What’s In The BAT Repeal Regulations?

As previously reported on Conduit Street, Governor Lawrence (Larry) Hogan announced at the 2016 MACo Summer Conference that the Maryland Department of the Environment (MDE) would be proposing regulations to repeal the requirement that new or expanded capacity septic systems located outside of a Critical Area use best available nitrogen removal technology (BAT). MDE has released a copy of the proposed regulations and an explanation sheet on MDE’s broader approach to septic systems (links to both below).

Previously, MACo has raised concerns about the “one size fits all” approach, questionable nitrogen reductions, and increasing in affordable housing costs that accompanied the outside the Critical Area BAT requirement. The BAT issue was one of the key concerns MACo raised in its comments to the Regulatory Reform Commission in 2015.

BAT Regulation Reform

The proposed regulations will include the following changes:

  • Repeal: Repeal the mandatory use of BAT or equivalent systems outside of a Critical Area except for newly constructed large septic systems with a design flow of 5,000 gallons per day or greater
  • Local Flexibility: Authorize a local government to enact BAT requirements outside of a Critical Area in order to protect public health or the waters of the State
  • Critical Area BAT Requirement: Incorporate the current statutory requirement for BAT systems within a Critical Area for new construction or replacement systems into the regulations
  • Definition of New Construction: Specify the definition of “new construction” does not include the renovation or repair of an existing residence
  • Maintenance Contract & Warranty: Require all new BAT systems (inside or outside of a Critical Area) to include a two year operation and maintenance contract and a two year warranty, effective from the date of initial installation
  • BAT Maintenance: Clarify that if a property owner with a BAT systems choses to have an approved management entity operate and maintain the system, the management entity must do both (all other existing maintenance and service provider requirements are retained)
  • Stylistic Changes: Make several stylistic or non-substantive changes to wording, grammar, or terminology

MDE Septic System Strategy

However, the BAT regulation reform is only part of a broader 3-pronged effort that MDE is undertaking regarding septic systems. From MDE’s explanation sheet:

This BAT septic system regulatory reform is one part of the Department’s broader effort to meet clean water goals in the most effective, efficient, and equitable ways. The broader effort includes:

Reforming the BAT regulations – as described above.

Re-tooling inspection and enforcement efforts. The Department is committing to enhance compliance assistance and enforcement efforts with an emphasis on failing septic systems statewide.

Re-thinking the septics vs. sewer decisions. In many cases counties and communities are seeking financial, legal, and regulatory assistance to help connect failing septic systems to public sewer. MDE and the Maryland Department of Planning (MDP) will participate in a workshop for local governments and other interested parties in the coming months on opportunities for septic to sewer projects, including financial and technical assistance the Departments can offer for such efforts.

MDE Secretary Ben Grumbles: “We are fully committed to clean water progress and meeting Chesapeake Bay goals and requirements. This is a measured step to reduce regulatory burden and build public support for a smarter and more effective septics program across the state. We are customizing the statewide requirement to meet local watershed needs more effectively while still insisting on excellent environmental results. Innovation and collaboration at the local level, rather than locking into one particular technology, will lead to more success in protecting and sustaining Maryland’s precious environment. We will work hard to make sure it happens through regulatory reform, education, compliance assistance and enforcement.”

The proposed regulations will be published in an upcoming issue of the Maryland Register and be subject to a 30 day public comment period from the date of publication.

Useful Links

MDE 2016 Proposed BAT Septic Regulations

MDE Handout Explaining Proposed BAT Regulations & General Septic System Strategy

Conduit Street Coverage of Governor Hogan’s BAT Announcement

Conduit Street Coverage on MACo Letter to Regulatory Reform Commission

Prior Conduit Street BAT Septic Coverage



Belton and Grumbles Engage Counties in Open Forum

Department of Natural Resources Secretary Mark Belton and Department of Environment Secretary Ben Grumbles discussed policy and answered questions at an open forum with attendees at the MACo Summer Conference.

DNR and MDE Secretaries gave brief remarks then opened themselves to questions from a full and eager audience.
DNR and MDE Secretaries gave brief remarks then opened themselves to questions from a full and eager audience.

