Thursday 22 March 2018

After five years, finally a win in the courts! The Court of Special Appeals upheld a lower court's finding that the stormwater cleanup requirements issued by state regulators to Montgomery County five years ago weren't specific enough, and didn't have any meaningful deadlines or ways to measure the county's compliance. In a unanimous ruling, the three-judge court ordered the Maryland Department of the Environment to revise the stormwater discharge permit (known as a MS4 permit) to correct the defects. This ruling will have implications for our challenges to stormwater permits in other counties.

Attorney Jennifer Chavez at Earthjustice represented Waterkeepers Chesapeake, Potomac Riverkeeper, Anacostia Riverkeeper and others. Highlights from her blog post:

After the state refused to define specific pollution caps and deadlines for meeting them in the permit, instead ordering the county to engage in a protracted planning process and allowing the county to continue relying on outdated and unproven pollution control practices, we brought this legal case.

This latest decision upholds a December 2013 ruling by the Montgomery County Circuit Court that also sided with the advocates, saying that the permit’s requirements were “simply too general.” The decision confirms that the Maryland Department of Environment has wasted millions of Maryland taxpayer dollars on ineffective and unenforceable permits that fail to protect our beloved waterways and the nationally treasured Chesapeake Bay.

It is time for the state to meet its legal duty to establish the pollution limits so desperately needed to protect the waters in which we swim, fish, boat and enjoy. We urge the Maryland Department of Environment to go back to the drawing board to develop effective and enforceable pollution limits that will ensure clean and safe rivers for Maryland’s residents and visitors.

From the Court of Special Appeals decision:

“Determining the means to the ends, including TMDLs and SWMPs, has been left to the County, which gets one year out of the five-year lifespan of the Permit simply to devise implementation plans. In layman’s terms, the Permit seems to say that the County has a deadline of a year to set its deadlines. But as a practical matter, that open-ended, goal-oriented statement articulates no specific method within the Permit (like setting out those benchmarks, for example) for achieving those goals or measuring progress. Put another way, the County seemingly could be in compliance if, within a year of the Permit’s issuance, it laid out a plan with deadlines of twenty years from now. The Permit imposes no timeframe for executing the plans, and there are not clear requirements for what the aspirational plans must include.
Without measurable commitments, anything could be deemed “in compliance” with the Permit. And without deadlines for compliance and implementation, the County could plan while postponing implementation, an outcome that effectively would circumvent the NDPES permitting program. This is not to say that the Permit must list and measure minute details or water quality standards, only that it must contain some discernible and meaningful milestones of planning, implementation, or achievement that can be understood and measured and, to our earlier point, that the public can review and comment upon.”

Read Potomac Riverkeeper's press statement  

“This legal victory sends a clear message to Maryland regulators and county officials – they must work together to write a new permit that clearly describes how and when the County is going to take action to reduce stormwater pollution fouling our local rivers and Chesapeake Bay,” said Phillip Musegaas, Legal Director of Potomac Riverkeeper Network. “In order to actually improve water quality, the state should require strict monitoring and reporting to verify that actions taken by the County are working to remove trash and toxins during the five year permit term, not at some unknown time in the future. Citizens in Montgomery County who have spent their time and money installing practices on their property to reduce their own stormwater deserve to understand how their work is being counted and who else is going to join them.” 

"Sooner or later the State of Maryland will realize that they need to update their approach to stormwater permitting,” said Mike Bolinder, Anacostia Riverkeeper. “States can't simply say they're going to do better- they need to actually measure improvements and include public participation in the process as a matter of environmental justice.” 


Maryland Senate Passes Weakened Fracking Moratorium Bill

Cuts Moratorium Length to Two Years and Mandates Regulations


(Annapolis, MD - April 7, 2015) The Maryland Senate passed an amended version of a fracking moratorium in last night’s legislative session. The amended bill, known as SB409, requires Governor Hogan’s Administration to adopt regulations by October 1, 2016, to provide for hydraulic fracturing in Maryland, but prohibits any permits for the exploration or production of gas to be issued before October 1, 2017.


