MDE Releases Draft Nutrient Credit Trading Regulations

A Maryland Department of the Environment (MDE) news release (2017-10-11) announced the release of draft regulations that would establish a water quality nutrient credit trading program. The draft regulations culminate a series of attempts that began in 2012 to establish a viable nutrient credit trading program. MACo believes a strong trading program can assist local governments in meeting their water quality goals under the Chesapeake Bay Total Maximum Daily Load. From the MDE news release:

The Maryland Department of the Environment has proposed regulations to establish the Maryland Water Quality Trading Program and accelerate the restoration of the Chesapeake Bay while bringing economic benefits to Maryland. The regulations are proposed under Maryland environmental law to ensure enforcement and accountability under the federal Clean Water Act.

The proposed regulations are designed to provide greater flexibility and reduce costs in achieving Maryland’s goals under its blueprint to meet federal pollution limits for the Bay. The voluntary program would establish a marketplace for private sector participation in meeting Bay cleanup goals.

Nutrient and sediment credit trading offer attractive alternatives to more costly traditional approaches for improving water quality and have the potential to achieve results more quickly and at a lower cost, accelerating efforts to restore and improve water quality. The trading program that would be established by the proposed regulations expands opportunities for all sources by giving them access to a water quality marketplace and flexibility in meeting and maintaining their pollution limits by acquiring credits generated from load reductions in local watersheds in Maryland’s portion of the Chesapeake Bay watershed.

“Maryland is a leader in reducing greenhouse gases and is now poised to make similar gains for clean water with nutrient credit trading,” said Maryland Environment Secretary Ben Grumbles. “We can speed up the cleanup of the Chesapeake Bay and reduce the cost of restoration with innovative partnerships and regulatory safeguards.”

The proposed regulations were developed with significant input from the Maryland Water Quality Trading Advisory Committee. Earlier this year, the Maryland Departments of the Environment and Agriculture published a draft “Maryland Trading and Offset Policy and Guidance Manual” in consultation with the Advisory Committee.

In 2010, the U.S. Environmental Protection Agency established the Chesapeake Bay Total Maximum Daily Load (TMDL), with pollution limits and load allocations for the pollutants nitrogen, phosphorus and sediment. Maryland developed a Watershed Implementation Plan, or blueprint, that allocates pollution loads for the wastewater, stormwater, septic, agricultural and forest sectors.

The Maryland Water Quality Trading Program will allow agricultural sources that have reduced their pollution beyond the required “baseline” to produce credits that can be purchased by counties or municipalities to meet Bay cleanup requirements to reduce polluted stormwater runoff. The cost of reducing nitrogen could be as low as $200 per pound in the agriculture sector, compared to an estimated $3,800 per pound for urban retrofits to reduce stormwater runoff.

The proposed regulations include mechanisms for the Department of the Environment to certify credits for trading. The certification process relies heavily on EPA Chesapeake Bay Program modeling tools, expert panel reviews of Best Management Practices and other technical and policy support. The Department of the Environment’s review would include limits on the geography within which a trade can take place and evaluate expected improvements in water quality.

The Department of the Environment submitted the proposed regulations yesterday to the Administrative Executive and Legislative Review (AELR) Committee for a 15-day review. The Department expects to submit proposed regulations for publication in the Maryland Register in November. A public comment period would follow that publication.

Useful Links

MDE Draft Nutrient Credit Trading Regulations

Prior Conduit Street Coverage of Nutrient Credit Trading

Delmarva Farmer Editorial: Goodbye to Waters of the US Rule Change

A Delmarva Farmer editorial (2017-10-06) recounted the history of the controversial change in the definition of “Waters of the United States” (WOTUS) for purposes of implementing the federal Clean Water Act, noted its demise under United States President Donald Trump, and expressed optimism that farmers will have a voice in changing the rule going forward.

As previously reported on Conduit Street, the United States Environmental Protection Agency (EPA) and United States Army  Corps of Engineers proposed and adopted a rule that would expand the WOTUS definition to include streams, wetlands, and intermittent water flows – making them subject to Clean Water Act permitting and mitigation requirements. MACo joined with the National Association of Counties (NACo) in expressing concern that the proposed definition included stormwater drain pipes and roadside drainage ditches. However, the new definition never took effect as the rule change spawned significant litigation and a federal court froze the rule’s implementation. Subsequently, President Donald Trump signed an executive order that reverted the WOTUS definition to the version that existed before the proposed changed.

