Council pursues more legal counsel on sewer mandate
ELKTON — The Cecil County Council is seeking additional legal counsel regarding the sewer mandate imposed by County Executive Alan McCarthy.
Announced in July, the sewer mandate requires property owners to connect to public sewer within 10 years, or when a triggering event occurs, such as the failure of the septic tank or the transfer of property.
The county’s current connection fee is $6,000. In addition to that connection fee, residents are potentially faced with paying a benefit assessment fee, which could cost as much as $8,000, as well as the cost of bringing the sewer pipe onto the property and connecting it to the home, which could also cost over $1,000.
In total the cost of hooking up could feasibly be around $15,000 — over half the county’s median salary of $29,000 — if the county charges a benefit assessment fee and residents are unable to receive grant funds to subsidize the cost.
Administration officials argue that half the impacted properties are commercial businesses that would want to hook up and could afford it, and that the other half, residents, would be subject to grant help and financial assistance.
Only 47 properties, 21 of which are residential, are currently impacted by the mandate, according to the administration.
However, because of this cost, the county council has been exploring what alternatives they have to fight the mandate. Council members question whether they can eliminate the 10-year deadline for the mandate.
Council President Joyce Bowlsbey asked Scott Flanigan, director of public works, during a work session whether the state code requires residents to connect to county sewer.
One legal opinion from the council’s attorney indicated that the council could alter the County Code to eliminate the sewer mandate. However, administration officials say that state law also imposes a sewer mandate, and county law must abide by state law.
Now, the county is requesting that their attorney determine whether state law really does impose a sewer connection mandate.
“The answer to that question, I believe, is yes,” Flanigan said, citing section 9-708 of the Maryland Environmental Code. “I would say that until we established this 10-year time period, we, too, were in violation of this provision of state law.”
Section 9-708 in the state environmental code reads: “A municipal authority shall, when the municipal authority declares that a water main or sewer is complete and ready for use, notify each owner of abutting property that the owner shall ... connect all spigots or hydrants, toilets, and waste drains with the water main or sewer, within a reasonable time as determined by the municipal authority ... and install adequate spigots or hydrants, toilets and waste drains.”
County Attorney Jason Allison said he believes county governments are included in the definition of “municipal authority.”
“I read the term as used in that provision of Code to mean counties and towns,” Allison explained. “The term ‘municipality’ is not defined, nor is the term ‘county’; as such, I read the term to mean both. I believe based upon my discussions with (the Maryland Department of the Environment) that the state concurs with my analysis.”
Council Vice President Dan Schneckenburger said he wanted to seek outside legal perspective.
“I’m not a lawyer, and certainly Director Flanigan is not,” Schneckenburger said.
Councilman Patchell agreed.
“I think we need to go back to our attorney and ask for a ruling on whether or not it’s mandatory,” Patchell said. “We need to back and get a more thorough understanding from our attorney whether or not he believes it is mandated by the state.”
The power to impose a sewer mandate is not barred by the state code, giving counties the authority to mandate connections.
However, the number of counties imposing a deadline to connect is in the minority.
“I saw a few that required it but I did not see the vast George majority of counties that require it within a certain timeframe,” Councilwoman Jackie Gregory added.
Al Wein, director of administration, said he was aware of a handful of counties with a mandate, including Washington, St. Mary’s, Harford and Queen Anne’s.
However, Leslie Knapp Jr., legal and policy counsel for the Maryland Association of Counties, said that he’s unaware of any counties with a sewer mandate like Cecil County’s. He said that counties generally have sewer mandates in environmentally sensitive areas alone.
“I’m not aware of any county that has a mandate countywide, currently,” Knapp said.
Typically, counties require residents to connect if they live in a critical area or have environmental issues, according to Knapp. As Maryland and its counties continue to face higher goals for pollution reduction, more counties will consider sewer mandates.
“These hookups are also a way of removing water pollution generated from septic tanks, which along with stormwater pollution, are among the most costly to treat,” Knapp said. “There’s no question in the next 10 years many counties will be considering similar type of legislation.”
Knapp did say that the mandating a sewer connection would be beneficial for economic development.
“It gives a lot more flexibility for growth,” Knapp said. “There’s no capacity for growth with septic systems.”
Gregory suggested that, if the state law doesn’t require counties to impose a sewer mandate, the council could change the county code to eliminate the sewer mandate. Prior legal advice suggested that the council could change the code.
“The council could always pass legislation to modify the County Code,” wrote Brian Anderson, an attorney with the Law Offices of Victor Jackson. “Any changes would have to be made with due regard for Md. Code Ann. Environment, however it sounds as though the council may be able to override any executive veto.”
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