Court faults state oversight of storm-water cleanup efforts

Court faults state oversight of storm-water pollution cleanup efforts

Maryland's second highest court has faulted state oversight of local efforts to control polluted runoff, in a case that could have bearing on legislation in Annapolis repealing fees for cleaning up the Chesapeake Bay.

The Court of Special Appeals upheld a lower court's finding that the storm-water cleanup requirements issued by state regulators to Montgomery County 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 storm-water discharge permit it had issued the county five years ago to correct the defects.

The opinion late last week was seen as a victory by environmental groups, which have gone to court to challenge the storm-water permits MDE has issued to Baltimore and the state's nine largest counties.

Those permits, which are to be renewed every five years, are supposed to spell out what local governments must do to reduce storm water runoff. Pollution washed from streets, buildings and parking lots is a significant and growing source of the bay's water woes.

Environmentalists have contended that the state has been too lenient in what storm-water reductions it demands of local officials. They also complained the public didn't get a real chance to review or comment on what's being required.

In the Montgomery case, state officials maintained that they are doing all federal law requires in ordering "best management practices" be installed that would capture or treat runoff from 20 percent of the county's paved area.

But the appeals court found fault with even that requirement, saying it was unclear. And it agreed that the public was largely cut out of the planning for what cleanup would take place.

"The court’s opinion validates the concerns we’ve been raising ....that there’s not enough accountability," said Alison Prost, Maryland director for the Chesapeake Bay Foundation, which has gone to court to challenge several of the county permits.

Jay Apperson, spokesman for the Department of the Environment, said the agency is "reviewing the ruling and considering its options." MDE could ask the Court of Appeals to review the case.

If not appealed, the ruling could prompt changes in storm-water cleanup requirements issued to Baltimore city and the state's nine large counties. Lower courts have rejected environmentalists' challenges in Anne Arundel, Baltimore County and Prince George's, but those have been appealed.

The ruling comes as lawmakers in Annapolis weigh doing away with a requirement that Baltimore and the nine big counties pay for storm-water cleanup by levying fees on property owners. The three-year-old fee mandate has generated intense controversy, and Gov. Larry Hogan campaigned on a pledge to repeal it.

The Senate unanimously passed a bill that would leave it up to local officials to decide how to pay for their storm-water projects. But the measure put in by Senate President Thomas V. Mike Miller, requires the city and counties to submit "financial assurance plans" spelling out what they're going to do and how they're going to pay for it.

The House Environment and Transportation Committee is reviewing Miller's bill. Environmentalists say legislators ought to be mindful of the shortcomings the court found in the state's permits, which are essentially the road maps communities are to follow in reducing polluted runoff.

"We’re willing to give flexibility on the fee," Prost said, "but there has to be more accountability that the stormwater work is getting done and that the counties are taking the funding of those projects seriously."

"The two go hand in hand," agreed Jennifer C. Chavez, an attorney for Earthjustice.  Her group challenged the Montgomery permit and has also challenged Baltimore city's. 

"The permit ruling gets at some of what the bill is trying to get at," Chavez said. "We need to know what [local officials] are doing and why in order to have accountability."

Whether storm-water cleanup is paid for with fees or with property taxes, Prost concluded, "People are paying to get the work done .. It shouldn’t be a challenge to figure out what the county’s plan is, [and] how they’re progressing along that plan."

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