Building a Green Maryland

Megan L. Reuwer selected by Super Lawyers as 2012 Maryland Rising Star

Megan Reuwer — Fri, 16 Dec 2011 10:42:10 -0500

Megan L. Reuwer has been selected by Super Lawyers as a 2012 Maryland Rising Star. This marks the second year in a row that she has earned such a designation. Only 2.5% of all attorneys in the state of Maryland may be named a "Rising Star" by Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Howard County Considers Property Tax Credit for LEED or Equivalent Homes

Megan Reuwer — Fri, 11 Nov 2011 09:29:47 -0500

Howard County Council Member Calvin Ball has introduced a bill, co-sponsored by Council Member Courtney Watson, that would give property tax credit relief to homeowners of newly constructed R-2 and R-3 zoned homes in Howard County if those homes are rated LEED Silver, or found to be an equivalent to LEED Silver by the Director of Inspections, Licenses, and Permits.

The bill, CB-55-2011, marks the first time that Howard County has considered a residential property tax credit for green homes. It could prove to be a major incentive to potential home buyers who are otherwise on the fence about purchasing a "green" certified home, for it provides that the homeowner may receive a 100% property tax credit for the first year, a 75% property tax credit for the second year of ownership, a 50% property tax credit for the third year of ownership, and a 25% property tax credit for the fourth year of ownership. After four years, the credit will expire, and the homeowner will assume full responsibility for payment of the property tax. [Several news publications have incorrectly read the bill, and have confused the amount of the property tax credit along with the qualifications for attaining the credit.]

It's important to note that the property tax credit runs with the land - thus, if the owner of an R-2 or R-3 home that has received the credit sells his or her home after year 1, the new owner of the green home is eligible to receive the property tax credit for year 2 and beyond (assuming the new owner retains ownership and makes application to the County to receive the credit). An R-2 or R-3 home, as defined by the County, includes single family detached homes, townhomes, and low-rise apartment buildings (that do not have a commercial component).

I think that CB-55-2011, if enacted, could prove to be a win-win situation for both homeowners in Howard County and for the County itself. The building industry has, as we all know, slowed down considerably during this economic downturn. If CB-55-2011 can provide this great incentive directly to a homeowner, while simultaneously promoting green construction in the County, then everyone benefits.

There will be a Legislative Public Hearing on CB-55-2011 on Monday, November 21, 2011 at 7:30pm in the Banneker Room, George Howard Building, 3430 Court House Drive, Ellicott City, MD 21043.

The American Council for an Energy-Efficient Economy Ranks Maryland 10th on its 2011 Scorecard

Megan Reuwer — Fri, 21 Oct 2011 10:54:37 -0500

Yesterday, the American Council for an Energy-Efficient Economy (ACEEE) released its 2011 Scorecard which ranked Maryland 10th , taking into account best practices and leadership in energy efficiency policy and program implementation. This is Maryland's first appearance in the top 10, and it is also one of the six most improved states on the 2011 ACEEE Scorecard.

The ACEEE Scorecard provides a comprehensive assessment of policy and programs that improve energy efficiency in our homes, businesses, industry, and transportation sectors. The Scorecard examines six state energy efficiency policy areas and presents these results in six chapters: (1) utility and public benefits programs and policies; (2) transportation policies; (3) building energy codes; (4) combined heat and power; (5) state government initiatives; and (6) appliance efficiency standards. States can earn up to 50 possible points in these six policy areas combined, with the maximum possible points in each area weighted by the magnitude of its potential energy savings impact.

"I am thrilled that Maryland is being recognized as one of the top ten states and one of the most improved states for energy efficiency," said Malcolm Woolf, director of the Maryland Energy Administration. "As a result of Governor O'Malley's vision in establishing one of the nation's most aggressive energy efficiency goals, Marylanders have already saved over 700,000 MWh of electricity and over $91 million dollars since 2009, and our peak demand program has helped us avoid major blackouts during our record-setting summer heat wave.”

Quote source: http://www.aceee.org/press/2011/10/aceee-massachusetts-overtakes-califo

Rosa Cruz, Deputy Director of Communications and Marketing for the Maryland Department of Housing and Community Development, writes that:

“The Department of Housing and Community Development is proud to contribute to this effort by helping thousands of families improve their home's energy efficiency through our Weatherization program and retrofit initiatives. Also, in the last year, we've launched "Be SMART" which is a loan program to assist single family homeowners, rental property owners and small businesses in making energy efficient improvements.”

This is exciting and timely news, Maryland, since October is Energy Awareness month! Congratulations to all involved in our state’s efforts to become more energy efficient.

*Photo source: http://www.aceee.org/sector/state-policy/scorecard

Maryland Adopts the IGCC - But Will Our Local Governments?

Megan Reuwer — Tue, 12 Jul 2011 10:29:50 -0500

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.

Howard County's First Green Neighborhood - Meet "Locust Chapel"!

Megan Reuwer — Mon, 06 Jun 2011 09:36:56 -0500

I've had the wonderful opportunity to act as the Project LEED AP for Site Development for Howard County's first 'Green Neighborhood" project, a residential subdivision known as "Locust Chapel." Locust Chapel is located in Ellicott City, Maryland, at the intersection of Ilchester and Beechwood Roads, and the project is being developed by Ellicott City Land Holding, Inc.. This project has been a lot of fun, and will feature some outstanding green amenities. I'm chronicling the site development work over at www.locustchapel.com, and I invite you to take a look if you get a chance.

Howard County's Green Neighborhood program is an exciting initiative designed to reward builders and developers for designing and building a site to green standards. It is a County- developed certification program that consists of two components - a site development portion, and a homes portion. At this time, the project has attained its initial designation as a Green Neighborhood for Site Development.

