On July 1st, I sent to the Talbot County Planning Commission a letter laying out in detail three compelling reasons Talbot County should reconsider the green light given last August to the 2,501-unit Lakeside project. The County Council was copied. The next day, the Acting County Attorney sent an email instructing the Planning Commission (and the Public Works Advisory Board) to not discuss the substance of that letter in their meetings, ironically using as an excuse a lawsuit I had to file--not on substance, but solely concerning the Council’s violation of their own procedures. Seems I need a court order to get the Council to permit me to present them with information. Go figure.)
It appears the council does not want anyone to read that July 1st letter, no doubt because they recognize the significance of the problems and the possibility that attention will result in a re-examination and perhaps delay of the Lakeside project. While The Star Democrat is unable to print the footnoted letter in full because of its length and great detail, it will published it in full on-line, accessible at StarDem.com.
In summary, the three reasons Resolution 281 must be rescinded pending reexamination of Lakeside are:
First, we must assure the basic integrity of the County’s land review processes. The notion that any applicant before the Talbot County Planning Commission and Council can obtain an essential approval by presenting plans and specifications, and then, after approval is granted, simply change those plans in material ways with impunity—without approval or even notice to the county--cannot be right and proper. If Talbot County simply ignores the fact that the developer made significant changes to the plans and discharge permit for the wastewater system in this enormous, high-profile project, where the Applicant is a municipality and a prominent, well-connected engineer--what is the public to think? Does this policy apply to every applicant on every project? This would fundamentally jeopardize the integrity of Talbot County’s future land use planning.
Second, the specific changes made to the wastewater plant, and the changed requirements to the permit for spraying sometimes a million gallons per day of effluent onto crops, may well endanger public health, water quality, sensitive areas, and the environment in general. The letter details some of those problems and risks. And the point is that until the plans and permit are both finalized through a new review by Maryland Department of the Environment (recently ordered by the Circuit Court), no one know can know whether or not those changes pose a significant threat, as ShoreRivers and others claim.
Third, is the newly discovered fact that critical information concerning existing and continuing failure of the existing Trappe wastewater treatment plant were not revealed to the County Council, to the Planning Commission, to the Public Works Advisory Board, and to the public during the time that Resolution 281 was being reviewed—notwithstanding the fact the Town of Trappe itself who owns and operates that plant (and so knew the truth) was the Applicant. Authoritative data from EPA demonstrating these continuing failures is summarized in the chart online with this submission. The letter details ways in which I believe the county was misled through omissions and apparently intentional obfuscation.
Those with time and interest who want to understand this better should consider a review of the material on-line. And to support or join in the still active Petition 21-01 seeking rescission without prejudice of Resolution 281, just send a brief email to that effect to firstname.lastname@example.org.
Copy of letter
July 1, 2021
Mr. Phillip Councell, President
Commissioner William Boicourt
Commissioner Paul Spies
Commissioner Lisa Ghezzi
Commissioner Michael Strannahan
Talbot County Planning Commission,
11 N. Washington St.
Easton, MD 21601
Re: Petition 21-01
Dear President Councell and Commissioners:
In early May, pursuant to the Council’s Rules of Procedure, I petitioned the Talbot County Council to rescind “without prejudice” Resolution 281 which the Council had adopted last August. I am writing to explain to the Planning Commission why this unusual step is necessary. There are at least three reasons. First and most importantly, the County needs to protect from abuse the integrity of its land use review process, which important function is entrusted to your Commission. Secondly, substantial plan and permit changes were made to the proposed waste water treatment and spray discharge systems after adoption of Resolution 281. These raise serious questions as to whether the reclassification of any portion of Lakeside could still be consistent with the Comprehensive Plan. Finally, it has come to light that important information central to the determination of consistency was withheld from the Planning Commission—namely, that the existing Trappe wastewater plant to which the initial Phase of Lakeside will be connected apparently was in violation throughout the time of your deliberations. (It has been in serious violation every month of this year as well, evidence of systemic failure.)
As to Petition 21-01, approximately 170 other citizens from every part of Talbot County, as well as the Talbot Preservation Alliance representing its large constituency, have written the Council in support of, or to join in, the request to rescind Resolution 281. Many people on that roster live far from Trappe and it includes a number of prominent citizens I know you respect. I believe this outpouring reflects not merely concern about Lakeside and its impact on the County, but wide apprehension about apparent duplicity involving adoption of Resolution 281 and its aftermath.
This unusual request for recission is underscored by a key fact that can hardly be over-emphasized: the Lakeside subdivision launched by adoption of Resolution 281 is by far the biggest, most impactful single project ever undertaken in Talbot County. As you yourselves said:
• “It will change the face of the County.”