From the editorial:

In response to Trump’s executive order in February, the EPA announced that it would formally repeal the WOTUS rule and the work was slated to begin on writing a new rule which would provide farmers with clarity and certainty, reduce red tape, and not discourage farming practices that improve water quality.

It now seems reasonably certain that WOTUS, in its original concept, will end up in the federal waste basket and that the nation’s farmers will have a say in what will replace it.

Useful Links

Conduit Street Article on Trump WOTUS Executive Order

Prior Conduit Street Coverage of Waters of the US

NACo WOTUS Resource Page

Board of Public Works Approves $23 Million In Rural Legacy Grants

The Board of Public Works unanimously adopted a Maryland Department of Natural Resources recommendation approving 17 Rural Legacy Program grants – totaling over $23 million. Funding from these grants will permanently protect over 6,500 acres of working farms, forests and open space in 18 counties.

According to a press release:

The projects include protecting productive farmland, natural habitat, scenic view sheds, shorelines, wetlands, and woodlands as well as cultural, historical, and natural resources.

Established in 1997, the Rural Legacy Program is designed to preserve large tracts of productive and valuable agricultural and forested lands that contain exceptional features. The program acts through local government or private land trust sponsors to purchase conservation easements from willing property owners in 31 locally-designated rural areas located in every county. To date, the program has permanently protected 91,398 acres.

Here is a listing of Rural Legacy Program grants (alphabetically by area):

Read the full press release for more information.

LGAC Charts Local Path For Bay TMDL Final Phase

The Local Government Advisory Committee (LGAC) met on October 5 and 6 to prepare recommendations regarding local government participation and concerns in meeting Chesapeake Bay Agreement goals, including the Phase III Watershed Implementation Plans (WIPs) for the Bay Total Maximum Daily Load (TMDL). The meeting took place in Shepherdstown, West Virginia.

LGAC is part of the Chesapeake Bay Program and advises the Executive Council on local government engagement, challenges, and needs in meeting Bay water quality and habitat goals. Its membership includes county and municipal representatives from all six bay watershed states and the District of Columbia.

United States Environmental Protection Agency (EPA) and state environmental agency representatives briefed LGAC on the Bay TMDL midpoint assessment, including how additional pollution loads from growth, the Conowingo Dam, and climate change would be incorporated into the pending local water goals that will be issued by EPA. One proposal regarding the Conowingo Dam load would add the load to the Susquehanna River basin and those basins where it would be most “cost effective” to treat the loads (primarily the upper eastern and western shore areas in Maryland).

Each Bay state also reported out on their local engagement efforts and current best practices and challenges. The Alliance for the Chesapeake Bay discussed its local watershed education and capacity building project. In Maryland, the Alliance will be working directly with MACo on curriculum development for local elected officials. Another presentation addressed alternative financing for stormwater projects.

MACo Legal and Policy Counsel Les Knapp participated in the meeting on behalf of Maryland’s counties. For further information, please contact Les at 410.269.0043 or

Useful Links

LGAC Webpage

Chesapeake Bay Program Website


MACo Legislative Committee Receives Aligning for Growth Update

MACo’s Legislative Committee received an update on the state’s pending “Aligning for Growth” (AfG) policy on September 27. The AfG policy, also known as “Accounting for Growth,” will dictate how new development must offset the water pollution it generates. The policy is required to be included in Maryland’s draft Phase III Watershed Implementation Plan (WIP) that must be submitted to the EPA by the end of 2018.  There have been several prior unsuccessful attempts to create an AfG policy. As previously reported on Conduit Street, MACo has offered some preliminary comments on the two potential AfG options being currently being considered.

Maryland Department of the Environment Water and Science Administration Assistant Director Matthew Rowe provided a presentation on the current plan and potential options for the development of an AfG policy. Rowe noted that the AfG policy is primarily designed to offset water pollution generated by: (1) onsite sewage disposal systems (OSDS) or septic systems; and (2) stormwater runoff. The two potential options being considered include: (1) an OSDS/Forest Conversion option that requires offsets on new OSDS growth and development on forest land; and (2) a Lowest Per Capita Loading option that set offset requirements based on county-specific pollution loading maps.

Rowe also stated that near-term goals for the AfG policy include soliciting preliminary stakeholder feedback and developing a detailed timeline for the policy’s development with a December 2018 deadline. Mid-term goals include fleshing out the policy options and considering stakeholder input.

