Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : The Law Offices of Megan L. Reuwer, P.A. : MD Green Building, Sustainability

On May 11, 2011, HB 972 was signed into law. This is enabling legislation that allows the Department of Housing and Community Development to adopt by regulation the International Green Construction Code and authorizes local jurisdictions to adopt and make local amendments to the International Green Construction Code.  It becomes effective on March 1, 2012.

Will we soon see local jurisdictions begin to adopt the IGCC in its entirety or make amendments to the Code?

• Probably. Maryland is an environmentally progressive state, and many of its jurisdictions have been quick to incorporate some form of green building requirements or incentives into their local laws, therefore, it's easy to anticipate that provisions of the IGCC may be appealing to local governments as they continue to mandate "green."

So what is the IGCC?

• It is intended to provide model code language that is designed to link together concepts of green building design, building performance, and building safety. It is an overlay code that is intended to advance our existing codes, and uses provisions of the International Energy Conservation Codes as a baseline.

Similar to other green building initiatives, the IGCC focuses on things like energy conservation, water efficiency, building owner responsibilities, site impacts, building waste, and materials and resource considerations. Unlike other green building initiatives (LEED being one example), the IGCC, if adopted by your local jurisidiction (in whole, or in part), will become enforceable and mandatory as part of regular code compliance.

Therefore, the provisions that local jurisidictions choose to adopt and/or to amend will be very important for builders and developers. If and when your local jurisdiction introduces legislation to adopt the IGCC, you will want to become involved in that process as early as possible to voice your concerns. The beauty of HB 972 is that it gives local governments the flexibility to pick and choose those provisions of the IGCC that will work based on that locality. We'll take a look at some of the model language from the IGCC in a follow-up post so you'll be aware of some of the important provisions of the code.

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I want to very briefly announce the formation of my new law practice, The Law Offices of Megan L. Reuwer, P.A. The opening of my own doors is a very exciting milestone in my life and I am thankful for those who have helped to make it possible! If you're ever in the area, I invite you to stop by for a tour of my new space located at 5300 Dorsey Hall Drive, Suite 107, in Ellicott City, Maryland. I look forward to keeping you informed of developing legal issues impacting the building and development industry on this blog, and I look forward to working with you in the future should you ever require real estate related legal services.

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I want to very briefly announce the formation of my new law practice, The Law Offices of Megan L. Reuwer, P.A. The opening of my own doors is a very exciting milestone in my life and I am thankful for those who have helped to make it possible! If you're ever in the area, I invite you to stop by for a tour of my new space located at 5300 Dorsey Hall Drive, Suite 107, in Ellicott City, Maryland. I look forward to keeping you informed of developing legal issues impacting the building and development industry on this blog, and I look forward to working with you in the future should you ever require real estate related legal services.

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Based upon deficiencies in several of the draft Phase I Watershed Implementation Plans submitted by Chesapeake Bay watershed states in September, the EPA released its draft TMDL plan on September 24, 2010 with newly incorporated federal backstops. As a quick refresher, remember that the TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025.  The final TMDL will be established by December 31.

EPA's backstop measures include tightening controls on federally permitted point sources of pollution, such as wastewater treatment plants, large animal agriculture operations, and municipal stormwater systems. Let's take a quick look at all proposed backstops, then jump to those proposed specifically for Maryland.

All Federal Backstops (applied in varying degrees per jurisdiction):

1. Expand coverage of NPDES permits to sources that are currently unregulated;
2. Increase oversight of state-issued NPDES permits;
3. Require additional pollution reductions from point sources such as wastewater treatment plants;
4. Increase federal enforcement and compliance in the watershed;
5. Prohibit new or expanded pollution discharges;
6. Redirect EPA grants; and
7. Revise water quality standards to better protect local and downstream waters

In the draft TMDL, EPA proposes more extensive backstop allocations for Pennsylvania, Virginia, New York, Delaware and West Virginia - only minor changes were made to the plans for Maryland and the District of Columbia.

Federal Backstops for Maryland:

1. Maryland's Phase I WIP Analysis: EPA found some deficiencies - but found that it meets overall statewide allocations for nitrogen, phosphorus and sediment, with several individual river basins exceeding the allocations for nitrogen, phosphorus, or sediment.
2. Maryland's Federal Backstop Allocation: EPA asserts that it made "minor level" backstop allocations for Maryland's non-point source load allocations to meet nitrogen, phosphorus, and sediment allocations in each major basin within Maryland. EPA believes that the TMDL does not institute changes to point source wasteload allocations that would affect NPDES permit conditions.

While it is somewhat reassuring to read that EPA believes that the NPDES permit program would not require further federal oversight in Maryland, this is by no means a guarantee. If no new NPDES permits can be issued, then this would stymie the building industry.

The release of the draft TMDL begins a 45-day public comment period that will include public meetings in the watershed states. Maryland's scheduled meetings are as follows:

• Oct. 12, 2-4 p.m., The Easton Club, 28449 Clubhouse Drive, Easton, MD
• Oct. 13, 2-4 p.m. Sheraton Annapolis, Annapolis, MD
• Oct. 14, 2-4 p.m. Hagerstown Hotel and Convention Center, Hagerstown, MD

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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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