Cecil County Sees Minor Flooding After Conowingo Opens Floodgates

An Aegis article (2018-09-13) reported that Cecil County experienced some minor flooding along its Susquehanna River shore after 14 of the dam’s 50 floodgates were opened at the Conowingo Dam to alleviate rising waters behind the dam. The Port Deposit area saw most of the flooding effects. The current water release is not associated with Hurricane Florence but both the dam’s owner, Exelon Generation, and state officials are monitoring the storm’s track carefully. At this point, Exelon does not believe Florence will have an effect on the dam or its reservoir. From the article:

“We’re in contact with all of our local communities and emergency responders,” Deena O’Brien, a spokesperson for the dam’s parent company, Exelon Generation, said Wednesday afternoon. …

Weather conditions that are “most impactful to” Conowingo Dam, which spans the Susquehanna between Cecil and Harford counties, happen in central Pennsylvania, O’Brien said.

“The hurricane is not expected to have any impact in central Pennsylvania, thank goodness, so we’re not expecting a significant event with the hurricane,” she said.

The article also discussed actions that Maryland Governor Larry Hogan and state officials are taking in response to Florence’s potential threat and Exelon’s efforts to remove debris that comes down the Susquehanna. Debris that is not captured by Exelon is released into the Chesapeake Bay and its tributaries where it can create public safety and environmental hazards. The article noted that an unusually heavy debris release in July after record rainfall prompted both state and local government concern.

The article provided a hotline number that people can call to get information on floodgate openings: 1.877.457.2525. The hotline report is updated every eight hours.

St. Mary’s Extends Public Comment Period for Oyster Aquaculture Moratorium

Bay Journal article (2018-09-12) reported that the St. Mary’s Board of County Commissioners have extended a public comment period for a proposed ordinance that would create an 18-month moratorium on using commercial docks for oyster aquaculture leases. The new comment period runs until December 4. The article noted that the decision came after an August 28 public hearing in which more people spoke against the proposed moratorium than in support.

Supporters of the moratorium cited concerns that oyster aquaculture can pose navigational hazards, disrupt water recreational and hunting activities, and decrease property values. Opponents argued that the State considers such concerns prior to issuing an oyster aquaculture lease and that aquaculture can generate jobs and improve water quality. The article noted that the Maryland Department of Natural Resources (DNR) has issued 97 oyster leases and considering 44 more applications for in St. Mary’s County. From the article:

Mike Hewitt, another St. Mary’s County commissioner, said he believed that the county had gotten the state’s attention with its proposed moratorium. He expressed sympathy for waterfront property owners, who he said were being unfairly accused of opposing leases because they don’t want to see aquaculture activity from their shore. …

Hewitt and Randy Guy, the president of the county commissioners, both called for the formation of a local focus group to hash out their issues. If any local agreement can be reached, they said, perhaps it could form the basis of changes in state law or policy to give waterfront property owners and local officials more notice and more say in how and where oyster farming occurs.

In response, DNR has convened an informal workgroup that includes local officials to address the concerns raised and also speed up the licensing process.

1000 Friends of Maryland Merges With Preservation Maryland

Land use and Smart Growth advocacy group 1000 Friends of Maryland recently merged into historic preservation group Preservation Maryland. Former 1000 Friends Executive Director Kimberly Golden Brandt will now oversee a new campaign for the combined organizations called Smart Growth Maryland. From the Preservation Maryland webpage on Smart Growth Maryland:

Smart Growth Maryland is a campaign of Preservation Maryland which advocates for a more environmentally and economically sustainable future that creates opportunities for all Marylanders through better development patterns. …

Smart Growth Maryland focuses its work in three critical areas: advocacy, education and technical assistance.

The staff of Smart Growth Maryland advocate at the local, state and federal level for programs and policies which incentivize smarter growth patterns and protect critical natural, cultural and historic resources. In addition, Smart Growth Maryland also presents at workshops, trainings, seminars and conferences throughout the state to provide access to the latest trends in smart growth. Smart Growth Maryland’s professional staff also works throughout the state to assist counties, municipalities and developers that are contemplating smart growth projects. Staff provides a wide range of expert technical assistance with projects aimed at revitalization, land-use planning and resource conservation.

The webpage notes that Smart Growth Maryland is a program fully within Preservation Maryland and will be annually reported on Preservation Maryland’s IRS 990 form. Tax-deductible contributions made to Preservation Maryland can be specifically restricted to the Smart Growth Maryland campaign.

Useful Links

Preservation Maryland Website

DNR Recommends Somerset’s Manokin River as Final Tributary For Large-Scale Oyster Restoration

A Maryland Department of Natural Resources (DNR) press release (2018-09-05)  announced that DNR will recommend the Manokin River in Somerset County become the last tributary to be targeted for large-scale oyster restoration under the requirements of the Chesapeake Bay Watershed Agreement.

