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Carroll County wants the U.S. Supreme Court to hear its stormwater case. MDE says let a past decision stand.

Carroll County wants to take a permit dispute with the Maryland Department of the Environment to the U.S. Supreme Court, and in a recent court filing the state asserts the case should not be heard at the federal level.

The clerk of the Supreme Court sent a letter to the state Nov. 26 ordering it to respond to Carroll’s petition to have the case heard in federal court, and that response was filed last month. A copy of the state’s 27-page response became available to the Times on Monday.

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Carroll and MDE disagree on how much land county government should be responsible for in respect to statewide efforts to limit the pollutants that rainwater washes into the Chesapeake Bay.

The permit, known as the Municipal Separate Storm Sewer System (MS4) permit, regulates how much stormwater local governments can collect and dispense into local waterways. Carroll’s petition questions the jurisdictional limits of the federal Clean Water Act and a permit holder’s ability to challenge permit conditions.

The specific permit under dispute would increase Carroll’s stormwater requirements and therefore the cost to the county, according to county staff.

Carroll County commissioners in October voted 3-2 to push its stormwater permit appeal to the U.S. Supreme Court. Commissioners Ed Rothstein, R-District 5, and Stephen Wantz, R-District 1, placed the two votes against.

The state responded Jan. 23 to Carroll’s petition to the Supreme Court with a brief in opposition.

MDE argues state permit can be more stringent

In the brief, the state argued that the requirements of the permit set forth by MDE are valid under state and federal law.

Carroll’s first objection focuses on a restoration requirement. Tom Devilbiss, county director of land and resource management, has said the latest version of the permit would require the county to manage 20% of the total impervious surfaces (such as blacktop or roofs) throughout the entire county, compared to the previous 10%.

Carroll’s MS4 permit requires it to continue stormwater management programs such as erosion and sediment control, elimination of illicit discharges, and management and maintenance of county-owned property, according to the state’s brief.

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The state disputed Carroll’s claim that the restoration requirement makes it legally responsible for pollution that flows from impervious surfaces outside its MS4 system.

The county has argued in litigation that the areas that don’t drain into the county’s storm drains (MS4 system) should not be included as part of the total impervious surfaces for Carroll, Devilbiss told the commissioners in October. Managing this additional area will cost the county about $28 million in stormwater projects for the life of the permit, according to Devilbiss. He said that estimate was calculated based on the current average Carroll spends on MS4 per acre now, about $30,000.

“We are certainly willing to handle the waters that flow in and out of our system and treat them … but going beyond that, where there’s areas that truly do not flow in our systems, we did not feel that should be the responsibility of the citizens of Carroll County,” Devilbiss said.

MDE views the situation differently.

The state argued in its brief that the requirement does not make Carroll responsible for such pollutants outside the geographic area of county’s MS4 system, pointing to a Maryland Court of Appeals decision that says as much. The Court of Appeals, Maryland’s highest court, sided with MDE in an August decision.

The MDE brief states that Carroll “remains free to carry out its restoration obligations entirely within the limits of its MS4 system, or elsewhere in the county ... ."

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The state argues further that even if the 20% requirement was beyond the limits of federal law, MDE could still impose the requirement. The Clean Water Act allows states to set more stringent permit conditions under state law, according to the brief.

The county’s petition to the Supreme Court presses a second point, regarding MDE classifying Carroll as a medium-size MS4 system rather than small. Smaller jurisdictions were not required to obtain permits in an earlier phase of the MS4 program, according to the state’s brief.

The brief notes Carroll’s MS4 system serves a population of at least 100,000 people but less than 250,000, which classifies it as a medium jurisdiction.

The brief argues Carroll acquiesced its medium status when it did not challenge the classification as its permit was renewed over the years. The county did challenge the classification when it was first issued its permit in 1994, according to the county’s petition.

State: Deny Carroll’s petition

It is MDE’s position that the Supreme Court is not the most appropriate place to settle this issue. In the brief, the state recommends the Supreme Court deny Carroll’s petition and not hear its case.

“How a Maryland court resolves the questions presented here will have no bearing on how other state courts resolve them based on their own state laws and will have no precedential effect even on issues of federal law,” the state’s brief reads.

Disagreements between a state and local jurisdiction over “uniquely governmental issues” are “appropriately resolved by each state’s highest court,” according to the brief.

Attorney Chris Pomeroy, who represents Carroll in the case, said he could not comment in time for this story.

Carroll County and MDE await the U.S. Supreme Court’s decision on whether it will hear the case.

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