Sec. 19-30. Regulations.

   (a)   The Executive may adopt regulations under method (2) to implement this Article. Any regulation adopted under this Article must not conflict with or waive any provision of this Chapter, and must not be less restrictive than applicable requirements under state or federal law. The regulations must establish a fee schedule for monetary contributions to be paid to the County when the Department waives any on-site stormwater management requirement. The regulations may also include design standards and other criteria or procedures necessary to implement this Article.

   (b)   The Executive may adopt plan review fees and inspection fees under method (3) to cover the cost of administering this Article. (1980 L.M.C., ch. 60, § 3; 1984 L.M.C., ch. 24, § 20; 1984 L.M.C., ch. 27, § 17; 1985 L.M.C., ch. 27, § 1; 2001 L.M.C., ch. 27, § 1; 2002 L.M.C., ch. 3, § 1.)

   Editor’s note — See County Attorney Opinion dated 9/22/99-A describing the County’s responsibility for maintenance of stormwater management facilities located on private property.

   Former § 19-31, “Regulations,” was repealed, re-enacted with amendments, and renumbered § 19-30 pursuant to 2002 L.M.C., ch. 3, § 1.

   Former §§ 19-29, “Inspection and maintenance of off-site storm water management facilities,” and 19-30, “Inspection and maintenance of on-site storm water management facilities,” were repealed, re-enacted with amendments, renumbered § 19-28, and retitled pursuant to 2002 L.M.C., ch. 3, § 1.

Sec. 19-31. Exemptions.

   The following development activities are exempt from stormwater management requirements under this Article:

   (a)   agricultural land management practices;

   (b)   any addition or modification to an existing single family detached residential structure if the addition or modification does not disturb more than 5,000 square feet of land area;

   (c)   any development not associated with the construction of a new residential or commercial building if the development does not disturb more than 5,000 square feet of land area; and

   (d)   any land development activity that the Administration finds is subject to any State law that regulates stormwater management runoff. (2002 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 37, § 1; 2010 L.M.C., ch. 34, § 1.)

   Editor’s note — Former § 19-31, “Regulations,” was repealed, re-enacted with amendments, and renumbered § 19-30 pursuant to 2002 L.M.C., ch. 3, § 1.

Sec. 19-32. Transition for approved plans.

   Each new development or redevelopment project must comply with this Article, except when the Department issues final sediment control and stormwater management design plan approval for the property covered by the plan before May 4, 2010. (2002 L.M.C., ch. 3, § 1; 2010 L.M.C., ch. 34, § 1.)

   Editor’s note — Former § 19-32, “Performance bond,” was repealed, re-enacted with amendments, renumbered § 19-27, and retitled pursuant to 2002 L.M.C., ch. 3, § 1.

Sec. 19-33. Agreements between the County and municipalities.

   (a)   The Executive must inform any incorporated municipality in the County that may regulate stormwater management of any proposed stormwater management facility, development or plan that could affect stormwater management in the municipality. The Board must inform any municipality of any functional master plan or preliminary plan of subdivision that may affect stormwater management in the municipality.

   (b)   The County and the Board may enter into cooperative agreements with any incorporated municipality in the County concerning any matter relating to stormwater management, including the planning, design, construction, and maintenance of stormwater management facilities and monetary contributions for stormwater management. The County and the Board may enter into those cooperative agreements to coordinate stormwater management activities with any municipality to avoid duplication of effort and to minimize the costs associated with an effective stormwater management program.

   (c)   If a municipality operates a stormwater management program that serves substantially the entire municipality and meets all applicable federal and State standards, the County must reimburse the municipality, subject to appropriation, for the cost of operating the program, limited to the amount the Director of Environmental Protection estimates the County would spend for that municipality if it were operating the program, by means of a cooperative agreement under subsection (b). (1980 L.M.C., ch. 60, § 3; 2001 L.M.C., ch. 27, § 1; 2002 L.M.C., ch. 3, § 1; 2010 L.M.C., ch. 34, § 1.)

Sec. 19-34. Reserved.

   Editor’s note­Former § 19-34, Violations, penalties and other relief, derived from 1980 L.M.C., ch. 60, § 3, was repealed by 2001 L.M.C., ch. 27, § 1.

Sec. 19-35. Water Quality Protection Charge.

