Climate Change Recommendations Provoke Robust Discussion by Mitigation Working Group

The Mitigation Working Group had a robust but respectful discussion on proposed climate change recommendations at its August 2, 2018, meeting, including proposals that would directly affect county governments. A cap and trade program for carbon emitted from transportation, the full electrification of the state’s school bus feet, mandatory energy efficiency retrofits to existing buildings, upgrading the Forest Conservation Act, and ending the permitting of landfills and moving to zero waste are a few of the recommendations under consideration.

The Working Group is part of the Maryland Commission on Climate Change and is tasked with producing recommendations to mitigate greenhouse gas emissions in the state in order to achieve a 40% reduction in greenhouse gas emissions from their 2005 levels by 2030. Maryland is general on track to meet a prior emission reduction goal of 25% by 2025. MACo Legal and Policy Counsel Les Knapp is the county representative on the Working Group. Prince George’s County Council Member Deni Taveras is MACo’s representative on the Commission.

The proposed recommendations included a draft “straw-man” version prepared by the Maryland Department of the Environment and a series of additional recommendations submitted by various stakeholder groups. The Working Group is seeking consensus on as many recommendations as it can and will then focus on recommendations where there is majority support. The list of Mitigation Working Group recommendations contains numerous proposals that remain under discussion. The following recommendations would directly effect counties:

  • The Commission should urge MDE to include in the 40 by 30 plan a section that is specifically focused on identifying and assessing longer-term greenhouse gas emission reduction strategies. This section should explicitly address steps that can be taken to insure that proposed 40 by 30 programs and strategies are compatible with achieving zero net emissions in the 2050 to 2060 timeframe.

  • The Commission should urge MDE to include in the 40 by 30 plan strategies and programs that will insure that the state meets and accommodates its current EV goals and projections (60,000 EVs by 2020; 300,000 by 2025) with continued vigorous increase after 2025 that is compatible with longterm net zero emissions two to three decades after 2030. As part of this process, we further recommend that the Commission urge MDE to specifically assess the following strategies: setting a goal to fully electrify bus transport in Maryland by 2035, including aggressive targets for the rapid deployment of EV school buses, as well as provisions for low-interest financing.

  • The Commission should urge the General Assembly to implement stricter building code and other energy efficiency upgrades, including the establishment of annual residential and commercial building retrofit targets (e.g. 100% commercial building compliance by 2040), the requirement that all new residential and commercial buildings be carbon neutral by 2030, and an expansion of government and utility supported efficient electric heating and cooling system policies and programs.

  • The Commission should urge the General Assembly to enact, by 2020, a sustainable agricultural land preservation law which permits/facilitates the deployment of joint renewable energy and regenerative agriculture development, in order to simultaneously maximize the reduction and sequestration of carbon emissions while improving soil health.

  • The Commission should urge the General Assembly and the Governor to require net forest and tree canopy gains in Maryland by 2025 through the enactment of various forest management and tree planting programs and initiatives; including a strengthened Forest Conservation Law.

  • The Commission should urge the General Assembly and the Governor to enact, by 2022, more aggressive and explicit compact development and sustainable growth incentive and management programs and regulations.

  • The Commission should urge the General Assembly and the Governor to enact the following zero waste policies: ending the permitting of solid waste landfill capacity by 2019; requiring large producers (more than 2 tons per month) of organic waste to compost or anaerobically digest all of their waste by 2020; and increase state government and local jurisdiction recycling rates to 60% by 2020 and 80% by 2035.

Only the first two recommendations listed above were discussed at the August 2 meeting. Knapp joined with several other Working Group members in objecting to the inclusion of a regional transportation sector carbon emissions cap, noting that the proposal received little discussion or study during the Working Group’s 2018 meetings. Knapp suggested that the proposal be further studied as part of the Working Group’s 2019 agenda. Knapp also expressed concern about the school bus electrification recommendation, noting that the assessment should not be tied to an explicit date and that counties and local boards of education be part of the discussion.

The Working Group’s next meeting will take place on August 30. At that time, the Working Group hopes to finalize its recommendations.

Useful Links

Maryland Commission on Climate Change

Governor Hogan Urges Other States to “Step Up” Bay Restoration Efforts

Several news articles reported on Maryland Governor Larry Hogan’s recent efforts to hold upstream states more accountable for the debris and runoff that flows down the Susquehanna River and through the Conowingo Dam. As previously reported on Conduit Street, the recent heavy rainfalls created a deluge of debris and sediment that washed into the Chesapeake Bay, threatening Bay recovery efforts.

