Roger Berliner, left, and Tom Hucker, right Credit: Andrew Metcalf/ provided photo

A proposal by County Executive Ike Leggett to reform how the county awards contracts for stormwater management projects ran into County Council opposition Friday and now Leggett is pushing back.

The council’s environment committee chair Roger Berliner was joined by fellow council member Tom Hucker to block Leggett’s proposal to change the current contracting method.

The two chose not to recommend that the council approve Leggett’s proposal, saying any proposed changes could wait until a new County Council and county executive are elected later this year. Council member Nancy Floreen, the third committee member, strongly disagreed.

The rejection led Leggett to fire off a letter Tuesday to the council, admonishing the decision.

Leggett’s proposal called for the county to hire one firm to design, build and maintain stormwater management projects to treat rainwater runoff on the acres of impervious surface in the county requiring treatment by the Maryland Department of the Environment—known as the “MS4 Permit.”

Under the current contracting method, the county hires one firm to design, another to build and a third to maintain a project. This process has resulted in as many as 12 different firms designing projects at one point, according to county Department of Environmental Protection Acting Director Patty Bubar. It has led to what Bubar described as significant issues during the past several years of moving stormwater projects from the design phase to construction.

On Friday, she told the council committee that, on average, the department had projects to treat about 2,000 acres of impervious surface in the design phase, but was only able to advance projects that would treat about 140 acres to the construction phase each year.

“We weren’t getting them over the transom from the design into construction phase,” Bubar said. “That was not sustainable.”

As part of the stormwater treatment program, the county awards contracts to private companies to retrofit ponds, repair stream beds, install bioswales along roads and construct other projects that are designed to filter or capture nutrients, pollution and sediment before they flow into creeks and rivers and ultimately end up in the Chesapeake Bay.

The council committee did agree to maintain Leggett’s proposal to slash proposed spending on stormwater projects from an initial six-year budget of $345.5 million to $102.5 million—a $243 million reduction for fiscal years 2019 to 2024. This proposed reduction in spending enabled Leggett to propose maintaining the Water Quality Protection Charge, known derisively as the “rain tax,” at its current level of about $104.25 per year for the average residential property in the county. Council members also agreed with Leggett to not increase the charge.

The fee has increased from about $12 for the average property in 2002 to its current per year level, according to council staff. Leggett said the main reason he is proposing to change the contracting method and slash spending on stormwater projects is because he believes the program’s cost has been increasing at an unsustainable rate.

[Related – Montgomery County Aims to Overhaul Stormwater Management Program]

The long-term spending reductions were possible after the county determined it would be able to meet the state’s requirement for treating a specific number of acres by the end of this year—after failing to do so by 2015, as initially required by the state. The county was required to enter into consent decree with the state because of the failure, but officials said Friday they’re on pace to meet the demands of the decree–to treat about 3,800 acres of impervious surface–by the end of this year.

Sometime later this year, the county expects to receive a new MS4 permit that officials predict will require the county to treat at least 500 acres of impervious surface over about five years. Leggett wants the new contracting method implemented in advance of receiving that permit so the county can meet the current permit’s requirements as well as those of the upcoming permit in what he describes as a more efficient, cost-effective manner.

Berliner and Hucker opted to block the contracting method changes being proposed by Leggett and instead recommended that the department use the traditional contracting method to fund over the next six years about $48 million in projects that have already been partially designed.

Leggett noted in his letter to the council that the county failed to meet the requirements of the current MS4 permit under the previous contracting method.

 “We cannot afford to delay action on this appropriation, divide it into tranches or continue the same contracting method,” Leggett wrote. “To do so will cause unnecessary delay and put the county at risk of failing to meet our next MS4 permit requirement.”

He likened the council committee’s decision to that of the U.S Senate failing to act on President Barack Obama’s Supreme Court nomination during Obama’s second term.

“What other actions to improve county operations and services to our residents do the Councilmembers suggest my Administration forego because it is the last year of my term?” Leggett asked. “I find this offensive and unacceptable.”

Berliner said during the committee meeting that he supported using the traditional contracting method at least until the county receives a new MS4 permit requirement from the state. Delaying any changes would allow the new county executive and County Council that will be elected later this year to decide on how best to proceed on the issue, Berliner said.

Berliner is among six Democratic candidates running for county executive.

He also said he would like the county to complete some of the 44 stormwater projects that the county’s environmental department has put on hold as Leggett put forth the proposal to change the contracting method.

“Let’s finish up the projects that are 60 to 90 percent designed—projects where we’ve invested upwards of $5 million in design work,” Berliner said in an interview with Bethesda Beat on Tuesday. “Many communities have been waiting for these projects for several years.”

Hucker said he too would like to wait until a new county executive and council could review the contracting changes.

“If it ain’t broke, don’t fix it,” Hucker said.

The two council members are also concerned that the change in contracting could lead the company that receives the new contract to only pursue projects that treat the largest number of acres of impervious surface rather than those that could be more expensive, but more environmentally efficient.

That’s a concern shared by members of the local environmental community.

“If the county decided to just do the cheap projects, they would not be addressing the most serious pollution issues in the county,” Kit Gage, advocacy director for the Friends of Sligo Creek, said in an interview Tuesday.

Caitlin Wall, the policy director at Potomac Conservancy, which advocates for efforts to improve the Potomac River’s water quality, said green infrastructure projects that use natural elements such as plants to filter stormwater are often more expensive than so-called “gray infrastructure” such as cisterns built to store runoff water below parking lots. She said her group believes green infrastructure projects provide more benefits to the environment and are concerned that fewer of them would be built if the contracting method was changed.

“There’s a lot of folks that want these types of green infrastructure,” Wall said.

Council member Nancy Floreen, the third committee member on the environment committee, criticized Hucker and Berliner for not supporting Leggett’s proposal Friday.

“I don’t see any element of this conversation focusing on what residents are paying for this,” Floreen said. “We’re all about protecting the world and the Chesapeake and all that, but if we can do it cost effectively, let’s do it cost effectively.”

Floreen pointed out that some Department of Environmental Protection rank-and-file employees had been lobbying council members to oppose Leggett’s proposed changes.

“I have never in 16 years [as a council member] had a meeting with department staff accompanied by union representatives arguing about the direction of the department,” Floreen said. “Something else is going on, which I don’t fully understand.”

Bubar said she understood staff had been talking to council members and said the department would “address it internally.”

This led Hucker to question whether staff members’ free speech rights weren’t being supported.

Bonnie Kirkland, a key Leggett adviser and assistant chief administrative officer in the county, responded that employees have the right to weigh in on county issues on their own time, but are expected to support the county executive’s decisions while conducting county work.

Leggett administration officials also expressed concern Friday that if the council doesn’t approve the changes in the contracting method, the Water Quality Protection Charge may increase in the near future, a cost that will be borne by taxpayers.

“If we’re going to be continuing to do [projects] with the same tool, we can’t assure you there’ll be improved performance,” Bubar said.

In his letter, Leggett urged the full council to reject the council committee’s recommendation and instead approve the contracting method he proposed. The full council is expected to take up the contracting changes sometime in the next two weeks, according to council staff.