After the state Court of Appeals sided with the Maryland Department of the Environment, Carroll County commissioners voted 3-2 to push its stormwater permit appeal to the U.S. Supreme Court.
Thursday’s vote marked the latest movement in what has been a years-long quest by county government to change MDE’s requirements for the Municipal Separate Storm Sewer System, or MS4 permit. The permit oversees the systems that collect stormwater and dispense it into local waterways. MS4 seeks to reduce pollutant runoff into the Chesapeake Bay by breaking down each jurisdiction’s obligations to reduce pollution in waterways.
The commissioners voted to file a writ of certiorari, which is essentially a summary of the case that will be sent to the Supreme Court for consideration, according to county attorney Tim Burke. He pushed the commissioners to make a decision Thursday, as the deadline for filing is in early November, 90 days after the Court of Appeals — Maryland’s highest court — issued its decision in August.
Once a petition has been filed to the Supreme Court, it typically takes six weeks to get a response, according to the Supreme Court’s website. Burke said the Supreme Court will decide by the end of its term, in June, whether to put the case on next year’s docket.
The county is challenging the amount of impervious surfaces, such as blacktops or roofs, that MDE says Carroll is responsible for managing under its MS4 permit. Nine counties and Baltimore city have the same type of MS4 permit, according to Tom Devilbiss, director of land and resource management for Carroll County.
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In 2010, MDE proposed changing the language of the permit to indicate it would be applied across an entire county, according to Devilbiss.Carroll sent its objections to MDE then, and in 2014 it was issued its new MS4 permit with the greater requirements, according to Devilbiss. It was at that point that Carroll County initiated litigation, as did Frederick County.
Carroll prevailed in Circuit Court, then MDE took the case to the Court of Appeals and won with a 4-3 decision, according to Burke.
Under the permit, Carroll is required to manage 20% of the total impervious surfaces throughout the entire county, including about 900 acres in which runoff does not fall into county storm drains, according to Devilbiss — compared to the previous 10%. (Restore 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.)
The county argued through litigation that the areas that don’t drain into county storm drains should not be included as part of the total impervious surfaces for Carroll, Devilbiss said. 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 feel that that’s not part of our responsibility per the federal law," Devilbiss told the commissioners. "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 argued that the MS4 requirements set by MDE conflict with federal guidelines that state the counties are responsible for what flows in and out of county storm drain systems. Devilbiss said he was “amazed” and “disappointed” by the Court of Appeals’ decision.
An attorney representing MDE, Adam Snyder of the Office of the Maryland Attorney General, did not return a call for comment Friday afternoon.
Attorney Chris Pomeroy, who is representing Carroll in the case as outside counsel, believes Carroll has a shot at the Supreme Court and that there has been a misinterpretation of federal law.
Pomeroy said in an email that local governments like Carroll County “are required to have a Clean Water Act stormwater permit regulating the water quality of discharges from the stormwater drainage system it owns and operates.” At issue, he said, is the county being required to regulate stormwater runoff that doesn’t flow into the county’s drainage system.
“The Supreme Court only hears a limited number of cases, but this could be one for that very reason,” Pomeroy said in the email.
Burke estimated it would cost the county about $250,000 to litigate the case if the Supreme Court took it on and said filing the writ of cert would probably be less than half of that cost. If Carroll loses in the Supreme Court or is unsuccessful in getting its case heard, Carroll will have to comply with the MS4 permit.
Some of the commissioners saw this as a risk worth taking.
“I’m willing to risk $100,000, $200,000 of taxpayers’ funding to potentially win this case and save us upwards to $20 million, plus inflation or index, over time, because even if we lose we’re still going to be paying that millions of dollars,” said Commissioner Eric Bouchat, R-District 4.
Commissioner Ed Rothstein, R-District 5, protested, saying he felt the commissioners did not exhaust all other options and should try going through the General Assembly to change the requirements.
“We owe it to use all the tools available, and I feel like we haven’t,” Rothstein said.
County administrator Roberta Windham pointed out Carroll’s Republican delegates are in the minority at the General Assembly. The board also discussed how the approaching November deadline would not give delegates enough time to push for and persuade the General Assembly to enact change.
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Devilbiss said after the board meeting that attorneys for Carroll and MDE previously met to try to reach a settlement, but were unsuccessful.
During the board meeting, Commissioner Stephen Wantz, R-District 1, voiced concern over what the move to the Supreme Court would do to the county’s relationship with MDE.
“This could come back to kick us in the you-know-what if we’re going to do this, politically and in many other areas too,” Wantz said. “I’m very apprehensive ... .”
Rothstein and Wantz placed the two votes against.
Commissioner Richard Weaver, R-District 2, suggested waiting a week to vote so commissioners could talk to the delegates, but the rest of the board rebuffed his idea because of the approaching deadline.
Commissioner Dennis Frazier, R-District 3, said trying to get the case heard by the Supreme Court is the “logical” choice.
“We are in the right on this,” Frazier said.