The Maryland Department of the Environment is “drastically underfunded” and lacks the resources needed to enforce water pollution laws, according to a report released this week.
The report, “Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, ” was commissioned by the Abell Foundation of Baltimore and the Center for Progressive Reform.
The study found that MDE’s budget for Water Management Administration (WMA) declined from $3.39 million to $3.16 million between 2000 and 2009. During the same period, the number of inspectors in Maryland’s water management program declined even more sharply: There were 25 percent fewer active, full-time inspectors in 2009, the report found.
The report criticized WMA’s enforcement program for not effectively deterring dischargers from violating federal and state water quality laws. “MDE’s enforcement efforts are squeezed to the edge of ineffectiveness by an increasingly tight budget and a poorly designed program that fails to maximize its deterrent impact,” the authors concluded.
While Maryland has tough environmental laws, MDE lacks sufficient funding for enforcement and does not currently have an adequate enforcement program to achieve the goals set under the federal Clean Water Act and its own state laws, according to the report’s findings.
The problems are especially pronounced in permit enforcement, the report said. As illustrated by the graph above, MDE has relatively few inspectors for the large number of permits and licenses that need inspection.
Above is another graph from the report, showing how many of the surface water permit sites governed by the NPDES ( National Pollution Discharge Elimination System) and under control of the MDE actually get inspected. In 2008 and 2009,less than one-fourth of the surface-water permit sites actually were inspected.
According the report, inspection rates for stormwater, sediment and erosion control permits were no better. The report’s graph is below.
Some states in the Chesapeake Bay watershed are falling behind in reviewing permits designed to curb stormwater pollution, according to Environmental Protection Agency reports.
Stormwater is the fastest growing source of pollution in the Chesapeake Bay. It is a serious problem because so much soft ground with plant cover that once absorbed and filtered pollution out of rainwater has been covered by hard surfaces such as roads, roofs and parking lots. These impervious surfaces prevent rainwater from being absorbed into the ground. Instead, it runs into the streams and rivers that feed the Chesapeake Bay.
In order to control the environmental impact of stormwater, the Environmental Protection Agency set up a permitting program to regulate stormwater runoff called the National Pollutant Discharge Elimination System (NPDES). Permits issued under this program control facilities whose discharges go directly into lakes, rivers and streams from identifiable agricultural, domestic or industrial sources. For example, runoff from municipal sewage treatment facilities and construction sites are both regulated by NPDES permits.
Many states in the Chesapeake Bay Watershed are behind in updating the permits that control what kind of discharges and how much of them a facility or company can allow to run off a work site and into waterways.
After the state issues a NPDES permit, it is good for five years. At the end of that five-year period, (180 days before its permit expires) a facility must apply to have its permit renewed. When a complete application for renewal is received, but not officially re-issued by a permitting authority, it becomes “administratively continued.” Put simply, the permit becomes backlogged (this can also include facilities waiting for their first NPDES permit).
The EPA measures how effectively states keep up with backlogged permits by tracking their “percent current rates,” which is the number of facilities with current permits divided by the total number of facilities.
Facilities in the Chesapeake Bay watershed that release one million gallons of runoff per day, individual major permit holders, and those that do not produce as much runoff, individual minor permit holders, both have 90 percent current goals.
Virginia has the highest percent current rates in the bay watershed. Its rate for major permits is 99.3% and 98.3% for minor permit holders. EPA reports indicate that West Virginia has the lowest percent current rate for minor permit holders, at 56.3%. It show s that Delaware, at 65%, and Maryland, at 69.5%, have the lowest percent current rates for major permit holders in the Chesapeake Bay watershed.
Overall, none of the percent current rates fall below 50% for states in the Chesapeake Bay Watershed. Most percent current rates for both major and minor permit holders are between 70 and 90%, leaving an estimated 20-30% that are backlogged or “administratively continued.”
Despite efforts by environmentalists, the Chesapeake Bay’s health remains poor, according to the latest report card issued annually by the federal-state program tasked with cleaning up the nation’s largest estuary.
