Agenda Item #5
May 3, 2011
Action
MEMORANDUM
April 29, 2011
TO:
FROM:
SUBJECT:
County Council
Amanda Mihill, Legislative
Analyst~
Action:
Expedited Bill 7-11, Storrnwater Management - Revisions
Transportation, Infrastructure, Energy
&
Environment Committee recommendation
(3-0): enact Bill 7-11.
Expedited Bill 7-11, Storrnwater Management - Revisions, sponsored by the Council President
at the request of the County Executive, was introduced on March 15, 2011. A public hearing was
held on March 29 at which Stan Wong, on behalf of the Executive supported Bill 7-11 (©6). The
Transportation, Infrastructure, Energy and Environment Committee held a worksession on Bill
'
7-11 on April 12.
Background
Bill 7-11 would limit the use of certain alternative stormwater management measures to
redevelopment projects. Specific alternative storm water management measures for new development
and redevelopment were added to County law by Expedited Bill 40-10, which the Council enacted on
July 27,2010. The Executive's transmittal memorandum indicates that the Maryland Oepartment of
the Environment (MOE) considered the language applying alternative stormwater management
measures to new development to be less restrictive than State law and therefore not in compliance
with State law. MOE did not object to allowing alternative stormwater management measures for
redevelopment projects.
Commission DiscussionlRecommendation
The letter from MOE explaining their rationale is on ©7. The letter states that alternative measures
can be used to address stormwater management for redevelopment under certain conditions (see
COMAR 26.17.02.05(0)(2) on ©8), but alternatives for new development do not exist in state
regulations and therefore this portion of the County's law was less stringent than the state law. The
MOE letter identifies 2 options to correct this situation:
(1)
do not allow alternative stormwater
management measures for new development (the approach taken by Bill 7-11); and (2) allow
alternative storm water management measures for new development subject to an MOE-approved
watershed management plan. Section 19-22 of the County Code already allows the Oepartment of
Environmental Protection to develop storm water management plans that could include alternative
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stol1TIwater management strategies for new development, but these plans are for specific areas of the
County.
The Committee recommended (3-0) enacting
Bill 7-11.
This packet contains:
~xpedited
Bill 7-11
Legislative Request Report
Memorandum from County Executive
Fiscal Impact Statement
DPS testimony
MDE letter
COMAR 26.17.02.05
Circle
#
1
3
4
5
6
7
8
F:\LA W\BILLS\II 07 Stonnwaler Management - Revisions\Action Memo.Doc
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Expedited Bill No.
7-11
Concerning: Stormwater Management ­
Revisions
Revised:
3/11/2011
Draft No. 1
Introduced:
March 15. 2011
Expires:
September 15, 2012
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: -:----:"':'_ _ _ _ _ _ __
Sunset Date:
...!N~o~n~e
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: COlll1cil President at the Request of the COlll1ty Executive
AN EXPEDITED ACT
to:
(1)
limit the use of certain alternative stormwater management measures to
redevelopment projects; and
(2) generally amend COlll1ty law regarding stormwater management.
By amending
Montgomery COlll1ty Code
Chapter 19, Erosion, Sediment Control and Storm Water Management
Section 19-26
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
*
* *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law byoriginal bill.
Added by amendment.
Deletedfrom existing law or the Milby amendment.
Existing law unaffected by bill.
The County Council for Montgomery CountyJ "Nfaryland approves the following Act:
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ExPEDITED BILL
No.
7-11
1
Sec.
1.
Section 19-26 is amended as follows:
19-26. Stormwater management design criteria.
2
3
4
*
(c).
*
*
Alternative stonnwater management measures [which] that may
be used for [new development or] redevelopment include:
(1)
(2)
an on-site structural best management practice;
an off-site structural best management practice or off-site
environmental site design to provide water quality
treatment; or
(3)
a
combination
of
impervious
area
reduction,
5
6
7
8
9
10
11
environmental site design implementation, and an on-site
or off-site structural best management practice within the
limit of disturbance.
Sec. 2. Expedited Effective Date.
The Council declares that this Act
12
13
14
15
is necessary for the immediate protection of the public interest. This Act
takes effect on the date when it becomes law.
Approved:
16
17
18
Valerie Ervin, President, County Council
Date
19
Approved:
20
Isiah Leggett, County Executive
Date
21
This is a correct copy o/Council action.