• “The impact of this big of a development is going to be…on the County as a whole.”
• “The impact of this on the County is going to be huge over the next 30 to 50 years.”
• ASSURE THAT TALBOT’S LAND USE REVIEW PROCESS HAS INTEGRITY:
The notion that any applicant before the Talbot County Planning Commission can obtain an essential approval by presenting plans and specifications for anything of importance for detailed review, and then, after approval is granted, simply change those plans in material ways with impunity—without approval or even notice to the County--cannot be right and proper. This is the simplest of ideas, and should speak for itself. All else aside, this is reason enough for rescission.
Immediately, it will be claimed that plans, per se, are not that important here: the Commission was “merely” determining whether a change in the priority status of certain land, as to sewer service, is consistent with our Comp Plan, applying the “seven factors.” This was not a Major Site Plan review for example, where an applicant is expressly required to present a specific set of plans detailing particular facts which, if approved, then become part of the applicant’s obligations and cannot be varied thereafter.
In this case, Commissioners were entrusted by the community to determine if the change in land classification status--requested jointly by the developer and the Town of Trappe, working together, to build a wastewater treatment system to support the biggest project ever considered in Talbot County—is consistent with our Comp Plan. The crux of all deliberations was “Factor #6,” Land Use, which encompasses the protection of public health, water quality, sensitive areas, and the environment more generally. Without ample information, no Commissioner could know whether or not any waste water treatment system would protect or would damage the County, and therefore a detailed review of plans for construction and operation was proper and indeed essential.
The Applicant presented to the Public Works Advisory Board (“PWAB”), to the Planning Commission, to the public, and to the County Council for review its application to Maryland Department of Environment (“MDE”) and the resulting Draft Permit, with the representation, express or implied, that in all material respects that is what would be built...except to the extent that the applicant specifically modified that information orally. (One significant oral caveat was that that MDE will apply Enhanced Nutrient Removal (“ENR”) standards, and this did appear in MDE’s Final Permit. While important, this in no way addresses every issue nor creates carte blanche for the Applicant, on its own, to change any and all parameters that were the basis for the County’s go-ahead.)
In fact, unknown to the County, significant changes were made to the plans and Final Permit. If Talbot County simply ignores that fact--in this enormous, high-profile project, where the Applicant is a municipality and a prominent, well-connected engineer--what is the public to think? Surely this policy applies to every applicant on every project, and arguably not just as to findings of consistency. This is unsupportable and would jeopardize the integrity of Talbot County’s future land use planning.
• PROPOSED CHANGES RISK DAMAGE TO PUBLIC HEALTH, WATER QUALITY, AND SENSITIVE AREAS, AND THEREFORE MAY NOT BE CONSISTENT WITH OUR COMP PLAN:
Deep in the Planning Commission’s final meeting on Resolution 281, you, Mr. Councell, brought the matter of public health, and environmental protection to a head somewhat dramatically by asking the County Engineer this: “So, Ray, I refer to you as the expert…. the keeper of the gate. Are you comfortable with where MDE and the applicant are, in regards to…land use, protecting environmentally sensitive areas?” Mr. Clarke answered, “I mean, from my perspective, I think yes…” and immediately cited as the reason the developer’s plan for ample wastewater storage: “I just want to highlight…the question like 60-day storage. But in addition…they’re also looking at 14 inches of rainfall and they’re looking at three feet of freeboard. Technically, I did a real quick calculation; by that volume they actually have…245 days of storage.” On the video one Commissioner can be heard to respond, “Wow.”
In the Final Permit, all reference to “three feet of freeboard” vanished. And in its Court challenge to that permit, ShoreRivers noted that between the Draft and Final versions, the capacity of storage lagoons, including the reserve lagoon, was also reduced by fifteen day’s capacity. Tightly tied to the need for storage are two other subtle changes that sound innocuous but together have quite enormous significance: (a) the total flow of the system changed from 540,000 gallons per day monthly average, to 540,000 gallons a day annual average, and (b) the cap on spraying effluent which had been a firm 2 inches per week (equivalent to that 540,000-gallon flow) completely disappeared. The developer need only average no more than 2 inches of spray per week over the whole year! In addition, as ShoreRivers points out, “the hydrogeological evaluation provided to the Department reflected a maximum flow of 540,000 gallons per day through the spray irrigation system, not a monthly or annual average.”
ShoreRivers claims that “virtually every major element of the wastewater system’s design, as submitted and provided to Petitioner and the public, had changed…” between the Draft and Final MDE permits, citing examples. (None of this is related to the Nutrient Management Plan issue, a different point entirely.) The changes above do not exhaust the important variances between what you were told in the review and what is currently intended to be built. Only after the MDE’s review of new information to come in from public comment and a re-hearing will the facts be known.
