Ballotpedia: Maryland Republicans clash with Governor

ANNAPOLIS, Maryland: Democratic Governor Martin O’Malley has been liberal with his policies on environmentalism since taking office in 2007. Reactions to his policies have been mixed. His office claims that “He is basing his decisions on what is best for Maryland now and in the future.” Senate Minority Whip E. J. Pipkin has stated when speaking to rural residents that, “We’re at war. Simply, at war.”[1]

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Baltimore Sun: Chesapeake Bay cleanup fee increase proposed

A state task force called Tuesday for tripling the “flush fee” Maryland homeowners pay as a way to help finance an accelerated cleanup of the Chesapeake Bay.

The 28-member task force, appointed by Gov. Martin O’Malley to tackle sewage and growth issues, voted overwhelmingly to recommend that the $2.50 monthly bay restoration fee be doubled next year and increased to $7.50 a month by 2015. The fee is levied on water and sewer bills for utility customers, and on property tax bills for homeowners on septic systems.

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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.

Washington Post:Gov. O’Malley ‘at war’ with rural Maryland, Republicans say

By , Published: October 30  Direct Link to Washington Post Article (click here)

Maryland Gov. Martin O’Malley (D) has never needed rural voters to get elected, and for his sake, that’s been a good thing.

O’Malley’s environmental agenda has repeatedly agitated farmers, fishermen, developers and drillers in his nearly five years as governor. Still, the relationship between the former big-city mayor and residents of Maryland’s more conservative countryside has remained mostly cordial.

At least, that is, until now.

“We’re at war. Simply, at war,” Senate Minority Whip E. J. Pipkin (Queen Anne’s) told more than 50 rural — and mostly Republican — lawmakers who gathered last week in the back of an Annapolis restaurant to plot a counteroffensive.

O’Malley has long been unabashedly liberal in his environmentalism and a strong proponent of smart-growth policies. But severalof his initiatives — some of them years in the making — have converged near the policy finish line in recent weeks, riling a broad swath of the state’s rural Republicans, independents and even some conservative Democrats who view his administration’s efforts as government overreach.

The governor has invoked a 37-year-old law to withhold state funding from local governments that fail to curb sprawl. He has proposed aban on most new septic systems, which critics say will choke off rural development. And he has continued to push for a Chesapeake Bay cleanup that counties warn will cost billions of dollars and untold jobs.

The face-off has opened a new front for O’Malley in advance of a high-stakes General Assembly session that will test his power to eke out wins on controversial measures, including same-sex marriage, costly offshore wind development and higher taxes for transportation.

It also comes as O’Malley is busy preparing for a trade mission to India next month and splitting his time between the governor’s mansion and national fundraising efforts to help elect Democratic governors elsewhere.

“From Annapolis, he’s dictating how communities across the state should develop, and it’s wrong. It’s arrogant,” said Thomas Browning, a Frederick County farmer who attended last week’s meeting.

Alluding to O’Malley’s perceived national ambitions, Pipkin said opponents would seek to “get the word out. . . . He’s at war with rural Maryland,” Pipkin said.

“He just passed a massive toll increase, he’s proposing a gas tax increase, a tripling of the [sewer] tax, and then you add on this power grab over the growth issue.

“Does it really help the governor in his future aspirations . . . to be so abusive to the rural parts of his own state? You tell me: What is the Iowa caucus going to say?”

O’Malley spokeswoman Raquel Guillory said Pipkin’s criticism is misguided.

“The governor, unlike politicians that Pipkin may know, doesn’t make decisions on Maryland’s growth based on politics,” Guillory said. “He is basing his decisions on what is best for Maryland now and in the future.”

The goal of O’Malley’s efforts, she added, is the opposite of what Pipkin and others contend. “These efforts are aimed at reducing sprawl, improving the quality of the bay and protecting the rural areas in Maryland — how is that war?” she asked.

