EPA cleanup plan for Chesapeake Bay could crimp urban development

New Urban News, December 2010

Maryland’s proposed system for curbing water pollution raises alarm among smart growth advocates.

For decades, the federal Clean Water Act has tried to get communities to reduce the effects of stormwater runoff. Heavy rains often carry fertilizers and soil into streams and rivers — ultimately killing aquatic life in vulnerable bodies like Chesapeake Bay.

In response to tightening federal requirements, the state of Maryland is putting together a regulatory system that aims to cut the amount of nitrogen, phosphorus, and sediment flowing into the degraded Bay. But opinion is sharply divided over whether the plan will have a good or bad effect on the character and location of future development.

After a forum Oct. 27 in which they voiced their concerns, a group of planners sent a letter to the US Environmental Protection Agency (EPA), warning that in many respects Maryland’s plan is likely to undercut the state’s efforts to discourage sprawl and encourage compact urban development.

James Potter, president of the Maryland Chapter of the American Planning Association, said planners and other participants in the October forum “expressed general support for the EPA’s concept of establishing a Total Maximum Daily Load” (TMDL) of pollution that would reach the Bay. The TMDL is a “pollution diet” that would be enforced through each state’s Watershed Implementation Plan, or WIP.

In the letter, Potter warned, however, that there are “potential conflicts between the TMDL mandate and Smart Growth” — conflicts that neither the state of Maryland nor the Environmental Protection Agency has adequately addressed.

“I believe the WIP will definitely make it harder to do low-density greenfield sprawl,” says a forum organizer, Stuart Sirota, principal of the New Urbanism-oriented TND Planning Group. “But I am concerned that the [state plan] may have the unintended consequence of making it more difficult to do higher-density infill within redevelopment areas and growth areas.”

Another forum organizer, Jim Noonan, who in the 1990s helped implement Governor Parris Glendening’s original smart growth program, agrees with Sirota that the Maryland plan may hinder dense, walkable, transit-served development — the kind of development that meets smart growth objectives. Noonan, practice leader for comprehensive planning at KCI Technologies, also predicts that unless the watershed plan is altered, it may also spread more household growth across low-density outlying areas, actually adding to pollution problems.

“The authors of Maryland’s Watershed Implementation Plan definitely do intend to discourage outlying low-density development and to encourage infill,” Noonan says. But, he says, “I don’t think they achieve that.” 

The plan proposed by Maryland — one of six states in the 64,000-square-mile Chesapeake Bay watershed — adds “another layer of regulations and bureaucracy” onto the difficulties that already confront smart growth developers, Noonan told New Urban News. The plan would hinder attempts to establish higher-density living in urban areas, he said, and may also deter attempts to build up existing rural centers.

Noonan and Potter believe that although “compact, walkable communities can reduce pollutant loads,” the state plan does not make development of dense, mixed-use, transit-served communities any easier than development of houses on large lots in auto-dependent suburbs.

In the watershed plan, “a more nuanced set of tools is needed that not only allows compact, walkable development to occur within growth areas, but actually encourages or requires it at appropriate locations,” Sirota contends.

The state’s view

Over the past several years, the US Environmental Protection Agency has been prodding the six states — Maryland, Virginia, West Virginia, Pennsylvania, New York, and Delaware, plus the District of Columbia — to implement more effective methods of keeping pollutants out of streams, rivers, and ultimately the Bay. The EPA wants states to determine how much nitrogen, phosphorus, and sediment is being generated by various areas and then take steps to reduce that load over a period of many years.

Two years ago Maryland’s Department of Planning began helping the Maryland Department of the Environment craft a pollution-control plan that would meet EPA’s requirements. It’s a big undertaking.

“We have to classify all the land in the state,” explains Joe Tassone, director of land and water resource planning in the Department of Planning. “We’re going to inventory the whole state, break it into areas served by each treatment plant, and then inventory the unsewered land. We’ll develop estimates of the per-capita loading rate in each of these areas.”

