Can a Maryland county charge property owners a stormwater management fee, and is it legally a fee or a tax?

Plain-English summary

Anne Arundel County Executive Janet S. Owens asked the Attorney General to clarify the "system of charges" that Environment Article §4-204(d) lets a county or municipality adopt to fund its stormwater management program. The County's own lawyers had already concluded the statute authorized an excise tax rather than a fee, but found the statute ambiguous about how such a tax could actually be imposed and asked the AG's office for further guidance.

The opinion concluded the statute is more flexible than the County's office of law assumed: EN §4-204(d) lets a local government impose the charge as a regulatory fee, a tax, or some combination of the two, and which one applies in a given jurisdiction depends on how that jurisdiction actually writes its own ordinance, not on anything in the state statute that forces one label or the other. Tracing the statute's legislative history from a narrow 1982 fee-only version through 1992 "clarifying" amendments that broadened the funded activities and added tax-like collection language, the opinion found the General Assembly had deliberately given local governments this choice.

On the second question, the opinion concluded that if a local government does structure the charge as a tax, it should be treated as an excise tax (based on the use of property) rather than a property tax (based on ownership and assessed value), since the statute's language authorizing collection "in the same manner as" property taxes implies the charge is not itself a property tax. On the third question, the opinion found nothing in the statute limiting the charge to a one-time payment collected only when a stormwater management plan is submitted; a local government may instead impose the charge periodically, such as through an ongoing stormwater utility fee.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, statute, or classification mentioned here.

Common questions

Is a stormwater management fee charged by a Maryland county actually a tax?
According to this opinion, it depends on how the county writes its own ordinance. The state statute, Environment Article §4-204(d), authorizes local governments to impose the charge as either a regulatory fee or a tax, so the classification turns on the terms of the local legislation implementing the charge, not on the state law itself.

If a county's stormwater charge counts as a tax, is it treated like a property tax bill?
No, according to this opinion. It concluded that a stormwater charge structured as a tax should be an excise tax, based on a property's use (such as the amount of impervious surface generating runoff), rather than a property tax based on ownership and assessed value, and so is not subject to the state constitutional uniformity requirement that governs property taxes.

Can a county only collect a stormwater fee once, when a developer files a stormwater management plan?
No. The opinion concluded nothing in the statute limits the charge to a single payment tied to plan submission. A local government may instead impose ongoing periodic charges, such as through a dedicated stormwater utility charge, as long as the revenue is dedicated to a purpose the statute allows.

Background and statutory framework

Maryland's 1984 stormwater management law required every county and municipality to adopt an ordinance implementing a stormwater management program, generally conditioning building and grading permits on approval of a stormwater management plan under Environment Article §4-204(a). The provision at issue, EN §4-204(d), lets local governments adopt a "system of charges" to fund activities ranging from plan review and inspection to watershed planning, construction of stormwater systems, and water quality monitoring, with charges collectible "in the same manner as county and municipal property taxes."

The opinion traced this provision's history from its original 1982 enactment, which authorized only a narrow fee capped at the cost of reviewing stormwater plans, through a legislative committee amendment the same year that broadened it to cover the cost of implementing entire stormwater programs, to 1992 "clarifying" amendments that renamed it a "system of charges," listed the broader range of fundable activities, and added the property-tax-like collection language. Applying the framework from Eastern Diversified Properties, Inc. v. Montgomery County for distinguishing a tax from a regulatory fee based on the purpose of the charge, and the three-factor test from Waters Landing Ltd. P'ship v. Montgomery County for distinguishing an excise tax from a property tax (label, actual operation and effect, and method of fixing the amount), the opinion concluded local governments retain discretion to structure the charge either way, since the delegation of taxing authority to local governments must be strictly construed under Controller, Anne Arundel County v. Pleasure Cove Yacht Club, Inc.