MACo anticipates being involved throughout the AfG policy development process. For further information please contact MACo Legal and Policy Counsel Les Knapp at 401.269.0043 or

Useful Links

Conduit Street Article on MACo AfG Comments

Conduit Street Article on Proposed AfG Options

Delmarva Farmer Editorial: Solar Development Threatens Eastern Shore Ag

A Delmarva Farmer editorial (2017-09-22) raised ongoing concerns that Eastern Shore agricultural lands remain threated by large scale solar development. The editorial cited recent utility scale projects in the areas of East New Market and Hurlock and expressed concern that the Invenerg, the Chicago-based company behind the Hurlock project did not hold any community outreach meetings or engage in preliminary discussions with adjacent land owners. The editorial argued that the loss of farmland can have a cascade effect on the economy of the Eastern Shore. From the editorial:

We are aware that solar power generation is useful and environmentally desirable.

We are also aware that it is being heavily awarded financially. …

Solar developers argue — and we agree — that solar development will occupy only a fraction of the farmland acreage on the Shore.

But put a value on that farmland — hundreds of acres of solar panels — and remember it has just started — and translate that annual loss into bushels of corn and soybeans and wheat and translate that loss into its impact on the poultry industry.

Consider erecting those columns of solar panels on the huge expanses of acreage provided by landfills, abandoned industrial properties, brownfields and the like.

MACo Urges Urban/Rural Balance On Aligning For Growth Options

MACo offered its initial thoughts on two extremely preliminary options for Maryland’s pending “Aligning for Growth” (AfG) policy in a comment letter (2017-09-15). Maryland must address onsite sewage disposal system (OSDS or septic system) and stormwater water pollution generated by new growth as part of its Phase III Watershed Implementation Plan (WIP) under the Chesapeake Bay Total Maximum Daily Load requirements.  As previously reported and described on Conduit Street, the two potential options are: (1) an OSDS/Forest Conversion Option; and (2) a Phase I and II WIP Per Capita Loading Option. MACo offered three basic comments in its letter:


Comment #1: More detail is needed about each option before a definitive opinion can be formed.

From a county perspective, each option has advantages and drawbacks but the initial proposals lack sufficient detail to fully consider their merits. For the OSDS/Forest Conversion Option, baseline determination remains an issue as does potential septic loading rates. Additionally, some allocation would need to be provided for septic systems (See Comment #2).

The Phase I and II WIP Per Capita Loading Option is predicated on loading maps that do not yet exist and could put certain counties and municipalities at a significant disadvantage regarding growth and economic development. It is also questionable, with respect to its potential complexity, to administer. Both options need to better define local government flexibility in assigning allocation.

Comment #2: The AfG policy must treat urban and rural growth equitably.

MACo cannot support an AfG policy that has a stormwater component so prohibitive that it essentially eliminates urban infill, redevelopment, or revitalization projects; or a septic component so prohibitive that it essentially eliminates rural economic development or residential growth. Both the stormwater and septic sectors should receive growth allocations and neither should be marginalized. Regardless of the option chosen, the AfG policy must acknowledge the different growth needs and patterns of the state.

Comment #3: Further development of the AfG options must be done collaboratively with local governments.

It is imperative that the State continues to work collaboratively with both counties and municipalities, whether it is to further develop the two options referenced in this letter or create a new option not currently under consideration. Local governments will be critical partners in the success or failure of AfG and our participation and support will ultimately be necessary for the administration of a viable and sustainable AfG policy.


Useful Links

Conduit Street Article Describing Two Proposed AfG Options

Prior Conduit Street Coverage on AfG Policy


Sun Op-Ed: State Development Plan Can Bring Smart Growth Into 21st Century

As previously reported on Conduit Street, former Maryland Secretary of Planning Richard Hall has criticized the recent decision by Governor Lawrence “Larry” Hogan to repeal PlanMaryland and create a new State Development Plan while the editorial board of the Baltimore Sun was willing to give the Governor “the benefit of the doubt.” National Center for Smart Growth Research and Education Executive Director Gerrit Knaap adds a third perspective in a Baltimore Sun op-ed (2017-08-31). In the op-ed, Knaap viewed the PlanMaryland repeal not as the end of Smart Growth in Maryland but as an opportunity to bring Smart Growth into the 21st century. From the op-ed:

PlanMaryland was criticized by rural officials as usurping local land use control, but in reality, it simply placed existing state programs such as Priority Funding Areas, Rural Legacy areas, Sustainable Communities and other state designations on a single map to better coordinate existing state programs. It’s primary shortcoming, however, was that it did not provide a compelling vision for a 21st century Maryland. That vision is precisely what Maryland needs right now.

