MACo Reaches Agreement on Governor’s Clean Water Commerce Act

The Maryland Department of the Environment (MDE) in consultation with numerous stakeholders including MACo, reached agreement on a set of amendments to allay local government and environmentalist concerns over SB 314 – the “Clean Water Commerce Act of 2017.” The bill was sponsored by the Administration of Governor Larry Hogan.

As introduced, SB 314 would allow MDE to use up to $10 million a year from the Bay Restoration Fund (BRF) Wastewater Account to purchase nitrogen and phosphorus nutrient credits in support of restoring the Chesapeake Bay. MDE must adopt regulations regarding the use of BRF funds in conjunction with the Maryland Departments of Agriculture and Natural Resources.

MACo was still in an oppose position at the hearing for SB 314 before the Senate Education, Health, and Environmental Affairs Committee on February 14, 2017, but Knapp indicated that amendments provided to MACo by MDE the night before the hearing appeared to alleviate MACo’s concerns. MACo’s Legislative Committee formally moved to a support with amendments positions on February 15 after Secretary of the Environment Benjamin Grumbles spoke with the Committee about the bill’s proposed amendments. From the MACo testimony at the bill hearing:

MACo has been supportive of establishing a nutrient credit trading program in Maryland – giving the State, local governments, and other stakeholders another “tool in the toolbox” to help meet our Bay restoration goals. MACo also appreciates the desire to “jumpstart” such a market. However, the bill’s provisions are broad and ill-defined.

There are no limits placed on when and where MDE may purchase credits or what projects the credits apply to. There is also no prioritization of the use of the monies, meaning that a highly cost-effective county or municipal project may not get funded over the purchase of a nutrient credit that yields a more modest return.

Additionally, MACo and other affected stakeholders would have no role in helping to develop regulations that will affect what has been to date a reliable source of support for local Bay restoration goals. These are critical details that must be addressed in advance before MACo would be comfortable supporting such a proposal.

Amendments include: a 4-year sunset on the bill, a requirement that wastewater treatment plant upgrades retain a higher priority, a prohibition on using the $10 million to purchase agricultural nutrient credit trading credits, a requirement that the $10 million must be awarded based on cost-effectiveness as part of a competitive submission process, and a requirement that MDE consult with public and private stakeholders (including MACo) as it develops regulations to implement the bill. Several additional amendments relating to the total funding amount are also under consideration.

The Maryland Municipal League and Chesapeake Bay Foundation also supported the bill with the amendments. The Chesapeake Bay Commission and Clean Water Action testified in opposition to the bill but stated they were willing to consider the amendments.

The bill’s cross-file (HB 417) is scheduled for a hearing before the House Environment and Transportation Committee on February 22.

Useful Links

SB 314 of 2017

MACo Testimony on SB 314

Governor Hogan Webpage

MACo Bill Tracking Tool

MACo: Forest Conservation Act Bill Costly, Impractical & Unnecessary

MACo Legal and Policy Counsel Les Knapp testified in opposition to legislation (SB 365) that would impose significant and costly new Forest Conservation Act (FCA) mandates on local governments, utilities, and development projects before the Senate Education, Health, and Environmental Affairs Committee on February 7, 2017.  Senator Ron Young sponsored the bill.

SB 365 makes three alterations to Maryland’s Forest Conservation Act (FCA). First, the bill increases the minimum reforestation rate from ¼ acre for every acre removed to 1 acre for every acre removed. The bill also limits an existing exemption under the FCA for the clearing of public utility rights of way and land for electric generating stations to areas of 1 acre or less of forest. Finally, the bill authorizes the Department of Natural Resources (DNR) or a local jurisdiction with a forest conservation program to increase the rates under the fee-in-lieu by 20% for each acre for which money is contributed in lieu of meeting the program’s reforestation or afforestation requirements.

In addition to the significant costs and practical challenges posed by the bill’s requirements, Knapp responded to the proponent’s contention that the bill was needed to meet Maryland’s “No Net Loss of Forest” policy. From MACo’s testimony:

While the bill poses fiscal challenges to a variety of stakeholders, Maryland appears to be maintaining its tree canopy coverage established under Maryland’s “No Net Loss of Forest” policy established by HB 706 of 2013. According to DNR’s Forest Action Plan 2016-2020, Maryland had a statewide tree canopy cover of almost 50%, exceeding the “No Net Loss” policy of maintaining 40% or more tree canopy cover. This raises the question of why is the bill needed.

Blue Water Baltimore, Chesapeake Bay Foundation, Choose Clean Water Coalition, Maryland Chapter of the Sierra Club,  Maryland Forestry Association, Maryland League of Conservation Voters, and the South River Federation testified in support of the bill.

