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 you know, one of the biggest agenda items for local building industry groups this year was the scheduled phasing in of the new Stormwater Management regulations which were to apply to projects that had not achieved “final approval” for their erosion and sediment control and stormwater management plans by May 4, 2010.

THE CONCERNS:

The stormwater management regulations implementing the 2007 Stormwater Management Act were causing a lot of concern to developers and builders mainly for two reasons:

1. The grandfathering provisions were not very favorable for projects in the pipeline that may not be able to achieve “final approval” prior to May 4, 2010; and
2. The regulations as written may have had the effect of making infill development and redevelopment more difficult and therefore less attractive as a development site – especially problematic since a major tenement of “Smart Growth” relates to reducing suburban sprawl through infill development and redevelopment of existing sites.

Building and housing industry groups were gearing up to testify before the House Environmental Matters Committee on HB 1125 on Wednesday, March 10^th, but this meeting was canceled in light of the announcement that a new compromise had been reached (kudos to MML, MACo, NAIOP, CBF, 1000 Friends, MDE and MSBA for their roles in reaching this agreement). Under the compromise agreement, Maryland Department of the Environment will issue emergency regulations to revise the stormwater requirements that more fully address these two chief concerns.

THE COMPROMISE:

Grandfathering: Those projects that have received some sort of preliminary approval (but not “final approval”) prior to May 4, 2010, may be granted an administrative waiver by the local jurisdiction. A project that has been granted an administrative waiver will not be required to meet the new regulations, but will be governed by the stormwater ordinance in effect as of May 4, 2009 in the jurisdiction where the project is located. The administrative waiver will expire if the project does not attain “final approval” by May 4, 2013, or begin construction before May 4, 2017. 

The administrative waiver may be extended, but ONLY IF the project has received a “Preliminary Project Approval” prior to May 4, 2010 AND was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement. An extension granted under this circumstance will expire when the DRRA, TIF, or Annexation Agreement expires.

Redevelopment Sites: The emergency legislation will define redevelopment as “any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent.” 

For all redevelopment projects, the stormwater regulations require reducing imperviousness, implementing ESD to the MEP to provide water quality treatment for one-inch of rainfall, or using some combination of these for at least 50% of the existing impervious area.

There are several alternative stormwater management measures that may be considered if addressing 50% of the site’s impervious area cannot be accomplished. These include a combination of ESD and on-site or off-site structural Best Management Practices (BMPs), or other options including:

• participation in a stream restoration project;
• pollution trading with another entity;
• Watershed Management Plans;
• payment of a fee-in-lieu; and/or
• Partial Waiver of the treatment requirement to the extent that ESD is not practicable.

In deciding what alternatives measures may be required, a local government may consider:

• whether the project is in an area targeted for development incentives, such as a PFA, a designated Transit Oriented Development (TOD) area, or a designated BRAC Revitalization and Incentive Zone;
• whether the project is necessary to accommodate growth consistent with comprehensive plans; and
• whether bonding and/or financing has already been secured based on an approved development plan.

CONCLUSIONS:

I think this is a good compromise for all: it doesn't water down (pardon the cheesy pun) the intent of the Stormwater Management Act because all new projects will be required to comply with the new regulations - but it does give those projects that have made substantial progress fair footing in terms of allowing them to be constructed according to the rules in which they began the often costly and time intensive process of developing property. The next step, of course, will be the drafting of the emergency regulations implementing the terms of the compromise. I'll track the progress here to keep you posted.

For more information, check out this story in today's edition of the Baltimore Sun by Timothy B. Wheeler.  Hat tip also to the Maryland-National Capital Building Industry Association for their advocacy efforts on behalf of their members and the industry.

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On November 23, 2009, the EPA issued its pre-publication version of new effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites. This rule requires construction site owners and operators to implement a range of erosion and sediment control measures and pollution prevention practices to control pollutants in discharges from construction sites. The rule is effective 60 days after publication in the Federal Register (likely sometime in February 2010) and will be phased in over four years.

The rule requires certain construction site owners and operators to sample stormwater discharges and comply with a numeric standard for the pollutant turbidity in these discharges. Existing national stormwater regulations at 40 CFR 122.26 currently require dischargers engaged in construction activity to obtain NPDES permit coverage and to implement control measures to manage discharges associated with construction activity. This category is the largest category of dischargers in the NPDES program. However, there are currently no national performance standards or monitoring requirements for this category of dischargers. This regulation establishes a technology-based “floor” or minimum requirements on a national basis.

EPA is phasing in the numeric limitation over four years to allow permitting authorities adequate time to develop monitoring requirements and to allow the regulated community time to prepare for compliance with the numeric limitation.

• 20 acre disturbances: Construction sites that disturb 20 or more acres at one time will be required to conduct monitoring of discharges and comply with the numeric limitation beginning 18 months after the effective date of the final rule.
• 10 acre disturbances: Beginning four years after the effective date of the final rule, the monitoring requirements and numeric limitation will apply to all sites that disturb 10 or more acres at one time. These effluent limitations would, for many sites, require an additional layer of management practices and/or treatment above what most state and local programs are currently requiring. It's important to note, however, that the sampling requirements and turbidity requirements apply ONLY so long as the total disturbed land area at one time is 10 or more acres.
• 1 or more acre disturbances: The final rule requires construction site owners and operators that disturb one or more acres to use best management practices to ensure that soil disturbed during construction activity does not pollute nearby water bodies.

Other pertinent facts:

• Because of the phase-in period for the numeric limit, and the timing of state construction general permit renewals, it is expected that the cost of the rule will be $8 million in 2010, $63 million in 2011, and $204 million in 2012.
• EPA is not dictating that specific technologies be used to meet the numeric limitation, but is specifying the maximum daily turbidity level that can be present in discharges from C&D sites.
• Through the pre-publication version of the rule, the EPA presents argument and concludes that turbidity is a pollutant as that term is defined in the Clean Water Act.

The new requirements must be incorporated into any new general permits issued after the effective date of the regulation and the requirements also apply to individual permits issued by states or EPA.

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On Monday, November 2, 2009, I attended a “Get the Dirt Out” training session taught by members of the Potomac Riverkeeper. The goals of these training sessions are to teach citizens how to identify and report potential construction site erosion and sediment control violations. The Potomac Riverkeeper organization has developed a Construction Site Report for public use that asks witnesses to potential sediment and erosion control violations to assess sites based on criteria including (1) stormwater appearance; (2) construction entrances and exits; (3) perimeter controls; (4) storm drain and inlet protection; (5) soil stabilization and cover; (6) sediment traps and basins; (7) outlet protection; and (8) encroachment on water bodies. The organization encourages citizens to take numerous photographs of the perceived violations, to submit those photographs to agencies responsible for inspecting the site, and then to follow-up with inspectors to make sure the compliant has been received and the identified issues addressed.

The motivations of this program (to keep responsible parties accountable for implementing best management techniques on their sites) are good, but I can think of a couple of concerns this raises from an industry perspective:

1. Lack of Knowledge of Applicable Laws: For the most part, your average person does not know the laws and regulations governing stormwater management BMPs and sediment control on construction sites. If you’re not aware of the law, it’s difficult to know when the law is being violated. In the scenario in which a developer or construction site manager is complying with the law, but the citizen files a report mistakenly believing that the law and/or regulation has been violated, the developer may incur additional administrative expenses (i.e., time expended to meet with inspector; time expended to meet with citizen; cost of creating and supplying response material to counter complaint filed by citizen). It seems to me like it would be a good idea for construction site managers and developers to become proactive about photographing their own sites and updating their logs with measures taken in anticipation of such reports being filed.
2. Trespass and Liability Issues: The Potomac Riverkeeper members at the particular training session that I attended were careful to warn citizens not to trespass on private construction sites; however, some of the criteria identified on the Construction Site Report sheet seems to invite a more detailed exploration of the premises. This could in turn raise liability issues if a citizen is harmed while evaluating the site.

I thought it interesting that the Riverkeeper instructors echoed a theme that I also heard last week at the EPA meeting on the Draft 202(a) Report: even though sediment and other pollutants are known to come from sources such as agriculture and farming practices, construction sites are targeted because, due to the existing regulatory scheme, it’s easy for citizens to affect change. 

To me, this is a double-edged sword. It’s great that we, as citizens, can enforce accountability when needed; however, it also becomes unfair if we can only hold a fraction of those responsible accountable for their actions.

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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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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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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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