In terms of site development, we are implementing some great green technologies, including:

Site design around the natural grade of the site to reduce the amount of disturbance to natural land areas and grading;
Infrastructure materials sourced from recycled materials located within 200 miles of site to reduce the amount of transit needed to bring materials to site
A construction waste management plan to reduce the amount of trash on-site and recycle materials that can be recycled (including cans and also oil).
Reusing any trees that need to be cleared as mulch to line a natural surface trail that will link the community. Benches and educational kiosks will be located along the trail system.
36 homes will have rain barrels sized to treat a 1 inch rain event. Water collected by the barrels can be re-used for gardens and lawn and will help reduce stormwater runoff from the roof of the residence.
A community pavilion featuring a green roof and solar panels

This is a just a sampling of the many features of Locust Chapel. Check out www.locustchapel.com for more information!

Feel free to contact me with any questions about Howard County's Green Neighborhood program or about Locust Chapel, specifically. I'm happy to share my experiences with you.

New Residential Green Building Bill Passes in Senate

Megan Reuwer — Fri, 08 Apr 2011 09:49:01 -0500

Quick Synopsis:

Current Maryland law does not specifically address comprehensive green building standards with respect to residential structures; HB 630 changes the status quo to require that the Maryland Department of Housing and Community Development (DHCD) encourage the construction of new "high-performance homes."

Current Green Building Law in Maryland:

Maryland High Performance Buildings Act (Ch 124 of 2008): requires that most new or renovated State buildings and new school buildings meet or exceed either USGBC’s LEED criteria for a Silver rating or a comparable rating according to a nationally recognized, accepted, and appropriate standard approved by the Department of Budget and Management and the Department of General Services.
Maryland High Performance Buildings Act (Ch 527 & 528 of 2010): further required that community college capital projects that receive State funds comply with the State’s High Performance Buildings Act (i.e., achieve at least a LEED Silver rating). Chapters 527 and 528 allow community colleges to receive a waiver from this requirement under the Act’s existing procedures.
Maryland has also adopted several energy efficiency and conservation related building code standards deemed important to reducing greenhouse gas emissions and lowering energy costs. Chapter 294 of 2009 required DHCD to adopt the International Energy Conservation Code (IECC) and to consider changes to the International Building Code (IBC) to enhance energy conservation and efficiency.

HB 630:

The bill requires the Maryland Department of Housing and Community Development (DHCD) to encourage the construction of new “high-performance homes.” A high-performance home is defined as a new residential structure that meets or exceeds the current version of either the Silver rating of the International Code Council’s 700 National Green Building Standards, or the Silver rating of the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) for Homes Rating System.

Analysis:

A couple of thoughts:

It’s great that this Bill puts in place the flexibility to choose between LEED and the National Green Building Standard (for previous posts analyzing the differences between LEED and the NGBS, click here and here). Flexibility in choosing what system works best for each individual project is key.
Whether this Bill will be implemented with any teeth remains to be seen – what does “encourage” the construction of high-performance homes really mean? To me, this reads as somewhat of a “feel good” bill – it has nice intentions, but no real teeth. This isn’t exactly a criticism: given the economy and the general state of the residential housing market, a new government mandate demanding that builders build homes to a Silver level would not be feasible; therefore, a bill “encouraging” green residential building may be just the thing to keep the green ball rolling while, at the same time, remaining sensitive to current market conditions.

Announcing - The Law Offices of Megan L. Reuwer, P.A.

Megan Reuwer — Tue, 05 Apr 2011 15:54:01 -0500

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.

Proposed Statewide Ban on Septic Systems for "Major" Developments

Megan Reuwer — Mon, 07 Feb 2011 10:42:12 -0500

As many of my readers know by now, Governor O'Malley announced in his State of the State address last Thursday his proposal to ban "major" housing developments that use septic systems in an effort to further combat the leakage of pollution into the Chesapeake Bay. This obviously is a major concern for builders in rural areas as well as those parts of Maryland that are within developing areas but that currently do not have sewer connectivity. Based on some reports and administration officials, this proposal, if enacted, could impact housing developments with as few as 6 homes.

For an insightful article detailing the reactions of members of the building industry as well as local planning directors and state environmental agencies, check out an article appearing in the Baltimore Sun, authored by Timothy B. Wheeler, titled "Developers distressed over bid to curb septic systems".

What are your reactions to O'Malley's proposal?

EPA Releases Final Chesapeake Bay TMDL

Megan Reuwer — Mon, 03 Jan 2011 14:49:04 -0500

It's 2011, and that means the final Chesapeake Bay TMDL is now available! In the final TMDL, only New York, Pennsylvania, and West Virginia received allocations that differed from those proposed in their final Phase I WIPs. Furthermore, because EPA determined that many of the jurisdictions’ final Phase I WIPs met all target allocations and/or met EPA’s expectations for reasonable assurance, EPA reduced or eliminated many of the backstop allocations that it had included for those jurisdictions in the September 24, 2010, draft Chesapeake Bay TMDL.

Although Maryland was not "threatened" with any of these backstop allocations as a result of its Phase I WIP, it continues its streak of rising above the crowd and is praised by EPA for establishing the goal of EXCEEDING the interim target allocations. Let's take a closer look...

In its December 29, 2010 Executive Summary, EPA notes that Maryland developed a final Phase I WIP input deck with nitrogen, phosphorus, and sediment controls that more than met the interim target allocations by achieving a 70 percent reduction by 2017, and met the nitrogen, phosphorus, and sediment target allocations by 2020. Maryland’s final Phase I WIP also met EPA’s expectations for providing reasonable assurance that these allocations will be met. As a result, EPA based Maryland’s final allocations entirely on Maryland’s final Phase I WIP.