Joining MACo in opposition to the bill was the Maryland Association of Realtors, Maryland Building Industry Association, Maryland Municipal League, and NAIOP-MD.

The cross-file to the bill, HB 599, will be heard by the House Environment & Transportation Committee on February 22.

Useful Links

SB 365 of 2017

MACo Testimony on SB 365

Senator Young Webpage

MACo Bill Tracking Tool

MACo Supports DHCD Sprinkler Assistance Bill, Asks for Local Consultation

MACo Associate Director Natasha Mehu testified in support of HB 107 with amendments before the House Environment and Transportation Committee on January 31, 2017. The bill would allow the Department of Housing and Community Development (DHCD) to provide funding assistance through either its Community Development Administration or Down Payment and Settlement Expense Loan Program for construction, purchase or financing of a single-family home, not in a Priority Funding Area, if DHCD determines the cost of compliance with building and fire codes makes it difficult for a low- or moderate-income family to purchase a newly constructed single-family home.

The bill was sponsored by DHCD and is intended to help offset the heightened costs of installing sprinkler systems in new workforce and low-income housing in rural areas. MACo and the Rural Counties Coalition (a MACo Chapter Organization) has supported creating some form of relief for the problem. From the MACo testimony:

Since the passage of the sprinkler system mandate in 2012 (HB 366/SB 602), rural areas have witnessed a dramatic reduction in building permits for moderate- and low-income housing. Sprinkler systems not on public water can require high pressure pumps and water storage tanks that may add $10,000 to $12,000 to the cost of a new home – a significant cost in a rural area for a home designed for a moderate- to low-income family. HB 107 would help address this issue by providing a limited funding mechanism to offset costly sprinkler and similar building code mandates.

Mehu also proposed an amendment to the bill to require DHCD to consult with county governments and address county concerns before implementing any such funding program within a county. The Maryland Municipal League also testified in support of the bill and offered a similar consultation amendment to MACo’s for municipal growth areas.

Useful Links

HB 107 of 2017

MACo Testimony on HB 107

DHCD Website

MACo Argues for Local Flexibility to Treat Septic Pollution; Opposes BAT Everywhere Mandate

MACo Legal and Policy Counsel Les Knapp was joined by a panel of county planners, environmental health directors, and health officers to testify in opposition to SB 266 before the Senate Education, Health and Environmental Affairs Committee (EHE) on January 31, 2017. SB 266, sponsored by Senator and EHE Chair Joan Carter Conway, would require the use best available technology for nitrogen removal (BAT) septic systems in all watersheds of the Chesapeake Bay, Atlantic Coastal Bay, and impaired local waterways. The bill would reinstate a BAT requirement that was repealed by Governor Lawrence “Larry” Hogan and the Maryland Department of the Environment through regulations in 2016. Currently, BAT septic systems are only required with the Chesapeake and Atlantic Coastal Bays critical areas (defined as being within 1,000 feet of the shoreline).

MACo argued that a broad-based BAT septic system mandate is not:  (1) supported by science; (2) cost-effective to treat the small amount of nitrogen generated by septic systems outside of the critical areas; and (3) removes local flexibility to choose the best method to address local water quality issues. From the MACo testimony:

BAT septic systems can reduce nitrogen emissions over conventional septic systems, but that reduction is contingent on the local hydrologic and geologic conditions where the BAT system is being installed. There is no comprehensive scientific study that shows BAT systems will reduce nitrogen in every location in Maryland. Both the United States Environmental Protection Agency (EPA) and the United States Geological Survey have questioned the need to require BAT systems everywhere.

According to the Maryland Department of the Environment, the removal of the BAT septic system requirement beyond the Chesapeake Bay and Atlantic Coastal Bays Critical Areas will result in only a modest increase in nitrogen from these systems, in the context of the overall Chesapeake Bay Total Maximum Daily Load (TMDL). Additionally, septic systems account for only 6% of the total nitrogen load for the entire Bay watershed and only 8% for Maryland specifically. The nitrogen reduction that will be generated based on the costs required to install (and maintain) BAT systems is neither efficient nor cost-effective.

However, this does not mean that the nitrogen load goes away or can be ignored. Counties must still address both Bay and local water quality issues through their own Watershed Improvement Plans, but should have the flexibility to address those loads in the most appropriate and cost-effective manner. MACo has consistently argued for local flexibility since its first comments to EPA on the proposed Bay TMDL.

