Building a Green Maryland

May 4th: An Important Date for Years to Come

Megan Reuwer — Tue, 09 Mar 2010 11:02:17 -0500

As many of you know, one of the biggest agenda items for local building industry groups this year was the scheduled phasing in of the new Stormwater Management regulations which were to apply to projects that had not achieved “final approval” for their erosion and sediment control and stormwater management plans by May 4, 2010.

THE CONCERNS:

The stormwater management regulations implementing the 2007 Stormwater Management Act were causing a lot of concern to developers and builders mainly for two reasons:

The grandfathering provisions were not very favorable for projects in the pipeline that may not be able to achieve “final approval” prior to May 4, 2010; and
The regulations as written may have had the effect of making infill development and redevelopment more difficult and therefore less attractive as a development site – especially problematic since a major tenement of “Smart Growth” relates to reducing suburban sprawl through infill development and redevelopment of existing sites.

Building and housing industry groups were gearing up to testify before the House Environmental Matters Committee on HB 1125 on Wednesday, March 10^th, but this meeting was canceled in light of the announcement that a new compromise had been reached (kudos to MML, MACo, NAIOP, CBF, 1000 Friends, MDE and MSBA for their roles in reaching this agreement). Under the compromise agreement, Maryland Department of the Environment will issue emergency regulations to revise the stormwater requirements that more fully address these two chief concerns.

THE COMPROMISE:

Grandfathering: Those projects that have received some sort of preliminary approval (but not “final approval”) prior to May 4, 2010, may be granted an administrative waiver by the local jurisdiction. A project that has been granted an administrative waiver will not be required to meet the new regulations, but will be governed by the stormwater ordinance in effect as of May 4, 2009 in the jurisdiction where the project is located. The administrative waiver will expire if the project does not attain “final approval” by May 4, 2013, or begin construction before May 4, 2017.

The administrative waiver may be extended, but ONLY IF the project has received a “Preliminary Project Approval” prior to May 4, 2010 AND was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement. An extension granted under this circumstance will expire when the DRRA, TIF, or Annexation Agreement expires.

Redevelopment Sites: The emergency legislation will define redevelopment as “any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent.”

For all redevelopment projects, the stormwater regulations require reducing imperviousness, implementing ESD to the MEP to provide water quality treatment for one-inch of rainfall, or using some combination of these for at least 50% of the existing impervious area.

There are several alternative stormwater management measures that may be considered if addressing 50% of the site’s impervious area cannot be accomplished. These include a combination of ESD and on-site or off-site structural Best Management Practices (BMPs), or other options including:

participation in a stream restoration project;
pollution trading with another entity;
Watershed Management Plans;
payment of a fee-in-lieu; and/or
Partial Waiver of the treatment requirement to the extent that ESD is not practicable.

In deciding what alternatives measures may be required, a local government may consider:

whether the project is in an area targeted for development incentives, such as a PFA, a designated Transit Oriented Development (TOD) area, or a designated BRAC Revitalization and Incentive Zone;
whether the project is necessary to accommodate growth consistent with comprehensive plans; and
whether bonding and/or financing has already been secured based on an approved development plan.

CONCLUSIONS:

I think this is a good compromise for all: it doesn't water down (pardon the cheesy pun) the intent of the Stormwater Management Act because all new projects will be required to comply with the new regulations - but it does give those projects that have made substantial progress fair footing in terms of allowing them to be constructed according to the rules in which they began the often costly and time intensive process of developing property. The next step, of course, will be the drafting of the emergency regulations implementing the terms of the compromise. I'll track the progress here to keep you posted.

For more information, check out this story in today's edition of the Baltimore Sun by Timothy B. Wheeler. Hat tip also to the Maryland-National Capital Building Industry Association for their advocacy efforts on behalf of their members and the industry.

Bethesda Bungalows Contributes Insight into the LEED v. NGBS Debate

Megan Reuwer — Wed, 03 Mar 2010 11:06:26 -0500

Last week, I had the distinct pleasure of meeting with Brad Beeson, the Director of Marketing for Bethesda Bungalows, to discuss and tour their “Incredibly Green Home of Chevy Chase” before it went to settlement. This house is built to meet both LEED for Homes Platinum and NAHB National Green Building Standard Emerald level certifications. Excitingly, the very morning that I was set to visit the house, Bethesda Bungalows received their NGBS Emerald certification for 5133 Fairglen Lane (pictured at left). They are still waiting to hear whether they will attain their LEED for Homes Platinum certification.

Since Bethesda Bungalows has direct experience with both the LEED certification process and with NAHB’s National Green Building Standard certification process, I thought that they’d have some valuable insight to contribute to the LEED v. NGBS debate.

Here’s a synopsis of some of the things that I learned from my discussion with Brad:

1. Documentation Processes: The time intensity required to complete the documentation process for pursuing LEED Platinum and NGBS Emerald certifications (both the highest levels of certification under both systems) is about equal.

2. Pro for LEED: The Credit Interpretation Requests available under LEED are extremely helpful in resolving “gray areas.” The NGBS, on the other hand, is a little less flexible.

3. Con for LEED: LEED performance path testing is more complicated and time-intensive than NGBS.

4. Pro for NGBS: The online scoring tool for NGBS was very helpful in assessing point potential. There isn’t really a counterpoint to this service under LEED. Additionally, the home received its NAHB NGBS Emerald certification before receiving a final determination from USGBC regarding its LEED certification.

5. Those pesky bonus points: On the other hand, the “bonus points” needed under the NGBS were hard to meet for Emerald level certification. (Like I mentioned in this previous post, the “minimums” needed for each certification level under the NGBS are NOT true minimums due to the “bonus point” requirement).

6. Preparation, training and experience is key: Training sessions with their subcontractors to make sure that everyone knew the green goals for the project were fundamental to the project’s success. Additionally, Bethesda Bungalows selected subcontractors, suppliers, and manufacturers that were experienced in green building. See their list of suppliers and manufacturers here.