Waterkeepers Chesapeake, a coalition of 18 independent nonprofit Waterkeeper organizations, expressed disappointment with the current language in the bill, which would put Maryland on a path to begin fracking in two years. The legislation now heads to the House of Delegates.


“We are very concerned that the General Assembly ignored calls for a long-term moratorium despite the growing body of scientific evidence documenting significant health and environmental harms caused by fracking,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake. “With the current technology, no amount of regulations can make the risks of fracking acceptable. If this bill becomes law, we call on the General Assembly to move quickly in the next two years to establish a more rigorous long-term moratorium to protect our health and communities from irreversible harm.”


The original proposed legislation imposed an eight-year moratorium on the issuing of permits to frack in Maryland. In addition, it set up an expert panel to review additional health and environmental studies on the cumulative and long-term effects of hydraulic fracturing, and make a determination whether fracking could be done safely in Maryland. These protective provisions were all removed from the amended bill that passed the Senate.


Waterkeeper groups believe that existing evidence indicates that fracking cannot be carried out in a way that adequately protects public health or the environment.


On February 5, 2015, over 120 medical and health professional sent a letter to Senate President Thomas V. “Mike” Miller and House Speaker Michael E. Busch stating, “Until independent scientific information to determine the nature and level of public health risks and whether those risks can be managed effectively, it is vital for the General Assembly to protect the health of Maryland residents by preventing unconventional gas development and production from beginning prematurely in our state.”


“The past few months have seen a groundswell of opposition to fracking emerge in Western Maryland,” says Robin Broder, a homeowner in Garrett County and a member of Waterkeepers Chesapeake Board of Directors. “The list of local businesses asking for a long-term moratorium on fracking continues to grow. They do not want to see the local economy and property values sacrificed to the out of state natural gas industry.”


A recent poll showed that a majority of residents throughout Maryland support a long-term moratorium on fracking, and indicated that the public is looking for leadership from the General Assembly.


“The General Assembly needs to ensure that the pressure to implement regulations does not supersede the public notice process,” said Nicholas. “We are highly skeptical that the Department of the Environment has the resources and capacity to draft fracking regulations, oversee compliance and conduct effective enforcement.”


Waterkeepers Chesapeake and its member groups will continue efforts in the next two years to ensure that the public’s interests are heard and that our communities, land, and water are protected.


Contact:  Robin Broder, This email address is being protected from spambots. You need JavaScript enabled to view it.703-786-8172




Environmental advocates have been working to update Maryland's 45-year old Public Information Act through state legislation ("Senate OKs rewrite of public information law," March 24). There is certainly plenty of room for improvement -- Maryland received an "F" in government transparency from the State Integrity Project. The new legislation creates better oversight, tightens timelines to respond to public information requests and requires proper justification for denials.


Clean water and clean air advocates have been stymied when requesting information from state or local governments -- but we're not the only ones.
I testified in support of this legislation alongside newspaper editors, government watchdog groups, social justice organizations and private citizens. The only organizations that testified publicly in opposition to the bill were the Maryland Farm Bureau and the Maryland Grain Producers. Why do they oppose common sense reforms to Maryland's public information law?
The agriculture industry -- the largest polluter to the Chesapeake Bay -- receives special treatment under existing law. For instance, information about state-required pollution plans for many farms are kept secret, hidden from Maryland taxpayers, along with enforcement records for these farms. State governments invest millions of dollars to reduce pollution from farms and we deserve some level of accountability to ensure that funding is being well spent. Unfortunately, the powerful corporate agriculture lobby was successfully able to strip any provisions relating to agricultural transparency out of the legislation.
The amended legislation moving through the General Assembly is still critically important because it will make it easier for Marylanders to get public information they deserve to see. The bill improves a law that hasn't been updated since Marvin Mandel was governor. But it won't fix everything that is wrong with government transparency in the Free State. Open government advocates will continue working to shine a light on public information to get better access and accountability from all industries that pollute our environment -- no exceptions or exemptions.