Court Finds that Maryland Failed to Protect Rivers from Polluted Runoff

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instead ordering the county to engage in a protracted planning process and allowing the county to continue relying on outdated and unproven pollution control practices, we brought this legal case.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.”