Maryland

Stormwater Fees to Be Reworked in Maryland’s Montgomery County

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Stormwater runoff carries nutrient and sediments from urban and suburban areas into our local streams and rivers, eventually making its way into the Chesapeake Bay. Local stormwater fees, or “rain taxes,” as they are sometimes called, help pay for infrastructure and programs that reduce urban and suburban runoff from municipalities in the Chesapeake Watershed. Stormwater fees have faced a lot of backlash in Maryland recently, especially in Montgomery County. The County has reworked stormwater fee legislation, after the law was successfully challenged in court by a local developer. (See here).

Introduced last Tuesday, the new stormwater fee law will face a public hearing next month. Reworking of the law redefines the stormwater runoff fee as an excise tax, which the county has the ability to collect. Hopefully this new version will pass without issue, as stormwater runoff fees are a necessary pollution reduction tool for urban and suburban areas in the Bay watershed.

Proposed Nutrient Trading Program in Maryland: Solution or Distraction?

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Is nutrient pollution trading in Maryland the answer to Bay cleanup or just another stalling mechanism? Maryland Governor Larry Hogan has proposed a new pollution trading system focused on nitrogen and phosphorus runoff. The system would allow communities, in need of upgrades to their local sewage treatment plants and stormwater runoff programs, to instead pay area farmers to pollute less. While this may result in fewer loads of nitrogen and phosphorus runoff from agricultural sources, (which is greatly needed), the plan allows urban and suburban communities to shift focus away from their own sources of pollution. The state should instead be focusing on a two-pronged approach, targeting pollution loads from agricultural and urban/suburban sources.

Agriculture is one of the leading sources of pollution to the Chesapeake Bay, but it is not the only major source. Municipal and industrial wastewater (a sector that includes sewage treatment plants), contributes 19% of the nitrogen that reaches the Bay, and 21% of phosphorus; urban and suburban runoff contributes 31% of phosphorus pollution in the Bay (National Research Council, 2011). Just last week, The Washington Post reported on a Maryland-based water treatment plant, just north of Washington, D.C., that has been polluting millions of pounds of nutrients and chemicals into the Potomac River. The Washington Suburban Sanitary Commission (WSSC), which runs the plant, from the outcome of a recent legal settlement, has agreed to make millions of dollars worth of upgrades to its outdated facility, (built in the 1960s). These upgrades are expensive, but they are long overdue, and are needed to improve water quality in the Potomac River, a major tributary of the Chesapeake Bay.

Supporters of the proposed nutrient trading program in Maryland argue that nutrient trading will allow for cleanup of the Bay, while reducing costs to communities, which might have plants that need millions of dollars worth of upgrades, like the WSSC facility . However, I would argue that nutrient trading allows half of the pollution problem to be ignored. Maryland should target both agricultural runoff and urban and suburban sources of pollution if its leaders are serious about cleaning up the Chesapeake Bay.

Oyster Season Takes Off in Maryland

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Oyster season began last Thursday, October 1, in Maryland. While a lot of oyster production in the Chesapeake Bay now takes place in cages with specially manufactured disease-resistant oysters, there are still watermen who dredge and dive from natural oyster reefs in the Bay. Watermen typically use hand and patent tonging to bring up oysters.

(For a visual on this process, check out this youtube video of Chesapeake watermen oyster tonging on the water. https://www.youtube.com/watch?v=uRWGHgbCbHQ).

The Maryland Department of Natural Resources recently estimated that oyster harvests from tonging and diving will not be as high this year as in the past couple of years. According to DelmarvaNow, Maryland watermen hauled in 393,000 bushels of oysters last year, bringing in $17.3 million. This year’s harvest will likely be lower. The reason for the estimate of lower harvest levels this upcoming season is a decline in reproduction of oysters from 2013-2014. There are 1-2 years lag time between reproduction levels and harvest level responses, given the time it takes for oysters to mature. Reproduction levels were high in 2010-2012, contributing to high harvest levels the past two years.

However, despite recent storms keeping watermen off the water for a few days, good harvests are being reported so far, with bushel limits being reached every day, according to the Star Democrat, a newspaper produced in Easton, Maryland.

