Update, Jan. 25, 1 p.m.:

Montgomery County's Department of Permitting Services has confirmed that Westfield does not need a sediment control permit for the outfall pipe repair project in the stream buffer separating the Wheaton mall from adjacent neighborhoods.

Rick Brush, of the Land Development Division in the Department of Permitting Services, told Patch that the maintenance project does not require a sediment control permit because it meets certain conditions required by Montgomery County code (Section 19-2):

Any minor land-disturbing activity that:
              (a)     Is not associated with construction of a new residential or commercial building;
              (b)     Involves less than 100 cubic yards of earth movement;
              (c)     Disturbs less than 5,000 square feet of surface area; and
              (d)     Is promptly stabilized to prevent erosion and sedimentation;

A portion of the Costco construction project drains to the outfall, but Brush said that DPS has determined that the outfall is separate from the construction of the Costco or the Costco gas station.

“If there were no other construction present, the outfall would still need to be maintained,” Brush said. The maintenance should only take 3-5 days, Brush said.

The Costco store project already has an existing sediment control permit.

Original story, Jan. 23:

A group of environmental and neighborhood organizations has asked the Montgomery County Planning Department to review--and revoke--an October 2010 decision in which the county exempted Westfield from submitting a Forest Conservation Plan for the Costco construction project at Wheaton Mall.

This informal coalition, led by Diane Cameron of Audubon, argues that the exemption puts at risk a green buffer that separates the mall from the adjacent neighborhoods. The buffer was a source of contention during the Montgomery County Council's deliberation of the Wheaton Sector Plan in November 2011, but the council ultimately approved the inclusion of language that preserved the buffer.

Cameron and others wrote the following in a Jan. 13 letter to the Planning Department’s director: 

Now, just six weeks later, when defending the Forest Conservation exemptions, planning staff have argued that the recently approved Sector Plan language to protect and expand the buffer “is not part of the regulatory review.” This is inappropriate, and we submit that the Council’s clear direction to protect this buffer should be fully implemented by the Planning Department in all decisions affecting the buffer.

But Khalid Afzal, the Wheaton Sector Plan’s chief planner, told Patch that the determination for any Forest Conservation Plan exemption does not come from the Sector Plan. The October 2010 Planning Department memo approving the exemption for the Costco store project explains the criteria for the exemption:

“This exemption covers a modification to an existing developed property if no more than 5,000 square feet of forest will be cleared, no forest in a stream buffer will be affected, it is not located on property within a special protection area, and the modification does not require approval of a new subdivision plan.”

Afzal said that Costco met all these conditions. For the Costco store construction project, the Planning Department determined that any disturbance would be limited to the paved area surrounding the mall and would not enter the stream buffer. “It does not affect any forest or trees,” Afzal said.

The repair of a stormwater outfall pipe located in the buffer does count as a disturbance, but the county’s Department of Permitting Services has decided that this is a maintenance project--not part of the Costco construction project-- and is not requiring a sediment control permit, according to Afzal.

The Forest Conservation Law--and any questions of an exemption from submitting a Forest Conservation Plan--would only apply to the outfall repair situation if DPS changed its mind and required a sediment control permit, Afzal said. The outfall pipe repair remains completely separate from the Costco store construction project.

“If DPS does not require a sediment control permit, we cannot combine these projects into one,” Afzal said.

Diane Cameron has written a blog post on Patch explaining her coalition's position.