The focal point of most rural residents’ angst is the near completion of O’Malley’s effort to develop a statewide land-use blueprint, known as Plan Maryland.

The master plan seeks to maintain as agricultural or forest land more than 400,000 acres that state planners project would otherwise be developed over the next 20 years. It would do so by targeting development in approved growth areas — most along the Baltimore-Washington corridor. State funding for school construction and other community needs would be used to reward or punish local governments that do or don’t meet targets to create more dense housing and development.

At a hearing in August, O’Malley summarized his view most succinctly: Homes built on two-acre plots with septic systems are sprawl; homes built within city limits on half-acre plots, and in range of sewer hookups, are not. The plan “is not a straitjacket for counties,” O’Malley said. “This is not a wall that prohibits counties from making stupid land-use decisions. They’re still free to do that, but we’re not going to subsidize it anymore.”

The governor maintains that if followed, the plan will reduce by more than $1.5 billion annually the amount the state spends on building roads to new developments, and willcut by hundreds of millions more the amount needed to expand and improve water and sewer systems.

O’Malley is hoping to succeed in codifying such a plan where several previous Democratic governors have failed. He is employing a little-known 1974 law to enact the plan without further hearings or action from the General Assembly, a tactic that has helped stir anger in the state’s rural reaches.

Richard E. Hall, O’Malley’s secretary of planning, emphasized that the plan has been in the works for more than three years and that the administration has extended its period for public comment. The administration has used that public input to shrink the 180-page document by half.

He called it unfortunate that critics have chosen to lump Plan Maryland in with ongoing negotiations over how to reduce septic systems that contribute a disproportionately large share of pollution to the ChesapeakeBay.

Key members of a task force, set up by the General Assembly and the governor after O’Malley’s septic proposal first fell short in the legislature this year, reported last week that to help pay for some of the governor’s proposed septic rules, the task force expects to recommend a doubling — and, eventually, a tripling — of the state’s $30 “flush tax.”

On a separate track, many rural lawmakers are also upset with a multi-state effort known as the Watershed Implementation Plan, or WIP. A Maryland State Builders Association study contends that WIP will cost billions of dollars and tens of thousands of jobs.

“The [critics] have a narrative that they’ve developed — that all of these run together — but we’ve never had anything that ties them together,” Hall said. “For some who want to speak out against and tear down Maryland’s legacy of being a strong smart-growth state, that’s easy for them to do, even though Plan Maryland has been out there for years. It’s been a good punching bag.”

Hall said the administration is moving forward with plans for the governor to enact Plan Maryland next month. Several county executives have urged the governor to wait and let the legislature vote on the plan when it reconvenes in January. And at the meeting last week in Annapolis, Del. Kathy Afzali (R-Frederick) urged a revolt by counties if O’Malley moves forward without legislative approval.

Democratic Sen. Thomas M. “Mac” Middleton, a Charles County farmer, countered that he thinks the governor’s heart is in the right place on Plan Maryland and that a buffer is needed between development and farmland. Buthe said he does not think the legislature is ready to accept O’Malley’s septic plan without major changes.

Many depend on rural residential development for their livelihood, he said. And it should not be up to the state to dictate where communities grow, Middleton said.

“A lot of mouths have to be fed with development,” he said. “You can’t put such a damper on these rural communities.”

The governor’s efforts also have galvanized the state’s tea party. Carroll County has put up thousands of dollars for a summit on Monday featuring internationally known climate-change skeptics andaimed at debunking some of the premises behind Plan Maryland.

“We thought it was worthwhile to get some credible speakers to come and take a look at some of those debatable trends and assumptions,” said Robin Bartlett Frazier, a member of the county’s Board of Commissioners. Also, she said, “there’s an element that has to do with following the Constitution, protecting property rights and free rights.”

Senator Pipkin: O’Malley’s War on Rural Maryland

As soon as he was re-elected, Governor Martin O’Malley began pushing legislation and policies that made it painfully clear his war on rural Maryland had shifted into high gear. As weapons of war, the Governor is using policies to strip property rights, impose higher and unfair taxes and tolls and ride roughshod over local planning and zoning, which will result in killing jobs and economic growth now and in the future.