7. Dual certifications aren't easy: Although there are points that overlap between LEED and NGBS that would support a decision to pursue both certifications for the same project, it’s not likely that this builder will pursue both for the same project again due to the time and organization systems needed for both.

In addition to being an "incredibly green home," 5133 Fairglen Lane is an incredibly beautiful home. I think some people have the perception that green building isn't very attractive, but this home is a true luxury home whose green features are seamlessly interwoven into its overall design.

Pending Green Building Bills in the 2010 Maryland General Assembly Session

Megan Reuwer — Wed, 24 Feb 2010 09:49:14 -0500

Members of the Maryland General Assembly have been busy bees during this 2010 Session and have introduced some interesting bills relating to green building. Here's a synopsis of four of those bills:

SB 215, High Performance Buildings Act - Applicability to Recipients of State Aid

Status: Bill is in the Senate - First Reading Budget and Taxation
Sponsors: Senators Frosh, Brochin, Conway, Harrington, Jones, King, Lenett, Madaleno, McFadden, Peters, Pinsky, Raskin, Robey, and Rosapepe
Summary: This bill amends the High Performance Building Act to require that any new building or major building renovation carried out by both for-profit and non-profit entities that is funded solely or partly by a grant of State aid be built as a high performance building. State aid is defined as a contribution, grant, or subsidy of at least $50,000 through the State operating or capital budget or directly from a State agency. Currently, under the existing High Performance Building Act, only new or renovated State buildings that are at least 7,500 square feet and are built or renovated entirely with State funds need to meet the high performance requirement.

SB 234, High Performance Buildings Act - Applicable to Community College Capital Projects

Status: Bill is in the Senate - First Reading Budget and Taxation
Sponsors: Senators Robey, Forehand, Frosh, Garagiola, Gladden, Harrington, Kelley, King, Lenett, Madaleno, Peters, Raskin, Rosapepe, and Zirkin
Summary: This bill requires that community college capital projects that receive State funds comply with the State's High Performance Buildings Act. It allows community colleges to apply for waivers from this requirement under existing waiver procedures. This bill takes effect July 1, 2010 and applies only to capital projects that have not initiated a request for proposals for the selection of an architectural and engineering consultant on or before July 1, 2011. According to the Fiscal and Policy Note, one consequence of this bill may be that, faced with a potential increased construction cost, some counties may opt to fund fewer capital projects.

HB 224, Plumbing - Greywater Recycling

Status: Bill is the House - First Reading Economic Matters
Sponsors: Delegates Morhaim, Cardin, McIntosh, and Stein
Summary: This bill prohibits counties from adopting or enforcing provisions of a local plumbing code that prohibit a system that recycles greywater. Greywater is defined as used, untreated water generated by a clotheswashing machine, a shower, or a bath tub. The definition EXCLUDES untreated water generated by a kitchen sink, a toilet (thank goodness!), and a dishwasher.

SB 285 - The Sustainable Communities Act of 2010

Status: Bill is in the Senate - First Reading Budget and Taxation
Sponsors: The President (By Request - Administration) and Senators Della, Exum, Forehand, Gladden, Harrington, Jones, King, Klausmeier, Lenett, Madaleno, Middleton, Peters, Pinsky, Pugh, and Stone
Summary: This bill reauthorizes and renames the Maryland Heritage Structure Rehabilitation Tax Credit Program as the Sustainable Communities Tax Credit Program. Governor O’Malley has proposed a three-year authorization with a $50 million allocation (20 million in FY 2011, 15 million in 2012, and 15 million in 2013 - tax credit is capped at 3 million per project); the purpose of the bill is to to help stimulate local economies, create construction jobs and support ecologically friendly development. The proposed Act would allow up to 40 percent of the credits to be made available to non-historic structures in established areas, such as Main Street business districts, Transit-Oriented Development areas near light-rail or train stations, and BRAC enterprise zones. The credit will be 10 percent of rehabilitation costs for non-historic structures, 20 percent for historic structures and 25 percent for historic renovations with LEED energy-saving certification. This is believed to be the first program of its kind in the nation to link historic preservation with “green” construction.

Ten Cost-Effective Green Building Steps You Can Take Right Now

Megan Reuwer — Fri, 12 Feb 2010 16:34:43 -0500

I mentioned last week that I learned a lot both from the instructor as well as from my classmates during my "Green Building for Building Professionals" course. The instructor of the course, John Barrows, literally wrote the text book for the class and he skillfully led us through many practical discussions on how to put our new residential green building knowledge to work in the field. Admittedly, I don't have much experience implementing actual construction best practices, but a lot of what we discussed makes sense on a basic level. With that being said, here's our* (*thanks again to my classmates and the instructor) top ten list of suggested measures that a builder can take right now to implement potentially cost-effective green measures:

Upfront planning will save you time and money in the long run. This applies to all aspects of a successful project. One example is to address the HVAC installation during the planning and design stage to ensure that ducts are placed inside the building envelope to avoid having to make framing modifications during installation.
Solar orient your homes to take advantage of natural light and radiated heat from the sun.
Manage waste on-site by recycling it. If building to a certification standard, remember that you can usually get points for recycling on-site waste (this is the case both for LEED and for Howard County's Green Neighborhood Program).
Use local and readily available resources where possible to reduce transit costs and associated energy consumption.
Develop detailed cut-lists based on engineering drawings to save yourself money wasted on unnecessary resources.
Practice "optimum value engineering" to reduce the amount of lumber used. Proponents of optimum value engineering suggest that hundreds of dollars per house can be saved by minimizing material useage (while at the same time meeting building codes' structural load-bearing requirements). Consult with an engineer to learn more.
Install weatherization shields properly around windows and seal around holes made for outlets and light fixtures. Holes in the interior air barrier contribute to moisture movement and energy loss.
Use refurbished materials like wooden doors, staircases, and antique door knobs to give new life to these elements and add character to your homes.
Design your plumbing systems so that less hot water is stored in the system and is delivered more efficiently to the point of use.
Educate your construction team members on your project's green goals and how to achieve them - remember that providing upfront education is more cost effective than fixing problems after the fact. Consider developing a mission statement or statement of goals and posting that mission conspicuously on the site. If you are building to a green performance standard (whether it be LEED, NGBS, or others), incorporate those standards in the scope of work or project specification.