Citations and references

Statutes:
- Maryland Declaration of Rights, Article 14, requiring General Assembly authorization for any tax or fee
- Article 15 of the Declaration of Rights, the property tax uniformity requirement
- Environment Article §4-201, the legislative findings behind the stormwater management law
- Environment Article §4-202, requiring local stormwater management ordinances
- Environment Article §4-203, requiring Department of Environment regulations on stormwater management
- Environment Article §4-204(a), conditioning development on submission of a stormwater management plan
- Environment Article §4-204(d) and §4-204(d)(3), authorizing the "system of charges" and its collection in the same manner as property taxes
- Environment Article §4-205, exempting State and federal construction activities
- Environment Article §4-206, requiring periodic Department review of local stormwater programs
- Environment Article §§4-208 through 4-215, enforcement and penalty provisions
- 33 U.S.C. § 1342(p), the federal Clean Water Act stormwater discharge permit provision

Cases:
- Eastern Diversified Properties, Inc. v. Montgomery County, 319 Md. 45, 53, 570 A.2d 850 (1990), the purpose-based test for distinguishing a tax from a regulatory fee
- United States v. State Tax Comm'n of Mississippi, 421 U.S. 599, 606 (1975), defining a tax as an enforced contribution supporting government
- United States v. La Franca, 282 U.S. 568, 572 (1931), on the nature of a tax
- Allied Am. Mut. Fire Ins. Co. v. Comm'r of Motor Vehicles, 219 Md. 607, 616, 150 A.2d 421 (1959), on taxes needing no connection between who pays and who benefits
- West Capital Assoc. Ltd. P'ship v. City of Annapolis, 110 Md. App. 443, 450, 677 A.2d 655 (1996), on user fees as a category distinct from taxes and regulatory fees
- Maryland Theatrical Corp. v. Brennan, 180 Md. 377, 381-82, 24 A.2d 911 (1942), on a tax's primary revenue-raising purpose
- Mayor and City Council of Ocean City v. Purnell-Jarvis, 86 Md. App. 390, 405, 586 A.2d 816 (1991), on the reasonableness standard for regulatory fees
- County Comm'rs of Anne Arundel County v. English, 182 Md. 514, 520, on regulatory measures requiring more than mere payment
- Walton v. Mariner Health of Maryland, Inc., 391 Md. 643, 664, 894 A.2d 584 (2006), on ascertaining legislative intent from statutory text
- Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987), on looking beyond plain text to legislative history
- Weaver v. Prince George's County, 281 Md. 349, 357, 379 A.2d 399 (1977), defining property tax and excise tax
- Waters Landing Ltd. P'ship v. Montgomery County, 337 Md. 15, 26, 650 A.2d 712 (1994), the three-factor test distinguishing an excise tax from a property tax
- Auto. Trade Ass'n v. Ins. Comm'r, 292 Md. 15, 24, 437 A.2d 199 (1981), on rejected legislative amendments as weak evidence of intent
- Controller, Anne Arundel County v. Pleasure Cove Yacht Club, Inc., 334 Md. 450, 464, 639 A.2d 685 (1994), on strictly construing delegated local taxing authority
- Design Kitchen and Baths v. Lagos, 388 Md. 718, 728, 882 A.2d 817 (2005), on construing statutes so no language is rendered surplusage

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2006/91oag152.pdf

Original opinion text

152 [91 Op. Att'y

                LOCAL GOVERNMENT

E NVIRONMENT – T AXATION – N ATURE OF THE “S YSTEM OF
C HARGES” T HAT A C OUNTY OR M UNICIPALITY M AY IMPOSE
TO S UPPORT S TORMWATER M ANAGEMENT P ROGRAMS

                        July 11, 2006

The Honorable Janet S. Owens
County Executive
Anne Arundel County

  You have requested our opinion concerning the "system of

charges" that a local government is authorized to impose for
stormwater management programs under the Annotated Code of
Maryland, Environment Article ("EN"), §4-204(d). Specifically,
you ask: (1) whether the authorized charges are in the nature of a
regulatory fee or a tax; (2) if the authorized charges are in the nature
of a tax, whether the tax would be an ad valorem property tax or an
excise tax; and (3) if the authorized charges are an excise tax,
whether that tax may be assessed other than on submission of a
stormwater management plan.

