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

On October 27, 2009, I attended the second listening session hosted by the EPA to discuss the building industry’s comments, concerns, and suggestions in response to the Draft 202(a) Report (Draft Report Fulfilling Section 202a of Executive Order 13508) issued by the agency on September 9, 2009. This report, as its title states, is a draft that will be considered by the Federal Leadership Committee as it prepares its draft strategy to restore the Bay. The draft strategy report is expected to be available for public comment on November 9, 2009.

Before jumping into the industry’s concerns about the draft report, here’s a brief summary of some of the potential 202(a) strategies outlined in the report itself:

1. Accountability Program: Creating a new accountability program to guide federal and state efforts to restore the Bay. This could be created in conjunction with the TMDL process that will begin in December 2010. The TMDL will allocate pollutant reductions to both point and non-point sources (including stormwater and agricultural runoff). As part of the TMDL implementation, EPA will expect Maryland to provide documented “reasonable assurance” that the non-point source loading restrictions will be achieved. EPA will use its authority under section 117(g) of the Clean Water Act to determine and set “expectations” for a Clean Water Accountability Program. Success of the program may be evaluated by two-year milestones detailing actions taken and progress made towards reaching water quality goals.
2. Consequences: If jurisdictions fail to commit to an accountability program OR if they fail to meet their two-year milestones, then the EPA may (a) revise the TMDL to assign more stringent reduction responsibilities to point sources; (b) object to state-issued NPDES permits; (c) take action to limit or prohibit new or expanded discharges of nutrients and sediments; (d) withhold or reallocate federal grant funds; (e) or take other action as appropriate.
3. New rule-making: To address stormwater concerns, this could include expanding the jurisdiction of the regulatory MS4 program to include high-growth areas and establish minimum performance standards within permits consistent with Bay water goals. EPA asserts that its authority for this new rule-making could fall under the Clean Water Act.

There were representatives from various home builder associations in attendance at the meeting, along with developers, builders, attorneys, and members of planning agencies. Here is a synopsis of the most compelling reactions and concerns:

1. Some of the proposed consequences and rule-making seems to exceed the EPA's regulatory authority.
2. There is a concern among residential builders that some of the nitrogen attributed to new construction activities fails to take into consideration the fact that this nitrogen could be the result of homeowner activities.
3. The building and development industry is an easy target for rule-making because it is one of the most heavily regulated industries. How is the EPA going to distribute the burden of paying for the clean-up initiatives required under the program? Has it considered the possibility of creating more oversight over industries such as agriculture (which is a top pollutant source)?
4. Has the EPA considered enacting a retrofit program for existing development? Upgrading stormwater management facilities in older neighborhoods could greatly help in reaching the 202(a) goals.
5. It's important to build some flexibility into whatever the final strategies will be - we need to have the ability to mitigate off-site especially in those urban, redevelopment areas that many planning agencies have targeted as smart growth areas.

The EPA seemed responsive to the concerns voiced during this listening session, but since the next phase (the draft strategy report) will be issued so quickly (a mere two weeks after this meeting), I have some doubts that any of these concerns can be adequately addressed in time. It's going to be very important for those expressing concern over the strategies once they are revealed on November 9, 2009, to get those comments submitted into the record. I'll post a link to the announcement in the Federal Register once the draft strategy is released.

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In this prior post, I provided commentary on a listening session that the EPA held with members of the building and development industry on President's Obama's Executive Order on restoring and protecting the Chesapeake Bay.  A major concern voiced by the industry during that meeting was that new development would bear the brunt of any changes in stormwater management practices as a result of the EPA report. There is now a second listening session scheduled to take place on October 27, 2009 for local home builders and developers to discuss EPA's draft recommendations for the Bay. I will be attending this meeting and will be sure to share my observations with you next week.

In preparation for the meeting, I’ve reviewed the Chesapeake Stormwater Network’s (CSN) recent Chesapeake Bay Stormwater Report Card – and, as the CSN notes, the grades are pretty dismal. In fact, for the ten core stormwater implementation categories recognized by the CSN, Maryland scores a D+ or below in 6 categories and earns an overall grade point average of a D+.

