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

As many of my readers know by now, Governor O'Malley announced in his State of the State address last Thursday his proposal to ban "major" housing developments that use septic systems in an effort to further combat the leakage of pollution into the Chesapeake Bay.  This obviously is a major concern for builders in rural areas as well as those parts of Maryland that are within developing areas but that currently do not have sewer connectivity. Based on some reports and administration officials, this proposal, if enacted, could impact housing developments with as few as 6 homes. 

For an insightful article detailing the reactions of members of the building industry as well as local planning directors and state environmental agencies, check out an article appearing in the Baltimore Sun, authored by Timothy B. Wheeler, titled "Developers distressed over bid to curb septic systems". 

What are your reactions to O'Malley's proposal?

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It's 2011, and that means the final Chesapeake Bay TMDL is now available! In the final TMDL, only New York, Pennsylvania, and West Virginia received allocations that differed from those proposed in their final Phase I WIPs. Furthermore, because EPA determined that many of the jurisdictions’ final Phase I WIPs met all target allocations and/or met EPA’s expectations for reasonable assurance, EPA reduced or eliminated many of the backstop allocations that it had included for those jurisdictions in the September 24, 2010, draft Chesapeake Bay TMDL.

Although Maryland was not "threatened" with any of these backstop allocations as a result of its Phase I WIP, it continues its streak of rising above the crowd and is praised by EPA for establishing the goal of EXCEEDING the interim target allocations. Let's take a closer look...

In its December 29, 2010 Executive Summary, EPA notes that Maryland developed a final Phase I WIP input deck with nitrogen, phosphorus, and sediment controls that more than met the interim target allocations by achieving a 70 percent reduction by 2017, and met the nitrogen, phosphorus, and sediment target allocations by 2020. Maryland’s final Phase I WIP also met EPA’s expectations for providing reasonable assurance that these allocations will be met. As a result, EPA based Maryland’s final allocations entirely on Maryland’s final Phase I WIP.

 Maryland Allocations

Maryland meets its nitrogen, phosphorus, and sediment allocations for each basin in the final TMDL, based on EPA’s quantitative and qualitative evaluation of Maryland’s final Phase I WIP. Maryland submitted proposed modifications to its nitrogen, phosphorus, and sediment allocations in each of its five basins. EPA used the Chesapeake Bay Water Quality Model to confirm that these modifications would still attain applicable WQS. Maryland’s final Phase I WIP input deck resulted in jurisdiction-wide loads that are 0 percent over modified nitrogen, phosphorus, and sediment allocations. Maryland’s Bay TMDL jurisdiction-wide allocations are nitrogen 39.09 mpy; phosphorus 2.72 mpy; and sediment 1218.10 mpy.

 Maryland Agriculture

Maryland’s final Phase I WIP showed significant improvements from its draft Phase I WIP in the agriculture sector, including a strong contingency statement that significantly bolsters EPA’s reasonable assurance that Maryland will meet its agriculture targets by committing to explore new policy measures and mandatory BMP compliance options. For example, these could include a regulatory change that cover crops be planted on the highest risk acres. The Maryland final Phase I WIP also provides more detail on phosphorus management, strengthens contingencies, improves coordination with USDA, develops a plan for increasing staff levels, and selects a subset of strategies to implement by 2017.

EPA will maintain ongoing oversight of Maryland’s agriculture sector. EPA will use its national review of CAFO State Technical Standards in 2011 as an opportunity to identify any deficiencies in the State Technical Standards for protecting water quality. Through its review of State Technical Standards, EPA also will evaluate whether Maryland’s phosphorus management program is sufficient to address phosphorous imbalances and water quality concerns. If deficiencies are identified that are not addressed by Maryland or a CAFO permit does not include other conditions to achieve nitrogen and phosphorus reductions identified in the final Phase I WIP, EPA may object to permits if they are not protective of water quality.

Maryland Urban Stormwater

Maryland’s final Phase I WIP also showed significant improvement in its commitment to urban stormwater management. In the final Phase I WIP, Maryland committed to several actions to ensure reductions, including limits on lawn fertilizer use, use of natural filters such as riparian buffers and stream restoration, and an increase in watershed restoration requirements for MS4s by requiring additional nitrogen, phosphorus, and sediment reductions. The WIP also included a contingency plan whereby if local utilities or other systems of charges are not underway in 2012, Maryland will seek legislation requiring development of local stormwater utilities via a statewide system of fees. The final Phase I WIP also included descriptions of the policy, financing, and tracking mechanisms for implementing urban stormwater retrofit programs.

Maryland also included in its final Phase I WIP specific activities and milestones for urban stormwater program implementation, including the following:

• Renewal of Phase I MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate urban stormwater controls.
• Renewal of Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 20 percent of the impervious surface that does not have adequate urban stormwater controls.
• Renewal of State Highway Administration Phase I and Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate controls.
• Regulation of fertilizer applications on 220,000 acres of commercially managed lawns.

 

While EPA is satisfied overall with Maryland’s demonstration of reasonable assurance, EPA will closely track the nitrogen, phosphorus, and sediment reductions expected to result from these urban stormwater retrofits. EPA will maintain ongoing oversight of Maryland’s urban stormwater sector and will assess how well Maryland is able to track and quantify outcomes from the retrofits projected in its final Phase I WIP.

Maryland Wastewater

Maryland’s final Phase I WIP also showed significant improvement in the wastewater sector. Maryland committed to identify options to structure the Bay Restoration Fund (BRF) fee in order to fully fund Enhanced Nutrient Removal (ENR) upgrades at 67 public major wastewater treatment plants. Options include fees based on consumption, income, or other criteria; and, in 2012, to propose an amendment to the BRF statute to change the BRF fee in order to provide funding needed to complete the upgrades.. Maryland’s final Phase I WIP also included a contingency that if the BRF statute is not amended, “All funding for ENR projects will be reduced from 100 percent grant to provide partial grant funds for each remaining project. Local governments would be responsible for the balance of the necessary funding. State low interest loan funds would be available to assist.”

EPA will maintain ongoing oversight of Maryland’s wastewater sector to ensure that the actions detailed in the final Phase I WIP occur and achieve the expected pollutant reductions.

Maryland Conclusion

EPA applauds Maryland for following up a strong draft with an even stronger final Phase I WIP. Maryland clarifies how its existing programs will implement nitrogen, phosphorus, and sediment reductions ahead of schedule. Both Maryland and EPA are committed to carefully review progress and adopt contingency actions as necessary to achieve and maintain the nitrogen, phosphorus, and sediment reductions.

Maryland planners responsible for the Phase I WIP get a grade "A" from EPA...I just hope that the implementation phase is conducted smoothly and without too many growing pains.

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The draft Chesapeake Bay TMDL -which extends over portions of six states and Washington, DC, an area of 64,000 square miles, a total of 92 watersheds, and 17 million inhabitants -was published on September 24, 2010, and was available for review and public comment through November 8, 2010. The EPA’s stated plan is to produce a final TMDL by the end of 2010. Because the TMDL is being held out as a potential model in the formation of other TMDL's and nutrient reduction programs, and because the Chesapeake Bay TMDL will have a significant impact on the building industry, it's helpful for us to know what is being said about the draft TMDL via the public comments submitted to EPA.

The comment submitted by NAHB, the National Association of Home Builders, makes some excellent points specifically about the TMDL's impact on builders and developers.  Here are a few excepts from its comment dated November 8th, 2010 (the complete version of NAHB's public comment is available here as a pdf on www.regulations.gov):

1. The Chesapeake Bay TMDL's requirements will become a part of the National Pollutant Discharge Elimination System permits issued for controlling the stormwater discharges from construction sites, and will therefore become a part of the stormwater permits issued for homebuilding projects in the Bay watershed.
2. EPA intends to hold states, municipalities, NPDES permit holders, and citizens responsible if the states do not live up to EPA's visions of compliance.
3. The stringency of the new pollutant reduction requirements will significantly strain the already challenged state and local government budgets and may simply be unaffordable for the states and localities covered by the rule.

If local governments and municipalities cannot afford the costs associated with the TMDL - who is going to pay?

NAHB alleges that: The costs of the TMDL will be borne by the construction industry in the form of land, planning, and carrying costs; installation and maintenance of BMPs; and, in affected states that have no pollutant allocation set aside for future growth, the requirement to offset all pollutant loadings from new construction activities. These will ultimately be felt in the market as a combination of higher prices and lower output for the construction industry. As output declines and jobs are lost in the construction industry, other sectors of the economy that buy from or sell to the construction industry will also contract and lose jobs. Builders and developers already are being crippled by the economic downturn and the ability of the home-buying public to absorb significant new costs and the TMDL will further exacerbate these challenges. Further, because compliance costs are incurred prior to the home sales, builders and developers will be required to pay carrying costs, which add additional cost to projects.

-    Page 17 of the NAHB's comment on EPA-R03-OW-2010-0736.

These are troubling allegations for the building industry. It will be interesting to see if EPA responds to these and other points relating to inconsistencies in modeling in the final version of the TMDL.

Interested to see what other industry and agricultural sectors had to say? The complete set of public comments is available here, on the regulations.gov website.

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Based upon deficiencies in several of the draft Phase I Watershed Implementation Plans submitted by Chesapeake Bay watershed states in September, the EPA released its draft TMDL plan on September 24, 2010 with newly incorporated federal backstops. As a quick refresher, remember that the TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025.  The final TMDL will be established by December 31.

EPA's backstop measures include tightening controls on federally permitted point sources of pollution, such as wastewater treatment plants, large animal agriculture operations, and municipal stormwater systems. Let's take a quick look at all proposed backstops, then jump to those proposed specifically for Maryland.

All Federal Backstops (applied in varying degrees per jurisdiction):

1. Expand coverage of NPDES permits to sources that are currently unregulated;
2. Increase oversight of state-issued NPDES permits;
3. Require additional pollution reductions from point sources such as wastewater treatment plants;
4. Increase federal enforcement and compliance in the watershed;
5. Prohibit new or expanded pollution discharges;
6. Redirect EPA grants; and
7. Revise water quality standards to better protect local and downstream waters

In the draft TMDL, EPA proposes more extensive backstop allocations for Pennsylvania, Virginia, New York, Delaware and West Virginia - only minor changes were made to the plans for Maryland and the District of Columbia.

Federal Backstops for Maryland:

1. Maryland's Phase I WIP Analysis: EPA found some deficiencies - but found that it meets overall statewide allocations for nitrogen, phosphorus and sediment, with several individual river basins exceeding the allocations for nitrogen, phosphorus, or sediment.
2. Maryland's Federal Backstop Allocation: EPA asserts that it made "minor level" backstop allocations for Maryland's non-point source load allocations to meet nitrogen, phosphorus, and sediment allocations in each major basin within Maryland. EPA believes that the TMDL does not institute changes to point source wasteload allocations that would affect NPDES permit conditions.

While it is somewhat reassuring to read that EPA believes that the NPDES permit program would not require further federal oversight in Maryland, this is by no means a guarantee. If no new NPDES permits can be issued, then this would stymie the building industry.

The release of the draft TMDL begins a 45-day public comment period that will include public meetings in the watershed states. Maryland's scheduled meetings are as follows:

• Oct. 12, 2-4 p.m., The Easton Club, 28449 Clubhouse Drive, Easton, MD
• Oct. 13, 2-4 p.m. Sheraton Annapolis, Annapolis, MD
• Oct. 14, 2-4 p.m. Hagerstown Hotel and Convention Center, Hagerstown, MD

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State Phase I Watershed Implementation Plans (WIPs) for the Chesapeake Bay TMDL were due yesterday, September 1, to EPA for its review and approval.  Some states did not meet that deadline, but all WIPs should be done within the next few days and forwarded to EPA.  The WIPs will be available on this website.  As of  today, the WIPs that are available on the website are for Delaware; Washington, DC; West Virginia; Pennsylvania; New York; and Maryland.  I've linked to Maryland’s DRAFT WIP via the "Useful Links" section (below).  Virginia has notified EPA that it will have its WIP done by end of this week.   

Maryland's draft Plan was developed by the Maryland Departments of the Environment, Natural Resources, Agriculture, and Planning, using the State’s BayStat process, to comply with the new EPA Chesapeake Bay Total Daily Maximum Load (TMDL) requirements due by the end of this year. The agencies are now seeking public comment and input on the draft Plan and will hold four regional meetings over the next five weeks.

Useful Links:

• Maryland's Draft Phase I WIP - Executive Summary
• Maryland's Draft Phase I WIP
• Transmittal Letter to EPA
• Public Meetings - Save the Dates

The WIPs are to be finalized in November of this year and will be a part of the Chesapeake Bay TMDL package to be published on September 24, 2010.  

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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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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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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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In a Washington Post article titled “Chesapeake Bay advocates call EPA cleanup plan too weak,” published December 31, 2009, author David A. Fahrenthold reports that a collection of scientists, environmentalists and ex-politicians have stepped forward to admonish the EPA that its plans to protect and restore the Chesapeake Bay  in response to Executive Order 13508 aren’t nearly tough enough. 

Fahrenthold writes that the 38-member group, brought together by a former Maryland state senator, said the EPA is not moving aggressively enough to curb pollution that drains off farmland or to protect the forests that serve as a natural water filter.

According to Fahrenthold, the group gathered at the Maryland State House and included several "waterkeepers" -- advocates for the Patuxent, Severn, Choptank and other bay tributaries -- and prominent scientists who study crabs, oysters and water pollution. Former U.S. representative Wayne T. Gilchrest (R-Md.) and former U.S. senator Joseph D. Tydings (D-Md.) also were there.

The EPA has said that it plans to punish states that lag behind their cleanup goals (sanctions could include some prohibitions on new subdivisions or sewage plants, more restrictions on farms and tighter controls over federal grants to states), but the group said that the federal government should do more than that, and is calling for Congress to pass legislation to expand that power to punish.

They said all but the smallest farms should face tight restrictions on the disposal of animal manure, which can wash into bay tributaries and feed the algae that cause dead zones. And they said the EPA should require forests to be protected -- or replanted -- on 85 percent of the shoreline of the Chesapeake and its tributaries.

Fahrenthold further writes that the group also called for Congress to pass legislation sponsored by Sen. Benjamin L. Cardin (D-Md.) and Rep. Elijah E. Cummings (D-Md.) that would give the EPA more muscle to punish states (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act). The bill has been opposed by agricultural groups and home development firms, which say it will impose crushing costs on their industries.

Next week, we'll take an in-depth look at S. 1816 (introduced October 20, 2009 and referred to the Senate Environment and Public Works Committee) to get a sense of possible industry ramifications should this bill become law.

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The Federal Leadership Committee for the Chesapeake Bay released its Draft Strategy for Protecting and Restoring the Chesapeake Bay on November 9, 2009 (concurrent with the Draft Strategy, an Executive Summary was released). Comments on the Draft Strategy are due by January 8, 2010 and the final strategy for protecting and restoring the Chesapeake Bay is to be completed and released by May 12, 2010.

The Draft Strategy isn't very different from the Draft 202(a) Report submitted by the EPA to the Federal Leadership Committee. Some of the recommendations that may be of particular interest to the building industry include:

1. Development of an Economic Market for Ecosystem Services: Federal agencies will support the development of innovative technologies and economic markets as a way to provide landowners with an incentive to practice sustainable agriculture and forestry. Essentially, entities such as urban water utilities, industrial polluters, and land developers who must pay to mitigate negative impacts to the watershed will pay for the implementation of conservation practices that offset those impacts. USDA will lead a collaborative federal effort to develop ecosystem markets in the Chesapeake Bay watershed.

2. Promote Smart Growth and Sustainable Development: Because land use has a direct impact on the environment, federal agencies will promote sustainable development and smart growth through assistance and tools to local governments. DOT, EPA and the Department of Housing and Urban Development will convene a series of forums and partner with local governments to conduct integrated transportation, land use, housing, and water infrastructure planning in a sustainable and environmentally sensitive manner. DOT will promote use of public transportation, bicycling, and walking, and partner with the Department of Energy (DOE) on a pilot project to support increased use of electric cars.

There are a couple of statements in the Draft Strategy that seem to directly address some of the concerns raised by the industry during listening sessions with the EPA. For example, page 23 of the Draft Strategy addresses the cost implications for more stringent stormwater management practices for new construction but ultimately concludes that change is more valuable:

Demonstrating the value of changing our behaviors is a difficult task. Often, such changes are viewed as a threat to people’s lifestyle or economic well-being. Reducing stormwater runoff, for example, may require the installation of new technologies in both residential and commercial developments. Requirements to use new roofing technologies or porous pavement have the potential to raise the price of such development. Partnering with states and communities to lead change in community planning and individual choices is important to bring all stakeholders and residents into the effort to achieve and sustain a healthy system.”

Here are a few statistics cited in the Draft Strategy that builders and developers may find interesting:

1. Between 1990 and 2000, the amount of land in the watershed covered by impervious surfaces increased by about 41 percent, while population in the Bay watershed grew by 8 percent. Stormwater running off urban and suburban lands is now the fastest-growing source of pollution in the Bay. (Draft Strategy p.19)

2. Construction sites can contribute, on a per-acre basis, 10 to 20 times more sediment than do agricultural lands. (Draft Strategy p. 22)

3. A one-acre parking lot produces about 16 times the volume of runoff that comes from a one-acre meadow.” (Draft Strategy p.31)

4. Development has increasingly altered both natural and cultural landscapes, tearing at the very fabric that defines the region and supports our way of life….Moreover, converting forests and open spaces to development simply exacerbates pollution problems now harming the Bay and its rivers. On average, an acre of forest delivers just 3.3 lbs of nitrogen to streams annually; an acre of developed land delivers 32.9 lbs of nitrogen annually. (Draft Strategy p. 33)

If you have any statistics, data, or general comments that you'd like to make to the FLC and the EPA as they go forward in developing a more concrete strategy, it's important to submit them by January 8, 2010 to be considered. Comments can be provided via this link.

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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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