Hogan called for the upstream Bay states to do more at the August 7, 2018, meeting of the Chesapeake Executive Council. (The Council is composed of the executives of all of the Bay watershed states and Hogan is currently the Council’s chair.) Hogan has also continued to push the Conowingo Dam’s owner, Exelon Corp., to also do more to address sediment coming through the dam.

A WTOP 103.5 FM article (2018-08-07) outlined Hogan’s position:

Hogan has been increasingly critical of Maryland’s neighbors to the north over the condition of the Bay watershed. …

“We have done our part,” [Hogan] said, referring to Maryland’s efforts, “but other people need to step up.”

“We have to have the upstream states and the EPA take some responsibility for the stuff that’s pouring down the Susquehanna [River] over the Conowingo [Dam] into the Bay,” he said.

The WTOP article also detailed Hogan’s recent efforts to have Exelon contribute more to Bay restoration efforts. Maryland must provide a certification before Exelon can be re-licensed to continue operating the dam and Hogan has tied the recertification to Exelon’s commitment to help address the water quality issues that are. Exelon has challenged the State’s certification requirements both administratively and in the courts.

The Clean Chesapeake Coalition, an advocacy effort of Maryland counties formed to address Bay Total Maximum Daily Load (TMDL) issues in 2012, was one of the early stakeholder groups that raised concerns about sediment and water pollution coming down the Susquehanna River and through the Conowingo Dam.

Washington Post article (2018-08-07) provided additional details, including the somewhat lukewarm response from other states to Hogan’s proposal:

New York’s representative at the meeting, Deputy Commissioner James Tierney of the New York State Department of Environmental Conservation, said water leaving the state’s borders is cleaner than when it reaches the bay.

Pennsylvania’s environmental secretary, Patrick McDonnell, declined to commit resources to cleaning up the debris, saying his government has been dealing with historic flooding that killed two people in the state.

“We were, frankly, in flood response mode,” McDonnell said.

The Post article also included criticism from the Chesapeake Bay Foundation on the efforts of Pennsylvania to address agricultural runoff. Pennsylvania has previously been criticized by the United States Environmental Protection Agency for being “significantly off track” in meetings its water quality goals under the Bay TMDL.

Useful Links

Prior Conduit Street Coverage on the Recent Debris and Sediment Surge From the Conowingo Dam

Clean Chesapeake Coalition

PIA Compliance Board Considers Inmate Access, Commercial Requests at Annual Meeting

The Maryland Public Information Act (PIA) Compliance Board held its annual meeting on August 7, 2018, and considered several issues related to the PIA, including inmate access to information and commercial requests. MACo Legal and Policy Counsel Les Knapp attended the meeting.

The Board has authority to determine whether PIA fees greater than $350 are reasonable and can reduce or eliminate them if the Board finds the fees are unreasonable (the PIA law allows for the recovery of fees based on the actual costs of complying with a PIA request, minus the first two hours of work). The Board does not have the authority to determine whether a custodian must legally release information or grant a fee waiver. Deborah Moore-Carter from Baltimore City is the Board’s local government member.

Inmate Access to Public Records

Board Chair John West characterized inmate access to public records as a “systemic issue” and noted the importance of providing convicted inmates with an avenue to information that could potentially exonerate someone who was wrongfully convicted. West stated that the Board was seeking guidance from the Office of the Attorney General on how to address the challenges posed to providing better access to inmates. This could potentially result in legislation in the 2019 or a subsequent session. However, as part of an open discussion with public attendees, West and other Board members acknowledged that some inmates made abusive requests and the any proposed modifications to the PIA would be limited to records directly pertaining to an inmate’s own case.

Commercial PIA Requests

An issue that many attending agencies raised with the Board was that of PIA requests for commercial purposes. Many attendees stated that such requests had become more numerous and complex in recent years and expressed frustration about the increasing time and costs needed to fulfill them. Some attendees shared stories about public anger after a custodian had to provide contact information that was subsequently used for commercial solicitations. The Board was sympathetic to the concerns raised and considered how the issue could be addressed.

PIA Ombudsman

West also complimented PIA Ombudsman Lisa Kershner, who is based in the Office of the Attorney General and acts as a voluntary and non-binding mediator for both records requestors and custodians. Kershner provided a short update on her work, noting that she is focused on reaching “practical solutions.” Kershner agreed that inmate requests were a major issue and also stressed the need for custodians to be appropriately trained on their record storage and retrieval systems. Kershner cited an emerging trend about government agencies reaching out to her proactively for either advice or training, noting that such requests were up threefold from the prior year.

