart Growth reform, and appropriate recognition of the variable needs of rural counties, HB 1107 has a grossly unequal impact among geographically and demographically different jurisdictions.  This unequal treatment is not in keeping with the precepts of a “One Maryland” philosophy.

Local Impacts Not Fully Considered

By adopting a restrictive “one size fits all” approach, the bill will generate significant ancillary effects that local governments will have to solve.

Agricultural and Land Preservation – By limiting the ability of a property owner to re-subdivide, an owner of a large parcel of property may be tempted to develop the whole property on a shared facility rather than be perpetually locked into a minor subdivision.  Encouraging such a “go for broke” attitude would have the unintended consequence of increasing sprawl rather than decreasing it.  Additionally, counties with a Transfer of Development Rights (TDR) program, such as Caroline or Harford, would have their receiving areas, and thus their programs, rendered useless under HB 1107.

Cost and Practicality of Shared Facilities – Shared facilities are expensive to build and maintain and require a minimum threshold of homes in a subdivision in order to be economically viable.  Additionally, many counties currently restrict the use of shared facilities and would have to modify their land use policies to accommodate them if they became the only option for development.  HB 1107 essentially selects such “package plants” as the preferred format for continued development in a wide range of the State, without a fully vetted scientific or policy debate on the propriety or effectiveness of such systems.  Many systems that are already in place are facing operational challenges.

Decreased Revenues for Rural Counties – As the bill’s fiscal note indicates, rural counties with limited PFAs will be disproportionately affected and will reduce the level of local property taxes, transfer taxes, building excise taxes, development impact fees, recordation and subdivision plat fees, and other taxes and fees beginning in FY 2012.  Garrett County advises that various local revenues may decrease by roughly $200,000 in FY 2012 and $400,000 by FY 2016.

Potential Increased Staffing Costs for Counties – The bill’s fiscal note also indicates local government expenditures may increase starting in FY 2012 for additional personnel to oversee the installation and maintenance of community sewerage systems, shared facilities, and septic systems with nitrogen removal systems.

Land Valuation and Property Rights – It is also arguable that the bill would constitute a taking and result in a devaluation of a property owner’s land.  Studies have produced conflicting results and more research is needed.

Lack of State Funding Support – A long-term failure of the State in regards to Smart Growth policy has been the lack of funding support for infrastructure within PFAs and land preservation funding outside of PFAs.  Without assistance from the State for infrastructure, including the establishment of water and sewer facilities, rural counties are further restricted from growing.

Affordable Housing – Artificially restricting housing demand in certain areas and stimulating housing demand in other limited areas will lead to a decrease in affordable housing.  Offsetting developer mandates or other strategies may be needed to ensure an adequate supply of workforce and affordable housing, but are not envisioned in this statewide inflexible legislation.

More Focused Septics Approach May Yield Similar Effects

MACo recognizes that septic system nitrogen pollution, while contributing only 7% of the total nitrogen flowing into the Chesapeake Bay, will need to be addressed along with every other pollution sector in order to meet the federally-mandated Total Maximum Daily Load (TMDL) requirements.  However, MACo believes a more focused and logical approach could achieve the same goals as this bill.

Distance from water, soil type, drainage field size, and vegetative uptake can all significantly affect the amount of septic system nitrogen that reaches the Bay Watershed from a particular site.  Focusing on septic systems located near waterways will result in substantial nitrogen reductions.  Alternatives should be considered and compared with the bill’s provisions.  The bill’s provisions and any suggested alternatives should be subject to a cost-benefit analysis.

According to the Maryland Department of Planning’s current projections, total nitrogen load from septic systems will increase by 37% over the next 25 years.  However, this figure – which assumes that no policy changes occur in that period – is overstated as many of the Smart Growth laws cited at the beginning of this testimony will limit septic use as they are fully implemented and the State’s own Watershed Implementation Plan (WIP) will require that any new nitrogen loading caused by septics must be offset starting in 2013.  This limitation alone will significantly curb septic growth in many areas of the State.  However, rather than a statewide inflexible approach such as HB 1107, each county’s implementation could better recognize the needs and costs of reaching the overall goals required and desired for watershed protection.

In conclusion, MACo acknowledges the bill’s overall goals of reducing septic system pollution but strongly objects to its assault on locally accountable land use decision-making, especially when alternative approaches may yield a similar septic pollution reduction.  The bill also ignores recent land use changes that will limit future septic growth, does not acknowledge the weakness of the current Smart Growth model for rural areas, and will have significant unintended consequences on county land use management.  Accordingly, MACo requests that the Committee give HB 1107 an UNFAVORABLE report.

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