These are just a few ideas that we came up with - can you think of others?

(Typical lawyer disclaimer: Yada, yada, yada...remember that these are ideas and not guarantees. Consult with your building professional team members to assess feasibility for your specific project. Not all ideas will work in every situation. Of course, feel free to talk to me about #10 - my firm would be happy to work with you to revise the text of your various contracts to specifically address green building performance standards.)

So You'd Like to Know More About The "National Green Building Standard," Huh?

Megan Reuwer — Fri, 12 Feb 2010 14:19:40 -0500

I've been busy digging myself out of the record snowfall we got here in Maryland the past few weeks, but I'm back now to let you know that in early February, I took the National Association of Home Builders’ (NAHB) “Green Building for Building Professionals” course; a two-day seminar needed to achieve NAHB’s Certified Green Professional designation. The course covers green building techniques for new residential construction as well as residential remodeling projects and also provides a good background of the various requirements of NAHB’s American National Standards Institute-approved National Green Building Standard. After completing the course, I realized that I've only briefly touched on the Standard here in my two-part interview with Tom Farasy - so I thought that a more in-depth review was needed.

Background on the National Green Building Standard:

In 2006, NAHB notified the American National Standards Institute (ANSI) that it intended to develop the National Green Building Standard. NAHB partnered with the International Code Council (ICC) in 2007 to develop the standard, and shortly thereafter, a call for committee members went out. The Consensus Committee on the National Green Building Standard consisted of 42 members that worked to develop a first draft of the Standard. The public had the opportunity to comment on the draft, and then a revised draft was vetted through seven Task Groups, each of which specialized in the different criteria contained in the Standard. The ICC 700-2008 National Green Building Standard was approved by ANSI as an American National Standard on January 29, 2009.

Applicability of the Standard:

The Standard applies to residential construction including single-family, multi-family, and the lots and sites upon which residential buildings are located, as well as to remodeling and additions to existing residential buildings.

One Major "Plus" Compared to LEED:

To me, one of the most significant differences in terms of certification types between the Standard and LEED-H is that a developer can attain certification under the Standard for site design and development prior to any construction being built on the site area. Certification levels are denoted by Stars, ranging from One Star (minimum of 79 points) up to Four Stars (minimum of 175 points). I think that certifying green site design and development separate and apart from construction is important for many reasons: (1) it allows developers of residential lots to set themselves apart from competitors by certifying their projects; (2) it recognizes that preparation of residential homes for delivery to the end consumer is a process that usually involves multiple parties (developer plus one or more builders) with distinct responsibilities; and (3) it recognizes that site design and development plays an important role in the overall “greenness” of the project.

One Major "Minus" Compared to LEED:

There's a very important point to be aware of when assessing your project under the Standard and that is this: the "minimum" performance points needed for each Chapter ARE NOT TRUE MINIMUMS! This means that if you go strictly by the book with the goal of meeting Bronze level and you achieve the 39 points you need for Chapter 5, the 45 points you need for Chapter 6, the 30 points you need for Chapter 7, the 14 points you need for Chapter 8, the 36 points you need for Chapter 9, and the 8 points you need for Chapter 10, you will FALL SHORT and fail to achieve Bronze by 50 POINTS! This is because the Standard has a bonus points category that a project MUST achieve for each certification level (Bronze through Emerald). You gain the needed "Additional Points" by over-achieving in other Chapters. Therefore, you MUST exceed the stated minimums in order to achieve the needed "Additional Points."

I learned a lot from my builder classmates about cost-effective, green steps a builder can take right now - and I'll be happy to share my "top ten" list with you...next week.

Building A Green Maryland is now on Twitter!

Megan Reuwer — Fri, 29 Jan 2010 15:25:33 -0500

If you're interested in news and original commentary on green building, environmental laws, and other sustainability initiatives impacting Maryland, follow me on Twitter @BuildingGreenMD

"Shoots" of Green Building Laws Emerging in Southern Maryland Counties

Megan Reuwer — Fri, 29 Jan 2010 13:45:54 -0500

As a state, we have green building laws that have existed and that continue to come into existence in the northern and central parts of Maryland (Baltimore City, Annapolis, Howard County, and Montgomery County), but I think that we're beginning to see local governments moving - albeit at more of the turtle's pace than the hare's- towards integrating green building requirements in the southern counties. In particular, I'm talking about the exceptionally lovely Charles, Calvert, and St. Mary's Counties.

Charles County: Charles County is beginning to take a more active role in mandating green building for some publicly-owned or funded buildings.

The Town of La Plata passed Town Council Resolution #08-2, which requires that all town-owned and town-funded new construction and major renovations greater than 5,000 square feet become LEED Certified. According to this Resolution, the Town of La Plata is leading the way in green building in Charles County - its La Plata Town Hall is the County's first LEED certified building.
"LEED or its equivalent” language is becoming integrated in zoning approvals. For example, a bill passed in 2009 rezoned 48 acres from the Agricultural Conservation zone in Charles County to the Planned Employment Park zone which allows for the inclusion of industrial, office, and retail components. As a condition of that bill, the owner-applicant is required to obtain LEED certification “at both the site level and the architectural level.” As a side note, this is an interesting (read: complicated!) requirement because the LEED certification process isn't broken down into two levels of certification. There is no site development certification that is separate and apart from the building/architectural review - therefore, it could prove difficult for the owner to satisfy this condition (self-serving plug in 3...2...1: if you're a developer facing issues like this, you might benefit by having a land use attorney that's familiar with green certification requirements on your team).

Calvert County: Calvert County is in the planning phases for green building laws.

At the end of 2008, the Director of Planning and Zoning began advocating that the Board of County Commissioners consider enacting green building amendments to the Zoning Ordinance– but, to my knowledge, nothing has been implemented yet.
Calvert County has created a Green Team that is charged with the task of making recommendations regarding the County's future green building goals. Some of the Green Team's recommendations include preparing town center ordinances that facilitate green site and building design and requiring future county-owned buildings over 10,000 square feet to comply with LEED Silver certification.

