Presented by Timothy R. Henderson Rich & Henderson, P.C. Annapolis and Easton, Maryland

1. Water Pollution, Storm Water and Wetlands: Tougher Rules on New Facilities and Retrofitting the Existing Presented by Timothy R. Henderson Rich & Henderson, P.C. Annapolis and Easton, Maryland www.richlaw.com

2. Presentation Will Address: • Part 1 - Federal and Maryland wetlands protection programs. • Part 2- Federal, Maryland and local sediment and stormwater control programs.

3. Part I: Wetlands • What is a Wetland? 3 indicators • Hydrology - Surface water or waterlogged soils present for periods sufficient enough to influence soil chemistry and vegetation type. • Soil • Hydric soils, which may contain partially decomposed plant material, smell of rotten eggs, or may be sandy with a black surface layer that indicates low oxygen content. • Vegetation • Hydrophytic vegetation common to local wetlands. • Rule of thumb: if one indicator from each of the three categories is present - then it is a wetland.

5. Wetland Delineations • Are the wetlands Jurisdictional, i.e. are they subject to state and/or federal law? • The U.S. Army Corps of Engineers conducts and issues federal Jurisdictional Determinations; state and local agencies and developers rely on them. Delineation can make or break a project; they set the stage for the permitting process. • In Maryland, wetlands law is more expansive than federal law and can include as wetlands those areas that don’t fall under federal jurisdiction.

7. Jurisdiction of Wetlands – Federal Law • Limited to “waters of the United States” • Navigable Waters and Tidal or non-tidal wetlands connected to or adjacent to navigable waters of the UnitedStates, but generally not their buffers. • Extends to wetlands connected to or adjacent to navigable waters or their tributaries. • Prior to Supreme Court’s decision in Rapanos v. United States (2006), the Corps defined adjacency based on proximity, not hydrologic connection. Courtdeterminedthat the Clean Water Act requiresevidence of hydrologic connection. • EPA and USACE issued draft guidance on Identifying Waters Protected by the Clean Water Act; proposed rule in the works (sent to OMB Nov. 2013.)

8. Jurisdiction of Wetlands – Maryland Law • Tidal – wetlands connected to tidal waters; no buffers. Divided into state and private wetlands. State wetlands are below mean high tide, except those transferred to private landowners. Private tidal wetlands are above mean high tide or those transferred from the state. • Non-tidal - delineated wetlands, plus a 25 ft. buffer, extending up to a 100 ft. for designated wetlands of special state concern. • Tidally influenced non-tidal - a legal term of art describing a wetland subject to the ebb and flow of the tide that is afforded the additional legal protections of a non-tidal wetland.

9. Regulated Activities in Wetlands • Federal Clean Water Act: • Prohibits the “discharge of pollutants'' to navigable waters, including discharge of dredged or fill materials. • In December 2008, the EPA revised its regulations established under the Clean Water Act to address recent case law (commonly referred to as Tulloch II) regarding exactly what constitutes a ‘discharge of pollutants’ and the regulatory exception provided for ‘incidental fallback’. • Regulated Acts Under the Maryland Tidal Wetlands Act, (Title 16 of the Environment Article): • Tidal Wetlands Law – prohibits the dredging and filling of state wetlands, and calls for the adoption of regulations to protect against dredging and filling in private wetlands. • Tidal Wetland Regulations – expands prohibition to: • draining, • constructing structures in, on, over, or under the wetlands; and • destroying the natural vegetation or existing patterns of tidal flow, or alter the natural and beneficial character of the tidal wetland. • Regulated Acts under the Maryland Non-tidal Wetlands Act (Title 5, Subtitle 9 of the Environment Article): • Prohibits ‘regulated activities’ in a nontidal wetland without a permit, including: • (i) removal, excavation, or dredging of soil, sand, etc.; • (ii) changing of existing drainage, sedimentation, flow, or flood retention characteristics;  • (iii) disturbing of the water level or water table by drainage, or impoundment;  • (iv) dumping, discharging, or filling with material, including the driving of piles;  • (v) altering existing topography; or  • (vi) Destroying or removing of plant life

