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

If you're interested in news and original commentary on green building, environmental laws, and other sustainability initiatives impacting Maryland, follow me on Twitter @BuildingGreenMD

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As a state, we have green building laws that have existed and that continue to come into existence in the northern and central parts of Maryland (Baltimore City, Annapolis, Howard County, and Montgomery County), but I think that we're beginning to see local governments moving - albeit at more of the turtle's pace than the hare's-  towards integrating green building requirements in the southern counties. In particular, I'm talking about the exceptionally lovely Charles, Calvert, and St. Mary's Counties.

Charles County: Charles County is beginning to take a more active role in mandating green building for some publicly-owned or funded buildings.

• The Town of La Plata passed Town Council Resolution #08-2, which requires that all town-owned and town-funded new construction and major renovations greater than 5,000 square feet become LEED Certified. According to this Resolution, the Town of La Plata is leading the way in green building in Charles County - its La Plata Town Hall is the County's first LEED certified building.
• "LEED or its equivalent” language is becoming integrated in zoning approvals.  For example, a bill passed in 2009 rezoned 48 acres from the Agricultural Conservation zone in Charles County to the Planned Employment Park zone which allows for the inclusion of industrial, office, and retail components.  As a condition of that bill, the owner-applicant is required to obtain LEED certification “at both the site level and the architectural level.” As a side note, this is an interesting (read: complicated!) requirement because the LEED certification process isn't broken down into two levels of certification.  There is no site development certification that is separate and apart from the building/architectural review - therefore, it could prove difficult for the owner to satisfy this condition (self-serving plug in 3...2...1: if you're a developer facing issues like this, you might benefit by having a land use attorney that's familiar with green certification requirements on your team). 

Calvert County: Calvert County is in the planning phases for green building laws.

•  At the end of 2008, the Director of Planning and Zoning began advocating that the Board of County Commissioners consider enacting green building amendments to the Zoning Ordinance– but, to my knowledge, nothing has been implemented yet.
• Calvert County has created a Green Team that is charged with the task of making recommendations regarding the County's future green building goals.  Some of the Green Team's recommendations include preparing town center ordinances that facilitate green site and building design and requiring future county-owned buildings over 10,000 square feet to comply with LEED Silver certification.

St. Mary’s County:  St. Mary's County is home to some incredible LEED-certified institutions.

• The Evergreen Elementary School is LEED Gold certified and won an award last night at the USGBC Maryland Chapter's 5th Annual Awards Ceremony. 
• St. Mary’s College has a LEED Silver certified academic building

Predictions: There's a pattern that counties, towns, cities and other municipalities follow when going green.  The first step is to require that publicly owned or funded buildings incorporate green elements or achieve various levels of certification.  As the local government becomes more comfortable with legislating green, the focus may start to transition towards the private sector (Baltimore City and Annapolis are good examples). While the shift to mandating green building for private construction might be a bit far off in the future for these southern Maryland counties, I think we're beginning to see the first steps.

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Did you know that Maryland has a Green Building Council that was created by state law in 2007? It's true - and this Council is charged with some pretty important responsibilities (expanded by state law in 2009), including:

1. Evaluating current high performance building technologies;
2. Providing recommendations for cost-effective green building technologies for the State to consider requiring in the construction of State facilities;
3. Providing recommendations concerning how to expand green building in Maryland; and
4. Developing of a list of building types for which green building technologies should not be applied, considering the operational aspects of these facilities, and considering a waiver process where appropriate.
5. As part of these tasks, the Council must report annually to the Governor and the General Assembly on its recommendations and any progress that has been made during the preceding year by November 1.

Let's take a look at the 2009 Annual Report to review some important recommendations that, if implemented, will impact the green building industry in Maryland:

• Encourage green building practices that can be done without government funding: This might not be the most welcome recommendation by members of the building industry.  As we've learned from industry leaders like Marnie Abramson in previous posts, there are learning curve costs associated with going green. If there are no incentives to help offset those costs, then we might see less novice, would-be green builders taking those beginning steps.
• Reward exceptional projects through high-profile awards recognition: I think this is a great idea - if the government makes a commitment to publicize (and keep publicizing) the "greenest" buildings in the State, this will continue to create market recognition (and eventually, market demand) for these types of projects.  Maybe the Council could take this recommendation one step further by also rewarding the tenants/occupants of the greenest buildings through a badge or logo that they can display in their spaces to further publicize the program.
• Require that new or renovated buildings (greater than 7,500 square feet) on State-owned or State-leased land achieve LEED Silver certification: This is followed in the Report by a recommendation that all major building projects funded entirely or in part by the State meet LEED Silver (to include construction by local governments, boards of education, community colleges, bond bill recipients, health care providers, and affordable housing developers). This would significantly expand the existing mandate for green building in Maryland (which is set forth in the High Performance Building Act - see section 2 of this prior post for details).
• The "bare minimum" recommendation: The Council acknowledges that mandates that change accepted practices tend to evoke a negative reaction and may be resisted by those impacted by the change. With that in mind, the Council suggests that, at a bare minimum, applicants for State aid for building construction should be requested by lawmakers to provide detailed descriptions of how green their projects are anticipated to be, and this information should be considered when decisions are made on the extent of funding they receive. [Pg. 11 of 2009 Report]. This is both a carrot and a stick - and "punishment" and a reward system that could penalize those not green enough while rewarding the greenest among us. I think this might have promise because it's not an out-and-out mandate, but it does have a bit of teeth to it.  On the practical side, if implemented, it will likely require a greater time component for those requesting State aid.