Under the Bay Agreement, Maryland must identify five of its Bay tributaries for major oyster restoration efforts, in conjunction with the National Oceanic and Atmospheric Administration, United States Army Corps of Engineers, and other partners. The recommendation replaces a prior DNR recommendation of having Breton Bay in St. Mary’s County serve as the fifth location. The Breton Bay recommendation was rescinded after a survey of the tributary found that it was unsuitable for restoration efforts. From the press release:

Working with the Interagency Oyster Restoration Workgroup, Oyster Advisory Commission, county oyster committees and other partners, the department will restore the tributary using state funds. The restoration work would occur in deep water to avoid any public safety and navigation hazard to anglers, boaters and commercial watermen. The department will engage local watermen in field work, plantings and surveying.

If selected, the Manokin will join Harris Creek, Little Choptank,  Tred Avon and Upper St. Mary’s as the state’s large-scale oyster restoration tributaries. The Chesapeake Bay Watershed Agreement set a goal of restoring oyster reefs and populations in 10 Chesapeake Bay rivers – five in Maryland and five in Virginia – by 2025.

The press release also discussed DNR’s ongoing work with oyster sanctuaries in Anne Arundel County.

Useful Links

DNR Website

Oyster Advisory Commission Webpage

 

Special Appeals Court Holds PSC Preempts Local Zoning on Solar Siting

The Maryland Court of Special Appeals issued an unreported decision on August 28, 2018 that highlighted the complicated, multi-pronged test Maryland Courts use when determining when state law has prohibits local government regulation of a subject through implied preemption. Specifically, Board of County Commissioners of Washington County v. Perennial Solar, LLC held that state law allows the Public Service Commission (PSC) to preempt by implication the zoning of a local government when granting a certificate of convenience and public necessity (CPCN) for solar energy generating systems (SEGS). A CPCN is a state approval for the siting of large scale solar projects.

Two important points: First, the case is an “unreported decision” which means that it may not be cited as either precedent or persuasive authority. This limits the holding of the case to the specific matters contained in the case. Second: the decision is based on State law that was in existence prior to the adoption of HB 1350 of 2017, which now requires the PSC to give due consideration to: (i) the consistency of the application with the comprehensive plan and zoning of each county or municipal corporation in which any portion of the generation station is proposed to be located; and (ii) the efforts by affected parties to resolve any issues presented by such a county or municipal corporation.

The Facts of the Case

In 2015, Perennial Solar filed an application for a special exception and variance with the Washington County Board of Zoning Appeals to construct a SEGS on 86 acres of land zoned by the County as Agricultural (Rural). After a public hearing, the Board granted Perennial’s application. Perennial subsequently applied for a CPCN through the PSC, which was approved.

Several affected property owners challenged the PSC’s action in Circuit Court. The Circuit Court dismissed the action on a motion by Perennial, finding that the PSC decision preempted local zoning. The property owners and the Washington County Board of County Commissioners appealed the Circuit Court’s dismissal to the Court.

The Court’s Holding

There are two types of preemption – express and implied. Express preemption is where the General Assembly has clearly stated in statute that only the state is allowed to legislate in a particular policy area. Implied preemption, which is at the heart of this case, is where the General Assembly has acted with such force that an intent by the State to occupy the entire field must be implied. The case first outlined the complicated factors Maryland Courts use when reviewing implied preemption and then applied those factors to the facts of the case:

Although there is no specific formula to determine whether the General Assembly intended to preempt an entire area, Maryland courts have considered the following secondary factors relevant to whether a local law is preempted by implication:

  1. whether local laws existed prior to the enactment of the state laws governing the same subject,
  2. whether the state laws provide for pervasive administrative regulation,
  3. whether the local ordinance regulates an area in which some local control has traditionally been allowed,
  4. whether the state law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances,
  5. whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field,
  6. whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislation, and
  7. whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion. …

Based on the comprehensiveness of §7-207 [of the Public Utilities Article], local zoning regulations and comprehensive plans are impliedly preempted by state law for SEGSs requiring a CPCN. The statute grants the PSC broad authority to determine whether and where the SEGS may be constructed and operated. It is even more evident that the Legislature intended to have the state govern SEGS approval by requiring local government input into the state’s final decision.

The Court of Appeals reached the same conclusion in Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990). There, the Court considered whether the authority granted to the PSC under Article 78 (now PUA §7-207) preempted local land use and
zoning ordinances regulating the location and construction of certain transmission lines.

The Court also considered and rejected an argument by Washington County that the PSC law does not apply to Perennial Solar because it is not a “public service company.”

The Take Away

While this case is nominally about solar siting and local zoning, the broader issue for local governments is the vague and somewhat arbitrary “test” Maryland Courts use when determining implied preemption. Absent a clear rule about when a policy area is preempted by the state, local governments face uncertainty in many policy areas where both state and local regulation currently coexist.

