2014 Legislative Issues
As the number of heroin overdose deaths continues to rise the state is working to expand access to naloxone, a medication that can be used to reverse an opioid overdose. In an investigative journalism piece The Baltimore Sun takes a look at the naloxone program and its impact so far on addicts, their families, law enforcement and treatment providers. As reported in The Baltimore Sun:
During the 2013 Maryland legislative session, families of addicts who had died of heroin overdoses pleaded their case to lawmakers and won unanimous approval for a measure allowing nonmedical personnel to be trained to administer the drug and receive a prescription for it.
Taylor and Haviland are two of the roughly 2,200 people who have been certified to use naloxone since health departments and other groups began offering classes in March.
Still, the measure remains controversial in some quarters.
Critics say the new program, like those that distribute clean needles, encourages heroin addicts to continue using by reducing the consequences.
“It exacerbates the problem because people think they can overdose [and] ‘someone can bring me around,’ ” said Israel Cason, the former heroin addict who has run the treatment program I Can’t We Can in Park Heights for 17 years. “They’re only treating the symptoms. They’re not dealing with the problem.”
But Maryland Health Secretary Dr. Joshua M. Sharfstein said naloxone is an important component of a larger strategy to cope with the flood of more powerful heroin, often mixed with fentanyl, that has sent the rate of fatal overdoses skyrocketing.
There is no evidence in existing research, Sharfstein said, that making the antidote available increases drug use.
“People use for all sorts of reasons,” he said. “The fact that they have naloxone available is not a contributing factor.
“Heroin just destroys people’s lives completely. What keeps them in recovery is not just the fear of death, it’s losing their family, their house, everything.”
About half of the Frederick Police Department’s estimated 141 officers have undergone naloxone training, but only 12 carry the medication, Dudley said. The department is working with the Frederick County Health Department to secure a grant that will allow every officer to be equipped with naloxone.
“Our goal is to have everybody” carrying Narcan, Dudley said.
About 80 deputies from the Frederick County Sheriff’s Office have received training and are carrying the medication, Maj. Tim Clarke said. The remaining 50 deputies designated to carry Narcan are scheduled to receive training before the end of this month.
Frederick Police Department and Frederick County Sheriff’s Office personnel began carrying the medication in July after undergoing a two-hour training held by the county health department. Upon completion, many received state-funded naloxone kits, which contain two doses of the medication. Not all officers carry it, however; the cost is $22 per dose.
As previously reported on Conduit Street, various environmental groups have initiated lawsuits challenging the National Pollutant Discharge Elimination System (NPDES) Phase I Municipal Separate Storm Sewer System (MS4) permits that the Maryland Department of the Environment (MDE) has been issuing to certain counties. This issue summary provides an overview of the topic and explains MACo’s position.
What is a NPDES MS4 Permit?
The NPDES MS4 permit system was created by the United States Environmental Protection Agency (EPA) in 1990. The permits are required for certain local governments (counties and municipalities) and the Maryland State Highway Administration (SHA) and dictate the water quality standards the permitted entity must comply in treating and preventing stormwater runoff. The stormwater runoff requirements are based on water quality standards set under the federal Clean Water Act (CWA) and the permits have a 5-year term. In Maryland, MDE sets individual permit requirements and issues the permits, subject to EPA sign-off.
MS4 permits are divided into Phase I and Phase II categories. Phase I permits apply to “large” local governments (those with a with a population greater than 250,000), “medium” local governments (those with a population between 100,000 and 250,000), and SHA. The permit requires them to treat or prevent pollution in stormwater runoff to the maximum extent practicable (MEP) in order meet federal water quality standards under the Clean Water Act (CWA). In Maryland, the following entities are subject to a Phase I permit: SHA, Baltimore City, and Anne Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s Counties.
The EPA created Phase II stormwater requirement in 1999. The permits apply to certain local governments that have a population of at least 1,000. A Phase II permit holder must implement six measures: (1) public education and outreach; (2) public participation and involvement; (3) illicit discharge detection and elimination; (4) construction site runoff control; (5) post-construction runoff control; and (6) pollution prevention/good housekeeping. In Maryland, Cecil and Washington Counties and approximately 60 municipalities are subject to Phase II permits.
Why is there litigation?
The current round of NDPES MS4 permits are the first that must also account for additional requirements under the Chesapeake Bay Total Maximum Load (TMDL). The first permit to come up for renewal under the Bay TMDL requirements was Montgomery County’s. After considering how to best incorporate the TMDL requirements, MDE issued a permit renewal to the County in 2010, with EPA’s sign off. The permit required the County undertake stormwater retrofits on 20% of existing impervious surfaces.
A consortium of environmental groups, including the Anacostia Riverkeeper, Potomac River Keeper, Friends of the Earth, Waterkeeper Alliance, and others challenged the permit, first administratively and then in Maryland circuit court. The groups alleged the new permit did not meet the CWA and TMDL water quality requirements and lacked needed specificity.
