Carroll County And Municipalities to Consolidate Stormwater Plans

October 15, 2014

Seeking to address costly stormwater projects driven by federal permit requirements, Carroll County and its eight municipal governments are set to reframe their separate management structure and engage under one consolidated federal permit from the US Environmental Protection Administration.

From Carroll County Times coverage:

Under the proposed agreement, the costs of stormwater mitigation projects within the boundaries of the municipalities would be split, with the county paying for 80 percent and the municipalities paying 20 percent. Roughly $9 million in anticipated costs would be the responsibility of the county, while the municipalities would be responsible for about $2.2 million in anticipated costs.

In addition, the county government also would be responsible for covering the full amount of stormwater management projects outside the municipal borders, adding $12 million to the county’s projected total.

Read the full article online at the Carroll County Times website.

 


Stormwater Fee Tax Break A Topic of Contention in Anne Arundel County Races

October 2, 2014

A September 28 Capital-Gazette article reported that the stormwater remediation fee (or “rain tax” as it is called by its opponents) remains a topic of debate in local Anne Arundel County races.  The article noted, however, that the discussion has turned from an outright repeal of the fee to a proposal by Republican county executive candidate Steve Schuh to provide a 3%/$18 million property tax cut that would offset the amounts being collected through the county’s stormwater fee.

Schuh said his plan “will be to work around the county legislation to relieve taxpayers of the burden of the stormwater bill through the property tax.”  …

“It is a down payment on a long-term effort to reduce taxes and fees to further reduce the burden on taxpayers,” Schuh said,

[Schuh's Democratic opponent George] Johnson and others said such a flat-out commitment to a tax cut would be irresponsible.

“If the tax surplus is less than his projections, where is the money going to come from?” Johnson said. “Will he cut teachers’ pay? Or the number of police officers, firefighters, detention officers? Will county employees have to suffer furloughs again?”

The article also reported on an exchange between incumbent County Council Member Chris Trumbauer and his opponent, Dean D’Camera regarding whether the fee should be labeled as a “rain tax” and the merits of the fee.


Issue Overview – County MS4 Stormwater Permit Litigation

September 18, 2014

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 requirements 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.

MDE NPDES Permit Webpage

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.

Circuit Court Opinion and Order

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.

MDE Opening Brief

Montgomery County Opening Brief

Riverkeeper Response to MDE Appeal

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.

MAMSA & Local Government Amicus Brief

Riverkeeper Opposition to Amicus Brief

MAMSA Response to Riverkeeper Opposition

Conclusion

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 (lknapp@mdcounties.org or 410.269.0043).


Frederick County Candidates Debate Stormwater Fee Issues

September 18, 2014

A September 17 Frederick News-Post article reported that Frederick County executive and council candidates are debating a variety of issues related to the state-mandated stormwater remediation fee (referred to as a “Rain Tax” by its opponents).  While some of the issues, such as whether the fee should exist at all, seem more defined by partisan lines, other concerns are being raised by candidates from both parties.  Currently, the County has enacted a 1-cent fee that the Maryland Department of the Environment has indicated will not be sufficient to meet the County’s expected stormwater remediation costs under the Chesapeake Bay Total Maximum Daily Load or the County’s pending Municipal Separate Storm Sewer System permit.

One area of shared concern is the cost to Frederick County taxpayers for stormwater remediation:

County staff have estimated that the local cost to meet state watershed goals could total $1.88 billion by 2025. The county’s five-year storm water permit, which is now being renewed through the state, could come with a price tag of $142.3 million, said Shannon Moore, who manages the county’s office of sustainability and environmental resources.

County Executive candidate Jan Gardner stated that the stormwater remediation costs need to be addressed:

 Whether the county finds this money through the stormwater fee or in its general fund, taxpayers are ultimately footing the bill, Gardner said. She noted that the current cost estimate for the permit breaks down to more than $28 million annually, more than the county budgets for its public works division.

Gardner said she’s not ready to suggest where the county might find money to deal with the additional cost burden. First, elected leaders should collaborate with state officials to make the permit less expensive, she said.

The article also noted that many candidates were concerned about the science behind the targets.

Gardner, [County Executive candidate Blaine] Young and a number of council candidates also question the accuracy of the scientific assumptions that underpin cleanup targets. Linda Norris, a Democratic candidate for a council at-large seat, says she’s open to adjusting the fee so long as the county isn’t required to pay more than its share.