So what is this Report Card and how was it scored? Well, according to its author:

The basic approach I took was to grade each state on how well it was doing in ten core areas of stormwater implementation — how effective were they in protecting or restoring the Chesapeake Bay watershed from the impacts of past or future land development?  When the issue is framed this way, it is possible to define quantitative “Bay-friendly” benchmarks that can be graded and compared among the states. The simple benchmarks measure whether existing state programs foster real on-the-ground implementation of sustainable stormwater and restoration practices that can make an incremental difference in solving the Bay stormwater problem.

The complete Report Card goes on to cite some statistics that readers of this blog may find particularly interesting (and worrisome):

1. The continuing wave of land development constitutes a major threat to the quality of tributary streams and the health of the Chesapeake Bay. Consider the following:
   Stream habitat and biological diversity in 10,000 stream miles of the Bay watershed has been degraded by past development, and hundreds more stream miles are at risk from future development. Scientific studies have documented that as little as 8 to 10 percent impervious cover causes major degradation in streams in the ridge and valley, piedmont and coastal plain provinces. Other research has linked severe degradation of fish and benthos communities in small estuaries of the Bay, when as little as ten percent of land is developed in their contributing watersheds.
2. Urban land constitutes the fastest growing nutrient load source in the Bay watershed. In 1985, developed lands produced less than 5% of the nutrient load to the Bay. In 2005, the total nitrogen and total phosphorus load produced by developed land climbed to 19 and 30% of the total load delivered to the Bay, 6 respectively. The sharp increase in urban nutrient loads reflects both increased urban sprawl and recent nutrient reductions from wastewater treatment plants, and to a lesser extent, croplands.
3. Developed lands currently produce nearly 20% of the annual sediment load to the Bay, primarily due to urban streambank erosion and construction site runoff.
4. Bacteria levels in urban stormwater runoff routinely exceed water quality standards, and cause closure of streams, beaches and shellfish harvesting areas after significant rains throughout much of the watershed.
5. Pesticides have been detected in 95% of urban streams and fish tissues sampled, and stormwater runoff from urban lands has created a distinct pollution signature of trace metals, PCBs, hydrocarbons and other toxic compounds in the sediments urban Bay estuaries.

Wow. It will be interesting to see if the release of this Report Card impacts the EPA's final report or if it comes up for discussion at the next listening session. I'll be sure to keep you posted.

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Here's a link to an interesting polling question regarding the economy's impact on green efforts in businesses published in today's edition of the Washington Business Journal. I'll monitor the results and repost them when they're available.

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October 1 was big day in terms of effective dates for new laws impacting the building industry. In addition to the No Net Loss of Forest Policy -Forest Conservation Act (see this prior post for details), October 1 also saw the effective date for SB 625, codified at Md. Code Ann. Public Safety Article §12–501, 12–503, 12–504(a), and 12–505(a)(1). The changes implemented by this law require the Maryland Department of Housing and Community Development to adopt the 2009 International Energy Conservation Code (IECC) as part of the Maryland Building Performance Standards. In turn, local governments must adopt and enforce the most current Maryland Building Performance Standards within six months of the State’s adoption of these Standards.

• According to the U.S. Department of Energy, the 2009 IECC may produce approximately 15% in energy efficiency gains compared to the other most recent edition of the IECC.

These gains may be realized in the form of reduced energy costs to homeowners and commercial building owners, however, these energy savings will also likely come at a cost. As identified in the Fiscal and Policy Note prepared by the Department of Legislative Services, enforcing the 2009 IECC may result in increased construction costs. Specifically, the Note acknowledges that, based on 2005 data from the U.S. Census Bureau, 88.9% of construction firms in Maryland had fewer than 20 employees and 98.1% had fewer than 100 employees. Implementing the requirements of the 2009 IECC may specifically have an impact on these smaller businesses by forcing them to change their commercial and residential construction practices - thereby increasing the cost of doing business. If this increased cost of “doing business” is passed on the residential consumer this will, in turn, impact the affordability of Maryland’s housing stock.

So we're left with several important questions:

1. Are consumers willing to pay more up front for a reduced energy bill in the long run?
2. And, most importantly, how well do energy efficiency gains translate into energy savings, and are these savings really worth the up front cost?

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In mid-September, the EPA published its intent to establish a Chesapeake Bay-wide Total Maximum Daily Load (TMDL) for nutrients and sediment for “all impaired segments in the tidal portion of the Chesapeake Bay watershed” via Volume 74, No. 179 of the Federal Register.