St. Mary’s County: St. Mary's County is home to some incredible LEED-certified institutions.

The Evergreen Elementary School is LEED Gold certified and won an award last night at the USGBC Maryland Chapter's 5th Annual Awards Ceremony.
St. Mary’s College has a LEED Silver certified academic building

Predictions: There's a pattern that counties, towns, cities and other municipalities follow when going green. The first step is to require that publicly owned or funded buildings incorporate green elements or achieve various levels of certification. As the local government becomes more comfortable with legislating green, the focus may start to transition towards the private sector (Baltimore City and Annapolis are good examples). While the shift to mandating green building for private construction might be a bit far off in the future for these southern Maryland counties, I think we're beginning to see the first steps.

The Maryland Green Building Council's 2009 Annual Report

Megan Reuwer — Wed, 20 Jan 2010 09:49:22 -0500

Did you know that Maryland has a Green Building Council that was created by state law in 2007? It's true - and this Council is charged with some pretty important responsibilities (expanded by state law in 2009), including:

Evaluating current high performance building technologies;
Providing recommendations for cost-effective green building technologies for the State to consider requiring in the construction of State facilities;
Providing recommendations concerning how to expand green building in Maryland; and
Developing of a list of building types for which green building technologies should not be applied, considering the operational aspects of these facilities, and considering a waiver process where appropriate.
As part of these tasks, the Council must report annually to the Governor and the General Assembly on its recommendations and any progress that has been made during the preceding year by November 1.

Let's take a look at the 2009 Annual Report to review some important recommendations that, if implemented, will impact the green building industry in Maryland:

Encourage green building practices that can be done without government funding: This might not be the most welcome recommendation by members of the building industry. As we've learned from industry leaders like Marnie Abramson in previous posts, there are learning curve costs associated with going green. If there are no incentives to help offset those costs, then we might see less novice, would-be green builders taking those beginning steps.
Reward exceptional projects through high-profile awards recognition: I think this is a great idea - if the government makes a commitment to publicize (and keep publicizing) the "greenest" buildings in the State, this will continue to create market recognition (and eventually, market demand) for these types of projects. Maybe the Council could take this recommendation one step further by also rewarding the tenants/occupants of the greenest buildings through a badge or logo that they can display in their spaces to further publicize the program.
Require that new or renovated buildings (greater than 7,500 square feet) on State-owned or State-leased land achieve LEED Silver certification: This is followed in the Report by a recommendation that all major building projects funded entirely or in part by the State meet LEED Silver (to include construction by local governments, boards of education, community colleges, bond bill recipients, health care providers, and affordable housing developers). This would significantly expand the existing mandate for green building in Maryland (which is set forth in the High Performance Building Act - see section 2 of this prior post for details).
The "bare minimum" recommendation: The Council acknowledges that mandates that change accepted practices tend to evoke a negative reaction and may be resisted by those impacted by the change. With that in mind, the Council suggests that, at a bare minimum, applicants for State aid for building construction should be requested by lawmakers to provide detailed descriptions of how green their projects are anticipated to be, and this information should be considered when decisions are made on the extent of funding they receive. [Pg. 11 of 2009 Report]. This is both a carrot and a stick - and "punishment" and a reward system that could penalize those not green enough while rewarding the greenest among us. I think this might have promise because it's not an out-and-out mandate, but it does have a bit of teeth to it. On the practical side, if implemented, it will likely require a greater time component for those requesting State aid.

We'll see if and how these recommendations are addressed as this year's Session gets to business.

Mark Your Calendars for Upcoming Green Building and Smart Growth Events

Megan Reuwer — Wed, 13 Jan 2010 16:29:56 -0500

There are a couple of interesting upcoming events and presentations concerning green building and smart growth in Maryland that you may want to consider attending.

1. Green Building: An Overview of Tax Incentives and Local Regulations (co-presented by yours truly). Details: This breakfast seminar will feature two components: An exploration of available federal and state tax incentives for green building practices; and a review of existing and proposed green building regulations affecting Montgomery, Prince George’s, Calvert, Charles, St. Mary’s, Howard and Anne Arundel Counties and the District of Columbia. Your presenters are Kevin Jones, Esq., CPA of Watkins Meegan and William M. Shipp, Esq. & LEED AP and Megan L. Reuwer, Esq. & LEED AP of O’Malley, Miles, Nylen & Gilmore, P.A.

When: Tuesday, January 26, 2010 from 8:30am-10:00am
Where: Amicus Green Building Center, 4080 Howard Ave., Kensington, MD
How to Register: http://www.mncbia.org/cde.cfm?event=283562 Cost is $20 for members of the MNCBIA and $35 for non-members (includes breakfast).

2. The Task Force on the Future for Growth & Development presents a Stormwater Management Forum that is open to the public.

When: January 15, 2010 from 1:00-4:00pm
Where: MDE, Aqua Conference Room - 1st Floor, 1800 Washington Blvd, Baltimore, MD
For further details, please see: http://www.mdp.state.md.us/YourPart/773/773Meetings.shtml#20100115

Hope to see some of you at these events.

The EPA "Consequences" Letter to States & Sen. Cardin's Chesapeake Clean Water and Ecosystem Restoration Act

Megan Reuwer — Wed, 06 Jan 2010 14:39:44 -0500

Before launching into an analysis of Senator Cardin’s bill (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act) as promised, I have a quick update on last week’s post, in which we learned that some people found fault with the EPA’s plan to implement its task of protecting and restoring the Chesapeake Bay. We were also made aware that the EPA had sent a “consequence” letter to the six watershed states outlining the potential steps that the EPA might take should a state fail to meet the EPA’s expectations for developing a Watershed Implementation Plan or should that state not meet its performance milestones. A copy of the Region III letter is now available; I have also made a pdf of the letter that I’ve marked up to highlight the consequences that may resonate the most with the building industry (see Enclosure B, in particular, for the real meat of the consequences as presented to the states).

