The 442nd session of the Maryland legislature adjourned on April 12, 2021.

There were no balloons dropped from the balconies at sine die, ostensibly because of Covid-19 social distancing there were no high school pages to drop celebratory balloons from the balconies, but it is worthy of note that this year the legislature passed House Bill 391 making illegal intentionally releasing balloons (see below)?

During the 90 day General Assembly session, 47 senators and 141 delegates considered 2,347 bills and passed 817. Only 42 bills of those passed involve environmental matters. The Governor has until the 30th day after presentment to sign or veto bills.

This post is a compilation of the environmental legislation enacted this session.

Time and space do not allow a recitation of the bills that failed, but many did not pass in a session that was widely heralded as successful, including a much discussed Senate bill that would have made broad changes to Maryland’s approach to reducing statewide GHG emissions and addressing climate change that was not well received in the House.

Maryland has been described as having more pages of environmental statutes and regulations on a per capita basis than any other state. The new laws compiled below add to that already very green environmental regulatory scheme. Savvy players in the environmental industrial complex and associated industries will find business opportunities to lead and profit in environmental matters, including opportunities advantaged by these newly enacted laws.

Trees

The Maryland Attorney General recently issued an opinion concluding that the placement of a protective easement on an already existing forest, as opposed to intentionally created or restored forest, does not qualify for forest mitigation banking. House Bill 991 responds modifying the definition of “forest mitigation banking” to be the intentional restoration, creation, or qualified conservation of forests undertaken expressly for the purpose of providing credits for afforestation or reforestation requirements with enhanced environmental benefits from future activities. “Qualified conservation” is defined as the conservation of all or a part of an existing forest that was approved on or before December 31, 2020, by the appropriate State or local forest conservation program for the purpose of establishing a forest mitigation bank and is encumbered in perpetuity by a restrictive easement, covenant, or another similar mechanism recorded in the county land records to conserve its character as a forest. As such, the bill retroactively allows qualified conservation that was completed in a forest mitigation bank on or before December 31, 2020, to be used, under both State and local forest conservation programs. However, the bill limits the afforestation or reforestation credit that may be granted for the use of qualified conservation to no more that 50% of the forest area encumbered in perpetuity.

The bill, that may be the single most significant enactment of the session, also establishes a new policy of the State to support and encourage public and private tree planting, with the goal of planting and helping to maintain 5,000,000 sustainable native trees in Maryland by the end of 2031. The bill provides that it is the intent of the General Assembly that at least 500,000 of those trees be planted in underserved areas. The Governor must formally pledge the State’s commitment to achieving the bill’s tree planting goals through the World Economic Forum’s One Trillion Trees Initiative.

To help achieve these goals, the bill alters and directs additional resources to a number of existing programs and initiatives, including by way of example, in fiscal 2023, $2.5 million must be transferred from the Wastewater Account of the Bay Restoration Fund to the Chesapeake and Atlantic Coastal Bays 2010 Trust Fund for tree plantings on public and private land, and for fiscal 2024 through 2031, the Governor must include an annual appropriation of $2.5 million in the State budget for tree plantings on public and private land. The bill also establishes a $10 million annual Urban Trees Program, administered by the Chesapeake Bay Trust, for the purpose of making grants to qualified organizations for native tree-planting projects in underserved urban areas. Additionally, the bill establishes a Commission for the Innovation and Advancement of Carbon Markets and Sustainable Tree Plantings charged with developing a plan to achieve the State’s carbon mitigation goals.

Reduction of Greenhouse Gas Emissions, Climate Change, and Tree Planting

Senate Bill 359/ House Bill 80 require the Maryland Department of Transportation to develop an urban tree program to replace trees that are removed during the construction of a transportation facility project, including the area impacted by the Purple Line project.

House Bill 30 requires the Office of the People’s Counsel, in determining whether the interests of residential and noncommercial users are affected by each matter before the Public Service Commission, to consider the public safety, economic welfare, and environmental interests of the State and its residents, including the State’s progress in meeting its greenhouse gas emissions reduction goals. Under the bill, Office is also required to hire at least one assistant people’s counsel to focus on environmental issues, and the amount that Office may assess for its costs and expenses is increased. Finally, the bill adds the People’s Counsel as a member of the Maryland Commission on Climate Change and the Maryland Zero Emission Electric Vehicle Infrastructure Council.

Prohibition on Balloon Releases

Senate Bill 716/ House Bill 391 prohibit, with very limited exception, a person from knowingly and intentionally releasing, or causing to be released, a balloon into the atmosphere or organizing or participating in a “mass balloon release,” as defined. The bills establish a civil penalty of up to $100 per violation for organizing or participating in a mass balloon release. A person who violates the prohibition against knowingly and intentionally releasing, or causing to be released, a balloon into the atmosphere must watch a re-educational video and/or perform community service. Generally, the Maryland Department of the Environment must enforce the prohibitions, but MDE is authorized to delegate enforcement authority to specified local authorities.

