Idaho attorney visits Carroll to discuss battling state's bay regulations

Fred Kelly Grant is seen as a crusader by his supporters for the rights of local government in the face of regulations that have been handed down by federal and state agencies.
Grant, 77, has helped local governments implement a process he calls "coordination" when they get into disputes with federal and state officials over land use. The argument goes like this -- under the National Environmental Policy Act, the Council of Environmental Quality, the Clean Water Act and certain executive orders, federal and state agencies are mandated to hash out conflicts with local officials and do their best to reach consistency with local plans when implementing regulations.
Grant, who lives in Boise, Idaho, said he has been involved in 108 cases where coordination has been implemented, with varying degrees of success for local leaders. In all of the cases he has been involved in, he said local officials have avoided costly litigation. Although not considering himself a member, Grant has presented his ideas to at least 20 tea party meetings that he can remember.
He has now brought his ideas to Carroll County. Grant traveled to Carroll for an informational meeting Oct. 16. At the meeting, Grant participated in a presentation for residents regarding how coordination works along with attorneys for the Clean Chesapeake Coalition, which represents Carroll and six other counties. The coalition looks to fight the Chesapeake Bay regulations handed down by the state.
Grant described some of his past experience with the coordination process at the meeting earlier this month. He also traveled to Chesapeake College with coalition attorneys to present on the topic. His travel and hotel expenses were paid by donors through the Center for the Defense of Free Enterprise, a conservative think tank. He declined to name the donors that have funded his travel.
Grant also traveled to the county in January to meet with commissioners to speak about the coordination process. Carroll County Commissioner Richard Rothschild, R-District 4, said the county may have paid a few hundred dollars for the visit in January, but said he could not recall if the county was billed.
Grant could not recall either. So far, Grant has consulted the county and coalition attorneys pro bono, but said he will expect to paid for further services.
Using Grant's methods, the coalition says it wants its seven member counties to engage in the process of coordination with the Maryland Department of the Environment and the U.S. Environmental Protection Agency over the implementation of the Chesapeake Bay Total Maximum Daily Load. The TMDL is a pollution "diet" the EPA imposed on Maryland and other watershed states in December 2010 to clean and restore the Chesapeake Bay.
As for MDE, officials there reject that coordination is required by federal law in the way the coalition suggests. MDE notes they does meet with local officials, including those in Carroll, on a regular basis to discuss TMDL requirements.
For Carroll, the fight with the state and federal government is largely over what will be included in the MDE's new National Pollutant Discharge Elimination System draft permit for the county, which is still in the process of being drafted. Under the permit, the county expects it will have to mitigate an additional 20 percent of impervious surfaces in the areas it controls. The county is projected to pay nearly $20.2 million for capital stormwater projects over six years, under the permit.
In 2012, Maryland also passed House Bill 987, which required 10 jurisdictions -- including Carroll County -- to implement a fee that would pay for a wastewater protection and restoration program.
Carroll County commissioners decided not to implement a fee. Instead, they decided to pay for any restoration efforts with reserves in the first year of implementation and bonds in later years.
Grant said the county could take the state to court to force it coordinate. He said the state is incorrect on the legal basis for coordination.

Mixed results
Grant acknowledged that his methods are not a silver bullet for the jurisdictions that implement them.
In Siskiyou County, Calif., for instance, the end result of his ideas are still up in the air, according to officials there.
Siskiyou, like Carroll, is often at odds with its state leaders. Due to the state's regulations, and the feeling that they are not being listened to by California state lawmakers, the Siskiyou County Board of Supervisors voted to look into seceding from the state in September. Similar calls for succession have been made recently for Carroll and other counties in Maryland.
Grant was paid by officials in Siskiyou to advise them in a dispute over the potential closing of four dams in the 240-mile Klamath River, which spans southwestern Oregon and northern California. The closing of the dams have been touted as a way to save salmon populations, and increase reliable water supplies for irrigation by the U.S. Department of the Interior and state agencies.
The county supervisors in Siskiyou fear that removing the dams could have a large impact on flooding, the local economy, property values, renewable power and restoration efforts, among other concerns.
Siskiyou County Supervisor Grace Bennett said the county is currently coordinating with DOI and state agencies over the potential dam removal, but she is not sure they will be able to block the closing of the dams.
"They have made up their mind and are going to do what they want to do whether we like it or not," she said, noting that Congressional approval will be needed before the department removes the dams.
Bennett said she did not interact with Grant directly, but said she thought his consultation was helpful. Still, she said she is unsure how much of Grant's assistance helped the county.
"It's hard for me to quantify how much help he has been in these negotiations," she said.
Bennett said coordination has worked well with other agencies, such as the U.S. Forest Service. Siskiyou County and the Forest Service have worked to try to keep roads open to public lands, she said.
She said jurisdictions should have solid plans to work with when they start to negotiate with state and federal officials to make the coordination process go smoothly.
Grant said he had success with the process in other cases, including in Fremont County, Wyo., where he helped to block the closing of campgrounds by the U.S. Forest Service that the county felt were essential.
He said, often, it is the counties that fight the hardest that get the best results out of the process.
"There are mixed results," he said. "Here is the way I have found it: When a county is committed -- and I mean committed -- that they are not going to back away ... and they want to take this to the end result, I have not found that there is any agency that has succeeded in doing something that put a town, or put a county, out of business."


How will Carroll County use coordination?
Officials in Carroll County hope the coordination process will work, even if the outcome is mixed.
Commissioner Rothschild said he reached out to Grant to connect him with attorneys for the Clean Chesapeake Coalition. Rothschild, the representative for the coalition for Carroll, said he thinks the other commissioners will be receptive to the idea of coordination.
"If we only can achieve mixed results then that's better than nothing," he said. "I didn't run for office to surrender to this kind of stuff."
Rothschild said he envisions the county starting the process of building a record from residents that have been adversely affected by the state's Chesapeake Bay cleanup regulations, and having experts speak about the science -- or lack thereof -- behind them. He said they can use this in court or in other hearings.
"We want to document the actual examples in Carroll County of how ill-conceived mandates are harming everyday citizens, everyday farmers and everyday businesses," he said.
Rothschild said he had no problem with Grant speaking at tea party events in the past.
"The fact is the tea party stands for something very simple," he said. "It stands for small constitutional government that lives within its financial means. There is nothing radical about that."
Samantha Kappalman, spokeswoman for MDE, said there is no legal basis under NEPA, the Clean Water Act or the federal TMDL regulations that requires coordination as described by Grant and the coalition. She said the state invited local partners to be a part of the creation of the state regulations concerning the bay cleanup. The state has also sent liaisons to jurisdictions, including Carroll, to meet and discuss the implementation of the regulations.
But Grant said meetings were not enough. He said coordination requires that the state attempt to reach consistency with local plans.
He said his experience has shown that coordination is a process that is mandated under federal law.
"I think they are wrong and, hopefully, we can prove they are wrong," he said, of MDE's position.

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