Other environmental groups have since brought similar legal challenges against the MS4 permits for Baltimore City and Anne Arundel, Baltimore, and Prince George’s Counties.
The Circuit Court Decision
Initially the circuit court dismissed the petitioners’ complaint, but the Court of Special Appeals reinstated the claim and remanded the case back to circuit court. In Anacostia Riverkeeper v. Maryland Department of the Environment (Case No. 339-466-V), the circuit court then found for the petitioners and against MDE and Montgomery County.
The circuit court cited a lack of specific benchmarks, deadlines, and monitoring provisions in the permit, noting that reliance on best management practices from manuals or other outside policies was insufficient. The court also concluded that the permit “must include requirements needed to meet water quality standards” under the CWA, state law, and federal regulations. The conclusion seemed to imply that a strict compliance standard should apply, rather than the traditional MEP.
Why Should Counties Care?
If interpreted broadly, the circuit court’s decision could move MS4 permit standards away from the MEP standard, which includes an analysis of cost and feasibility, to a strict compliance standard, which disregards cost and would hold counties liable for meeting their water quality standards no matter how costly or infeasible.
The Court of Special Appeals’ decision in this case will likely apply to all Phase I and Phase II MS4 permit holders and could influence the ongoing MS4 litigation in other counties.
Where is the Case Now?
Subsequent to the circuit court decision MDE and Montgomery County appealed to the Court of Special Appeals. MDE and Montgomery County have submitted their opening briefs and the Anacostia Riverkeeper has filed its response.
What is MACo’s Position?
Counties should comply with the federally-mandated CWA and TMDL requirements, including those incorporated into the MS4 permit process and MACo believes that counties are investing significant resources and effort towards that goal. However, MACo is concerned that the circuit court ruling could create impossible compliance timelines and eliminate the cost analysis that has traditionally been part of the MEP standard.
Accordingly, MACo joined an amicus curiae (friend of the court) brief that was coordinated by the Maryland Municipal Stormwater Association (MAMSA) in support of the State’s position. Besides MAMSA and MACo, other brief participants included the National Association of Clean Water Agencies, Wet Weather Partnership, and Baltimore County.
The brief highlighted the consequences of moving from the traditional MEP standard to a strict compliance standard:
To County Amici’s knowledge, the Circuit Court’s Opinion and Order accepting Petitioners’ argument is the first time that any federal or state court in the United States has ruled that the CWA requires MS4 permits to mandate strict compliance with water quality standards. Instead, the statute provides a different legal standard for MS4s – that pollutant discharges be reduced to the “maximum extent practicable,” or “MEP” for short….Unless reversed, the Circuit Court’s Opinion and Order will have harsh financial impacts on Maryland’s families and businesses. It will effectively require MDE to force local governing bodies to raise stormwater utility rates and taxes – to whatever amount is needed – to attempt in a mere five years the monumental task of reversing the effects of centuries of real estate development on water quality in urban and suburban areas so as “to meet water quality standards.”
The Anacostia Riverkeeper and other appellees took the somewhat unusual step of petitioning the Court of Special Appeals to reject the amicus brief, alleging that the brief is misleading, will not aid the court’s decision, and presses a legal position that contradicts the stated position of MDE and Montgomery County. In the opposition, the appellees did clarify that they are not seeking to have counties comply with all water quality standards within the 5-year life span of the MS4 permit:
Nothing in the Montgomery County Circuit Court’s decision mandates or even suggests that the County must comply with all applicable water quality standards within five years…Nor have Appellees made such a claim in this litigation.
MAMSA and the other amici challenged the opposition, arguing that amicus brief satisfied the Court’s desirability requirement, did not intentionally misrepresent the Riverkeepers’ position, did not introduce new arguments, and properly cited cost and practicability sources.
The Court of Special Appeals has provisionally accepted the MAMSA amicus brief and also accepted an amicus brief filed by the Chesapeake Bay Foundation.
This case could have significant consequences for counties subject to MS4 permits. MACo will continue to monitor and report on the case as it moves forward.
For further information, please contact MACo Legal and Policy Analyst Les Knapp (firstname.lastname@example.org or 410.269.0043).
The Anne Arundel County Council voted 5-2 earlier this week to raise the incoming county executive’s salary $3,000 per year over the next four years, bringing the salary from $130,000 to $142,000.
The initial proposal offered raising the county executive’s salary to $165,000 over the next four years but the council members agreed to a different proposal to cap the salary at $142,000 instead.
The Baltimore Sun article noted
Two weeks ago, the councilmen voted against giving themselves a raise. That proposal…would have bumped a council member’s salary from $36,000 to $40,518. The council’s chairman and vice chairman, who make slightly more, also would have gotten raises. The bill failed on a 2-5 vote.