Useful Links

PIA Compliance Board

Kent Could Have Sole Veto Authority If New Bay Bridge Span Were Located in Tolchester

Cecil Whig article (2018-08-03) reported that if the proposed new Chesapeake Bay crossing was located in Tolchester, Kent County could have sole veto power over the proposal. The revelation is the result of an interpretation by the Maryland Office of the Attorney General and is based on a 2013 law – § 4-407 of the Transportation Article. This section of the State code reads:

 (a)    This section applies to:
(1)    Caroline County;
(2)    Cecil County;
(3)    Dorchester County;
(4)    Kent County;
(5)    Queen Anne’s County;
(6)    Somerset County;
(7)    Talbot County;
(8)    Wicomico County; and
(9)    Worcester County.

(b)    A State agency, including the Maryland Transportation Authority, may not construct any toll road, toll highway, or toll bridge in the counties enumerated in this section without the express consent of a majority of the governments of the affected counties.

According to the Attorney General’s Office, if the new bridge span were located in Tolchester and was viewed as a toll bridge, then as the only affected county, Kent could theoretically veto the project. Legislation was proposed during the 2018 Session to repeal this section of the Code but the bill failed. The article included a portion of the written response by Assistant Attorney General David Stamper:

“(N)othing I have found in the legislative history suggests the General Assembly specifically contemplated the application of this provision to a toll bridge across the Bay. But the lack of any evidence in the legislative history on this specific point, or the suggestion that the General Assembly likely was focused primarily on infrastructure with a more significant presence on the Eastern Shore, cannot overcome the plain meaning of the statutory language, which expressly limits a State agency’s authority to construct a toll facility, including a toll bridge, in any of the nine Eastern Shore counties,” Stamper wrote. …

“In the final analysis, it is difficult to give conclusive guidance about the application of the statute in the abstract, without applying the statute to a specific proposed toll project,” Stamper wrote. “While I hope this letter is responsive to your questions, it is not an official opinion of the Attorney General.”

While not an official opinion of the Attorney General’s office, Stamper’s interpretation tracks the plain language of § 4-407 and seems likely to be upheld if the statutory language was actually put to the test. The article noted that both the Commissioners and county residents have expressed opposition to a new Bay Bridge span being located in Tolchester.

The article also discussed the ongoing wildlife specialist vacancy at the 2,000-acre Eastern Neck National Wildlife Refuge, which could prompt the closure of the facility to the public. Maryland Delegate Steve Arentz has submitted a letter to the regional chief of the National Wildlife Service calling the refuge “a national treasure” and urging that the position be filled.

Heavy Rainfalls Send Debris, Sediment Plume Through Conowingo Dam

DelmarvaNow article (2018-08-01) reported that the recent heavy rainfalls have sent a plume of sediment and debris down the Susquehanna River, through the Conowingo Dam, and into the upper stem of the Chesapeake Bay. Exelon, the dam’s owner, recently opened the dam’s floodgates in order to relieve pressure from the rising waters in the dam’s reservoir.

In the article, a representative from the Chesapeake Bay Foundation described the event:

“This was a fairly unprecedented event,” said Doug Myers, Maryland senior scientist for the Chesapeake Bay Foundation. “It swelled rivers and streams throughout the watershed. We saw satellite images that showed a brown plume going through the length of the Susquehanna through Pennsylvania. Then we saw that plume of suspended sediment come out into the bay.” …

“The sediment is a visible thing, but it’s not the thing the bay is most concerned with,” he said. “We’re seeing big piles of debris all along the shoreline and that has a tendency to scour over the Susquehanna flats, which is our largest seagrass bed in the bay. That debris pulled a lot of the grasses out of the mud.”

The article noted that since the dam’s reservoir has reached its capacity to trap sediment, heavy rainfall events will wash excess sediment through the reservoir and directly into the Bay. Such discharges can undermine the restoration efforts of Bay watershed states and local governments. In the article, Myers discussed the negative consequences these discharges can have on nutrient pollution and wildlife.

The article also discussed the efforts of Maryland and the Chesapeake Bay Foundation to reach an agreement with Exelon on addressing the issue posed by the Conowingo Dam. While Exelon has offered to play some role in addressing the water quality concerns posed by the dam, it remains opposed to the State’s current proposal and also argues that it cannot capture all debris washed down the Susquehanna during flood events. Multiple legal and administrative challenges are currently underway and a final solution to the Conowingo problem remains elusive.