  Consistent with our policy governing opinion requests from

local governments, you included with your request a well-researched
opinion from the Anne Arundel County Office of Law.
Memorandum from David A. Plymyer, Deputy County Attorney, to
Honorable Janet S. Owens (November 22, 2005). That opinion
concluded that the statutory reference to a "system of charges"
authorizes imposition of an excise tax rather than a regulatory fee or
ad valorem property tax. However, the opinion cautioned that the
statute is ambiguous as to how such a tax might be imposed and
advised you to seek further guidance from our Office.

  For the reasons explained below, it is our opinion that EN

§4-204(d) allows the governing body of a county or of a municipal
corporation to impose charges in the form of either a regulatory fee
or a tax, or a combination of fee and tax, for the purposes set forth
in the statute. The appropriate characterization of the charge will
depend on the terms of local legislation implementing the charges.
To the extent that a charge imposed is an excise tax, it need not be
limited to charges collected upon the filing of a stormwater
management plan.

Gen. 152] 153

                              I

              Stormwater Management Law

 In enacting the stormwater management statute, the General

Assembly found that stormwater management was necessary "to
reduce stream channel erosion, pollution, siltation and
sedimentation, and local flooding" in order to protect the State's
water and land resources. See EN §4-201. The law was intended "to
reduce as nearly as possible" the adverse effects of stormwater
runoff. Id. The law required each county and municipality to adopt,
by July 1, 1984, an ordinance to implement a stormwater
management program. EN §4-202.[1] A local government's program
must be reviewed by the Department of Environment at least once
every three years in accordance with Department regulations. EN
§4-206; COMAR 26.17.02.03C. The Department is charged with
adopting regulations concerning stormwater management which
must address, among other things, minimum factors that local
ordinances or regulations must include and minimum inspection and
maintenance practices. EN §4-203.

  The law generally prohibits the development of land for

residential, commercial, industrial, or institutional use unless the
developer first submits a stormwater management plan to the
appropriate jurisdiction. EN §4-204(a). The statute makes building
and grading permits contingent on approval of the plan by the
jurisdiction or the local soil conservation district. EN §4-204(a) and
(c); see also COMAR 26.17.02.05.

 Your inquiry concerns a part of the statute that authorizes a

local government to assess "charges" to fund its stormwater
management program. That provision states:

             (1) Each governing body of a county or
        municipality may adopt a system of charges to
        fund the implementation of stormwater
        management programs, including the
        following:

154 [91 Op. Att'y

            (i)      Reviewing     stormwater
      management plans;

                (ii)    Inspection and enforcement
      activities;

                (iii)   Watershed planning;

               (iv)    Planning, design, land
      acquisition, and construction of stormwater
      management systems and structures;

               (v)      Retrofitting developed areas
      for pollution control;

              (vi)     Water quality monitoring and
      water quality programs;

                (vii)    Operation and maintenance
      of facilities; and

                (viii) Program development of these
      activities.

          (2) The charges shall take effect upon
      enactment by the local governing body.

          (3) The charges may be collected in the
      same manner as county and municipal
      property taxes, have the same priority, and
      bear the same interest and penalties.

EN §4-204(d). Stormwater management plans for construction
activities by the State or federal government are administered
through the Department of Environment and the provisions of EN
§4-204 do not apply. EN §4-205. Remaining provisions of the
statute deal primarily with the enforcement activities by the
Department of Environment as well as civil and criminal penalties
for violations. EN §§4-208 through 4-215.

Gen. 152] 155

                               II

                           Analysis

A. Whether the Statute Authorizes a Fee or a Tax

 A local government may not impose any type of charge,

regardless of whether it is designated a tax or a fee, without the
authorization of the General Assembly. Maryland Declaration of
Rights, Article 14. In EN §4-204(d), the General Assembly has
authorized a "system of charges" in connection with stormwater
management programs. You first ask whether such a system of
charges is a regulatory fee or a tax.

        1.    Distinguishing Between Regulatory Fees and Taxes

 To evaluate whether a governmental charge is a tax or a

regulatory fee, one must look to the purpose of the enactment, rather
than simply the label given to that charge.[2] Eastern Diversified
Properties, Inc. v. Montgomery County, 319 Md. 45, 53, 570 A.2d
850 (1990).

