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Making Sausage

August 2013
Craig A. Ward President Frederick Ward Associates www.fredward.com

Craig A. Ward
President
Frederick Ward Associates
www.fredward.com

“Those that respect the law and love sausage should watch neither being made” is Mark Twain’s often paraphrased quote.

The same can be said for environmental regulations. Since January of this year a very diverse group named the “Accounting for Growth Work Group” has been meeting to make recommendations to the Maryland Department of the Environment (MDE) as they draft nutrient offset and trading regulations. These regulations are proposed to further limit or mitigate pollution from development and construction projects and are scheduled to be adopted by Dec. 31, 2013.

The work group consisted of 17 members representing building and development interests, the farming industry, environmental advocates and other land use policy pundits. Support and guidance for the group was provided by MDE, the Maryland Department of Planning, MD Department of Natural Resources, MD Department of Agriculture, and other environmental experts from academia, local government, the EPA, and a cadre of lawyers. Needless to say, opinions vary widely and are strongly held leading to often-lively “discussions.”

Approximately 10 meetings were held with the final meeting held on July 19. The group’s recommendations will be presented in a final report in early August and MDE will roll out draft regulations in August and September. All meeting materials and minutes, along with these upcoming documents, can be found on MDE’s website, www.mde.state.md.us.

As mentioned in previous articles, the overall Bay cleanup effort is focused on specific water quality goals to be met by 2025. To overly simplify, these goals can be distilled to specific pollutant discharge limits that can be applied to properties and watersheds. The Accounting for Growth regulations will analyze discharges from a development or construction project, compare them with the limits (the “baseline”) and determine if additional quality measures are required. If the limits are met, all is good. If not, the shortfall must be made up by reducing or “offsetting” pollution elsewhere.

How to accomplish this within financial reason and with practical certainty was the challenge of the group.

Issues included:
• What projects would be subject to the regulations?
• When would they go into effect?
• Could a project pay a fee to comply rather than identifying specific offset projects?
• How are offset projects guaranteed to be effective and for how long?
• What is the “baseline” that discharges will be compared to?
• Which pollutants should be measured?
• Where should offset projects be located relative to the construction?
• How is agriculture protected?
• How will an offset market work and will it be viable?
• How should infill development be treated?

As a specific example, the “baseline” is perhaps the central determinant on both the impact, and the effectiveness of the regulations. On one hand it was advocated that the baseline should be whatever the existing pollutant level is from a property before development or construction. The theoretical result would be no net increase in pollutants. Opponents of this view argued that there needed to be a safety factor to ensure the water quality benefits and that the overall program goal is to improve water quality from the existing condition, so the improved level should be the baseline. The opposite position was that baseline should be zero and the net result would be not only mitigation for the project’s increase, but also a full offset of existing discharges from the property, maximizing benefit to the Bay. Opponents of this position argued that it put an unfair burden on construction projects. Compromise alternatives included a forest condition baseline or agricultural pastureland.

To the group’s credit, they pushed through the issues and ended up with a framework that was at least a starting point for refinement. MDE will now work through the devilish details in drafting the actual regulations. The current timeline is for MDE to draft the regulations in August, present to the Governor’s Bay Cabinet and the House and Senate Environmental Committees in September, release for public comment by the end of September and have them adopted by Dec. 31. Follow these events at www.mde.md.state.us.

This is a regularly recurring column by Craig A. Ward on the environment and land use in Maryland. Ward is a Registered Professional Engineer and Certified Planner and is the President of Frederick Ward Associates, a civil engineering and architectural design firm in Bel Air. Ward has been involved in State and local land use and environmental policy and design for over 25 years. He can be reached at cward@fredward.com. I95

Craig A. Ward
President
Frederick Ward Associates
www.fredward.com

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