We'll see if and how these recommendations are addressed as this year's Session gets to business.

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There are a couple of interesting upcoming events and presentations concerning green building and smart growth in Maryland that you may want to consider attending.

1.  Green Building: An Overview of Tax Incentives and Local Regulations (co-presented by yours truly). Details: This breakfast seminar will feature two components: An exploration of available federal and state tax incentives for green building practices; and a review of existing and proposed green building regulations affecting Montgomery, Prince George’s, Calvert, Charles, St. Mary’s, Howard and Anne Arundel Counties and the District of Columbia. Your presenters are Kevin Jones, Esq., CPA of Watkins Meegan and William M. Shipp, Esq. & LEED AP and Megan L. Reuwer, Esq. & LEED AP of O’Malley, Miles, Nylen & Gilmore, P.A.

• When: Tuesday, January 26, 2010 from 8:30am-10:00am
• Where: Amicus Green Building Center, 4080 Howard Ave., Kensington, MD
• How to Register: http://www.mncbia.org/cde.cfm?event=283562 Cost is $20 for members of the MNCBIA and $35 for non-members (includes breakfast). 

2.  The Task Force on the Future for Growth & Development presents a Stormwater Management Forum that is open to the public.

• When: January 15, 2010 from 1:00-4:00pm
• Where: MDE, Aqua Conference Room - 1st Floor, 1800 Washington Blvd, Baltimore, MD
• For further details, please see: http://www.mdp.state.md.us/YourPart/773/773Meetings.shtml#20100115

Hope to see some of you at these events.

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Before launching into an analysis of Senator Cardin’s bill (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act) as promised, I have a quick update on last week’s post, in which we learned that some people found fault with the EPA’s plan to implement its task of protecting and restoring the Chesapeake Bay. We were also made aware that the EPA had sent a “consequence” letter to the six watershed states outlining the potential steps that the EPA might take should a state fail to meet the EPA’s expectations for developing a Watershed Implementation Plan or should that state not meet its performance milestones. A copy of the Region III letter is now available; I have also made a pdf of the letter that I’ve marked up to highlight the consequences that may resonate the most with the building industry (see Enclosure B, in particular, for the real meat of the consequences as presented to the states).

Now, on to S. 1816 – let’s begin with a few basic facts:

• Title of bill: A bill to amend the Federal Water Pollution Control Act to improve and reauthorize the Chesapeake Bay Program.
• Sponsors of bill: Sen. Benjamin Cardin (MD), Sen. Barbara Mikulski (MD), Sen. Edward Kaufman (DE), and Sen. Thomas Carper (DE)
• Last major action: November 9, 2009 (Committee on Environment and Public Works Subcommittee on Water and Wildlife)

Several notable provisions of the bill (of general interest):

1. Calls for the continuation of the Chesapeake Bay Program
2. Proposes establishment of additional grants to Bay states
3. Calls for the creation of a nitrogen and phosphorus trading program
4. Similar to the EPA's announced strategy for restoring and protecting the Bay in response to Executive Order 13508, the bill requires that each Bay state adopt a Watershed Implementation Plan (due on or before May 12, 2011). The Plan must include state-adopted management measures that are binding and enforceable as well as an enforcement mechanism to include a penalty structure for failures (example: fees or forfeiture of State funds). In light of the "consequences" letter sent by the EPA discussion above, it's interesting to see that the bill asks the Bay states to craft their own penalties - as least with respect to their Watershed Implementation Plans.

Provisions of the bill that specifically impact land development:

1. Stormwater Permits - effective January 1, 2013, Bay state must provide assurance that the owner or operator of any development or redevelopment project with an impervious footprint size to be determined through rulemaking, will use strategies "to the maximum extent technically feasible" to maintain or restore the predevelopment hydrology of the property with regard to stormwater temperature, rate, volume and flow, AND the property owner or operator will compensate for any unavoidable impacts.  A definition of the terms "predevelopment hydrology," "development or redevelopment impervious footprint," and "compensation" does not yet exist and regulations defining these terms aren't "due" until December 31, 2012...!
2. Federal oversight of projects resulting in impervious development - (1) Administrator to establish guidance for site design, construction, and maintenance to ensure land maintains previous hydrology; and (2) establish model ordinances for low-impact development infrastructure techniques.

I think this bill, if passed into law, will significantly broaden federal control and oversight of the Bay states.  This could be positive if the end result is actual protection and restoration of the Bay and its ecosystem; but there's also a federalism issue here that could prove quite negative.

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