Tonging and diving for oysters can only take place at certain reefs in Maryland. The various restoration sites and oyster sanctuaries, overseen by organizations such as the Chesapeake Bay Foundation (see map of CBF oyster reef sites here), are off limits to watermen. Even oyster reserve areas, which the DNR wanted to open to harvest, are off limits, after the Chesapeake Legal Alliance challenged the DNR’s proposal to open 10 reserve sites earlier this year.

Power- and sail-dredging for oysters will begin in November, and the oyster season will continue until March 31 of next year.

The Environmental Integrity Project Weighs in on Maryland Phosphrous Pollution Problem

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The Environmental Integrity Project, a D.C.-based nonprofit which researches and reports on local environmental issues, has weighed in on the phosphorus pollution problem in the Chesapeake Watershed. In Maryland, and especially on the Eastern Shore, there are an excess number of poultry farms. Manure from these farms is frequently applied in excess to farms in the vicinity. While recent legislation in Maryland has begun to address the application of manure, state legislators have done nothing to limit the number of poultry farms in operation, or block the development of additional poultry farming operations.

The Environmental Integrity Project, (EIP), in a recent report, has highlighted that over 200 new poultry farms have been approved on the Delmarva Peninsula, with dozens set to go up in Maryland. The EIP foresees that this will likely “undermine any progress the state might achieve through its June 2015 manure management regulations.”  In addition, the EIP has pointed out that, while this poultry operation expansion is going on, the state of Maryland has cut much of its water quality monitoring in and off of the Eastern Shore, due to what they cite as a lack of funds.

Published with the report is an interactive map, showing where poultry operations can be found on the Eastern Shore, where manure is being spread, and where water monitoring cutbacks have occurred. The map and report can be found here.

Lawsuit Invalidates the Often Misunderstood “Rain Tax”

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By Neil Saunders

A Montgomery County judge invalidated the county’s so-called “rain tax,” the stormwater runoff fee program used to fund projects that would reduce polluted runoff from contaminating the Chesapeake Bay. While the holding in the case is limited to the county’s program, many anticipate that it will lead to similar decisions in other Maryland counties and the city of Baltimore. The program, which forms part of Maryland’s overall Watershed Implementation Plan to achieve the reductions required by the Bay TMDL, was designed to reduce urban and suburban stormwater runoff that continues to be a leading source of pollution in the Chesapeake Bay. Without the fee program Montgomery County will have to come up with alternative ways to fund its federally and state-mandated Bay restoration programs.

The Water Quality Protection Charge (WQPC), or “rain tax” as opponents label it, has been hotly debated in Maryland since the law was passed in 2012. That law, which mandates stormwater fees in the nine largest counties and the City of Baltimore be assessed to property owners whose land contributes pollution runoff to nearby streams and the Bay, has been opposed by many Republicans and Governor Hogan, who pledged to repeal it during his campaign. The Democrat-led General Assembly, however, refused to repeal the law outright, and instead amended the law earlier this year to remove the fee mandate and permit the counties to decide for themselves how to fund their stormwater management programs. Some counties, including Montgomery County, chose to keep the fee program in place. Other counties are required to demonstrate how their stormwater management programs will be funded in the absence of a fee program.

The WQPC was created as part of Maryland’s overall strategy for Bay TMDL compliance. In counties that use the fee structures, residential and commercial property owners are assessed annually based on the amount of impervious surfaces on their property. For many homeowners, the fees range from under $30 for Baltimore County to up to $90 for some Howard County residents. Commercial property owners with larger tracts of land that have greater areas of impervious surfaces are assessed larger fees. While the fee structure serves to fund new measures to reduce pollution, it also acts as an economic incentive for homeowners and business owners to take remedial steps to reduce polluted runoff. Additionally, off-set credits are available for individuals or businesses who show that reduction efforts are being taken.

The lawsuit was brought by a commercial developer owner who had been assessed an $11,000 stormwater fee to his 34-acre development. The owner argued that he shouldn’t be assessed any fees because he had built two ponds on his property to collect stormwater runoff from his property, effectively eliminating pollution from reaching the Bay. He also argued that the fee was unlawful under state law. In the lawsuit, the circuit court judge agreed on both issues, holding that the fee was not properly assessed in this case, because it did not fully take into account the remedial actions taken by the landowner (the landowner was only given a 50% credit reduction), and the calculation methodology used by the County did not limit the fee to what the actual services rendered to the property.