Knapp was joined by: (1) Carroll County Environmental Health Director and Maryland Conference of Local Environmental Health Directors Leigh Broderick; (2) Worcester County Director of Environmental Programs Robert Mitchell; (3) Carroll County Health Officer Ed Singer; and (4) Caroline County Department of Planning and Codes Director Katheleen Freeman. Various environmental and land use advocates testified in support of the bill.

HB 281 is the cross-file of SB 266 and is scheduled for a hearing before the House Environment and Transportation Committee on February 15.

Useful Links

SB 266 of 2017

MACo Testimony of SB 266

Senator Conway Webpage

You’re Invited: Join Us for Our Weekly Legislative Update Conference Call

Every Friday during the legislative session MACo will host a conference call that will update you on the Maryland General Assembly hot topics and bills that affect local governments. Join the conversation at 3:00 pm each week as MACo explores different topics and hosts guest speakers.

This week’s topic (January 27): Energy Siting

MACo Policy Associate Kevin Kinnally will be joined by MACo Legal and Policy Counsel Les Knapp to discuss MACo’s 2017 Legislative Initiative regarding the preemption of local zoning for the siting of “dispersed” energy generation facilities- utility-scale facilities that can be located on farmland or open space.

Conference call information: 1.877.850.5007, passcode: 2690043#

We look forward to your participation! Contact Kevin Kinnally for more information.

MACo Defends Local Flexibility Under State Forest Conservation Act

MACo Legal and Policy Counsel Les Knapp testified in support of legislation (SB 29) clarifying that local governments may adopt local forest conservation program provisions that are more stringent than those found in Maryland’s Forest Conservation Act (FCA) on January 24 before the Senate Education, Health, and Environmental Affairs Committee. The bill was sponsored by Senator Paul Pinsky.

Knapp argued that a plain reading of the FCA statute, an opinion from the Maryland Attorney General, and a subsequent letter of advice from the Attorney General’s Office made it clear that local governments were able to adopt more stringent requirements than those of the FCA. From MACo’s testimony:

The FCA statute currently reads: “By April 30, 1992, all units of government with planning and zoning authority shall submit a proposed forest conservation program, which meets or is more stringent than the requirements and standards of this subtitle, to the Department for its review and approval.” [§ 5-1603(a)(2) of the Natural Resources Article]  However, despite what MACo believes to be the obvious and clear meaning of this language, both counties and municipalities have faced challenges to their authority to actually implement a local program with stricter requirements. 

The Attorney General upheld the ability of a local government to adopt a local program that is more stringent that the FCA, including conservation thresholds and reforestation requirements, in a 2015 opinion. [100 Op. Att’y 120 (2015)] The opinion was reiterated in a recent letter of advice that upheld the ability of local governments to require greater retention of priority forests (subject to constitutional takings limitations) than the FCA. [Letter of Advice to Maryland Senator Paul Pinsky (February 29, 2016)]

The Chesapeake Bay Foundation and the City of Annapolis also testified in support of the bill. The Committee gave a favorable with amendments report on SB 29 on January 27.

Useful Links

SB 29 of 2017

MACo Testimony on SB 29

Senator Pinsky Webpage

Renewable Energy, Septics & Fracking Key Topics at 2017 Annual Environmental Summit

maryland-environmental-legislative-summit-2017 Environmental advocates addressed a standing room only sized crowd at the 23rd Annual Maryland Environmental Summit on January 26 in the Miller Senate Office Building in Annapolis. The Summit is a forum where the environmental community discusses their collective Session agenda and state and federal officials offer their perspectives pending environmental legislation issues.

Maryland Secretary of the Environment Benjamin Grumbles was the first official speaker, noting, “The State is a leader in demonstrating bi-partisan collaborative approach on climate change.” Grumbles also highlighted Governor Lawrence “Larry” Hogan’s environmental initiatives for 2017, including: (1) promoting clean cars/electric vehicles; (2) establishing a Green Energy Institute; (3) worker training initiatives for green jobs; and (4) exploring pilot projects that build partnerships to bring additional people and solutions into consideration. On the fourth initiative, Grumbles explained that the Governor wanted to “add additional tools to speed up the clean up of the Chesapeake Bay.”

ben-grumbles-maryland-environmental-summit-2017
Maryland Secretary of the Environment Benjamin Grumbles Addressing the Summit

Maryland Senator Joan Carter Conway, chair of the Senate Education, Health, and Environmental Affairs Committee, stated she did not want “a gold standard but a platinum standard” for natural gas hydraulic fracturing (commonly known as “fracking”) if fracking was ever allowed in Maryland. However, several audience members voiced their opposition when Conway explained that there were not enough votes to pass a full fracking ban on the Senate floor.