Secretary Belton briefly provided updates on Program Open Space, DNR’s Chesapeake Bay related programs, the Oyster Advisory Committee, and clean up efforts of the Patapsco River stemming from the recent storm that devastated parts of Ellicott City.

Secretary Grumbles briefly highlighted MDE’s Chesapeake Bay related efforts, continued challenges and work related to storm water remediation, and a desire to work closely with local governments on restoration projects across the state.

The dynamic duo then yielded the remaining time to answer questions from the audience which ranged from forest conservation to TMDL recalibration and green infrastructure.

The Open Forum with DNR and MDE was moderated by Delegate Mary Ann Lisanti, a former Harford County Council Member that has worked with MACo on environmental issues both as a MACo member and as a state legislator.

The 2016 MACo summer conference was held August 17-20 at the Roland Powell Convention Center in Ocean City Maryland. This year the conference’s theme was “Cyber Solutions: Counties in the Digital Age.”


Governor Announces BAT Septic Repeal, Criticizes Transportation Scorecard at #MACoCon

Governor Lawrence (Larry) Hogan, Jr. announced the repeal of regulations requiring the use of best available nitrogen removal technology (BAT) for septic systems, criticized the recently passed transportation scorecard legislation, and discussed other priorities that he intends to the focus on during the upcoming 2017 Session at the close of the 2016 MACo Summer Conference on August 20. A packed room of county and state officials was on hand to hear the Governor’s remarks.

Introductory Remarks

2016 MACo Summer Conference - Governor Hogan
Governor Larry Hogan Addressing 2016 MACo Summer Conference

MACo President and Washington County Commissioner John Barr introduced the Governor by stating, “You understand the importance of local government.”

Governor Hogan thanked county leaders for their hard work and dedication and referencing back to his inability to attend last year’s conference due to his battle with cancer, said that he was “truly thrilled to be here.” He also stated that “we will do everything in our power” to continue the State’s partnership with MACo.

Turning to policy updates, the Governor noted that his administration will remain focused on: (1) economic development and job creation; (2) transportation infrastructure; (3) tax reform; and (4) easing burdensome regulatory requirements.

Budget & Economic Development

Discussing Maryland’s economic and budget status, Hogan stated that his administration has eliminated 91% of the structural deficit and added more than 76,000 private sector jobs. He disclosed that Maryland has gone from last place to first place in the Mid-Atlantic region for job creation and in March was the #1 state in the nation for job growth and creation.


2016 MACo Summer Conference - Governors Address Audience
A room full of county and state officials listened to Governor Hogan’s comments

In addressing BAT septics, Hogan argued that while BAT septics were needed within the 1,000 foot critical area next to coastal and Chespeake Bay waterways, they created an unnecessary burden on homeowners located outside of the critical area. Hogan’s announced that “on Monday [August 22], the Maryland Department of the Environment will be revising regulations and eliminating the requirement [outside of the critical area].”

He also stated that his Administration successfully implemented a new phosphorus management tool to limit phosphorus runoff from agricultural lands and invested $53 million in the Chesapeake and Atlantic Coastal Bays Trust Fund – the highest in history. Hogan also noted his sponsorship and support of enacted legislation that would make future budgetary cuts against Program Open Space (POS) and provided $62 million in POS funding.  Finally, Hogan said that his Administration was continiuing to work on sediment issues raised by the Conowingo Dam.


Hogan also announced that the State would be splitting the cost of new voting machines with the counties and noted that the Board of Public Works recently voted to approve the matching funds MACo had requested.


Governor Hogan stated that he would “continue to fight for the full restoration of Highway User Revenues” and has invested an “unprecedented and historic $2 billion in infrastructure projects to fix every single structurally deficit bridge” and road projects. He had strong words for the transportation scoring legislation (HB 1013 of 2016) that the General Assembly passed over his veto. “[This bill] has the potential to kill nearly all priority road and bridge improvements in every single jurisdiction across the state,” he warned. Although he noted that the General Assembly has agreed to delay implementation of the bill for a year, he will “push for the repeal of this legislation.”

Closing Remarks

Hogan concluded by noting that “we are stronger when we work together to get things done for the people we serve” and promised that counties and MACo “will always find a sympathetic ear and a seat at the table.”