   (a)   As authorized by Section 52-17 (a) or Maryland Code, Environment Art., § 4-204, or both, the Director of Finance must annually impose and collect a Water Quality Protection Charge, as provided in this Section. The Director must collect the Charge in the same manner as County real property taxes, apply the same interest, penalties, and other remedies (including tax sale) if the Charge is not paid, and generally treat the Charge for collection and administration purposes as if it were a County real property tax. The Director may treat any unpaid Charge as a lien on the property to which the charge applies.

   (b)   The Charge must be imposed on each property, as specified in regulations adopted by the Executive under Method (1) to administer this Section. The regulations may define different classes of real property, depending on the amount of impervious surface on the property, stormwater runoff from the property, and other relevant characteristics, for purposes of applying the Charge.

   (c)   The Council must set the rate or rates for the Charge by a resolution adopted each year after holding a public hearing with at least 15 days’ notice. The resolution must be adopted no later than the date the Council approves the annual operating budget and presented to the Executive within 3 days after the Council adopts it. If the Executive disapproves a resolution adopted under this Section within 10 days after the Council adopts it and the Council readopts it by a vote of six Councilmembers, or if the Executive does not act within 10 days after the Council adopts it, the resolution takes effect. Unless the resolution specifies otherwise, the rates must take effect on the July 1 after the resolution is adopted.

   (d)   In the resolution adopted under subsection (c), the Council may set a different rate for each type of property defined by regulation. If different rates are set, the rates must generally reflect the relative amount of impervious surface on each type of property.

   (e)   (1)   A property owner may apply for, and the Director of Environmental Protection must grant, a credit equal to a percentage, set by regulation, of the Charge if:

         (A)   the property contains a stormwater management system for which the County does not perform structural maintenance that either treats on-site drainage only or both on-site drainage and off-site drainage from other properties located within the same drainage area;

         (B)   the property does not contain a stormwater management system, but is located in the same drainage area as another that contains a stormwater management system for which the County does not perform structural maintenance and both properties have the same owner;

         (C)   the property contains a stormwater management system built as part of a County-approved stormwater management participation project; or

         (D)   the property does not contain a stormwater management system, but is located in the same drainage area as a property containing a stormwater management system built as part of a County-approved stormwater management participation project and both properties have the same owner.

      (2)   To receive the credit, the property owner must apply to the Director of Environmental Protection in a form prescribed by the Director not later than September 30 of the year that payment of the Charge is due. Any credit granted under this subsection is valid for 3 years.

      (3)   The Director of Environmental Protection may revoke a credit granted under paragraph (2) if the property owner does not continue to take the measures needed to assure that the stormwater management system remains in proper working condition by correcting any deficiencies discovered by the Director during a maintenance inspection. The Director must not reinstate a revoked credit until the property owner has sufficiently corrected the deficiencies to fully satisfy the property owner's maintenance obligations under Section 19-28.

      (4)   The owner of an owner-occupied residential property, or any non-profit organization that can demonstrate substantial financial hardship may apply for an exemption from all or part of the Charge for that property, based on criteria set by regulation. To receive the exemption, the owner or organization must apply for the exemption to the Director of Finance not later than September 30 of the year that payment of the Charge is due. After reviewing the request for exemption, the Director of Finance must issue a written decision. The owner or organization may appeal the decision of the Director of Finance to the Maryland Tax Court. The appeal must be filed within 30 days after the date of the decision.

   (f)   The Director must deposit funds raised by the Charge, and funds for this purpose from any other source, into a stormwater management fund. Funds in the stormwater management fund may be applied and pledged to pay debt service on debt obligations to finance the construction and related expenses of stormwater management facilities as approved in the Capital Improvements Program. Funds in the stormwater management fund must only be used for:

      (1)   construction, operation, financing, and maintenance of stormwater management facilities, and related expenses, including debt service payments related to construction and related expenses of stormwater management facilities;

      (2)   enforcement and administration of this Article; and

      (3)   any other activity authorized by this Article or state law.

   (g)   This Charge does not apply to any property located in a municipality in the County which notifies the County that it has imposed or intends to impose a similar charge to fund its stormwater management program in that municipality.

   (h)   A person that believes that the Director of Environmental Protection has mistakenly assigned a Charge to the person’s property or computed the Charge incorrectly may apply to the Director of Environmental Protection in writing for a review of the Charge, and request an adjustment to correct any error, not later than September 30 of the year that payment of the Charge is due.

