Stormwater “Pioneer” Montgomery Under Consent Decree, Other Counties Struggle With MS4 Goals

Bay Journal article (2018-08-29) reported on the challenge Montgomery and other counties face in retrofitting 20 percent of its impervious surface area with “green” stormwater treatment structures under its Municipal Separate Storm Sewer System (MS4) permit. Despite being the first Maryland county to be assigned the 20 percent retrofit goal and committing significant resources towards it, the County recently agreed to pay the Maryland Department of the Environment (MDE) $300,000 as part of a consent decree agreement for failing to reach its goal. The article noted that the County will have 2 more years to reach the goal of retrofitting 3,778 acres (an area roughly three times the size of Takoma Park).

MDE has acknowledged the challenge in meeting the aggressive goal, which is currently shared by all of the counties subject to a Phase I MS4 permit. The other affected jurisdictions include Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, and Prince George’s Counties and Baltimore City. Of the remaining counties, only Baltimore City and Carroll County may meet their retrofit goal within the 5 year term of their permit. The affected jurisdictions are spending more than $300 million annually to meet the 20 percent goal. From the article:

 “You can always tell the pioneers, because they have the arrows in their backs,” said Frank Dawson, chief of watershed capital projects for Montgomery’s Department of Environmental Protection. “We’re not the only jurisdiction, I think, that’s having trouble.” …

“Stormwater [control] is not in the place it needs to be,” acknowledged Lee Currey, director of the MDE’s water and science administration. As state officials draw up plans for getting the rest of the way to the 2025 Bay cleanup goals set by the U.S. Environmental Protection Agency, he recently said that they’re looking at how to keep making progress while giving localities more leeway in meeting difficult stormwater reduction requirements.

The article discussed how Montgomery County was an early leader in addressing stormwater runoff, being the first County to adopt a stormwater fee (later known statewide as a “rain tax”) to raise funds to for stormwater restoration projects (such projects are usually expensive, complex, and require significant time to undertake). However, it was the Chesapeake Bay Total Maximum Load (the Bay’s pollution diet) that forced MDE to significantly increase stormwater restoration goals in MS4 permits and the County was the first to see the 20 percent requirement in its 2010 MS4 permit.

The article also highlighted various litigation surrounding the 20 percent retrofit requirement, the dramatic rise in the County’s annual stormwater fee from $12 per typical household to $104.25 to try to comply with the new retrofit mandate, and the challenges posed by the permit’s 5-year timeline.

The County states in the article that it is now “very close” to achieving the 20 percent goal with only 850 acres remaining to be treated. The County expects to complete those acres through 18 projects by the end of 2018. In light of being close to its goal, County Executive Ike Leggett called for halting the annual increase in its stormwater fee as well as privatizing some stormwater treatment efforts. Ultimately, the County Council reached a compromise on the proposal by allowing a portion of the stormwater projects to be managed by private contractors and not specifying how the County would pay for the projects.

However, the next round of MS4 permits may require an additional 5 percent treatment requirement (increasing the new impervious surface retrofit requirement to 25 percent.) That will likely pose challenging not only to Montgomery County but all the Phase I MS4 permit jurisdictions. With the recent introduction of the State’s water quality trading regulations, MDE hopes that trading can give counties a tool to temporarily cover shortfalls, give them more time to meet their stormwater goals, and avoid consent decrees.