EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*sb0471*
SENATE BILL 471
M3 3lr1785
CF HB 607
By: Senator Elfreth
Introduced and read first time: February 3, 2023
Assigned to: Education, Energy, and the Environment
A BILL ENTITLED
AN ACT concerning 1
Water Pollution Control – Discharge Permits – Stormwater Associated With 2
Construction Activity 3
FOR the purpose of prohibiting the Department of the Environment from authorizing the 4
discharge of stormwater associated with construction activity under a general 5
discharge permit and requiring the Department to instead require an individual 6
discharge permit under certain circumstances; prohibiting a certain permit holder 7
from causing, allowing, or failing to control the runoff of soil or other pollutants from 8
a construction site or causing erosion into certain waters of the State; authorizing 9
the Department to take certain enforcement actions if a person has unlawfully 10
engaged in construction activity without a discharge permit or without coverage 11
under a general discharge permit; and generally relating to permits for stormwater 12
discharges associated with construction activity. 13
BY repealing and reenacting, without amendments, 14
Article – Environment 15
Section 9–301(a) and (d) 16
Annotated Code of Maryland 17
(2014 Replacement Volume and 2022 Supplement) 18
BY adding to 19
Article – Environment 20
Section 9–323.1 21
Annotated Code of Maryland 22
(2014 Replacement Volume and 2022 Supplement) 23
BY repealing and reenacting, with amendments, 24
Article – Environment 25
Section 9–342 26
Annotated Code of Maryland 27
(2014 Replacement Volume and 2022 Supplement) 28 2 SENATE BILL 471
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 1
That the Laws of Maryland read as follows: 2
Article – Environment 3
9–301. 4
(a) In this subtitle the following words have the meanings indicated. 5
(d) “Discharge permit” means a permit issued by the Department for the 6
discharge of any pollutant or combination of pollutants into the waters of this State. 7
9–323.1. 8
(A) (1) IN THIS SECTION THE F OLLOWING WORDS HAVE THE MEANINGS 9
INDICATED. 10
(2) “AREA OF DISTURBANCE ” MEANS THE CUMULATIVE TOTAL AREA 11
OF DISTURBANCE RESUL TING FROM ALL CONSTR UCTION ACTIVIT Y CONDUCTED 12
UNDER A COMMON PLAN OF DEVELOPMENT . 13
(3) “CONSTRUCTION SITE ” INCLUDES MULTIPLE SI TES UNDER A 14
COMMON PLAN OF DEVEL OPMENT. 15
(4) “CRITICAL AREA BUFFER” MEANS THE AREA AT LE AST 100 FEET 16
WIDE LOCATED DIRECTLY ADJ ACENT TO THE TIDAL W ATERS, TIDAL WETLANDS , AND 17
TRIBUTARY STREAMS OF THE STATE, IDENTIFIED IN ACCORDANCE WIT H TITLE 8, 18
SUBTITLE 18 OF THE NATURAL RESOURCES ARTICLE. 19
(5) “PERMIT HOLDER ” MEANS A PERSON: 20
(I) HOLDING A DISCHARGE PERMIT FOR STORMWATER 21
ASSOCIATED WITH CONS TRUCTION ACTIVITY ISSUED BY THE DEPARTMENT ; OR 22
(II) AUTHORIZED BY THE DEPARTMENT FOR COVERAGE UNDER 23
A GENERAL DISCHARGE PERMIT FOR STORMWATE R ASSOCIATED WITH 24
CONSTRUCTION ACTIVIT Y. 25
(B) (1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION , 26
THE DEPARTMENT MAY NOT AU THORIZE THE DISCHARG E OF STORMWATER 27
ASSOCIATED WITH CONSTRUCTION AC TIVITY UNDER A GENER AL DISCHARGE 28
PERMIT AND SHALL INS TEAD REQUIRE AN INDI VIDUAL DISCHARGE PER MIT IF: 29
SENATE BILL 471 3
(I) FOR A CONSTRUCTION SI TE WITH A PROPOSED S ITE 1
DISTURBANCE OF 10 ACRES OR MORE , ANY PORTION OF THE A REA OF DISTURBANCE 2
