The Maryland Department of the Environment’s (MDE) enforcement of water quality regulations has decreased under Gov. Larry Hogan’s administration, according to a new report from a coalition of environmental orgnaizations.
The first-ever 2022 Maryland Water Pollution Enforcement Scorecard was released Wednesday by the Chesapeake Accountability Project (CAP), a coalition that seek to strengthen environmental laws, regulations and enforcement to improve the health of the Chesapeake Bay. CAP is made up of the Center for Progressive Reform, Chesapeake Bay Foundation, Chesapeake Legal Alliance, the Choose Clean Water Coalition, and Environmental Integrity Project.
The inaugural report examined enforcement by MDE’s Water & Science Administration (WSA) for three main periods in Maryland: fiscal years 2016-2021, the first six full fiscal years under Hogan; fiscal years 2010-2015, the final six fiscal years under former Gov. Martin O’Malley; and a historical average of fiscal years 2001-2021.
Maryland’s environmental department, like several state agencies, has seen its budget diminished in recent years.
MDE’s agency budget of state general funds fell by more than one-third – adjusted for inflation – between fiscal years 2002 and 2022, the report found. The department now accounts for less than one-fifth of one percent of the total state general fund budget, down to half of what it was 20 years ago.
Katlyn Schmitt, a policy analyst at the Center for Progressive Reform, said budgets took a hit after the Great Recession in 2008, and MDE has struggled to get the funding it needs since then.
Over the past two decades, the department also lost one out of every seven staff members, according to the report.
In 2002, MDE had more than 1,000 staff members. Now they are down to 880, said Eliza Steinmeier, co-director of the Chesapeake Legal Alliance.
“Imagine doing your job with 15% less people,” Steinmeier said. “That’s a significant decline.”
Steinmeier added that the number of pollution inspectors declined from a high of 62 in 2000 to approximately 50 now.
“We have population growth, climate change, development growth throughout the state,” she said. “The department has more issues to oversee and it has less resources with which to do it.”
The scorecard found that clean water enforcement in Maryland had trended downward over the past 20 years. The last six years marked a “dramatic decline” in the number of enforcement actions by WSA, the number of sites WSA inspected, and the number of significant, water-related violations that WSA identified involving environmental or health impacts.
Jay Apperson, spokesperson for the Department of the Environment, said in a statement that MDE could not provide a specific response to the scorecard because the department “was not afforded the courtesy of a pre-review of the report.”
However, Apperson added that “MDE has never wavered in its commitment to compliance and enforcement, which continues to be a priority.”
WSA can take various enforcement actions against a facility that is not in compliance with water quality regulations. Those actions can include issuing stop-work orders, requiring corrective actions, obtaining injunctive relief, issuing penalties, referring pollution violations to the Attorney General, and more.
The yearly average number of water-related enforcement actions from FY2016-FY2021 were lower than both the yearly average from FY2010-FY2015 and the historical average from FY2001-FY2021.
Courtney Bernhardt, director of research at the Environmental Integrity Project, compared environmental regulations to speed limits.
“Enforcement actions encourage polluters to stay in line with the requirements of the law. You can think of water pollution laws as similar to speed limits. Drivers are less likely to follow them unless they know they will be enforced.,” Bernhardt said.
In FY2020, WSA inspected 2,296 water-related sites, which was a record low for the state over the past two decades. At its peak around the mid-2000s, the state was inspecting about 9,000 sites per fiscal year.
According to the report, MDE attributed the low number of inspections in FY2020 (July 1, 2019 to June 30, 2020) to the pandemic.
But Hogan declared a state of emergency related to COVID-19 in Maryland on March 5, 2020, so the report’s authors said the pandemic should have only impacted about the last quarter of that fiscal year’s numbers.
“It’s worth noting that these numbers under Hogan started declining well before the coronavirus pandemic in 2020,” Bernhardt said.