   A standard definition of a tax is an "enforced contribution to

provide for the support of government." United States v. State Tax
Comm'n of Mississippi, 421 U.S. 599, 606 (1975), citing United
States v. La Franca, 282 U.S. 568, 572 (1931). In the case of a tax,
"[i]t is no proper objection ... that the benefits paid and those to
whom they are paid are unrelated to the persons taxed and the
amount they pay, or that those who have to pay may not have
contributed to the conditions requiring the tax and may not be
benefitted by the expenditure of the tax money." Allied Am. Mut.
Fire Ins. Co. v. Comm'r of Motor Vehicles, 219 Md. 607, 616, 150
A.2d 421 (1959). While a tax might include some aspects of
regulation, its primary purpose is raising revenue. Eastern
Diversified Properties, 319 Md. at 53, citing Maryland Theatrical
Corp. v. Brennan, 180 Md. 377, 381-82, 24 A.2d 911 (1942). In
Eastern Diversified Properties, the Court of Appeals concluded that
a "development impact fee" constituted a tax because it was enacted
predominantly for revenue purposes, involved an involuntary
payment of money (albeit as a condition precedent to obtaining a
building permit), and generated funds to finance road construction,
thereby benefitting the general public. 319 Md. at 55.

   A regulatory measure generally requires compliance with

certain conditions beyond mere payment of a prescribed sum.
Mayor and City Council of Ocean City v. Purnell-Jarvis, 86 Md.
App. 390, 405, 586 A.2d 816 (1991), citing County Comm'rs of
Anne Arundel County v. English, 182 Md. 514, 520. The amount of
revenue generated by a regulatory fee must be "reasonable" and bear
"some definite relation to the purpose of the regulation."[3]
Purnell-Jarvis, 86 Md. App. at 405, citing Maryland Theatrical
Corp. v. Brennan, 180 Md. 377, 381, 24 A.2d 911 (1942). In
Eastern Diversified Properties, the Court looked to the absence of
a nexus between the charges and the stated regulatory purpose, as
well as the fact that revenues would benefit a wide area, to conclude
that the impact fee was not a regulatory fee. 319 Md. at 55; see also
89 Opinions of the Attorney General 212 (2004) (in order for an
impact fee to be a regulatory fee, "there must be an adequate nexus
between the charge imposed and the cost of the services to the
property assessed, and the revenue must be appropriately earmarked
so as to substantially benefit that property").

        2.   Scope of EN § 4-204(d)

  Whether the authority granted under EN § 4-204(d) is in the

nature of a regulatory fee or tax is a question of statutory
interpretation. In interpreting a statute, the cardinal rule is to
"ascertain and effectuate legislative intent." Walton v. Mariner
Health of Maryland, Inc., 391 Md. 643, 664, 894 A.2d 584 (2006).
To be sure, when statutory language is clear and unambiguous, and
consistent with the statute's objectives, the words will be accorded
their ordinary meaning. Id., However, it is appropriate to look
beyond the plain text of the statute, including its relationship to prior
legislation, when it fairly bears on the fundamental issue of the
Legislature's intent. Kaczorowski v. City of Baltimore, 309 Md. 505,
514-15, 525 A.2d 628 (1987).

        a.   Statutory Text

  In authorizing local governments to create a funding source for

stormwater management programs, the statute uses a broad term,
"system of charges", which is not necessarily associated with either
fees or taxes. The statute states that these charges may be collected
and otherwise treated "in the same manner as county and municipal
property taxes." EN §4-204(d)(3). If the charges were necessarily
property taxes, there would be no need to state that they may be
treated "in the same manner" as property taxes. Thus, the statutory
text indicates that the Legislature contemplated that the charges
could take the form of something other than a property tax.
However, the language itself is ambiguous as to what other forms
the assessment may take. The intent behind EN §4-204(d) is best
understood by reviewing its legislative history.

        b.   1982 Legislation

  The predecessor of EN §4-204 was initially enacted by Chapter

682, Laws of Maryland 1982, codified as §8-11A-04 of the Natural
Resources Article.[4] Among other things, that section required that
a stormwater management plan be submitted and approved before a
building or grading permit could be issued. As introduced, the bill
addressed the authority of a county or municipality to impose a fee:

            Each county or municipality may adopt a
        fee system to cover the costs of reviewing
        stormwater management plans. The fee shall
        take effect upon enactment by the local
        governing body. Any fees collected under this
       system shall be supplementary to county and
       State funds and may not:

           (1) Be used to reduce county or State
       funds; and;

           (2) Exceed the cost of reviewing the
       plans.

