Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : O’Malley, Miles, Nylen & Gilmore Law Firm : MD Green Building, Sustainability

Here are some upcoming meetings on Maryland's Phase I Watershed Implementation Plans and the Chesapeake Bay TMDL to add to your Outlook calendar - - -

(The picture at left admittedly is not directly on point...but my lab, Emerson, has been begging to be featured on the blog- and he absolutely loves water!)

The following meetings are hosted by Maryland’s Tributary Teams:

September 27, 2010

5:30-6:30  Elected Officials

7:00 to 9:00  Public

Host- Upper Potomac Trib Team

South Hagerstown High School Auditorium,

1101 South Potomac Street, Hagerstown, MD 21740

September 30, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts: Choptank, Upper & Lower Eastern Shore Trib Teams

Talbot County Community Center, Wye Oak Room

10028 Ocean Gateway (US Rte 50) Easton, MD  21601

October 4, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts- Upper Western Shore & Patapsco/Back Trib Teams

MD State Fair Grounds, DNR Bldg/State Fair Museum

2200 York Road, Timonium, 21093 (Use the York Road gate)

October 6, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts- Patuxent River Commission, Middle Potomac,

Lower Potomac & Lower Western Shore Trib Teams

Prince George’s Soil Conservation District   

5301 Marlboro Race Track Road

Upper Marlboro, 20772  (301) 574-5162 X3

Environmental Protection Agency (EPA) Public Meetings on the Chesapeake Bay TMDL:

Tuesday October 12

2:00-4:00pm

The Easton Club

28449 Clubhouse Dr

Easton, MD

Wednesday October 13

2:00-4:00pm

Sheraton Annapolis

173 Jennifer Road

Annapolis, MD

Thursday October 14

2:00-4:00pm

Hagerstown Hotel & Convention Center,

1901 Dual Hwy

 Hagerstown, MD

(Meeting and Webinar) 

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*This post is guest authored by Jessica Snow Barnes, a land use, zoning, and environmental law associate in O'Malley, Miles, Nylen & Gilmore, P.A.'s Charles County office in La Plata, Maryland.*

Environmental laws and regulations promulgated by the Maryland General Assembly and State administrative agencies seek to protect the State’s natural resources by imposing restrictions on development-related activities. One area of law that has developed over the years is the Chesapeake Bay Critical Area Protection Program (the “Critical Area Act”), which was first adopted by the Maryland General Assembly in 1984 (Natural Resources Article, § 8-1801, et seq.). Two cases handed down from the Maryland Court of Appeals on July 22, 2010, have implications regarding the Critical Area Act and its interpretations by local jurisdictions charged with the responsibility of local enforcement.

1.        Margaret McHale v. DCW Dutchship Island LLC, et al.

 Since its inception, the Critical Area Program has been revised and expanded. Perhaps one of the most notable amendments to the Program occurred with the passage of Maryland House Bill 1253 in 2008 (the “2008 Amendments”), which included increased buffer standards, increased restrictions on new development by broadening the definition of those items that could be considered as impervious surfaces (i.e., lot coverage), and increased penalties for violation of the Critical Area Act such as those violations that occurred on Little Dobbins Island.   

On July 22, 2010, in an opinion filed by Judge Harrell in the case of Margaret McHale v. DCW Dutchship Island, LLC, et al., the Maryland Court of Appeals was asked to consider whether a provision in the 2008 Amendments could be fairly applied to a variance application filed by an applicant as a result of prior violations to the local jurisdiction’s Critical Area Program. At issue in McHale was a provision within the 2008 Amendments that requires an applicant to have an approved restoration or mitigation plan prior to obtaining a variance.

The Court of Appeals concluded that the provision at issue in the case could not be applied retrospectively to the variance application submitted on behalf of DCW Dutchship, which was required as the result of a series of Critical Area violations that were discovered on Little Dobbins Island in 2004. All statutes are presumed to operate prospectively.

“This presumption” Judge Harrell wrote, “is based on the ‘fundamental principle…that retroactive application of new laws is usually unfair” because doing so “increases the potential for interference with persons’ substantive rights.”

