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U.S. Supreme Court directs Maryland to respond to Carroll in case on stormwater regulation

The U.S. Supreme Court has not yet indicated whether it will take up a case brought by Carroll County’s government, but it has directed the State of Maryland to respond to the county’s request.

Carroll County and the Maryland Department of the Environment 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. County commissioners in October chose to take its case to the nation’s highest court.

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Although the Supreme Court has yet to decide whether it will hear Carroll’s case, the court recently ordered the State of Maryland to file a response to Carroll’s action. Meanwhile, since the commissioners voted to send the case to the high court, Carroll has gained support from several associations composed of local governments, including outside Maryland.

One of those associations is the Maryland Municipal Stormwater Association, of which Carroll County is listed as a member online.

On Nov. 26, the clerk of the U.S. Supreme Court sent a letter directing the state, represented by the Office of the Maryland Attorney General, to file a brief responding to Carroll County’s request to have the Supreme Court hear its case, the letter reads. The state previously waived the right to respond, according to the letter.

The state’s original deadline to respond was Dec. 26, but a county official said Friday afternoon that the state asked for a deadline extension until Jan. 23 and the county agreed.

“We see these as hopeful signs that the petition is getting a close look,” county attorney Tim Burke wrote in an email Tuesday. “The [Maryland Municipal Stormwater] Association shares our concern about the permit conditions and we are happy to have their support.”

The request Carroll County filed with the U.S. Supreme Court asking it to hear its case is officially known as a petition for a writ of certiorari. In October, the county commissioners voted 3-2 to file the petition.

Raquel Coombs, director of communications for the Office of the Attorney General, wrote in an email Wednesday that their office will file a response to Carroll’s petition, as directed by the Supreme Court. Coombs did not offer further comment.

The aim of the state’s stormwater regulations is to limit the amount of pollution from cities, farms, sewage treatment plants and the air that rain washes into waterways — including in Carroll — that eventually lead to the Chesapeake Bay.

Before going to the Supreme Court, Carroll took its complaint to Circuit Court and prevailed, but then the state environment department (MDE) took the case to a higher court, the Court of Appeals, and won with a 4-3 decision, according to Burke.

The day before the court issued its letter to the attorney general, eight associations submitted to the Supreme Court a 24-page document supporting Carroll County’s petition. According to the document, the associations were: Maryland Municipal Stormwater Association, National Association of Clean Water Agencies, National Municipal Stormwater Alliance, Association of Missouri Cleanwater Agencies, North Carolina Water Quality Association, South Carolina Water Quality Association, Virginia Municipal Stormwater Agency and West Virginia Municipal Water Quality Association.

All eight associations “are organizations from across the United States whose members are public entities that provide water conservation, flood and stormwater management, and wastewater treatment services to the public,” according to the groups’ document. The six state-level associations — including the Maryland Municipal Stormwater Association, of which Carroll County is a member — are composed of local governments that own and operate storm sewer systems.

In the document, the associations argue the Court of Appeals incorrectly applied the Clean Water Act in its decision against Carroll County. The associations further argue the decision by the Court of Appeals would diverts “critical public dollars to pay for private pollution” and could subject the associations’ members to “needless litigation, enforcement, and civil penalties.” The document concludes with the associations requesting that the Supreme Court hear Carroll County’s case.

The associations argue the Court of Appeals’ decision could hurt them by expanding the obligations of their members so that they would have to address stormwater in areas over which they have no authority, ownership or control.

For years, Carroll County has attempted to change MDE’s requirements for the Municipal Separate Storm Sewer System, (MS4) permit. MDE uses the permit to regulate how much stormwater that local governments can collect and dispense into local waterways. MS4 seeks to reduce pollutant runoff into the Chesapeake Bay by breaking down each county’s and Baltimore’s obligations to reduce pollution in waterways. Carroll County has argued in court it should not be responsible for managing — and paying to manage — areas in which stormwater runoff does not flow into county storm drains, according to Tom Devilbiss, director of land and resource management for the county.

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Otherwise, the county will have a hefty price to pay in order to meet the requirements of the permit — $28 million, by Devilbiss’ best estimate. The county’s operating budget for fiscal year 2019 is about $411 million.

The $28 million would be used for stormwater projects to reduce pollutant runoff, which could mean building a water retention pond, creating wetlands to reduce runoff or replacing blacktops with grass.

Previously, the MS4 permit required Carroll County government to manage about 10% of impervious surfaces (such as blacktop or roofs) in the entire county, according to Devilbiss. In 2014, the requirements changed and Carroll was issued its new MS4 permit, which increased Carroll’s responsibility to 20% and, in turn, increased the cost to the county.

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