“I don’t mind asking citizens to pay for a community need, but I want to make sure I’m asking for the right amount,” she said.

Young cited concerns over the science when voicing his opposition to the stormwater fee in the article: “I don’t think the residents of Frederick County should be having to foot the bill for what others have done, especially when it’s based on faulty studies and science. With me, it’s non-negotiable.”  The article also noted that some candidates like County Council candidate Billy Shreve believe that other Bay watershed states, such as Pennsylvania, must be held accountable for their pollution contributions.

 


CBF Offers Fact Sheet on Charging Federal Facilities Stormwater Fees

August 22, 2014

Chesapeake Bay Foundation - Saving a National Treasure

 

The Chesapeake Bay Foundation (CBF) published a fact sheet explaining how local governments can subject federal facilities to their stormwater management fees.  The fact sheet briefly covers the history of stormwater fees in Maryland and adjoining states and then analyzes the federal Clean Water Act and the holding of a 2012 federal District Court case, U.S. v. City of Renton.  The fact sheet concludes:

 

CBF urges counties and municipalities to review assessments of stormwater fees on federal facilities in light of this important court case and the federal law’s legislative history. Both indicate that, under the federal Clean Water Act, local jurisdictions across the Bay watershed that have local stormwater fee systems may charge the same reasonable fees to federal agencies with facilities within their jurisdictions as to nongovernmental entities there, and federal agencies are obligated to pay such fees in the same manner and to the same extent as nongovernmental entities. Such fair share contributions can be very helpful in assisting local governments pay for local polluted runoff abatement programs.

  


Environmental Groups Challenge County MS4 Stormwater Permits

July 17, 2014

A July 11 Baltimore Sun B’More Green article reported that various in-state and out-of-state environmental groups have initiated lawsuits challenging the  National Pollutant Discharge Elimination System Phase I Municipal Separate Storm Sewer System (MS4) permits that the Maryland Department of the Environment (MDE) is issuing to certain counties.  The article noted that groups have challenged the permits for Baltimore City and Anne Arundel, Baltimore, and Prince George’s Counties.

The [environmental] groups argue that the state-issued permits are so vague they are unenforceable, and without more teeth they  will allow pollution problems to continue. The shortcomings will leave local waters unsafe to swim in and unable to support fish, crabs and shellfish, the groups contend, and will  hinder restoration of the Chesapeake Bay.

State officials have defended what they call “next generation” pollution-control permits that they say significantly strengthen storm-water cleanup efforts in Maryland’s largest communities. The permits require each locality to retrofit 20 percent of its streets, alleys, parking lots and buildings over the next five years to prevent polluted runoff. Local officials must develop “enforceable implementation plans” for meeting water-quality standards, according to a release on MDE’s website.

The groups argue that by leaving the details of what each locality must do until later, the state risks delays and shortcomings in reducing storm-water pollution, a significant and growing threat to cleaning up the bay.

These challenges follow a successful legal challenge brought last year against the MS4 permit that MDE issued to Montgomery County.  The circuit court found against MDE, citing the lack of specific benchmarks and deadlines.  The State has appealed the ruling to Maryland Court of Special Appeals and MACo will be participating in an amicus brief effort coordinated by the Maryland Municipal Stormwater Association (MAMSA) in support of the State’s position.  Decisions in the Montgomery County case, as well as the four more recent cases, will likely affect those counties needing Phase II MS4 permits from the State.

The article also noted a recent assessment by the United States Environmental Protection Agency (EPA) is critical of Maryland’s stormwater management efforts:

The EPA said the state also was too shorthanded to keep tabs on localities’ efforts to reduce polluted runoff from existing buildings and pavement. And in a finding that appears to echo environmentalists’ complaints, the federal assessment called for state regulators to include “more-enforceable schedules” in the storm-water pollution permits it issues to localities.


Experimental Agricultural Stormwater Management System Yields Promising Results

July 10, 2014

While stormwater runoff management is primarily perceived as an urban issue, Maryland’s agricultural community also faces stormwater management requirements under the Chesapeake Bay Total Maximum Daily Load.  A July 2 Star Democrat article reported on the recent and favorable findings regarding an experimental agricultural stormwater management system.

