Builders, legislators express frustration at state agency

Environment department's stormwater rules raise ruckus

The Maryland Department of the Environment will soon release a more detailed set of guidelines relating to the controversial changes to stormwater management regulations, but is it too little too late?

House Minority Leader Anthony J. O'Donnell (R-Calvert, St. Mary's) who sits on the House Environmental Matters Committee said that the House could begin hearings within two weeks to discuss broadening the proposed requirements that have many concerned legislators and developers calling foul.

"There are hundreds of people out of work in the building industry. These regulations will serve to strangle the last little bit of the construction business," O'Donnell said last week. "I've been frustrated with the Maryland Department of the Environment. There's a general sense that the department has morphed these regulations into something we didn't intend when we passed the authorizing bill in 2007."

The bill O'Donnell refers to is the Maryland Stormwater Management Act of 2007, which aimed to reduce a drainage system's negative impact on the natural landscape by using environmentally friendly design plans.

The adoption of the legislation sent reverberations down to the county level, where jurisdictions are having to adjust their own stormwater management ordinances to comply with the act by May 4, the effective date for the changes.

It's this deadline, along with the worry about balancing the practice of smart growth amid more green space that has many frustrated.

"Are [the changes] effective? Are they doing what they're supposed to do? [MDE] is trying to fix something they're not sure is even broken," said Doug Meeker, chairman of the Charles County liaison committee for the Maryland National Capital Building Industry Association.

Meeker and several other concerned civil engineers had shared similar worries during a Charles County commissioners' public hearing last month, where the county leaders instructed their legal department to do an internal review of MDE's expectations to ensure the county was not doing more than was asked and the agency wasn't overstepping its bounds — again.

During the Feb. 9 public hearing, County Attorney Roger Fink mentioned a time in the late 1990s when the Department of the Environment tried to enforce county ordinances based on the National Pollutant Discharge Elimination System, which he said was an instance of the agency overstepping its statutory authority.

Among the changes Maryland counties must conform to is a promise to practice environmental site design techniques to the maximum extent practicable.

That includes the use of alternative porous materials for driving and parking surfaces, green roofs for homes and businesses and rain barrels and rain gardens to manage runoff after wet weather.

In a follow up to his Feb. 9 testimony, Meeker said that he had seen at least a dozen example projects where the proposed changes were applied with unfavorable outcomes for developers and growing counties.

"In every case there was reduced density and a considerable increase in cost," Meeker said.

"Everyone wants clean air to breath and clean water to drink. MDE says the regulations have the change, but there's no science put forth to support that position."

In general, reductions in density lead to more "sprawl" development, counter to the state's smart growth policies.

With a number of members who would be affected by these changes, the Charles County Chamber of Commerce is doing its best to stay in contact with representatives as well as Meeker's association.

"Our legislators seem very careful to vote on anything that's talking about protecting our environment that's a hindrance to the building community," said Ken Gould Jr., executive director of the chamber. "It's a fine line, because you want to be very responsible but we have to support our members."

As the executive director of 1,000 Friends of Maryland, Dru Schmidt-Perkins' job is to oversee the efforts of the organization, among them the promotion of smart growth balanced with environmental conservation.

Asked whether she was worried about any potential effects on smart growth, Schmidt-Perkins said she was in fact pleased with the standards the Maryland Department of the Environment had placed within the stormwater act.

"If you're going to do a green field [new] development you're held to a much higher standard. If you're doing redevelopment you have to meet half of that because when you're rezoning there are fewer options with usage and cost," Schmidt-Perkins explained. "We were pleased with that differential."

The ratio of standards for new and redeveloped sites is one of the examples MDE has pointed to as proof that rather than limiting builders the coming changes will help in the approval process.

Dawn Stoltzfus, a spokeswoman for MDE, said that in early March her agency would be coming out with a compilation of additional guidance to help assuage the fear and frustration that has been voiced at the county and local levels.

A late January presentation by the agency to the Environmental Matters Committee indicated MDE was already receiving concerned comments.

"The two main things have been: Does this negatively effect smart growth, and we explain that it won't; and specifics on grandfathering," Stoltzfus said. "This outlines where and when. Developers can use waivers and variances. There is a lot of flexibility built into these regulations, but we haven't done the best job of showing that."

Having been a part of a review of the 2007 act, Schmidt-Perkins stands by the belief the legislation has a bark much worse than its bite and smart growth can still be accomplished under the existing rules.

"Here we are now and the development community is up in arms. Suddenly they're the biggest fans of smart growth," Schmidt-Perkins said. "Can they do the same development with just minor tweaks? No, they may have to go back and … design things differently.

"This is the beginning of many opportunities we have to rethink, redesign and rezone in order to meet broader standards," she said.

Critics remain nonplussed, however.

Meeker pointed to the lengthy process of going from an idea to shovels in the ground and since the grandfathering rule allows only projects with final approval by May 4 to move along, that means plans half-done or even three-quarters of the way from complete would have to start back at square one.

"These projects, it can take years … to get through to construction and they're basically going to have to start at the beginning again," Meeker said.

"People who already have projects with preliminary approval should be [grandfathered] too."

O'Donnell said the upcoming hearings would address broadening the grandfather clause.

"These regulations have a lot of unintended consequences including loss of growth," O'Donnell said.