Ensuring Full ESD Implementation Richard Klein In this last of our four presentations we ll describe approaches for increasing the likelihood that ESD will be fully implemented on each site. Of course we re not talking about forcing anyone into using ESD. Or rather that s not our first choice. However, there s now a law requiring full use of ESD and compliance is extremely important. Our goal is to provide local and state agencies with the public support needed to gain the resources and political backing essential to making ESD work. It is our hope that this will allow ESD to evolve into a process which fully protects aquatic resources yet reduces development costs while providing applicants with a consistent and predictable regulatory process. 1
When You First Learn Of A Project Most of us clean water advocates learn of a project when we pass by a sign like that on the left. Or maybe we track the local Planning Commission agenda. Regardless of how you learn of a project, the first step should be to request an opportunity to review project plans and the project file. 2
Review The Concept Plan & Computations For County-City Stormwater Contacts visit ceds.org/esd Usually the Planning Commission file will not contain both the stormwater concept plan and the supporting stormwater computations. You really need both documents. To get these documents contact the office or staff person who is handling the stormwater review. You ll find a listing of stormwater contacts on the CEDS Environmental Site Design webpage 3
ESD Compliance Checklist We d like to add each checklist you complete to the CEDS-ESD Compliance Database. So please forward a copy to: CEDS-ESD 811 Crystal Palace Court Owings Mills, MD 21117 or Fax: 410-654-3028 or Help@ceds.org Of course once you obtain the concept plan and computations use the CEDS checklist to first determine if, in general, full use has been made of Environmental Site Design. If you use the checklist could you forward a copy to CEDS. We hope to compile a database of checklist entries for use in assessing how well ESD is being implemented in each watershed, county, municipality, and statewide. All information we receive will be kept confidential. We ll also provide you with periodic summaries. 4
Chesapeake Stormwater Network http://www.chesapeakestormwater.net/ These two Chesapeake Stormwater Network documents allow for a more detailed evaluation of whether ESD has been used to the Maximum Extent Practicable. 5
Winning Full ESD Site By Site Think negotiation & political action, before litigation; Make the ESD benefits case; Seek to offset increased applicant cost (if any); Work with the applicant & regulators; Demonstrate substantial public support; Lobby key decision-makers; then Move onto the more aggressive aspects of the Equitable Solutions approach. If you are dissatisfied with the level of ESD implementation, then these seven steps have proven most effective in achieving better environmental protection on proposed development sites. We strongly urge citizens not to rely solely on legal action. Instead, citizens should simultaneously use negotiation and the political process to achieve their goals. However you should do the preliminary legal research needed to ensure that no commenting or appeal deadlines are missed. The reason we emphasize a negotiation-political approach over litigation is that this is where citizens have the advantage and the citizen success rate is far higher when compared to legal action alone. Also each success won in this way builds public support for ESD and other innovative environmental protection strategies. Legal action alone tends not to do this. 6
ceds.org/esa ceds.org/publications Further detail on these seven steps can be found on the CEDS Equitable Solutions webpage and in How To Win Land Development Issues, a 300- page book which is available free on the CEDS publications page. Does this approach work with individual development projects? Well here s 7
an example. Yes it s the Shoppes at Apple Green introduced in the earlier presentation. As you ll recall, the applicant had originally proposed using the 1970s regional pond approach. The County approved a site plan with this approach in 2003. Once downstream property owners learned of the devastating impact of this outdated approach, CEDS helped them organize an aggressive science-based political strategy for getting better control. Thus far we ve gotten the applicant to abandon the regional pond for onsite control and the Shoppes has become the most controversial project in the County. We believe we have the County Commissioners to thank for this and other project improvements. We re now working to upgrade the project to ESD. 8
Maximum Extent Practicable COMAR 26.17.02.06.A.2 The MEP standard is met when channel stability and 100 percent of the average annual predevelopment groundwater recharge are maintained, nonpoint source pollution is minimized, and structural stormwater management practices are used only if determined to be absolutely necessary. With some situations there s really no alternative to litigation. And given this text setting Maximum Extent Practicable minimum requirements we re anticipating substantial litigation. This definition could be interpreted in many ways, including no significant adverse effects to the aquatic environment. And the text in the actual law emphasize this no-impact goal to an even greater degree. If plan designers fully apply ESD then I believe this goal is achievable on most sites. But in the event corners are cut we ve already compiled what we believe are a number of compelling arguments for why the courts should rescind grading permits and other approvals. 9
