Development projects that are in the pipeline, but do not yet have final approval for erosion and sediment control and stormwater management plans by May 4, 2010, currently face significant challenges to comply with the Maryland Department of the Environment (“MDE”) stormwater regulations that were promulgated last year. Many projects will have to redraw plans to meet the new stormwater specifications and face significantly increased costs for stormwater management. In many cases, these efforts will result in less density on the project than previously anticipated. Several pieces of legislation have been introduced to address these issues but have been put on hold while MDE and stakeholders (including environmentalists) meet to negotiate a solution to their concerns.
As a result of these negotiations, MDE has agreed to enact emergency regulations that will address the development community’s concerns without compromising the ultimate goal of implementing stormwater management that results in less stormwater runoff pollution. A draft of the emergency regulations, as well as regulatory guidance on the new regulations, is expected to be available for review during the week of March 8, 2010. The new regulations will be officially published shortly thereafter. With the publication of these emergency regulations, it is expected that any proposed legislation on stormwater issues will not advance.
The Stormwater Management Act of 2007 (“the Act”), effective October 2007, introduced the concept of Environmental Site Design (“ESD”), a method of using small-scale stormwater management practices, nonstructural techniques, and better site planning to achieve after development, as nearly as possible, predevelopment runoff characteristics. In accordance with the Act, MDE published regulations at COMAR 26.17.02 that went into effect on May 4, 2009. The regulations apply to most new development and redevelopment projects that do not have final approval for erosion and sediment control and stormwater management plans in place by May 4, 2010.
The 2009 regulations require the implementation of ESD to the “Maximum Extent Practicable” (“MEP”). ESD represents a significant change in stormwater management from the prior approach, which focused on trapping and treating stormwater through Best Management Practices (“BMPs”) such as stormwater ponds or infiltration systems before returning the water to the watersheds.
Stakeholder Concerns and MDE’s Response
While representatives of the development community, counties, municipalities, and other stakeholders generally supported the Act, the 2009 regulations introduced standards and implementation methods that took certain stakeholders by surprise. Specific concerns included the lack of provisions for grandfathering projects already in the pipeline and onerous redevelopment standards. For example, many projects have begun the development process and received some approvals, but will not receive final approval for erosion and sediment control and stormwater management by May 4, 2010. Because complying with the 2009 regulations would require a complete redesign of stormwater management systems at significant additional cost, many stakeholders believed that the projects already in the pipeline should be grandfathered from the new regulations.
The 2009 regulations also have challenging redevelopment standards. “Redevelopment” is defined as “any construction, alteration, or improvement performed on sites where existing use is commercial, industrial, institutional, or multifamily residential and existing site impervious area exceeds 40%.” Because some communities contained redevelopment sites with just under 40% impervious area, the 40% threshold would mean those sites would be treated as “New Development,” for which the standards for stormwater management are significantly more stringent.
Current treatment standards for redevelopment also do not allow enough flexibility. The regulations require that redevelopment sites either reduce existing impervious surface by 50% (an increase from the prior requirement of 20%) or that ESD be implemented to the MEP to provide water quality treatment for at least 50% of the existing impervious area, or a combination of both. One troublesome aspect of this standard is that alternative stormwater management measures, such as BMPs or fees paid in lieu of stormwater management (each of which are measures of necessity for many redevelopment projects - especially in urban areas) now may only be available upon a showing that ESD measures have been exhausted. The subjective standard about whether and when such alternative practices would be available has caused great uncertainty.
In response to these stakeholder concerns, MDE began to develop guidance that would provide examples of how the regulations would be implemented and promised that the flexible measures built into the regulations would allow reasonable implementation of the new rules. Stakeholders, however, were still concerned that informal guidance would not have the same effect as regulations, and MDE eventually agreed to promulgate emergency regulations aimed at addressing the concerns over grandfathering and redevelopment.
The New Emergency Regulations
The emergency regulations will allow local jurisdictions to grant an “Administrative Waiver” to allow a project to be grandfathered to the 2000 stormwater rules if the project has received a “Preliminary Project Approval” by May 4, 2010 (as opposed to obtaining final erosion and sediment and stormwater management plans by that time). “Preliminary Project Approval” is defined as a plan approval or completed review by a local jurisdiction that includes, at a minimum, the number of planned units, lots, and density, proposed size and location of land uses, proposed drainage patterns, points of discharge, and the type, location and size of all stormwater management controls. The definition may also include other items that currently may be required as part of a local jurisdiction’s preliminary planning approval process.
Administrative waivers shall expire on May 4, 2013, unless the project receives “Final Project Approval” (i.e., approval of final erosion and sediment and stormwater management plans) prior to that date, and no administrative waiver shall extend beyond May 4, 2017. A local jurisdiction is permitted to extend the May 4, 2013 deadline for receiving Final Project Approval if, by May 4, 2010, the project had received Preliminary Project Approval and was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement. A waiver granted under any one of these latter circumstances will expire when the agreements or approval expires.
B. Redevelopment – 40% Threshold
To address the 40% threshold for qualifying as a redevelopment project that would cause true redevelopment projects to be categorized as “New Development,” the emergency regulations recognize that some projects with less than 40% impervious surface will have circumstances that prevent the reasonable implementation of the 2009 standards. The emergency regulations will allow a local jurisdiction to grant a waiver of the 2009 stormwater requirements for phased projects that already constructed stormwater management facilities designed to meet the 2000 standards, and infill developments that are located in Priority Funding Areas with existing stormwater conveyance, public water and sewer, and where the economic feasibility of the project is tied to the planned density. The emergency regulations also will allow for additional quantitative waivers for the infill development category.
C. Redevelopment – Availability of Alternative Stormwater Management Measures
The emergency regulations also will address concerns over the subjective standards of whether and when alternative stormwater management practices are allowed for redevelopment sites. The emergency regulations call for a local government to make that determination “at the appropriate point in the development review process,” taking into consideration the prioritization of the alternatives from ESD measures, BMPs, payment of a fee-in-lieu, and waivers. In deciding what alternative measures may be required, the local government may consider issues such as whether the project is in an area targeted for development incentives (e.g., a Priority Funding Area, Transit Oriented Area, or BRAC Revitalization and Incentive Zone), whether the project area is targeted for growth consistent with comprehensive plans, or whether bonding or financing has already been secured based on an approved development plan.
Gordon Feinblatt Experience
Our attorneys have been involved both in the negotiation and drafting of pending legislation as well the forthcoming emergency regulations on stormwater management. If you have questions regarding MDE’s emergency regulations on stormwater management or the stormwater management regulations in general, the Environmental and Energy Practice Group of Gordon Feinblatt is ready to help you.
|Michael C. Powell|
|Margaret M. Witherup|
|Todd R. Chason|
|Chelsey L. Moscati|
©2010 Gordon Feinblatt, LLC. Gordon Feinblatt Legal Bulletins are intended for informational purposes only and are not legal advice to any person, entity or firm.