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As Maryland continues to take action to reduce nutrient pollution from many sources -- wastewater treatment plants, power plants, vehicles, and agriculture -- reducing polluted stormwater runoff is critical. An estimated 20 percent of Maryland's nitrogen load to the Bay comes from urban and suburban runoff, and runoff from developed areas is the fastest-growing source of Bay pollution. Of that stormwater nitrogen load, approximately 5 percent comes from new development; the remaining 95 percent comes from existing development.
New regulations that change the standards for new development, and redevelopment, implement the Stormwater Management Act of 2007 and became effective in May of 2009. These regulations established new State-wide technical requirements, or environmental site design ("ESD"), for stormwater management for new development and re-development projects, and required counties and municipalities to incorporate these requirements into their local ordinances by May of 2010.
To address concerns regarding grandfathering and how ESD would impact redevelopment projects and Smart Growth, MDE issued emergency regulations that became effective on April 7, 2010. MDE also provided written guidance to counties, cities, and towns to clarify what types of development projects waiting for local approval may be eligible for grandfathering and when waiver provisions may be utilized to address site constraints.
Grandfathering Provisions
The emergency regulation will allow a local jurisdiction to incorporate into its ordinance a waiver provision for projects that had completed part of the development review process but had not received Final Approval by May 4, 2010.
Upon the effective date of the emergency regulations and incorporation of consistent provisions into local ordinances, local jurisdictions will be able to issue a waiver that will "grandfather" certain projects. Eligible projects will be those that have cleared an appropriate stage in the development process, called "Preliminary Approval," before May 4, 2010, even though they will not have received Final Approval by that date. These projects must begin construction before May 4, 2017.
Redevelopment
State regulations define redevelopment as "any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent." The new regulations increased the requirement for water quality treatment of a sites' impervious area from 20 percent to 50 percent. To meet this standard on constrained redevelopment sites, it has always been recognized that designers, developers, engineers, and reviewers need flexibility to incorporate stormwater management in redevelopment. The Department's emergency regulation also provided further clarification of alternative stormwater management measures that may be considered if addressing 50 percent of the site's impervious area cannot be accomplished. These include a combination of ESD and on-site or off-site structural Best Management Practices (BMPs), or any of the following options:
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Other types of retrofitting (BMP upgrades, filtering practices, implementing ESD off-site)
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Participation in a stream restoration project
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Pollution trading with another entity
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Watershed Management Plans
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Payment of a fee-in-lieu
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Partial Waiver of the treatment requirement to the extent that ESD is not practicable
The new regulations also clarified what could be considered by the local government in deciding what alternative measures may be required. These include:
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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 BRAC Revitalization and Incentive Zone
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Whether the project is necessary to accommodate growth consistent with comprehensive plans
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Whether bonding and/or financing has already been secured based on an approved development plan
During legislative hearings, and based on gross estimates from a limited number of local governments, MDE estimated that these changes will affect approximately 1,000 to 1,500 sites ranging in size from just over 5,000 square feet to the largest developments. This finite set of sites may use existing stormwater standards if approved by their local government. To put this in context, in 2009, there were approximately 20,000 construction sites over 5,000 square feet in size in Maryland. Those sites account for 5 percent of Maryland's stormwater nitrogen load. MDE projects that 1,500 of 20,000, or under 8 percent of sites in one year, may ultimately be approved to use existing stormwater standards. Sites for which waivers are granted will be posted on MDE’s website monthly. To date, no waivers have been received.
Every construction project receiving preliminary plan approval after May 4, 2010, must use the new stormwater standards.
MDE continues to work with local jurisdictions to ensure that the implementation of the Stormwater Management Act of 2007 is accomplished as comprehensively and consistently as possible. The Department will be providing further technical assistance to the engineering community in the coming weeks and months to further support the modifications to the Stormwater Design Manual.
Click here for further information on the Stormwater Management Act of 2007.
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