Maryland Allocations

Maryland meets its nitrogen, phosphorus, and sediment allocations for each basin in the final TMDL, based on EPA’s quantitative and qualitative evaluation of Maryland’s final Phase I WIP. Maryland submitted proposed modifications to its nitrogen, phosphorus, and sediment allocations in each of its five basins. EPA used the Chesapeake Bay Water Quality Model to confirm that these modifications would still attain applicable WQS. Maryland’s final Phase I WIP input deck resulted in jurisdiction-wide loads that are 0 percent over modified nitrogen, phosphorus, and sediment allocations. Maryland’s Bay TMDL jurisdiction-wide allocations are nitrogen 39.09 mpy; phosphorus 2.72 mpy; and sediment 1218.10 mpy.

Maryland Agriculture

Maryland’s final Phase I WIP showed significant improvements from its draft Phase I WIP in the agriculture sector, including a strong contingency statement that significantly bolsters EPA’s reasonable assurance that Maryland will meet its agriculture targets by committing to explore new policy measures and mandatory BMP compliance options. For example, these could include a regulatory change that cover crops be planted on the highest risk acres. The Maryland final Phase I WIP also provides more detail on phosphorus management, strengthens contingencies, improves coordination with USDA, develops a plan for increasing staff levels, and selects a subset of strategies to implement by 2017.
EPA will maintain ongoing oversight of Maryland’s agriculture sector. EPA will use its national review of CAFO State Technical Standards in 2011 as an opportunity to identify any deficiencies in the State Technical Standards for protecting water quality. Through its review of State Technical Standards, EPA also will evaluate whether Maryland’s phosphorus management program is sufficient to address phosphorous imbalances and water quality concerns. If deficiencies are identified that are not addressed by Maryland or a CAFO permit does not include other conditions to achieve nitrogen and phosphorus reductions identified in the final Phase I WIP, EPA may object to permits if they are not protective of water quality.

Maryland Urban Stormwater

Maryland’s final Phase I WIP also showed significant improvement in its commitment to urban stormwater management. In the final Phase I WIP, Maryland committed to several actions to ensure reductions, including limits on lawn fertilizer use, use of natural filters such as riparian buffers and stream restoration, and an increase in watershed restoration requirements for MS4s by requiring additional nitrogen, phosphorus, and sediment reductions. The WIP also included a contingency plan whereby if local utilities or other systems of charges are not underway in 2012, Maryland will seek legislation requiring development of local stormwater utilities via a statewide system of fees. The final Phase I WIP also included descriptions of the policy, financing, and tracking mechanisms for implementing urban stormwater retrofit programs.
Maryland also included in its final Phase I WIP specific activities and milestones for urban stormwater program implementation, including the following:

Renewal of Phase I MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate urban stormwater controls.
Renewal of Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 20 percent of the impervious surface that does not have adequate urban stormwater controls.
Renewal of State Highway Administration Phase I and Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate controls.
Regulation of fertilizer applications on 220,000 acres of commercially managed lawns.

While EPA is satisfied overall with Maryland’s demonstration of reasonable assurance, EPA will closely track the nitrogen, phosphorus, and sediment reductions expected to result from these urban stormwater retrofits. EPA will maintain ongoing oversight of Maryland’s urban stormwater sector and will assess how well Maryland is able to track and quantify outcomes from the retrofits projected in its final Phase I WIP.

Maryland Wastewater

Maryland’s final Phase I WIP also showed significant improvement in the wastewater sector. Maryland committed to identify options to structure the Bay Restoration Fund (BRF) fee in order to fully fund Enhanced Nutrient Removal (ENR) upgrades at 67 public major wastewater treatment plants. Options include fees based on consumption, income, or other criteria; and, in 2012, to propose an amendment to the BRF statute to change the BRF fee in order to provide funding needed to complete the upgrades.. Maryland’s final Phase I WIP also included a contingency that if the BRF statute is not amended, “All funding for ENR projects will be reduced from 100 percent grant to provide partial grant funds for each remaining project. Local governments would be responsible for the balance of the necessary funding. State low interest loan funds would be available to assist.”
EPA will maintain ongoing oversight of Maryland’s wastewater sector to ensure that the actions detailed in the final Phase I WIP occur and achieve the expected pollutant reductions.

Maryland Conclusion

EPA applauds Maryland for following up a strong draft with an even stronger final Phase I WIP. Maryland clarifies how its existing programs will implement nitrogen, phosphorus, and sediment reductions ahead of schedule. Both Maryland and EPA are committed to carefully review progress and adopt contingency actions as necessary to achieve and maintain the nitrogen, phosphorus, and sediment reductions.

Maryland planners responsible for the Phase I WIP get a grade "A" from EPA...I just hope that the implementation phase is conducted smoothly and without too many growing pains.

The Chesapeake Bay TMDL's Potential Impacts on Builders and Developers

Megan Reuwer — Wed, 17 Nov 2010 15:06:03 -0500

The draft Chesapeake Bay TMDL -which extends over portions of six states and Washington, DC, an area of 64,000 square miles, a total of 92 watersheds, and 17 million inhabitants -was published on September 24, 2010, and was available for review and public comment through November 8, 2010. The EPA’s stated plan is to produce a final TMDL by the end of 2010. Because the TMDL is being held out as a potential model in the formation of other TMDL's and nutrient reduction programs, and because the Chesapeake Bay TMDL will have a significant impact on the building industry, it's helpful for us to know what is being said about the draft TMDL via the public comments submitted to EPA.

The comment submitted by NAHB, the National Association of Home Builders, makes some excellent points specifically about the TMDL's impact on builders and developers. Here are a few excepts from its comment dated November 8th, 2010 (the complete version of NAHB's public comment is available here as a pdf on www.regulations.gov):

The Chesapeake Bay TMDL's requirements will become a part of the National Pollutant Discharge Elimination System permits issued for controlling the stormwater discharges from construction sites, and will therefore become a part of the stormwater permits issued for homebuilding projects in the Bay watershed.
EPA intends to hold states, municipalities, NPDES permit holders, and citizens responsible if the states do not live up to EPA's visions of compliance.
The stringency of the new pollutant reduction requirements will significantly strain the already challenged state and local government budgets and may simply be unaffordable for the states and localities covered by the rule.

