State efforts to reduce stormwater runoff from development sites in Maryland, Virginia and Pennsylvania are facing an onslaught of questions and challenges that conservationists worry could weaken water quality protection in the Chesapeake region.
States are under pressure to develop robust stormwater regulations to meet federal pollution limits for rivers known as TMDLs, or Total Maximum Daily Loads. In January, the EPA announced plans to write federal stormwater regulations for the Bay watershed.
Although development of the regulations has just begun, they will eventually apply to any jurisdiction without a satisfactory stormwater program of its own.
"We're all going toward this brave new world of low-impact development," said Thomas Schueler of the Chesapeake Stormwater Network. "But no one truly understands the costs, and the engineering community is to differing degrees uncertain about how to proceed. It's new stuff."
To get there, Maryland is busy defining and explaining its new stormwater regulations for development projects, set in motion by the Stormwater Management Act of 2007. Virginia is working to launch a similar program that would set its first statewide stormwater standards for development.
In both locales, developers and local governments have taken direct action to stop, delay or revise pending regulations. Their concerns are cost, timing and even an inadvertent increase in sprawl.
Similar debates are brewing in Pennsylvania, where updates to the statewide stormwater manual are under way. Some conservation organizations are concerned because the process is driven by a 60-member task force consisting primarily of developers and engineers, with little input from the conservation community.
The push for better stormwater management is on because stormwater is the Bay's fastest growing source of pollution. The Chesapeake Bay Program estimates that 17 percent of phosphorus, 11 percent of nitrogen and 9 percent of sediment loads to the Bay come from stormwater.
Rain and melted snow wash across hard surfaces like roads, roofs and parking lots, absorbing a wide range of pollutants along the way-everything from litter and dirt to the less visible traces of oil, pesticides and pharmaceuticals.
Some water evaporates and some soaks into the ground. But most empties, completely untreated, into local waterways and ultimately, the Chesapeake Bay.
During the past decade, stormwater programs in all three states have shifted from traditional stormwater engineering toward a suite of techniques known as Environmental Site Design.
ESD captures stormwater on-site rather than rushing it away through curbs and gutters. The new mantra is to "slow it down, spread it out, soak it in."
Campaigns to encourage ESD have trickled out through nonprofit organizations and government agencies. But such efforts challenge traditional engineering solutions.
"People like to do what they've done in the past," Schueler said. "Whenever you enter an era of change like this, you can almost guarantee that there will be concerns, pushback or even hostility to the new paradigm."
Is the pushback worrisome, or the natural give-and-take of forward momentum? It's too early to tell.
"In some cases, we are making the shift but delaying how fast it happens. In other cases, there may be a decision not to move forward or really weaken the redevelopment provisions. If they are seriously weakened, the long-term fallout is that local governments will end up paying to retrofit those systems and taxpayers will pick up the bill," Schueler said.
While the debate continues, Maryland has advanced a stringent set of stormwater regulations that require ESD "to the maximum extent feasible" on all new development and redevelopment sites.
For new development, the goal is to capture and absorb 100 percent of the stormwater that the site processed before development took place. Redeveloped sites, which have inherited problems from earlier stormwater systems and may have less space for ESD features, should aim for 50 percent.
Dawn Stoltzfus, spokesperson for the Maryland Department of the Environment, said that the regulations are very flexible and the MDE will do more to make that clear.
Requirements for redevelopment, for example, can be met by working offsite to restore a local stream or retrofit an existing stormwater system.
"All this is at the discretion of local jurisdictions," Stoltzfus said.
As a last resort, developers can pay a fee in lieu of installing ESD practices.
"The fears we've heard seem to be worst-case scenarios. We're working on very good guidance right now that will explain all the options," Stoltzfus said.
In the meantime, Del. Marvin Holmes has sponsored a bill now moving through the General Assembly to relax requirements for redevelopment and to exempt projects with preliminary approval from the new regulations.
Currently, the new regulations allow projects that are fully approved by May 2010 to move forward under old rules.
Michael Harrison, government affairs director for the Home Builders Association for Maryland, said that extending the grandfather clause is important. Builders with preliminary approval have already spent significant time and money on stormwater plans, he said.
"Small businesses have put millions of dollars into those plans, and MDE is telling them that they have to throw those out," Harrison said.
Stoltzfus said local jurisdictions will be empowered to use waivers and variances at their discretion.
In Virginia, the Department of Conservation and Recreation recently completed a four-year public process to design a statewide stormwater program. Beginning in 2009, the proposed regulations have been repeatedly passed by the Virginia Soil and Water Conservation Board, then stalled to address ongoing concerns from the development community.
