MDE Finalizes Water Quality Nutrient Trading Regulations

The Maryland Department of the Environment (MDE) has finalized its water quality nutrient trading regulations after several years of work. The regulations took effect on July 16, 2018.

MACo believes nutrient credit trading is a necessary tool in order to help both the State and local governments achieve their water quality goals under their Municipal Separate Storm Sewer System (MS4) permits and the Chesapeake Bay Total Maximum Daily Load (TMDL). MACo is generally supportive of the regulations, although continues to remain concerned about the high performance level that wastewater treatment plans must achieve in order to offer credits for trading and proposed process for integrating trading into the Phase I and Phase II MS4 permits.

The regulations establish a registry and allow trades of individual or aggregated nitrogen, phosphorus, and sediment credits created by best management practices. Interjurisdictional trading and trades between sectors (i.e., wastewater treatment plants, agriculture, septics, and stormwater) are both allowed.

However, trades must occur within the same trading region. MDE has established three trading regions: (1) Potomac River Basin; (2) Patuxent River Basin; and (3) Eastern Shore and Western Shore River Basins, including the Maryland portion of the Susquehanna Basin. Additionally, trading with wastewater treatment plants is only allowed if the plants are generating outflows equal to or less than 3.0 mg/l for nitrogen or .3 mg/l for phosphorus. (This threshold is higher than the threshold a wastewater treatment plant must achieve in order to meet its Bay TMDL targets.)

At the July 23 meeting of the Water Trading Quality Advisory Committee meeting, MDE representatives discussed next steps regarding the trading regulations. The representatives stressed that the existing regulations may need to be modified over time. MDE is working to update the existing manual, web pages, and forms associated with trading by September. The online registry must also be finalized, with appropriate training offered.

Regarding MS4 permits, MDE stated that the new Phase II MS4 permit that will be effective in October of 2018 will have trading “built in” to the permit’s basic language. However, for existing Phase I permits, each permit will have to go through a modification process that includes a public hearing. Each permittee must request the modification in writing and state: (1) what percentage of their 20% impervious surface treatment goal they want to achieve through trading; and (2) why they cannot meet the 20% treatment goal without trading. In Maryland, ten counties are Phase I jurisdictions: Baltimore City and Anne Arundel, Baltimore, Carroll, Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s Counties. Additionally, those counties that are required to file financial assurance plans will need to be updated to reflect how a county plans on using trading.

MDE stated that while the agency plans on doing some inspections and enforcement itself, it also plans to “partner with counties and others.”

Useful Links

Maryland Water Quality Trading Program Regulations

Prior Conduit Street Coverage of Nutrient Trading Regulations

Agriculture Worried About General Assembly Shake-Up

Cecil Whig article (2018-07-24) described how the agricultural community is carefully watching how the November general elections will play out, especially given the loss of several pro-agriculture incumbents during the primary. Maryland Farm Bureau Government Relations Director Colby Ferguson voiced several concerns in the article, noting that while “food is bipartisan” there were now many legislators who had no farms within their district. Ferguson also touched on the loss of several ag-friendly incumbents Senators: Finance Committee Chair Thomas “Mac” Middleton; Education, Health, and Environmental Affairs Committee Chair Joan Carter Conway; and Wayne Norman. From the article:

 “And we lost Wayne Norman. He was a tremendous supporter of agriculture in Cecil County and across the state.” …

Ferguson said the Farm Bureau also had relationships with several high-ranking legislators from urban areas who will no longer be in office because of surprising primary losses. Thomas “Mac” Middleton (D-Charles) and Joan Carter Conway (D-Baltimore City) were some of those powerful incumbents to be unseated.

“(Conway) was not necessarily a voice for the farm community, but she was a moderate and she looked at things fairly,” Ferguson said.

The article also discussed the challenge Maryland’s agriculture and seafood industries were facing due to federal legal requirements on seasonal immigrant workers and the potential benefits composting could bring to agriculture.