If local governments and municipalities cannot afford the costs associated with the TMDL - who is going to pay?

NAHB alleges that: The costs of the TMDL will be borne by the construction industry in the form of land, planning, and carrying costs; installation and maintenance of BMPs; and, in affected states that have no pollutant allocation set aside for future growth, the requirement to offset all pollutant loadings from new construction activities. These will ultimately be felt in the market as a combination of higher prices and lower output for the construction industry. As output declines and jobs are lost in the construction industry, other sectors of the economy that buy from or sell to the construction industry will also contract and lose jobs. Builders and developers already are being crippled by the economic downturn and the ability of the home-buying public to absorb significant new costs and the TMDL will further exacerbate these challenges. Further, because compliance costs are incurred prior to the home sales, builders and developers will be required to pay carrying costs, which add additional cost to projects.

- Page 17 of the NAHB's comment on EPA-R03-OW-2010-0736.

These are troubling allegations for the building industry. It will be interesting to see if EPA responds to these and other points relating to inconsistencies in modeling in the final version of the TMDL.

Interested to see what other industry and agricultural sectors had to say? The complete set of public comments is available here, on the regulations.gov website.

EPA Releases Draft Chesapeake Bay TMDL and Announces Federal Backstop Measures for Maryland

Megan Reuwer — Tue, 12 Oct 2010 09:39:02 -0500

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):

Expand coverage of NPDES permits to sources that are currently unregulated;
Increase oversight of state-issued NPDES permits;
Require additional pollution reductions from point sources such as wastewater treatment plants;
Increase federal enforcement and compliance in the watershed;
Prohibit new or expanded pollution discharges;
Redirect EPA grants; and
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:

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.
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

Maryland's Draft Phase I Watershed Implementation Plan - Now Available

Megan Reuwer — Thu, 02 Sep 2010 14:17:37 -0500

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:

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.

Scheduled Public Meetings on Maryland's Phase I WIP and Chesapeake Bay TDML

Megan Reuwer — Fri, 27 Aug 2010 10:37:22 -0500

Here are some upcoming meetings on Maryland's Phase I Watershed Implementation Plans and the Chesapeake Bay TMDL to add to your Outlook calendar - - -

(The picture at left admittedly is not directly on point...but my lab, Emerson, has been begging to be featured on the blog- and he absolutely loves water!)

The following meetings are hosted by Maryland’s Tributary Teams:

September 27, 2010

5:30-6:30 Elected Officials

7:00 to 9:00 Public

Host- Upper Potomac Trib Team

South Hagerstown High School Auditorium,

1101 South Potomac Street, Hagerstown, MD 21740

September 30, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts: Choptank, Upper & Lower Eastern Shore Trib Teams

Talbot County Community Center, Wye Oak Room

10028 Ocean Gateway (US Rte 50) Easton, MD 21601

October 4, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts- Upper Western Shore & Patapsco/Back Trib Teams

MD State Fair Grounds, DNR Bldg/State Fair Museum

2200 York Road, Timonium, 21093 (Use the York Road gate)

October 6, 2010

5:00-6:00 Elected Officials

6:30 to 8:30 Public

Hosts- Patuxent River Commission, Middle Potomac,

Lower Potomac & Lower Western Shore Trib Teams

Prince George’s Soil Conservation District

5301 Marlboro Race Track Road

Upper Marlboro, 20772 (301) 574-5162 X3

Environmental Protection Agency (EPA) Public Meetings on the Chesapeake Bay TMDL:

Tuesday October 12

2:00-4:00pm

The Easton Club

28449 Clubhouse Dr

Easton, MD

Wednesday October 13

2:00-4:00pm

Sheraton Annapolis

173 Jennifer Road

Annapolis, MD

Thursday October 14

2:00-4:00pm

Hagerstown Hotel & Convention Center,

1901 Dual Hwy

Hagerstown, MD

(Meeting and Webinar)

An Overview of Two New Critical Area Cases and How They Might Impact You

Megan Reuwer — Wed, 04 Aug 2010 10:44:41 -0500

*This post is guest authored by Jessica Snow Barnes, a land use, zoning, and environmental law associate in O'Malley, Miles, Nylen & Gilmore, P.A.'s Charles County office in La Plata, Maryland.*

Environmental laws and regulations promulgated by the Maryland General Assembly and State administrative agencies seek to protect the State’s natural resources by imposing restrictions on development-related activities. One area of law that has developed over the years is the Chesapeake Bay Critical Area Protection Program (the “Critical Area Act”), which was first adopted by the Maryland General Assembly in 1984 (Natural Resources Article, § 8-1801, et seq.). Two cases handed down from the Maryland Court of Appeals on July 22, 2010, have implications regarding the Critical Area Act and its interpretations by local jurisdictions charged with the responsibility of local enforcement.

1. Margaret McHale v. DCW Dutchship Island LLC, et al.

Since its inception, the Critical Area Program has been revised and expanded. Perhaps one of the most notable amendments to the Program occurred with the passage of Maryland House Bill 1253 in 2008 (the “2008 Amendments”), which included increased buffer standards, increased restrictions on new development by broadening the definition of those items that could be considered as impervious surfaces (i.e., lot coverage), and increased penalties for violation of the Critical Area Act such as those violations that occurred on Little Dobbins Island.

On July 22, 2010, in an opinion filed by Judge Harrell in the case of Margaret McHale v. DCW Dutchship Island, LLC, et al., the Maryland Court of Appeals was asked to consider whether a provision in the 2008 Amendments could be fairly applied to a variance application filed by an applicant as a result of prior violations to the local jurisdiction’s Critical Area Program. At issue in McHale was a provision within the 2008 Amendments that requires an applicant to have an approved restoration or mitigation plan prior to obtaining a variance.

