Stormwater Management Act of 2007
While the April 24 signing of the Stormwater Management Act of 2007 was clearly a victory for our environment, legislators and environmentalists caution that, while an important battle was won, the war continues.

"The new law could revolutionize Maryland's approach to reducing rainwater runoff that is so poisonous to the Chesapeake Bay," wrote the Baltimore Sun in an editorial on April 27, but warned that "the effectiveness of the law will depend mightily on how tightly state officials draw regulations that put it into effect."

"Typically bills do not contain specifics; they are in the regulations" said Delegate Jane Lawton of Chevy Chase. Lawton, the lead sponsor of the legislation, is "very proud of the bill," but said she will carefully watch the Department of the Environment (MDE) who will write the new regulations, to see how the state manual governing new development is written.

Out with the Old

The Stormwater Management Act emphasizes environmental site design, which requires builders to consider stormwater even before the bulldozers go to work.

"The Stormwater Management Act will end pave as you go and worry about stormwater later," said Diane Cameron, Coordinator for the Montgomery County Stormwater Partners. "It will require stream sensitive choices as first choices."

Patuxent Riverkeeper Fred Tutman, who wrote the first draft of the stormwater bill three years ago, sees an "uphill fight" to achieve the intent of the new law. However, he is hopeful that the new manual will bring about dramatic changes in the way builders develop land.

Tutman said the old approach to managing stormwater was technological. Developers would tear up a location and then try to address the resulting damage from an assortment of environmental fixes, such as stormwater ponds, listed in the current state manual. He called the list a "Chinese menu" because there was something for all builders to choose from. As long as builders were using one of the approved technological approaches listed in the manual, they could get a permit from the state even if the damaging stormwater poured from the development. In order for builders to get a permit under the new law, they will have to prove that their development will have minimum impact on the environment and that the existing hydrology of the site will be maintained. But none of this can happen unless the MDE writes regulations that are tough enough, said Tutman.

Environmental site design and other methods required by the Stormwater Management Act are not new concepts according to Lawton, who said that the new law is revolutionary only in that construction practices long known to curb runoff will soon be required.

Some Regrets

Both Lawton and Tutman wish that the stronger provisions of the original bill had survived the inevitable give and take of the legislative process. Both said compromises were made that eliminated all references to a water quality component that emphasized performance-based evaluation. Lawton said MDE resisted such language. She and Jennifer Bevan-Dangel, formerly of Environment Maryland and now with Patuxent Riverkeepers, said that the MDE thought having such language in the bill would make the regulations too expensive because inspectors would have to visit sites to ensure that the water coming from developments met a specified standard. The alternative to performance based standards is practice based standards. Under practice based regulations MDE can simply approve of plans as long as those plans comport with the new regulations.

Bevan-Dangel, who worked on the bill and who will probably advise MDE on the manual, hopes to get the standards as close to performance based as possible when the regulations are written over the next year.

Tutman especially regrets the weakening of the bill. He said that a New Jersey bill with a performance-based water quality component survived a court challenge and as such is "bullet proof." Three years ago Tutman and the Delaware Riverkeeper studied the New Jersey stormwater bill before writing similar bills for their own states.

Despite some misgiving both Tutman and Bevan-Dangel are happy with the law. Bevan-Dangel called the law one of the nation's strongest stormwater laws. She cited one section that requires developers to "maintain 100 percent of the average annual predevelopment groundwater recharge volume for the site" as evidence of the law's strength.

The Bill's History

It took three years for the bill to become law. Now retired Senator Leo Green sponsored the Maryland bill for two years with little success, but he did keep it alive. Tutman called Green's efforts on behalf of the bill "brave."

During those two years several environmental groups began to lobby and do public relations work for the bill. Most notably these groups included Environment Maryland led by Bevan-Dangel, 1000 Friends of Maryland led by Drew Schmidt Perkins, and the League of Conservation Voters led by Cindy Schwartz. Proteus Media Action Fund donated money to fund the public relations campaign.

Opposition came from builders, city and county associations and from MDE. Tutman said that opposition weakened after the last election, and that the Governor’s support for environmental legislation was helpful. The Sun wrote that the opposition may hope to dampen the effect of the law by securing a place at the table when the regulations are hammered out.

With Lawton leading the charge this year the bill passed 135-0 in the House and 43-0 in the Senate where Senator Rosapepe sponsored the bill.

There are no deadlines for the completion of the new manual, but Lawton expects some progress by the summer. She promises to provide the oversight necessary to get the job done within a reasonable time. Bevan-Dangel expects the manual to be finished by next summer.

Lawton does not believe the bill will be costly, pointing out that the larger counties and the Bay counties are currently moving in the direction required by the bill.

The Future

As this law applies only to new development and redevelopment, Lawton hopes to write legislation next year to address the problem of storm water coming from existing development. Between 1990 and 2000 impervious cover in the Chesapeake Bay region increased by 41percent. While many pollutants entering the Bay are decreasing, stormwater pollution has increased by 11 percent.

The law requires public meetings and input from all interested parties, including builders and the environmental community. Bevan-Dangel said the Chesapeake Bay Foundation, Environment Maryland and Patuxent Riverkeepers among other groups will be represented when the regulations are written.

Fred Tutman hopes that the passage of this bill signals a sea change in the way our culture looks at property rights. Perhaps soon, he said, property owners will no longer be able to pass on the cost of doing business to those who live downstream.

John Mathwin
Sierra Club