Enforcement actions and inspections were on the decline even before Hogan took office in 2015, but both metrics reached new lows during his time as governor.
Apperson highlighted some of the actions the MDE has taken over the last several years to stop water and waste pollution, including addressing Baltimore sewage backups and wastewater treatment plants violations; suing the federal Environmental Protection Agency to ensure Pennsylvania and New York “do their fair share” in the Susquehanna River watershed as part of a plan to clean up the Chesapeake Bay; and more.
“The Department will continue to take aggressive enforcement actions and seek stiff penalties, when warranted, in order to hold polluters accountable,” Apperson said in his statement. “MDE is committed to changing Maryland for the better by protecting and restoring the environment while providing businesses and communities with clear expectations and consequences for failure to follow the law.”
The report also analyzed the number of significant violations involving environmental or health impacts per fiscal year. “Significant violations” require remedial or enforcement action to ensure the violator complies with environmental protections, the report’s authors said.
The number of such violations identified by WSA peaked in FY2011 with more than 300 violations. Since then, however, the violations per fiscal year have fallen below 50 in FY2021.
The report’s authors said this decline does not necessarily signify a decrease in pollution, rather it shows a decrease in the number of violations being identified by WSA.
“This does not include the actual number of significant water-related ‘violations’ that are not pursued by WSA, go undetected, or are not self-reported,” the authors wrote.
Last year, the nonprofit Blue Water Baltimore alerted Baltimore City about deficiencies and violations at the Patapsco and Back River Wastewater Treatment Plants.
“There is a severe and worrying lack of accountability at the local, state, and federal levels,” the group wrote last year.
Following Blue Water Baltimore’s alert, MDE inspected the sites and found the two plants had been releasing approximately 130 million gallons of partly treated sewage per day, Baltimore Brew reported.
“Here we have a nonprofit organization identifying a violation and bringing it to the attention of the agency, when in fact it should be the agency which has regular touch points with regulated entities who should be catching the violations well before they become the problems that they have become in this case,” Steinmeier said.
WSA collected nearly double the dollar amount of water-related penalties from FY2010-2015 than it did from FY2016-2021.
But the report’s authors also noted that WSA collected 8% more in water-related penalties in FY2021 than WSA’s historical average.
The report found that the Hogan administration has prioritized “compliance assistance,” which allows minor violations to be corrected before they become more significant violations.
But Schmitt said “compliance assistance in general is a flawed enforcement philosophy.
Non-compliant facilities or entities send written documentation to MDE that the corrections have “been made or commenced.” But beyond that documentation, Schmitt said it is unclear whether MDE actually verifies that a facility comes into compliance.
“This approach, though sometimes effective for adjusting minor violations, needs more oversight and verification to ensure that facilities are brought into and stay in compliance,” Bernhardt said, adding that the unclear rules around compliance assistance “coupled with a drop off in inspections is pretty alarming.”
Another concern for the coalition is the use of so-called “zombie permits.”
Permits for most permitted discharges are supposed to be renewed every five years to accommodate changing conditions at the facility as well as conditions of the ecosystem that’s being discharged into, said Doug Myers, Maryland senior scientist at the Chesapeake Bay Foundation.
But “zombie permits” are when those permits are “administratively continued,” sometimes several years past their renewal date, Myers said.
The scorecard identified 153 permits that were either expired or administratively continued. Of those, 114 had been expired or administratively continued for more than one year, and 22 permits had been expired or administratively continued for five or more years.
“With these egregiously delayed permits, an entire additional five-year permit term went by beyond the expiration date without MDE doing any analysis of the pollutants that are being discharged and the appropriateness of those permit terms,” Myers said.
He added that CAP is supporting legislation this session to address some of the issues with these “zombie permits,” including limiting how long an expired permit can be administratively continued, requiring more frequent inspections of facilities with expired discharge permits, and creating additional fines for permit holders that do not quickly address compliance issues.