Citing the uncodified language in Section 5 of HB 1253, the Court of Appeals concluded that the challenged provision in the 2008 Amendments (requiring an approved restoration or mitigation plan prior to the issuance of a variance) could not be applied retroactively. The pertinent part of Section 5 reads as follows: “…for the purpose of a criminal prosecution under § 8-1815(a)(2)(ii) of the Natural Resources Article…this Act shall be construed prospectively to apply only to a Critical Area violation alleged to have arisen out of an act or omission that originated on or after July 1, 2008, and this Act may not be applied or interpreted to have any effect on or application to an alleged critical area violation that originated before the effective date of this Act (emphasis added)."

2.          Sara Caldes, et al., v. Elm Street Development, et al.

At issue in Caldes, was a 2006 Order entered by the Anne Arundel County Board of Appeals granting certain requested variances for development, as required by the local zoning ordinance. There were several issues that the Court of Appeals addressed in its opinion, however, this discussion is limited to the issues pertaining to the Critical Area. One of the first issues addressed by the Court of Appeals was the apparent conflict between the “base” or underlying land use classification and the “overlay” zone applied to the Elm Street Property. The Elm Street Property is located in an R-1 Residential District, which mandates a minimum lot size of 40,000 square feet (less than one acre). The property is also located within the Critical Area Overlay Zone (specifically the Resource Conservation Area), which dictates a maximum permitted density of not more than one dwelling unit per 20 acres.The Court concluded that Anne Arundel County’s “Antiquated Lots Law” (now the “Lot Merger Law) was a “grandfathering” provision permitting the Elm Street property to be developed with more than one dwelling per 20 acres. 

Another legal issue peculiar to land use and zoning cases presented in Caldes: the notion of a “variance” and the sufficiency of an application for a local zoning officer to issue the variance as requested. In affirming the variances approved by the Anne Arundel County Board of Appeals, the Maryland Court of Appeals noted the

“burden on an applicant seeking a variance is very high” because the Critical Area Program requires the local jurisdiction to “presume that the specific development activity in the critical area…does not conform with the general purpose and intent” of the Critical Area Act.

The approach taken by the Court of Appeals as stated in Judge Murphy’s opinion is instructive: an appellate court gives “considerable weight” to an administrative agency’s (Anne Arundel County Board of Appeals) “interpretation and application of the statute which the agency administers.” The Court’s deference to these principles is demonstrated by the fact that large portions of the Board of Appeals’ opinion and statements by the Critical Area Commission were quoted in Judge Murphy’s opinion.

Conclusion:  The Critical Area Act and local Critical Area Programs adopted by local jurisdictions such as Anne Arundel County (the location of both Little Dobbins Island and the Elm Street property) continues to be a developing area of Maryland law. The local jurisdictions (and the property owners in each of the respective areas) rely heavily upon the Critical Area Act itself, COMAR, and the local Critical Area programs that have been approved by the Critical Area Commission to guide development. While these opinions appear quite specific to the local jurisdiction (Anne Arundel County), they can be applied across the State. Environmental protection is an issue of local and national concern. While the decisions that have been handed down in these two cases are final, the degree of mitigation and restoration required under the Critical Area Act and the constraints placed upon private property rights in Maryland is not.   

If you have questions on this article or on land use, zoning and environmental law in general, Jessica can be reached at jbarnes@omng.com.

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Last Thursday, July 15th, I attended the last scheduled Bay Watershed Implementation Plan Regional Exchange, held at the Prince George's County Soil Conservation District Office in Upper Marlboro...and let me tell you - The. Room. Was. PACKED! There's obviously a lot of interest in how this plan is going to be created, implemented, and then monitored, and rightly so! The plan will have a huge impact on how we address nutrient and sediment deposits in the Bay watershed.