Find Out How Water Can Be Fun (and Profitable) at #MACoCon

Water not only provides important recreational and quality of life benefits but can also be an economic driver if leveraged properly. Learn about this important role of water at the 2018 MACo Summer Conference.

Getting Your Feet Wet: Big Benefits of Water Recreation

Description

Water recreation, whether it is swimming, boating, or just splashing around a water park, can provide both economic and quality of life benefits. Maryland has ample water recreation opportunities that parks and recreation agencies strive to make accessible and enriching. Panelists will provide an overview of the different types of water recreation, explain how agencies deliver water recreation services, and discuss how a local government can leverage water amenities to improve the social and economic vitality of their communities.

Speakers

  • Tara Eggleston Stewart, Department of Parks and Recreation Division Chief, MNCPPC, and President, Association of Aquatic Professional
  • Lisa Arrasmith, Member, Anne Arundel County Water Access Commission
  • Greg Pizzuto, Executive Director, Visit Harford!

Date & Time: Thursday, 165, 2018; 2:00 pm – 3:00 pm

Learn more about MACo’s Summer Conference:

US House Passes Bill Restricting EPA From Enforcing Bay TMDL

Baltimore Sun article (2018-07-19) reported that the United States House of Representatives has passed a bill that would limit the ability of the United States Environmental Protection Agency (EPA) from assessing penalties against those states that fail to meet their water pollution reduction goals under the Chesapeake Bay Total Maximum Daily Load (TMDL). The bill would still have to pass the Senate, which has already rejected a previous measure sent over by the House.

While considering a bill on budget appropriations for the EPA and Department of the Interior, Republican Representative Bob Goodlatte (Virginia) again proposed the prohibition as an amendment. According to the article, the amendment passed 213-202 with Maryland’s congressional delegation voting 7-0 against the amendment (Representative Steny Hoyer did not vote).

From the article:

Chesapeake Bay Foundation President William C. Baker called the amendment “shortsighted” and said it threatens progress at improving the bay’s health. …

The Senate did not approve a similar amendment the House adopted last year. Gov. Larry Hogan joined environmentalists in urging the upper chamber to reject the proposal in February, as it faced a deadline to fund the federal government.

Useful Links

Prior Conduit Street Coverage on Goodlatte EPA Restrictions

 

Local Governments Across the Nation Respond to Airbnb & Short-Term Rental Challenge

A Sustainable Cities Network article (2018-07-18) highlighted the actions some local governments have taken across the United States in response to the burgeoning growth of Airbnb and similar short-term rental models. Short-term rentals, such as those offered through services like Airbnb, offer both positives and negatives. They can encourage tourism and provide homeowners with extra income, both of which can help a local economy. However, they can also attract commercial investors and when the concentration of short-term rentals reaches a tipping point, actually destabilize residential neighborhoods, reduce long-term rental options, and threaten jobs in the local hospitality industry.

MACo has supported addressing both the regulation and taxation issues posed by short-term rental properties. The Maryland General Assembly has considered legislation on short-term rentals for several years but nothing has passed to date. The article looked at how several local governments in other states have tried to address this challenging and complex issue.

Boston (Massachusetts)

The article focused on the efforts of Boston, which saw a dramatic spike in commercial investors purchasing residential properties to use as short-term rentals starting around 2013. The issue was brought into focus after a coalition of advocacy groups provided research from the University of Massachusetts showing the increasingly negative effects the short-term rental trend was having on the city’s workers and residents.  After being presented with the data, the city’s elected officials took action:

In June 2018, the Boston City Council passed an ordinance eliminating investor unit listings and regulating other short-term residential rentals. It established a registration and data collection system that will allow the city to more effectively monitor the impacts of this industry on its residential housing supply. “At the same time, it continues to allow owner-occupants to rent out extra rooms on AirBnB for as many as 365 days, or their entire home while on vacation,” the ordinance explains.

[Fenway Community Development Corporation representative Colleen] Fitzpatrick says that having data about who owns properties and how they are managed as rentals is a very important piece of the puzzle for city leaders to possess. It would be helpful, but not practical, to access the databases of companies such as AirBnB, which has a very sophisticated registration platform. Without access to information, it can be difficult for communities to move from registration to enforcement.

