Maryland's Phase I Watershed Implementation Plan

Posted on June 4, 2010 by Megan Reuwer

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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The Industry's Reactions to the Draft 202(a) Report

Posted on October 29, 2009 by Megan Reuwer

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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