Maryland Delegate and House Environment and Transportation Committee Chair Kumar Barve pledged that “my committee will act decisively on fracking this year,” and that the House would override Governor Hogan’s veto of legislation last year that would increase the renewable energy targets under Maryland’s Renewable Portfolio Standard (RPS). Barve also argued that solar and other renewable energy must be allowed at scales that make it competitive with fossil fuels and that his committee would be holding discussions on how to “scale up” wind and solar power over the Session.

Maryland House Speaker Michael Busch stated that on environmental issues, “We are not going to back down one iota in the Maryland House of Delegates.” He promised that the House would override the Governor’s RPS veto and would take a “hard look” at banning fracking. He urged attendees to hold their legislators accountable for their environmental votes.

Maryland Senate President Michael “Mike” Miller discussed the success of the Chesapeake Conservation Corps program, criticized the administration of United States President Donald Trump, and noted that the Senate will vote to override Hogan’s RPS veto 34 to 14 on February 2.

audience-maryland-environmental-legislative-summit-2017United States Congressman John Sarbanes pledged to fight to protect environmental progress on Capitol Hill and resist any proposal by the Trump Administration to roll back current environmental requirements.

Baltimore City Health Commissioner Leana Wen was the keynote speaker and discussed the inter-relationship between the environment and public health. Wen asserted that we are living in “wobbly times” right now and argued that it is critical to share stories of success and look at the cost of doing nothing and not just at the cost of intervention when making policy decisions. Wen also stressed the linkage between environmental justice and social justice, arguing that “environmental justice is the social justice issue of our time.”

Environmental advocates also presented their top four priorities for the 2017 Session:

  1. Override Governor Hogan’s veto of last year’s RPS legislation (Maryland Clean Energy Jobs Act)
  2. Ban fracking in Maryland
  3. Pass the Keep Antibiotics Effective Act (would limit the use of antibiotics on farms)
  4. Reinstate a requirement to use septic systems with best available nitrogen removal technology (BAT) everywhere in the State

In discussing the BAT septic system issue, 1000 Friends of Maryland Executive Director Dru Schmidt-Perkins acknowledged that nitrogen pollution from septic systems was only a small part of Maryland’s total nitrogen load but stated that it was one of the few pollution areas still growing and that no county was currently meeting its 2025 Chesapeake Bay Total Maximum Daily Load reduction for septic systems. Schmidt-Perkins also stressed the need to protect local waters as well as the waters of the Bay.

Useful Links

Conduit Street Article – Governor Hogan Unveils 2017 Environmental Initiatives

Baltimore County Solar-Farm Bill Withdrawn

Baltimore County councilman Wade Kach withdrew legislation Tuesday that would have regulated the emerging use of solar facilities on rural lands, saying council members could not agree on limits for the size of such projects. The seven-member council was set to vote Tuesday evening on the measure — which would have addressed issues such as height and setback regulations — but Kach withdrew it instead.

As reported by The Baltimore Sun,

The original bill limited solar installations to no more than 20 acres, or half of a property, whichever was smaller. Kach said some council members wanted to increase the size limit to 35 acres, which he said is the equivalent of 27 football fields.

“If you all can envision the Ravens football field, multiply it by 27, that is the size that some on this council believe would be appropriate for the rural part of Baltimore County,” said Kach, a Cockeysville Republican whose district covers the northern part of the county.

Kach also said he expects legal challenges to proposed solar projects.

The legislation was proposed amid growing interest from farmers who want to lease their land to energy companies.

The council heard concerns from rural residents who say the facilities would be an eyesore, and from those worried it would take fertile farmlands out of production.

MACo has adopted energy facility siting as a legislative initiative priority for 2017. A new generation of power facilities – from solar farms to emergent technologies such as biomass or gasification – could be freed up to ignore local zoning and oversight. This decision threatens local land use control; long term planning efforts; and the important rights of communities to guide their own historic, agricultural, and residential character.

Useful Links

Baltimore Sun Article

PSC Utility Law Judge Denies Controversial Solar Project in Kent

A Kent County News article (2017-01-11) announced that a utility law judge for the Public Service Commission (PSC) has proposed denying the application for the Mills Branch Solar project in Kent County for a Certificate of public Convenience and Necessity (CPCN). The proposed order would effectively halt 60 mega-watt/370 acre project, which has generated local controversy. Kent argued that the project went against its zoning, which does include sites for utility scale solar projects. The project’s developer Apex Clean Energy, argued the PSC could preempt local zoning and that benefits of the project warranted the preemption. From the article:

In the 50-page opinion, Judge Dennis Sober wrote, “I find the evidence in support of the granting of a [CPCN] falls short of proving that the Project meets the standard of Public Convenience and Necessity. I find that the weight of the evidence pertaining to the location of the Project is more negative than positive in its persuasive value of creating benefits to (Kent County) and Maryland.”

