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September 26, 2021

The Talbot Spy

The nonprofit e-newspaper for the Talbot County Community

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Public Comment Invited for Trappe Wastewater Permit

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Maryland regulators are taking public comment again on plans to handle wastewater from a massive new development on the state’s Eastern Shore by spraying it on farm fields.

The Maryland Department of the Environment had issued a wastewater permit in December 2020 for Lakeside, a proposed community of 2,501 homes and apartments plus a shopping center in the small Talbot County town of Trappe. But a judge ordered the department to give the public another opportunity to comment on the permit because of changes made in it before being issued.

The proposed permit allows the developer to eventually spray an average of 540,000 gallons of wastewater daily on grassy fields. It must be treated using enhanced nutrient removal to lower the levels of nitrogen and phosphorus. A lagoon is also required to store wastewater for up to 75 days during winter and when it’s raining or too windy to spray.

Neighboring residents and environmental groups questioned the MDE’s assurances that the nutrients and other contaminants in the wastewater would be soaked up by the grass in the fields. They fear it could seep or run off into nearby Miles Creek, a tributary of the Choptank River.

The MDE is taking comments until July 26. It also plans to hold a public hearing, but a date had not been set.

Written comments should be mailed to the Maryland Department of the Environment, Water and Science Administration, 1800 Washington Blvd., Baltimore, MD 21230-1708, Attn.: Mary Dela Onyemaechi, Chief, Groundwater Discharge Permits Division.

For more information and to check on the hearing, visit mde.maryland.gov/programs/Water/wwp/Pages/19DP3460.aspx.

By Timothy B. Wheeler

Chesapeake Bay’s ‘Dead Zone’ to be Smaller this Summer, Researchers Say

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The Chesapeake Bay’s “dead zone,” the oxygen-starved blob of water that waxes and wanes each summer, is forecast to be smaller than average for a second consecutive year.

A consortium of research institutions announced June 23 that it expects the volume of this year’s dead zone to be 14% lower than average. In 2020, the zone was smaller than 80% of those monitored since surveying began in 1985.

The size of the summer dead zone is driven largely by how much excess nutrients flow off lawns and agricultural fields into the Bay during the preceding January to May, researchers say. Those nutrients — nitrogen and phosphorus — fuel explosive algae growth, triggering a chemical reaction that robs the water of oxygen as it dies back. The area is dubbed a “dead zone” because of the lack of life found within it.

This year, those first five months were slightly drier than usual, causing river flows entering the Bay to be 13% below average. As a result, the Chesapeake received 19% less nitrogen pollution compared with the long-term average at monitoring stations along nine major tributaries.

Efforts to curb nutrient pollution in the Bay’s 64,000-square-mile watershed also appear to have played a role in shrinking this year’s dead zone, scientists say. The U.S. Environmental Protection Agency has joined with Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia and West Virginia to implement a “pollution diet” for the Bay and its tributaries by 2025.

“This year’s forecast suggests a smaller dead zone than is typical because the river flows that carry nutrients to the Bay were slightly lower than normal,” said Jeremy Testa, a researcher with the University of Maryland Center for Environmental Science. “But the amount of nutrients carried to the Bay by a given amount of flow has lessened over time due to effective nutrient management in the watershed. This is an example of a positive trajectory for the Bay.”

Oxygen is measured in the Bay throughout the year by the Chesapeake Monitoring Program, an effort involving several federal agencies, 10 academic institutions and more than 30 scientists. The dead zone forecast is produced by UMCES, the Chesapeake Bay Program, the University of Michigan and the U.S. Geological Survey.

The dead zone is typically biggest in summer, when temperatures are their hottest and oxygen is at its lowest.

Water is considered “dead” to marine life when the concentration of dissolved oxygen falls below 2 milligrams per liter. The average Chesapeake dead zone measures between 0.7 and 1.5 cubic square miles of water, the equivalent of 280,000–600,000 Olympic-size swimming pools’ worth of water, according to the Virginia Institute of Marine Science.

This year’s dead zone began forming earlier than normal because of warming temperatures in May, according to real-time estimates produced by VIMS and Anchor QEA.

Beth McGee, director of science and agriculture policy with the Chesapeake Bay Foundation, said the smaller area of low or no oxygen is good news for crabs, fish and other creatures that dwell in the Bay. But it shouldn’t obscure the fact that the states and federal partners are struggling to meet the pollution-reduction targets they set for 2025, she added.

Noting that 40% of the nitrogen that causes dead zones can be traced to Pennsylvania, McGee said: “The U.S. Department of Agriculture must provide more funding for conservation and technical assistance, and the Pennsylvania legislature should establish a state agricultural cost-share program. At the same time, EPA must hold the states, especially Pennsylvania, accountable to meet pollution-reduction requirements from all sources. Without those federal efforts, the Chesapeake Clean Water Blueprint will be yet another in the history of failed Bay restoration efforts.”

By Jeremy Cox

New Md. Hearing Planned for Discharge Permit for Lakeside Project in Trappe; Petition Asks County to Revoke Sewer Plan Approval

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As supporters and opponents of the Lakeside development in Trappe await a new state hearing on the project’s wastewater discharge permit, Talbot County is being asked to revoke its approval of changes to the county sewer plan related to the project.

