Maryland Court Overturns Montgomery County Stormwater Permit
On April 2, 2015, the Maryland Court of Special Appeals issued an opinion in Maryland Department of Environment v. Anacostia Riverkeeper [i] that will fundamentally change the way the Maryland Department of Environment ("MDE") issues Phase I Municipal Separate Storm Sewer System ("MS4") Permits in Maryland. The decision is likely to force MDE to revise a number of counties' MS4 permits, and may spur the imposition of additional stormwater controls on "upstream" development projects that discharge stormwater to County storm drains. At a minimum, it will result in a continued judicial and regulatory focus on stormwater discharges as the counties and the State attempt to meet federally-mandated 2017 and 2025 Chesapeake Bay cleanup standards.
MS4 Permits are issued to large jurisdictions in order to control the discharge of pollution in stormwater.[ii] At issue in the case was Montgomery County's 2009 MS4 permit. The Court criticized the permit's lack of enforceable limits on pollution discharges and failure to impose a compliance schedule. In particular, the Court focused on the lack of accountability as to how the County would achieve its Total Maximum Daily Load ("TMDL") objectives or how it would meet the requirement to treat twenty percent of its impervious surfaces. The Court also found fault with the permit's reliance on outside "implementation documents" because there could be no meaningful public participation in the MS4 permit process, especially when implementation documents were finalized after the issuance of the MS4 Permit.
All development that results in discharge of stormwater in MS4 jurisdictions will ultimately have to conform to the terms of the applicable MDE-issued MS4 Permit. Under this new ruling, the permits will need to have increased specificity and accountability. The ten Maryland Phase I MS4 jurisdictions will be required to increase monitoring to determine the effectiveness of stormwater retrofits and best management practices. MDE will be forced to move away from its prior flexible MS4 permitting process and require permittees to demonstrate how its restoration and retrofit projects will ensure compliance with TMDL requirements.
If you have questions regarding this case, stormwater regulations, or the other regulatory programs associated with Chesapeake Bay TMDL, please contact members of Linowes and Blocher's Environmental Practice Group:
Charles R. Schaller at 443-949-3793 or firstname.lastname@example.org
Benjamin S. Wechsler at 443-949-3128 or email@example.com
Megan M. Roberts-Satinsky at 443-949-3791 or firstname.lastname@example.org
[i] (Sept. Term 2013, No. 2199).
[ii] The MS4 jurisdictions are Anne Arundel County, Baltimore City, Baltimore County, Carroll County, Charles County, Frederick County, Howard County, Harford County, Montgomery County, Prince George's County, and the Maryland State Highway Administration.
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