IS LOCATED IN: 3
1. A WATERSHED OR CATCHME NT THAT DRAINS TO A 4
RECEIVING WATER DESI GNATED AS HIGH QUALI TY UNDER DEPARTMENT 5
REGULATIONS ; 6
2. THE CRITICAL AREA BUFFER; OR 7
3. A FLOODPLAIN; OR 8
(II) THE PERMIT APPLICANT HAS: 9
1. BEEN DETERMINED BY THE DEPARTMENT TO BE IN 10
SIGNIFICANT NONCOMPL IANCE WITH THE TERMS OF ANY OTHER DISCHAR GE 11
PERMIT MORE THAN ONC E DURING THE 365 DAYS IMMEDIATELY PRE CEDING THE 12
DATE OF THE APPLICAT ION; OR 13
2. UNLAWFULLY BEGUN CONS TRUCTION ACTIVITY 14
WITHOUT A DISCHARGE PERMIT OR WIT HOUT COVERAGE UNDER A GENERAL 15
DISCHARGE PERMIT . 16
(2) THIS SUBSECTION DOES NOT APPLY TO CONSTRU CTION ACTIVITY 17
THAT: 18
(I) DOES NOT RESULT IN TH E ESTABLISHMENT OF A NY 19
PERMANENT RESIDENTIA L, COMMERCIAL , OR INDUSTRIAL BUILDI NG; AND 20
(II) IS SOLELY INTENDED TO RESTORE NATURAL RESO URCES, 21
REDUCE WATER POLLUTI ON, OR IMPROVE WATER QUA LITY. 22
(3) THE PERMIT APPLICANT IS RESPONSIBLE FOR P ROVIDING TO THE 23
DEPARTMENT ALL INFORM ATION NECESSARY TO DETERMINE WHETHER AN 24
INDIVIDUAL DISCHARGE PERMIT IS REQUIRED UND ER THIS SUBSECTION . 25
(C) (1) A PERMIT HOLDER MAY NOT: 26
(I) CAUSE, ALLOW, OR FAIL TO CONTROL RUNOFF OF SOIL OR 27
OTHER POLLUTANTS FRO M A CONSTRUCTION SITE ; OR 28
(II) CAUSE EROSION INTO WATERS OF THE STATE LOCATED 29
WITHIN 500 FEET OF A CONSTRUCTI ON SITE. 30 4 SENATE BILL 471
(2) THE APPROVAL OF A SEDIMENT CONTROL P LAN UNDER TITLE 4, 1
SUBTITLE 1 OF THIS ARTICLE DOES NOT RELE ASE A PERMIT HOLDER FROM 2
LIABILITY FOR A VIOL ATION OF PARAGRAPH (1) OF THIS SUBSEC TION. 3
(3) FOLLOWING INSPECTION OR OTHERWISE ON THE COLLECTION OF 4
EVIDENCE OF A VIOLAT ION OF PARAGRAPH (1) OF THIS SUBSECTION , THE 5
DEPARTMENT OR AN ENFORCEMENT UNIT , OFFICER, OR OFFICIAL OF A LOC AL 6
GOVERNMENT WITH DELE GATED AUTHORITY MAY ORDER THE PERMI T HOLDER TO 7
REMEDIATE ANY DAMAGE CAUSED BY THE VIOLAT ION. 8
(D) IF THE DEPARTMENT DETERMINES THAT A PERSON HAS UNLAWFULLY 9
ENGAGED IN CONSTRUCT ION ACTIVITY WITHOUT A DISCHARGE PERMIT O R 10
WITHOUT COVERAGE UND ER A GENERAL DISCHARGE PERMIT, THE DEPARTMENT 11
SHALL: 12
(1) ORDER THE PERSON TO I MMEDIATELY CEASE ALL 13
CONSTRUCTION ACTIVIT Y; 14
(2) NOTIFY THE PERSON OF THE REQUIREMENT TO O BTAIN A 15
DISCHARGE PERMIT IN ACCORDANCE WITH S UBSECTION (B) OF THIS SECTION; AND 16
(3) COMMENCE AN ENFORCEME NT ACTION AGAINST THE PERSON TO : 17
(I) IMPOSE CIVIL OR ADMINISTRATIVE PENALTIES IN 18
ACCORDANCE WITH § 9–342 OF THIS SUBTITLE ; AND 19
(II) SEEK ANY INJUNCTIVE R ELIEF THE DEPARTMENT 20
DETERMINES NECESSARY TO MITIGATE HARM TO THE ENVIRONMENT OR 21
SURROUNDING PROPERTY OWNERS. 22
9–342. 23
(a) (1) In addition to being subject to an injunctive action under this subtitle, 24
a person who violates any provision of this subtitle or of any rule, regulation, order, or 25
permit adopted or issued under this subtitle is liable to a civil penalty [not exceeding 26
$10,000], to be collected in a civil action brought by the Department. 27
(2) EXCEPT AS PROVIDED IN PARAGRAPH (3) OF THIS SUBSECTION , A 28
CIVIL PENALTY IMPOSE D UNDER THIS SUBSECT ION MAY NOT EXCEED $10,000 PER 29
VIOLATION. 30
(3) FOR A VIOLATION OF § 9–323.1(D) OF THIS SUBTITLE , THE CIVIL 31
PENALTY IMPOSED UNDE R THIS SUBSECTION : 32 SENATE BILL 471 5
(I) SHALL BE ASSESSED ON THE BASIS OF THE ACR EAGE OF 1
LAND DISTURBED BY CO NSTRUCTION ACTIVITY THAT WAS NOT AUTHORI ZED UNDER 2