I do not pretend to be an expert on these technical matters myself. But I am calling them to the Commission’s attention as they seem to be the basis for Judge Kehoe’s remand order and sound very serious. Serious enough to call into question whether the Commission’s certification of consistency was based on an accurate portrayal of what the developer is actually going to build at Lakeside. Given that this is the biggest, most impactful project ever undertaken in Talbot County, I am certain the Commissioners don’t want this critical infrastructure to fail. As Mr. Spies said, “When things are big, problems are big!”
• CRITICAL INFORMATION WAS WITHHELD FROM THE PLANNING COMMISSION AND COUNCIL:
The existing Trappe wastewater plant is important to Resolution 281 because the first 120 homes--or more--are slated to be connected to that plant, temporarily or permanently. Planning Commissioners discussed their worries about connecting any of Lakeside to the Trappe Plant not only because you knew its nutrient limits are out of date (BNR levels), but also because of a vague impression that the plant was not even meeting that low standard.
The EPA runs a website called “Enforcement and Compliance History Online (ECHO)” where it displays monthly data from mandatory discharge monitoring reports (“DMRs”) from Maryland’s wastewater treatment plants, including the existing Trappe plant. Here is data from that system.
The Trappe wastewater treatment plant has violated its permit discharge limits every month of 2021—by 244% in March—and almost surely was similarly failing to meet required limits during the entire period that Resolution 281 was being considered, and for a long time prior. When last inspected (Feb. 14, 2019), the Trappe plant was noted to be in “Significant Category 1 Non-Compliance.”
How is it that this information did not come to the Planning Commission’s attention—or the County Council’s—during consideration of Resolution 281, when the Town of Trappe itself who owns and operates it was Applicant? At your June 10, 2020 meeting, Commissioner Ghezzi asked the Talbot County engineer, in reference to connecting the first 120 houses to the Trappe plant, “Could the current treatment plant even handle this?”
After some meandering discussion, the then County Attorney said, “But is the system operating up to the MDE standards? I can’t answer that right now. They collect monitoring reports, I guess, each month that has the data for what sort of output the facility is doing. However, that is an existing facility that is approved by MDE…” Comissisoner Ghezzi’s question was never directly answered—even though the County Engineer (on whom the County relies to know about wastewater matters in our County) and the attorney for the Applicant who owns and operates the plant were also in the room. And later in the meeting, the County engineer interjected, “I would just note that at this point in time I’m not aware of [any] consent order that has been imposed on the existing wastewater treatment at the Town of Trappe.” True, but arguably misleading to an uninformed listener under the circumstances.
Note that the EPA’s ECHO website reveals that in twenty-seven of the thirty months from April 2018 thru November 2020—the very period when both the developer’s discharge application and Resolution 281 were being processed—ECHO shows MDE reported “ZERO” for nutrient levels in the Trappe effluent readings. That is of course impossible; it seems Trappe simply could have submitted no discharge monitoring reports to MDE. ECHO shows no nutrient discharge data for Trappe until November of 2020, four months after Resolution 281 was enacted. That the Trappe plant has been in “Significant Non-Compliance Violation” every month of 2021 surely means the serious problems at that plant are systemic and not easily rectified.
The record clearly indicates that, had the Planning Commission known that the Trappe plant was failing, or even that no monitoring reports seemed to have been submitted for many, many months in the face of other indicators of failure (e.g., inability to hook up 11 lots on Howell Point Rd), the already divided vote by the Planning Commission may very well have gone the other way. The omission of critical information by the Applicant who also owns and operates the wastewater plant in question (and the curious failure of County staff to know and report on the situation) is certainly a sound basis for recission of Resolution 281 while this information is sorted out.
For so long as Resolution 281 is not rescinded--during months while MDE holds a new public hearing and reconsiders the terms of a revised discharge permit for the new wastewater treatment plant--the Lakeside developer remains free to start construction. In fact, unless MDE intervenes, the two partners comprising Applicant (the developer and Trappe) can do anything they want regarding connections, notwithstanding that the plant is failing. This is why recission is urgent, as well as important.
• OTHER CONSIDERATIONS:
• Planning Commissioners themselves have the duty to judge all factors defining consistency.
Transcripts and video show that your evaluation of Resolution 281 turned on the struggle all Commissioners were having with Factor #6, “Land Use.” How would the developer’s wastewater treatment plans and discharge permit impact the County? Perhaps hoping to escape the burden of decision, at one point President Councell said, “We have to rely on the appropriate regulatory agencies…” And, expressly paraphrasing Commissioner Spies, “I have to assume…they know what they are doing. And “I have full faith….” Understandably, others perhaps were like-minded.
