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After being in a state of flux for much of the past year, the regulation of stormwater in Maryland finally has settled down enough that developers and local jurisdictions now can focus on compliance with the new regulatory scheme.  This article provides a brief history of the evolution of the new stormwater regulations and describes the current status of the regulations. 

Regulatory Background

The Stormwater Management Act of 2007 (“the Act”) introduced the concept of Environmental Site Design (“ESD”) to real estate development.  ESD is a method of using small-scale stormwater management practices, nonstructural techniques, and better site planning to achieve, after development, predevelopment runoff characteristics as nearly as possible.  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.

In accordance with the Act, the Maryland Department of the Environment (“MDE”) published regulations at COMAR 26.17.02 that went into effect on May 4, 2009.  The regulations applied to most new development and redevelopment projects that did not have final approval for erosion and sediment control and stormwater management plans in place by May 4, 2010. 

            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 had begun the development process and received some approvals, but were stalled due to current economic conditions and would 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 the stormwater management systems at significant additional cost, many stakeholders believed that these projects already in the pipeline should be grandfathered from the new regulations. 

The 2009 regulations also had 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” and would have to comply with significantly more stringent standards for New Development. 

Several pieces of legislation were introduced in the 2010 Maryland General Assembly to address these issues but then were put on hold while MDE and stakeholders (including environmentalists) met to negotiate a solution.  As a result of these negotiations, MDE enacted regulations on an emergency basis to address the development community’s concerns without compromising the ultimate goal of implementing stormwater management that results in less stormwater runoff pollution.  The emergency regulations were first published on May 7, 2010 and then became final effective July 26, 2010.  MDE also published a guidance document that provides examples of how the regulations may be implemented at the local level to allow reasonable implementation of the new rules. 

The 2010 Regulations

            A.         Grandfathering

The new 2010 regulations 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 the number of planned units, lots, 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 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 agreement 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 2010 regulations recognize that some projects with less than 40% impervious surface will have circumstances that prevent the reasonable implementation of the 2009 standards.  The regulations 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 new regulations also allow for additional quantitative waivers for infill development. 

C.        Redevelopment – Availability of Alternative Stormwater Management Measures

            The 2010 regulations also address concerns over the subjective standards of whether and when alternative stormwater management practices are allowed for redevelopment sites.  The 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, BMP’s, 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. 

Conclusion

            The 2010 regulations have provided some flexibility for projects in the pipeline.  However, these projects are finite in number and will still need to keep moving forward to take advantage of the grandfathering provisions in the regulations before any administrative waivers expire.  Other projects will need to begin implementing ESD in accordance with the new regulations.

This article was published in the Maryland State Bar Bulletin, September, 2010.