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Stormwater Facility Maintenance--Structural vs. Non-Structural Maintenance

Community Associations Update

Ever since Montgomery County instituted the 2002 program allowing residential community associations to transfer the structural maintenance responsibilities of their stormwater facilities to the county, approximately 30% of relevant facilities within the county have been transferred.

Although the SWM Maintenance Program has been in existence for years, there remains much confusion amongst associations as to the differences between "structural" and "non-structural" maintenance. Under the program, the County, after transfer, will only be responsible for structural maintenance, thereby leaving the non-structural maintenance to the association.

This is an important issue for many associations, as annual budget preparations are in full swing and budget preparers need to know how to
allocate the association's funds accordingly. Here, we will attempt to briefly clear up at least some of the confusion regarding this issue, thanks in part to a report recently issued by the County.

To begin, it would be helpful to review the existing code concerning this issue. Section 19-21 of the Montgomery County Code defines structural maintenance as: The inspection, construction, reconstruction, modification, or repair of any part of a stormwater management facility undertaken to assure that the facility remains in proper working condition to serve its intended purpose and prevent structural failure.

Structural maintenance does not include landscaping, grass cutting, or trash removal. By defining non-structural maintenance partly as "any other non-structural maintenance," as Montgomery County's code does, the definition does not provide much information. Nonetheless, non-structural maintenance clearly includes landscaping around the stormwater facility and trash removal. What remains unclear is the potential gray area between the landscaping, construction, reconstruction, modification or repair of the facility, such as the clearing of sand from a sand filter-type stormwater facility.

In an effort to clarify the definition of non-structural maintenance, the County has created a detailed report setting forth specific examples of non-structural maintenance for the various types of stormwater facilities with the County. This report provides that non-structural maintenance includes the monthly removal of all trash and debris from all areas in and around sand filters, and the bi-annual grass cutting and mowing of the downstream slope of the dam and the top of the dam. Though the report is far more detailed than what was previously available, it is not all inclusive, and issues will likely continue to arise concerning differentiating between structural andnon-structural maintenance.

In the meantime, it remains advisable that if questions arise regarding what is considered structural maintenance, the Association should contact its attorney or an official at DEP.

Jeremy Tucker is a community association attorney at Lerch, Early & Brewer in Bethesda, Maryland who represents community associations and condominiums in a wide range of matters, including general counsel and litigation.  For more information about stormwater maintenance, contact Jeremy at (301) 457-0157 or jmtucker@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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