The Chesapeake Bay Program this week released its Bay Barometer, which gave the bay an overall average health score of 45 percent out of 100 percent for 2009. On a positive note, the study said 64 percent of the bay’s overall restoration and protection goals have been met, a score that is six points higher than in 2008.
The Bay Barometer is a comprehensive study of the Chesapeake Bay and its watershed. CBP describes it as a science-based annual review of the progress of achieving Bay health goals and implementing the needed restoration measures. The entire report can be found here.
Although the report may seem disheartening considering all the efforts underway to clean up the bay, there were some positives. For example, the Bay Barometer says that in 2009, “The adult blue crab population increased to 223 million, its highest level since 1993.” It also states that, “Bay Program partners have implemented 62 percent of needed pollution reduction efforts, a 3 percent increase from 2008.”
It is clear that much more needs to be done to improve the health of the bay, but at least there have been slight improvements over the past year.
Beth McGee, a senior water quality specialist with the Chesapeake Bay Foundation, told The Daily Press that, “Overall, we still have a long way top go.”
View Porous Pavement Across U.S. in a larger map
Porous pavement has been making headlines in some of the biggest news organizations on the country. Cities, states and residents have been experimenting with porous materials for a number of the benefits, including controlling stormwater, reducing highway noise and decreasing accidents caused by puddles and ice.
In the Chesapeake Bay watershed, the Washington Post has recognized the efforts of Virginia’s Department of Transportation in creating an experimental strip of pervious pavement stretching 1.7 miles of Route 234 in Northern Virginia.
The Post also released a story on the first Leadership in Energy and Design (LEED) certified residential home in the state of Virginia, when the Arlington house hit the market in June of last year. The home has a driveway made of porous pavement, and collects rainwater in barrels as it falls from a solar-paneled roof.
As the Philadelphia Inquirer wrote in February, Philadelphia’s Water Department will begin charging commercial customers for stormwater build-up, incentivizing the installation of retention basins, green roofs and, yes, porous pavement. By the time the plan is implemented, about 1,500 customers could see increases of $1,500 a month in their water bills if they don’t control their share of stormwater. The Inquirer also noted a few dozen customers could see their monthly water bill go up by more than $10,000 a month.
Hopewell, N.J., adopted new land-use ordinances in 2007 and, as the New York Times noted last October, the rain does not puddle on the pavement in Hopewell.
It’s not just an east coast thing either –the Los Angeles Times reported in February that the City of Los Angeles is considering a requirement for the capture and reuse of rainwater in new homes and large developments. Properties would have the capacity to infiltrate 100 percent of the water from a 3/4-inch rain storm, and failure would result in mitigation fees.
And just last week, Mercury News columnist Gary Richards explained in a Q & A how permeable pavement decreases the spray from rainfall that is thrown into the air by car tires.
The Environmental Protection Agency recently asked the federal government to “lead the Chesapeake Bay restoration by example” by adopting recommendations for nutrient reduction on their own lands, according to an article written by the Associated Press.
“Federal agencies own nearly 8 percent of the watershed’s land, making it one of the largest land owners in the watershed,” wrote Alex Dominguez, staff writer for Associated Press.
Most stories about who is responsible for polluting the Chesapeake Bay tend to point to farmers, developers and ordinary citizens. Rarely do people think of the federal government as a bay polluter, not just through lack of enforcement of regulations or funding allocation, but through management of its own farmlands.
It is easy to remain skeptical of President Obama’s the Executive Order requiring all government agencies to do what they can to help restore the bay, but this AP story, along with others, suggest that the Environmental Protection Agency is making an attempt to curb pollution of the Chesapeake Bay in new ways.
Earlier this month, the Waterkeeper Alliance and the Assateague Coastal Trust filed a lawsuit against Perdue Farms and a couple who own a chicken farm on Maryland’s Eastern Shore, alleging that runoff from the farm was polluting the nearby Pocomoke River.
