MACo Submits Comments on Phase I MS4 Permits

MACo has submitted comments to the Maryland Department of the Environment (MDE) for the next round of Phase I Municipal Separate Storm Sewer (MS4) permits. In Maryland, ten counties are subject to this federally-mandated stormwater permit: Batlimore City and Anne Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s Counties. The permits are ultimately overseen by the United States Environmental Protection Agency, but MDE has the delegated authority to draft and initially enforce the permits.

As previously reported on Conduit Street, the last round of permits (which have 5-year terms) included a requirement for each jurisdiction to treat and upgrade the stormwater management infrastructure for 20% of the jurisdiction’s existing impervious surface. This requirement, as well as questions about the standard of compliance for the permits spawned significant litigation, some of which is still ongoing, from affected counties and environmental and clean water groups.

From the MACo letter (2018-05-30):

For the past several years, both MACo and Maryland’s Phase I MS4 managers have worked in partnership with MDE to meet both the spirit and the letter of their ambitious stormwater permits. We acknowledge both the dedication of MDE staff and their willingness to discuss key permit issues. While there has been significant progress in addressing permit concerns, critical components of the next permit remain unresolved with a number of the current permits set to expire in just a few months. …

Under the current permit, Maryland’s 10 Phase I MS4 counties engaged in an extensive effort to reduce the impacts of urban runoff from their MS4 areas to surface waters. They have pioneered many innovations in stormwater funding, practice, and procurement; been recognized for their work at national conferences; and made substantial investments in the research and development of new stormwater best management practices (BMPs).

By the end of the current permit term, these 10 jurisdictions will have spent approximately $1.3 billion to meet permit requirements and they have already committed hundreds of millions in additional capital expenditures in years beyond the current permit term.

The challenge has not been strictly financial. Ramping up the programmatic resources including new staff, permitting processes, procurement methods, consultant contracts and maintenance agreements to spend these funds effectively has been a multi-year process. Despite much progress, significant logistical challenges remain. For example, the concurrent timing of the permits has created a competitive market for consultants and construction firms that has exceeded the capacity of available local resources while significantly increasing implementation costs. As previously discussed with MDE, MACo and the workgroup believe the State should evaluate the local resource capacity to achieve current and future permit requirements.

Altogether, this financial and programmatic expansion represents the MS4 jurisdictions’ maximum capacity toward meeting the current permit’s 20-percent impervious surface restoration (ISR) requirement. …

While the 10-percent-per-5-years rate of progress may be manageable over two permit cycles (or full achievement of the current 20-percent ISR goal after 10 years), it is likely not sustainable over a longer term as the number of cost-effective sites for retrofits shrinks and as the cost for maintaining the expanding inventory of BMPs escalates.

MACo offered the following recommendations in the letter:

  1. Extend the schedule to complete the 20-percent ISR requirement to the end of the next permit term.
  2. Establish a pollution trading program and modify the current permits to allow the use of credits from wastewater treatment plants and other sources to meet the ISR requirement of the current permit as a trading-in-time option.
  3. At least for the current and pending permit cycles, do not place an arbitrary limit on the percentage of ISR acres that can be met with trading credits.
  4. Do not require the inclusion of any additional ISR acreage (or the equivalent nutrient reduction) in the new permit. MACo is open to considering additional restoration work in the 2025-2029 permit cycle if: (1) MDE can demonstrate the need for such work through a transparent gap analysis of future nutrient and sediment loading by source sector; and (2) that before the end of the 2019-2024  permit cycle, MDE and the Phase I counties jointly engage in the development of what constitutes “maximum extent practicable” (MEP) going forward.
  5. Do not add yearly or interim benchmarks beyond the existing reporting and monitoring requirements due to the unpredictable nature of project development.
  6. The permit language relating to adaptive management should be made more flexible with respect to project implementation or redirection of resources for stormwater emergencies (such as the flooding that has struck Ellicott City).
  7. The additional TMDL reporting requirements need to be better balanced and synchronized with other existing reporting requirements to avoid unnecessary duplication and costs.
  8. While MACo welcomes additional public input on program plans and priorities, MACo opposes the mandatory incorporation of this input as it will lead to people advocating for their local or “pet” projects and not necessarily the projects that will produce the most gains for the least amount of cost.

MACo is appreciative of the outreach and communication MDE has had with all Phase I MS4 Permit stakeholders and looks forward to continuing to work with MDE staff as this challenging but important process moves forward.

Useful Links

Prior Conduit Street Coverage of MS4 Permits