From: Julian Grauer, Senior Reviewer 

Subject: Comments: EPA Region 3 Consent Agreement and Final Order with the City Annapolis. To: Regional Hearing Clerk (3RC00) U.S. EPA, Mid-Atlantic Region 1650 Arch Street Philadelphia, PA 19103-20

The $10, 800 civil penalty proposed in this Consent Agreement is too low given the protracted negotiation concerning the respondent’s stormwater discharge (NPDES MS4) permit.

The stormwater permit expired April 14, 2008, was administratively extended and required approximately ten years to reach settlement on the outstanding issues. According to Page 2 Section 2, the maximum penalty that could have been assessed under the Clean Water Act and related regulations is $257,848. Pages 3 and 4, Sections 20 through 28 state that on November 27, 2013 a compliance team identified several alleged violations including the failure to identify non-stormwater discharges. Additionally, discharges of vehicle wash water were observed from an Annapolis Department of Transportation facility. To summarize these sections, the City of Annapolis allegedly failed to monitor prohibited discharges and was itself an alleged, illicit non-stormwater discharger. This issue appears to have required five years to resolve. The strategy of applying relatively small fines does not seem to effective inducement for compliance with the stormwater permit (MS4) minimum controls. Some counties might conclude that paying one thousand dollars a year for ten years is a better option than conforming with the stormwater permit standards.

Furthermore, it is not clear how the decision to administratively extend the stormwater permit application during the ten years of negotiations was an effective strategy. Page 5, Section 39 states that in addition to the cash penalty, the City of Annapolis agrees to perform a Supplemental Environmental Project The first page of Attachment A explains that the Supplemental Environmental Project (SEP) involves the installation of a 785 gallon stormwater retention area and the planting two (2), three-inch (3) diameter Acer rubrum (red maple) trees.

The project proposed in Attachment A is a positive and creative component of the settlement and is in some ways is preferable to a civil penalty since those who live in Annapolis will receive the direct benefits. Unfortunately, the scale of the project is so small that it will have little impact on the environment. Page 1 of Attachment A states that the the stormwater retention area can absorb the first 0.1 of rain from an area of 1,048 square feet. The offset of impervious surface area, however, is even likely to be smaller than this. The 1,048 square foot estimate is unrealistic in the sense that 0.1 inches rain per hour is classified as light rain according the American Meteorological Society. The average moderate rain fall is set at 0.20 inches of rain per hour which means the storm water retention system drains an area of only 524 square feet which is equivalent in size to the roof of one small town house. Although the Supplemental Environmental Project (SEP) cannot have an important practical impact on storm water runoff or shade, the first page of Attachment A is careful to explain that the SEP is extended as “a green infrastructure demonstration project with multiple goals” Missing from the proposed project, however, is a specific follow up plan for the expansion and future direction. If activities concerning storm water runoff stop after the SEP is completed, then the project will amount to nothing more than planting two trees that provide 1,400 square feet of shade at maturity and installing a drainage system that can absorb the runoff from 524 square feet of impervious surface for one hour during a moderate rain storm.

In in the absence of continuation plans the $52,274 budgeted for the SEP should be applied to public awareness campaigns and education concerning the Annapolis watershed. Those who live in Annapolis are the primary stake holders and they should have the information necessary to make good decisions about storm water management initiatives and, more generally, decisions regarding the balance between development and conversation.

There are three details in Attachments that require clarification. A line item in estimated cost break down on page 2 of Attachment A states “Silva cell installation and tree planting, including soils and gravel $24,000.” Does this include the cost of the Silva cells and trees? If it does, then these items should be broken out on another line to show their costs. If this line item does not contain the cost of the trees and Silva cells, where are these costs listed?

The last page of the Attachment C is a site plan for 122 Main Street that shows the proposed location of the two trees that are to be planted. There is note at one of the tree locations that states, “Existing tree to remain”. Does this mean only one new tree is to be planted? The Attachments A2 and A3 are not labeled and all three attachments, A1, A2 and A3 lack page numbers. For convenience of the readers, they should be labeled and numbered.