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Maryland court rules for state against Carroll County in pollution permit challenge

In the latest development in an appeals process that has stretched over multiple years, the Maryland Court of Appeals sided against Carroll County’s objections to runoff pollution regulations in the Chesapeake Bay watershed.

The Maryland Department of the Environment, or MDE, is charged with issuing Municipal Separate Storm Sewer System or MS4 permits, which oversee the systems that collect stormwater and dispense it into local waterways. The permits break down each county’s obligations to reduce pollution in those waterways.

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Carroll County and Frederick County each raised challenges to some sections of the most recent permit, issued in 2014. When the cases reached the Court of Appeals, the court considered both together and issued an opinion Tuesday, Aug. 6.

The court sided with MDE against the counties, saying that the terms of the permits did not overstep the MDE’s authority.

The court wrote in its decision, “Both Counties raise serious issues concerning the scope of the permits, the level of effort required of each County, the classification of the Counties (which affects certain conditions in the permits), and the absence or inclusion of certain terms in the permits.

"Ultimately, we hold that the Department did not exceed its authority under State and federal law when it issued the permits, nor did it act arbitrarily or capriciously in including the challenged terms in the permits.”

Tom Devilbiss, director of Carroll County’s Department of Land and Resource Management, said that while the litigation has been ongoing, the county hasn’t stopped working to meet the standards of the permit.

“We’ve been going petty much full speed with our compliance," he said.

The permits are issued every five years, and the compliance deadline for the 2014 permit is this December. Violating the permit could lead to sanctions or penalties that could include fines.

The Carroll County Board of Commissioners will be briefed on the decision by Timothy C. Burke, county attorney. They had not yet been briefed as of Friday as they are preparing for the Maryland Association of Counties summer conference in Ocean City on Aug. 14.

Erik Fisher, the Chesapeake Bay Foundation’s Maryland assistant director, issued a statement in response to the court’s decision.

“Restoring the Chesapeake Bay is a cooperative effort and local governments are key partners. This court decision will help ensure that counties and cities in Maryland continue to reduce stormwater runoff that harms local waterways and ultimately pollutes the Bay.

“Reducing polluted runoff from urban and suburban areas continues to be among the most difficult challenges to meeting Bay cleanup goals. These permits provide baseline requirements for local jurisdictions to deal with this issue and we appreciate the court’s action upholding the state’s authority to issue them."

The court process

Carroll County first sought review of the MS4 permit in January 2015 through the Circuit Court for Carroll County.

According to the documentation in the Court of Appeals decision, “At the request of the parties, the matter was stayed for more than a year while the parties pursued settlement and while challenges to similar permits by environmental advocates were being litigated.”

The Circuit Court’s opinion came June 26, 2017, “agreeing with the County on some of its claims and with the Department on others.”

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MDE appealed that ruling, and the county filed a cross-appeal.

MDE has the authority to regulate the counties through the permits, and the county governments can seek to settle disagreements with the permits through court appeals.

The regulations

The MS4 permits regulate the discharge of polluted stormwater into waterways under the umbrella of the federal Clean Water Act.

The Chesapeake Bay watershed stretches across several states and tens of thousands of miles. The restoration of its ecosystem and wildlife has been a focus of programs at local, state and federal levels for decades.

An MS4 is a network of conveyances — including storm drains, gutters and other drainage systems — that carry stormwater, or rainwater that collects in large quantities and drains elsewhere, including into the bay.

That rainwater then picks up dirt and other pollutants from the surfaces they rush over, such as pavement. The pollutants in stormwater vary depending on many factors, from the surface it flows over to how recently a lawn has been fertilized.

Measuring and reducing pollution that enters waterways through stormwater systems is complex. From other sources, discharge might go into a waterway from one source like a pipe.

Permits for point pollution can include numeric limits. However, the court noted in its decision, "Using that same approach for an MS4 would entail setting effluent limitations for each conveyance within the stormwater drainage system, which would be administratively, technically, and financially Burdensome.”

Restoring areas of impermeable surfaces is one of the ways this takes place. When stormwater rushes over these surfaces, it sweeps pollutants along with it into the MS4 and eventually into waterways where its harmful to fish, shellfish and other wildlife.

“Restoring” is a term that refers to reducing runoff by changing surfaces to ones that can absorb and filter stormwater in the way that a natural surface would.

According to the court decision, the language of the Clean Water Act gives guidance for MS4s permits that they should include “controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the [EPA] or the State determines appropriate for the control of such pollutants.”

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