COMAR 26.04.02.01 - .12
Department of the Environment: Regulation of Water Supply, Sewage Disposal, and
Solid Waste: Sewage Disposal and Certain Water Systems for Homes and Other
Establishments in the Counties of Maryland Where a Public Sewage System is Not
Available
POSITION: OPPOSE
The Maryland Association of REALTORS® (MAR) opposes the proposed regulation
26.04.02 affecting on-site sewage disposal systems (OSDS) published in the June 1
Maryland Register. This regulation will require Best Available Technology (BAT)
systems for new residential construction in the Chesapeake Bay and Atlantic Coastal
Bays watersheds. MAR believes the changes recommended in 26.04.02 can only be
implemented by the Maryland General Assembly.
No Statutory Authority for Expanded BAT Requirement
Section 9-1108 of the Environment Article states the specific circumstances under which
“nitrogen removal technology” (BAT systems) may be required. That section requires
BAT systems only for residential and commercial properties located in the Chesapeake
and Atlantic Coastal Bays Critical Areas. Despite this specific statutory authority
limiting BAT systems to the Critical Areas, 26.04.02 would expand the BAT requirement
well beyond the Critical Areas.
The regulatory authority exercised by MDE or any other state agency is a function of the
authority granted to it by the Legislature. If the Legislature has acted in a particular area,
such as requiring BAT systems for the Critical Areas, MDE cannot arbitrarily expand its
BAT authority beyond that granted in the statute.
Maryland case law further establishes two important principles of legislative construction
relevant to this. In State v. Harris, 327 Md. 32, 39 (1992) the Court of Appeals stated:
“if two statutes contain an irreconcilable conflict, the statute whose relevant
substantive provisions were enacted most recently may impliedly repeal any
conflicting provision of the earlier statute.”
In Farmers &Merchants National Bank of Hagerstown v. Schlossberg, 306 Md. 48, 63
(1986), the Court of Appeals stated:
“It is well settled that when two statutes, one general and one specific, are found
to conflict, the specific statute will be regarded as an exception to the general
statute.”
In this particular regulation, MDE general rulemaking authority is trumped by the
specific constraints that the Maryland Legislature placed on the use of BAT systems, and
MDE’s rulemaking authority extends only to implementing those statutory requirements.
200 Harry S Truman Parkway – Suite 200 • Annapolis, Maryland 21401-7348
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That the Legislature did not intend the broad grant of authority that the proposed
regulation would assert is clear. When the current BAT requirement in Section 9-1108
(through the Chesapeake Bay Nitrogen Reduction Act of 2009) was passed, the
Legislature considered requiring BAT systems for the entire State of Maryland.
However, as the Act moved through the legislative process, the General Assembly
specifically rejected a broad requirement for BAT systems throughout the State, and
amended the Act’s BAT requirement to apply only to the Critical Areas. The proposed
regulation 26.04.02 is in direct conflict with the specific statutory authority granted by
the General Assembly only 3 years ago.
Moreover, the Chesapeake Bay Nitrogen Reduction Act of 2009 was one of at least 9
bills that the Legislature has considered in the last 13 years that would have regulated or
limited septic systems in some way. The most recent bill was the Sustainable Growth
and Agricultural Preservation Act of 2012. Clearly, the Legislature has carefully
considered what authority it is willing to grant state agencies to control pollution from
OSDS, and what authority it is unwilling to grant those agencies.
Year Bill Number
Legislative History of Septic Legislation
Requirements as Bill
Requirements as Bill Passed
Introduced
2012
HB 445
SB 236
Required all new subdivisions to limit
septics to specific development tiers
2011
HB 1107
SB 846
HB 177
SB 160
HB 62
Prohibited Septic systems in new major
subdivisions
2011
2010
2009
2005
HB 176
SB 554
SB 996
2004
HB 555
SB 320
2001
HB 321
2000
HB 283
SB 210
Requires all new subdivisions to limit septics to
specific development tiers but curtailed certain
state agency powers related to the creation of the
“tiers”
Bill did not pass but was reviewed by a task force
Required all new residential construction in
Maryland located in the Chesapeake and
Atlantic Coastal Bays to use BAT systems
Required MDE to provide 100% grants to
homeowners required to use BAT systems
in critical areas
Required all septic systems in Maryland to
use BAT systems
Bill did not pass
Gave MDE specific statutory authority to
impose standards for septic systems
throughout the state and require licensing of
septic contractors
Required property owners to pay a Bay
Restoration fee for, among other things,
upgrade of septic systems to BAT
technology
Applied only to new construction. Required
BAT systems for many different areas
throughout Maryland, including critical
areas, and soils with high nitrogen transport
qualities among other areas. Gave MDE
SPECIFIC STATUTORY AUTHORITY
TO REQUIRE BAT SYSTEMS
Applied to existing homes and new
construction. Required BAT systems for
many different areas throughout Maryland,
including critical areas, and soils with high
nitrogen transport qualities. Gave MDE
SPECIFIC STATUTORY AUTHORITY
TO REQUIRE BAT SYSTEMS
Bill did not pass
Requires 100% grants only through 2012 for those
same homeowners
Requires all systems in Maryland “Critical Areas”
to use BAT systems
Many changes were made to the bill, but it
included a dedication of some of the money for
BAT systems
Unfavorable report by Environmental Matters
Bill did not pass
200 Harry S Truman Parkway – Suite 200 • Annapolis, Maryland 21401-7348
800-638-6425 • Fax: 443-716-3510 • www.mdrealtor.org
Need for Better Data
While OSDS are a source of nitrogen loading, the policy interest in OSDS greatly
exceeds the OSDS impact on the environment. It is stated that OSDS accounts for 8% of
the nitrogen loading from Maryland sources. However, because Maryland accounts for
only 20% of the total nitrogen load to the Bay from all sources from all states,
Maryland’s OSDS load to the entire Bay is only about 1.4% of total nitrogen. That 1.4%
is the load from the more than 420,000 OSDS statewide.
Because this regulation affects only new OSDS, it would not reduce the 1.4%
measurably, but would impose a $60 million annual cost (not including maintenance and
operation) on Maryland residents according to the regulation’s own economic impact
analysis. In comparison, the much debated Bay Restoration Fee increase passed this year
will cost Maryland residents about $53 million per year. Moreover, the Bay Restoration
Fee increase was implemented in large part to address wastewater treatment plants, which
contribute more than 4 times the nitrogen to the Bay than OSDS.
Impact on Affordability
As detailed in the regulation, the BAT system requirement will add approximately
$12,000 to the cost of a new home. This is in addition to the $3,000 or more cost that the
Legislature recently mandated on new homes by requiring fire sprinklers. If this
regulation is adopted, $15,000 in additional cost will have been added just this year to
many new homes constructed in Maryland. In a normal market environment, such a large
increase in the cost of a new home would be difficult to overcome. In the difficult market
today, particularly in rural areas, such additional costs have an even more detrimental
effect.
MAR believes this regulation exceeds MDE’s statutory authority, imposes a costly
requirement that is not commensurate with the environmental benefit it will bestow, and
will diminish housing affordability. For those reasons, we urge MDE to withdraw
26.04.02.
200 Harry S Truman Parkway – Suite 200 • Annapolis, Maryland 21401-7348
800-638-6425 • Fax: 443-716-3510 • www.mdrealtor.org