Court of Special Appeals Strikes Down Montgomery’s MS4 Stormwater Permit

The Maryland Court of Special Appeals has found the National Pollutant Discharge Elimination System (NPDES) Phase I Municipal Separate Storm Sewer System (MS4) permit issued by the Maryland Department of the Environment (MDE) to Montgomery County to contain insufficient information to allow the Court or the general public to determine whether the permit complies with the water quality requirements under the federal Clean Water Act. The Court ordered MDE to revise the County’s permit, upholding a prior finding of the circuit court.

As previously reported by Conduit Street, various environmental groups have initiated lawsuits challenging all of the recent Phase I MS4 permits issued by MDE to various counties.  The challenges have ranged from the terms of the permit to the standard of compliance that should be applied.  The Montgomery County challenge is the oldest and farthest along in terms of litigation.

From the Court’s April  2 opinion in Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al. regarding the insufficient contents of the permit :

It may be that the actions and standards that the Department and County have in mind under this Permit satisfies the requirements that the Act imposes on both, and we agree with the Department about what the law generally requires. But there is no way for the public or for us to know from the Permit itself whether they do or not, and we agree with the circuit court that the Permit must be revised accordingly. We recognize the Department’s expertise in this area, and we know that it is not our role to dictate precisely how the Department must balance the complex realities of managing pollution in a large stormwater system against the important public policies of transparency, public participation, and meaningful judicial review. It seems, though, that the more details are framed as future obligations to plan or propose plans, the harder it will be for the public to participate and for courts to review the Permit, even deferentially.

While the Court found that the contents of the permit were insufficient, the Court sided with MDE and the County that the proper standard of compliance with the water quality standards under the Clean Water Act is to the “maximum extent practicable” (MEP) as opposed to “strict compliance.” Under an MEP standard, both cost and feasibility are considered when determining compliance.  MACo had joined an amicus curiae (friend of the court) brief that was coordinated by the Maryland Municipal Stormwater Association (MAMSA) in support of the State’s MEP position.  From the Court’s opinion:

Importantly, though, we hold that the Department and the County had the law right: the Permit falls short not for failing to hold the County to State water quality standards, as the challengers urge, but because it did not afford an appropriate opportunity for public notice and comment and because it lacks crucial details that would explain the County’s stormwater management obligations.

It is unclear yet whether MDE will appeal the Court’s decision to the Maryland Court of Appeals or what impact the decision will have on the pending litigation for other Phase I 5-year permit that might be more specific or involve new processes.

Court of Special Appeals Opinion on Montgomery County Permit

Conduit Street Coverage of Circuit Court Decision in Baltimore County Litigation

Conduit Street Overview of Phase I MS4 Permit Litigation