House Bill 1091, first reader version (1982). Thus, as originally
introduced, the bill would have authorized a regulatory fee to allow
local governments to recapture the actual costs of reviewing
stormwater management plans.

  However, the bill was amended significantly in the House

Environmental Matters Committee. The amendment expanded the
language authorizing the imposition of fees in order to allow local
governments to recover the costs of "implementing stormwater
management programs" as well as the cost of reviewing plans. See
Environmental Matters Committee Amendment No. 3, 1982
Maryland House Journal at 2130. In addition, the amendment
eliminated the provision that prohibited the fees from exceeding the
cost of reviewing stormwater management plans or from being used
in substitution of county or State funds. Id.[5]

  Thus, as enacted in 1982, the statute provided local

governments with enabling authority to impose fees to offset
program costs. In exercising that authority, a local government had
several options. It could impose a fee calculated to offset only the
costs of reviewing a plan, a fee that would fit the classic notion of
a regulatory fee. Alternatively, it could impose fees at a level to
recover the total costs of its stormwater management program,
including funding for projects unrelated to the development of a
particular property on which a fee was imposed, a fee more likely
to be characterized as a tax. Or it could choose to impose no fee at
all. Whether a charge imposed by a particular government was a fee
or a tax would require an evaluation of the local ordinance.

  A 1991 advice letter of this Office interpreting the statute

similarly concluded that EN §4-204(d) authorized a local
government to enact fees that would be considered taxes, such as a
stormwater utility fee, in addition to regulatory fees. However, the
letter recommended that the statute be clarified to eliminate any
doubt on that question. Letter from Assistant Attorney General
Kathryn M. Rowe to William Miles, Department of Fiscal Services
(October 3, 1991).

        c.   1992 Legislation

  During the 1992 session of the Legislature, the Department of

Environment proposed legislation that amended EN §4-204(d) to its
current form. Chapter 135, Laws of Maryland 1992. Those
amendments substituted the phrase "system of charges" for a "fee
system," listed a wide range of activities that could be supported by
the revenues generated by the charges, and added the authority to
collect the charges "in the same manner" as local property taxes.
The fiscal note described the 1992 bill as "clarif[ying] the authority
of each county or municipality to adopt a system of charges to fund
the implementation of stormwater management programs by
specifying the activities that may be funded by a local government
fee system [and providing that] the charges may be collected in the
same manner as county and municipal property taxes." Fiscal Note
on House Bill 252 (1992).

  At the time the 1992 legislation was being considered, local

governments had to cope with both new costs and the loss of a
revenue source for stormwater management. In amending the Clean
Water Act in 1987, Congress phased in National Pollutant Discharge
Elimination System permit requirements for municipal stormwater
discharges over a several-year period, based on the population
served. See 33 U.S.C. § 1342(p). At the same time, the State's
fiscal difficulties during the early 1990s resulted in the elimination
of State grant money that had previously been available for
stormwater management programs. See Fiscal Note on House Bill
252 (1992).

  Whether the 1992 amendments are viewed as an expansion of

permissible charges or simply as "clarifying" legislation, the basic
structure of the statute remained unchanged. It provided enabling
authority under which a local government could impose charges in
connection with mandated stormwater management programs.
While revenue collected under that authority would be dedicated to
the local government's stormwater management program, the statute
provided sufficient authority for the local government to enact either
a regulatory fee or a dedicated tax.[6]

B. Whether a Charge is a Property Tax or Excise Tax

  You asked whether a tax imposed under EN §4-204(d) would

be an ad valorem property tax or an excise tax. A property tax is a
charge on the ownership of property, without regard to the use made
of the property. Weaver v. Prince George's County, 281 Md. 349,
357, 379 A.2d 399 (1977). It is based on the assessed valuation of
the property. Waters Landing Ltd. P'ship v. Montgomery County,
337 Md. 15, 26, 650 A.2d 712 (1994). A property tax generally is
subject to the uniformity clause under Article 15 of the Declaration
of Rights. Thus, within a given class of property, each taxpayer's
property is to be assessed at the same proportion of market value and
the same rate should be applied by the taxing authority. 62 Opinions
of the Attorney General 54, 56 (1977).