Environmental Standing and Environmental Justice

Senate Bill 334/ House Bill 76 establish that a person who meets the threshold standing requirements under the federal Clean Water Act has an unconditional right and the authority to intervene in a civil action initiated by the State in State court to require compliance with certain water pollution control measures. A person exercising this right to intervene must act in accordance with applicable practices, procedures, and laws in the State. A person who meets the requirements to intervene under the bills has the same rights as an interested person or aggrieved party under CWA, including the right to apply for judicial appeal.

Senate Bill 674/ House Bill 1207 make several changes to the Commission on Environmental Justice and Sustainable Communities, which was established by executive order in 2001 and codified in 2003. The Commission is tasked with examining issues of “environmental justice” and sustainable communities for all Marylanders. These bills alter the composition of the commission and all new members must go through a MDE re-education on environmental social justice, and requires the Commission to hold at least four “community listening sessions” a year.

Carbon Reduction

House Bill 70 requires the Department of Housing and Community Development to give preference to applications for funding for a net-zero home from the Energy Efficient Homes Construction Fund that will use the services of small and minority, women, and veteran-owned businesses in the State in the clean energy industry.

House Bill 784 requires a builder (or a builder’s agent) of new housing units to provide each buyer or prospective buyer with the option to include in or on the garage, carport, or driveway either an “electric vehicle charging station” capable of providing at least “Level 2 charging” or a dedicated electric line of sufficient voltage to support the later addition of such a charging station. The builder (or the builder’s agent) must provide notice of these options and other specified information to each buyer or prospective buyer. The bill applies prospectively to new construction for which a building permit is issued on or after October 1, 2021.

House Bill 44 reestablishes through fiscal 2023 the Electric Vehicle Recharging Equipment Rebate Program and increases to $1.8 million the maximum amount of rebates (up to $3,000 per vehicle for plug in electric vehicles) the Maryland Energy Administration may award in each year. The bill also requires the transfer of the lesser of $10 million or the actual total outstanding amount of qualified plug in electric vehicle and fuel cell electric vehicle tax credits applied for prior to July 1, 2020, from the Strategic Energy Investment Fund to the Transportation Trust Fund.

Drinking Water

House Bill 1069 requires an owner of a residential rental property that is served by a private water supply well to provide the results of the most recent water quality test when a tenant signs a lease and then for water quality testing every three years and disclose the results to current and prospective tenants. When a water quality test reveals that a private water supply well is contaminated, the owner must notify MDE and the local health department and address the contamination. There are civil penalties for a person who violates the bill’s provisions.

Senate Bill 546/ House Bill 636 redefine “elevated level of lead” from the level established by legislation last year, to mean the required lead water testing of drinking water outlets and remedial measures in public and nonpublic schools and make conforming changes to existing notice and remediation requirements. If a water test sample for a drinking water outlet was analyzed on or before June 1, 2021, and the analysis indicated a concentration of lead that was more than 5 ppb but less than 20 ppb, a school must take appropriate remedial measures by August 1, 2022.

Enforcement

Senate Bill 324/ House Bill 204 establish various tracking and reporting requirements for MDE and the Department of Natural Resources concerning the enforcement of environmental and natural resources laws. The bills require MDE to keep an electronic record of certain complaints for 10 years and require DNR to report, on or before September 30 each year, to the Governor and the General Assembly certain information relating to the enforcement.

Bay Restoration Fund and ..

Senate Bill 701/ House Bill 878 authorize counties to borrow money and incur indebtedness through the issuance and sale of notes in anticipation of the receipt of the county’s allocation of funds from the Septics Account within Bay Restoration Fund, the primary purpose of which fund is to support upgrades to Maryland’s 67 major publicly owned wastewater treatment plants with enhanced nutrient removal technology.

Senate Bill 119/ House Bill 507 reauthorize and modify the Clean Water Commerce Act (currently scheduled to sunset on June 30, 2021) through June 30, 2030 and require MDE to transfer $20.0 million annually from the Wastewater Account to the Clean Water Commerce Account, a new account established to purchase “environmental outcomes” to help the State achieve the Chesapeake Bay Total Maximum Daily Load (TMDL).

House Bill 94 expands the authorized uses of the guarantee authority under the Water Quality Revolving Loan Fund, originally created in 1993 to provide below market rate loans for drinking water projects by repealing a restriction that the Fund be used only to guarantee, or purchase insurance for, bonds, notes, or other evidences of obligation issued by a local government for the purpose of financing all or a portion of the cost of a wastewater facility, if such action would improve credit market access or reduce interest rates.

