Federal crackdown urged in clean-water laws

State failing to enforce laws, riverkeepers say

The Capital Staff Writers Published 12/07/09

Capital file photo
Maryland's waterkeepers – including West/Rhode Riverkeeper Chris Trumbauer, shown checking oxygen levels in the Rhode River in 2008 – are petitioning the federal government to take over water pollution permitting that's currently done by the state. The waterkeepers say the state has done a subpar job protecting the state's rivers and bays.

The waterkeepers who patrol Maryland's rivers and bays said the state is failing to enforce clean-water laws, and the federal government should take over the task.

The waterkeepers - including the four riverkeepers who monitor Anne Arundel County's waterways - filed a petition seeking the move with the federal government this morning.

"The Clean Water Act is not being enforced," said Chris Trumbauer, the West/Rhode Riverkeeper. "We need to do something bold to set this on the right course."

The 58-page petition filed with the U.S. Environmental Protection Agency asks the agency to take back authority to issue and enforce water-pollution permits. That authority is generally delegated to the states.

The waterkeepers claim in their petition that the Maryland Department of the Environment has done a subpar job in handling water-pollution permits and carrying out the intent of the Clean Water Act.

The waterkeepers highlight areas in which they said the MDE is falling short:

Not issuing and updating permits in a timely manner.

Not inspecting enough permitted sites.

Taking too few enforcement actions.

Having penalties that are not a deterrent.

Not allowing adequate public participation in the permitting and enforcement process.

For example, South Riverkeeper Diana Muller said she did a check of all of the discharge permits in the South River watershed, the land area that drains into the river.

All but one of the permits had expired, Muller said. The only permit that hadn't expired was the new one for the Annapolis Towne Centre at Parole.

Trumbauer said he was frustrated when he did a similar check on West and Rhode river permits. He filed a Maryland Public Information Act request and found himself at MDE headquarters, looking at a pile of rubber-banded manila folders.

Some of the folders had no permit information, he said, and "many of the rest were incomplete or insufficient."

The waterkeepers' petition describes a case in which the Baltimore Harborkeeper was told one public information request would cost between $21,360 and $85,440 to fulfill.

Enforcement is a problem, too, the waterkeepers said. In 2008, just 20 percent of locations with water-pollution permits were inspected by an MDE employee.

Some of the cases outlined in the petition are problems in Anne Arundel County.

The federal government, for example, stepped in earlier this year to cite county government for violating a stormwater-discharge permit after problems were found at two road-maintenance yards and the Millersville landfill.

And the permit for the county sewage-treatment plant in Mayo expired in 2005.

Dawn Stoltzfus, an MDE spokeswoman, said agency officials hadn't yet reviewed the full petition. But she defended the MDE's efforts to protect clean water and hold polluters accountable.

Stotlzfus said the MDE is understaffed and underfunded, without enough people or money to do the job as well as it would like.

But Environment Secretary Shari T. Wilson has made an effort to make the MDE more efficient since she took over in early 2007, Stoltzfus said. Enforcement actions went up 34 percent across the agency from 2007 to 2008.

"It's no secret that we have a lack of resources. … In the last three years we've done a lot, despite having fewer and fewer resources," Stoltzfus said.

Wilson sent a letter to the waterkeepers' attorneys on Friday to try to dissuade them from filing the petition.

"A petition to take back a delegated program could not come at a worse time," Wilson wrote. She said the MDE will have to "divert key staff" to deal with the waterkeepers' petition instead of handling day-to-day agency business.

In the letter, Wilson laid out the changes she has made, such as creating MDEStat, based on Gov. Martin O'Malley's StateStat and BayStat. She said the MDE also will soon be getting new permit-tracking software and a new Web site.

Trying to help

The waterkeepers don't buy Wilson's arguments, however.

Out-of-date permits, incomplete information and lax enforcement aren't a new problem resulting from state government budget cuts and staffing woes, Trumbauer and Muller said. It's been this way for far too long, they said.

"During the roaring time, when the states had a ton of money, they still weren't doing it," Muller said.

The waterkeepers insist they are trying to help MDE with their petition. The filing lists suggestions to make permitting and enforcement better, including: Increase permit fees.

Establish mandatory minimum penalties for violators.

Establish a "chronic violator" law.

Make sure all sources of water pollution have permits.

Create an online database of permit and enforcement information.

Create an ombudsman position to help the public.

Increase federal government oversight.

Similar petitions have been tried in 12 states since the 1990s. None of the petitions resulted in an EPA takeover of permitting; rather, they resulted in changes to how the states handle permits.

The petition will trigger a review by the EPA of the state's handling of permits and enforcement. There is no deadline for when the review will be completed or when the EPA will decide whether to take back permitting authority from the MDE.

"What we want is a review that will generate change at MDE," said Drew Koslow, who used to be the South Riverkeeper and now is the Choptank Riverkeeper. "We just want the law to do what it is supposed to do."

The waterkeepers, who are employed by nonprofit advocacy groups, are represented by the University of Maryland Law School's Environmental Law Clinic.

The participating waterkeepers are: Assateague Coastkeeper, Baltimore Harbor Waterkeeper, Chester Riverkeeper, Choptank Riverkeeper, Lower Susquehanna Riverkeeper, Patuxent Riverkeeper, Potomac Riverkeeper, Sassafras Riverkeeper, Severn Riverkeeper, South Riverkeeper, West/Rhode Riverkeeper and the Waterkeeper Alliance, the national umbrella organization.

(Revised December 2009)