Now, on to S. 1816 – let’s begin with a few basic facts:

Title of bill: A bill to amend the Federal Water Pollution Control Act to improve and reauthorize the Chesapeake Bay Program.
Sponsors of bill: Sen. Benjamin Cardin (MD), Sen. Barbara Mikulski (MD), Sen. Edward Kaufman (DE), and Sen. Thomas Carper (DE)
Last major action: November 9, 2009 (Committee on Environment and Public Works Subcommittee on Water and Wildlife)

Several notable provisions of the bill (of general interest):

Calls for the continuation of the Chesapeake Bay Program
Proposes establishment of additional grants to Bay states
Calls for the creation of a nitrogen and phosphorus trading program
Similar to the EPA's announced strategy for restoring and protecting the Bay in response to Executive Order 13508, the bill requires that each Bay state adopt a Watershed Implementation Plan (due on or before May 12, 2011). The Plan must include state-adopted management measures that are binding and enforceable as well as an enforcement mechanism to include a penalty structure for failures (example: fees or forfeiture of State funds). In light of the "consequences" letter sent by the EPA discussion above, it's interesting to see that the bill asks the Bay states to craft their own penalties - as least with respect to their Watershed Implementation Plans.

Provisions of the bill that specifically impact land development:

Stormwater Permits - effective January 1, 2013, Bay state must provide assurance that the owner or operator of any development or redevelopment project with an impervious footprint size to be determined through rulemaking, will use strategies "to the maximum extent technically feasible" to maintain or restore the predevelopment hydrology of the property with regard to stormwater temperature, rate, volume and flow, AND the property owner or operator will compensate for any unavoidable impacts. A definition of the terms "predevelopment hydrology," "development or redevelopment impervious footprint," and "compensation" does not yet exist and regulations defining these terms aren't "due" until December 31, 2012...!
Federal oversight of projects resulting in impervious development - (1) Administrator to establish guidance for site design, construction, and maintenance to ensure land maintains previous hydrology; and (2) establish model ordinances for low-impact development infrastructure techniques.

I think this bill, if passed into law, will significantly broaden federal control and oversight of the Bay states. This could be positive if the end result is actual protection and restoration of the Bay and its ecosystem; but there's also a federalism issue here that could prove quite negative.

EPA Plan: Critics Say Not Tough Enough

Megan Reuwer — Thu, 31 Dec 2009 10:59:13 -0500

In a Washington Post article titled “Chesapeake Bay advocates call EPA cleanup plan too weak,” published December 31, 2009, author David A. Fahrenthold reports that a collection of scientists, environmentalists and ex-politicians have stepped forward to admonish the EPA that its plans to protect and restore the Chesapeake Bay in response to Executive Order 13508 aren’t nearly tough enough.

Fahrenthold writes that the 38-member group, brought together by a former Maryland state senator, said the EPA is not moving aggressively enough to curb pollution that drains off farmland or to protect the forests that serve as a natural water filter.

According to Fahrenthold, the group gathered at the Maryland State House and included several "waterkeepers" -- advocates for the Patuxent, Severn, Choptank and other bay tributaries -- and prominent scientists who study crabs, oysters and water pollution. Former U.S. representative Wayne T. Gilchrest (R-Md.) and former U.S. senator Joseph D. Tydings (D-Md.) also were there.

The EPA has said that it plans to punish states that lag behind their cleanup goals (sanctions could include some prohibitions on new subdivisions or sewage plants, more restrictions on farms and tighter controls over federal grants to states), but the group said that the federal government should do more than that, and is calling for Congress to pass legislation to expand that power to punish.

They said all but the smallest farms should face tight restrictions on the disposal of animal manure, which can wash into bay tributaries and feed the algae that cause dead zones. And they said the EPA should require forests to be protected -- or replanted -- on 85 percent of the shoreline of the Chesapeake and its tributaries.

Fahrenthold further writes that the group also called for Congress to pass legislation sponsored by Sen. Benjamin L. Cardin (D-Md.) and Rep. Elijah E. Cummings (D-Md.) that would give the EPA more muscle to punish states (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act). The bill has been opposed by agricultural groups and home development firms, which say it will impose crushing costs on their industries.

Next week, we'll take an in-depth look at S. 1816 (introduced October 20, 2009 and referred to the Senate Environment and Public Works Committee) to get a sense of possible industry ramifications should this bill become law.

Happy Holidays!

Megan Reuwer — Wed, 23 Dec 2009 09:18:15 -0500

I am on vacation this week in sunny Florida (woohoo!), but I wanted to wish you all good times, good cheer, and a happy "green" new year!

Green Building in Maryland: An Analysis of 2009

Megan Reuwer — Thu, 17 Dec 2009 14:29:38 -0500

As we draw closer to the end of 2009, I'm beginning to think about statistics relating to green building here in Maryland (and no, I didn't quit my day job as an attorney to become a mathematician...). It's been a tough year in terms of getting new projects up and running, but, amazingly, the green building movement has continued to grow despite the weakened economy.

Here are a couple of interesting statistics for you to mull over:

In Maryland, 11 out of 24 Counties (counting the City of Baltimore) are working towards implementing some form of green building practices - in various forms including regulations mandating LEED certification (or its equivalent) for both public and private new construction projects; the offer of tax credits to incentivize green building techniques; the offer of added density to projects or for fast-track permitting processing; etc. Obviously, from an industry perspective, the use of incentives is more attractive (and hopefully those remaining 13 counties consider creating incentives if and when they decide to implement green building practices).
The number of LEED registered projects in Maryland has increased by over 35% this year; increasing from 520 in 2008 to over 800 by the end of 2009.
Maryland is home to over 60 LEED certified buildings, up from approximately 40 certified projects at the end of 2008
[Source for all statistics: www.usgbc.org]

It's great to see numbers like these considering the many challenges of 2009. Based on this type of performance, I'm betting that these numbers will continue to increase over the coming new year!