Petition 21-01 would rescind Resolution 281, which primarily amended the county water and sewer plan to:

• reclassify and remap certain areas of the Lakeside property from W-2 to W-1 and from S-2 to S-1. W-1 is immediate priority status for water; S-1 is immediate priority status for sewer and

• add the Trappe East water and sewer systems to the list of capital improvement projects.

The petition notes that the discharge permit for the wastewater treatment plant that will serve Lakeside has been sent back to the state environment department for additional public comment and a public hearing.

The proposed resolution included with the petition would not allow the county to consider any changes to its water and sewer plan related to the Lakeside project until after the state issues a final discharge permit, the final permit’s terms and conditions have been reviewed by the county planning commission and public works advisory board, and ShoreRivers’ case regarding the permit has been “fully resolved.”

ShoreRivers Inc. had sought judicial review of the final discharge permit issued by the Maryland Department of the Environment for the Lakeside project. The environmental group asked the court to send the permit back to MDE for additional public comment and hearing. (The Chesapeake Bay Foundation had filed a separate case also seeking judicial review of the permit.)

In seeking a remand to MDE, ShoreRivers said the final permit issued by the state differed substantially from the draft permit that had been the subject of public comment and a public hearing. The group also said the nutrient management plan for the project also had not been available for review and comment.

Lawyers for the property owner and the town had agreed with the request to send the issue back to MDE and Talbot’s circuit court judge entered an order April 27 remanding the permit to MDE for “… a public comment period of not less than 30 days and a public hearing to hear comments on, and any objections to, the nutrient management plan and the final terms and conditions of the (p)ermit….”

An MDE spokesman said Friday that the department has not yet finalized the opening date for the public comment period and has not scheduled the public hearing.

The petition notes the arguments in the ShoreRivers case, suggesting that the council’s approval of Resolution 281 relied on recommendations from the county planning commission and the public works advisory board that were based on a review of the draft permit.

A lawyer for Lakeside’s owner, Trappe East Holdings Business Trust, said it “strongly disagrees” with the premise of Petition 21-01.

“The County Public Works Advisory Board, Planning Commission and County Council reviewed complete information regarding the pending resolution and further considered the resolution after the County Council introduced Amendment No. 1,” attorney Ryan Showalter said in a statement. “One of the principal reasons the applicants initiated the Resolution 281 amendment was to update the provisions of the County Comprehensive Water and Sewerage Plan to provide for current, state-of-the-art ENR wastewater treatment technology, rather than the BNR specification that has been in the County Plan since 2002.

“Contrary to TEHBT’s intention, the draft MDE discharge permit was written for BNR-level treatment, not the ENR treatment the developer intends to utilize,” he said. “If there was any inconsistency between MDE’s discharge permit actions and Resolution 281, it was the draft discharge permit, not the final permit, that was inconsistent.”

“The wastewater plans for Lakeside remain entirely consistent with Resolution 281, as adopted,” Showalter said.

The Talbot County Council discussed the petition during its May 11 meeting, with Vice President Pete Lesher seeking clarification on the process. Lesher was the only council member to vote against Resolution 281, which was approved 4-1 on Aug. 20, 2020.

Acting County Attorney Patrick Thomas said the council’s rules of procedure, Section VI, B, say that “once a petition has been presented to the secretary, it shall be certified, presented to the Council and numbered, and the secretary shall maintain a file on the petition.

“Pursuant to section nine of the rules, the secretary shall read the petition by name and title, as she has. And then at that point, the Council may, but is not required, to consider the petition and take any appropriate action,” he said.

Thomas said the petition was asking the council “to adopt a resolution rescinding Resolution Number 281 without prejudice. And under the Council’s rules of procedures, in order to initiate legislation, a member of the council would need to direct the county attorney to prepare” the legislation.

Councilman Corey Pack expressed concern about rescinding Resolution 281, suggesting that doing so could open the entire Lakeside property to immediate development.

“I think we worked very diligently with both the Trappe Planning Commission and the developer to come to a consensus on how the parcel will be built out. And 281 did that,” he said. “It split it up so that one-half will be developed in S-1 and the back half in S-2.

“Removing 281 and opening up that entire parcel up to S-1 development zoning is something that I dread,” Pack said. “I do not think that is advantageous to do that.”

During the process of reviewing Resolution 281 in 2020, the planning commission was told by County Engineer Ray Clarke that the Maryland Department of the Environment considered the entire Lakeside parcel suitable for S-1 designation. The parcel was given the W-2, S-2 designation in 2002, meaning it was suitable for development in three to five years.

Clarke also said during the 2020 review that while MDE put water and sewer plans in the county’s hands, the state agency has final approval. Even if the county had rejected Resolution 281, the town of Trappe could have gone directly to MDE and asked for its approval of the W-1, S-1 designations.

Thomas, in response to a question from Lesher, said a council member could tell him to prepare a resolution based on the petition or the council could gather additional information first.

