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

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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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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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 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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