Fitzpatrick also noted in the article that the purpose of the ordinance was not to eliminate short-term rentals but rather find the balance between allowing short-term rentals and having stable communities and housing/long-term rental options.

Miami Beach (Florida)

The article discussed how Miami Beach has struggled to enforce its short-term rental regulations, which limit the location of short-term rentals based on tourist appeal and neighborhood character. For rentals less than six months and one day, homeowners must: (1) submit an affidavit stating that their home is located in an approved short-term rental area; (2) obtain a business tax receipt and resort tax account; and (3) if part of a condo association, show that the association allows short-term rentals. Single-family homes are prohibited from engaging in short-term rentals. Violations result in the eviction of tenants and fines for the owner starting at $20,000.

Denver, Estes Park, and Larimer County (Colorado)

The article noted that Denver has imposed both regulations and taxes on short-term rentals, which generated $1.1 million in the first eight months of 2017. The property registration rate is estimated at around 70 percent.

Nearby Estes Park and Larimer County jointly developed short-term rental regulations to ensure consistency within their jurisdictions. All short-term rental property owners must register and pay an application fee of $200 plus $50 per bedroom. The joint ordinance: (1) sets caps on rentals within residential zones and limits occupancy to eight people per home unless exempted after a review process; (2) requires the designation of a local representative of property manager to handle complaints; and (3) prohibits employee housing, attainable housing, and accessory dwelling units from being registered.

Walla Walla (Washington)

The city of Walla Walla passed a controversial ordinance that prohibited short-term rentals for properties that were not owner occupied for at least 275 days per year and limited rentals to 29 days at a time. Owners must also register short-term rentals as a business and pay applicable taxes. The article described the controversy surrounding the ordinance and the implementation challenges as many short-term renters could not meet the short timeline for the registration and taxation requirements.

Useful Links

Prior Conduit Street Coverage of Airbnb Issues

 

 

New House of Delegates Leadership Unveiled

Maryland Reporter article (2018-07-19) reported that Maryland House of Delegates Speaker Michael Busch has made major leadership changes to the House as a result of recent primary results. Key changes include:

  • Delegate Luke Clippinger (Baltimore City) becomes chair of the Judiciary Committee
  • Delegate Vanessa Atterbeary (Howard County) becomes vice-chair of the Judiciary Committee
  • Delegate Eric Bromwell (Baltimore County) becomes vice-chair of the Economic Matters Committee
  • Delegate Joseline Pena-Melnyk ( Prince George’s and Anne Arundel Counties) becomes vice-chair of the Health and Government Operations Committee
  • Delegate Kathleen Dumais (Montgomery County) becomes Majority Leader

The article included the full text of Busch’s announcement. Here are Busch’s thoughts on the appointments of Dumais and Clippinger:

“There was no better choice for House Majority Leader than Kathleen [Dumais] leading us in to the next term,” said Speaker Busch. “Kathleen has proven herself to be a consensus builder and is one of the hardest working members in the House of Delegates – often working from dawn until dusk. I am confident she will bring energy and focus to the Majority Leader position.” …

“This is the first change for leadership in the House Judiciary Committee in 25 years and Luke [Clippinger] is the right person for the job,” said Speaker Busch. “Criminal justice policy is evolving more rapidly every year and I am pleased to name an experienced practitioner to lead this committee for the next term. Luke has proven himself time and again as having the ability to work with people from all backgrounds and bring a common sense, forward-thinking approach to policy issues.”

The article also included additional appointments and subcommittee chair announcements.

Howard County Ponders Future of Ellicott City’s Main Street After Second Flood

Bay Journal article (2018-07-10) recounted the scientific investigation into the second devastating flood to hit downtown Ellicott City within 2 years and the steps Howard County is taking to improve the City’s resiliency against future severe flooding events. The first flood in 2016 resulted in 2 deaths and caused roughly $10 million in damages. The flood this May caused 1 death and an estimated $20 million in damages. While the City’s Main Street area recovered slowly after the first flood, most businesses and residents elected to stay. However, after the second flood, some businesses have announced they are moving and some residents are considering whether to stay.