Interview with Marnie Abramson of The Tower Companies - Part II

Megan Reuwer — Wed, 09 Dec 2009 08:57:25 -0500

Last week, I posted the first part of a two-part interview with Marnie Abramson, a Principal and the Director of Public Relations and Marketing at The Tower Companies, about their double Platinum LEED certified 200,000 square foot, multi-tenant commercial building located at 2000 Tower Oaks Boulevard in Rockville, Maryland and about Tower's experiences with green building in general. I've heard from several readers personally about how much they've enjoyed Part I of the interview - and so I'm happy to share with you the continuation of that interview in Part II here today.

Has Tower been able to estimate the utility savings for 2000 Tower Oaks Boulevard as compared to a non-certified 200,000 square foot office building?

LEED doesn’t really translate across the board into energy savings. Because of the way the LEED point system is designed, you as a builder can pick and choose the points that you want to pursue. If you’re not pursuing the Energy & Atmosphere points, then there’s not going to be that correlation between your project and energy savings. It’s hard to estimate utility savings between a certified and non-certified building for these reasons; however, you can look at your Energy Star score. At 2000 Tower Oaks, our Energy Star score is a 90. That means that we’re going to perform, under the most recent ASHRAE standard, about 28% more efficient than an average new construction Class A office building.

Do you think the benefits of designing your corporate headquarters on the ninth floor to meet Platinum certification under LEED for Commercial Interiors have merited the costs?

There were a few things that we did for our interior office space that were expensive, but I think that they do merit their costs. For example, we installed carbon dioxide sensors in our offices. These help us monitor air quality and that’s especially important in shared spaces like conference rooms. If you’ve ever been in a conference room for a long period of time, you may notice that you start to become tired or develop a headache. The reason is because there’s not enough oxygen in that room. When you come out of an all day conference in our offices, you do not leave tired. You can literally go back to your desk and start working. So, for us, there’s a huge productivity benefit that, hands down, pays for the initial cost over time.

Additionally, we maximized the amount of natural light that comes into our space so that we’re harvesting a free, natural resource and using less artificial lighting. LEED recommends that an office building not exceed 1 watt per square foot; in our space, we’re at 0.63 watts per square foot. We installed day-lighting sensors to read interior candle lumens that then automatically adjust the amount of artificial light needed to light the space. In addition to the energy savings that this provides, we’re also helping to increase employee productivity by providing views and access to natural daylight.

We always knew that we wanted to go for Platinum level certification for our corporate office space because sustainability is everything that we stand for. We were committed and ready to achieve that level of certification from the beginning, and we’re happy with the result.

What were some of the challenges or surprises that you faced in getting 2000 Tower Oaks Boulevard certified under either track (CS or CI)?

One interesting fact is that we ended up getting an Innovation Point for the installation of a system that protects the base building and everyone who works in it from electromagnetic frequencies (EMF). Here at Tower, we talk about EMF as the asbestos of the future, but this wasn’t something that the USGBC really understood at first because they hadn’t seen it before. We submitted a Credit Interpretation Request and supplied them with lots of information and studies demonstrating the potential negative consequences of EMF exposure, and the USGBC agreed with us in the end and we did get the Innovation point. I thought this was really interesting and important and I hope that the USGBC begins to integrate EMF concerns when they’re reexamining sustainability goals.

What’s next for The Tower Companies in terms of green building projects?

We are, without a doubt, focused on our existing building stock. We are looking at our entire building stock first for Energy Star purposes and then we’re going to go for LEED certification for Existing Buildings. There’s an interesting statistic floating out there that 90% of all buildings that will exist in the year 2020 have already been built. What that means is that we can’t build our way into a more sustainable future. We’re always going to have more existing buildings than new construction, so until we start looking at how we can improve our existing building stock, we’re not going to have a meaningful and measureable impact on the environment.
What I’m personally passionate about is trying to educate people and governments on the larger benefits of green building. The benefits go beyond fresh air and daylight and productivity. When you start to really think about the existing building stock on a national scale and how it can be improved, you begin to see all the economic opportunities that exist. The concept of a “green economy” becomes real when you think about how many jobs and opportunities this presents for plumbers, electrical engineers, mechanical engineers, renovating contractors and retrofitting contractors – the list just goes on and on. I think we’re faced with a great opportunity here and I hope that we can work with governments to create meaningful tax incentives and depreciation programs that can help spur job growth.

Thanks again to Marnie for her wonderful responses. I think it's clear that The Tower Companies is passionate about green building for all the best reasons - the benefits to the environment, to the people who inhabit or work in the green buildings, and to the building industry and economy in general.

Interview with Marnie Abramson of The Tower Companies on Green Building

Megan Reuwer — Wed, 02 Dec 2009 09:04:16 -0500

I recently had the wonderful opportunity to chat with Marnie Abramson, Principal and Director of Marketing & Public Relations at The Tower Companies, about Tower’s double Platinum LEED certified 200,000 square foot, multi-tenant commercial building located at 2000 Tower Oaks Boulevard in Rockville, Maryland.

The Tower Companies is a three-generation, award winning commercial real estate development company founded in 1947 and headquartered in Rockville. Tower is EPA-certified carbon-neutral, a member of EPA’s Climate Leaders and Energy Star programs, and is the area’s leading regional builder of U.S. Green Building Council LEED® certified projects. Tower has six LEED certified projects, seven are LEED registered, and 25% of their employees are LEED Accredited Professionals (AP). Their diverse portfolio includes more than 4.5 million square feet of office building, 1400 apartments, regional malls, residential communities, lifestyle centers, office parks, and hotels within the DC area. Of this total, one million square feet are LEED or sustainable projects, and another 2.5 million square feet are in the planning stages.

2000 Tower Oaks Boulevard (pictured at right) has been certified LEED Platinum for Core and Shell and the Tower Companies’ headquarters, located on the ninth floor, is certified LEED Platinum for Commercial Interiors. The building was recently heralded by Peter Franchot, Comptroller of Maryland, as being the “greenest” office building in Maryland.

