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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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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The U.S. Green Building Council (USGBC) released LEED v3, effective April 27, 2009, which replaces former versions of LEED. The new LEED v3 implements some major changes from previous versions, including:

• Creation of Regional Priority Points: the USGBC has recognized that location plays a fundamental role in credit applicability, and has created six regional credit opportunities (based on a project's zipcode). Of the 6 potential points, only 4 can be earned per project.
• 100 Point Scale: the new LEED v3 implements a 100 point scale (and actually, more than 100 points are available with the new Regional Priority points and Innovation in Design points). To become LEED certified, a building now needs to achieve at least 40 points; 50 points are needed for Silver; 60 points for Gold; and 80 points for Platinum certification.
• To learn more about LEED v.3, check out this webinar featuring the U.S. Green Building Council's Brendan Owens.

How do the new changes impact Maryland builders and developers?

Although Regional Priority credits vary by zipcode, there are emergent themes for the Maryland region that include an emphasis on:

• Sustainable Sites (particularly SS Credit 5 -Site Development, SS Credit 6 -Stormwater Design, SS Credit 7.1 - Heat Island Effect, Non-roof, and SS Credit 8 - Light Pollution Reduction)
• Water Efficiency (particularly WE Credit 2 - Innovative Wastewater Technologies, and WE Credit 3 - Water Use Reduction)

The selection of these credits as Regional Priorities reveals the important role that water plays as an environmental resource in the Maryland region, and incentivizes the protection of our major water resources via stormwater management techniques to limit both the quantity and quality of runoff from development sites, and encourages overall water use reduction. USGBC's choice of Regional Priority points seems to be well-tailored for our region to address the most current concerns.

What do you think? Are the new Regional Priority points a good idea?

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