The purpose of this meeting was twofold: first, for the primary host, Maryland's Department of Natural Resources, to explain a bit about the eventual phases of the Plan (there are three) and the basic tasks that they've been charged with addressing in the plan; and second, for input from citizens on how to tackle the challenges of meeting the interrelated goals established by the TMDL and by the President's Executive Order (see this post for general information on the WIP, this post for information on the recently announced TMDL allocations for Maryland, and this post for information on the President's Executive Order on the Chesapeake Bay).

Highlights from Catherine Shanks (Department of Natural Resources) informative presentation include the following:

• The state can and will allocate loads to sectors and sources - this means eventually allocating nutrient and sediment maximums per County (probably in Phase II of the WIP). (My editorial: important questions here include: What branch of the County government will be responsible for implementing, tracking, and monitoring the plan? How will land use designations be correlated amongst counties in determining the allocations? How will allocations within the County be doled out? What happens when maximum capacity is reached?)
• Accounting for growth will be a major component of the plan. (My editorial: this could have a profound impact on the building industry).
• The WIP's interaction with other water management plans is still something that is on the table - how will the plan interact with MS4 programs?
• DNR is considering implementing water policies at the state level as a possibility to address growth issues, including zoning and transportation factors.
• Anne Arundel and Caroline counties are currently in pilot programs at the county level, and the results of these programs will likely be attached to the Phase I WIP as an addendum.
• Phase I of the WIP will be available for public comments starting on September 24 and concluding on November 8, 2010.

The public pulse - here are a few comments and ideas generated at the meeting:

• The amount of nutrient and sediment flowing into the watersheds near already developed/urban areas will likely be higher than in less developed, rural areas. How are we going to prevent the unintended consequence of pushing development into more rural areas that have less nutrient and sediment impact (i.e., will the plan create higher allocations at urban centers to encourage infill and redevelopment?)
• MDE should raise its permit fees to help pay for inspection and monitoring (My editorial: this is of concern - the concept of increasing already high fees simply because these permitees are easy targets doesn't gel).
• There should be a critical area type program created for ALL the waters of the state
• Make those responsible for the nutrient deposits responsible for the cost of implementing the plan (My editorial: this could be very fair for the industry - many studies and reports show that farming activities are the highest producers of nutrient and sediment deposits in the watershed).
• The state should create legislation mandating a tax/fee on impervious surface area created.

As you can see, some of the comments made, if taken into consideration in the WIP, will be very unfavorable towards the industry. It's going to be important to comment during the public review phase (September 24- November 8, 2010) to get the industry's voice heard.  There were a few representatives of the industry present at the meeting who spoke quite eloquently and appealed to the plan makers on the concept of growth management, but the meeting was primarily attended by citizen environmental activists and environmental groups.

If you're interested in reading comments made at other regional exchange meetings, MDE has posted each meeting in PowerPoint format on its website, available here.

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Last night, I attended the Prince George's County Green Power Coalition's Candidate Briefing event held at the International Brotherhood of Electrical Workers building in Lanham, Maryland (Lisa Lincoln, Co-chair of the Coalition, is featured in the image at left). 

Even though it's an election year and therefore one might expect a flurry of politicians and would-be politicians to be in attendance, I have to admit that I was both suprised and impressed by the sheer numbers of candidates, incumbents, and members of the public who attended this briefing.  I think this shows that the green movement is growing in force and in interest in Prince George's County. If our future leaders are listening (and I think they are), they know that some of the topics discussed last night and in the Coalition's Platform document, titled "Building Healthy and Vibrant Communities" (available here as a pdf), are going to be very hot topics in the coming years.

The Coalition briefed candidates on six main areas that they urged were necessary to address in order to establish a healthy and vibrant community, as follows:

1. Climate Change and Energy - reducing energy consumption and increasing the production of renewable energy in the County can have a major impact on the local economy and on local health. The Coalition suggests that the County should mandate energy audits for large energy users in both the private and public sector; work with the private sector to create a loan program to promote investing in remediation projects; and require local governments to have comprehensive energy plans.
2. Waste Management - creating partnerships between the County, local governments, and the private sector to improve waste management will provide a cleaner County, save money, and stimulate local business opportunities. Suggestions made in Platform document include implementing a zero waste goal; creating a mandatory and comprehensive residential and commercial waste recycling requirement; and creating legislation that calls for a plastic bag fee, among others.
3. Land Use and Transportation - the Coalition alleges that the 2002 Prince George's County General Plan is "broken and needs to be revised." The Coalition wants to see our land plans focusing on development around metro stations in the County and on strengthening pedestrian-oriented and multi-modal (read: bicycle) linkages.
4. Green Business - to foster the growth of green business, the Coalition suggests that the County create an "Office of Sustainability" to promote existing green businesses and encourage green building practices in the County.
5. Sustainable Agriculture and Local Foods - protect farmland and improve the County's farm economy by enhancing land preservation policies and expanding farmers' markets.
6. Water Quality and Natural Resources - the Coalition recommends that the County implement a policy to ensure that the first 1.7 inches of rainwater during a storm stay on the land where it falls. It also recommends that the County create a fee structure to discourage the creation of impervious surfaces and encourages redevelopment in areas that already have a high amount of impervious surfaces.

Obviously, a lot of the suggestions noted in the Platform document directly relate to the land development and building industry. While I believe that many of these ideas are great in theory, my hesitation is that some of these suggestions, if implemented exactly as stated in the Platform document, could have a chilling effect on business opportunities in the County - especially as our economy is still in the process of recovering from the recession. Reaching that perfect balance between fostering opportunities for growth and protecting our existing resources is a constant struggle, but I'm confident that we'll get there one day.  Opportunities to engage in a dialogue and present ideas, like the Coalition's event last night, will help us get closer to striking that balance.

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EPA submitted this letter to Maryland on July 1, 2010 detailing the revised annual nutrient loadings that will be proposed under the Chesapeake Bay TMDL for each of the Bay states and Washington, DC. 

These annual loadings are expected to be achieved by the end date of the Bay Restoration Program of 2025 (2020 for Maryland).  The TMDL’s annual loading for sediment in each state will be provided by EPA to the states on August 15, 2010. 

The nitrogen and phosphorus draft allocations are intended to be used to during Maryland's development of its Watershed Implementation Plan (WIP). Let's take a look at the jurisdiction-wide allocations for Maryland:

Important Deadlines:

• August 15, 2010: EPA to provide the basinwide, jurisdictional, and major river basin draft allocation for sediment
• September 1, 2010: EPA expects jurisdictions to submit draft WIP's which sub-allocate these nutrient and sediment allocations among source sectors and the 92 Bay TMDL segmentsheds.
• September 24, 2010: EPA to propose for comment (for a 45-day public comment period) the draft Bay TMDL.
• November 29, 2010: Maryland to submit its revised WIP to EPA

I've heard several members of the development industry remark that Maryland's Watershed Implementation Plan will have a significant impact on the industry - and, the draft nutrient load allocations presented in EPA's letter (and the sediment load allocations to come on August 15) will, in turn, play a major role in the WIP.

MDE is still hosting listening sessions on the WIP - the last one occurs on July 15, 2010 from 10:00 am to 12:00 noon in Upper Marlboro, MD at the Prince George's County Soil Conservation District Office (5301 Marlboro Race Track Road).

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As Marylanders, we all appreciate and value the great resource that is the Chesapeake Bay. I spend a lot of time focusing on the building industry's impact on the Bay (and the Bay's impact on the industry!) on this blog, but every once in a while, it's nice to be reminded that the Bay is many things to many people.  Today's post is guest authored by Bill Shipp, a partner with O'Malley, Miles, Nylen & Gilmore, P.A.

Raising Awareness of the Bay Through Open Water Swimming

On June 13, 2010, approximately 600 swimmers of all ages will once again attempt to swim across the Chesapeake Bay. The annual event is one of the premier open water events in the United States covering a 4.4 mile course swum mostly between the two spans of the Chesapeake Bay Bridge. The swimmers leave the beach at Sandy Point State Park in two waves with hopes of finishing on the eastern shore near Hemingway’s Restaurant. The swim has become a right of passage for competitive swimmers, triathletes, fitness swimmers and open water swimming enthusiasts. Some will finish in less than 2 hours but most will take between two and three hours to complete the rigorous swim. The length of time required to complete the swim is effected by wave height, strength of the currents and other race conditions.