22
23
Linda M. Lauer, Clerk of the Council
Date
~
W\B!LLS\ II 07 StQnTIwater Management· Revisions\BiII
('2\
I.Doc
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LEGISLATIVE REQUEST REPORT
Expedited Bill 7-11
Stormwater Management - Revisions
DESCRIPTION:
PROBLEM:
Amends Chapter 19, Article II ofthe County Code to comply with
the Maryland Stormwater Management Act of 2007
Expedited Bill 40-10
was
forwarded by the County Executive to the
County Council and passed by the Council on July 27, 2010. As
required by State law, the bill which was forwarded by the Executive
had received preliminary approval by the Maryland Department of
the Environment.
. .
Amendments to the bill were made during the review of the bill by
the Council. MDE has given approval for all of those amendments
except for a portion of Section 19-26. MDE considers this change in
.language to be less restrictive than State law and regulation; and,
therefore, not acceptable. This bill addresses and modifies the
language that :tvIDE will not approve.
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMP ACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
The legislation modifies Section 19-26(c) of Chapter 19, Article II of
the Code for compliance with State law and regulation by removing
language pertaining to new development.
Department of Permitting Services, Department of Environmental
Protection
No additional impact for the Department of Permitting Services
,None
For compliance with State law and regulations
MDE approval of stormwater management legislation is required for
all counties and municipalities within the State of Maryland.
Rick Brush, Manager, Water Recourses, Department of Permitting
Services, 240-777-6343
All except Rockville, Gaithersburg, and Takoma Park
Class A
SOURCE OF
INFORMATION:
APPLICATION
WITIDN
:MUNICI~ALITIES:
PENALTIES:
F:ILA\v\B ILLS\11 07 Stormwater Management - RevisionslLRKDoc
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OFFICE OF THE COUNTY EXECUTIVE
Isiah Leggett
County Executive
ROCKVILLE, MARYLANO 20850
MEMORANDUM
March 8, 2011
TO:
FROM:
SUBJECT:
Valerie Ervin, Council President
Isiah Leggett, County
EXecutiV~~
~
Legislation relating to Proposed Stonnwater Management
I am forwardingto the Council for introduction a bill to revise Chapter 19, Article
II ofthe County Code to comply with State Stormwater Management (SWM) requirements. I
am also forwarding a Legislative Request Report for this bill.
Council enacted Expedited Bill 40-10, Stormwater Management on July 27, 2010.'
The bill required stormwater management through the use of Environmental Site Design (ESD),
nonstructural best management practices to the MaximUm Extent Practicable (MEP) in
compliance with the Maryland Stormwater Management Act of2007.
The Maryland Department of the Environment (MDE) approved all ofthe
provisions of Expedited Bill 40-10 except for the portion of County Code Section 19-26 relating
to the use of specified alternative SWM measures for new development. MDE considered this
part of Section 19-26 to be less restrictive 'than State law and, therefore, not acceptable. The
attached bill modifies Section 19-26 by repealing the option of using alternative SWM measures
for new development; thereby bringing County law into compliance with State requirements.
,
As
required by State law, Expedited Bill 40-10 was forwarded by the County
Executive to MDE before its introduction in Council and received preliminary approval.
However, the part of the bill to which MDE objects was added by Council amendment Please
note that any further amendments to the County's SWM law will also be subject to review and
approval by MDE.
For more information on this bill, please contact Rick Brush, Water Resources
Plan Review Manager, Department of Permitting Services, at 240-777-6343.
Attachments
c:
Robert Hoyt, Director, Department of Environmental Protection
Carla Reid, Director, Department of Permitting Services
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OFFICE OF MANAGEMENT AND BUDGET
Isiah Leggett
County Executive
Joseph
F.
Beach
Director
MEMORANDUM
March 25, 2011
TO:
FROM:
SUBJECT:
Valerie Ervin,
pr~unty
Council
Joseph F. Beach, ?t'or
Expedited Council Bill 7-11, Stormwater Management - Revisions
The purpose of this memorandum is to transmit a fiscal and economic impact statement
to the Council on the subject legislation.