Barr thanked both the Governor and his cabinet and staff for being willing to work with county governments.

Other Coverage of Governor’s Address

A Baltimore Sun article (2016-08-20) offered some additional perspectives on the Governor’s proposed BAT Septic repeal:

Dru Schmidt-Perkins, executive director of 1,000 Friends of Maryland, criticized Hogan’s decision to reverse the rule barring installation of older, low-tech septic systems throughout the state, limiting the ban to the “critical areas” within 1,000 feet of the Chesapeake Bay.

“Why is it OK to protect water within 1,000 feet of the bay, but it’s not OK to protect the water that’s in the streams, the ponds, the lakes and our drinking water?” she said.

Both Schmidt-Perkins and [House Environment and Transportation Committee Chair Kumar] Barve said they might push for legislation to codify the O’Malley rule in law.

Michael Sanderson, executive director of MACO, said the rule was a particular concern near state borders, where it could make houses more expensive than those in Delaware or Pennsylvania.

Environment Secretary Ben Grumbles said the rules can add $10,000 to $20,000 to the cost of a home. He stressed that the rules would not change in the critical areas or for large septic systems with a capacity of 5,000 gallons or more.

Grumbles said his department also would step up efforts to require the replacement of failing septic systems.

“It’s about a smarter, more effective way to make environmental progress,” he said. “We are going to strive for a smarter, more balanced approach.”

A Washington Post article (2016-08-20) focused on the transportation scorecard legislation:

St. Mary’s Board of County Commissioners President James Randy Guy (R) said he talked with the governor about the issue at the Maryland Association of Counties summer conference in Ocean City, which is the state’s largest annual gathering of elected officials.

“He said we need to repeal the [transportation scorecard] bill,” Guy said. “What will happen now, who knows?” …

Maryland Transportation Secretary Pete K. Rahn held back-to-back meetings with county officials from across the state throughout the conference to discuss their transportation priorities. He said every one of the officials he spoke with expressed concerns about the scoring system. …

House Speaker Michael E. Busch (D-Anne Arundel) defended the funding law, saying Marylanders deserve to know how and why their tax dollars are spent on transportation projects.

“I don’t understand why [the Maryland Department of the Transportation] won’t work with the General Assembly in a bipartisan manner to create a scoring system that addresses their concerns while creating transparency,” he said. …

Frederick County Executive Jan H. Gardner (D), who supports transportation scoring to identify high-priority projects, said Democrats and Republicans need to set aside politics and work together on either clarifying the law or setting guidelines for the rating system.

“Elected leaders are supposed to lead, and we need to problem-solve this,” she said. “We have a year now, so we need to make this something that is clearly understandable and works for people in every part of the state. Transportation is a common interest.”

Useful Links

Prior Conduit Street BAT Septic Coverage

Prior Conduit Street Transportation Scorecard Coverage


Ellicott City Flooding Prompts Discussion on Land Use & Stormwater Changes

Baltimore Sun article (2016-08-13) reported that Howard County is grappling with the flooding and runoff issues facing Ellicott City – brought into stark relief by the recent devastating flooding of the City’s historic main street. The County is considering proposals that would limit or prohibit further development above the City and require stronger stormwater management requirements. The article detailed that the County has acknowledged the flooding problem:

As development has increased on the hilly terrain overlooking the 244-year-old river town, the amount of rain rushing off rooftops and parking lots has also grown — making Ellicott City’s low-lying Main Street more vulnerable to intense rains that meteorologists say are hitting the region more frequently. …

Howard County officials insist that development by itself cannot be blamed for a dramatic act of nature, but they and residents believe the devastating floods in July and another in 2011 send a clear message: Heavy rains will come again, and something must change. …

County officials say older developments built decades ago have more significant problems with runoff. In fact, some newer redevelopments improve antiquated stormwater management systems because any project built after 1985 is subject to runoff restrictions.

“The difficulty this community has is it’s at the bottom of a funnel,” said Jim Caldwell, who is in charge of community sustainability in Howard County. “The watershed is very steep. It’s all heading down to the Patapsco River.”