Maryland is expected to grow by 263,225 households between 2010 and 2020. If many of them end up on large lots, using wells and septic systems, the Chesapeake will suffer. The Planning Department estimates that if 29 percent of future households rely on wells and septic systems, they will produce a greater pollution load than the other 71 percent served by state-of-the-art water treatment plants.

Per household, the amount of nitrogen produced by new development on well and septic is almost 5 times as high as new loads from sewered areas, when both wastewater and stormwater are taken into account.

In Tassone’s view, the state plan will help discourage large-lot, outlying development and foster more concentrated growth in denser areas, including existing cities, where sewer service is provided. He points out:

• In low-density areas without sewers, developers would have to offset their high generation of nitrogen pollution by purchasing credits from someone else — such as a farmer who agrees to take additional steps to reduce agricultural runoff. This would raise the cost of such development. “The hope is that’s going to discourage low-density stuff,” Tassone says.

• Redevelopment in concentrated, mixed-use areas offering effective sewage treatment would not require the purchase of such “offsets.” For example, someone replacing a failed shopping center with a dense, mixed-use project would not have to buy offsets.

“We’re going to try to maximize incentives and minimize disincentives for development in sewered areas, and do the opposite in unsewered areas,” Tassone says. The  strategy, he says, reflects the aims of Governor Martin O’Malley’s “Smart, Green, and Growing” initiative.
Potential problems

Skeptics say the official view is overly rosy. Noonan points out that except in the case of redevelopment, someone building a high-density development in an area served by transit may very well have to buy offsets, just as sprawl developers do. The plan does not recognize the inherently superior environmental performance of compact, urban development by relieving it of that burden, he says.

Traditional neighborhood development (TND) should be recognized as a strategy for reducing pollution, Noonan says, adding, “A good TND has off-site regional benefits: It causes you to build less of the other kind of development” — sprawl.

In some instances, urban treatment plants may be classified as unable to accept more intensive development unless they get costly upgrades, for which government funds are in short supply, according to Noonan. 

Population centers in rural Maryland are being caught in a vise, according to Noonan. The state is capping their nutrient discharges, making it hard for household growth to be fit into those centers. Instead, Noonan says, development will be spread across outlying land where septic systems — which are less effective than centralized treatment plants — will release harmful nutrients into groundwater.

Participants in the Maryland forum sent the following recommendations to EPA:

• Watershed Implementation Plans need to contain incentives for higher-intensity development.

• “Do not encourage low-density infill development,” even though it is “easier to permit and less expensive to build in the short run.”

• EPA should provide state-level tools that can be used to “level the playing field” that currently makes outlying development less expensive for developers.

• EPA should encourage improvement of septic systems because “traditional septic system designs do not treat nutrients in wastewater.” The planners urged that new septic systems be required to use the “best available technology for nutrient removal.”

• “EPA should capture and coordinate the expert advice of Smart Growth practitioners and researchers,” including those in EPA’s Office of Smart Growth, to find out how to use smart growth to reduce pollution.

What’s next

Watershed regulation is a long-term endeavor. EPA says that 60 percent of the program implementation must be done by 2017, and final targets must be met by 2025.
States and the District of Columbia were to submit their draft plans to EPA by Nov. 29. The plans will be revised and improved during a Phase II process, with considerable stakeholder collaboration, during 2011.

As flawed as the Maryland plan may be, EPA Regional Administrator Shawn Garvin said in September that the plans submitted by Maryland and the District of Columbia were better than those prepared by the other five states in the watershed.

Maryland’s plan is expected to undergo alteration. “There are a lot of details to be worked out over the next two to three years,” Tassone says. How effectively those changes will overcome the deficiencies identified by smart growth advocates is the big question.

The TMDL concept is likely to be applied later in other parts of the US. This makes the solutions arrived at in the Chesapeake watershed all the more important.

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