LEGISLATION SUMMARY
Expedited Bill 40-1 0, enacted by Council on July 27, 20 10, included a provision that
allows the use of certain alternative stormwater management measures for new development, as well as
redevelopment projects. Expedited Bill 7-11 amends the County's stormwater management law to
exclude new development from being able to use various alternative stormwater management techniques
to satisfY that law. The alternative stormwater management measures allowed under Expedited Bill 40-10
included on-site structural best management practices (BMPs), off-site structural BMPs and environ­
mental site design (ESD), and a mix of impervious area reduction, ESD, and on- or off-site structural
BMPs to control and treat stormwater.
After reviewing the provisions of Bill 40-10 as enacted, the Maryland Department ofthe
Environment determined that allowing the use ofalternative stormwater management techniques for new
development is less restrictive than what is required by the State, and that the County's legislation is
therefore not in compliance with State law. Expedited Bill 7-11 amends the County's stormwater
management law to bring it into compliance with State law by allowing the use of alternative stormwater
management techniques for redevelopment projects, but not for new development.
FISCAL AND ECONOMIC SUMMARY
The provision allowing the use ofalternative stormwater management measures for new
development was added during Council's consideration ofBil140-10 and was not in the Bill as submitted
by the County Executive. Consequently, the fiscal impact statement for Bill 40-1 0 was prepared under
the assumption that alternative stormwater management measures could not be used for new
deve10pment. Expedited Bill 7-11 will modifY the County's current stormwater law to more closely
conform to the bill originally submitted by the County Executive and to the provisions that served as the
basis for the Office of Management and Budget's (OMB) fiscal impact statement for Bil140-1O.
Therefore, Bill 11-7 will not alter the fiscal and economic impacts projected in connection with the July
14,2010 fiscal impact statement provided for Bill 40-10.
Office of the
'''_~n''''_
101
Monroe
Street, 14th
Floor· Rockville, Maryland
20850 • 240-777-2800
www.montgomerycountymd.gov
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Testimony on Behalf of County Executive Isiah Leggett
Regarding Expedited
Bill 7-11,
Stormwater Management
Stan Wong, Chief
Division of Land Development
Department of Permitting Services
March 29, 2011
Good afternoon. My name is Stan Wong, Chief of the Division of Land
Development in the Department of Permitting Services (DPS). Thank you for the
opportunity of testify on behalf of the County Executive in support of Expedited Bill 7­
11, which revises the stormwater management provisions in current law to comply with
State stormwater management requirements.
.
The purpose of this. Bill is to amend Section 19-26 of the County Code in order to
eliminate the ability for new developments to utilize alternative stormwater management
measures .
. The Council enacted Expedited Bill 40-10, Stormwater Management on July 27,
2010. The bill required stormwater management through the use of Environmental Site
Design (ESD) nonstructural best management practices to the Maximum Extent
Practicable (MEP) in compliance with the Maryland Stormwater Management Act of
2007.
The Maryland Department ofthe Environment (MDE) approved all of the
provisions ofExpedited Bill 40-10 except for the portion of County Code Section 19-26
relating to the use of specified alternative stormwater management measures for new
development. MDE considered this part of Section 19-26 to be less restrictive than State
law and, therefore, not acceptable. The attached bill modifies Section 19-26 by repealing
the option ofusing alternative stormwater management measures for new development;
thereby bringing County law into compliance with State requirements.
As required by State law, Expedited Bill 40-10 was forwarded by the County
Executive to MDE before its introduction in Council and received preliminary approval.
However, the part of the bill to which MDE objects was added by Council amendment
Please note that any further amendments to the County's stormwater management law
will also be subject to review and approval by MDE.
Representatives of DPS will be available to provide more information on specific
requirements of the Bill as it moves forward.
.
~
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MARYLAND DEPARTMENT OF THE
E~'VIRONMENT
MDE
1800 Washington Boulevard. Baltimore MD 21230
410-537-3000. 1-800-633-6101
Shari
T.
Wilson
Secretary
Robert M. Summers, P)1.D.
Deputy Secretary
Martin O'Malley
Governor
Anthony G. Brown
Lieutenant Governor
August 19, 2010
Mr.
Rick Brush
Department of Permitting Services
250 Hungerford Drive
Rockville, MD 20850
Dear Mr. Brush;
Thank you for submitting the revised Chapter 19, Article II - Stormwater Management of the Montgomery
County Code to the Maryland Department of the Environment (MDE) as adopted by the Montgomery
County Council on July 27, 2010. MDE has reviewed the County's adopted ordinance and offers the
following comments.
