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

On December 31, 2008, the Maryland Waterkeepers challenged the “final determination” for MDE's new general permit for stormwater related to construction activity disturbing one or more acres.  MDE and the Waterkeepers reached a settlement agreement in May, and MDE is accepting Notices of Intent to be covered by the new general permit (NOIs) effective July 13, 2009. 

Highlights of changes incorporated by the new general permit include:

• Enhanced opportunities for public participation: MDE will scan NOI forms and make them available for public inspection via a new database to be available on MDE's website. The posting of the project in the database will start a minimum public participation period (length of period is dependent upon disturbed area size). In addition, the public will be able to access, by request, all plans for construction activity and any reports prepared pursuant to the permit, including self-inspection information. 
• Potential for Citizen Opposition: Citizens may object to an NOI and request that MDE require an individual permit for a specific site.  The Director of WMA will decide if an individual permit will be required "based on an evaluation of all comments received." It's not clear yet what criteria will be assessed in evaluating public comments. 
• Written Explanation on Erosion and Sediment Control Plans: All new erosion and sediment control plans that are not currently covered under an earlier version of the general permit must include a written explanation on the plan that address 8 comprehensive points. Trouble is, there's not much guidance provided by MDE on how these items are to be addressed...
• Ongoing Compliance Assessments: If the MDE determines that a permittee's stormwater discharge may cause or has reasonable potential to cause "an excursion above any applicable water standard," MDE will require the permittee to modify existing stormwater controls to address the problem or potential problem, as the case may be.

In addition to the changes required under the new permit regime, individual discharge permits will be required in one instance and may be required in others.  As the MDE notes on its website:

In order to ensure water quality standards are met, MDE has decided to continue to require individual discharge permits for all construction sites disturbing 150 acres or more that discharge stormwater to waters impaired by pollutants associated with construction activity.  Also, individual permits will be required for construction sites disturbing between 30 and 150 acres that discharge to waters impaired by pollutants associated with construction activity if MDE receives a timely objection to the NOI that credibly supports the conclusion that, due to site-specific issues, applicable technical standards included under the general permit are not sufficient to ensure the protection of water quality standards. [emphasis added]

What kinds of arguments will "credibly support" a conclusion that an individual permit is warranted? We will likely find out once Joe Public begins to avail himself of the increased avenues for his involvement in this process.

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On May 12, 2009, the Office of the Press Secretary for the White House released Executive Order 13508, Chesapeake Bay Protection and Restoration. The goals elucidated in the Executive Order are to "protect and restore the health, heritage, natural resources, and social and economic value of the Nation's largest estuarine ecosystem and the natural sustainability of its watershed..."

To accomplish these goals, the Order directs various federal agencies to develop separate reports on key challenges to protecting and restoring the Chesapeake Bay. These draft reports are due to the newly established Federal Leadership Committee for the Chesapeake Bay on September 9, 2009.

The Environmental Protection Agency is charged with drafting the so-termed Section 202(a) Report; the goal of this report is to define the next generation of tools and actions to restore water quality in the Chesapeake Bay and describe the changes to be made to regulations, programs, and policies to implement these actions.

I attended a listening session between the EPA and several representatives of home builders and developers in the Chesapeake Bay watershed area on August 10 in Washington, D.C. to discuss stormwater issues.

Here are some of the most pressing concerns voiced during that meeting:

• The EPA has concluded that runoff from urban and suburban lands, including septic systems, is the only source of pollution that is increasing. Therefore, it's likely that the 202(a) Report will recommend that even higher standards be implemented for new construction projects in order to prevent runoff.
• The Report may recommend placing much of the burden for reducing pollution levels on new construction projects rather than implementing retrofitting policies for existing projects. It may be difficult to achieve the goals set by the Order if the runoff attributable to existing development is not being addressed. 
• Recommendations made in the Report may result in even higher land approval and development costs than current market conditions support.

