Current & Future MS4 Permit Issues Discussed at 2018 Summer #MACoCon

The previous Municipal Separate Storm Sewer System (MS4) permitting process was controversial and spawned litigation from both county governments and environmental groups. The current MS4 permit round also poses challenges and 2018 MACo Summer Conference attendees received the state and county government perspectives on the issue. The panel “Surviving the Stormwater Surge: MS4 Permit Update” took place on August 17, 2018. The Maryland Department of the Environment (MDE) is delegated authority to issue and enforce the MS4 permit from the United States Environmental Protection Agency (EPA).

Chart showing county progress in meeting Phase I MS4 permit impervious surface restoration goals

MDE Sediment, Storwmater and Dam Safety Program Manager Jennifer Smith provided an overview of where counties are at in complying with their existing MS4 permit impervious surface treatment goals and the issues MDE is trying to address in the pending round of permits. Smith stated that the 10 counties subject to a Phase I MS4 permit have spent about $1.3 billion for impervious surface treatment projects. However, despite that investment, the vast majority of counties will need more time to meet the current permit’s requirements. Part of this is due to high project costs, limited opportunities for constructing stormwater retrofits, and delays in getting necessary permits. Smith explained that MDE will try to increase flexibility in the next round of permits by allowing water quality trading, clarifying how to count restoration credits, and authorizing pilot alternative practices. The pending permit will contain an additional impervious surface restoration requirement but MDE is still working on the details. The EPA is also requiring milestones be built into the next permit. The draft Phase I MS4 permit will be released at the end of 2018 and issued in June, 2019.

Montgomery County Deputy Director of Environmental Protection Patty Bubar discussed the County’s experience as a “permit pioneer” by being the first county to get the 20% impervious surface restoration requirement in its 2010 permit. Since that time, Bubar stated that the County has restored 2,927 acres and has 851 acres to go to meet the 20% requirement. Bubar described the retrofit and tracking challenges the County initially faced as well as the types of projects and programs the County has used. The County has changed to using Water Quality Revolving Loan Fund loans for capital projects as the loan has a lower interest rate than bond issuances. As the County failed to meet the 20% restoration within the 5-year life of the permit, the County has had to enter into a consent decree with MDE in April of 2018. In exchange for an extension to meet the restoration requirement, the County has to pay $300,000 fine or contribute an equivalent amount towards an approved supplemental environmental project. Bubar stated that the County is well on the way to meeting the consent decree’s deadline.

From L to R: Jennifer Smith, Erik Michelsen, Delegate Marvin Holmes, and Patty Bubar

Anne Arundel County Watershed Protection and Restoration Program Administrator Erik Michelsen described Anne Arundel’s MS4 approach. The County spent almost $2 million updating records and submitting them for permit credit. Michelsen stated that the County has completed 475+ culvert and storm drain projects that have not been credited to MS4 permit efforts. Ninety-nine plus permit approved water quality improvement projects complement another 174 projects that remain underway. The County will have to spend approximately $250 million to meet the 20% restoration goal and collects about $22 million annually from its stormwater remediation fee. Michelsen also discussed how the County used “pay for performance” and “turnkey” type projects. Michelsen stressed that the Bay Restoration Fund was an invaluable funding source and “something that Marylanders should be proud of.”

Maryland Delegate Marvin Holmes moderated the panel.