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104 Op. Md. Att'y Gen. 3 (2019)

handle is hein.sag/sagmd0108 and id is 1 raw text is: ENVIRONMENT LAND USE & PLANNING - GROWTH TIERS - WHETHER A LOCAL JURISDICTION IS PROHIBITED FROM AUTHORIZING MAJOR SUBDIVISIONS SERVED BY SEPTIC SYSTEMS IF THE JURISDICTION'S GROWTH TIERS DO NOT COMPLY WITH THE STATUTORY CRITERIA - WHETHER THE STATE MUST ENFORCE VIOLATIONS OF THE STATUTE February 15, 2019 The Honorable Kumar P. Barve House of Delegates ofMaryland You have asked for our opinion on two questions regarding the Sustainable Growth and Agricultural Preservation Act of 2012 (the Act). See 2012 Md. Laws, ch. 149. The Act was passed in response to a federal mandate under the Clean Water Act that required Maryland to demonstrate how it would reduce nutrient pollution to the Chesapeake Bay, including how it would reduce nitrogen discharges from on-site sewage disposal systems, more commonly known as septic systems or septics. 2012 Md. Laws, ch. 149, Preamble; see also U.S. Environmental Protection Agency's Interim Expectations for the Phase III Watershed Implementation Plans (Jan. 2017 Interim Version) (Phase III Interim Letter). In an effort to fulfill that mandate, the Act effectively requires that local jurisdictions wishing to authorize certain types of major residential subdivisions-especially major subdivisions on septics-must first adopt a map of up to four growth tiers. Those growth tiers, broadly speaking, describe the type of development that may occur in each tier and set the method of sewage treatment that may be used for residential subdivisions within each tier. See Md. Code Ann., Land Use (LU) § 1-502; Md. Code Ann., Envir. (EN) § 9-206. A local jurisdiction that does not adopt tiers in accordance with the Act is prohibited, among other things, from authorizing a major residential subdivision served by septics anywhere in the jurisdiction. EN § 9-206(f). Instead, such a local jurisdiction may authorize a major subdivision only if the subdivision will be served by public sewer and is located in an area that meets the criteria for Tier I land. See EN § 9-206(f)(2). According to your request, one local jurisdiction has adopted growth tiers that do not meet the Act's criteria for determining which area should be included in which tier. See LU § 1-508 (setting those criteria). Based on that understanding, you ask two questions, which we have rephrased slightly: 3

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