10. Exemptions to Regulated Activities • "Regulated activity" exempts agricultural activity or forestry activity and: • Federal Wetlands: • Normal farming, or ranching activities. • Maintenance of dams, dikes, levees, groins, etc. • Construction of farm ponds and sedimentation ponds. • Construction of permanent farms roads and temporary roads for moving mining equipment b. Maryland Tidal Wetlands: • Dredging of seafood products;. • Hunting, trapping, fishing and catching shellfish. • Routine maintenance and repair or replacement of piers, bulkheads, revetments and other water related structures. c. Maryland Non-tidal Wetlands: • A variety of agricultural and forestry practices, including repair and maintenance of structures. • Approved mitigation projects. • Activities in farmed wetlands and buffers with 14 or fewer consecutive days of inundation during the growing season.

11. Permitting Goal for Construction in Wetlands Area: No Net Loss: How?

12. Permit Process for Construction in Wetlands Area • In MD - applications for federal and/or state permits (general or individual) is through the: “Joint Federal/State Application for the Alteration of Any Floodplain, Waterway, Tidal or Nontidal Wetland in Maryland.” • The application is submitted to the MDE, who will then forward it to the Corps for review. • Both MDE and Corps will issue separate permits (if a state owned tidal wetland is impacted, it will be a license issued by the Maryland Board of Public Works- not a permit). • The permits or licenses may be project specific or they may be general (i.e. found to apply to the type of activity being conducted as part of the project). • State Letters of Exemption for non-tidal wetlands impacts may be possible.

13. Programmatic General Permit • MD State Programmatic General Permit (MDSPGP-4)– developed collaboratively by MDE and Corps • Covers Activities with minimal adverse environmental effects: • individually and/or cumulatively impacts not to exceed 1.0 acre (43,560 square feet) and/or 2,000 linear feet of streams • Minor do not need reporting to the Corps (provided required State and local permits and required State certifications are obtained), • Larger impacts reviewed by the Corps, and resource agencies. • Intended to speed up permit review and issuance, reduce duplicative reviews, and promote more efficient use of Corps and MDE resources. • Other States May use Nationwide Permits – general permits for small impacts

14. Individual Wetlands Permitfor Significant Impacts • The Individual Permit process is long and arduous, with multiple agency reviews and approvals: • Both MDE and Corps must issue separate permits. • Corps required to comply with NEPA & NHPA (EA, EIS and possible archeologic studies.) • EPA reviews through Section 404(b)(1) Guidelines. • Fish and Wildlife Service examines through prism of Endangered Species Act and its other non-regulatory authorities. • MD Department of Natural Resources reviews applying state endangered species and habitat protection principals. • MDE must issue a Section 401 Water Quality Certification to the Corps certifying the proposed project will not significantly impact water quality. Note: this may be impacted by the pending efforts to establish Bay-wide Total Maximum Daly Loads (TMDLs) for all pollutants.

15. General Regulatory Timeline for Permit Processing

16. Part 2 – Sediment & Stormwater Management

17. Soil Erosion & Sediment Control vs. Stormwater Management • Soil Erosion & Sediment Controls govern the processes applied to projects which disturb the land, attempt to minimize pollutants in runoff from the projects: land use controls. Regulation traditionally has ended upon completion of project.

18. Soil Erosion & Sediment Control vs. Stormwater Pollution Control • Stormwater management imposes ongoing mitigation procedures for pollutants picked up in rain or snow runoff from human activities: water pollution controls.

19. What is Stormwater? • Rain and snowmelt flowing over the land or impervious surfaces (paved streets, parking lots, and building rooftops), accumulates debris, chemicals, sediment or other pollutants. • “Surface water generated by precipitation events, such as rainstorms, which flows over streets, parking lots, commercial sites, and other developed parcels of land. Whereas natural, vegetated soil can absorb rainwater and capture pollutants, paved surfaces and developed land can do neither. When stormwater flows over urban environs, it collects ‘suspended metals, sediments, algae-promoting nutrients …, floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants.” EDF v. EPA, 344 F.3d 382 (9th Cir.) • Note: no mention of agricultural runoff.

