ROLLBACK OF MARYLAND STORMWATER REGULATIONS
Patuxent Riverkeeper along with other coalition partners worked very hard in the General Assembly to defend the State Stormwater Regulations from an assault by the builder lobby. The business interests initially sought more explicit grandfathering for projects in the development pipeline as the May 4th deadline for implementing the new laws approached. Arguably this was not because the law was vague to begin with, but because some were concerned that they could not meet the usual standard for variances and that new and stricter stormwater standards would cut into their profit margins or cause projects on the drawing board to be rethought. Put simply the builders and their supporters did not want to clarify the laws, instead they wanted to ensure that they could evade the new laws using the most liberal circumstances possible. Let’s face it. When have these particular parties ever collaborated with the environmental movement to make better environmental laws?
The notion of waivers and exemptions had less to do with equity, fairness and protecting "jobs" and more to do with how to ensure that builders would have complete control over the new laws at a local level. A waiver means a project should be covered under the new regulations but it’s allowed to just skip the rules altogether or default to old standards. Meanwhile grandfathering means a project is allowed to comply with the former and less stringent rules. Strictly speaking a project with a waiver is one that plainly does not really qualify for grandfathering but the applicant just doesn’t really want to follow the new regs. And then finally there is the concept of exemptions. This applies just in case somebody in the permitting office catches on that a project can’t qualify for either grandfathering or a waiver, and then it provides an escape clause that argues that a project shouldn’t be covered by the law anyhow. This is a sort of a elaborate paper scissors rock scheme, or whatever you want to call it. They are three very different legal concepts with the same aim: give the builders a break from the new laws. The idea fundamentally (by opponents of environmental protection) is that no matter what, a project shouldn’t be covered by the new laws no way, no how, at least for several years. Keep in mind that in many instances a project may not actually be "shovel in the ground for years" so there is likelihood that these loopholes will have a long legacy. So to recap, you’ve got waivers (the laws ought to apply but we’re looking the other way this time). Then you’ve got grandfathering (My project isn’t covered because it got started before the new laws went into effect). And finally you’ve got exemptions (The law doesn’t apply to this project because I’m "tight" with somebody in the government and so I can get away with it).
There has been much confusion over how many projects will be eligible for any of these loopholes. Maryland Department of the Environment spokesperson said at the Joint Committee on Administrative, Executive, and Legislative Review (AELR) hearing probably a few hundred while one county (Prince George’s) insist 10-20,000 in their jurisdiction alone. One thing is for certain; there are more loopholes than ever before at the local level which belies the claims of those who insist that the laws have been made clearer and better, or similarly others who argue the standards haven’t been diminished. In the end the laws haven’t been made better at all. They have actually been made more vulnerable to local political pull, and the standards don’t matter nearly as much when applicants will just avoid using the new standards at all for years to come.
The last issue is whether the changes in the law produce a greater likelihood that we will have smart growth or redevelopment. This is sort of like arguing that communism will curdle milk or make the trains run on time. It is literally superstition because there has never been a shred of evidence, or an example offered to illustrate how laws aimed at protecting the receiving waters around new development plus strict standards for protecting the environment will scare away smart growth. The claim that one must choose between clean water and smart growth sounds suspiciously the bogey man advance by those profiteers who claim that economic development depends on them being allowed to do whatever they want, will cost jobs and also to rebut the pesky environmentalists who for goodness sakes are always nattering about the need for the smart growth that we do so rarely in Maryland. This is just spin designed to defer the laws. The environment lost in an election year. Now that the real estate lobby has what they wanted, we should watch to see whether or not the water gets cleaner (not), whether there is a surge in a new smart growth projects (not) and whether there is a surge within the next few years of projects that will comply with the Environmental Site Design (ESD) requirement to use "ESD" to the maximum extent practicable (improbable).