MACo’s longstanding position on the Conowingo Dam is that the excess nutrient and sediment pollution originating from the dam’s reservoir must be addressed. That burden should not fall on Maryland’s counties, which did not generate the pollution coming through the dam. Exelon, as the dam’s owner and beneficiary of the profits generated by the dam, should play a role in addressing the dam’s water pollution situation. Bay watershed states that generate the pollution flowing down the Susquehanna and into dam’s reservoir should also work to reduce their nutrient and sediment runoff.

Useful Links

Prior Conduit Street Coverage of the Conowingo Dam

Get the latest on the Conowingo Dam and the Bay TMDL during the 2018 MACo Summer Conference panel “Charting the Next Course for the Bay TMDL.” The panel will be held on August 16.

Learn more about MACo’s Summer Conference:


Two Studies Critical of Maryland’s Renewable Energy Strategy

Baltimore Sun article (2018-07-29) reported on the release of two new studies that have criticized Maryland’s Renewable Portfolio Standard (RPS), arguing that: (1) the RPS subsidizes “dirty” forms of energy such as waste incineration and paper byproduct known as black liquor; and (2) allowing utilities to purchase renewable energy credits in lieu of actually purchasing renewable energy directly undermines a full transition to renewable energy sources. Maryland’s RPS currently requires that 25% of the state’s energy come from renewable sources by 2020.

The first study was released by the environmental advocacy group Food & Water Watch and assigned letter grades to the renewable energy efforts of each state. Maryland received an “F” grade because the RPS includes waste incineration and black liquor as renewable. Other states receiving an “F” included Delaware, Massachusetts, Michigan, North Carolina, Ohio, and Pennsylvania. The two highest grades went to Hawaii (“B-“) and Vermont (“C+”). From the article:

Del. Dereck Davis, a Prince George’s County Democrat and chairman of the House of Delegates Economic Matters committee, said he thinks Maryland is “making strides” at growing its renewable energy supply and promoting development of solar and wind projects across the state.

He dismissed the state’s F grade from Food and Water Watch, pointing out that many states — 21 of them, according to the group’s study — don’t offer any renewable energy incentives at all.

Another study released by Chesapeake Physicians for Social Responsibility (Chesapeake PSR) criticized Maryland’s use of renewable energy credits and argued that the practice was delaying a full transition to renewable energy within the state. The study argued that utilities could use credits to subsidize renewable energy producers “often in far away places” while continuing to meet Maryland’s energy needs through the use of fossil fuels. The study recommended that utilities only be allowed to purchase renewable energy from in-state producers.

Useful Links

Cleanwashing – How States Count Polluting Energy Sources as Renewable (Food & Water Watch Study)

Food & Water Watch Website

Unbundled – How Renewable Energy Credits Undermine Maryland’s Transition to Clean, Renewable Energy (Chesapeake PSR Study)

Chesapeake PSR Website

Howard County Council Passes 1-Year Development Moratorium Around Ellicott City

Howard County Times article (2018-07-27) reported that the Howard County Council has unanimously passed emergency legislation that would freeze development around Ellicott City for one-year. The legislation is in response to the two devastating floods that inundated the City’s Main Street area and will provide additional time to address the City’s flooding issues. County Executive Allan Kittleman has stated that he will sign the measure.

The article indicated that the moratorium would affect about planned 600 housing units in the Tiber River and Plumtree Branch stream watersheds. County Council Member Jon Weinstein proposed the moratorium. While the moratorium was supported by many residents the proposal generated opposition from the Maryland Building Industry Association. The Association argued that studies had indicated development was not a primary cause of the flooding. From the article:

The council’s moratorium “ignores the lessons from previous flood studies,” the association said in a statement.

“While development may not be the primary cause, it is a contributor,” Weinstein said. “The studies that have been done that suggest that it isn’t as big a contributor I would say are tempered by the reality of our current climate.” …

“It’s heartbreaking to see what happened,” said Jen Terrasa, a council member. “I don’t think we can keep thinking of it in terms of catastrophic floods anymore. We need a new measure.”

Useful Links

Council Bill 56-2018

Prior Conduit Street Coverage of Ellicott City Flooding

How Will July Deluge Affect Health of the Chesapeake Bay?