Senate Bill 349 makes changes to the statute governing the Drinking Water Revolving Loan Fund to conform State law to federal law. The Act increases the maximum term limit for loans made from the Fund and increases the maximum amount of loan subsidies that can be issued to disadvantaged communities.

Septic Systems

Senate Bill 22/ House Bill 407 repeal certain requirements related to the certification of those engaged in the business of property transfer inspections for septic systems and instead require that by July 1, 2022, any person (unless exempted) who engages in the business of inspecting a septic system must obtain an on-site wastewater property transfer inspection license issued by MDE. By January 1, 2022, MDE must adopt regulations that establish license eligibility criteria, minimum training standards, license terms, and fees for license applications and renewals.

Stormwater Management

Senate Bill 227/ House Bill 295 require MDE to update the stormwater management regulations issued in 1982 to reduce the adverse effects of flooding, but today an entire regulatory scheme of environmental regulation on their own,  and criteria once every five years to incorporate the most recent “precipitation data,” defined in the bills as historical data that describes the relationship between precipitation intensity, duration, and return period. Among other things, in updating the regulations, MDE must conduct specified public outreach.

Wetlands Permits and Licenses

Senate Bill 442/ House Bill 799 require the Aquaculture Coordinating Council, in consultation with MDE, to review MDE policies regarding the application of State or tidal wetlands license and permit requirements to aquaculture operations in the State and in addition to its existing annual reporting requirement, report to the Governor and General Assembly its findings and recommendations, including any proposed legislation, on changes necessary to eliminate conflicts or redundancies in the oversight of aquaculture operations by MDE and DNR.

Oil

Senate Bill 661 extends the 8.0 cents per barrel fee assessed on oil transferred into the State until July 1, 2024; beginning July 1, 2024, the fee is 5.0 cents per barrel. Until July 1, 2024, 7.75 cents of the per barrel fee are credited to the Oil Disaster Containment, Clean-up and Contingency Fund and 0.25 cents are credited to the Oil Contaminated Site Environmental Cleanup Fund Reimbursement Fund. The bill also authorizes residential owners of heating oil tanks to apply for assistance from the Reimbursement Fund through June 30, 2024.

Solid Waste Management and Recycling

Senate Bill 116/ House Bill 164 require MDE’s Office of Recycling to promote the development of markets for recycled materials and recycled products in the State.

Maryland Environmental Service

House Bill 2 l makes overarching changes to the governance and administration of the Maryland Environmental Service (MES).

Facility and Product Specific Processing Bans and Restrictions

Senate Bill 483/ House Bill 264 require generators of large quantities of “food residuals” to separate the food residuals from other solid waste and ensure that the food residuals are diverted from final disposal in a refuse disposal system. The food residual diversion requirements only apply to a person who meets specified threshold amounts of food residuals generated and generates the food residuals at a location that is within a 30-mile radius of an organics recycling facility that has the capacity to, and is willing to, accept and process all of the person’s food residuals for recycling, and is willing to enter into a contract to accept and process the person’s food residuals. The diversion requirements apply beginning January 1, 2023, for a person who generates at least two tons of food residuals each week and beginning January 1, 2024, for a person who generates at least one ton of food residuals each week. Affected generators may apply to MDE for a waiver. A violator is subject to civil penalties.

House Bill 280 alters the definition of “recyclable materials” for the purposes of Maryland Recycling Act to exclude incinerator ash. The bill also repeals a county’s authority to use one or more resource recovery facilities (that were in operation as of January 1, 1988) to achieve a 5% reduction in its solid waste stream for the purposes of meeting required solid waste reductions and mandatory recycling rates under State law.

Maryland Agricultural Water Quality Cost-Share Program

Senate Bill 344 increases the amount of State funding for Maryland Agricultural Water Quality Cost-Share Program projects that are being considered for State cost sharing are eligible to receive under MACS from 87.5% to 100%. The Act terminates June 30, 2026.

Neonicotinoids

Senate Bill 375/ House Bill 208 establish that a neonicotinoid pesticide may only be sold at retail to a “certified applicator,” as currently defined, or a farmer. The bill also requires a retailer to store neonicotinoid pesticides in a manner that is inaccessible to customers without assistance.

Invasive and Nuisance Plant Species

House Bill 92 prohibits State funds from being used to purchase or plant an invasive plant species for an outdoor project, which appears a relaxation of existing regulation that also prohibited non-native plants, but did allow adapted species? The bill provides an exception if the plant is commonly used for agricultural or horticultural purposes and is maintained for education or research.

Cars, Trains and Buses

Senate Bill 137 prohibits, beginning in 2023, the Maryland Transit Administration from purchasing buses for the Administration’s State transit bus fleet that are not zero-emission buses, subject to a certain exception; authorizing the Administration to purchase alternative-fuel buses under certain circumstances.

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The General Assembly will reconvene on January 12, 2022.

Thank you to the Maryland Department of Legislative Services for the information provided above.