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Polluted runoff is a major source of pollution into the Chesapeake Bay but who should pay for remediation? That's a question raised by a lawsuit that Carroll County's commissioners want to take to the Supreme Court.
Polluted runoff is a major source of pollution into the Chesapeake Bay but who should pay for remediation? That's a question raised by a lawsuit that Carroll County's commissioners want to take to the Supreme Court. (Kenneth Lam, 2003)

Last August, Maryland’s highest court ruled that the Board of Carroll County Commissioners couldn’t avoid legal obligations to reduce pollution from stormwater runoff. The county, along with neighboring Frederick, had argued that state and federal regulators had exceeded their authority in deciding that these counties ought to be doing more about the harmful pollutants that are swept off county streets and sidewalks, lawns and golf courses and into storm drains and ditches, streams and, eventually, the Chesapeake Bay. In a lengthy opinion, the Maryland Court of Appeals ruled the Maryland Department of the Environment, in concert with the EPA, had acted legally. The commissioners might have accepted that ruling and started cleaning up their act. Instead, they voted last week, 3-2, to take the case to the U.S. Supreme Court.

This image, captured by satellite, shows the Chesapeake Bay.
This image, captured by satellite, shows the Chesapeake Bay. (Satellite view courtesy NASA Langley Research Center)

Here’s what they hope to gain through such an appeal: The commissioners seek to avoid the obligation of investing as much as $20 million in theoretical future measures to reduce pollution. That includes such remedies as planting forests, creating wetlands or other natural buffers, or it might mean green roofs or rain barrels or using gravel or pavers in the place of impervious surfaces like driveways and sidewalks. All of which would make the county greener and more environmentally friendly. Instead, commissioners elected to authorize as much as $250,000 for lawyers who would argue technicalities such as whether it is arbitrary or capricious to judge the county a “medium” jurisdiction instead of a “small” one for purposes of an MS4 permit covering municipal storm sewer systems. This makes the wallets of attorneys greener and the county less environmentally friendly.

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We won’t bother with the highly technical legal arguments here. It took Maryland’s highest court 99 pages to explain them two months ago. But here’s the bottom line, and it doesn’t require legal expertise: Who is going to deal with polluting stormwater runoff in Carroll County if not its local government? And would anyone invest a quarter-million dollars to avoid such an obligation? Even if the appeal was to somehow succeed, the Supreme Court accepting the writ of certiorari and then eventually ruling in the county’s favor, Carroll would still be left with its central dilemma — water pollution that wouldn’t have existed if not for development (homes, apartments, shopping centers, roads, etc.) that the commissioners authorized in the first place. Indeed, the county could find itself having to crack down on point sources (like municipal sewage) instead of stormwater runoff to meet its federally-mandated pollution reduction goals which could prove even more costly.

There are three likely explanations for this behavior. Either the commissioners reject the notion that polluting runoff exists (in which case decades of scientific evidence has simply fallen on deaf ears and all hope is lost); they believe someone else but the people who live in Carroll County should foot the bill for the cleanup of Carroll County; or they simply don’t care about water pollution. None seems like an especially good argument. Most likely, it’s just the reflexive position of an all-Republican board to be against government regulation and the possibility of more government-authorized spending. It’s a convenient political argument until it’s time to do something about deadly algae blooms suffocating Chesapeake Bay marine life that are fed by excess nutrients about one-fifth of which come from stormwater, according to EPA models.

Carroll County Commissioners, from left, Steve Wantz, Ed Rothstein, RIchard Weaver, Dennis Frazier and Eric Bouchat take questions during the annual State of the County Address hosted by the Carroll County Chamber of Commerce in Westminster Tuesday, Jan. 8, 2018.
Carroll County Commissioners, from left, Steve Wantz, Ed Rothstein, RIchard Weaver, Dennis Frazier and Eric Bouchat take questions during the annual State of the County Address hosted by the Carroll County Chamber of Commerce in Westminster Tuesday, Jan. 8, 2018. (Dylan Slagle / Carroll County Times)

We’ll admit this much. Non-point source pollution (the diffuse stuff that doesn’t come out of a discharge pipe) has always been a difficult matter for government to address because you can’t just sue a handful of perpetrators. We all bear some responsibility. But that doesn’t make it any less a problem. If the county can’t afford the possible future remedies (technically, the county is already in compliance with its MS4 permit so we’re only talking about the future), it ought to be petitioning the state and federal governments for relief. We hear there’s a governor in Annapolis who prides himself on being against requiring the state’s largest subdivisions to impose stormwater-related fees (which he likes to call a “rain tax”). In the meantime, the commissioners ought to seriously consider taking ownership of the pollution that comes out of Carroll County after every rainstorm. Instead of paying high-priced lawyers to enable nitrogen, phosphorus, sediments and other harmful ingredients in the runoff that is slowly killing the nation’s largest estuary, they ought to be taking more steps to reduce it. Better to fix the pipe than throw money down the drain.

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