The Court of Appeals concluded that the provision at issue in the case could not be applied retrospectively to the variance application submitted on behalf of DCW Dutchship, which was required as the result of a series of Critical Area violations that were discovered on Little Dobbins Island in 2004. All statutes are presumed to operate prospectively.

“This presumption” Judge Harrell wrote, “is based on the ‘fundamental principle…that retroactive application of new laws is usually unfair” because doing so “increases the potential for interference with persons’ substantive rights.”

Citing the uncodified language in Section 5 of HB 1253, the Court of Appeals concluded that the challenged provision in the 2008 Amendments (requiring an approved restoration or mitigation plan prior to the issuance of a variance) could not be applied retroactively. The pertinent part of Section 5 reads as follows: “…for the purpose of a criminal prosecution under § 8-1815(a)(2)(ii) of the Natural Resources Article…this Act shall be construed prospectively to apply only to a Critical Area violation alleged to have arisen out of an act or omission that originated on or after July 1, 2008, and this Act may not be applied or interpreted to have any effect on or application to an alleged critical area violation that originated before the effective date of this Act (emphasis added)."

2. Sara Caldes, et al., v. Elm Street Development, et al.

At issue in Caldes, was a 2006 Order entered by the Anne Arundel County Board of Appeals granting certain requested variances for development, as required by the local zoning ordinance. There were several issues that the Court of Appeals addressed in its opinion, however, this discussion is limited to the issues pertaining to the Critical Area. One of the first issues addressed by the Court of Appeals was the apparent conflict between the “base” or underlying land use classification and the “overlay” zone applied to the Elm Street Property. The Elm Street Property is located in an R-1 Residential District, which mandates a minimum lot size of 40,000 square feet (less than one acre). The property is also located within the Critical Area Overlay Zone (specifically the Resource Conservation Area), which dictates a maximum permitted density of not more than one dwelling unit per 20 acres.The Court concluded that Anne Arundel County’s “Antiquated Lots Law” (now the “Lot Merger Law) was a “grandfathering” provision permitting the Elm Street property to be developed with more than one dwelling per 20 acres.

Another legal issue peculiar to land use and zoning cases presented in Caldes: the notion of a “variance” and the sufficiency of an application for a local zoning officer to issue the variance as requested. In affirming the variances approved by the Anne Arundel County Board of Appeals, the Maryland Court of Appeals noted the

“burden on an applicant seeking a variance is very high” because the Critical Area Program requires the local jurisdiction to “presume that the specific development activity in the critical area…does not conform with the general purpose and intent” of the Critical Area Act.

The approach taken by the Court of Appeals as stated in Judge Murphy’s opinion is instructive: an appellate court gives “considerable weight” to an administrative agency’s (Anne Arundel County Board of Appeals) “interpretation and application of the statute which the agency administers.” The Court’s deference to these principles is demonstrated by the fact that large portions of the Board of Appeals’ opinion and statements by the Critical Area Commission were quoted in Judge Murphy’s opinion.

Conclusion: The Critical Area Act and local Critical Area Programs adopted by local jurisdictions such as Anne Arundel County (the location of both Little Dobbins Island and the Elm Street property) continues to be a developing area of Maryland law. The local jurisdictions (and the property owners in each of the respective areas) rely heavily upon the Critical Area Act itself, COMAR, and the local Critical Area programs that have been approved by the Critical Area Commission to guide development. While these opinions appear quite specific to the local jurisdiction (Anne Arundel County), they can be applied across the State. Environmental protection is an issue of local and national concern. While the decisions that have been handed down in these two cases are final, the degree of mitigation and restoration required under the Critical Area Act and the constraints placed upon private property rights in Maryland is not.

If you have questions on this article or on land use, zoning and environmental law in general, Jessica can be reached at jbarnes@omng.com.

Maryland Watershed Implementation Plan Regional Exchange

Megan Reuwer — Wed, 21 Jul 2010 09:29:43 -0500

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.

Prince George's County Green Power Coalition

Megan Reuwer — Thu, 15 Jul 2010 12:26:55 -0500

Last night, I attended the Prince George's County Green Power Coalition's Candidate Briefing event held at the International Brotherhood of Electrical Workers building in Lanham, Maryland (Lisa Lincoln, Co-chair of the Coalition, is featured in the image at left).

Even though it's an election year and therefore one might expect a flurry of politicians and would-be politicians to be in attendance, I have to admit that I was both suprised and impressed by the sheer numbers of candidates, incumbents, and members of the public who attended this briefing. I think this shows that the green movement is growing in force and in interest in Prince George's County. If our future leaders are listening (and I think they are), they know that some of the topics discussed last night and in the Coalition's Platform document, titled "Building Healthy and Vibrant Communities" (available here as a pdf), are going to be very hot topics in the coming years.

The Coalition briefed candidates on six main areas that they urged were necessary to address in order to establish a healthy and vibrant community, as follows:

Climate Change and Energy - reducing energy consumption and increasing the production of renewable energy in the County can have a major impact on the local economy and on local health. The Coalition suggests that the County should mandate energy audits for large energy users in both the private and public sector; work with the private sector to create a loan program to promote investing in remediation projects; and require local governments to have comprehensive energy plans.
Waste Management - creating partnerships between the County, local governments, and the private sector to improve waste management will provide a cleaner County, save money, and stimulate local business opportunities. Suggestions made in Platform document include implementing a zero waste goal; creating a mandatory and comprehensive residential and commercial waste recycling requirement; and creating legislation that calls for a plastic bag fee, among others.
Land Use and Transportation - the Coalition alleges that the 2002 Prince George's County General Plan is "broken and needs to be revised." The Coalition wants to see our land plans focusing on development around metro stations in the County and on strengthening pedestrian-oriented and multi-modal (read: bicycle) linkages.
Green Business - to foster the growth of green business, the Coalition suggests that the County create an "Office of Sustainability" to promote existing green businesses and encourage green building practices in the County.
Sustainable Agriculture and Local Foods - protect farmland and improve the County's farm economy by enhancing land preservation policies and expanding farmers' markets.
Water Quality and Natural Resources - the Coalition recommends that the County implement a policy to ensure that the first 1.7 inches of rainwater during a storm stay on the land where it falls. It also recommends that the County create a fee structure to discourage the creation of impervious surfaces and encourages redevelopment in areas that already have a high amount of impervious surfaces.