Supporting Local & State Government Resources & Political Backing Critical To Full Implementation of ESD In the past we clean water advocates have failed to provide local and state stormwater agencies with the support essential to success. This support would mostly come in the form of reminding voters and elected officials of the importance of good stormwater management. When done well these reminders translate into adequate funding and staffing as well as the political backing required to stand firm on critical environmental protection principles, like ESD. 10
MDE Triennial Stormwater Reviews Allegany 1993 Charles 2006 Prince George s 1996 Anne Arundel 2005 Dorchester 1994 Queen Anne s 1994 Baltimore City Def Frederick Def Somerset 1995 Baltimore 1994 Garrett 1997 Saint Mary s 1996 Calvert 1996 Harford 1995 Talbot 1994 Caroline 1994 Howard 1997 Washington 2004 Carroll 1992 Kent 1994 Wicomico 1990 Cecil 2005 Montgomery 1997 Worcester 2004 Here s a specific example of how our lack of support has resulted in the decline of a critical part of MDE s stormwater mandate. MDE is required to review local programs once every three years for compliance with the State stormwater law. As you can see, only five of the 25 local programs have been reviewed this decade. The MDE triennial reviews are essential to ensuring that local governments require the use of ESD and other highly-effective stormwater measures. Getting MDE the resources needed to reinitiate triennial reviews is imperative if we are to reap the full benefits of ESD. By the way, the Calvert County program hasn t been reviewed since 1996, which may explain why the County approved a site plan with such horrible stormwater control. 11
Check Approved Plans for ESD Compliance http://ceds.org/pdfdocs/criticalareareport.pdf I urge riverkeepers, other watershed organizations, and advocacy groups to consider a more thorough review. Please consider reviewing the first few ESD plans approved for projects in your area. Of course the purpose of the review is to determine if full use is being made of ESD. CEDS would be delighted to take a quick look at the plans too. Just forward them to the address at the end of this presentation. Consider compiling a report card on how well ESD is being used. The document on the left is a detailed report card we did for compliance with environmental protection regulations in the critical area of Saint Mary s County. Again, we urge you to consider doing a similar report card for your area. 12
Most Effective Moderately Effective Least Effective If enough groups do report cards then we can begin compiling comparisons like that pictured here. This one is based upon a database of 30,000+ stormwater practices compiled by MDE. CEDS rated each of the practices on a scale of 1 to 3 with 1 s providing the best aquatic resource protection and 3 s the least. Note that Anne Arundel County comes out the best while Montgomery is sixth from the bottom. This may be due more to the fact that soils are generally much better in Anne Arundel for highly-effective practices. So its important to consider geology and other variables when compiling such comparisons. 13
Exposed Soil = Pollution Stabilize in 7-7 to 14-Days Getting good plans is but half of what s needed for a highly-effective aquatic resource protection program. The other half is enforcement and long-term maintenance. Here we see an example of a tactic for making construction site erosion control very visible and controversial. In this approach watershed residents are asked to keep an eye out for any exposed soil they see on construction sites. Maryland law requires protecting these soils with mulch and temporary grass seedings within 7- to 14- days of exposure. Compliance with this law varies considerably across the state. Publicizing and politicizing poor compliance has proven to be effective in improving enforcement. For an example ask me later about the Anne Arundel Campaign. 14
Ensuring Proper Installation Ensuring proper installation is critical to making ESD work. Here we have a rain garden bioretention facility under construction. You should obtain a copy of the final design plans for ESD facilities. While you shouldn t trespass on a construction site, there are usually two alternatives. ESD installation sites are frequently visible from nearby public areas. If they re not then ask the developer or inspection agency to schedule a tour. You ll find a list of inspection agencies at our ESD webpage. If you feel installation is improper then notify the inspection agency. If you re dissatisfied with the response then visit the CEDS Making Pollution Laws Work website or give us a call for further advice. 15