   An excise tax is a tax imposed upon the performance of an act,

the engaging in an occupation, or the enjoyment of a privilege.
Waters Landing, 337 Md. at 26. In recent years, courts have
employed an expanded definition of the term to embrace any tax that
is not a direct burden on property. Weaver v. Prince George's
County, 281 Md. at 357-58. An excise tax is not subject to the
uniformity requirements of Article 15 of the Declaration of Rights.
Id. at 365.

  Traditionally, courts have applied a three-factor test to

distinguish an excise tax from a property tax. First, the label
attached by the appropriate legislative body, while not determinative,
is entitled to "considerable weight." Waters Landing, 337 Md. at 25.
A second factor is the "actual operation and practical effect" of the
tax. Id. In terms of accessing the use of property, "[t]he privilege
of using property is only one of the many incidents which make up
the bundle of rights, powers, privileges and immunities, collectively
regarded a property or ownership. ... [A] tax imposed upon a
particular use of property... is an excise." Weaver, 281 Md. at 359
(internal citations omitted). Thus, a tax based on some value related
to the use of property, rather than on ownership alone, is an excise
tax. See also 74 Opinions of the Attorney General 268, 271 (1989).
Finally, the method used to impose the tax, that is, fixing the
amount, is considered. Waters Landing, 337 Md. at 26. An excise
tax is imposed without regard to the assessed valuation of property.
Id.

  As the County Office of Law correctly points out, the

delegation of the State's taxing authority to local governments is to
be strictly construed. Controller, Anne Arundel County v. Pleasure
Cove Yacht Club, Inc., 334 Md. 450, 464, 639 A.2d 685 (1994). The
language of EN §4-204(d) indicates that a charge authorized by that
statute may be distinct from a property tax in that it authorizes
collection "in the same manner as ... property taxes" may be
collected. EN §4-204(d)(3). In our view, the statute authorizes the
County to impose an excise tax, reflecting the use of property, to
fund ongoing stormwater management efforts.

  If the County chooses to impose a tax under EN §4-204(d), it

may prefer to structure the tax as an excise tax rather than an ad
valorem property tax. Otherwise, there may be little to distinguish
the stormwater management charge from the general property tax.
Furthermore, a property tax would need to be implemented in
accordance with Article 15 of the Declaration of Rights.[7]

C. Timing of Assessments

  Finally, we turn to the question of whether charges might be

imposed under EN §4-204(d) at a time other than the submission of
a stormwater management plan.

  The statute certainly authorizes imposition of a charge as a

condition precedent to issuance of a grading or building permit.
However, nothing in the text of the statute limits a local
government's authority to a one-time fee. This construction is also
supported by the statutory direction that "charges may be collected
in the same manner as county and municipal property taxes, have the
same priority, and bear the same interest and penalties." EN
§4-204(d)(3). If charges were to be limited to a one-time payment,
required as a condition precedent for issuance of a building or
grading permit, this language would be rendered superfluous since
nonpayment would have foreclosed issuance of a permit. To
construe the statute as limited to authorizing a one-time charge, i.e.,
at the time a stormwater management plan is submitted, would
violate an oft-repeated rule of statutory construction, that is, a statute
is to be construed so that "no word, phrase, clause or sentence is
rendered surplusage or meaningless." Design Kitchen and Baths v.
Lagos, 388 Md. 718, 728, 882 A.2d 817 (2005). In our view, EN
§4-204(d) grants local governments significant flexibility in
designing stormwater management charges, provided that the
revenue is dedicated to a purpose consistent with the statute.[8]

  The legislative history supports this conclusion. As outlined

above, the original version of 1982 bill clearly contemplated a one-
time regulatory fee, offsetting the cost of reviewing a stormwater
management plan. House Bill 1091 (1982) (first reader version).
Unless the charge was paid, a plan would not be reviewed, permits
would not be issued, and development could not proceed. However,
as noted above, in the course of enacting the legislation, the
Legislature expanded local authority to impose charges; no longer
was this authority necessarily limited to a one-time fee. In 1992, the
"clarifying" legislation added the language in EN §4-204(d)(3),
quoted above, that provides for the collection of charges in the same
manner as local taxes.