Obviously, a lot of the suggestions noted in the Platform document directly relate to the land development and building industry. While I believe that many of these ideas are great in theory, my hesitation is that some of these suggestions, if implemented exactly as stated in the Platform document, could have a chilling effect on business opportunities in the County - especially as our economy is still in the process of recovering from the recession. Reaching that perfect balance between fostering opportunities for growth and protecting our existing resources is a constant struggle, but I'm confident that we'll get there one day. Opportunities to engage in a dialogue and present ideas, like the Coalition's event last night, will help us get closer to striking that balance.

EPA Announces Draft Nitrogen and Phosphorus Allocations for Maryland

Megan Reuwer — Wed, 07 Jul 2010 14:07:22 -0500

EPA submitted this letter to Maryland on July 1, 2010 detailing the revised annual nutrient loadings that will be proposed under the Chesapeake Bay TMDL for each of the Bay states and Washington, DC.

These annual loadings are expected to be achieved by the end date of the Bay Restoration Program of 2025 (2020 for Maryland). The TMDL’s annual loading for sediment in each state will be provided by EPA to the states on August 15, 2010.

The nitrogen and phosphorus draft allocations are intended to be used to during Maryland's development of its Watershed Implementation Plan (WIP). Let's take a look at the jurisdiction-wide allocations for Maryland:

Chesapeake Bay Watershed Nitrogen and Phosphorus Draft Allocations - Maryland
Basin	Nitrogen Draft Allocations (million pounds per year	Phosphorus Draft Allocations (million pounds per year)
Susquehanna	1.08	0.05
Eastern Shore	9.71	1.09
Western Shore	9.74	0.46
Patuxent	2.85	0.21
Potomac	15.70	0.90
MD TOTAL	39.09	2.72

Important Deadlines:

August 15, 2010: EPA to provide the basinwide, jurisdictional, and major river basin draft allocation for sediment
September 1, 2010: EPA expects jurisdictions to submit draft WIP's which sub-allocate these nutrient and sediment allocations among source sectors and the 92 Bay TMDL segmentsheds.
September 24, 2010: EPA to propose for comment (for a 45-day public comment period) the draft Bay TMDL.
November 29, 2010: Maryland to submit its revised WIP to EPA

I've heard several members of the development industry remark that Maryland's Watershed Implementation Plan will have a significant impact on the industry - and, the draft nutrient load allocations presented in EPA's letter (and the sediment load allocations to come on August 15) will, in turn, play a major role in the WIP.

MDE is still hosting listening sessions on the WIP - the last one occurs on July 15, 2010 from 10:00 am to 12:00 noon in Upper Marlboro, MD at the Prince George's County Soil Conservation District Office (5301 Marlboro Race Track Road).

Raising Awareness of the Bay Through Open Water Swimming

Megan Reuwer — Thu, 10 Jun 2010 10:04:07 -0500

As Marylanders, we all appreciate and value the great resource that is the Chesapeake Bay. I spend a lot of time focusing on the building industry's impact on the Bay (and the Bay's impact on the industry!) on this blog, but every once in a while, it's nice to be reminded that the Bay is many things to many people. Today's post is guest authored by Bill Shipp, a partner with O'Malley, Miles, Nylen & Gilmore, P.A.

Raising Awareness of the Bay Through Open Water Swimming

On June 13, 2010, approximately 600 swimmers of all ages will once again attempt to swim across the Chesapeake Bay. The annual event is one of the premier open water events in the United States covering a 4.4 mile course swum mostly between the two spans of the Chesapeake Bay Bridge. The swimmers leave the beach at Sandy Point State Park in two waves with hopes of finishing on the eastern shore near Hemingway’s Restaurant. The swim has become a right of passage for competitive swimmers, triathletes, fitness swimmers and open water swimming enthusiasts. Some will finish in less than 2 hours but most will take between two and three hours to complete the rigorous swim. The length of time required to complete the swim is effected by wave height, strength of the currents and other race conditions.

The race is scored by time with participants ranked by their finish overall and within their own age group and gender. Some enter the race to compete for the best time and to achieve top placement, however, many enter the swim for the sense of accomplishment achieved by swimming singlehandedly across the Bay. The challenging nature of the swim and the majesty of viewing the bay and the two spans of the bridges from water level make this one of the most popular open water swims in the nation.

In addition to providing a venue for a top open water event, the Bay Swim also provides a platform to raise awareness of the Chesapeake Bay and to promote efforts to aide in its restoration. Through entry fees and charitable donations, the Great Chesapeake Bay Swim has raised over $1 million dollars for charities. In addition to the March of Dimes, money has been donated to a variety of Bay-related organizations including, The Chesapeake Bay Trust; The National Aquarium, Bay Restoration Project; The Chesapeake Bay Foundation; The Chesapeake Bay Power Boat Association; and CRAB- Chesapeake Region Accessible Boating.

The Chesapeake Bay Trust is representative of the sponsored non-profits with a stated mission to increase stewardship through grant programs, special initiatives, and partnerships that support environmental education, on-the-ground restoration, and community engagement activities.

Funding provided by the Trust sparks on-the-ground change in communities throughout Maryland and works to cultivate a new generation of Bay stewards. Thus, participants in the swim are not only enjoying an open water swim, they are helping to promote organizations actively involved in promoting stewardship of the Bay.

This kind of active outreach and cross promotion of recreation and environmental awareness is a key to long term efforts to educate future generations on the efforts to restore the Bay.

