Coun­cil pur­sues more le­gal coun­sel on sewer man­date

Cecil Whig - - LOCAL - By BRAD KRONER bkro­ner@ches­pub.com

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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