Fracking, stormwater tax and fertilizer rules top 2015 agenda
By Bryan P. Sears in the Daily Record
Something old, something new, something borrowed, something green.
The fresh crop of legislators — more than a third of the 188 senators and delegates will be new to their positions — will debate environmental issues that preceded many of them, in addition to incoming Republican Gov. Larry Hogan. Hogan, who has made economic links to many popular environmental initiatives, has announced that he differs from the Democratic-controlled legislature and his predecessor, Gov. Martin J. O’Malley, on issues such as the so-called rain tax, the regulation of chicken manure on Eastern Shore farms, and fracking.
Washing away the ‘rain tax’?
One area where there might be the most room for an agreement could be the controversial stormwater management fee imposed by the legislature two years ago. It’s the same issue that Hogan successfully used as an example of what he said was a government so revenue thirsty that it had found a way to tax the rain. During the campaign, Hogan vowed to repeal the tax. In an interview earlier this month, Hogan said that while he doubted that the law — based on a federal mandate to control nutrient and sediment runoff from flowing into the Chesapeake Bay — could be fully repealed, he would seek to eliminate the mandate requiring nine of the state’s largest jurisdictions to impose a fee to cover its costs.
“We’re going to repeal that mandated fee,” Hogan said. “Let local governments decide what to pay for and how to pay for it and let them be responsible to their own residents if they want to impose a tax.” The 2012 law required the state’s nine largest counties and Baltimore City to impose a fee to cover the costs of the federal mandate. Most imposed fees on residential, commercial and non-profit properties; Frederick County imposed a fee of 1 cent per property, and Carroll County opted to pay for the program from its existing budget.
State environmental officials initially accused Carroll County of violating the law and threatened a $10,000 per day fine for non-compliance. That fine was ultimately rescinded after the county agreed to a dedicated fund for the programs. But as with last year, there will be some attempt by legislators to eliminate the program.
Sen. Jim Brochin, D-Baltimore County, said last month that the 2014 election was a referendum on taxes in the state, including the stormwater management fee. Brochin, who voted for the 2012 legislation, said he would sponsor a bill to eliminate the law. “The people have spoken,” Brochin said at the time. “It would be a major mistake not to respect the will of the voters.”
But such efforts appear to have little chance of success as leaders in the Senate and House say they are willing to consider allowing changes for how counties pay for stormwater-related projects. “I don’t believe it will be eliminated,” Senate President Thomas V. Mike Miller Jr. said earlier this month. Instead, the longest-serving Senate president in the country said he believed changes such as the one favored by Hogan would be successful. The Senate is seen as more moderate than the House of Delegates.
But Friday, Del. Maggie McIntosh, who championed the bill in 2012 in her position as chairwoman of the House Environmental Matters Committee, said she would consider changes to the two-year-old law. “I’m always open to conversation,” McIntosh said, adding that she would be willing to consider allowing counties to go their own way and decide whether to impose a fee as long as they set aside funding in a dedicated account that can be tracked by the public and state officials. “I do think that could be something that all of us could agree on,” McIntosh said. “What I don’t want to see is a lifting of the mandate and counties with incredible stormwater management needs that stop paying for their projects and then come knocking on the state’s door asking for money.”
The trouble with chickens
Legislators could also find themselves once again having to deal with another controversial set of water quality regulations known as the phosphorous management tool — PMT to farmers on the Eastern Shore. The controversial regulations proposed by O’Malley are meant to control the amount of phosphorous that seeps into the bay by imposing limits on the use of manure, primarily chicken litter, which is rich with the nutrient.
Alison Prost, Maryland director of the Chesapeake Bay Foundation, said the proposed nutrient management regulations work hand-in-hand with stormwater management requirements. “Both of these issues are all about pollution from run-off,” Prost said. “It’s estimated that 80 percent of the load on the Eastern Shore comes from agriculture, and we need a solution for agriculture.”
The regulations have been proposed three times in the last two years, but they have been delayed from implementation because of opposition. O’Malley decided to move forward with the regulations in the final two months of his tenure. If a legislative committee fails to delay them, the new rules could take effect on Jan. 16 — five days before Hogan takes the oath of office.
The incoming Republican governor has vowed to fight the new regulations. “We won’t allow them to put you out of business, destroy your way of life, or decimate your entire industry,” the Republican said. Supporters and opponents of the new regulations both say they stand ready to press for a legislative solution depending on whether or not the regulations take effect next month.
“If we delay it any more, we may see further declines in the bay and beach closures and the quality of water in our local streams and rivers,” Prost said. Del. Adelaide C. “Addie” Eckardt, R-Eastern Shore, who will be sworn in as a senator in January, was one of three legislators who successfully passed legislation requiring an economic analysis.
Eckardt said she would like time for a more complete study of the financial impacts of the regulations than was released last month, which she said did not meet the requirements of the bill passed earlier this year. “I think we’re putting the cart before the horse, here,” she said. “Eastern Shore farm families have been good stewards of the land and the bay. There’s this complaint that farmers shouldn’t be putting manure in the water. It’s the image that is out there, but farmers aren’t doing that. This is about nutrients that are in the ground and how they move in the groundwater.”
That study by Salisbury University released last month found that compliance with the regulations could cost chicken growers, farmers and businesses between $22 million and $53 million over six years. “In my mind, as I reviewed the cost analysis, I did not think it met the letter of the law,” Eckardt said.
Eckardt has sent a letter requesting a hearing to legislators in charge of the committee responsible for approving the published regulations. “Because of the changes in the legislature, we need to have another hearing on it,” she said.
Fracking regulations or a ban
Also on the agenda will be a set of regulations for hydraulic fracturing considered to be the strictest in the country by supporters and opponents alike. The regulations were forwarded for potential approval by O’Malley, again in the last days of his tenure. Hogan wants an opportunity to review and possibly put his own stamp on the rules that could ultimately open up portions of western Maryland to the controversial natural gas extraction process.
The Republican governor-elect said he favors fracking, as long as it’s done safely, because of its potential economic benefit to the poor rural counties. Hogan has not outlined what he would consider to be a safe process. Meanwhile, fracking opponents appear to be gearing up to head to Annapolis to fight for an outright ban.
“But for Maryland … the safest strategy for drilling for gas in the Marcellus Shale is to not drill for that gas at all,” Mike Tidwell, director of the Chesapeake Climate Action Network, said in a statement. “With sea-level rise and other impacts of climate change now directly harming Maryland and much of the world, climate scientists say 80 percent of the world’s known reserves of fossil fuels must stay in the ground if we are to have any hope of stabilizing the world’s atmosphere. This includes the Marcellus Shale gas reserve in America’s central Appalachian Mountains.”
The Chesapeake Climate Action Network is one of a number of organizations that has supported legislation that would have imposed a ban on fracking in Maryland. Those bills have failed in recent years, primarily because Sen. Joan Carter Conway, chairwoman of the Senate Education, Health and Environmental Affairs Committee, has wanted to wait for the commission to complete its work on possible recommendations for regulations.
Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and the incoming chairman of the Senate Judicial Proceedings Committee, sponsored a fracking ban bill last year. Zirkin said he still supports a ban but would not be the primary sponsor.