While virtually everyone agrees that new policies are needed to minimize future flooding occurrences, the article noted that there is debate about which policies need to be changed:

“When you think you’re going higher and higher up the hill and insisting on being allowed to develop on steep slopes, to squeeze in just a couple more units, you really have to question the wisdom of what we’re doing,” said Susan Garber, a Savage resident who writes about county issues in a blog called “How Come?” …

Fred Tutman, the Patuxent Riverkeeper, said it’s “myopic” to believe development hasn’t played a role in flooding.

“What they suggest is this is an act of God or a fluke and therefore nobody can be blamed. … The stormwater problems in Ellicott City are the result of storms, that’s true, but the problem is there is no recovery area to absorb intensive flows,” Tutman said. “That’s something the county really needs to step up for and plan for.” …

Katie Maloney, chief lobbyist for the Fulton-based Maryland Building Industry Association, said limiting development in Ellicott City isn’t necessary. She argues that redeveloping older properties is one of the solutions to the runoff problem.

“Much of the problem we have is because of all the properties built before the stormwater regulations,” she said. “All that water just runs off. There are no storm drains, no ponds; there is nothing to stop that water from flowing into the street. In Ellicott City, it’s a very old area.”

The article also detailed the short-term and long-term response of County Executive Allan Kittleman, including funding and the creation of a workgroup to recommend policy changes:

“There’s nothing we can do to stop six inches of rain,” Kittleman said. “But we can have an impact on other storms.”

His first budget — for the 2016 fiscal year — included $2.5 million to start knocking off $18 million worth of flood control projects in the Main Street area. He followed up with $2.8 million for fiscal 2017, the current budget year that began July 1.

Kittleman also created the Historic Ellicott City Flood Workgroup to recommend next steps for flood prevention and mitigation. …

The work group’s recommendations for next steps include improving existing stormwater controls, such as increasing the size of underground pipes and stormwater holding ponds; clearing debris that builds up in the Tiber and Hudson tributaries, and adding alarms that would sound when flows increase in those streams.

The group also called for reducing the amount of impervious surfaces, by turning developed places into natural areas, and for stronger efforts to ensure that new developments don’t harm the environment. …

Caldwell said some county officials are considering radical steps, including requiring developments to build for extreme flooding and restricting cars from Main Street.

The article also stated that the workgroup is debating whether to recommend development limitations.

“It is a touchy subject,” said Lori Lilly, a watershed management and planning consultant who serves on the work group. “Nobody wants to hear that we don’t want any new development in the watershed.”

Instead of restricting development, Lilly and others support incentives to encourage landowners to preserve forested hillsides. “You can’t replace woods with a stormwater management practice and it be the same thing,” she said.

WGL Energy “Greening” #MACoCon

MACo would like to thank WGL Energy Services (WGL Energy) for “greening” this year’s conference, which means that they have donated carbon offsets to counterbalance the greenhouse gas emissions resulting from #MACoCon – such as energy use, hotel stays, food and other waste.

Click here to read more!

Furthermore, MACo would like to thank WGL Energy Services for sponsoring the Power Zone Lounge at MACo’s Summer Conference, this August 17-20 in Ocean City, MD. The Power Zone Lounge will be a comfortable space in the Convention Center available for conference participants to access our Cyber Cafe (Cyber Cafe sponsored by KCI Technologies, Inc.), Sponsor Showcase Sessions, and mobile device charging station, or have a quiet meeting for a small group of people.

Thank you, WGL Energy, Inc., a Summer Conference Sponsor and Silver Corporate Partner, for your continued support of the Maryland Association of Counties!

Learn more about MACo’s Summer Conference:

Anne Arundel Announces Public-Private Partnership For Stormwater Projects

As reported by the Capital Gazette, County Executive Steve Schuh announced a plan to utilize private sector partnerships as part of the county’s effort to make inroads on watershed improvements required by the state and federal government. The county will set aside $5 million in this year’s budget to fund the best pitch for a project that would reduce the amount of pollutants seeping into the county’s waterways.

From the Capital Gazette,

That could mean a plan to upgrade failing stormwater drains or to transfer properties from septic systems to public water and sewer. It could also be an entirely new approach to stormwater improvement. Department of Public Works Director Chris Phipps said the county is looking for innovative ideas that “aren’t even identified necessarily in our program.”

Schuh said the county will issue a request for proposals within the next few weeks.