In part one of this two-part this interview, I ask Marnie questions about The Tower Companies’ experience with the LEED certification process, the cost of green building, and how Tower maintains its commitment to sustainability once the building is complete. Thanks again to Marnie for her time and very thoughtful responses.

How did The Tower Companies develop its passion for green building? What inspired you and what continues to inspire you?

The Tower Companies began building sustainably in the mid-1990’s. Our passion for green building was fueled when we learned that buildings were responsible for 40% of the carbon dioxide emissions and 40% of energy consumption nationwide. These statistics horrified us, and they became the trigger for the company to begin to think about how we, as builders, could change. At that time, were in the process of renovating a building that we had built in the 1970’s (1909 K Street). We decided to take the building down to the slab; add four new floors; add new curtain walls and a new electricity system – and when we were done, the building actually used the same amount of electricity as it had before we added the new 85,000 extra square feet. That was a big “wow” moment for us, and it sparked our imagination and caused us to challenge ourselves to explore further possibilities.

From there, we took what we learned and we ran with it. Since then, we have completed both commercial and residential projects that are LEED certified. In fact, one of our residential projects, the Blair Towns in Silver Spring, Maryland, is the first LEED certified apartments in America. We introduced the Blair Towns apartments into the market in 2003 when LEED was still relatively new and it was a challenge to build to even the most basic certification level of LEED. None of our partners wanted to work with us; none of our construction contractors wanted to do it; and our vendors all thought it was crazy because everything was still so new. Fast forward 6 years, and now we have a double platinum LEED certified building for basically the same cost premium. It’s been an amazing journey for us.

2000 Tower Oaks Boulevard is a beautiful building. Was there a “green premium” for constructing the building to meet Platinum certification under LEED for Core and Shell?

For a project like 2000 Tower Oaks Boulevard, our green premium is “in the noise;” it’s essentially equivalent to a rounding error, and worked out to be approximately 1-2% percent of our total soft costs – so you can see that it’s a small number.

We also got a tax credit through Maryland and a tax rebate through Montgomery County. The tax credit from Maryland is a base building tax credit, and the tax rebate from Montgomery County is for the commercial office space, so both programs are different but compliment each other nicely. Tax incentives are important because they help offset learning costs. If a government can offer these kinds of incentives to developers that enable them to recoup some of the learning costs associated with sustainable projects, then that developer is going to continue to build sustainably because it becomes easier and more efficient for them to do as they acquire experience. Analogously, it’s like learning to transfer from a word processor to Microsoft Windows. Once you learn how to use Windows, you don’t go back to word processing. Today, The Tower Companies strives to build every building to be at least LEED gold certifiable; we’re able to raise the bar because we have that experience and that’s the path we’ve been growing on as a company.

Has the LEED Platinum certification of 2000 Tower Oaks been a draw for your commercial tenants?

I think that people are curious and interested in the Platinum certification, but there’s also still a lot of fear that people are paying extra for that certification. The truth is that they’re not paying for the green products in your building. The whole concept of a “green premium” is an anomaly; it doesn’t really exist in a quantifiable way unless you’re developing a green building for the first time. I think that perhaps brokers and clients are confusing what they perceive to be a “green premium” with the market cost that usually accompanies a high-end product.

Do you continue to maintain the green components of your buildings once they are occupied?

At Tower, we have implemented a green lease for all of our tenants in all of our buildings. Through this green lease, we ask our tenants to achieve a certain level of LEED certification depending on the building. We sit down with our tenants and explain to them what they need to do to achieve that certification and specifically what points we want them to acquire. We do this because we want to continue to make an impact. What people don’t understand about LEED for Core and Shell or LEED for New Construction is that the moment you deliver that building and turn over space to tenants, the benefits that you’ve created have expired. The building itself has been constructed to be sustainable, but it’s equally important once the building is complete to transition in to operating and maintaining the green components.

Part II of the interview will be available here next Wednesday. Check it out and learn what some of the challenges were to LEED certification and what Marnie sees as an economic future for the green building industry.

EPA Issues Final Effluent Limitations Guidelines and NSPS for Construction Sites

Megan Reuwer — Wed, 25 Nov 2009 11:21:06 -0500

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.

Draft Strategy for Protecting and Restoring the Chesapeake Bay

Megan Reuwer — Wed, 18 Nov 2009 08:44:44 -0500

The Federal Leadership Committee for the Chesapeake Bay released its Draft Strategy for Protecting and Restoring the Chesapeake Bay on November 9, 2009 (concurrent with the Draft Strategy, an Executive Summary was released). Comments on the Draft Strategy are due by January 8, 2010 and the final strategy for protecting and restoring the Chesapeake Bay is to be completed and released by May 12, 2010.

The Draft Strategy isn't very different from the Draft 202(a) Report submitted by the EPA to the Federal Leadership Committee. Some of the recommendations that may be of particular interest to the building industry include:

Development of an Economic Market for Ecosystem Services: Federal agencies will support the development of innovative technologies and economic markets as a way to provide landowners with an incentive to practice sustainable agriculture and forestry. Essentially, entities such as urban water utilities, industrial polluters, and land developers who must pay to mitigate negative impacts to the watershed will pay for the implementation of conservation practices that offset those impacts. USDA will lead a collaborative federal effort to develop ecosystem markets in the Chesapeake Bay watershed.
Promote Smart Growth and Sustainable Development: Because land use has a direct impact on the environment, federal agencies will promote sustainable development and smart growth through assistance and tools to local governments. DOT, EPA and the Department of Housing and Urban Development will convene a series of forums and partner with local governments to conduct integrated transportation, land use, housing, and water infrastructure planning in a sustainable and environmentally sensitive manner. DOT will promote use of public transportation, bicycling, and walking, and partner with the Department of Energy (DOE) on a pilot project to support increased use of electric cars.