For many, the Great Chesapeake Bay Swim will be a once in a lifetime opportunity to test themselves and to swim across Maryland’s most magnificent body of water. For others, it is an annual test of endurance and a great source of camaraderie with fellow open water swimmers. Some will swim the Bay once while others have made over 20 crossings - but for everyone, the experience is never forgotten and never gets old.

Bill Shipp is an attorney at OMNG and is a LEED AP. This will be his fourth Bay crossing.

Maryland's Phase I Watershed Implementation Plan

Megan Reuwer — Fri, 04 Jun 2010 09:29:11 -0500

The Maryland Department of the Environment has initiated the process of developing Maryland's Chesapeake Bay Phase I Watershed Implementation Plan (WIP). As you may recall, the requirement of a WIP stems from the EPA's recent mandates to the six watershed states in response to Federal Executive Order 13508.

The plans will provide a road map for how the states and the District, in partnership with federal and local governments, will achieve and maintain the Bay TMDL nitrogen, phosphorus, and sediment allocations necessary to meet Bay water quality standards. To facilitate the process of developing the Phase I WIP, MDE is hosting four, two-hour "regional exchange" meetings which will include the participation of staff from the Maryland Departments of Environment, Natural Resources, Agriculture, and Planning.

Additionally, the EPA has recently (April 2010) issued a guidance document to states which details how a state's Phase I WIP will be evaluated; specifically, the document provides clarification on the eight elements expected to be addressed in each Phase I plan. I won't summarize all eight elements (the complete guidance document is available here for your review), but I will touch on a few issues that may prove to be of concern to the building and development industry.

Element 2 - Current Loading Baseline: Jurisdictions have the opportunity to submit alternative information on current loads to the Bay and nutrient sediment control implementation rates by source. What this means: If you have relevant information on current loads to the Bay that you can back up with documentation, you might want to consider presenting that information to MDE at one of its upcoming regional exchange meetings (see details to follow). (Example: you have a study that demonstrates that pollutant run-off from a non-point source is lower than previously shown and you'd like the MDE to consider this in forming the Phase I WIP).
Element 3 - Account for Growth: Maryland can make a recommendation to the EPA as to how it wishes to allocate target loads (ie - can set aside target loads to account for loading increases that could result from future growth). What this means: This could have implications on the allocations available for existing point and non-point sources, because by increasing allocations set aside for new projects, this has the effect of reducing allocations available for existing development. Obviously, both sides of the coin here will impact members of the building industry. If you have a strong feeling one way or the other, again, one of the regional exchange meetings might be an opportune time for you to voice your opinion.

If you're interested in getting your voice heard, you should consider attending one of these exchange meetings, which will take place throughout the state this June. The meeting designated for the North-Central part of Maryland will be held in the first floor conference rooms at MDE on Thursday, June 17 from 6:30-8:30 pm.

Details:

North-Central Maryland
Date/Time: Thursday, June 17: 6:30pm - 8:30pm (Evening)
Location: Baltimore, MD
Maryland Department of Environment, 1st Floor Conference Rooms
1800 Washington Blvd
Baltimore, MD 21230

More information is available on the EPA's website, www.epa.gov/chesapeakebaytmdl/

Emergency Stormwater Regulations Published in the Maryland Register

Megan Reuwer — Mon, 10 May 2010 08:34:36 -0500

The emergency stormwater regulations that were approved by the Joint Committee on Administrative, Executive, and Legislative Review on April 7, 2010 were published May 7, 2010 in the Maryland Register in their official form.

As highlighted previously, some of the most important features of the new emergency regulations include those sections detailing the criteria needed to qualify for an administrative waiver (a project's status as compared to the definition of "preliminary plan" provided in the regulations), as well as the expiration dates of those waivers. It's also important to note that the language of the regulation gives discretion to the approving agency to determine whether an administrative waiver should be given; therefore, even if a project qualifies under the definitions employed by this regulation for an administrative waiver, this is not a guarantee that the "approving agency" will grant the waiver.

Here's a copy of the text published at 37:10 Md. R. 719 (May 7, 2010) for your review:

Notice of Emergency Action

[10-137-E]

The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments to Regulations .01 and .05 and new Regulation .01-2 under COMAR 26.17.02 Stormwater Management.

Emergency status began: April 7, 2010.

Emergency status expires: October 4, 2010.

Comparison to Federal Standards

There is no corresponding federal standard to this emergency action.

Economic Impact on Small Businesses

The emergency action has a meaningful economic impact on small business. An analysis of this economic impact follows. The estimated costs of the proposed stormwater management regulations and the 2000 Maryland Stormwater Design Manual, including Supplement 1, on regulated industries and trade groups range from negligible to substantial. While these estimated costs may impact both large and small businesses, small businesses may experience greater positive impacts as a result of the proposed regulations. MDE anticipates that smaller businesses with projects already in the pipeline may be more affected by costs associated with significant redesigns needed to meet the May 2009 regulatory requirements. The proposed regulatory changes will allow these projects to proceed under the previous regulations thereby diminishing the need for redesign. When considering this factor, the proposed stormwater management regulations will have a negligible to moderate positive impact on small businesses.

.01 Purpose and Scope.

A. — C. (text unchanged)

D. The provisions of these regulations may not be construed to affect the requirements for a project located in an Intensely Developed Area of the Chesapeake and Atlantic Coastal Bays Critical Area to comply with the 10 percent Pollution Reduction Requirement under COMAR 27.01.02.03 D(3).

.01-2 Grandfather Provisions.

A. In this regulation, the following terms have the meanings indicated:

(1) Administrative Waiver.

(a) "Administrative waiver" means a decision by the approving agency pursuant to this regulation to allow the construction of a development to be governed by the stormwater management ordinance in effect as of May 4, 2009, in the local jurisdiction where the project will be located.

(b) "Administrative waiver" is distinct from a waiver granted pursuant to Regulation .05C of this chapter.

(2) Approval.

