Op-Ed: Gov. Hogan, where are state regulatory agencies when the citizens of Baltimore County need them?
Posted by David A. Plymyer on 9th October 2018
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—– By: David A. Plymyer —–

Gov. Larry Hogan (left), Lt. Gov. Boyd Rutherford (right.) Photo Source: The Baltimore Post

According to the polls, Maryland Governor Larry Hogan is very popular in Baltimore County.  Surely, that popularity is not based on the recent failures by two state agencies under his control to fulfill their regulatory responsibilities over actions taken by the Baltimore County government.  The performances of the state agencies in these matters have been disgraceful.

I will begin with “Treegate.”  By now, the facts of that travesty are well known to the citizens of Baltimore County.  What appears to be the final chapter in the matter, written by the Maryland Department of Natural Resources (DNR), is as disappointing as the rest of the story.

The second matter is less well-known, but of much greater long-term consequence.  It involves the adequacy of public wastewater facilities in the “Jones Falls Sewershed.”  Wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville, collecting sewage that flows through the City of Baltimore to the Back River Wastewater Treatment Plant.

Serious questions have arisen as to whether the Baltimore County Department of Public Works (DPW) has been forthcoming about the adequacy of those facilities to manage the planned development in that area of the county without continuing or even increasing the sewage overflows that have occurred for decades in the city and county.  To date, the Maryland Department of the Environment (MDE) has been unhelpful in getting answers to those questions.

DNR’s sham investigation into “Treegate”

On November 14, 2017, I filed a complaint with DNR requesting that it exercise its authority under the state’s Forest Conservation Act (FCA) to investigate whether actions taken by Baltimore County during “Treegate” violated state or county forest conservation law.  Treegate took place on April 1, 2017.

On that date, acting on orders from Baltimore County Administrative Officer Fred Homan, a county contractor removed 30 trees, including six specimen trees, from the future site of the Towson Station development.  Mr. Homan stated that the trees were cut down to facilitate the sale of the property from the county to a private developer who had a contract with the county to buy the property.  The removal of the trees defied a resolution passed by the County Council conditioning development of the site on the retention of the trees and relieved the private developer from what undoubtedly would have been a futile attempt to justify the removal of the trees under the FCA.

After a seven-month “investigation,” DNR Secretary Mark Belton informed me that his agency was persuaded by the county’s argument that removal of the trees was justified because it was done as part of a county “capital improvement project.”  Describing the removal of trees from a site to prepare it for sale to a third party as a capital project is utter and complete nonsense, and DNR knows it.

Under limited circumstances, the county may remove trees from the site of a capital improvement project (aka a capital project) without submitting a full Forest Conservation Plan.  A capital project is defined by the Baltimore County Charter as “any physical public betterment or improvement and the acquisition of property of a permanent nature for public use.”  [Emphasis added.]

The capital project exception is intended to allow the removal of trees from county property if necessary to do so to construct some type of county building or other permanent improvement on the property.  The removal of trees to prepare it for sale, and especially for private use, is not a capital project.

The facts are not in dispute:  The county cut down the trees to help the contract purchaser evade restrictions on the removal of trees that would have applied when the purchaser developed the property for private use.  That is not a county “capital project” under anyone’s definition.     

Also, the county did not pay for the removal of trees using money from its capital budget. It used money from its operating budget appropriated for routine park maintenance, such as lawn mowing. Using money appropriated for routine maintenance to prepare a site for private development by cutting down trees was of doubtful legality in and of itself.

Moreover, even if trees must be removed as part of a county capital project, county forest conservation law requires the agency in charge of the capital project to submit a “project plan” describing the proposed tree removal to the county Department of Environmental Protection and Sustainability for approval.  No project plan was submitted or approved for “Treegate.”

Secretary Belton informed me of DNR’s decision by letter dated June 19, 2018.  Last month, Larry Fogelson obtained a copy of DNR’s investigation through a Public Information Act request.  The sum total of the investigation was a single two-page letter from an Assistant County Attorney explaining that the purpose of the alleged capital project was to make the property “more attractive” to a private developer.

A seven-month “investigation” and that is the best that DNR could do?  DNR’s actions in this matter were shameful.

Thirty trees may not seem like a lot of trees.  Degradation of the environment generally occurs incrementally, however, through the accumulation of many “minor” violations. Competent regulators are aware of that and strive to enforce regulations uniformly and consistently. That certainly was not done in the case of Treegate.

MDE’s “oops”

Baltimore County’s dubious management of public wastewater facilities within what is known as the “Jones Falls Sewershed” is a much more complicated story.  The story is still evolving because it has been extraordinarily difficult to get the relevant information out of the Baltimore County DPW.

What we do know is attributable to the persistence of a group of ordinary citizens led by Tom McCord.  The information obtained by these citizens ultimately piqued the interest of MDE, which in turn called upon Baltimore County officials to answer some important questions.

The issues are too complex to describe in detail here, but there is a common thread throughout all of the questions:  The apparent unreasonableness and inconsistency of the data used by DPW to project future demands on key sewerage infrastructure within the Jones Falls Sewershed, including the Lake Roland, Jones Falls and Towson Run interceptor sewers.

