Proposed new requirements for builders and developers announced by the U.S. Environmental Protection Agency on Sept. 24 as part of sweeping changes planned for the Chesapeake Bay watershed are expected to lead to more fees and in some cases radical changes and even building moratoriums in the area, which encompasses six states and the District of Columbia.

Envisioned as a template for water quality measures in other federally protected watersheds, the changes may eventually have profound effects on home builders throughout the country.

The proposed regulations are contained in the EPA's Total Maximum Daily Load (TMDL) program for the Chesapeake Bay — which includes thousands of pages of graphs, studies and background information — and in state Watershed Implementation Plans, or WIPs.

More than 40,000 TMDLs are in effect throughout the U.S., but the Chesapeake Bay TMDL will be the largest and most complex ever, according to an EPA press release.

“Despite some reductions in pollution during the past 27 years of restoration due to extensive efforts by federal, state and local governments; non-governmental organizations; and stakeholders in the agriculture, urban/suburban and wastewater sectors, there has been insufficient progress toward meeting the water quality goals for the Chesapeake Bay and its tidal waters,” the EPA said.

“The Chesapeake Bay TMDL will address all segments of the Chesapeake Bay and allocate loadings of nutrients (nitrogen and phosphorus) and sediment to all jurisdictions in the bay watershed, including New York, Pennsylvania, West Virginia, Delaware, Maryland, Virginia and the District of Columbia,” the agency said.

Trouble in West Virginia

Builders in West Virginia in the eight-county eastern panhandle of the state included in the bay’s watershed are likely to see significant restrictions on new development, it not an outright halt. 

“West Virginia’s WIP has the effect of rationing out the opportunities to do construction projects in the panhandle — not only home building, but also streets and utilities, schools, stores and businesses,” said Glynn Rountree, an NAHB environmental policy analyst who is studying the state’s plan.

If approved and fully implemented by 2025 — the deadline for all the new Chesapeake Bay restrictions to be put in place — the WIP for West Virginia will cut in half the 14,000 square acres that are allowed annually for construction activities.

“This is a part of the country where the unemployment rate already is 10%,” said Rountree. “This is basic economics. Constraining the housing supply will raise housing prices, and that means less affordability and more job losses.”

Looking at Tradeoffs

Home builders, in theory, should be able to use water quality trading programs to meet the requirements of the West Virginia’s WIP, but the state evidently has not considered this as an alternative. The state has chosen a simpler approach, to just shut them down, Rountree said.

Trading programs allow agricultural operations — by far the biggest contributors to pollution in the bay — to “sell” the opportunity to put pollution prevention measures into place on farmland. These measures include planting cover crops on land not being tilled, increasing vegetation near streams and rivers and keeping cattle waste from polluting waterways.

“Even the EPA has concluded that water-quality trading is essential for this rule,” he said. “There is no way that even the most restrictive measures for home builders and others affected by this rule can make the bay cleaner unless mitigating for the effects of agriculture is included in the equation.”

Other states in the watershed have already included limited water quality trading programs in their WIPs, he noted. “We need to focus on improving the bay, not on putting people out of business.”

New Federal Oversight

Rountree added that the new Chesapeake Bay TMDL “is like no other rule. It is significantly more intrusive and will result in a much heavier federal presence, especially with the EPA’s new emphasis on enforcing this TMDL. There are great consequences, including the loss of permitting ability, for states that don’t step up to the plate with the money to run their enforcement programs.”

That money will come from higher state and local taxes and user fees — accompanied by much stricter requirements for lawn fertilizers and installing new driveways or other impervious surfaces and by other restrictions that will have a direct impact on consumers all over the watershed.

“This new TMDL is going to change the way cities look and how people live in the Chesapeake Bay states. And if the feds are happy with the results, it’s going to mean a lot of changes coming to the rest of the country, as well,” he said.

The states now have until Nov. 29 to revise their draft Watershed Implementation Plans in response to comments from the EPA. If a final plan doesn’t pass muster, the EPA can impose “backstop allocations” that it has included in the state’s TMDL package.

For a list of public meetings being held by the EPA this fall to discuss the Chesapeake Bay TMDL, click here.

For more information, e-mail Glynn Rountree, or call him at 800-368-5242 x8662.