The effect of this second point could make it more difficult to manage pollution from stormwater runoff if lawsuits in the other counties and the City of Baltimore reach the same conclusion. While the County was permitted to base its fees on the amount of impervious surface on a property, the circuit court held that the County failed to adhere to the law’s mandate that “a county or municipality shall set a stormwater remediation fee for a property in an amount that is based on the share of stormwater management services related to the property and provided for by the county or municipality.” Env. Art. sec. 4-202(e)(3)(i). Under this provision, the court maintains that a county may charge a fee based on the actual cost of stormwater management services to that property only. In other words, the County is not permitted to use the WQPC to fund other stormwater remediation projects because the law only permits the County to set a charge to cover its costs.

It is not yet clear whether Montgomery County will appeal this narrow interpretation of the law or seek alternative options to fund its stormwater management practices. If this result does extend to the other counties and Baltimore it will likely result in a greatly reduced source of funding for important water quality programs; stormwater runoff remains one of the critical sources of Bay pollution. Hopefully, if similar lawsuits are brought, those courts will apply a much more practicable interpretation of the law, and give the counties the flexibility they require to meet the requirements of the Bay TMDL. Otherwise, the state would have to rely on changes at the legislative level, which is often difficult and moves at a much slower pace.

Chesapeake Bay Executive Council Meets to Discuss Progress, Initiatives

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Last Thursday, July 23rd, the Chesapeake Bay Executive Council met in Washington, D.C. to discuss progress, setbacks, and initiatives going forward for restoration of the Bay. The Executive Council is made up of governors from all Bay states and the Mayor of D.C., as well as heads of relevant federal agencies.

Present at Thursday’s meeting were: Virginia Governor Terry McAuliffe (the Executive Council Chair); D.C. Mayor Muriel Bowser; Maryland Lieutenant Governor Boyd Rutherford*; Pennsylvania’s Secretary of the Department of Environmental Protection, John Quigley*; and Delaware’s Secretary of the Department of Agriculture, Ed Kee. Also present were heads of various agencies: Administrator of the EPA, Gina McCarthy; Deputy Assistant Secretary of Fish, Wildlife and Parks in the Department of the Interior, Karen Hyun; Assistant Chief of the Natural Resources Conservation Services in the U.S. Department of Agriculture, Kirk Hamlin; and Chairman of the Chesapeake Bay Commission, L. Scott Lingamfelter.

The public meeting began with an introduction from Chesapeake Bay Program Director Nick DiPasquale. He mentioned the interconnectedness of all species and habitats in the Bay watershed, and the need for multi-state partnerships to protect and restore the Bay. Following his presentation, the Executive Council panel made brief comments on what had been discussed at the earlier private lunch. A short Q&A session from the press ended the meeting.

Most of the meeting was spent by council members reassuring the public that a lot of progress had been made to clean up the Chesapeake Bay, and that a lot more progress was required. However, a few specific initiatives were mentioned that shed some light on how restoration efforts might progress in the years to come.

The Council mentioned a riparian forest buffer resolution, and the need for partner states to increase compliance and enforcement among farmers to install riparian buffer zones along waterways. Going off of this, Chesapeake Bay Commission Chair, Lingamfelter, discussed livestock stream exclusion. While many Bay states, such as Virginia, have a majority of their farmers participating in livestock stream exclusion, there is still more to be done in the watershed. Lingamfelter calls for greater USDA support and outlined five actions he recommended to the Secretary of the USDA to ensure livestock stream exclusion is enforced throughout the watershed. These actions include educating farmers, increasing technical and financial assistance for fencing or riparian buffers, and making requirements more clear, and more of a priority.

The issue of funding restoration efforts came up several times during the meeting. Governor McAuliffe announced an increase in federal funding. The current Presidential Budget allocates $39.7 million, pending congressional approval, toward conservation and restoration in the Chesapeake Bay watershed, while the previous fiscal year allocated only $7.58 million. Maryland Lt. Governor Rutherford suggested creating more public-private partnerships to increase funding from the private sector. He mentioned a resolution to sponsor a symposium by the Bay and federal partners to further discuss this idea.

The panel ended with EPA Administrator McCarthy and Virginia Governor McAuliffe highlighting where more efforts need to be made, such as urban stormwater runoff and agriculture, and the need for Bay states and partners to share their best practices with each other to improve water quality throughout the watershed.