.
MDE understands that several changes were made to the County's ordinance during the adoption process.
Of these changes, two are substantive. The first involves the elimination of qualitative control waivers [see
§ 19-24.(c)]. This is more stringent than the State Regulations [see the Code of Maryland Regulations
(COMAR) 26.17.02.05C(4)] and is acceptable.
The second amendment is the addition of provisions for allowing the use of alternative stormwater
management measures to address stormwater management requirements for new development (§ 19-26.C).
According to COMAR 26, 17.02.05D(2), alternative measures may be used to address stormwater .
management for redevelopment projects provided that impervious area reduction and environmental site
design (ESD) have.been implemented to the maximum extent practicable (MEP). However, similar options
for new development do not exist in State regulation. MDE cannot approve Montgomery County's
storm water management ordinance because § 19-26.C allows alternative measures to be used to address new
deVelopment requirements. Therefore, Montgomery County must revise
§
19-26.C.
WillIe not acceptable as currently presented, alternative stormwater management strategies may be used to
address new development requirements if those strategies are consistent with an MDE-approved watershed
management plan (see COMAR 26.17.05E). MDE strongly encourages the County to revisit §19-26.C with
respect to the implementation of watershed management plans. Thank you again for submitting
Montgomery County's stonnwater management ordinance. If you have questions, please fell free to call me
at 410-537-3550 or email meatscomstock@mde.state.mde.us.
R.
P.E.
W
ctter
Management Administration
~
Recycled Paper
www.mde.state.md.us
TTY Users 1-800-735-2258
Via Malyland Relay
Service
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26.17.02.05
26.17.02.05
Page
10f3
.05 When Stormwater Management is Required.
A.
Unless the particular activity is exempted by this regulation, a person may not develop any land without an approved final
stonnwater management plan from the approving agency. A grading or building permit may not be issued for a property unless a final
stonnwater management plan has been approved that is consistent with:
(1)
The Storm water Management Subtitle;
(2) This chapter;
(3) The county or municipal ordinance.
(4) The Design Manual for new development; and
(5) Policies established by the local approving agency for redevelopment.
B.
The following activities are exempt from the provisions of this chapter:
(1)
Additions or modifications to existing single family detached residential structures if they comply with §B(2) of this
regulation;
(2) Any developments that do not disturb over 5,000 square feet ofland area; and
(3) Land development activities which the Administration detennines will be regulated under specific State laws which provide
for managing stonnwater runoff.
C. Waivers.
(1)
County and municipal ordinances may contain waiver policies for individual developments if the ordinances are approved by
the Administration. The Administration will approve county and municipal ordinances and waiver policies if:
(a) They reasonably ensure that a development will not adversely impact stream quality;
(b)
Waiver decisions are made on a case-by-case basis; and
(c) The cumulative effects of the waiver policy are evaluated.
(2) Except as provided in §C(3) and (5) of this regulation, stormwater management quantitative control waivers shall be granted
only to those projects within areas where watershed management plans have been developed consistent with §E of this regulation.
(3) Except as provided in §C(5) of this regulation, if watershed management plans consistent with §E of this regulation have not
been developed, stormwater management quantitative control waivers may be granted to projects:
(a) That have direct discharges to tidally influenced receiving waters;
(b)
That are in-fill development located in a Priority Funding Area where the economic feasibility of the project is tied to the
planned density, and where implementation of the 2009 regulatory requirements would result in a loss of the planned development
density provided that:
(i)
Public water and sewer and storm water conveyance exist;
(ii) The quantitative waiver is applied to the project for the impervious cover that previously existed on the site only;
(iii)
ESD to the MEP is used to meet the full water quality treatment requirements for the entire development; and
(i)
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26.17.02.05
(iv) ESD to the MEP is used to provide
full
quantity control for all new impervious surfaces; or
Page 2 of3
(c) When the approving agency determines that circumstances exist that prevent the reasonable implementation of quantity
control practices.
(4) Except as provided in §C(5) of this regulation, stormwater management qualitative control waivers apply only to:
(a) In-fill development projects where stormwater management implementation is not feasible;
(b) Redevelopment projects if the requirements of §D of this regulation are satisfied; or
(c) Sites where the approving agency determines that circumstances exist that prevent the reasonable implementation of quality
control practices.