Rain Gauge & Float Method Water Quality Volume 1-inch runoff from impervious surfaces. 1.2-inches of rain generates 1.0-inches of runoff from impervious surfaces. On-going maintenance is critical once a Practice is installed. A common cause of failure is the accumulation of sediments and other materials which rob storage capacity. CEDS uses the Gage & Float Method to check for adequate capacity. Here s how it works. About once a month a storm occurs in Maryland which produces an inch or so of runoff from impervious surfaces. Most ESD practices should be able to store this amount. So when a rain of say, a half-inch or more is forecast, place a rain gage next to the practice. Next place a float at the point where excess runoff would exit the practice, such as in the storm drain inlet you see here. Be sure to tie a string to the float and then to a fixed object. After the storm passes see if the float is where you left it. If it is and the gage shows an inch or more of rain fell, then great. The practice treated the Water Quality volume without overflow. If the float washed away with less then an inch of rain then the practice needs to be cleaned. 16
Existing Stormwater Practices in Maryland Here we have a breakdown of the 30,000 plus existing stormwater facilities in Maryland. The Rain Gage & Float Method should also be used to determine whether the more effective practices have sufficient capacity to treat the first inch of runoff. These more effective practices include bioretention, dry wells, rain gardens, and sand filters. So consider checking out any of these facilities in your area. In fact, we may be able to provide you with a list. Infiltration trenches and other practices are also highly-effective but require a different assessment approach. Now we move into other options for improving ESD compliance. 17
ESD Administrative Waivers County Requests Grants County Requests Grants Anne Arundel 26 NA Kent 1 NA Baltimore 309 307 Queen Anne s 11 0 Calvert 70 55 Somerset 1 1 Caroline 0 0 Saint Mary s 44 42 Carroll 8 8 Talbot 4 4 Charles 5 5 Washington 15 NA Dorchester 5 5 Wicomico 24 24 Harford 44 41 Total 571 492 Howard 3 NA As Bruce explained during his presentation, the 2010 amendments allowed local governments to grant waivers for the May 4, 2010 start of ESD. Here we see the number of waivers requested in 16 of the 23 counties. An NA means the county hasn t acted on the waiver request, usually because they ve yet to adopt the necessary ordinance. Baltimore County leads the state in the number of waivers granted with Calvert County a distant second. Howard County is strongly urging developers not to seek waivers and, instead, give ESD a try. Calvert, Somerset and Wicomico set a very short period for requesting waivers. If your county hasn t adopted a waiver law then I urge you to call for following Howard County s lead or having a short request period. 18
Water Resources Element http://planning.maryland.gov/pdf/ourwork/mg26.pdf Sensitive Resource Brook Trout Wetland Shellfish Waters Other Waters Waterway Dies IA% 2% 4% 5% 8% 25% Acres Per House 10 8 7 3.5 0.35 ESD can only go so far in offsetting the impact of development, particularly in highly-sensitive watersheds. Fortunately a great planning tool exists for managing growth so it doesn t exceed carrying capacity in sensitive watersheds. This tool is the Water Resources Element which all counties must add to their master or comprehensive plans. The enabling legislation and guidance calls for local governments to adjust zoning to prevent future development from pushing impervious area beyond critical thresholds. Here you see several of these thresholds, which are all lower then the 10% suggested in the WRE manual. Unfortunately, I m not aware of a county which has applied this approach at the subwatershed level where it really counts. 19
This is what I mean by the subwatershed level. The map on the right is from the Calvert Water Resources Element and shows that Hall Creek is 6.2% impervious, which is below the 8% threshold appropriate for this watershed. The Shoppes site is located in the Hall Creek watershed. However, the subwatershed where the Shoppes is located will become 25% impervious, which is the threshold for a dead waterway. Also, the stream has a very severe erosion problem. The WRE should address both issues. Unfortunately neither is being addressed. But we anticipate this will change as the science-based political strategy progresses and provides Calvert County with the support needed to draft a better plan. 20
Bruce Gilmore Anacostia Watershed Society 4302 Baltimore Avenue, Bladensburg, MD 20710 anacostiaws.org ~ bgilmore@anacostiaws.org 410-558-2346 ~ 301-699-6204 Richard Klein Community & Environmental Defense Services 811 Crystal Palace Court, Owings Mills, MD 21117 ceds.org ~ Help@ceds.org 410-654 654-3021 ~ 1-8001 800-773-4571 The preceding was intended to give you a sampling of the approaches that can be taken for ensuring full use of ESD. But its been a long workshop and you re probably feeling a bit overloaded. So rather then going on, how about if we bring this last presentation to a close and spend the rest of our time on your questions? Of course, after today please don t hesitate to contact either of us with further questions. 21