 

Useful Links

HB 1350 of 2017

 

Federal Court Reinstates Controversial “Waters of US” Rule in Maryland, 25 Other States

naco logoA National Association of Counties (NACo) County News article (2018-08-19) reported that a United Stated District Court has reinstated the controversial 2015 “Waters of the US” (WOTUS) rule for Maryland and 25 other states. The WOTUS definition under the Clean Water Act determines what waterways are subject to the Act’s protections and permitting requirements. Prior to the 2015 rule,  the WOTUS definition mainly applied to “navigable waters.”

However, the United States Environmental Protection Agency (EPA) and Army Corps of Engineers under the Obama administration proposed expanding the WOTUS definition under the Clean Water Act to include wetlands and intermittent flows. While support by many environmental groups, local governments  and agricultural interests opposed the change, believing that the new rule would subject road ditches, irrigation channels, and stormwater drainage systems to Act’s requirements. The EPA and the Corps finalized the new definition in 2015 but the rule put on hold in 2017 by the new Trump administration while a new version of the WOTUS definition was being drafted.

That hold was partially undone by the recent District Court ruling, which reinstated the 2015 rule in Maryland and 25 other states:

On Aug. 16, U.S. District Judge David Norton of the District of South Carolina ruled in favor of the Southern Environmental Law Center, which claimed the administration violated the Administrative Procedure Act by failing to seek public comment on the Environmental Protection Agency’s rule to delay WOTUS implementation, released Jan. 31.  …

For the remaining 24 states, federal district courts in North Dakota and Georgia have issued injunctions preventing the 2015 WOTUS rule from going into effect. There is litigation pending in a federal district court in Texas that could result in a nationwide injunction of WOTUS, meaning the rule could be once again halted in every state.

NACo had opposed the 2015 WOTUS definition over concerns that it would apply to county-owned stormwater and roadway structures. MACo also submitted comments prior to the 2015 rule being finalized, asking EPA to clarify that the rule’s language would not apply to county-owned ditches and storwmater drainage channels. Despite providing verbal assurances that the new rule would not apply to such structures, EPA refused to consider a clarifying amendment before the rule was finalized.

Useful Links

EPA WOTUS Rulemaking webpage

Prior Conduit Street Coverage of WOTUS

 

Attendees Up Early For Chesapeake Bay Update at 2018 Summer #MACoCon

From L to R: Ben Grumbles, Delegate Kumar Barve, Mark Belton, Alison Prost, and Julie Ufner.

County officials packed the Performing Arts Center at the Ocean City Convention Center at 9:00 am to receive an update on the health and restoration progress of the Chesapeake Bay during the 2018 MACo Summer Conference. The “Clear Water: The State of the Bay” panel was held on August 17, 2018, and included perspectives State, federal, and environmental perspectives.

Maryland Secretary of the Environment Ben Grumbles discussed the improving water quality of the Bay watershed while taking a “glass half full” approach.  Water quality has improved and the overall size of the annual oxygen “dead zone” has decreased. Maryland remains a leader in Bay restoration efforts and the State has spent over a year developing its Phase 3 Watershed Implementation Plan (WIP).  Looking forward, Grumbles stressed the need for a multi-pronged strategy that includes: (1) holding our partner Bay states responsible for their water pollution, especially Pennsylvania which is 37 million tons behind on nitrogen reductions; (2) focusing resources on the agricultural sector and reducing sewer overflows; (3) addressing the pollution coming through the Susquehanna River and Conowingo Dam by creating a separate Conowingo WIP; (4) incorporating climate change into the WIP; and (5) getting the United States Environmental Protection Agency (EPA) to address air pollution generated by out-of-state coal power plants.

Maryland Secretary of Natural Resources Mark Belton addressed ecological and recreational improvements made to the Bay. Belton noted that he sees waterways cleaned of debris, improving fishery health, conversation law enforcement taking place, navigation channels open, and better water recreation access. Belton highlighted five initiatives/programs supported by the Administration of Governor Larry Hogan, including: (1) the Chesapeake and Atlantic Coastal Bays Trust Fund; (2) Program Open Space; (3) the Rural Legacy Program; (4) the Waterway Improvement Fund; and (5) the Climate Leadership Academy.