Bay Journal article (2018-07-27) discussed the potential effects of the late July deluges on the health of the Chesapeake Bay and Bay restoration efforts. The article noted that the Bay watershed received 7 inches plus of rain from July 21 through July 25. However, the long term effects, if any, will be determined in the next several months.

Significant rainfall events can negatively effect water quality because additional nutrients and sediment gets washed into the Bay and its waterways.  Typically, heavy rainfall in the Bay area occurs during the spring and the mid-summer deluge is unusual. From the article:

High flows in the summer can be more damaging than at other times because it’s the peak of biological activity for many important Bay species, from underwater grass beds to juvenile fish and crabs.

Indeed, a recent report from the U.S. Army Corps of Engineers and the Maryland Department of the Environment examined the impact of high flow events from the Susquehanna River on the Chesapeake during similar storms in January, June and October.

The June storm, it found, had “greater adverse impacts to water quality, habitat, and living resources than October and January events.”

Useful Links

Lower Susquehanna Watershed Assessment Final Report (United States Army Corps of Engineers & Maryland Department of the Environment)

Prior Conduit Street Coverage of Lower Susquehanna Watershed Assessment

Learn more about the health of the Chesapeake Bay at the Clear Water: The State of the Bay panel on August 17 at the 2018 MACo Summer Conference.

Learn more about MACo’s Summer Conference:

Judge Adkins Announces Retirement From Court of Appeals

Judge Sally Adkins (Source: Maryland Manual Online)

A Daily Record article (2018-07-30, subscriber access only) reported that Maryland Court of Appeals Judge Sally Adkins has announced she will retire on October 31, leaving a vacancy on the seven-member court. Adkins represents the 1st Appellate Judicial Circuit and her replacement must be a judge or attorney living on the Eastern Shore. Adkins, who is 68, announced her retirement prior to reaching the mandatory retirement age of 70.

A native of Salisbury, Maryland, Adkins graduated from the University of Maryland Francis King Carey School of Law in 1975. After interning under Court of Appeals Judge Marvin Smith, Adkins spent roughly 20 years in private practice before becoming a Wicomico County Circuit Court Judge in 1996. Adkins was appointed to the Maryland Court of Special Appeals in 1998 and former Governor Martin O’Malley appointed her to the Court of Appeals in 2008. Adkins has also served as the President of the Wicomico County Bar Association and the Eastern Shore Chapter of the Women’s Bar Association of Maryland.

From the article:

“In a year and four months, they’re going to kick me out,” said Adkins, 68, who has served on the state’s top court since June 25, 2008. “No reason to wait until I get kicked out.”

But Adkins said she will miss being a judge, particularly “being a part of the discussion and the debate and writing about the cutting-edge legal issues” that come before the high court.

The article stated that the Appellate Judicial Nominating Commission will be accepting applications for the vacancy through August 22. The Commission will then review submissions in mid-October and then send a list of recommended candidates to Governor Larry Hogan. While Hogan is not required to nominate a candidate from the Commission’s list, that has been the standard practice for decades. Hogan’s nomination could immediately take their seat on the Court of Appeals but would be subject to a final confirmation process by the Maryland Senate in January, 2019.

Adkins plans to keep busy by traveling, doing charity work, and becoming a mediator.

Useful Links

Judge Sally Adkins Web Page

Eastern Neck National Wildlife Refuge in Danger of Closing Due to Lack of Federal Funding

Maryland Reporter article (2018-07-26) reported that the United States Fish and Wildlife Service may close the Eastern Neck National Wildlife Refuge due to the lack of federal funding to fill a critical manager position. The refuge is located on a 2,285-acre island near the mouth of Chester River on the Eastern Shore and attracts tens of thousands of visitors each year. The island’s Kent County-maintained road and boat ramp/pier would remain open to the public but all other federally-maintained portions of the refuge would close. The refuge is currently operating through the support of volunteers, such as the Friends of Eastern Neck.

Shutting down the refuge, [Friends of Eastern Neck Vice President Phil Cicconi] said, would cause it to fall into disrepair and potentially attract relic-hunters who operate “like ninjas in the night.” The island is a cache of American Indian artifacts. Cicconi worries that thieves might strip anything of value from the visitor center building, a renovated 1930s-era hunting lodge. …

“It’s a nationwide system problem. What’s happening in Eastern Neck is happening all across the United States,” [National Wildlife Refuge Association Vice President of Government Affairs Desiree Sorenson-Groves said. “You can limp along for a few years, tightening your belt and no travel and, whenever somebody retires, you don’t fill the position. But at a point, you can’t do anymore.”