Thursday 21 February 2019

In its opinion in three cases involving MS4 permits, the Maryland Court of Appeals ruled that the Maryland Department of Environment (MDE) is complying with the bare minimum legal requirements for municipal storm sewer system regulations.Weak MS4 permitting in Baltimore City will allow for continued illicit runoff.

“That may be good enough for the court and for MDE, but meeting the bare minimum requirement is not good enough for our rivers and the Chesapeake Bay watershed,” said David Flores, Baltimore Harbor Waterkeeper, one of the challengers in the case. 

It has been several years since these cases first began wending their way through the Maryland courts. Although the outcome was not what they had hoped it would be, the plaintiffs will continue to advocate for a more rigorous and transparent process as part of the five-year renewal cycle.

Some of these permits will renew as early as 2018. That will be a time for each jurisdiction (Baltimore City and Anne Arundel, Baltimore, Montgomery, and Prince George’s counties) to step up their efforts to strengthen their permits — and for the public to be engaged in demanding more from their governing entities.

Finally, while we may have to accept this court’s opinion as little more than a token toward water quality improvements, the court did not exempt MDE from using its enforcement tools to require compliance to these baseline goals. We know that the EPA Region 3 (Chesapeake Bay inclusive) has put MDE on notice for its lack of compliance review.

"Stormwater is the only pollution sector in the Chesapeake that is actually increasing, so our Riverkeepers are going to have redouble their efforts to monitor and ensure compliance with the permit terms," said Betsy Nicholas, Executive Director of Waterkeepers Chesapeake.

“Maryland cannot keep doing the bare minimum required under the law if it wants to have any hope of cleaning up and protecting its rivers and streams,” said Jennifer Chavez of Earthjustice, who argued the case before the Court of Appeals. “Community and conservation groups across Maryland will continue pressing MDE to issue stronger stormwater pollution limits.”

The removal of the "impaired" designation for the 53 river segments in 17 Maryland counties, including on the Eastern Shore, and Baltimore City effectively gives the rivers the same Total Maximum Daily Load (TMDL) pollution diet as the main stem of the Chesapeake Bay.

"Pollution doesn't just originate in the middle of the Chesapeake Bay," Waterkeepers Chesapeake Executive Director Elizabeth Nicholas said. "We have to look at all of the smaller creeks and streams that are suffering impaired water quality throughout the watershed."

READ MORE: StarDem.com, March 9, 2016

“Science seems to be the monster here,” Pluta said. “Science doesn’t necessarily define the rules of fishery management; DNR does that and they should do that ... What science does is it really provides the guardrails for which we can operate within, and once we have those guardrails, all of the knowledge from the watermen, all of the knowledge out there should be used to identify what the rules for the fishery are.”

Pluta said although all scientific data concerning the fishery points to the necessity of a moratorium, he does not see that as being a path forward. He said a moratorium would be viewed as a failure, not just for watermen but for conservationists, as well.

“Nobody wants a moratorium. A moratorium would be seen as a failure for the management, and nobody wants to see that,” Pluta said. “We think a collaborative approach is the best approach, and science should be included.”

“It looks bad in the rearview mirror if you look back over what’s happened. You lose $1 million worth of oyster restoration — $1 million coming into our economy; jobs, clean water,” Horstman said. “I think we need to start applying the science-based harvesting to what’s left of our oyster population.”

READ MORE: StarDem.com, March 6, 2016