(5) Stonnwater management quantitative and qualitative control waivers may be granted for phased development projects if a
system designed to meet the 2000 regulatory requirements and local ordinances for multiple phases has been constructed by May 4,
20 I O. {fthe 2009 regulatory requirements cannot be met for future phases constructed after May 4, 20 I 0, all reasonable efforts to
incorporate ESD in future phases must be demonstrated.
D. Redevelopment.
(1)
An approving agency shall require that storm water management be addressed for redevelopment. Unless otherwise specified
by watershed management plans developed according to §E of this regulation, ail redevelopment project designs shall do one of the
following:
(a) Reduce existing impervious area within the limit of disturbance by at least 50 percent according to the Design Manual;
(b) Implement ESD to the MEP to provide water quality treatment for at least 50 percent of the existing impervious area within
the limit of disturbance; or
(c) Use a combination of both §D(I)(a) and (b) of this regulation for at least 50 percent of the existing site impervious area.
(2) Alternative stormwater management measures may be used to meet the requirements in §D(l) of this regulation if the
developer satisfactorily demonstrates to the approving agency that impervious area reduction and ESD have been implemented to the
MEP. Alternative stormwater management measures include, but are not limited to:
(a) An on-site structural BMP;
(b)
An off-site structural BMP to provide water quality treatment for an area equal to or greater than 50 percent of the existing
impervious area; or
(c) A combination of impervious area reduction, ESD implementation, and an on-site or off-site structural BMP for an area
equal to or greater than 50 percent ofthe existing site impervious area within the limit of disturbance.
(3) An approving agency may develop separate policies for providing water quality treatment for redevelopment projects if the
requirements of §D(l) and (2) of this regulation cannot be met. Any separate redevelopment policy shall be reviewed and approved by
the Administration and may include, but not be limited to:
(a) A combination ofESD and an on-site or off-site structural BMP;
(b) Retrofitting including existing BMP upgrades, filtering practices, and off-site ESD implementation;
(c) Participation in a stream restoration project;
(d) Pollution trading with another entity;
(e) Design criteria based on watershed management plans developed according to §E of this regulation;
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26.17.02.05
(t)
Payment of a fee-in-Iieu; or
(g) A partial waiver of the treatment requirements if ESD is not practicable.
Page 3 of3
(4) The detennination of what alternative stonnwater management measures will be available may be made by the approving
agency at the appropriate point in the development review process. Counties and municipalities shall consider the prioritization of
alternative measures in §D(3) of this regulation after it has been detennined that it is not practicable to meet the 2009 regulatory
requirements using ESD. In deciding what alternative measures may be required, an approving agency may consider factors including,
but not limited to:
(a) Whether the project is in an area targeted for development incentives such as a Priority Funding Area, a designated Transit
Oriented Development area, or a designated Base Realignment and Closure Revitalization and Incentive Zone;
(b)
Whether the project is necessary to accommodate growth consistent with comprehensive plans; or
(c) Whether bonding and financing have already been secured based on an approved development plan.
(5) Stonnwater management shall be addressed according to the new development requirements in the Design Manual for any net
increase in impervious area.
(6) The recharge, channel protection storage volume, and overbank flood protection volume requirements specified in the Design
Manual do not apply to redevelopment projects unless specified by the approving agency.
(7) On-site or off-site channel protection storage volume requirements as specified in the Design Manual may be imposed if
watershed management plans developed according to §E of this regulation indicate that downstream flooding or erosion need to be
addressed.
(8) Variations of this redevelopment policy shall be approved by the Administration.
E. An approving agency may develop quantitative waiver and redevelopment provisions for stormwater management that differ
from the requirements of this chapter. These provisions shall be developed only as part of an overall watershed management plan.
Watershed management plans developed for the purposes of implementing different stormwater management policies for waivers and
redevelopment shall:
(1)
Include detailed hydrologic and hydraulic analyses to determine hydrograph timing;
(2) Evaluate both quantity and quality management;
(3) Include cumulative impact assessment of watershed development;
(4) Identify existing flooding and receiving stream channel conditions;
(5) Be conducted at a scale determined by the approving agency; and
(6) Specify where on-site or off-site quantitative and qualitative stonnwater management practices are to be implemented.
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