“Our hope is that by working with the private sector we can get more bang for our buck and get a lot more project work done for the same amount of money it would take government to do those sorts of projects,” he said.

The $5 million grant, which is funded by stormwater fee revenues, is part of the $253 million scheduled for watershed improvement projects in Anne Arundel over the next six years. Schuh also allotted about $1 million in general fund money in this year’s budget to pay for stormwater management upgrades.

While those figures represent the largest investment in watershed projects in the county’s history, they only account for a little more than a quarter of the $900 million that local officials estimate it will cost to meet looming state and federal water quality goals.

Phipps said the county must remediate 5,900 acres of impervious surface by 2019 in order to meet state requirements for renewing its stormwater permit. So far, watershed projects have treated about 1,700 acres.

The county also has until 2025 to significantly reduce the amount of nitrogen, phosphorus and sediment — some of the top pollutants in the Chesapeake Bay — in its stormwater runoff. The Bay’s health has improved since the Environmental Protection Agency established this pollution “diet,” according to an annual report card released earlier this year.

If the county doesn’t meet these guidelines, it risks losing federal funding or seeing regulations on its bodies of water grow.

Read the full article for more information.

New Project Will Nearly Double Montgomery’s Solar Energy Capacity

A Montgomery County press release (2016-08-08) announced that the County will almost double its previous solar energy commitment of 6 megawatts with the addition of a new large-scale solar project in Laytonsville. The project, at the site of the former Oaks Landfill, will add 5 additional megawatts of solar power in addition to the 6 megawatts of county generation capacity already in place. From the press release:

With the addition of the solar project at Oaks Landfill, the County could generate more than 13 million kilowatt hours of electricity each year. That is enough to power more than 1,300 homes or reduce greenhouse gas emissions by more than 9,000 metric tons, and is as environmentally beneficial as planting 236,000 trees or taking more than 1,930 cars off the road for a year. In addition, solar energy generation is expected to save the County up to $15 million in electric bills over the 20-year term of the contracts compared to current utility power costs.

“I am proud to announce that Montgomery County will greatly surpass our goal for clean energy generation on County sites,” said [Department of General Services] Director David Dise. “Our commitment to clean energy has allowed the County to reduce global greenhouse gas emissions while also creating jobs and reducing operating costs.”

Under a competitively awarded project, SolarCity will finance, build, and maintain the solar project for 20 years at no upfront cost to the County. The County will purchase the electricity generated at a fixed rate, which could save approximately $200,000 each year, benefiting both solid waste services ratepayers and taxpayers.  …

To track the progress of the County’s solar and advanced energy initiative, visit Office of Energy and Sustainability webpage.


Maryland, Other States Facing Dropping Water Tables

In a MarylandReporter.com op-ed (2016-08-04), Bay Journal contributor Liza Field warned that counties across the United States, including in the Chesapeake Bay region, are facing dropping water tables and future water shortages.

“The water table is dropping all over the world,” says Jay Famiglietti, senior NASA hydrologist.

Famiglietti’s research team revealed, via satellite data, we humans are depleting our world’s biggest aquifers much faster than precipitation can restore them. “We’re not just up a creek without a paddle,” he says, “we’re losing the creek too.” …

Meanwhile “back East,” in formerly wet states, we too are up a dry creek. Population density, impervious development and hotter, drier summers have increased water expenditures while decreasing deposits.

Record low levels in Lake Lanier, near Atlanta, have intensified a “Tri-state Water War” between Georgia, Alabama and Florida.

Here in the Mid-Atlantic, coastward areas like southern Maryland and eastern Virginia keep digging deeper into aquifers that are dropping toward saltwater levels.

Field blamed the decreasing water levels on the removal of rehydration processes, wasteful use of deep aquifer water for short term goals or revenue, and in the United States at least, “flabby” water laws. Field argued that much of the problem could be solved by: (1) restoring the rehydration process; and (2) changing perceptions about water usage and wasting water.

Thin-soiled and shadeless lawns, vast griddles of parking blacktop, paved driveways dumping into streets — all shunt precipitation straight down storm-drains, then rivers. This valuable freshwater cargo, intended to bless the land, is instead mixed with pollutants and rushed to the coast, where it contributes to dead zones and sea-rise.