The race is scored by time with participants ranked by their finish overall and within their own age group and gender. Some enter the race to compete for the best time and to achieve top placement, however, many enter the swim for the sense of accomplishment achieved by swimming singlehandedly across the Bay. The challenging nature of the swim and the majesty of viewing the bay and the two spans of the bridges from water level make this one of the most popular open water swims in the nation.

In addition to providing a venue for a top open water event, the Bay Swim also provides a platform to raise awareness of the Chesapeake Bay and to promote efforts to aide in its restoration. Through entry fees and charitable donations, the Great Chesapeake Bay Swim has raised over $1 million dollars for charities. In addition to the March of Dimes, money has been donated to a variety of Bay-related organizations including, The Chesapeake Bay Trust; The National Aquarium, Bay Restoration Project; The Chesapeake Bay Foundation; The Chesapeake Bay Power Boat Association; and CRAB- Chesapeake Region Accessible Boating.

The Chesapeake Bay Trust is representative of the sponsored non-profits with a stated mission to increase stewardship through grant programs, special initiatives, and partnerships that support environmental education, on-the-ground restoration, and community engagement activities.

Funding provided by the Trust sparks on-the-ground change in communities throughout Maryland and works to cultivate a new generation of Bay stewards. Thus, participants in the swim are not only enjoying an open water swim, they are helping to promote organizations actively involved in promoting stewardship of the Bay.

This kind of active outreach and cross promotion of recreation and environmental awareness is a key to long term efforts to educate future generations on the efforts to restore the Bay.

For many, the Great Chesapeake Bay Swim will be a once in a lifetime opportunity to test themselves and to swim across Maryland’s most magnificent body of water. For others, it is an annual test of endurance and a great source of camaraderie with fellow open water swimmers. Some will swim the Bay once while others have made over 20 crossings - but for everyone, the experience is never forgotten and never gets old.

Bill Shipp is an attorney at OMNG and is a LEED AP. This will be his fourth Bay crossing.

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The Maryland Department of the Environment has initiated the process of developing Maryland's Chesapeake Bay Phase I Watershed Implementation Plan (WIP).  As you may recall, the requirement of a WIP stems from the EPA's recent mandates to the six watershed states in response to Federal Executive Order 13508.

The plans will provide a road map for how the states and the District, in partnership with federal and local governments, will achieve and maintain the Bay TMDL nitrogen, phosphorus, and sediment allocations necessary to meet Bay water quality standards. To facilitate the process of developing the Phase I WIP, MDE is hosting four, two-hour "regional exchange" meetings which will include the participation of staff from the Maryland Departments of Environment, Natural Resources, Agriculture, and Planning.

Additionally, the EPA has recently (April 2010) issued a guidance document to states which details how a state's Phase I WIP will be evaluated; specifically, the document provides clarification on the eight elements expected to be addressed in each Phase I plan.  I won't summarize all eight elements (the complete guidance document is available here for your review), but I will touch on a few issues that may prove to be of concern to the building and development industry.

1. Element 2 - Current Loading Baseline: Jurisdictions have the opportunity to submit alternative information on current loads to the Bay and nutrient sediment control implementation rates by source. What this means: If you have relevant information on current loads to the Bay that you can back up with documentation, you might want to consider presenting that information to MDE at one of its upcoming regional exchange meetings (see details to follow). (Example: you have a study that demonstrates that pollutant run-off from a non-point source is lower than previously shown and you'd like the MDE to consider this in forming the Phase I WIP).
2. Element 3 - Account for Growth: Maryland can make a recommendation to the EPA as to how it wishes to allocate target loads (ie - can set aside target loads to account for loading increases that could result from future growth). What this means: This could have implications on the allocations available for existing point and non-point sources, because by increasing allocations set aside for new projects, this has the effect of reducing allocations available for existing development. Obviously, both sides of the coin here will impact members of the building industry. If you have a strong feeling one way or the other, again, one of the regional exchange meetings might be an opportune time for you to voice your opinion.

