Today, the Center for Progressive Reform (CPR) is releasing an assessment of the plans and progress of Baltimore City and the nine largest counties in Maryland to comply with their federal stormwater permits, a key component of the ongoing effort to clean up the Chesapeake Bay and restore it to health. The analysis looks carefully at the jurisdictions' past efforts and future plans, revealing a wide range in the apparent commitment and level of restoration activity as they work to restore their urban and suburban environments and address polluted runoff from impervious surfaces like roads and parking lots.
Several jurisdictions like Montgomery and Prince George's counties have a long history of innovative stormwater management work and submitted relatively strong plans. Other jurisdictions, however, did not produce plans that meet their legal obligations to identify enough stormwater projects to satisfy their permits. Some jurisdictions, like Frederick and Harford counties, even took the opportunity to object to the longstanding requirements of their permits, which are designed to restore local water quality and protect communities from the impact of polluted urban runoff.
Before reading through the assessment's fact sheets, it may be helpful to first understand why these 10 jurisdictions were recently required to submit plans on their efforts to address stormwater and what makes this effort in Maryland unique.
What Is Stormwater and How Is It Different from other Water Pollution?
Stormwater occupies a unique space in the context of water pollution regulation. As far as the Clean Water Act is concerned, there are "point sources" and "nonpoint sources" of water pollution. Point sources of pollution are things like pipes coming out of factories or sewage treatment plants, which have been subject to a thorough permitting and regulatory regime since the early days of the Clean Water Act.
But what about regulating rain water that falls onto a parking lot in the middle of a city, flows down a gutter and into a storm drain, picking up dirt and chemicals as it goes? In the mid-1980s, Congress addressed this sort of pollution with an amendment to the Clean Water Act that deemed this runoff to be a form of point source pollution but subject to different permitting and regulatory requirements than more traditional sources.
Tasked with regulating pollution from municipal separate storm sewer systems ("MS4s"), the U.S. Environmental Protection Agency (EPA) and the states implemented a two-phase strategy, requiring Phase I MS4 permits for medium and large jurisdictions – like the 10 in Maryland – first, followed by Phase II MS4 permits for smaller jurisdictions. Mindful of the challenge presented by regulating municipal stormwater, EPA and the states made compliance with the first generation of MS4 permits relatively effortless. These first permits were more about requiring municipalities to develop greater internal capacity and mapping their storm sewer systems, with more protective provisions designed to be introduced into succeeding permits.
Unfortunately, control of stormwater has not really proceeded along this path. Most states have not been particularly eager to develop ever more stringent requirements with each new MS4 permit generation and, to make matters worse, states have often failed to keep permits moving from one generation to the next by allowing "administrative continuances" that keep older and less protective permits in place for far longer than the five-year periods required by the Clean Water Act.
What Makes Maryland's Stormwater Regulation Unique?
The Maryland Department of the Environment was an early adopter of advanced stormwater permit requirements for a host of reasons, including:
Beginning over a decade ago, the department began to introduce specific and numeric pollution reduction requirements into Maryland's Phase I MS4 permits. These numeric requirements required the permit holders – in this case the respective counties and Baltimore City – to address pollution from a certain percentage of the untreated impervious surfaces (surfaces that were not treated by modern stormwater controls now standard on newly developed properties) within the jurisdiction by the end of the permit term.
This requirement is unorthodox in that it requires counties to address a proxy for stormwater pollution – impervious surfaces – rather than the pollution itself. (In hindsight, it would have been far better to simply require numeric reductions in actual pollutants and link these reductions with the local clean-up plans – called "TMDLs" for short – that are already in place.)
Nevertheless, from a national perspective, the impervious surface restoration requirements in Maryland's Phase I MS4 permits remain a bold, ambitious, and relatively progressive policy more than a decade later. Moreover, while the decision to focus on impervious cover as a proxy for polluted runoff has many pitfalls, it has also had the effect of focusing attention on a particular feature of the modern environment – pavement – that has so many negative consequences.