Councilwoman Laura Price said additional information was needed.

“I think it makes sense for us to gather our own information and make sure that everything is fact based,” she said. “And I think we also understand that this is remanded back to MDE to look at this permit again. So I think it would make sense to wait and see what happens with that and meanwhile gather our own information and we’ll go from there.”

In public comments, Dan Watson, who initiated the petition, said it had been signed by more than 60 people, along with the Talbot Preservation Alliance, as of mid-afternoon May 11.

Watson said he had asked to present the petition to the council, in addition to the secretary’s reading of the short title, but that request was ignored.

While the petition involves the Lakeside project, Watson said “I’m not here to try to stop it, but to see things go right. This petition is about protecting the integrity of Talbot County and its review processes.

“So the purpose is to introduce the resolution so that, in Ms. Price’s words, we can get the information and look into it,” he said. “It isn’t the case that one gets information and looks into it and analyzes it and talks with the planning commission and hears from the public and the public works advisory board in order to determine whether or not to introduce a resolution. It is a resolution is introduced and sets in motion that process.”

In a subsequent letter, Watson said the county council had mishandled the petition by not allowing him to present it.

The council’s rules of procedure (at Section XIII, C) say “When petitions are made to the Council, the persons or parties presenting same shall have the opportunity to state their case by presenting witnesses, exhibits, and other evidence.”

“I am sure the Council will not argue that accepting an unannounced, time-limited phone call from me an hour later, during the public comment period of the meeting, fulfills that requirement,” Watson said in his May 21 letter.

He also suggested that “proper submission of a Petition in and of itself initiates a regular legislative action, and does not require the more familiar step of a Council Member introducing the proposal ….”

But the council’s rules of procedure do not seem to suggest that. Even if the rules did, the state constitution does not allow citizens to initiate legislation.

Section 216 of the Talbot County Charter would have allowed voters to put proposed legislation on the ballot via direct initiative, but the state’s highest court ruled that section unconstitutional in a 1988 case. The Maryland Court of Appeals has repeatedly ruled that voters may not initiate local legislation, including legislation disguised as charter amendments.

New Hearing Ordered on Lakeside Wastewater Discharge Permit

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Those worried about the potential for water pollution from a massive residential and commercial development planned in Trappe will get another chance to voice their concerns.

A Talbot County Circuit Court judge has ordered the Maryland Department of the Environment to hold another hearing and give the public another opportunity to comment on sewage discharge plans for Lakeside, a proposed community of 2,501 homes and apartments plus a shopping center, in the small town of Trappe.

The April 27 ruling by Judge Stephen Kehoe came in a case filed by ShoreRivers, which had appealed the groundwater discharge permit the MDE had issued to Lakeside’s developer, Trappe East Holdings Business Trust. Development plans called for discharging treated wastewater by spraying it on fields of orchard grass in a corner of the 860-acre tract near the headwaters of Miles Creek, a tributary of the Choptank River.

Lawyers for the developer and the town of Trappe had filed a joint consent to ShoreRivers request that the permit be sent back to the MDE for further review.

State regulators originally granted the project a wastewater discharge permit in 2005, around the time Trappe voters approved annexing the undeveloped land into town limits. Development plans stalled after that, but the MDE tentatively approved a new permit in 2019 and finalized it in December 2020.

ShoreRivers contended that the final permit was different in key respects from the version MDE asked the public to comment on in 2019. The final permit was based on a nutrient management plan that spells out the terms and limitations of the treated wastewater spraying — but that plan was submitted after the public comment period had ended, and the MDE refused ShoreRivers’ requests to reopen the case.

“The nutrient management plan is a core component of the permit,” said Matt Pluta, the Choptank Riverkeeper. “Whether or not the details in [the plan] are adequate in protecting water quality warranted a review from the public.”

The final permit required the developer’s proposed sewage treatment plant to use enhanced nutrient removal, significantly lowering the levels of nitrogen and phosphorus in the wastewater before spraying it on up to 88 acres of grassy fields. The developer also was directed to build a lagoon to store wastewater for up to 75 days during winter and other times of the year when it’s raining or too windy to spray.

Pluta conceded that those changes could reduce chances of degrading nearby waterways. But he and others still question whether the system would prevent pollution from getting into the creek or the Choptank, both of which are already impaired by nutrients.

MDE spokesman Jay Apperson said the state regulatory agency will comply with the court order. But he added that the MDE “has not yet determined when the public comment period will open, and we have not yet scheduled a public hearing.”

The ruling put on hold a separate lawsuit filed by the Chesapeake Bay Foundation challenging the MDE’s approval of the Lakeside discharge permit. CBF spokesman AJ Metcalf said the environmental group would pause its litigation while new comments are taken on the permit.

“We welcome this additional opportunity for the public to weigh in on the nutrient management plan associated with this project’s discharge permit, as well as another chance to comment on the terms and conditions of the permit,” said Alan Girard, CBF’s Eastern Shore director.

Lawyers for the developer of Lakeside and for the town of Trappe did not respond to emails seeking comment.

By Timothy B. Wheeler