                             III

                        Conclusion

  In our opinion, EN §4-204(d) allows the governing body of a

county or of a municipal corporation to impose charges in the form
of either a regulatory fee or a tax, or a combination of fee and tax,
for the purposes set forth in the statute. The appropriate
characterization of the charge will depend on the terms of local
legislation implementing the charges. To the extent that the charge
imposed is an excise tax, it need not be limited to charges collected
upon the filing of a stormwater management plan.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       William R. Varga
                                       Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

[1] A municipality may rely on a county's stormwater management
program in certain circumstances as an alternative to creating its own
program. See COMAR 26.17.02.04.A.

[2] A third category of charges are user fees or services charges,
which are neither regulatory fees nor taxes, but rather charges based on a
commodity or service consumed, such as charges for water or sewer
service. See West Capital Assoc. Ltd. P'ship v. City of Annapolis, 110
Md. App. 443, 450, 677 A.2d 655 (1996); see also 91 Opinions of the
Attorney General 14, 17-18 (2006). Stormwater management charges
might be based on "use" in terms of the demand a particular property
makes on a stormwater system by relating the amount of the charge to
factors such as the amount of impervious surface on the property.
However, under typical stormwater management practices, such a formula
is unlikely to be a sufficient measure of the service provided to the
property to be a user fee in the same sense as a water or sewer charge.

[3] While a regulatory fee is subject to review as to its
reasonableness, the amount of a tax is not subject to judicial review.
Purnell-Jarvis, 86 Md. App. at 405.

[4] When the stormwater management legislation was initially
enacted in 1982, the Department of Natural Resources was charged with
its administration. See Chapter 682, Laws of Maryland 1982. However,
effective July 1, 1987, as part of a State government reorganization,
responsibility was transferred to the Department of Environment. Chapter
306, § 3, Laws of Maryland 1987. The law was transferred from the
Natural Resources Article to its current codification.

[5] Additional amendments were adopted by both the House of
Delegates and the Senate, but the language relating to the imposition of
fees was not otherwise altered. See 1982 Maryland House Journal at
2130 and 1982 Maryland Senate Journal at 3595-96.

[6] During the 1992 legislative session, Montgomery County
proposed an amendment of the statute making clear that charges under EN
§4-204(d) would be in the nature of a tax. See, e.g., testimony of Edward
U. Graham, Director, Montgomery County Department of Environmental
Protection before the before the House Environmental Matters Committee
(January 28, 1992). This suggestion was not adopted. Although one might
interpret the failure to adopt the suggested amendment as evidence that the
Legislature did not intend to authorize a tax, an equally plausible
explanation is that it was felt that the existing language gave local
governments discretion to devise a charge as either a regulatory fee or a
tax. In any event, the risk of reading too much into rejected amendments
is why the Court of Appeals has suggested that the failure to enact a
particular legislative proposal is a "rather weak reed upon which to lean
in ascertaining legislative intent." Auto. Trade Ass'n v. Ins. Comm'r, 292
Md. 15, 24, 437 A.2d 199 (1981).

[7] As the County's Office of Law pointed out, a property tax would
also raise issues under the County's local laws.

[8] For example, a local government could create a stormwater utility
and impose periodic charges based on factors such as the use of property
and degree of impervious area to fund ongoing stormwater management
efforts throughout the jurisdiction. See, e.g., Brisman, Considerations in
Establishing a Stormwater Utility, 26 S. Ill. U. L.J. 505 (2002). Of
course, this approach would almost certainly be considered a tax rather
than a regulatory fee.