Delaware lawmakers passed a law in 1991 requiring new housing subdivisions to install and maintain their own systems to collect and treat stormwater.

Two decades later, the first generation of ponds, swales, and other infrastructure mandated by the law began to fall into disrepair and fail. Quickly overwhelmed, homeowners’ associations turned to the public sector for help.

In Kent County, officials crafted a solution in 2014 that may be the only one like it in the country: a stormwater management district for communities that mandates buy-in for new construction but allows existing neighborhoods to participate voluntarily.

The key word is “voluntary.”

Jared Adkins, program manager for the Kent Conservation District in Delaware, oversees stormwater management in the county. Credit: Jeremy Cox / Bay Journal Media

“Kent County is a pretty conservative place,” said David Athey, a Newark, DE, stormwater consultant who was contracted by the county to help design the program. “If the government had come out and said you absolutely need to do this, there would have been pushback and opposition.”

There are 1,500–2,000 jurisdictions nationwide with mandatory stormwater fees in place — usually called “stormwater utilities.” The result is a continual stream of funding to address the never-ending stream of maintenance and repairs needed for infrastructure that manages stormwater and reduces flood risks.

A pillar of the arrangement is that everyone pays, even churches and other nonprofits that are normally exempt from property taxes. That ensures the practice is equitable and keeps fees as low as possible, advocates say. But such fees often encounter setbacks.

For example, the Maryland General Assembly required the 10 largest jurisdictions to charge fees to cover stormwater costs in 2013, triggering a backlash that derided it as a “rain tax.” Lawmakers later backed off the fee but said that municipalities still had to come up with ways to show they are funding stormwater obligations under the federal Clean Water Act.

As Sarah Keifer recalls, Kent County officials made the call early not to pursue a fully mandatory fee. “It does seem to be politically fraught,” said Keifer, head of the county’s planning department.

Warning signs stand outside a pond at a sub-division in Kent County, DE, that participates in the Kent County stormwater management district. Credit: Jeremy Cox / Bay Journal Media

Kent County still had a problem, though. Between 1991 and the early 2010s, a county study shows, developers constructed nearly 1,000 bio-retention swales, dry ponds and other stormwater infrastructure in the county. Many were in good working order. But some had become choked with sediment or invasive plants. Others had costlier problems, such as sinkholes caused by leaking underground pipes.

“We were building more and more stormwater facilities, but we didn’t have good mechanisms in place to ensure their long-term maintenance,” said Jared Adkins, program manager with the Kent Conservation District, which oversees stormwater management in the county.

Upkeep of the facilities in subdivisions had fallen to homeowners associations, which lacked the experience and financial resources to deal with them, Keifer said. Before long, the issue evolved into a political problem.

“On the elected official side,” Keifer said, “it was, ‘Homeowner associations are yelling at us. Make them stop yelling at us.’?”

Thus, the Kent County Stormwater Maintenance District was born.

How it works: After submitting a notice of intent to join the program, residents must collect signatures from at least 51% of lot owners in a particular neighborhood to move forward. The conservation district will inspect the facilities; all must pass inspection before a community can join, so some repair costs may be involved in the front end.

After those steps are completed, the action faces a public hearing and a vote before the county’s top elected board.

For a $28 annual fee per lot owner, the conservation district inspects the best-management practices twice a year and conducts routine maintenance. The county handles the program’s administration. Aesthetic work, such as grass-mowing, is not included.

But if a problem winds up costing thousands of dollars to repair, that cost is borne by the district. Requiring existing communities to pass inspection before joining has helped ward off any big repair bills during the program’s infancy, officials say. Their goal is to save enough money over time to absorb any hefty hits that come along.

For Michael Cosgrove, who persuaded his neighbors to join the district early on, the district is a financial safety net. The 37-home community has several swales and a large dry pond.

“If that pond had to be redone, the cost per person per home could be astronomical,” said Cosgrove, who has since moved to a different community in the county that also participates in the program. “It was actually very cheap insurance for something that could cost tens of thousands a year.”

Keifer said that the county’s approach — less top-down, more like a partner — has helped the district steer clear of controversy. “It was so easy to get people to understand the inherent risk to themselves. So, it’s very easy to find allies,” she added.

After an initial influx of communities joining the program, though, the pace has slowed in recent years. New subdivisions are required to join, but only a handful has been constructed since the district was rolled out. As a result, of the 191 subdivisions built since 1991, only 34 have signed up. Another 11 have started the application process.

That, Athey said, is the downside of making it voluntary.

“That means there’s still 80% out there” that aren’t participating, he said. “Even if you have a few join every year, there’s still a huge coverage gap. You still have all these basins out there that probably aren’t being maintained properly.”

It may be just a matter of time before more communities join, Keifer said.

“Just practically speaking, if people start seeing failures, they’re going to come to the government and ask us to fix it,” she said. “That’s our message. Do this now because it will save you money.”

This article originally appeared on on September 23, 2020, and is reprinted with permission for Bay Journal Media.

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