MACo’s Administrators & Attorneys Conference to Cover Land Use, Cable Franchise Agreements, Staff Recruitment, and County Legal CasesSeptember 18, 2014
MACo’s Administrators & Attorneys Conference is a day-long event for County Administrators and County Attorneys. It features a general session on topics of interest to both groups, a luncheon keynote speaker, and two break-out sessions specific to each group.
The 2014 Administrators & Attorneys Conference is scheduled for October 9 from 10:30 am – 3:30 pm at the Newton White Mansion in Prince George’s County.
General Session: A Land Use Double Feature! (1) Reinvest Maryland & (2) Amending Your Comprehensive Plan
Keynote Speaker: The Honorable Dereck Davis, Maryland House of Delegates
Administrators’ Break-out Sessions:
- The Ins and Outs of Negotiating Cable Franchise Agreements
- Roundtable Discussion – Overcoming the Difficulties of Recruiting Staff
Attorneys’ Break-out Sessions:
- Networking & Roundtable Discussion with the Attorney General’s Office
- Roundtable Discussion – County Cases and Legal Issues
Learn more about these sessions, including descriptions, speakers, and the full schedule.
Registration is FREE for Maryland county elected officials and county staff – but seats are limited, so please register today. Registration is not open to any other individuals.
A September 16 National Association of Counties (NACo) update reported that the United States House of Representatives has passed legislation that would prohibit the United States Environmental Protection Agency (EPA) from changing the definition of “Waters the US” under the federal Clean Water Act. From the update:
On September 9, the House of Representatives successfully passed the Waters of the United States Regulatory Overreach Protection Act of 2014 (H.R. 5078) by a vote of 262-152. H.R. 5078, which passed with 227 Republican and 35 Democratic votes, would prevent the Administration’s proposed “Waters of the U.S.” rule from moving forward. Additionally, the measure would require the agencies to consult and collaborate with state and local governments on the “Waters of the U.S.” rule development process. The agencies would be required to document the interactions, including those areas where consensus was reached – or not reached – and to submit a final report to Congress.
The House-passed measure, which was threatened with a potential veto in a statement released by the White House before the vote, now faces an uncertain future in the Senate. NACo members should contact their U.S. Senators and urge them to support H.R. 5078, or any bill that delays the rule-making process to allow for the resolution of issues with the proposed rule.
The proposed rule that prompted the introduction of H.R. 5078—Definition of Waters of the U.S. Under the Clean Water Act— was released by the [EPA] and the U.S. Army Corps of Engineers (Corps) on April 21. The rule amends the definition of “Waters of the U.S.” within the Clean Water Act (CWA) and expands the range of waters (and their conveyances) that would fall under federal regulatory authority.
NACo has raised concerns that the proposed definition would subject county maintained road and drainage ditches to the rigorous permitting and water quality requirements of the Clean Water Act. Several Maryland counties have submitted comments to the EPA and MACo will be submitting comments before the October 20 public comment period closes.
NACo’s Waters of the US Resource Center (includes information on how to submit comments to the EPA)
In anticipation of bottle deposit legislation being introduced again in the 2015 Session, a group of MACo and county representatives met with a group of bottle deposit advocates earlier this summer to discuss how other jurisdictions in the United States and Canada have instituted bottle deposit programs. While not opposed to the per se concept of a bottle deposit, MACo has opposed bottle deposit legislation in the past over concerns about counties being responsible for running the deposit program and the potential fiscal impact on existing county recycling efforts.
The Artemis Group, a key stakeholder behind prior bottle deposit legislation, brought CM Consulting to the meeting. CM Consulting is Canadian-based environmental research firm that has studied bottle deposit efforts in various jurisdictions. CM Consulting provided a presentation discussing best practices for bottle deposits and highlighted case studies from other jurisdictions. The CM consultants did note however, that Maryland is relatively unique in that counties are the primary party responsible for recycling and that any statewide bottle deposit program would have to address county issues.
The information provided by CM Consulting and the Artemis Group will be reviewed and discussed by an internal zero waste workgroup that has been formed by MACo. Besides bottle deposits, the workgroup will examine other recycling and waste reduction issues, such as composting and gasification technologies.
MACo has formed an internal zero waste workgroup that will examine
As reported by Southern Maryland Newspapers Online, Charles County public school students who fail a course no longer will be eligible to take part in extracurricular activities for the entire subsequent semester. The article describes,
Beginning in the 2015-16 school year, students in grades 6 through 12 must maintain a 2.25 GPA and receive at least a “D” in their courses to participate in any extracurricular activity, including sports, otherwise they will be disqualified for an entire semester. A student who is absent more than 9.5 days in the first semester of school also will be banned.
The school board unanimously approved enforcing the more stringent policy, citing a need for a more rigorous academic program. The move mirrors an emerging trend nationwide of educators who are just now turning focus to the students, primarily athletes, who are not up to scratch on their core academics but historically have skated by.
For more information, see the full story from Southern Maryland Newspapers Online.