At the end of his annual state-of-the-state speech this past January, O’Malley stunned rural representatives when he said he wanted approval of legislation to ban septic systems in new housing developments of five or more homes. For the 1.6 million people who live in rural Maryland, passage of O’Malley’s septic ban would spell an end to employment and the devaluation of $1 trillion worth of land, including area farmland. Under the guise of acting to protect the safety and adequacy of well sites or sewage disposal areas on a lot or adjacent lots, the Secretary of MDE assumes the role of Land Czar with the final word. When one considers that septic systems contribute only 1.6% of the nitrogen load entering the Bay, O’Malley’s septic system ban is nothing short of overkill and a shameful assault on property rights.

If a septic system ban doesn’t turn rural Maryland into a mammoth land preserve, O’Malley’s Plan Maryland surely will. Plan Maryland will usher in the era in which the State Planning Department is elevated to a super-high bureaucratic position with the power to veto local zoning or simply refuse to construct the roads and schools to support local zoning plans. The American respect for property rights will become a curious relic of the past. Landowners still will be expected to pay property taxes on their land, but will be stripped of their right to develop it.

Rural Western Maryland is sitting on rock formations of Marcellus Shale where stores of natural gas are trapped. According to the Unites States Geological Survey, the shale formation, which stretches from New York to Virginia contains 84 trillion cubic feet of recoverable natural gas. The use of hydraulic fracturing to drill for natural gas poses some risks which must be addressed. But in the meantime, Pennsylvania and West Virginia are getting the benefit of thousands of jobs created by drilling for natural gas. Governor O’Malley has appointed a state panel to recommend natural-gas drilling regulations. A final report, with recommendations relating to the impact of drilling, is due by August 1, 2014. Critics believe that O’Malley is using the panel to delay investment in the state’s Marcellus Shale. I am one of those critics.

Recently, Governor O’Malley stood by and watched the Maryland Transit Authority (MdTA) approve a sky high toll increase on Maryland’s bridges, tunnels and roads that will further serve to depress the economy of the rural Eastern Shore and stymie job creation. Tolls on multiple axel vehicles were doubled assuring that surcharges will be imposed on deliveries to both small and large businesses. On the Bay Bridge, alone, tolls will nearly triple by 2013. Much of the revenue will be used to pay for the InterCounty Connector (ICC), an 18-mile strip of road joining Montgomery and Prince George’s Counties, on which most rural residents will never travel.

The ICC was touted as being able to pay for itself. We now know that is not true. It should be noted that the ICC is the only Maryland toll facility where the tolls were not increased. The MdTA Board, which increased the tolls is appointed by the Governor and can raise tolls without any approval of the Legislature.

The plan to increase by 15 cents the state’s 23.5 cents per gallon gas tax is another example of the war on rural Maryland. Generally, rural residents drive more miles than urban or suburban Marylanders. Any gas tax increase will impact disproportionately on people who live in rural areas. And to add insult to injury, the increased gas tax revenue will benefit rural people least. Mass transit projects, which rural people do not use, will eat up most of the gas tax revenue. Let’s face it, building urban and suburban mass transit projects, such as the Red and Purple metro lines, have always and will continue to take precedence over road improvement and badly-needed bridge repair or replacement in rural Maryland.

Adding to the assault on rural Maryland, the costs associated with the Watershed Improvement Plan has been dumped on the rural counties. The Plan has a price tag of $11 billion for just Phase I, according to a report April 2011 report by Sage Policy Group, a public policy consulting firm, with billions more as the plan is fully implemented.

Governor O’Malley likes referring to the state as “One Maryland.” At best, that term is a cynical joke. At worst, it is a lie. Governor O’Malley has made it clear through his policies that in his
“One Maryland,” there is no room for rural Maryland.