This meeting was the first for many Executive Council members who had been newly elected as representatives for their states or cities in 2014. This excuse was used to explain why timetables for the next two-year milestone (2015-2017) were yet to be released. (Milestones are due to come in to the EPA in mid-January of 2016). While more specifics on timeframes and restoration plans would have been appropriate, the meeting did provide some insight on what Bay states will be focusing on over the next couple of years to improve the health of the Chesapeake Bay.

* Virginia Governor Terry McAuliffe was the only governor present at Thursday’s meeting. Maryland’s Lieutenant Governor Boyd Rutherford stepped in for Governor Larry Hogan as he underwent medical treatment. Pennsylvania’s Secretary of the Department of Environmental Protection, John Quigley, represented his state as Governor Tom Wolf was held up in Harrisburg, attempting to finaliz

Cleaning up Baltimore’s Inner Harbor with Old (and New) Technology

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By Neil Saunders

In Baltimore’s Inner Harbor an ancient technology is being used to clear trash and debris from its waters: the water wheel. Situated where the Jones Falls River meets the Inner Harbor, the water wheel uses a combination of hydropower and solar power to scoop up cigarette butts, plastic bottles, Styrofoam, and other floating trash flowing down the Jones Fall River. The wheel, created through the Healthy Harbor Initiative, has proved remarkably effective, removing over 200 tons of trash since May 2014.

This water wheel shows how even simple, small-scale projects, when successfully implemented, can achieve positive results in the Bay. Relying on hydropower from the river’s current, and solar power from panels attached on top of the structure when the current is slow, the water wheel combines a millennia-old technology with a newer, fast-evolving technology to remove trash and debris entering the Inner Harbor and ultimately the Bay. The water wheel powers a conveyor belt, which collects the debris into a floating dumpster. When the current is moving quickly after a storm, the dumpster can fill in a couple of hours.

The water wheel has proved so successful that plans to add more water wheels throughout the Bay are under way.

The water wheel was built by Clearwater Mills, LLC and owned by the Waterfront Partnership of Baltimore. Trash collected is then removed handled by the City of Baltimore Department of Public Works.

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For a news video feature on the water wheel, visit: https://www.youtube.com/watch?v=RkQbcrzyAeE.

A Review of the EPA’s Assessment of Maryland’s Bay Cleanup Progress

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By Neil Saunders

According to the EPA’s recent interim assessment of pollution in the Chesapeake Bay, Maryland is presently on track to meet the 2017 TMDL reduction targets for two out of the three major pollutants in the Bay: phosphorus and sediment. Maryland is not on track to meet the target reductions for the third major pollutant, nitrogen. New information obtained by the EPA shows that Maryland is actually contributing more nitrogen to the Bay than previously thought. Therefore Maryland must plan to implement even more effective practices to ensure that it will meet its 2017 targets for nitrogen.

So what do these results mean for the Chesapeake Bay going forward? For one, Maryland is the only state currently under the lower “ongoing oversight” for each sector category that the EPA assesses: agriculture; urban/suburban stormwater; wastewater treatment plants and onsite testing; and offsets and trading. While this is far from encouraging overall, it does demonstrate that Maryland, the state most synonymous with the Chesapeake Bay, it making positive strides towards meeting its reduction targets. The EPA expects Maryland to implement additional measures to reduce nitrogen pollution.

Also, much of the progress made in Maryland, including the recently proposed phosphorus management regulations, still must be implemented to achieve the projected pollution reductions. At this stage in the TMDL process, many of the projections are based on practices that have yet to be implemented. It is critical, that Maryland continue efforts to put practices into place. Sometimes, this is easier said than done. Similar regulations to the Phosphorus Management Tool regulations have been pulled and/or delayed in the past (the environmental community has advocated for stricter phosphorus management for over a decade now), so it is crucial for Maryland and the Department of Agriculture to follow through with implementation.

The interim assessments were released for the six Bay States’ 2014-2015 milestones. These assessments, which form part of the EPA’s overall accountability framework under the 2010 Chesapeake Bay Total Maximum Daily Load (TMDL) for the entire Chesapeake Bay watershed, play an integral role in evaluating the progress of the Bay States towards meeting their respective pollution reduction targets, and are used to identify areas of concern that require additional measures to meet those targets.