There are a couple of statements in the Draft Strategy that seem to directly address some of the concerns raised by the industry during listening sessions with the EPA. For example, page 23 of the Draft Strategy addresses the cost implications for more stringent stormwater management practices for new construction but ultimately concludes that change is more valuable:

Demonstrating the value of changing our behaviors is a difficult task. Often, such changes are viewed as a threat to people’s lifestyle or economic well-being. Reducing stormwater runoff, for example, may require the installation of new technologies in both residential and commercial developments. Requirements to use new roofing technologies or porous pavement have the potential to raise the price of such development. Partnering with states and communities to lead change in community planning and individual choices is important to bring all stakeholders and residents into the effort to achieve and sustain a healthy system.”

Here are a few statistics cited in the Draft Strategy that builders and developers may find interesting:

Between 1990 and 2000, the amount of land in the watershed covered by impervious surfaces increased by about 41 percent, while population in the Bay watershed grew by 8 percent. Stormwater running off urban and suburban lands is now the fastest-growing source of pollution in the Bay. (Draft Strategy p.19)
Construction sites can contribute, on a per-acre basis, 10 to 20 times more sediment than do agricultural lands. (Draft Strategy p. 22)
A one-acre parking lot produces about 16 times the volume of runoff that comes from a one-acre meadow.” (Draft Strategy p.31)
Development has increasingly altered both natural and cultural landscapes, tearing at the very fabric that defines the region and supports our way of life….Moreover, converting forests and open spaces to development simply exacerbates pollution problems now harming the Bay and its rivers. On average, an acre of forest delivers just 3.3 lbs of nitrogen to streams annually; an acre of developed land delivers 32.9 lbs of nitrogen annually. (Draft Strategy p. 33)

If you have any statistics, data, or general comments that you'd like to make to the FLC and the EPA as they go forward in developing a more concrete strategy, it's important to submit them by January 8, 2010 to be considered. Comments can be provided via this link.

2009 Maryland Green Show

Megan Reuwer — Wed, 11 Nov 2009 17:41:51 -0500

I attended the Maryland Green Show presented by the Home Builders Association of Maryland and the Maryland Residential Green Building Council that took place over the weekend at the Maryland State Fairgrounds. This was an interesting show that provided a forum for vendors and consumers to discuss green building products and technologies and also included an educational component by featuring various classes and speakers throughout both days.

Some of my favorite products and services from the Show included:

Enviroshake, Inc.’s engineered roofing product: These roofing panels are made of 95% recycled materials and are crafted to look like Cedar shake. These panels have a 50 year warranty and look really great. Just like real cedar shake, they fade to a lighter color after installation. According to the salesperson for the company, use of these products in regional buildings have made those projects eligible for up to 6 points under LEED v.3.
Roll-off Express, Inc’s construction waste services: Roll-off Express picks up unsorted construction site job waste, takes the waste back to its facilities, and then sorts the waste for recycling. This helps cut down on waste sent to landfills and also helps a project to potentially earn LEED points.
Aquabarrel’s “designer” refurbished rain barrels: A rain barrel is something that every homeowner should consider installing - they help manage stormwater runoff, they make use of a free resource that the homeowner would otherwise pay for, and they’re relatively easy to install and to maintain. Aquabarrel’s rain barrels are unique in the market because they utilize a lower hose connection point than most barrels, thereby enabling a homeowner to make use of water at the bottom of the barrel.

There were many great vendors and service providers at this show and I would recommend that you consider attending next year’s show (November 6-7, 2010). For more information, check out www.marylandgreenhome.org.

The Good, the Bad, and the Ugly of "Get the Dirt Out" Citizen Training

Megan Reuwer — Wed, 04 Nov 2009 15:34:02 -0500

On Monday, November 2, 2009, I attended a “Get the Dirt Out” training session taught by members of the Potomac Riverkeeper. The goals of these training sessions are to teach citizens how to identify and report potential construction site erosion and sediment control violations. The Potomac Riverkeeper organization has developed a Construction Site Report for public use that asks witnesses to potential sediment and erosion control violations to assess sites based on criteria including (1) stormwater appearance; (2) construction entrances and exits; (3) perimeter controls; (4) storm drain and inlet protection; (5) soil stabilization and cover; (6) sediment traps and basins; (7) outlet protection; and (8) encroachment on water bodies. The organization encourages citizens to take numerous photographs of the perceived violations, to submit those photographs to agencies responsible for inspecting the site, and then to follow-up with inspectors to make sure the compliant has been received and the identified issues addressed.

The motivations of this program (to keep responsible parties accountable for implementing best management techniques on their sites) are good, but I can think of a couple of concerns this raises from an industry perspective:

Lack of Knowledge of Applicable Laws: For the most part, your average person does not know the laws and regulations governing stormwater management BMPs and sediment control on construction sites. If you’re not aware of the law, it’s difficult to know when the law is being violated. In the scenario in which a developer or construction site manager is complying with the law, but the citizen files a report mistakenly believing that the law and/or regulation has been violated, the developer may incur additional administrative expenses (i.e., time expended to meet with inspector; time expended to meet with citizen; cost of creating and supplying response material to counter complaint filed by citizen). It seems to me like it would be a good idea for construction site managers and developers to become proactive about photographing their own sites and updating their logs with measures taken in anticipation of such reports being filed.
Trespass and Liability Issues: The Potomac Riverkeeper members at the particular training session that I attended were careful to warn citizens not to trespass on private construction sites; however, some of the criteria identified on the Construction Site Report sheet seems to invite a more detailed exploration of the premises. This could in turn raise liability issues if a citizen is harmed while evaluating the site.

I thought it interesting that the Riverkeeper instructors echoed a theme that I also heard last week at the EPA meeting on the Draft 202(a) Report: even though sediment and other pollutants are known to come from sources such as agriculture and farming practices, construction sites are targeted because, due to the existing regulatory scheme, it’s easy for citizens to affect change.

To me, this is a double-edged sword. It’s great that we, as citizens, can enforce accountability when needed; however, it also becomes unfair if we can only hold a fraction of those responsible accountable for their actions.

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

Megan Reuwer — Thu, 29 Oct 2009 08:12:50 -0500

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:

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.
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.
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:

Some of the proposed consequences and rule-making seems to exceed the EPA's regulatory authority.
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.
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)?
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.
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.