   (i)   A property owner that believes that the Director of Environmental Protection has incorrectly calculated a credit, revoked the property owner’s credit or denied the property owner’s application for a credit under subsection (e)(1), (2), or (3), or denied the property owner’s request for an adjustment under subsection (h), may seek review of the Director’s decision by submitting a written request for review with supporting reasons to the Director of Finance within 30 days after the date of that decision. After reviewing the decision of the Director of Environmental Protection, the Director of Finance must notify the property owner in writing of the decision to affirm or reverse the decision of the Director of Environmental Protection. The property owner may appeal the decision of the Director of Finance to the Maryland Tax Court. The appeal must be filed within 30 days after the date of the decision of the Director of Finance. (2001 L.M.C., ch. 27, § 1; 2002 L.M.C., ch. 3, § 1; 2010 L.M.C., ch. 18, § 1; 2013 L.M.C., ch.11, § 1; 2015 L.M.C., ch. 14, § 1; 2015 L.M.C., ch. 54, § 1; 2016 L.M.C., ch. 20, § 1; 2018 L.M.C., ch. 6, §1.)

   Editor’s note—2018 L.M.C., ch. 6, § 2, states as follows: Transition: If an appeal of a final decision by the Director of Environmental Protection is pending before the Board of Appeals at the time this Act takes effect, the property owner may immediately withdraw the Board of Appeals proceeding and seek review of the Director’s decision within 30 days of the withdrawal. If the property owner does not withdraw the Board of Appeals proceeding, the Board of Appeals must forward a recommended decision to the Director of Finance. The Director of Finance must issue a final written decision that adopts, modifies, or reverses the recommended decision. The property owner may appeal the decision of the Director of Finance to the Maryland Tax Court within 30 days after the date of the decision of the Director of Finance.

   In COMCOR 19.35.01, any reference to the final decision of the Director of the Department of Environmental Protection must be treated as a reference to the Director’s recommended decision to the Director of the Department of Finance and any reference to an appeal to the Board of Appeals must be treated as a reference to an appeal to the Maryland Tax Court.

   2015 L.M.C., ch. 54, § 3, states as follows: Curative Effect: This Act retroactively validates and ratifies the levy and collection under Section 19-35 of all stormwater management charges collected since July 1, 2013.

   Expedited Bill 34-12 amended County Code Section 19-35 to subject all properties not otherwise exempt under State law to the Water Quality Protection Charge, allow property owners to obtain credits for undertaking certain water quality protection measures on their properties, and authorize financial hardship exemptions for certain owner-occupants of residential properties. The effective date of Expedited Bill 34-12 was July 1, 2013.

   In Paul N. Chod v. Board of Appeals for Montgomery County (Civil No. 398704-V, entered July 23, 2015) the Circuit Court for Montgomery County opined that the Water Quality Protection Charge “is invalid per se because this charge need not reasonably relate to the stormwater management services provided by the County.” The County has appealed this decision. This Act is intended to correct the potential defect noted by the Circuit Court by designating the stormwater management charges imposed by Section 19-35 as an excise tax imposed under the general taxing authority of Montgomery County to levy excise taxes. This Act is not intended to alter the policy, purposes, or substance of Section 19-35.

   The County Council finds that:

   (a)   Montgomery County had the authority in 2013 to adopt Section 19-35 under the County’s taxing authority – see Section 52-17;

   (b)   This Act furthers the original purpose of Section 19-35 to require individual owners of property with impervious surfaces to pay a share of the public costs associated with mitigating and remediating the environmental impact of stormwater runoff throughout the County;

   (c)   The legal defect in the adoption of Bill 34-12 (if any) was minor, because the County had in 2013 and continues to have the authority to levy and collect from property owners an excise tax for the purpose of producing revenue to fund the water quality protection measures needed to ameliorate the environmental impact of stormwater runoff;

   (d)   All property owners have benefitted from water quality protection and restoration measures made possible by the revenues generated from the stormwater management charges imposed under Section 19-35; and

   (e)   It is just and proper that this Act take effect as of July 1, 2013 in order that the public will continue to benefit from the water quality protection and restoration measures undertaken and to be undertaken as a result of the revenues provided by the Water Quality Protection Charge.

   2015 L.M.C., ch. 14, § 2, states: Retroactivity. This Act applies retroactively to applications for credit or financial hardship exemption submitted on or before September 30, 2014 for Levy Year 2014.