Why promote and reward such impoverishing landscapes? Directives for permeable, water-saving design abound via state agencies, university extensions and groups like the Permaculture Research Institute or Chesapeake Bay Foundation.

But you yourself need to plug in. Next time it rains, you might irrigate your mind by stepping outside to notice. Where does this valuable water flow and vanish? Where might it be invested into the ground and saved, via trees, native plants and protective humus?

Counties Facing Changing Stormwater Paradigms

A Forester Magazines article (2016-07-26) article discussed the changing trends and paradigms in stormwater management practices.  The article’s author, Andrew Reese, revisits a 2001 article he wrote called “Stormwater Paradigms” and examines which of these paradigms remain true and which ones are supplanted by emerging trends. From the article:

A “paradigm” is everything I believe to be true and all that I know about a certain subject arranged into a framework. …

The table below lists those nine paradigms [from my 2001 article], including one predicted but not yet realized back then—the rise of green infrastructure. Lucky guess. I have also added a new one now emerging.


Reese then argued that stormwater management practices needed to “grow up” and offered nine emerging themes that should be incorporated into an entity’s stormwater management framework:

Stormwater has always seemed like that youngest wild child who dropped out of college, hitchhiked across Europe, studied with Nepalese Buddhist monks, and smoked questionable vegetation. In all of these discussions, and in working across the country, one overall theme emerged: it is time for “stormwater management” to grow up (get a real job, get married, have kids, and buy a house). We are in a phase, culture, and financial milieu where the maturation of stormwater programs will be a necessary precondition for future success.

What does “grow up” look like? Here are nine statements of thought shifts—of disruptors to “business as usual” that have happened, or are happening—in the leading programs around the world. I’ll simply list them and then translate them into brief descriptions of some best practices for the next paradigm—which I have yet to figure out a name for.

  1. Water As a Resource: Water is precious. Rain is the only input into the hydrologic cycle. What we do with it matters.

  2. Stormwater As a System: Like water and wastewater, stormwater flows within a defined system and should be treated as such. The idea that it is a scattering of unrelated structures and segments, many of which are unmanaged, must change.

  3. Stormwater As a Business: Inefficient and ineffective stormwater management cannot be standard practice in this time of shrinking budgets, aging infrastructure, and increased citizen expectation. We must take on a business mindset.

  4. Infrastructure As an Asset: If stormwater is a system, then we have a set of assets we need to manage efficiently and effectively. Even if they are natural assets.

  5. Funding As a Change Agent: The way we structure the funding of stormwater needs to be supportive of the other key aspects of the program.

  6. Sustainability As a Standard: Long gone are the days when it was permissible to “use things up.” We humans must adopt renewable, sustainable practices in all things, including stormwater.

  7. Resiliency As a Policy: Extreme weather is a growing fact of life. Droughts and floods appear more frequently and more severely. We must change stormwater management to accommodate these realities.

  8. Citizens As Customers: If stormwater is a business, then it has customers. We need to assume a customer mindset.

  9. Technology As Normative: Given the above, the use of advanced technology in all aspects of stormwater management is an imperative.

Finally, Reese detailed 10 best practices for stormwater management that can be used by local governments, including: (1) system thinking; (2) business thinking; (3) water resource organizations; (4) asset management; (5) “triple bottom line” thinking; (6) resiliency planning; (7) innovative partnerships; (8) modified rate structures; (9) strategic public engagement; and (10) go high tech as a policy.

Useful Links

“Stormwater Paradigms” Article (2001)

WYPR Discusses Balancing Budgets, Growth & More With County Executive Glassman

Courtesy of Harford County Government

In a recent radio broadcast of Focus on the Counties, WYPR discusses balancing budgets, growth and more with Harford County Executive Barry Glassman.

Among the topics Tom takes up with the Harford County Executive are how he’s been handling water quality issues, managing the Susquehanna watershed and Harford County’s Chesapeake Bay shoreline, his efforts to foster both rural interests and suburban development, and Mr. Glassman’s passion for fiscal balance and efficiency in government.

Visit WYPR online to listen to the broadcast and click here to find out more about the Focus on the Counties series from WYPR.