As a result, the regulations have been weakened. The original proposal included a statewide standard that would limit phosphorus levels in stormwater runoff to no more than 0.28 pounds per acre.
The first revision downgraded the 0.28 standard to apply only in the Chesapeake watershed. The second revision reverted to the existing 0.45 standard for the entire state.
A public comment period is under way until March 17. The new state administration will then have its first formal chance to react to the regulations.
The debate in Pennsylvania is just taking shape. The task force revising the state stormwater manual continues to meet, but has not announced a time frame for its work. The task force is no longer staffed by the Department of Environmental Protection, although DEP staffers participate in meetings.
Member Wesley Horner of the Brandywine Conservancy is one of the few representatives from a private conservation organization.
While the task force is officially focused on technical issues, the group fully intends to comment on policy. Horner questions whether its recommendations will be based on the best information available.
"This is not just about updates. It is in fact getting into the meat of the matter in terms of stormwater management," Horner said. "We're talking about water quality, and I worry that there are enormous issues without adequate representation from the people who are speaking for the critters and the water. There needs to be more than just stormwater engineers in the room."
Questions of Cost
Questions about the true cost of ESD resonate in the debates. Answers aren't coming soon.
A 1997 study by the state of Delaware and the Environmental Management Center of the Brandywine Conservancy was one of the first to conclude that ESD often saves money, but acknowledged that cost comparisons are difficult.
In 2007, the EPA compared 17 sites nationwide, two of which are within the Bay watershed. Some were projections and some completed projects. ESD raised costs in a few cases, but the vast majority cut costs 15-80 percent.
A 2008 study of three sites for the Chesapeake Bay Foundation found ESD costs comparable to traditional systems.
But many developers aren't persuaded by the studies and worry that ESD will increase costs.
Harrison said that studies cited by the environmental community are often paper exercises, and builders are often faced with situations beyond those examined in the studies.
"There is some evidence suggesting that if you have a large tract of land and you don't have to build a stormwater pond, then you are going to save some money," Harrison said. "But if you have an oddly shaped lot or small lot, with odd slopes, it's going to be hard to put the [ESD] features on it. That's when it's going to cost more money."
Overall, Harrison said that there are just not enough on-the-ground examples of ESD to settle such questions.
Chris French, Virginia director for the Alliance for the Chesapeake Bay, recently coordinated a workshop at Sweet Briar College, near Lynchburg, VA. Sweet Briar College saved $68,000 by using ESD techniques in place of the traditional alternatives. French said there are few similar real-world examples in the Bay region.
ESD is most cost-effective when planned from the outset of a project. Often, traditional plans are reworked for ESD techniques, making accurate cost comparisons difficult.
"There aren't many examples of developers who have fully weighed both options up front," French said.
Dru Schmidt-Perkins, executive director of 1,000 Friends of Maryland, said that costs may increase for some sites, but the cost is justified. "This is money that needs to be spent," she said. "If we don't invest in minimizing the problem of stormwater runoff, we are growing the costs of the impact. We don't want to grow that debt."
Critics of both the Maryland and Virginia regulations, including some environmental advocates, have also suggested that stormwater regulations could inadvertently contribute to sprawl.
In a redevelopment setting, they say stormwater challenges could make suburban and rural lands seem like easier places to develop.
Both the Maryland and proposed Virginia regulations have less stringent requirements for redevelopment than new development. The purpose of the inequity is to recognize the challenges in urban sites and keep redevelopment projects attractive.
The Chesapeake Bay Foundation, along with 1,000 Friends of Maryland-devoted to smart growth issues-are among those satisfied with this approach.
"Almost all states have that sort of language in their regulations, but there were no details on it," said Schueler, of the stormwater network. "Whenever there is a lack of detail, people are concerned."
The Chesapeake Stormwater Network is working on a list of ESD practices and related costs that will help developers compare expenses for new development and redevelopment.
Harrison, of the MHBA, said that redevelopment standards also impact sprawl by affecting revenue to local governments. He said that bonds to pay for infill development are secured by the density and revenue of a promised development.
If density is lost to make room for ESD features, local governments lose revenue. To compensate, they may need new projects to repay their loans. "Loss of density is a loss of revenue from the development. That's the sprawl that will have to happen somewhere else," Harrison said.
But sprawl, Schueler said, "is happening regardless of stormwater controls. I can't see stormwater having a meaningful impact in changing that."
As stormwater details play out on separate but neighboring stages, EPA regulations remain in the wings.
"In the long run, because of the ?TMDLs and the EPA's role in stormwater permitting, there's clearly going to be a shift to more stringent stormwater management," Schueler said. "So let's get on with it. We can do it."