   2013 L.M.C., ch.11, § 2, states:

   (a)   The Council declares that an emergency exists and that this legislation is necessary for the immediate protection of the public health and safety. This Act takes effect on July 1, 2013. Notwithstanding County Code Section 19-35(b), as amended by Section 1of this Act, the Director of Finance must phase in the Water Quality Protection Charge as provided in this Section.

   (b)   The Director must phase in over 3 years any increase in the Charge that results from the application of Section 19-35(b), as amended by Section 1 of this Act, or any regulation adopted under that Section, by including:

      (1)   only one-third of the additional impervious surface that has been added to the calculation of the Charge in the fiscal year that begins on July 1, 2013;

      (2)   only two-thirds of the additional impervious surface that has been added to the calculation of the Charge in the fiscal year that begins on July 1, 2014; and

      (3)   the full amount of the additional impervious surface that has been added to the calculation of the Charge in the fiscal year that begins on July 1, 2015.

   (c)   The phase-in established in this Section does not apply to any portion of the Charge that results from the inclusion in the calculation of the Charge of any impervious surface area that is created after June 30, 2013.

   (d)   To receive a credit or exemption under Section 19-35(e) for the fiscal year that begins on July 1, 2013, a property owner must apply to the Director of Environmental Protection or the Director of Finance, as applicable, not later than September 30, 2013.

   Former § 19-35, Grandfather clause, derived from 1980 L.M.C., ch. 60, § 3, was repealed by 2001 L.M.C., ch. 27, § 1.

Article III. Floodplain District Requirements.

Sec. 19-36. Definitions.

   In this Article and any regulations issued under it, these words and phrases have the following meanings:

   Accessory/appurtenant structure: A structure that is located on the same lot as a principal structure and has a use that is incidental to the use of the principal structure.

   Basement: Any area of a building having its floor below ground level on all sides. Any other bottom floor of a building is a first floor.

   Certificate of Occupancy: A form issued by the Department certifying that a structure has been built consistent with an approved floodplain district permit plan and may be legally inhabited for the intended purpose.

   Department: The Department of Permitting Services.

   Developer: A person for whose benefit any activity regulated by this article is started or carried on. An individual who builds a single-family house for the individual's own occupancy is not a developer.

   Development: Any man-made change to improved or unimproved real estate, including any building or other structure, dredging, fill, grading, paving, clearing, excavation, dumping, extraction, or storage of equipment or materials. Development includes subdivision of land.

   Director: The Director of the Department of Permitting Services, or a duly authorized agent.

   Elevation certificate: A form prepared and distributed by the Federal Emergency Management Agency using Mean Sea Level as established by the National Geodetic Vertical Datum of 1929 and verifying the elevation at which a floor is constructed.

   Flood: A temporary inundation of normally dry land areas.

   Floodplain:

   (a)   A relatively flat or low land area adjoining a river, stream, pond, stormwater management structure, or watercourse subject to partial or complete inundation; or

   (b)   An area subject to unusual and rapid accumulation or runoff of surface water as a result of an upstream dam failure.

   Floodplain district: Any area specified in Executive regulations that is subject to inundation in a 100-year storm. This includes any waterway with a drainage area of 30 acres or larger.

   Floodplain district permit: A permit issued by the Department under this article authorizing land-disturbing and construction activities.

   Floodplain district permit plan: A set of representational drawings or other documents submitted by an applicant to obtain a floodplain district permit that contains the information and specifications the Department requires to minimize the safety hazards of or the negative hydraulic and environmental impacts associated with development in or near a floodplain.

   Floodproofing: Any combination of structural and non-structural additions or changes to a property or structure which reduce or eliminate flood damage.

   Floodway: The channel and adjacent land area required to discharge the waters of the 100-year flood of a watercourse without increasing the water surface elevations.

   Flood Fringe: That portion of the floodplain outside the floodway.

   Historical Structure: A structure listed individually on the National Register of Historic Places, the Maryland Inventory of Historic Properties, a local inventory of historic places certified by the Maryland Historic Trust or the Secretary of the Interior, or preliminarily determined as meeting the requirements for such listing by the Maryland Historic Trust or the Secretary of the Interior, or determined as contributing to the historic significance of a historic district registered with the Secretary of the Interior.

