MS4 permit challenge

Cecil County is challenging the requirements of a state stormwater permit that would require it to reduce impervious surfaces by 20 percent by 2025. That would necessitate large investments into projects that reduced runoff and filtered water, such as this bio-swale installed near Rising Sun High School.

ELKTON — Cecil County and Queen Anne’s County united to challenge the Maryland Department of the Environment (MDE) over a recently-issued stormwater management permit with “impracticable” standards, according to a petition for judicial review filed by both counties.

The petition, filed in Queen Anne’s Circuit Court by AquaLaw P.L.C. two weeks ago, seeks to appeal the municipal separate storm sewer system (MS4) permit on the basis that it oversteps the MDE’s authority and sets forth conditions that are contrary with federal and state law.

The permit also sets forth the ambitious requirement of reducing impervious surfaces in the counties by 20 percent by 2025 — something that Cecil County and Queen Anne’s County officials believe will cost the taxpayers millions more.

Lisa Ochsenhirt, one of the lead attorneys representing the two counties in this matter, said on Tuesday that AquaLaw “does not comment on legal matters on behalf of our clients.” Cecil County has capped expenses for AquaLaw at $25,000 for this legal matter, according to County Attorney Jason Allison.

“Primarily, we believe that it’s overly broad and it covers the county, border-to-border,” Allison explained. “The county believes its obligation is in the high-density areas such as Elkton and the Route 40 corridor.”

The stormwater permit branches from the Clean Water Act passed in 1972, which was amended years later to include the National Pollutant Discharge Elimination System (NPDES) permit. The goal was to control pollution by regulating point sources for water contamination.

In the 1990s, those regulations expanded to include local jurisdictions through the MS4 permit. The first phase rolled out these requirements for areas designated by the MDE as large-sized areas (with populations greater than 250,000) and medium-sized areas (with populations greater than 100,000) as well as various industrial activities.

That affected 10 Maryland counties and the State Highway Administration, and Harford, Howard, Carroll and Frederick have launched appeals of there own in the last decade.

The long-awaited second phase expanded the MS4 permit to communities determined as “urbanized areas” by the U.S. 2010 Census — or those with 50,000 or more people — in April. For Cecil County, that included the entire county. Queen Anne’s County was included because a stretch of U.S Route 50 that stretches from Kent Island to Grasonville.

Complying with the MS4 permit, specifically the 20 percent impervious surface reduction, would be extremely expensive, according to both Cecil County and Queen Anne’s County officials. In a formal press statement, the Queen Anne’s County government estimated the new capital expense to treat the untreated impervious area would be $10 million through 2025.

Rough estimates made by Cecil County officials place the cost for MS4-mandated projects to mitigate stormwater runoff between $1.8 million to $2 million to the county’s operating budget.

Stormwater management projects range in size, from rain gardens to stream restoration projects to limiting erosion, and often include match grants from the Maryland Department of Natural Resources (DNR).

In the recently-adopted Fiscal Year 2019 budget, there is $400,000 allocation for legwork on such projects that would eventually translate into millions in DNR grant funding down the road. Tangible evidence of the match funding is the stormwater treatment system at Perryville High School, which was heralded with a ribbon-cutting ceremony this week.

Mark Hudson Landscaping & Excavating and Opti, a company that specializes in stormwater management optimization, worked with Cecil County Department of Public Works to construct bioretention ponds, bioswales and a filter and treatment system, which helps reduce pollutants in the runoff from the roof, parking lots, tennis courts and sport fields.

For county Stormwater Management Division Chief Van Funk, the MS4 permit sets unrealistic goals for his small staff over the next seven years, burden to future operating budgets notwithstanding.

His team of seven full-time employees handles various improvement projects across the county, including educating homeowner associations and other entities without proper systems in place on how to start their own, inspecting projects for runoff issues and performing various outreach and education events.

As for project design and permitting, that often takes time — sometimes more than weeks with the involvement of state agencies and the U.S. Army Corps of Engineers.

“The main issue is that we don’t think it’s practical to achieve a 20 percent reduction of impervious surfaces,” Funk said. “Money is the main thing, but if someone came in with a blank check, I’d still be weary because it’s about the mechanisms in place needed to spend it.”

If the petition is unsuccessful, there is some time for Cecil County and other areas included in the second phase of the MS4 permit rollout, as they have until Oct. 31, to file a notice of intent that they intend to comply with the permit, including a work plan to meet the requirements.

Consequences of failing to meet the MS4 permit standards could potentially open the door for various fines from the federal and state governments as well as lawsuits from other environmental groups, Funk said.

“At the end of the day, we all want the same thing: clean water,” he said. “It just seems that we differ on how we achieve it and how fast we achieve that.”

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