Montgomery County Stormwater Case Reaches Court of Appeals

A November 5, 2015, Daily Record article reported that the Maryland Court of Appeals heard oral arguments in Montgomery County’s Municipal Separate Storm Sewer System (MS4) permit case. MS4 permits require the mitigation of stormwater runoff.  The Court is considering claims by environmentalists that the County’s permit, issued by the Maryland Department of the Environment (MDE) under the federal authority of the Clean Water Act, was vague and lacked specific goals, actions, and enforcement mechanisms. From the article:

Attorney Jennifer C. Chavez told the Court of Appeals that the Maryland Department of the Environment’s permit failed to spell out clear benchmarks, guidelines and standards for stormwater control by the county. Without such clarity, the state’s effort to protect local rivers and the Chesapeake Bay from stormwater-driven pollution is “like an endless marathon with no finish line,” said Chavez, of Earthjustice, a Washington D.C., environmental advocacy group.

But MDE’s attorney, Paul N. De Santis, said the permit appropriately incorporated by reference the department’s manual, which delineates benchmarks, guidelines and standards.

MDE’s Municipal Separate Storm Sewer System discharge permit also included a well-defined 20-percent stormwater restoration requirement and mandated reports on county strategies to address waste allocations, added De Santis, an assistant Maryland attorney general.

The article noted that the justices seemed to question MDE’s arguments while trying to grapple with the highly technical aspects of the case.

Judge Glenn T. Harrell Jr., for example, said MDE’s incorporation of its manual in the permit provides little direction to the county and notice to the public, as the manual can be changed at any time.

Judge Lynne A. Battaglia said substantial environmental harm can presumably occur during the life of the permit if the county’s unspecified runoff-prevention actions prove ineffective.

“You’ve just wasted five years” in that case, Battaglia said, referring to the MDE.

Every Phase 1 MS4 permit that is has been issued to a county in the current 5 year term has been litigated by environmental groups and/or the counties themselves. Other county cases also pending before the Court include Anne Arundel, Baltimore, and Prince George’s Counties and Baltimore City. MACo Legal and Policy Director Les Knapp recently summarized the status of the various litigation and other MS4 permitting challenges at a recent Chesapeake Water Environment Association (CWEA) conference.

MACo Presentation for CWEA Conference

MACo will be holding a panel on stormwater restoration project permit reform at its 2015 December Winter Conference.  These reforms will apply to all counties but will be especially beneficial to MS4 jurisdictions.

Learn more about MACo’s Winter Conference:

Questions? Contact Meetings & Events Director Virginia White.