Planning Commissioners carry a heavy burden, and of course you know your duty to citizens to faithfully and actively exercise your own best judgement in making decisions large and small for the community’s future. There is no exception in the Planning Commission law to abdicate judgement about environmental and health matters to “others;” all factors of consistency are within the Commission’s purview. The Comp Plan review procedure does not say “Just assume that other authorities outside of the Commission will assure the protection of public health, water quality, sensitive areas and the environment, because there are agencies who have that responsibility.” It could, but doesn’t. So, the judgement is yours.
And this is where reality really kicks in. The actual experience in our own County provides little reason indeed to be confident that “others” can and will assure that the wastewater system and its effluent discharge will operate perfectly, or even well, and will not adversely affect our community. Consider three important local experiences:
• First, every aspect of the Trappe wastewater plant—the very plant to which Phase 1 of Lakeside is to connect-- has been overseen “by others,” including MDE and the Town of Trappe itself—and it has a very long history of failing to meet even its low and outdated nutrient limits.
• Second, it was MDE that approved the plans for the Preserve at Wye Mills plant which has never worked properly. For fifteen years that plant has been polluting the headwaters of the Wye River with serious levels of nutrient and fecal coliform pollution. MDE has never taken any effective action to cause the owner or operator to rectify that outrageous situation, and Talbot County has never once has acknowledged its own documented responsibilities to monitor its operations and compel adherence to operating requirements.
• Thirdly, were one to delve into history, the system at Martingham, which was under the regulatory oversight of MDE, had been failing for many years when the County, in effect, was forced to take it over.
In the face of these real-world experiences, is it really responsible for the Planning Commission to just embrace “faith in the system” to fulfill its duty to independently consider the issues at hand?
• There is no “Plan B”.
In decision making, it is always useful to ask, “What happens if we are wrong?” Just as at the Preserve at the Wye, if a subdivision is built using spray irrigation for the effluent and it just doesn’t work perfectly, the stuff just keeps getting sprayed anyway, while authorities try to figure something out over months or even years. (And that’s even after failure has been acknowledged; monitoring and proofing the operation of a spray irrigation operation is famously difficult….one of the reasons it is preferred by developers.) There is no easy solution. The same with the Lakeside wastewater system. The County must get this right, because once the system is built and families are living at Lakeside, the die is cast. Theory aside, Murphy’s law says nothing really works perfectly in the field.
And the “costs” to deal with inevitable problems are not just financial. Any failure means nutrient, and conceivably bacterial, pollution will be added to our already impaired local streams and rivers, much of which is in subsurface ground water that can take decades to arrive in our tributaries. These are the steep but uncounted non-financial costs still being borne every day by Talbot Countians from past problems at Martingham, Trappe, the Preserve at Wye Mills, and any wastewater operation that fails briefly or permanently.
• THE REMEDY: RESCIND RESOLUTION 281 “WITHOUT PREJUDICE”:
The Planning Commission has an important role to play in this unusual situation. It is important to assure the public (and future applicants) that the integrity of Talbot’s land use review process stands firm; to not permit an applicant to act with complete impunity in obtaining an approval on false pretenses, making significant changes afterwards to all that was the basis for obtaining that approval; and to hold an applicant to account (one of our own municipalities no less!) for withholding critically important information from the Planning Commission and Council to obtain an approval.
Recission “without prejudice” means that the Applicant can come right back in and get Resolution 281 re-adopted if the claims above are shown to be wrong. Perhaps the changes to the wastewater plans and Final permit are immaterial; perhaps the ECHO system simply missed monitoring reports that were being submitted all along; perhaps the Trappe plant was and is operating without violation, as President Pack announced on August 11th. If so, re-adopt Resolution 281, no harm, no foul. But Talbot County needs to get to the bottom of this, given the extraordinary significance of Lakeside and the possible egregiousness of the problems if they are real.
I urge the Commission to discuss these issues, and if you think appropriate, to ask the Council for an opportunity to hear from Applicant on Resolution 281 and from Petitioners requesting recission. On that basis you can form and offer up your recommendation on this very important matter. The citizens of Talbot want to know we are a County that operates by properly, by law, and not a County run on a wink and a nod.
CC: (by email only):
Chuck Callahan, President, Talbot County Council
Pete Lesher, Talbot County Council
Corey Pack, Talbot County Council
Laura Price, Talbot County Council
Frank Divilio, Talbot County Council
Clay Stamp, Talbot County Manager
Patrick Thomas, Acting Talbot County Attorney
Ray Clarke, Talbot County Engineer
Miguel Salinas, Talbot County Planning Officer
William Anderson, Talbot County Public Works Advisory Board