   Land disturbing activity:

   (a)   any earth movement or land change which may result in soil erosion from water or wind;

   (b)   the movement of sediments into state waters or onto land, including tilling, clearing, grading, excavating, stripping, filling, and related activities; or

   (c)   covering land with an impermeable material.

   Lowest floor: The lowest floor of the lowest enclosed area of a building, including a basement. An unfinished or flood-resistant enclosure, usable only for parking motor vehicles, building access, or storage, is not a building's lowest floor if the enclosure does not violate the applicable non-elevation design requirements of the National Flood Insurance Program.

   Manufactured home: A structure that is:

   (a)   transportable in one or more sections;

   (b)   built on a permanent chassis; and

   (c)   designed for use with or without a permanent foundation connected to the required utilities.

   Manufactured home also includes a park trailer, travel trailer, or similar vehicle, when placed on a site for more than 180 consecutive days.

   Manufactured home park: A parcel or contiguous parcels of land divided into two or more manufactured home lots for rent or sale.

   New construction: Any structure for which construction began on or after the date of entry into the Regular Program or the date this Article took effect, whichever occurred first.

   100-year flood: A flood that has a one percent chance of being equalled or exceeded in a given year. Unless otherwise stated, this calculation is based on the contributing watershed being completely under existing zoning.

   Permanent construction: Any structure built or placed on a site for more than 180 consecutive days.

   Permittee: Any person who receives a permit under this article.

   Person: Any individual, corporation, partnership, joint venture, firm, unincorporated association, municipal, county or state agency, or any combination.

   Principally above ground: Any structure with at least 51 percent of the actual cash value of the structure, not including the land value, above ground.

   Recreational Vehicle: A vehicle built on a single chassis which is 400 square feet or less at the longest horizontal projection, self propelled or towable, and designed primarily for temporary living while traveling or camping.

   Start of construction: The earlier of:

   (a)   The date the building permit was issued, if construction, repair, reconstruction, placement, substantial improvement, or other improvement starts within 180 days after the permit is issued; or

   (b)   The actual start of construction, which means either:

      (1)   the first placement or permanent construction of a structure on a site, such as the pouring of a slab or footings; or

      (2)   any work beyond the excavation stage.

   Structure: A walled or roofed building that is principally above ground and affixed to a permanent site or location. Structure includes a utility shed, barn, gas or liquid storage tank, building foundation, platform, deck, swimming pool, bulkhead, or greenhouse.

   Subdivision: The division or redivision of any lot, tract, or parcel of land by any means into two or more lots, tracts, parcels, or other divisions of land. Subdivision includes a change in existing lot lines for the immediate or future purpose of lease, transfer of ownership, building, or development.

   Substantial Damage: Damage of any origin sustained by a structure if the cost of restoring the structure to its previous condition is at least 50% of the market value of the structure before the damage occurred.

   Substantial improvement: Any repair, reconstruction, or improvement of a structure, if the total cumulative cost equals or exceeds 50 percent of the market value of the structure either:

   (a)   Before the improvement or repair is started; or

   (b)   Before the damage occurred, if the structure has been damaged and is being restored.

   Substantial improvement occurs when the first alteration of any wall, ceiling, floor, or other structural part of a building begins, whether or not that alteration affects the external dimensions of the structure.

   Substantial improvement does not include:

   (a)   Any improvements of a structure to comply with State or local health, sanitary, or safety codes which is necessary to assure safe living conditions; or

   (b)   Any alteration of a structure listed on the National Register of Historic Places or the State Inventory of Historic Places.

   Temporary development: Any structure or construction

   (a)   used in construction work, such as a construction shed, seat, canopy, tent or fence; or

   (b)   for a temporary purpose, such as a reviewing stand, fair, carnival or flea market, which is completely removed after 180 days or less.

   Watercourse: Any natural or artificial waterway including a stream, river, creek, ditch, channel, canal, conduit, culvert, drain, waterway, gully, ravine, or wash, in which water flows either continuously or intermittently.

   Wetland means any land which is:

   (1)   considered private wetland or State wetland under Title 16 of the Environment Article of the Maryland Code; or

   (2)   defined as a wetland under the procedures described in the most recent Federal manual for Identifying and Delineating a Jurisdictional Wetland. (1989 L.M.C., ch. 39, § 4; 1992 L.M.C., ch. 33, § 2; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C., ch. 16, § 1; 2010 L.M.C., ch. 49, § 1.)