The State of Stormwater Management

Andrew Der
March 20, 2012 — 1,506 views  
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The passing of the MarylandStormwater Management Act of 2007 (the Act) ushered in a new regulatory era inMaryland where many newer and innovative policy decisions are now becoming statutory.  If implemented equitably in a technically sound manner, this could have potential for establishing long overdue consistency in how we protect our water resources.

For those accustomed to dealing with water quality management using chemistry-based or biology-based decision making processes, this concept can be a welcome one to fill in the gaps that more traditional engineering-based criteria did not always address.  However, the initial attempts at writing the Bill were fraught with technically conflicting obstacles and obscured by politics.

Tasked with developing its first draft regulations by the end of 2007 and final regulations by the end of 2008, the Maryland Department of the Environment (MDE) is challenged by a short timeline and minimal resources, plus having to define well intended but subjective regulatory language.  To this end, a State workgroup with industry participants are meeting regularly to help establish equitable and technically sound criteria to achieve surface water protection goals, while being compatible with the various water quality criteria already in place.

As background, initial efforts were challenged by the Bill since some of the language was not entirely compatible with existing criteria or basic principles of technical data and scientific methods.  Concurrently, the industry felt over-regulated since the Bill viewed the regulation of new development as the sole solution to Chesapeake Baywater quality protection.

To illustrate, the region’s Senators in 2007, while the Bill was being developed, voiced their support for CHESSEA legislation (Chesapeake’s Healthy and Environmentally Sound Stewardship of Energy and Agricultural Act of 2007) and the U.S. Environmental Protection Agency (EPA) and the Department of Agriculture entered into a memorandum of understanding to better coordinate their agricultural nutrient control efforts.

Further, in support of the 2007 Farm Bill and CHESSEA, the Chesapeake Bay Foundation described the Farm Bill as “a golden opportunity to save” Maryland’s waters. This conclusion is based on their own data that the primary sources of nutrient input to the Chesapeake Bay are from the following: 39% Agriculture, 20% Point Source, 20% Atmospheric Deposition, 10% Urban/Suburban Stormwater, 4% Septic, and 1% Natural.

What is critical here is that, of the 10% total associated with Urban/Suburban stormwater runoff, a significant portion of this total urban contribution is from older development (prior to today’s SWM and buffer setback requirements), leaving the percent source from new development even less. Given that a primary justification for CHESSEA was the control of nutrients, it is unclear why there is so much fervor over additional regulatory criteria for new development from a State-wide perspective.

This is not to say such criteria are not needed, but putting feelings and politics aside and noting some regulatory basics, it is important to remember that new development today, in most jurisdictions, is already subject to a plethora of stringent environmental controls. These controls are focused on significant stream buffering requirements and forest conservation laws which emphasize the retention and reforestation of riparian buffer areas since such disconnects are recognized as the most effective water quality management practice. This is before the application of existing state-of-the-art best management practices per numerous state and federal SWM criteria.

Instead of affixing blame to particular groups, all of us (consultants, developers, environmental groups, and legislators), as advocates for clean water should remember that everyone is part of the problem – and the solution – and that the priority should be addressing the water quality management of all lands, including the retrofit and redevelopment of existing “pre-stormwater” development, a goal of smart growth, but unfortunately absent from the Act.

The Act can be effective if applied objectively in a manner which supplements existing criteria.  The MDE is to be commended for its efforts to meet timely critical paths and convening numerous stakeholder focus groups aroundMarylandin the last few months which in effect successfully allowed the public to help draft the new law – the goal being to formalize and make consistent Environmental Site Design (ESD) on a regulatory level.  

ESD in a nutshell is the term the Act utilizes to implement more at-source and softer practices for stormwater management that many jurisdictions are already using as policy.  Examples include fragmenting and buffering impervious surfaces; using open-section pavement, maximizing groundwater recharge and filtration practices such as infiltration and bioretention; utilizing more innovative devices such as pervious pavements and green roofs; etc.  The obvious challenge is the potential for ESD to be subjective due to variations in resource and site characteristics, as well as human perception and the Act requires these practices be used to the maximum extent practicable (MEP).

Defining MEP on a local and site level in a manner which is achievable will be a major hurdle.  What constitutes MEP in Western Maryland will not be the same as inCentralMaryland, or the Eastern Shore of Maryland, due to variations in geology, soils, topography, water resources and vegetation.  The focus groups are now complete and MDE will need to address this as they develop the first round of regulations this fall for public comment.

How the law will trickle down for local implementation is another challenge for MDE and will not only be affected by defining MEP, but will beg answers to other questions regarding timelines and grandfathering issues, with the goal being to not retroactively impinge on projects vested in pre-approval processes.  The industry needs to be proactive both with MDE and locally to assure the equitable drafting of these regulations by the end of this year so we will truly improve the stormwater management regulations and not simply make them more complex and redundant.

Andrew Der

Whitman Requardt & Associates, LLP

Andrew Der is an Associate and Director of Environmental Services at Whitman Requardt & Associates, LLP head office in Baltimore and practiced in the consulting industry since 2001 previously completing 17 years of service at the Maryland Department