The lawsuit may not seem all that surprising to folks on the Eastern Shore, where chicken waste is a significant source of pollution in the Chesapeake Bay, but it has stirred heated debate in the state Senate.
Some Maryland lawmakers were irked upon learning that the state-supported environmental law clinic at the University of Maryland School of Law had done legal work for the plaintiffs. Following lively discussion, the state Senate approved language requiring the legal clinic to submit a report on its clients and expenditures to the General Assembly–or risk having $250,000 in state funds withheld from its budget. The House of Delegates voted to withhold even more–$500,000– from the clinic’s budget if the report is not filed by August, according to a report in the Washington Post.
Each year, on or before October 1, the Maryland Department of the Environment (MDE) is required, under Title 1, Subtitle 3 of the Maryland Environmental Article, §1-301(d), to release a thorough report that documents enforcement activities “conducted by the Department during the previous fiscal year.”
The report has been released annually for the past 13 years, and the most recent report covers Fiscal Year 2009, from July 2008 through June 2009. The report is extremely detailed and has a very specific format. It is divided into three sections and in its entirety reflects the performance results for regulatory programs overseeing the environment and the amount of money collected by these programs in the form of penalties. There are 28 areas of enforcement and 15 programs covered in the report (see page 19 of the report).
Most enforcement actions are taken by the Air and Radiation Management Administration (ARMA), the Waste Management Administration (WAS) and the Water Management Administration (WMA). The report defines the regulatory authority of these administrations in the following way:
1). Air: air pollution and radiation programs.
2). Waste: oil control, solid and hazardous waste management, sewage sludge utilization, scrap tire recycling, lead poisoning prevention, natural wood waste recycling, and Superfund remediation programs.
3). Water: This includes drinking water, tidal and non-tidal wetlands, wastewater discharges, coal and mineral mining, oil and gas exploration and production, water appropriation, waterway and floodplain construction, dam safety, stormwater management and sediment and erosion control programs.
Money collected by the different programs (within these three main administrations) in the form of penalties is deposited into seven major state funds: the Clean Air Fund, the Oil Disaster Containment, Clean-Up and Contingency Fund, the Nontidal Wetland Compensation Fund, Hazardous Substance Control Fund (handles identifying, monitoring, and controlling the proper disposal, storage, transportation, or treatment of hazardous substances), money recovered from responsible parties under Environmental Title, §7-221 (covers parties that release or threatened to release hazardous substances), the Sewage Sludge Utilization Fund and the Clean Water Fund.
This year in total, the MDE oversaw 117,421 entities and reported that the total number of enforcement actions taken by environmental programs increased by 7 percent over Fiscal Year 2008. The report also stated that MDE inspected 17% more sites.
Enforcement and compliance actions are separate for the three main administrative bodies, although most regulate through inspections, audits and spot checks. Officials generally allow companies to correct minor violations, but more significant violations discovered after inspection or recurring minor violations leads to penalties, injunctions, corrective orders, or criminal sanctions.
Penalties collected last fiscal year from environmental violators totaled $6,516,601. This was an increase of $2,546,326 from Fiscal Year 2008. A press release from MDE explains that a “$4 million settlement with ExxonMobil Corporation for the release of more than 25,000 gallons of gasoline at a service station in the Jacksonville area of Baltimore County,” is included in that sum of collected penalties.
Despite these successes, there is an underlying problem expressed in this year’s report: “MDE’s increased enforcement activity has created a much larger workload for the attorneys assigned by the Office of the Attorney General to MDE.” The report compares Calendar Year 2007, in which roughly 340 enforcement cases were referred for legal action with the 816 cases referred in 2009. The report states that because staff cannot keep up with this increase in cases, there were 325 cases that had not been addressed as of January 1, 2010. Furthermore, the report shows that there were 51,587 sites inspected in Fiscal Year 2009 and 157.4 inspectors for all three regulatory administrations.
Graphic Credit: MDE FY 2009 Annual Enforcement and Compliance Report