20. Stormwater– Regulated as Water Pollution • Point source discharges of stormwater require permits under CWA, the same as for process discharges • 33 U.S.C. §1342(p) required permits for stormwater discharges from municipal sources (small & large cities) and industrial sources • EPA has Developed Regulations governing both, (including construction sites in the Phase I & II rules for municipal discharges) : • Adopting regulations (40 CFR §122.26 & .34) difficult, leading to series of court challenges. • Most states implement as part of delegated NPDES permit program; EPA is permitting authority in a few states, territories and Indian lands.

21. Permits for Municipal Separate Stormwater Systems aka MS4s

22. Permits for Municipal Separate Stormwater Systems aka MS4s

23. Features of Municipal Separate Stormwater Systems Permits

24. Industrial Stormwater Discharges: • Recent Analysis of CWA Industrial Stormwater Discharge Authority -- Decker v. Northwest Environment Defense Center,133 S. Ct. 1326(March 2013) • NEDC suit alleged that Oregon officials and timber companies violated the CWA by not subjecting all storm water discharges from logging roads to the industrial stormwater NPDES permit. • Issue: Whether storm water discharge from all logging roads “associated with industrial activity” so as to require a NPDES permit?

25. Background • Silvicultural Rule requires NPDES Permits for Stormwater Discharges from Certain Logging Operations: Any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated and from which pollutants are discharged into the waters of the United States. 40 C.F.R. § 122.27(b)(1). • 1987 Congress Directs EPA to only require NPDES permits for point source discharges of stormwater “associated with Industrial Activity.” 33 U.S.C. § 1342 (p)(2)(B). • EPA Industrial Stormwater Rule: the discharge from any conveyance used for collecting and conveying storm water that is directly related to manufacturing, processing or raw material storage areas at facilities within SIC 24. 40 C.F.R. § 122.26(b)(14). (regulated by Multi-sector permit)

26. Procedural History (Circuit Court Ruling) • EPA had interpreted the Industrial Stormwater Rule to include only to SIC 24 facilities “more fixed and permanent than outdoor timber-harvesting operations” like sawmills; not to temporary logging operations. • U.S. Court of Appeals 9th Cir. Disagreed, holding that all stormwater discharges from facilities in SIC 24, are “associated with industrial activity” and require coverage under an NPDES permit. • In 2012 and in response to 9th Cir. ruling, EPA amended the industrial stormwater rule to only include those logging facilities within SIC 24 that are involved in rock crushing, gravel washing, log sorting or log storage. 77 Fed.Reg. 72974 (2012).

27. SCOTUS Holding • EPA’s interpretation of the Industrial Stormwater Rule to only include “fixed facilities” - not plainly erroneous or inconsistent, therefore entitled to Auer deference by the Court. • EPA could also have reasonably concluded that further federal regulation in the area of stormwater run-off related to non-fixed logging operations would be duplicative and or counterproductive. • Implication – Industrial Stormwater rule which lists SIC codes only covers stormwater from the activities within a facility akin to manufacturing operations, like fixed sawmills within the logging SIC 24. • Dissents by Roberts, Alito & Scalia portend re-evaluation of the deference (Auer) given to agency interpretations of their own rules. Scalia soundly criticizes faulty logic of EPA and says CWA & plain meaning of regs. makes logging roads a point source associated with an industrial activity. • Note: also ruled that 2012 Rule did not moot case.

28. General Stormwater Permits - Federal • In 2008 EPA adopted NPDES general permit for industrial sources – the multi-sector permit. • Key tool is the Stormwater Pollution Prevention Plan (SWPPP) • Effluent limits for pollutants specific for industries covered • In 2012 EPA renewed the 2008 NPDES general permit for discharges from construction projects, 77 Fed. Reg. 12286. • Includes new requirements that affect “construction activity,” as defined by 40 CFR 122.26(b)(14)(x) [e.g. a turbidity limit] • Requires the design, installation, and maintenance of erosion and sediment controls to minimize the discharge of pollutants.