As we have come to discover after a decade of experimenting with new technological solutions, the numerous types of stormwater control projects and techniques that have been developed (which are often referred to collectively as "green infrastructure") address not only nutrient and sediment pollution, but also reduce exposure to toxins and pathogens in urban waters; prevent flooding and mitigate increasingly extreme storms; reduce the heat-trapping effect of pavement, which can lead to lower energy bills and fewer heat-related hospital admissions; provide new tree cover and green spaces that improve air quality and raise property values; and create high paying local construction and engineering jobs that cannot be offshored or outsourced.
Why Is This Important for Local Water Quality and the Chesapeake Bay?
Urban runoff has not always been such a large contributor of pollution in the Chesapeake Bay watershed. Three decades ago, agriculture was the dominant source of nitrogen and phosphorus pollution, with sanitary sewers and industrial operations, and air and water emissions from coal-fired power plants also contributing many times more nitrogen than stormwater runoff. But with more and more development in the region, that changed. According to data from the Chesapeake Bay Program, urban runoff overtook wastewater emissions as a source of pollution to the Chesapeake Bay for the first time in 2014. In fact, Bay Program data show that, while nutrient pollution from wastewater effluent has dropped tremendously in recent years, it has actually increased from runoff as a result of increased urban and suburban development and the resulting increase in rooftops, pavement, and other impervious surfaces that blanket previously natural landscapes and prevent soil from performing its natural role of filtering pollutants.
Since more than four-fifths of Marylanders live within one of the 10 jurisdictions subject to a stormwater permit, it is critically important that the counties comply with the pollution-reduction requirements in these permits. Not only will the stormwater management projects implemented to fulfill permit obligations reduce the nutrient and sediment pollution needed to restore the Bay, but these same projects also reduce the flow of toxic chemicals and dangerous pathogens in these communities where most residents live, work, and play.
What Are the Counties Actually Doing?
As noted, the 10 counties have recently submitted plans detailing how they would comply with their MS4 permits, which vary significantly in quality. Each jurisdiction is significantly different in terms of its natural geography and built environments and, as such, requires somewhat different restoration strategies. Nevertheless, some jurisdictions appear to have developed risky plans due to a lack of diversification in the portfolio of projects and restoration strategies or due simply to a heavy reliance on less impactful alternative compliance practices that the department has recognized for the purpose of providing additional flexibility for counties.
Perhaps more importantly, our analysis highlights the wide array in commitment among the 10 jurisdictions to meeting the impervious surface restoration goals of their MS4 permits. One straightforward yardstick for the level of effort or commitment by each jurisdiction is the amount of spending identified by the county through its financial assurance plan and its local budget. Understanding that each jurisdiction varies widely in population, budget, wealth, and urbanization, our analysis puts each of the jurisdictions on the same playing field by adjusting for these factors. Taking these differences into account allows the public to understand which jurisdictions are putting a relatively significant level of resources toward solving the problem of polluted urban runoff and which jurisdictions are falsely claiming that they cannot afford to do more.
Why Are Some Counties Submitting Relatively Weak Plans?
A certain degree of reluctance or resistance is probably inevitable any time a municipality is tasked with establishing a complex and capital-intensive regulatory program. EPA and Congress likely foresaw this when they devised the unique and flexible statutory and regulatory provisions for the MS4 permitting program. Additionally, many MS4 permit holders are cash-strapped cities, some of which, like Baltimore City, are contending with a number of water pollution problems and several large environmental restoration obligations at the same time.
Despite these inherent challenges, perhaps the greatest obstacles to successful compliance with MS4 permits are based on politics and perception rather than fiscal or engineering limitations. If cities and counties are being counseled to avoid complying with their permits and to call the bluff of state and federal regulators, then certainly some local leaders will be willing to give that option a try.
Creative lawyers have fostered such efforts to avoid compliance by arguing that the unique statutory language and standard created specifically to govern stormwater permits under the Clean Water Act allows municipalities to avoid budgeting for compliance with aggressive state-led efforts to address stormwater. The analyses released today, however, demonstrate the weakness of these arguments by showing that the very counties that object to aggressive stormwater permits are often the ones that are actually spending the least on a relative basis to address their stormwater obligations.
The Maryland Department of the Environment is currently in the process of reviewing the 10 jurisdictions' MS4 permit compliance plans. Marylanders have a lot at stake if the department accepts and approves deficient plans that fail to invest in local communities and water quality.