After implementing an agricultural stormwater cascading system on his farm near Chestertown in 2011, new data shows that Samuel Owings’s self-constructed system is fulfilling its purpose to reduce agricultural runoff from flowing into the Hambleton Creek, Chester River and Chesapeake Bay.  …

The cascading system is a series of four basins that are between 35 to 45 feet wide and 120 to 170 feet long. Using grass seed, starter fertilizer, curlex and natural vegetation, the system is placed in a grass waterway and drainage ditch and begins at higher elevations and moves toward lower elevations with the last basin placed at the edge of an existing wetland and pond.

With the assistance of grant funding, University of Maryland graduate student and research assistant Rosie Myers completed half of a two-year analysis of the effectiveness of Owings cascading system.  Myers derived her conclusions based on collected data from nine storm events (about 1/3 of last year’s storm events for the Queen Anne’s County region where Owings’ farm is located).

Looking at all nine storm events, Myers said 64 percent of the water that entered the system did not leave, and cited an 11 percent reduction in nitrogen and a 5 percent reduction in phosphorus. She then excluded the two largest storm events from her data, and the system showed over a 95 percent efficiency rate, which she attributed to the large washouts re-suspending and discharging sediment and nutrients captured from earlier storms.

“If it can reduce the washouts from the basins, this can be a very efficient system,” Myers said.  …

The cascading system brings many benefits to agricultural environments, Owings said, as it uses little or no tillable land; traps and filters sediment, nitrogen and phosphorus; provides instant gratification; uses simplistic materials such as grass seed and starter fertilizer; replenishes groundwater; is easily replicated by other farmers; creates wildlife habitation; creates top soil as a byproduct; and recycles phosphorus by spreading it back on farm fields.

Attorney General Letter Likely Voids Bill on Stormwater Agreements, Hotels

May 21, 2014

The Attorney General has found that the language addressing alternative approaches for stormwater remediation fees in Carroll and Frederick Counties and a hotel rental tax in Harford County in Senate Bill 172, the Budget Reconciliation and Financing Act of 2014, are likely to be found unconstitutional because they violate the single subject rule. In his review for legal sufficiency, the Attorney General found the bill constitutional and legally sufficient, but raised a number of issues in a letter to the Governor.

From the Attorney General’s letter dated May 14, 2014:

It is our view that this year’s BRFA is constitutional and legally sufficient and that you may sign it. There are, however, a number of severable provisions of the BRFA that are very likely to be found unconstitutional because they violate the single-subject rule in Article III, Section 29 of the Maryland Constitution. We will identify those provisions and, where possible, suggest appropriate remedial measures.

Other provisions found to be likely unconstitutional include an extension of the discounted vehicle certificate fee for rental vehicles, a park service funding mandate, and a mandate that speed camera revenue be spent on vehicle purchases.

Below are excerpts from the letter on stormwater remediation fees and the hotel rental tax.

Stormwater Remediation Fees

Section 18, an uncodified provision, would permit the Maryland Department of the Environment, before December 1, 2014, to enter into a memorandum of understanding with Carroll County or Frederick County to permit them to establish an alternative source of funding to be deposited into a local watershed protection and restoration fund.

In our April 2,2014 letter to Delegate Mclntosh and Senator Pinsky, this Office advised that a proposed amendment to the BRFA that would modify the method by which counties may satisfy their obligations to assess stormwater remediation fees was not germane to the subject of the BRFA and thus violated the one-subject rule. While the proposed amendment addressed in the April 2 letter was broader and applied to any county, and not just Carroll and Frederick counties, narrowing the scope of the provision does not change the fundamental constitutional infirmity. It remains our view that this provision very likely violates the one-subject rule. As a result, it is our advice that this provision is not effective in authorizing the Secretary of the Environment to enter into the memoranda of understanding contemplated by this provision.

Hotel Rental Tax

Although the authorization of a hotel tax is relevant to the financing of local government, it is unrelated to any other provision in the BRFA as introduced or amended, or to the primary purpose of the BRFA, which is to balance the State budget in times of fiscal distress. Therefore, it is our view that the hotel rental tax authorization is not an appropriate subject for the BRFA. We do not, however, recommend any measures to remedy the constitutional flaws in this provision because it leaves to the county the decision whether to impose the tax. Harford County, then, will have to decide for itself whether to attempt to impose a hotel tax based on this provision or to seek a more constitutionally defensible method when the next Legislature convenes.

The Governor signed SB 172 on May 15, 2014.


MDE Hosts Stormwater TMDL Webinar

May 16, 2014

The Maryland Department of the Environment (MDE) is hosting a stormwater and Total Maximum Daily Load (TMDL) webinar on “Tools for Developing Stormwater WLA Implementation Plans and MAST Updates.”   The webinar is free and open to interested county participants.  No registration is necessary.