A DISCHARGE PERMIT ; AND 3
(II) MAY NOT BE L ESS THAN $25,000 PER ACRE OF LAND 4
UNLAWFULLY DISTURBED . 5
(4) Each day a violation occurs is a separate violation under this 6
subsection. 7
(b) (1) In addition to any other remedies available at law or in equity and after 8
an opportunity for a hearing which may be waived in writing by the person accused of a 9
violation, the Department may impose a penalty for violation of any provision of this 10
subtitle or any rule, regulation, order, or permit adopted or issued under this subtitle. 11
(2) [The] EXCEPT AS PRO VIDED IN PARAGRAPH (3) OF THIS 12
SUBSECTION, THE penalty imposed on a person under this subsection shall be: 13
(i) Up to $10,000 for each violation, but not exceeding $100,000 14
total; and 15
(ii) Assessed with consideration given to: 16
1. The willfulness of the violation, the extent to which the 17
existence of the violation was known to but uncorrected by the violator, and the extent to 18
which the violator exercised reasonable care; 19
2. Any actual harm to the environment or to human health, 20
including injury to or impairment of the use of the waters of this State or the natural 21
resources of this State; 22
3. The cost of cleanup and the cost of restoration of natural 23
resources; 24
4. The nature and degree of injury to or interference with 25
general welfare, health, and property; 26
5. The extent to which the location of the violation, including 27
location near waters of this State or areas of human population, creates the potential for 28
harm to the environment or to human health or safety; 29
6. The available technology and economic reasonableness of 30
controlling, reducing, or eliminating the violation; 31
6 SENATE BILL 471
7. The degree of hazard posed by the particular pollutant or 1
pollutants involved; and 2
8. The extent to which the current violation is part of a 3
recurrent pattern of the same or similar type of violation committed by the violator. 4
(3) THE PENALTY IMPOSED O N A PERSON UNDER THIS SUBSECTIO N 5
FOR A VIOLATION OF § 9–323.1(D) OF THIS SUBTITLE : 6
(I) SHALL BE ASSESSED ON THE BASIS OF THE ACREAGE OF 7
LAND DISTURBED BY CO NSTRUCTION ACTIVITY THAT WAS NOT AUTHORI ZED UNDER 8
A DISCHARGE PERMIT ; AND 9
(II) MAY NOT BE LESS THAN $25,000 PER ACRE OF LAND 10
UNLAWFULLY DISTURBED . 11
(4) Each day a violation occurs is a separate violation under this 12
subsection. 13
[(4)] (5) Any penalty imposed under this subsection is payable to this 14
State and collectible in any manner provided at law for the collection of debts. 15
[(5)] (6) If any person who is liable to pay a penalty imposed under this 16
subsection fails to pay it after demand, the amount, together with interest and any costs 17
that may accrue, shall be: 18
(i) A lien in favor of this State on any property, real or personal, of 19
the person; and 20
(ii) Recorded in the office of the clerk of court for the county in which 21
the property is located. 22
[(6)] (7) Any penalty collected under this subsection shall be placed in a 23
special fund to be used for monitoring and surveillance by the Department to assure and 24
maintain an adequate record of any violations, including discharge of waste material and 25
other pollutants into the waters of this State or into the environment. 26
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 27
October 1, 2023. 28