Sober said the testimony of witnesses from Keep Kent Scenic, a group formed to oppose the project, and the county government was more persuasive than those of the applicant, Apex Clean Energy of Charlottesville, Va. Opponents of the project cited the loss of farmland from crop production and the negative effect of the project on the viewscape and historic sites in the vicinity as reasons to deny the application.

Also, Sober wrote, the staff of the Maryland Public Service Commission “under-valued the importance of the opposition of the local government.” He said the county’s opposition was based on “a reasonable application of land use policies” that are based on local knowledge and experience.

Sober wrote, “Local control over the amount, location, and type of development must be respected by the PSC when there is no weight of evidence of need or benefit to outweigh the local opposition. The weight of the evidence of harm being caused, if the project is built, was significant and was a major factor in my decision to deny the application.”

However, Sober’s proposed order reiterated that the PSC does have the authority preempt local zoning:

On April 26, 2016, a hearing on pending motions was held….In ruling on Kent County’s Motion, I found that the authority of the Commission does preempt the application of the [Kent County] land use ordinance. Therefore, [Kent County’s] Motion for a denial of the application was denied.

The Kent Count News article also included a reaction from Apex:

Apex released the following statement in response to Sober’s ruling: “Though we’re disappointed with the Proposed Order, we still believe Mills Branch Solar is a great project for Kent County and Maryland. Solar energy is good for the economy and good for the environment. This project can provide enough energy to power 10,000 homes, while offering local economic benefits and cutting harmful emissions. We appreciate the letters of support that have been submitted by over 100 Kent County residents, and we appreciate the unanimous support of the neighbors adjacent to the project. We believe that advancing Maryland’s progress toward its renewable energy goals has many benefits, and we’re currently reviewing our options and will provide more information when the time is appropriate.”

The proposed order does not become final until February 10. Before that time: (1) any party that was part of the proceeding may appeal; or (2) the PSC may modify or reverse the order or initiate further proceedings in the matter. Addressing the issue of PSC preemption of local zoning in light of changing energy generation technologies is a 2017 MACo Legislative Initiative. MACo will be introducing legislation shortly to give local zoning greater weight in the PSC siting process.

For further information on MACo’s proposal, please contact Les Knapp at 410.269.0043 or lknapp@mdcounties.org.

Useful Links

Proposed Order of PSC Utility Law Judge for Mills Branch Solar Project

Prior Conduit Street Coverage of Mills Branch Project

MACo 2017 Legislative Initiatives

Renewable Energy, Septics, Livestock Antibiotics Among MDLCV’s 2017 Initiatives

mdlcv-logo

Maryland League of Conservation Voters (MDLCV) blog post (2017-01-10)  highlighted the various issues MDLCV and the statewide environmental coalition it is part of will be advocating for during the 2017 Session, including renewable energy/the Clean Energy Jobs Act, antibiotic use in livestock, a statewide Styrofoam ban, and septic system regulations. From the blog post:

In conjunction with the statewide Maryland Climate Coalition and legislative champions in both the Senate and House of Delegates, we are working to override Governor Hogan’s veto of the Clean Energy Jobs Act, a bill ensuring that Maryland gets 25% of its electricity from renewable energy sources like wind and solar by 2020. Additionally, we have prioritized banning hydraulic fracturing in the state, a practice that has been linked to disastrous water and air pollution along with serious public health hazards.

We are also lending our support to limiting the non-therapeutic use of antibiotics in livestock to stop the spread of antibiotic resistant bacteria. These bacteria sicken millions of Americans every year and kill tens of thousands. We will also be working on banning Styrofoam statewide. This would be mean no establishment or institution can serve on Styrofoam materials, including restaurants and bans the sale Styrofoam containers or packaging peanuts.

We additionally join with our partners to protect smart growth policies related to septics regulations in reaction to the Governor’s statement this summer on rolling back on Chesapeake Bay restoration.

Related to all environmental legislation, Maryland LCV will be defending the budget for environmental agencies and enforcement of current environmental laws.

Additionally, MDLCV and the statewide coalition is hosting its 2017 Maryland Environmental Summit on January 26 at the Miller Senate Office building. Admission is free but you must register. The keynote speaker will be Baltimore City Health Commissioner Dr. Leana Wen. Various legislators are also scheduled to speak.

Useful Links

2017 Maryland Environmental Summit Registration

MDLCV Website