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

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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Last Thursday, July 15th, I attended the last scheduled Bay Watershed Implementation Plan Regional Exchange, held at the Prince George's County Soil Conservation District Office in Upper Marlboro...and let me tell you - The. Room. Was. PACKED! There's obviously a lot of interest in how this plan is going to be created, implemented, and then monitored, and rightly so! The plan will have a huge impact on how we address nutrient and sediment deposits in the Bay watershed.

The purpose of this meeting was twofold: first, for the primary host, Maryland's Department of Natural Resources, to explain a bit about the eventual phases of the Plan (there are three) and the basic tasks that they've been charged with addressing in the plan; and second, for input from citizens on how to tackle the challenges of meeting the interrelated goals established by the TMDL and by the President's Executive Order (see this post for general information on the WIP, this post for information on the recently announced TMDL allocations for Maryland, and this post for information on the President's Executive Order on the Chesapeake Bay).

Highlights from Catherine Shanks (Department of Natural Resources) informative presentation include the following:

• The state can and will allocate loads to sectors and sources - this means eventually allocating nutrient and sediment maximums per County (probably in Phase II of the WIP). (My editorial: important questions here include: What branch of the County government will be responsible for implementing, tracking, and monitoring the plan? How will land use designations be correlated amongst counties in determining the allocations? How will allocations within the County be doled out? What happens when maximum capacity is reached?)
• Accounting for growth will be a major component of the plan. (My editorial: this could have a profound impact on the building industry).
• The WIP's interaction with other water management plans is still something that is on the table - how will the plan interact with MS4 programs?
• DNR is considering implementing water policies at the state level as a possibility to address growth issues, including zoning and transportation factors.
• Anne Arundel and Caroline counties are currently in pilot programs at the county level, and the results of these programs will likely be attached to the Phase I WIP as an addendum.
• Phase I of the WIP will be available for public comments starting on September 24 and concluding on November 8, 2010.

The public pulse - here are a few comments and ideas generated at the meeting:

• The amount of nutrient and sediment flowing into the watersheds near already developed/urban areas will likely be higher than in less developed, rural areas. How are we going to prevent the unintended consequence of pushing development into more rural areas that have less nutrient and sediment impact (i.e., will the plan create higher allocations at urban centers to encourage infill and redevelopment?)
• MDE should raise its permit fees to help pay for inspection and monitoring (My editorial: this is of concern - the concept of increasing already high fees simply because these permitees are easy targets doesn't gel).
• There should be a critical area type program created for ALL the waters of the state
• Make those responsible for the nutrient deposits responsible for the cost of implementing the plan (My editorial: this could be very fair for the industry - many studies and reports show that farming activities are the highest producers of nutrient and sediment deposits in the watershed).
• The state should create legislation mandating a tax/fee on impervious surface area created.

As you can see, some of the comments made, if taken into consideration in the WIP, will be very unfavorable towards the industry. It's going to be important to comment during the public review phase (September 24- November 8, 2010) to get the industry's voice heard.  There were a few representatives of the industry present at the meeting who spoke quite eloquently and appealed to the plan makers on the concept of growth management, but the meeting was primarily attended by citizen environmental activists and environmental groups.

If you're interested in reading comments made at other regional exchange meetings, MDE has posted each meeting in PowerPoint format on its website, available here.

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