29. General Stormwater Permits-Federal • In September 2013 EPA proposed a draft NPDES general permit for stormwater discharge which would replace the Multi-Sector Permit adopted in 2008 • Seeks to provide the public with greater access to the SWPPP • Pavement wash waters must be treated by control measures • Adds effluent limits to supplement BMPs • Likely to go final this year

30. Maryland Programs – Illustrates Complexity The Maryland Stormwater Management Act of 2007: • Requires ‘environmental site design to the maximum extent practicable’, the revision of State regulations and County ordinances and a comprehensive process to review and approve grading and sediment control plans and stormwater management plans. • The Act revised existing stormwater management requirements (which MDE has used to add to changes to the erosion and sediment control requirements). Erosion and Sediment Control Regulation passed in January 2012: • Requires the implementation of ‘environmental site design to the maximum extent practicable’,the revision of State regulations and County ordinances and a comprehensive process to review and approve grading and sediment control plans and stormwater management plans. Model Soil Erosion and Sediment Control Ordinance Published in February 2012: • Guidance provided to assist counties in creating their own stormwater regulations Stormwater Management Design Manuel Revised May 2009: • Single comprehensive design manual for engineers and plan reviewers.

31. Maryland General Permit for Stormwater Associated with Construction Activity

32. Environmental Site Design • Remember that ESD is new to everyone and that there is room for flexibility and innovative solutions to unique problems. Don’t be afraid to push for something new!

33. Complying with Environmental Site Design • Use of Green Roofs • “Plants as Shingles”

34. ESD Credits by Increasing the Hydrologic Function of Urban Turf

35. Permeable Pavements

36. General Permit for Stormwater Associated with Industrial Sources

37. General Permit for Stormwater Associated with Industrial Sources

38. MD Rain Tax: Conflict between Large Municipal MS4 & Industrial Source Stormwater Management • In 2012, the Maryland Legislature added ‘watershed protection & restoration’ to MD stormwater law, directing large municipalities (9 counties and Baltimore City) to adopt a stormwater remediation fee. Md. Code Ann., Env. §4-202.1. • Goal? to aide counties in complying with EPA TMDL for sediment & nutrients -- imposes costly clean up measures for all sources within Chesapeake Bay watershed. • The Counties “shall set a stormwater remediation fee for property in an amount that is based on the share of the stormwater management services related to the property provided by the county or municipality.” Md. Code Ann., Env. §4-202.1 (e)(3)(i).

39. County Interpretation of the Law: Example -Anne Arundel County Bill 2-13 • Interprets State mandate for stormwater remediation fee to authorize regulation of all properties; • ignores ‘based on the share of the stormwater management services’ limitation in state law. • Fee/ tax based on area of impervious surface on a property (e.g. surfaces which prevent water from seeping into the water such as roofs, driveways or sidewalks). • 2,800 sq. ft. of impervious surface= 1 equivalent residential unit (ERU) • 1 ERU = $85

40. Result? Double Regulation of Stormwater from Industrial Sources • Properties which treat and discharge stormwater pursuant to an NPDES permit to waters of the state with no connection to county or municipality stormwater treatment services, expected to pay. • County laws provide for reduction in fee for such properties; owners assert county laws violate state law.

41. Summary Federal and State Control of Land Use Expanding under the Guise of Water Quality Protection • Stormwater management considerations a growth area for legal and technical advisors to developers • Recognize that the permit process for construction projects impacted by wetlands and stormwater regulations will likely be lengthy and involve multiple agencies. • Recognize the opportunities for creative environmental site design to cut through the regulatory maze.

42. Wetland and Storm Water Regulations Applicable to the Construction Industry • If you would like a copy of this presentation, email me at: thenderson@richlaw.com