If you're interested in getting your voice heard, you should consider attending one of these exchange meetings, which will take place throughout the state this June. The meeting designated for the North-Central part of Maryland will be held in the first floor conference rooms at MDE on Thursday, June 17 from 6:30-8:30 pm.

Details:

• North-Central Maryland
• Date/Time: Thursday, June 17:  6:30pm - 8:30pm (Evening)
• Location: Baltimore, MD
  Maryland Department of Environment, 1st Floor Conference Rooms
  1800 Washington Blvd
  Baltimore, MD 21230

More information is available on the EPA's website, www.epa.gov/chesapeakebaytmdl/

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The emergency stormwater regulations that were approved by the Joint Committee on Administrative, Executive, and Legislative Review on April 7, 2010 were published May 7, 2010 in the Maryland Register in their official form.

As highlighted previously, some of the most important features of the new emergency regulations include those sections detailing the criteria needed to qualify for an administrative waiver (a project's status as compared to the definition of "preliminary plan" provided in the regulations), as well as the expiration dates of those waivers. It's also important to note that the language of the regulation gives discretion to the approving agency to determine whether an administrative waiver should be given; therefore, even if a project qualifies under the definitions employed by this regulation for an administrative waiver, this is not a guarantee that the "approving agency" will grant the waiver.

Here's a copy of the text published at 37:10 Md. R. 719 (May 7, 2010) for your review:

Notice of Emergency Action

[10-137-E]

The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments to Regulations .01 and .05 and new Regulation .01-2 under COMAR 26.17.02 Stormwater Management.

Emergency status began: April 7, 2010.

Emergency status expires: October 4, 2010.

Comparison to Federal Standards

There is no corresponding federal standard to this emergency action.

Economic Impact on Small Businesses

The emergency action has a meaningful economic impact on small business. An analysis of this economic impact follows. The estimated costs of the proposed stormwater management regulations and the 2000 Maryland Stormwater Design Manual, including Supplement 1, on regulated industries and trade groups range from negligible to substantial. While these estimated costs may impact both large and small businesses, small businesses may experience greater positive impacts as a result of the proposed regulations. MDE anticipates that smaller businesses with projects already in the pipeline may be more affected by costs associated with significant redesigns needed to meet the May 2009 regulatory requirements. The proposed regulatory changes will allow these projects to proceed under the previous regulations thereby diminishing the need for redesign. When considering this factor, the proposed stormwater management regulations will have a negligible to moderate positive impact on small businesses.

.01 Purpose and Scope.

A. — C. (text unchanged)

D. The provisions of these regulations may not be construed to affect the requirements for a project located in an Intensely Developed Area of the Chesapeake and Atlantic Coastal Bays Critical Area to comply with the 10 percent Pollution Reduction Requirement under COMAR 27.01.02.03 D(3).

.01-2 Grandfather Provisions.

A. In this regulation, the following terms have the meanings indicated:

(1) Administrative Waiver.

(a) "Administrative waiver" means a decision by the approving agency pursuant to this regulation to allow the construction of a development to be governed by the stormwater management ordinance in effect as of May 4, 2009, in the local jurisdiction where the project will be located.

(b) "Administrative waiver" is distinct from a waiver granted pursuant to Regulation .05C of this chapter.

(2) Approval.

(a) "Approval" means a documented action by a county or municipality following a review to determine and acknowledge the sufficiency of submitted material to meet the requirements of a specified stage in a local development review process.

(b) "Approval" does not mean an acknowledgement by the approving agency that submitted material has been received for review.

(3) Final Project Approval.

(a) "Final project approval" means approval of the final stormwater management plan and erosion and sediment control plan required to construct a project's stormwater management facilities.

(b) "Final project approval" includes securing bonding or financing for final development plans if either is required as a prerequisite for approval.