Knaap argued that Maryland needs a State Development Plan that addresses not only the state’s projected growth (1 million new people in the next 25 years) but also emergent issues such as climate change and sea level rise, transportation infrastructure for self-driving cars, and renewable energy technologies. Knaap stated that Hogan should work with key state and local stakeholders to develop a plan that promotes: (1) relevant Smart Growth practices; (2) balanced economic development; (3) adoption of renewable energy technologies; (4) resource conservation; (5) modern workforce development; and (6) equitable access to opportunities statewide.

Useful Links

Conduit Street Article on Richard Hall and Baltimore Sun Op-eds

National Center for Smart Growth and Education Webpage

Comment Period Extended for “Waters of the US” Rule

naco logoA National Association of Counties (NACo) article (2017-09-05) announced that United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers are extending the public comment period for the recodification of the “Waters of the US” definition from August 28 until September 27. As previously reported on Conduit Street, the revised definition would withdraw definition changes made in 2015 and recodify the previous version of the definition. Both NACo and MACo expressed concerns about the scope of the revised definition including certain “ephemeral” waterways such as roadside drainage ditches and stormwater drainage pipes. From the article:

This is the first of a two-step process to review and rewrite the WOTUS rule finalized under the Obama Administration in 2015. The proposed rule to rewrite the current WOTUS definition is expected to be released as early as this fall. …

On February 28, President Donald Trump signed Executive Order (EO) 13778 directing the EPA and Corps to review the 2015 WOTUS rule. In April, EPA held a consultation with national representatives of state and local governments to gather their input about their two-step plan to withdraw and rewrite the rule. As a result of the consultation, NACo, along with the National League of Cities (NLC) and the U.S. Conference of Mayors (USCM), submitted a joint letter emphasizing the role local governments play in environmental programs as co-regulators and highlighted the importance for the federal government to collaborate with local governments on pending rules and regulations.

Useful Links

NACo/NLC/USCM Letter on Waters of the US 

NACo’s Waters of the US Webpage

Prior Conduit Street Coverage of Waters of the US

State Considering Two Potential “Aligning for Growth” Policies

The Maryland Department of the Environment’s Water Quality Trading Advisory Committee will be considering two potential options for offsetting water pollution generated by new growth under the State’s forthcoming “Aligning for Growth” (AFG) policy. Maryland is requiring to create an AFG policy as part of its Phase III Watershed Implementation Plan (WIP) under the Chesapeake Bay Total Maximum Daily Load. MACo will be seeking feedback on the two options shortly. The options are largely conceptual and significant details would need to be developed.

Both options would only apply to pollution generated by new onsite sewage disposal systems (OSDS/septic systems) and stormwater runoff as wastewater treatment plant pollution loads already include a growth component. Both options also envision reallocating some water pollution reductions based on other activities (closing of industries, sewer extensions, farmland conversion, or reducing allocations to other sectors) to new growth. Providing an allocation to new growth essentially means you do not have to specifically offset the additional water pollution generated by that new growth as long as the pollution generated by the new growth does not exceed the allocation.

Option 1: OSDS/Forest Conversion Option

Option 1 is essentially a hybrid of two recommendations from the 2013 workgroup that attempted to establish an AFG policy.

(1) For septic systems, there would be no growth allocation granted, meaning that all new septic system growth would have to be offset. A key question is whether this allocation prohibition should apply everywhere within certain areas, such as the Chesapeake and Atlantic Coastal Bays Critical Area or the Tier III and/or IV septic tier maps.

(2) For stormwater pollution, if the new development is occurring on forest, the project will have to offset any additional stormwater load in excess of the original forest load. For everywhere else, there would be a post-development allocation granted, meaning no offsets are required.

Option 2: Phase I & II WIP Per Capita Loading Option

Option 2 would use the Per Capita Loading Areas mapped out in the WIPs. These areas indicate high, moderate, and low pollution loading to the Chesapeake Bay and are mapped out by county and municipality.

This option would provide allocation to each jurisdiction based on the low per capita loading rates times the 2025 projected growth rate in the WIPs. The option could allow jurisdictions to make the choices of when to award allocations or require offsets. Additionally, the option must be clarified as to whether the policy would allow allocation to be awarded only to low per capita areas only or to all areas. One further challenge is that the loading maps will be changed under the pending Phase 6 Bay Model and those maps are not yet available.

MACo will be seeking county input on these options prior to the Sept 18 meeting of the Advisory Committee. For further information please contact Les Knapp at 410.269.0043 or

Useful Links

Conduit Street Article on Aligning for Growth and Nutrient Credit Trading History

Prior Conduit Street Coverage on Aligning for Growth