Water, everywhere

By Jonathan E. Rinde

and Bridget L. Dorfman

At the beginning of this year, the Pennsylvania Department of Environmental Protection published in final form its long-awaited guidance document on how to manage storm water created by real estate development. This document promotes "low-impact development" as a way to protect the water quality in our lakes, streams and rivers. Assuming it will be meaningfully enforced by the DEP, the document's publication may signal a paradigm shift in the way real estate development occurs, and how the look of Pennsylvania's communities changes over time.

You may remember from your grade school science lessons that impervious surfaces, such as rooftops, parking lots and other impenetrable surfaces associated with real estate development do not allow rainwater to soak into the ground. Instead, rain that hits these surfaces runs off into streets, storm sewers or nearby waterways, and if not properly controlled, increases the risks of flooding, erosion, and other adverse impacts to the aquatic ecosystem.

Until recently, the solution to this problem was to build large storm water detention basins to hold all the extra storm water, allow the sediments to settle out, and release the water to nearby streams slowly over time. Although these basins control the speed of the rainwater coming off of paved surfaces into adjacent waterways, they do almost nothing to reduce the volume of storm water released.

The DEP's new guidance document will require that developers control the amount of storm water discharged when development is complete. To do so, DEP now requires real estate developers to construct less impervious surfaces than before and create more opportunities for storm water to soak into the ground - requirements that go beyond the federal requirements to control storm water.

The state also places even more regulatory restrictions on storm water discharges arising from new real estate developments that are located in watersheds with very high water quality, known as "special protection" watersheds in regulatory parlance. As water quality continues to improve throughout the commonwealth and watershed groups petition the DEP to reclassify waters to the higher special protection status, it will be even more difficult to obtain state permits to develop real estate located in these areas of Pennsylvania.

Several questions remain regarding the implementation of this new guidance. For example, the best time to incorporate low-impact design is at the beginning of a project, when the land is acquired. However, the design of storm water controls typically occurs as one of the last items in the project planning, after access, parking and building envelopes have been located on the site. Additionally, it remains to be seen if Pennsylvania's homebuyers will embrace low-impact design that favors items such as curbless, narrow streets, clustered buildings, and artificial wetlands located throughout their new communities. And even if homebuyers accept low-impact design, it is still questionable if Pennsylvania's more than 2,000 municipalities will.

For commercial developments, can the big-box retailers that consumers love really be built in a manner that is low impact, when the shape of the building and size of the parking areas are so much a symbol of who they are? Will they readily embrace features such as green roofs that have plants on the rooftops to send rainwater back into the atmosphere? And how aggressively will state regulators tread on real estate development, which in Pennsylvania has traditionally been primarily controlled at a local level?

The new guidance document offers some hope that the flooding that some communities in Southeastern Pennsylvania have experienced in recent years will not be worsened by new real estate developments. But the document does nothing to address the many failing storm water facilities located throughout the region, nor can it cure the problems of existing homes that are located too close to waterways. People love these waterfront properties when the weather is nice, but extended rains cause them to become headline news.

The paradigm shift in real estate development, driven by appropriate concerns over our creeks and streams, may be just beginning in Pennsylvania. Those who live, work or play in Pennsylvania may notice the change in the landscape in the very near future.