“There’s some very large emotional, financial and political decisions to be made,” said Jim Caldwell, Howard County’s director of community sustainability. “There’s a lot of work that needs to be done and a lot of soul-searching (by) folks that live there.”

Downtown Ellicott City has historically been prone to flooding, although development in the region and climate change appear to have aggravated the situation in recent years. After the 2016 flood, the County commissioned an engineering study after the 2016 flood and approved a variety of projects to help mitigate future flooding. However, the second flood hit before those projects could be implemented.  

Caldwell, the county community sustainability director, said after the flooding caused by Tropical Storm Lee in 2011, he thought of three big changes that could help reduce damage from future storms – buying out some property owners and removing their buildings to open up the flood plain, “daylighting” stream channels now buried under streets and buildings, and getting vehicles off Main Street. During the 2016 flood and again in May, cars became battering rams as they washed down the street, and a few plugged up one of the culverts.

The article noted that the County is now considering a variety of additional proposals, including a thorough review of planned and future development, buying out some properties and taking down the buildings to create more pervious surface for a flood plain, and prohibiting cars on Main Street.

Useful Links

Prior Conduit Street Coverage on Ellicott City Flooding

Learn about responding to a water crisis and communicating during an emergency at the 2018 MACo Summer Conference. Relevant panels include: “When It Rains, It Pours: Communicating in a Crisis” and “Batten Down the Hatches! Weathering a Water Crisis.” Both panels run on August 16.

Learn more about MACo’s Summer Conference:

 

Required Planning and Zoning Training Offered at #MACoCon

Learn about local government planning and zoning at the 2018 MACo Summer Conference. This course is required by State law if you are a planning board member, planning commissioner, or a Board of Appeals member.

Planning Board, Planning Commissioner and Board of Appeals Members Education Course

Description

This FREE course satisfies a training requirement that was part of the Smart and Sustainable Growth Act of 2009, which requires Planning Commission, Planning Board, and Board of Appeals members to complete an education course within 6 months after appointment to the Commission or Board. The Maryland Department of Planning (MDP) and the Maryland Planning Commissioners Association (MPCA) is offering this course to all those who have not yet completed it.

The Course covers topics such as foundations of planning, the role of the comprehensive plan, standards for special exceptions and variances and implementing ordinances such as zoning and subdivision and adequate public facilities, planning law, ethics and the latest legislative and policy developments concerning planning in Maryland.

NOTE: You do not need to register for the conference to attend this course.

Speakers

  • Charles W. Boyd, Director Planning Coordination, Maryland Department of Planning
  • Tracey Gordy, Regional Planner, Lower Eastern Shore Regional Office, Maryland Department of Planning
  • Keith Lackie, Regional Planner, Lower Eastern Shore Regional Office, Maryland Department of Planning
  • Paul Cucuzzella, Principal Counsel, Maryland Department of Planning

Date & Time: Wednesday, August 15, 2018; 9:00 am – Noon

Learn more about MACo’s Summer Conference:

MACo Submits Amicus Brief on Montgomery Pesticide Ban Appeal

MACo and the Maryland Municipal League have jointly submitted an amicus curiae brief (2018-06-21) to the Maryland Court of Special Appeals in a Montgomery County case involving a local ban on the use of lawn-care pesticides. The issues raised by the case concern local government autonomy and preemption.

As previously reported on Conduit Street, the Montgomery County Council passed a ban on the use of EPA-registered lawn-care pesticides for public and private property. The ban  covered areas such as lawns, playgrounds, recreation areas, and child  care centers but exempted agricultural usage. The ban also contained exceptions for treating noxious or invasive weed species, addressing human health concerns, or preventing significant economic damage.