(a) "Approval" means a documented action by a county or municipality following a review to determine and acknowledge the sufficiency of submitted material to meet the requirements of a specified stage in a local development review process.

(b) "Approval" does not mean an acknowledgement by the approving agency that submitted material has been received for review.

(3) Final Project Approval.

(a) "Final project approval" means approval of the final stormwater management plan and erosion and sediment control plan required to construct a project's stormwater management facilities.

(b) "Final project approval" includes securing bonding or financing for final development plans if either is required as a prerequisite for approval.

(4) "Preliminary project approval" means an approval as part of a local preliminary development or planning review process that includes, at a minimum:

(a) The number of planned dwelling units or lots;

(b) The proposed project density;

(c) The proposed size and location of all land uses for the project;

(d) A plan that identifies:

(i) The proposed drainage patterns;

(ii) The location of all points of discharge from the site; and

(iii) The type, location, and size of all stormwater management measures based on site-specific stormwater management requirement computations; and

(e) Any other information required by the approving agency including, but not limited to:

(i) The proposed alignment, location, and construction type and standard for all roads, access ways, and areas of vehicular traffic;

(ii) A demonstration that the methods by which the development will be supplied with water and wastewater service are adequate; and

(iii) The size, type, and general location of all proposed wastewater and water system infrastructure.

B. An approving agency may grant an administrative waiver to a development that received a preliminary project approval prior to May 4, 2010. Administrative waivers expire according to §C of this regulation and may be extended according to §D of this regulation.

C. Expiration of Administrative Waivers.

(1) Except as provided for in §D of this regulation, an administrative waiver shall expire on:

(a) May 4, 2013, if the development does not receive final project approval prior to that date; or

(b) May 4, 2017, if the development receives final project approval prior to May 4, 2013.

(2) All construction authorized pursuant to an administrative waiver must be completed by May 4, 2017, or, if the waiver is extended as provided in §D of this regulation, by the expiration date of the waiver extension.

D. Extension of Administrative Waivers.

(1) Except as provided in §D(2) of this regulation, an administrative waiver shall not be extended.

(2) An administrative waiver may only be extended if, by May 4, 2010, the development:

(a) Has received a preliminary project approval; and

(b) Was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement.

(3) Administrative waivers extended according to §D(2) of this regulation shall expire when the Development Rights and Responsibilities Agreement, the Tax Increment Financing approval, or the Annexation Agreement expires.

.05 When Stormwater Management is Required.

A. — B. (text unchanged)

C. Waivers.

(1) (text unchanged)

(2) [Stormwater] Except as provided in §C(3) and (5) of this regulation, stormwater management quantitative control waivers shall be granted only to those projects within areas where watershed management plans have been developed consistent with §E of this regulation.

(3) [If] Except as provided in §C(5) of this regulation, if watershed management plans consistent with §E of this regulation have not been developed, stormwater management quantitative control waivers may be granted to projects:

(a) That have direct discharges to tidally influenced receiving waters; [or]

(b) That are in-fill development located in a Priority Funding Area where the economic feasibility of the project is tied to the planned density, and where implementation of the 2009 regulatory requirements would result in a loss of the planned development density provided that:

(i) Public water and sewer and stormwater conveyance exist;

(ii) The quantitative waiver is applied to the project for the impervious cover that previously existed on the site only;

(iii) ESD to the MEP is used to meet the full water quality treatment requirements for the entire development; and

(iv) ESD to the MEP is used to provide full quantity control for all new impervious surfaces; or

[(b)] (c) (text unchanged)

(4) [Stormwater] Except as provided in §C(5) of this regulation, stormwater management qualitative control waivers apply only to:

(a) — (c) (text unchanged)

(5) Stormwater management quantitative and qualitative control waivers may be granted for phased development projects if a system designed to meet the 2000 regulatory requirements and local ordinances for multiple phases has been constructed by May 4, 2010. If the 2009 regulatory requirements cannot be met for future phases constructed after May 4, 2010, all reasonable efforts to incorporate ESD in future phases must be demonstrated.

D. Redevelopment.

(1) — (2) (text unchanged)

(3) An approving agency may develop separate policies for providing water quality treatment for redevelopment projects if the requirements of §D(1) and (2) of this regulation cannot be met. Any separate redevelopment policy shall be reviewed and approved by the Administration and may include, but not be limited to:

[(a) Retrofitting;

(b) Stream restoration;

(c) Pollution trading; or]

(a) A combination of ESD and an on-site or off-site structural BMP;

(b) Retrofitting including existing BMP upgrades, filtering practices, and off-site ESD implementation;

(c) Participation in a stream restoration project;

(d) Pollution trading with another entity;

[(d)] (e) Design criteria based on watershed management plans developed according to §E of this regulation[.];

(f) Payment of a fee-in-lieu; or

(g) A partial waiver of the treatment requirements if ESD is not practicable.

(4) The determination of what alternative stormwater management measures will be available may be made by the approving agency at the appropriate point in the development review process. Counties and municipalities shall consider the prioritization of alternative measures in §D(3) of this regulation after it has been determined that it is not practicable to meet the 2009 regulatory requirements using ESD. In deciding what alternative measures may be required, an approving agency may consider factors including, but not limited to:

(a) Whether the project is in an area targeted for development incentives such as a Priority Funding Area, a designated Transit Oriented Development area, or a designated Base Realignment and Closure Revitalization and Incentive Zone;

(b) Whether the project is necessary to accommodate growth consistent with comprehensive plans; or

(c) Whether bonding and financing have already been secured based on an approved development plan.

[(4)] (5) — [(7)] (8) (text unchanged)

E. (text unchanged)

Roman type indicates text already existing at the time of the proposed action.
Italic type indicates new text added at the time of proposed action.
Single underline, italic indicates new text added at the time of final action.
Single underline, roman indicates existing text added at the time of final action.
[[Double brackets]] indicate text deleted at the time of final action.