Feel free to give the EPA feedback , or post your comments here for discussion.  There is also a Facebook Group that the EPA has set up as an alternate discussion forum.

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In June 2009, the Maryland Department of the Environment published its Model Stormwater Management Ordinance as part of its obligation under the Environment Article, Title 4, Subtitle 2 of the Annotated Code of Maryland to execute a statewide stormwater management program to control new development runoff. As this document will serve as the model for developing, reviewing, and approving all Maryland county and municipal stormwater management regulations, it merits review.

Complying with the directive to put into practice Environmental Site Design (ESD) to the maximum extent practicable (MEP) requires significant changes to the way that stormwater management for new development and redevelopment will be conceived, designed, reviewed, and built in Maryland. Indeed, as the Introduction to the Model Ordinance notes:

“[t]he changes required to implement the Stormwater Management Act of 2007 are significant and will force developers, designers, and plans review agencies to consider runoff control from the start of the land development process.”

What kind of changes might we expect to see as Maryland counties and municipalities promulgate their own stormwater management ordinances?

• Less flexibility: According to state law, ESD must be implemented to the MEP. This requirement will likely make attaining a waiver of runoff control more difficult if not impossible. Those counties and municipalities that may want to build some waiver provisions into their ordinances must be explicit in specifying what categories will be used and how the policy will be administered, and MDE retains final review and approval of all proposed waivers.
• More oversight: Local plans review and approval agencies will have to ensure that all reasonable opportunities for ESD are exhausted to meet rainfall treatment targets - this means more oversight likely earlier on in the process.
• Agency coordination: The Act requires a comprehensive and coordinated approval process among all appropriate local agencies. Review and comments must be obtained early in the process from agencies that may not have been involved in stormwater approval in the past -a feat that may prove taxing as local agencies learn how coordinate their review processes.
• Rewriting of existing standards:  Existing development standards and restrictions may conflict with the directive of implementing ESD to the MEP.  Under the Act, counties and municipalities are instructed to modify any conflicting provisions  - but potential conflicts could cause confusion in the interim.
• Mindset shift: If MDE is successful, mindsets will shift from looking for ways to avoid stormwater management in project design to looking for opportunities to provide it.

 What do you think? Are there other kinds of changes that you anticipate as the new ordinances come into effect?

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The U.S. Green Building Council (USGBC) released LEED v3, effective April 27, 2009, which replaces former versions of LEED. The new LEED v3 implements some major changes from previous versions, including:

• Creation of Regional Priority Points: the USGBC has recognized that location plays a fundamental role in credit applicability, and has created six regional credit opportunities (based on a project's zipcode). Of the 6 potential points, only 4 can be earned per project.
• 100 Point Scale: the new LEED v3 implements a 100 point scale (and actually, more than 100 points are available with the new Regional Priority points and Innovation in Design points). To become LEED certified, a building now needs to achieve at least 40 points; 50 points are needed for Silver; 60 points for Gold; and 80 points for Platinum certification.
• To learn more about LEED v.3, check out this webinar featuring the U.S. Green Building Council's Brendan Owens.

How do the new changes impact Maryland builders and developers?

Although Regional Priority credits vary by zipcode, there are emergent themes for the Maryland region that include an emphasis on:

• Sustainable Sites (particularly SS Credit 5 -Site Development, SS Credit 6 -Stormwater Design, SS Credit 7.1 - Heat Island Effect, Non-roof, and SS Credit 8 - Light Pollution Reduction)
• Water Efficiency (particularly WE Credit 2 - Innovative Wastewater Technologies, and WE Credit 3 - Water Use Reduction)

The selection of these credits as Regional Priorities reveals the important role that water plays as an environmental resource in the Maryland region, and incentivizes the protection of our major water resources via stormwater management techniques to limit both the quantity and quality of runoff from development sites, and encourages overall water use reduction. USGBC's choice of Regional Priority points seems to be well-tailored for our region to address the most current concerns.

What do you think? Are the new Regional Priority points a good idea?

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