Mr. McCord and his group discovered that DPW used out-of-date population and land use data for purposes of preparing a report on the deficiencies in the sewerage infrastructure within the sewershed.  The sewershed tracks the Jones Falls and the wastewater facilities in the sewershed collect sewage that is sent through the city to the Back River Wastewater Treatment Plant.  Public wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville.

The report in question was required under the 2005 consent decree between the county and the United States Environmental Protection Agency (EPA) and MDE. The consent decree is intended to eliminate the sewage overflows that have polluted the Jones Falls for decades.  The city agreed to a similar decree with the EPA in 2002.

Understating increases in sewage projected from increases in development and population density has the effect, in turn, of overstating the adequacy of downstream infrastructure to manage future sewage flows. A report that identifies deficiencies in and presents a plan for repair, replacement, or rehabilitation of that infrastructure is a mandatory component of the consent decree.

The information available to date also indicates that DPW may have used differing projections of future sewage flows – one for the consent decree report and the other to justify the construction of the Towson Run Relief Sewer.  Mr. McCord and his group have raised legitimate questions as to whether DPW, which understated future sewage flows for purpose of the consent decree, used more current projections to justify construction of the Towson Run Relief Sewer. If so, was the inconsistency inadvertent or deliberate?

The Towson Run Relief Sewer was necessary to handle increased sewage from Towson Row and other planned development in Towson, including new construction at Towson University.  DPW was under pressure to move forward with the Towson Run Relief Sewer.  The relief sewer was an integral part of the “It’s Towson’s Time” vision of former county executive Kevin Kamenetz.

Mr. Kamenetz wanted to make Towson “a regional destination, even better than Bethesda, even better than Silver Spring.”  http://www.baltimoresun.com/news/maryland/baltimore-county/towson/ph-tt-kamenetz-towson-0516-story.html Such high-density development posed a challenge for DPW, already contending with failing wastewater infrastructure in the Jones Falls Sewershed.

MDE has a legal interest in enforcing the county’s compliance with the consent decree with EPA because it is a party to the decree. MDE also has regulatory responsibility for approving the triennial review of the county’s Water Supply and Sewerage Plan; the triennial review is MDE’s opportunity to ensure the adequacy of the county’s plan to manage its sewage system.

Mr. McCord and others, including members of Green Towson Alliance, met with MDE Secretary Ben Grumbles and members of his staff on May 25, 2018.   Secretary Grumbles asked his staff at the meeting if he could delay approval of the county’s 2017 triennial review until he had a subsequent meeting with Mr. McCord and his group that also included DPW.

Secretary Grumbles was told that he could do so.  The clear implication was that Secretary Grumbles wanted to use the follow-up meeting to satisfy himself and members of Mr. McCord’s group about the accuracy of the information that DPW had provided before approving the 2017 triennial review.

The subsequent meeting took place on August 23, 2017.  Mr. McCord and his group learned at the meeting that MDE had already approved the county’s 2017 triennial review.  They later were informed that Secretary Grumbles also was unaware until the meeting that his agency had approved the county’s triennial review.  In other words, an “oops” by MDE.

The first 45-day extension of the time within which MDE had to act on the county’s triennial review under state law expired on August 13th.  The follow-up meeting initially was scheduled for August 8th but was postponed until August 23rd at DPW’s request.

Did MDE get played by DPW? Was there a miscommunication within MDE?  Or, perhaps someone in MDE did not want to go to the trouble of a second, “supplemental” 45-day extension. In any event, MDE’s immediate leverage over DPW was lost and the questions raised about the information provided by DPW remain unanswered almost two months later.

There is what looks like a pattern here, and it is the old regulatory slow-walk:  Drag out an investigation or inquiry as long as possible before producing an unsatisfactory result in the hopes of outlasting the interest or energy of concerned citizens.

What’s next?

The moral of the above story is this:  The citizens of Baltimore County are on their own when it comes to dealing with county agencies. Don’t expect the cavalry to arrive in the form of state regulatory agencies, even when the state agencies have clear regulatory responsibility for actions taken by county agencies.

Treegate may be in the past, but the problems with the adequacy of public wastewater facilities in the Jones Falls Sewershed are not.  The stakes for county finances, land development and the environment are extremely high.

Sewerage infrastructure is, like a chain, only as strong as its weakest link.  For example, the Towson Run Relief Sewer may prevent overflows in Towson only to send sewage downstream to overflow elsewhere in the county or city; Lake Roland is a likely destination.  The massive new development in Towson should not proceed until the entire system is adequate.  At this point, it seems clear that citizens jaded by their experiences with the county are not going to be satisfied unless that determination of adequacy is made by a creditable independent expert.

Among the first orders of business for the next county executive should be an open and transparent review of the adequacy of public wastewater facilities in the Jones Falls Sewershed.  He can do that by ordering his planners and public works officials to make all relevant documents available to the public, and then scheduling one or more public hearings at which his planners and public works officials testify and answer questions in a comprehensive, forthcoming manner.  What a refreshing change that would be in Baltimore County.

 

– David A. Plymyer

David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is dplymyer@comcast.net, and his website is at https://davidplymyer.com/.