Wednesday, June 11, 2014 – 10:00 AM – 12:00 PM

The first part of the webinar will be a presentation on MDE’s new TMDL Data Center.  The TMDL Data Center is a web-based application developed by MDE that provides local jurisdictions with a variety of tools to use in implementing TMDLs, with a specific focus on implementing Stormwater Wasteload Allocations (WLAs). The presentation will describe the various tools available on the TMDL Data Center, including:

  • a search function for finding approved TMDLs and WLAs
  • a set of tools to assist in disaggregating stormwater WLAs
  • a collection of guidance documents to assist in developing Stormwater WLA Implementation Plans.

The second portion of the webinar will focus on how the Maryland Assessment Scenario Tool (MAST) can be used in the development of Stormwater WLA Implementation Plans.  The presentation will include a brief discussion of the numerous enhancements that have been made to MAST since the development of the Phase II WIP, including:

  • the addition of new baseline scenarios
  • a new county-8-Digit watershed scale
  • a module for estimating scenario costs.

In addition to discussing these updates, Olivia Devereux of Devereux Consulting will conduct a tutorial on how MAST can be used to develop an implementation plan for meeting a Stormwater WLA using baseline years that correspond to local TMDLs.  Lastly, the webinar will briefly touch upon a new tool, BayFAST, which may also be useful in developing implementation plans.  BayFAST is similar to MAST, but it gives users more control in characterizing their watersheds.

The webinar will include time for “Q & A” during which the presenters will answer questions entered by participants in a “chat box” during the course of the webinar.  For those who are unable to attend, or who wish to review the materials presented at another time, the webinar will also be recorded and posted to the CBP website.

 To participate in the webinar:  At the time of the webinar, please sign into Adobe Connect as a guest using your first and last name.

https://epa.connectsolutions.com/cbp_meeting/

Audio for the webinar will be provided via Teleconference Phone: 1-866-299-3188. After dialing the teleconference phone number, please enter the following Conference Code: 410-267-5731#


Baltimore City Announces Partnership Focused on Greening Neighborhoods & Treating Stormwater

May 15, 2014

Baltimore City has announced a partnership with the U.S. Environmental Protection Agency (EPA) and the Chesapeake Bay Trust focused on greening the City’s neighborhoods.

From the City of Baltimore’s press release:

The new Growing Green Design Competition, which was also announced today, aims to transform the City’s vacant lots through projects that benefit neighborhoods and communities, while also treating stormwater. The design competition is part of the Growing Green Initiative (GGI), a City-led effort to use sustainable, innovative, and cost-effective practices for growing Baltimore.

“I am pleased that the Growing Green Initiative will expand upon the success of our Vacants to Value program by simultaneously stabilizing neighborhoods and attracting new development by strategically re-using vacant land for public benefit,” said Mayor Rawlings-Blake. “This is just another step toward building a better, greener, and growing Baltimore.”

The City’s Growing Green Initiative seeks sustainable ways to stabilize and hold land for redevelopment and to re-use vacant land to help green neighborhoods, reduce stormwater runoff, grow food, and create healthy, vibrant community spaces. The design competition engages community groups and design firms in these efforts.

“Helping Baltimore and other cities implement sustainable ways for managing stormwater is an EPA priority,” said Regional Administrator Garvin. “We’ve witnessed the value of green infrastructure design competitions in their ability to catalyze change for creating greener, affordable stormwater management solutions that improve and protect water resources and make communities healthier. These solutions also help communities be resilient to climate change.”

Today’s kick-off brought together interested Baltimore community groups, designers, engineers, landscape architects, and other organizations to connect and consider teaming up as partners in the design competition. With $300,000 contributed by the City of Baltimore, EPA and the Trust, the competition will select the best designs for transforming vacant lots, and award funding to the winning teams to build their projects.

“The Chesapeake Bay Trust is proud to partner with the EPA and Baltimore City on this unique demonstration,” said Jana Davis, executive director of the Trust. “Through this competition, creative partnerships will form that will propose real world, practical solutions that will benefit local communities and treat stormwater at the same time. These solutions will not only benefit Baltimore City, but can be replicated in other cities nationwide.”

To read more about Baltimore City’s Growing Green Initiative or about the competition, visit Baltimore City’s website.


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