(4) "Preliminary project approval" means an approval as part of a local preliminary development or planning review process that includes, at a minimum:

(a) The number of planned dwelling units or lots;

(b) The proposed project density;

(c) The proposed size and location of all land uses for the project;

(d) A plan that identifies:

(i) The proposed drainage patterns;

(ii) The location of all points of discharge from the site; and

(iii) The type, location, and size of all stormwater management measures based on site-specific stormwater management requirement computations; and

(e) Any other information required by the approving agency including, but not limited to:

(i) The proposed alignment, location, and construction type and standard for all roads, access ways, and areas of vehicular traffic;

(ii) A demonstration that the methods by which the development will be supplied with water and wastewater service are adequate; and

(iii) The size, type, and general location of all proposed wastewater and water system infrastructure.

B. An approving agency may grant an administrative waiver to a development that received a preliminary project approval prior to May 4, 2010. Administrative waivers expire according to §C of this regulation and may be extended according to §D of this regulation.

C. Expiration of Administrative Waivers.

(1) Except as provided for in §D of this regulation, an administrative waiver shall expire on:

(a) May 4, 2013, if the development does not receive final project approval prior to that date; or

(b) May 4, 2017, if the development receives final project approval prior to May 4, 2013.

(2) All construction authorized pursuant to an administrative waiver must be completed by May 4, 2017, or, if the waiver is extended as provided in §D of this regulation, by the expiration date of the waiver extension.

D. Extension of Administrative Waivers.

(1) Except as provided in §D(2) of this regulation, an administrative waiver shall not be extended.

(2) An administrative waiver may only be extended if, by May 4, 2010, the development:

(a) Has received a preliminary project approval; and

(b) Was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement.

(3) Administrative waivers extended according to §D(2) of this regulation shall expire when the Development Rights and Responsibilities Agreement, the Tax Increment Financing approval, or the Annexation Agreement expires.

.05 When Stormwater Management is Required.

A. — B. (text unchanged)

C. Waivers.

(1) (text unchanged)

(2) [Stormwater] Except as provided in §C(3) and (5) of this regulation, stormwater management quantitative control waivers shall be granted only to those projects within areas where watershed management plans have been developed consistent with §E of this regulation.

(3) [If] Except as provided in §C(5) of this regulation, if watershed management plans consistent with §E of this regulation have not been developed, stormwater management quantitative control waivers may be granted to projects:

(a) That have direct discharges to tidally influenced receiving waters; [or]

(b) That are in-fill development located in a Priority Funding Area where the economic feasibility of the project is tied to the planned density, and where implementation of the 2009 regulatory requirements would result in a loss of the planned development density provided that:

(i) Public water and sewer and stormwater conveyance exist;

(ii) The quantitative waiver is applied to the project for the impervious cover that previously existed on the site only;

(iii) ESD to the MEP is used to meet the full water quality treatment requirements for the entire development; and

(iv) ESD to the MEP is used to provide full quantity control for all new impervious surfaces; or

[(b)] (c) (text unchanged)

(4) [Stormwater] Except as provided in §C(5) of this regulation, stormwater management qualitative control waivers apply only to:

(a) — (c) (text unchanged)

(5) Stormwater management quantitative and qualitative control waivers may be granted for phased development projects if a system designed to meet the 2000 regulatory requirements and local ordinances for multiple phases has been constructed by May 4, 2010. If the 2009 regulatory requirements cannot be met for future phases constructed after May 4, 2010, all reasonable efforts to incorporate ESD in future phases must be demonstrated.

D. Redevelopment.

(1) — (2) (text unchanged)

(3) An approving agency may develop separate policies for providing water quality treatment for redevelopment projects if the requirements of §D(1) and (2) of this regulation cannot be met. Any separate redevelopment policy shall be reviewed and approved by the Administration and may include, but not be limited to:

[(a) Retrofitting;

(b) Stream restoration;

(c) Pollution trading; or]

(a) A combination of ESD and an on-site or off-site structural BMP;

(b) Retrofitting including existing BMP upgrades, filtering practices, and off-site ESD implementation;

(c) Participation in a stream restoration project;

(d) Pollution trading with another entity;

[(d)] (e) Design criteria based on watershed management plans developed according to §E of this regulation[.];

(f) Payment of a fee-in-lieu; or

(g) A partial waiver of the treatment requirements if ESD is not practicable.