In response, Complete Lawn Care and other several other businesses and county residents filed suit in Maryland Circuit Court challenging the ban. Circuit Court Judge Terrence McGann issued a decision on August 3, 2017, finding that state law preempted the Montgomery County ordinance. From Judge McGann’s opinion:

By generally banning the use of registered pesticides, the Ordinance prohibits and frustrates activity that is intended to be permitted by State law. The County’s Ordinance flouts decades of State primacy in ensuring safe and proper pesticide use, undermines the State’s system of comprehensive and uniform product approval and regulation, and prohibits products and conduct that have been affirmatively approved and licensed by the State.

The County appealed the Circuit Court’s decision to the Maryland Court of Special Appeals. MACo and MML, concerned about the broader local preemption issues posed by the holding, submitted an amicus brief to the Court of Special Appeals on June 21, 2018. The brief argued that local governments should not be preempted in enacting public health and safety measures that go beyond state minimums.  From the amicus brief:

The [circuit court’s ruling] gives insufficient deference to Maryland’s longstanding recognition of concurrent State-local authority, and its reluctance to preempt local safeguards that augment State health and safety protections.

In finding Montgomery County Bill 52-14 (“the Ordinance”) preempted, the circuit court failed to fully credit the latitude Maryland long has afforded local legislation that provides residents with additional health and welfare safeguards above and beyond those of State law. A proper respect for the role of county and municipal authority, asserted by the People over themselves through this amici and their constituent members, requires reversal of the court’s preemption ruling.

Useful Links

Circuit Court Decision – Complete Law Care v. Montgomery County (2017)

Prior Conduit Street Coverage of Montgomery Pesticide Ban

Administrative & Legal Appeals Surround Maryland’s Conowingo Dam Decision

Bay Journal article (2018-07-09) provided an update on the ongoing controversy over how to address the water pollution flowing through the Conowingo Dam. For decades the dam’s reservoir has trapped nutrient and sediment pollution coming down the Susquehanna River and keeping the pollution from entering the main stem of the Chesapeake Bay. However, recent studies have shown that the “trapping” capacity of the  reservoir has been reached earlier than anticipated, requiring an additional 6 million pounds of nitrogen and 260,000 pounds of phosphorus to be annually offset to meet the 2025 water pollution reduction goals set by the Bay Total Maximum Daily Load (TMDL).

Exelon, the owner of the dam, is currently seeking a 50-year renewal of its federal license to operate the dam. As part of federal relicensing requirements, Exelon must receive a Water Quality Certification from Maryland. In April of 2018, the Maryland Department of the Environment (MDE) stated that it would grant the certification providing Exelon paid up to $172 million per year to address the water pollution issues surrounding the dam. Exelon has challenged the MDE decision both administratively and in state and federal courts, arguing that the while it is willing to provide some support in addressing the dam’s issues, $172 million per year figure is far more than the actual worth of the dam. Waterkeepers Chesapeake and the Lower Susquehanna Riverkeeper Association have also filed an administrative appeal, arguing that the MDE decision does not go far enough in holding Exelon accountable. The Bay Program, which administers the TMDL, has indicated the Conowingo Dam will receive its own Watershed Implementation Plan to address the issue, but has not decided who will be responsible for the additional reductions. 

The article provides a variety of perspectives from different stakeholders:

“The dam itself does not produce any pollution,” Exelon said in a statement issued May 25. “Rather, the science clearly shows that the pollutants that travel down the Susquehanna River, from New York and Pennsylvania, are the source of the nutrients and sediments that flow into the Bay.” …

In response, the MDE said it would “vigorously defend our comprehensive Conowingo plan to restore the river and the Bay. The Hogan administration is committed to using science, law and partnerships for environmental progress throughout the entire Chesapeake Bay watershed and the Conowingo plan is at the heart of our multi-state strategy to deliver the results Marylanders expect and deserve.” …

“The entire time Exelon has operated this, to their financial gain, it was known that this was going to happen someday and there were no preventative actions taken by Exelon,” said Alison Prost, the Chesapeake Bay Foundation’s acting vice president for environmental protection.

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: