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

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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