The EPA and Bay States are currently in Phase II of a three-phase, fifteen year process of the TMDL, which means that they are continuing to work towards implementing practices by 2017 that will meet sixty percent of the total pollution reductions needed to clean the waters of the Chesapeake Bay. The third and final phase is to be completed by 2025, and requires 100 percent of the pollution reductions measures to be in place.

Maryland Sees Low Blue Crab Harvests This Spring

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Maryland blue crab harvests are reportedly low this spring, impacting the watermen, and some restaurants, whose owners are having difficulty obtaining affordable, local catch for consumers. (See The Baltimore Sun and The Fredericksburg Free-Lance Star). The annual Bay-wide winter dredge survey conducted earlier this year found that the Bay’s blue crab population has risen by over 1 million crabs from last year’s drastically low numbers. So why are harvests low so far this year?

According to the Virginia Marine Resources Commission (VMRC), a combination of factors could be contributing to low harvest numbers at this point in the season. While the winter dredge survey found that juveniles and female crab numbers were up (which is very important for sustaining and building up the crab population in future months), the males took a “huge hit” from cold-water temperatures this winter. Other contributing factors could be pollution, low reproduction levels, and predation. Marine species such as the blue catfish, red drum, and the cownose ray are common predators of the Chesapeake blue crab. The VMRC stated that the blue catfish, an invasive species with little to no predators of its own, has grown in population this year. (Stay tuned for more information on the blue catfish).

While it is too early for the VMRC to release data on harvest numbers at this point in the commercial crabbing season, commercial watermen submit harvest reports to the agency on a monthly basis. Data should be available by August.

**The commercial blue crabbing season (harvesting by crab pot) began March 17 in Virginia, and will end on November 30. Other methods of catching crabs (ie. pound nets, etc.) for commercial watermen are allowed May 1 through November 30. In Maryland, the commercial crabbing season runs April 1 through December 15.

Baltimore Crude Oil Terminal Placed on Hold for Environmental Concerns

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By Neil Saunders

The Maryland Department of the Environment (MDE) recently placed on hold a Houston-based company’s permit application to ship crude oil through its Baltimore port terminal in Fairfield, Maryland. The company, Targas Resources, which presently owns one of the Fairfield terminals, which it uses to store and ship oil, natural gas, and petroleum products, sought the permit to allow shipments of crude oil to pass through the terminal as well. In its decision to temporarily deny the permit, MDE sighted a lack of information and insisted that additional information from Targas Resources was necessary before the agency would consider further review.

Maryland’s Oil Pollution and Tank Management laws require facilities operators to obtain a permit before they may transport or store more than 10,000 gallons of oil, including crude oil. The permit approval process requires, in general, that the applicant submit a contingency and clean-up plan in the event that a leak or spill occurs, and to maintain a facility that is properly equipped to prevent oil pollution and contain spills. These are important criteria to ensuring safety to surrounding neighborhoods and the Chesapeake Bay, and promising news that MDE has, at least in the interim.

Had MDE approved the permit, Targas Resources would have become the second company to ship crude oil through the Fairfield terminals, which sit along the Patapsco River just outside Baltimore’s Inner Harbor. Currently, Axeon Specialty Products ships tens of millions of gallons through its nearby terminal. According to MDE’s Oil Control Program, Axeon Specialty Products shipped over 100 million gallons of crude oil over the previous two years. According to a Sierra Club blog post, the Targas terminal would result in an additional 9 million gallon annually. More troubling is the fact that the potential impact area of an accident sits right in the heart of downtown Baltimore.

The shipment of crude oil carries added significance to the Bay area because of the rise in oil production in recent years, particularly from the Bakkan shale field in North Dakota. The rise in production has caused an increase in demand, which has led to increased shipping. Shipping crude oil, which is performed primarily by rail, poses risks to local populations and the environment. Just last year, a derailment in Lynchburg, Virginia, caused thousands of gallons of crude oil to spill into the James River. In 2013, a derailment in Quebec, Canada, resulted in spillage of over 1.5 million gallons of crude oil and caused an explosion that killed 47 people.

Time will tell if Targas Resources makes another attempt to obtain the permit from MDE. Hopefully, with enough local opposition, MDE will continue to reject it.

To read the Baltimore Sun article, please visit: http://www.baltimoresun.com/business/bs-bz-crude-oil-20150603-story.html

To read the Sierra Club blog post cited in this post, visit: http://www.sierraclub.org/compass/2014/12/baltimore-residents-oppose-oil-export-facility