(4) The determination of what alternative stormwater management measures will be available may be made by the approving agency at the appropriate point in the development review process. Counties and municipalities shall consider the prioritization of alternative measures in §D(3) of this regulation after it has been determined that it is not practicable to meet the 2009 regulatory requirements using ESD. In deciding what alternative measures may be required, an approving agency may consider factors including, but not limited to:

(a) Whether the project is in an area targeted for development incentives such as a Priority Funding Area, a designated Transit Oriented Development area, or a designated Base Realignment and Closure Revitalization and Incentive Zone;

(b) Whether the project is necessary to accommodate growth consistent with comprehensive plans; or

(c) Whether bonding and financing have already been secured based on an approved development plan.

[(4)] (5) — [(7)] (8) (text unchanged)

E. (text unchanged)

• Roman type indicates text already existing at the time of the proposed action.
• Italic type indicates new text added at the time of proposed action.
• Single underline, italic indicates new text added at the time of final action.
• Single underline, roman indicates existing text added at the time of final action.
• [[Double brackets]] indicate text deleted at the time of final action.

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The EPA has recently released new guidelines to accompany ENERGY STAR New Homes Version 3.0 (also known as ENERGY STAR 2011), which will soon go into effect (see the implementation section to follow for more details).  According to the EPA, version 3.0 is designed to address several key areas that were overlooked in previous versions of the ENERGY STAR program. Several ways in which Version 3.0 meets these problem areas are by:

• Requiring third-party inspectors to enforce quality control of installation and commissioning;
• Instituting mandatory requirements for efficient hot water delivery;
• Requiring adoption of the Advanced Lighting Package or use of 80% screw-in ENERGY STAR qualified CFLs; and
• Penalizing "wasteful largeness" by requiring larger-than-average homes to achieve a more stringent HERS index threshold for ENERGY STAR qualification.

To qualify a home under Version 3.0, a home must meet the requirements of four checklists:

1. Thermal Enclosure System Rater Checklist
2. HVAC System Quality Installation Contractor Checklist
3. HVAC System Quality Installation Rater Checklist
4. Water Management System Builder Checklist (or Indoor airPLUS Verification Checklist)

Copies of the checklists are available on EPA’s website via this link.

To be eligible for qualification, a home must also meet the other requirements listed in the national program requirements document, including verification of all requirements by a Rater (the person completeing the third-party inspections required for qualification; this person may be a certified Home Energy Rater, BOP Inspector, or an equivalent designation as determined by a Verification Oversight Organization such as RESNET).

Implementation Schedule for Version 3.0:

Condos and Apartments in Multi-family buildings: Multi-family buildings may take advantage of an extended implementation schedule if they have permits issued before January 1, 2011 and are completed by January 1, 2012. This means that they can be qualified under the older version of ENERGY STAR (2.0: 2006 Guidelines).

Single-family homes: Some single family homes can also be qualified under the older version of ENERGY STAR (2.0: 2006 Guidelines), IF they have permits issued BEFORE January 1, 2011 AND  they are completed by July 1, 2011. If they have permits issued before January 1, 2011, but are not completed until the period between July 2, 2011 and January 1, 2012, then they must meet version 2.5 (this is a transitional version which is composed of the version 3.0 ENERGY STAR Reference Design coupled with the Air Barriers and Air Sealing sections of the Thermal Enclosure Checklist. Under version 2.5, the other inspection checklists shall be completed, but not enforced). If a single family home is not completed before January 1, 2012, then is must adhere to version 3.0.

All homes: If permits are issued AFTER January 1, 2011, and building is completed prior to January 1, 2012, then they must meet version 2.5

All homes: If permits are issued AFTER January 1, 2012, all buildings must adhere to version 3.0.

For more information, be sure to check out the EPA's website on the ENERGY STAR program via this link.

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