Court of Appeals Approves MDE Stormwater Permits for Carroll, Frederick

Stormwater permits issued to counties by the Maryland Department of the Environment were upheld by the Maryland Court of Appeals, following legal review of their scope and multiple separate provisions.

coasealThe Court’s decision, on a split opinion, seemingly settles a prolonged challenge over the State’s means of carrying out the federal Clean Water Act. In this respect, like many, the US Environmental Protection Agency has delegated its authority to the State department, who in turn has issued municipal separate storm sewer system (MS4) discharge permits to various jurisdictions subject to the federal rules. The permits approved by the State for Carroll and Frederick Counties were reviewed on multiple grounds, and these legal challenges have worked their way through the State’s courts to this resolution.

The opening elements of the 129-page decision frame the issues, and their broad scope:

In the quest to conserve a vital resource –the nation’s waters –Congress has enlisted the federal, state, and local governments under the Clean Water Act (“the Act”) in a regulatory approach sometimes called “cooperative federalism.” This effort involves a type of regulation that takes the form of a “permit” issued by a federal agency (or a state agency with federal oversight) at specified intervals to the regulated entity.Such permits authorize discharges of pollution into waterways, which the Act otherwise prohibits. When the targeted pollution is in stormwater, the permittee –i.e., the regulated entity –is often a local government. Inevitably, as in any assignment of responsibility for solving a serious problem, there is disagreement as to the solution and the allocation of that responsibility. One way to resolve such disputes is through judicial review of the permit.

This consolidated appeal concerns judicial review of the most recent permits issued to Carroll County and Frederick County (“the Counties”) under the Act and a parallel Maryland regulatory scheme. The permits regulate the discharge of polluted stormwater into waterways in the Chesapeake Bay watershed. The permits were developed and issued by the Maryland Department of the Environment (“Department”) under the supervision of the United States Environmental Protection Agency (“EPA”), as part of an EPA-led, multi-state effort to restore the Chesapeake Bay in compliance with the Act.

Both Counties raise serious issues concerning the scope of the permits, the level of effort required of each County, the classification of the Counties (which affects certain conditions in the permits), and the absence or inclusion of certain terms in the permits. Ultimately, we hold that the Department did not exceed its authority under State and federal law when it issued the permits, nor did it act arbitrarily or capriciously in including the challenged terms in the permits. (emphasis added)

The full decision is available online.

Following the ruling, Frederick County issued this comment:

      Frederick County is very disappointed that only 3 of the 7 judges on the Court of Appeals agreed with most of the legal issues the County raised. Even the majority opinion which upheld the MDE permits stated that the County “raised serious issues concerning the scope of the permits.”

The County is not alone in raising these serious issues.  Other jurisdictions across the country have similar concerns about their stormwater permits issued under the Federal Clean Water Act.

Because of these important concerns, the County will be carefully evaluating its options including the possibility of asking the United States Supreme Court to consider the broader federal consequences of this decision. In recent years, the US Supreme Court has generally considered fewer than 80 cases a year, so the possibility of any case receiving Supreme Court review is small.

In the meantime, the County will continue to comply with the MDE permit and protect the environmental resources of Frederick County.

See previous Conduit Street coverage of municipal separate storm sewer system (MS4) permits.

Michael Sanderson

Executive Director Maryland Association of Counties