According to the notice, a TMDL is being developed for the Chesapeake Bay because water pollution in the Bay prevents the attainment of existing State water quality standards and the pollutants that are largely responsible for this impairment are nutrients in the form of nitrogen and phosphorus along with sediment.

What will the TMDL do?

The TMDL will establish the watershed pollution budget for nutrients and sediment necessary to meet water quality standards in the Bay, taking into consideration both point (i.e., sources discharging to waterbodies through a pipe or other direct conveyance) and nonpoint (agricultural and other unchanneled stormwater runoff) sources of pollutants. Because the EPA’s ability to influence nonpoint sources has been limited in the past, under the Bay TMDL, the EPA is working with local jurisdictions to develop “innovative approaches” to achieving nonpoint source reductions of nutrients and sediment.

If you’re thinking, “Well, I don’t build on the Bay, so the TMDL won’t impact me,” then you’d be sadly mistaken. The scope of the Bay TMDL will likely include about 92 impaired Bay and tidal tributary segments and may therefore result in 92 TMDLs (one for each impaired segment). The EPA estimates that when the TMDL is completed, it will the largest, most complex TMDL in the country, covering a 64,000 square mile area in six States and the District of Columbia.

What actions might I take?

The EPA will hold a series of public meetings between November and December 2009 and a second public comment period will be held in the summer of 2010 once a draft TMDL is developed. At this point, the EPA requests that the public provide to EPA any water quality related data and information that may be relevant to the development and calculation of the Chesapeake Bay TMDL by December 18, 2009. This is a great opportunity for the development and building industries to gather pertinent data (especially on nonpoint sediment runoff) and to get that information submitted so that it can be reviewed during the establishment of the TMDL.

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Maryland SB 666: Natural Resources – No Net Loss of Forest Policy – Forest Conservation Act (codified at Md. Ann. Code Natural Resources Article 5-104; 5-1602 et seq.) takes effect today, October 1, 2009.

This bill will have an impact on Maryland builders, developers, and homeowners in a number of ways:

1. Cooperation with Shareholder groups: The bill requires the Department of Natural Resources to cooperate with forestry-related shareholder groups to determine the meaning of no net loss of forests for state policy purposes and to develop proposals for the creation of a policy of no net loss of forest in the state. The Department of Natural Resources is to report on these proposals on or before December 1, 2011. (Md. Ann. Code Natural Resources Article 5-104).
2. Decrease exemption from Forest Conservation Plan requirement from 40,000 square feet to 20,000 square feet: Under previous law (Md. Ann. Code Natural Resources Article 5-1602(b)(7)(i)), a person with a recorded single lot was able to remove up to 40,000 square feet of forest without having to submit a Forest Conservation Plan. Effective today, October 1, 2009, a person with a single recorded lot is only allowed to remove up to 20,000 square feet of forest without a Forest Conservation Plan.
3. No change to Forest Stand Delineation requirements: A person making an application for subdivision or grading or sediment control permits still needs to submit a forest stand delineation for the entire site if the area is greater than 40,000 square feet. (Md. Ann. Code Natural Resources Article 5-1604(a)).
4. Variance required for certain priority trees, shrubs, plants and specific areas: The applicant must demonstrate that she qualifies for a variance under Md. Ann. Code Natural Resources Article 5-1611 in order to disturb (i) trees, shrubs, or plants identified on the list of rare, threatened, and endangered species of the U.S. Fish and Wildlife Service or the Department; (ii) trees that are part of a historic site or associated with a historic structure or designated by the Department or local authority as a national, State, or local Champion Tree; and (iii) Trees having a diameter measured at 4.5 feet above the ground of (a) 30 inches; or (b) 75% of the diameter, measured at 4.5 feet above the ground, of the current State Champion Tree of that species as designated by the Department. (Md. Ann. Code Natural Resources Article 5-1607(c)(2)). Previously, this section required a demonstration that reasonable efforts had been made to protect these priority trees, shrubs, plants, and locations and that the plan could not be reasonably altered.  The requirement for a variance requires that the applicant meet a higher standard of review.

These are some pretty significant changes. Any thoughts on how they might specifically impact you?

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