Nearly 200 conference attendees listen to the State of the Bay update

Chesapeake Bay Foundation Maryland Executive Director Alison Prost concurred with Grumbles, noting that Bay restoration efforts can be viewed as a “glass half full.” Prost stated that in 1982, scientists said that the Bay was dying. Now people view the Bay Restoration effort as a model program. Prost stressed that success is happening because of collective action, including by local governments, and that the 2-year Total Maximum Daily Load (TMDL) milestones have been critical in focusing efforts. Prost noted that Maryland has been meeting its milestone goals overall but falls short on addressing urban/suburban stormwater runoff. Prost several needed actions going forward, including: (1) supporting the Maryland Department of the Environment’s water quality certification requirements for the Conowingo Dam; (2) engaging with Pennsylvania and the EPA to get Pennsylvania to meet its TMDL goals; (3) stable funding levels at the state and federal level; (4) better financial strategies for stormwater projects; (5) more technical assistance; (6) more oysters through both aquaculture and the use of sanctuaries; and (7) more trees through stream buffers and a strengthened Forest Conservation Act.

National Association of Counties Environment, Energy and Land Use Associate Legislative Director Julie Ufner closed the panel by providing an overview of recent federal actions affecting Bay restoration. Ufner noted that while President Donald Trump had proposed a dramatic decrease for federal Bay restoration funding, Congress has disagreed and allotted $73 million for Bay cleanup efforts. While Acting EPA Administrator Andrew Wheeler continues to work on rewriting the “Waters of the United States” definition under the Clean Water Act, the federal District Court of South Carolina just issued an injunction against Trump’s hold. That means the controversial 2015 rule will go into effect in 26 states, including Maryland. (Countersuits are very likely.) Ufner noted that midterm elections may upend a lot of congressional priorities. Current legislation contains a provision prohibiting EPA from spending funds to enforce the Bay TMDL but that provision could be cut from the final bill. Finally, Ufner noted that currently the House version of the Farm Bill has a provision limiting local governments from regulating pesticides.

Maryland House of Delegates Environment and Transportation Committee Chair Kumar Barve moderated the panel.

Clean Chespeake Coalition Premiers New Conowingo Film at 2018 Summer #MACoCon

Clean Chesapeake Coalition attendees watching “The Conowingo Factor”

The Clean Chesapeake Coalition premiered a new film on the Conowingo Dam and the health of the Chesapeake Bay at the 2018 MACo Summer Conference on August 16, 2018. The screening of “The Conowingo Factor” attracted a standing-room-only audience that included elected officials, cabinet secretaries, and environmental advocates.

The Coalition was formed in 2012 to address Chesapeake Bay Total Maximum Daily Load water quality issues and currently has six counties as members: Caroline, Carroll, Cecil, Dorchester, Kent, and Queen Anne’s. The Coalition was one of the first advocacy groups to raise the water quality issues posed by the Conowingo. Kent County Commissioner Ronald Fithian is the chair of the Coalition.

Standing room only at the Coalition meeting

The 13-minute “Conowingo Factor” summarized the dam’s history and the water quality issues posed by both the dam and sediment and debris coming down the Susquehanna River. The film also outlined Maryland’s efforts to have the dam’s owner, Exelon, mitigate the pollution coming through the dam and the current legal and administrative challenges Exelon is pursuing against Maryland.

Coalition members are continuing to urge the Administration of Governor Larry Hogan to hold Exelon accountable. 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

The Conowingo Factor Video

Clean Chesapeake Coalition Website

 

Rural Counties Coalition Updated on Small Cells, Broadband, Land Use Issues at 2018 Summer #MACoCon

Rural Counties Coalition Chair Evan Slaughenhoupt addresses a full room at Rural Counties Coalition breakfast.

The Rural Counties Coalition, a MACo Chapter Organization, held its traditional breakfast meeting at the 2018 MACo Summer Conference on August 16, 2018. The Coalition heard updates on rural broadband, small cell, and land use issues and considered how to approach new leadership and members of the Maryland General Assembly.

Maryland Rural Council Executive Director Charlotte Davis provided an update on rural broadband efforts. MACo Legal and Policy Counsel Les Knapp provided updates on: (1) small cell legislation; (2) Smart Growth initiatives; (3) Forest Conservation Act legislation; and (4) the recent leadership changes to the General Assembly.

Calvert County Commissioner Evan Slaughehnhoupt chaired the meeting. It was the final Coalition meeting for Slaughenhoupt, who is not running for County Commissioner again.

 

 

 

 

 

 

“Reinventing Power” Documentary Screened at 2018 Summer #MACoCon

A scene from “Reinventing Power: America’s Renewable Energy Boom”

Attendees to the 2018 MACo Summer Conference were able to see a screening of the documentary “Reinventing Power: America’s Renewable Energy Boom” on August 15, 2018. The 50-minute film, created by the Sierra Club, examines how renewable energy can create economic as well as environmental benefits.

The documentary looks at case studies from eight states that highlight the environmental, health, and economic benefits of successful renewable energy projects and technologies. The studies include examples of solar panel projects, solar panel manufacturing, on-shore and off-shore wind projects, electric bus manufacturing, and energy storage solutions.

Useful Links

Reinventing Power Trailer

Maryland Sierra Club Website