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CSA revives suit over Montgomery County storm system

A Maryland appeals court has revived a water-pollution lawsuit over a municipal storm system permit the state issued to Montgomery County in 2009, saying the environmental groups who brought the claim can sue because one of their members is an “avid paddler” in the allegedly polluted Potomac River.

The Court of Special Appeals reversed a ruling by a county judge, who said the Potomac Riverkeeper and Anacostia Riverkeeper lacked standing to sue because none of their members had alleged a specific injury as a result of the permit.

While that was the standard when the groups first filed their administrative action in 2009, a broader law went into effect on Jan. 1, 2010. The appellate court said the Judge Ronald B. Rubin should have used the newer standard when the case got to Montgomery County Circuit Court in September 2010.

Under the broader standard, an environmental group has standing so long as one of its members alleges a “demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants” and has a “demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future,” the appellate court said Monday in a unanimous but unreported opinion.

The newer standard was satisfied based on the claim of Mac Thornton, a Potomac Riverkeeper board member, that he is an “avid paddler” who has canoed and kayaked on the Potomac River and its tributaries since 1974 and has “experienced the strong, unmistakable odor of sewage,” Judge Kathryn Grill Graeff wrote for the panel.

Jennifer Chavez, an attorney for the environmental groups, said she was pleased with the decision but voiced surprise that standing was even an issue in the case.

The law is fairly settled that a group can sue if a member, such as Thornton, regularly uses the waterway and claims to see and smell the pollutant, she added.

“It’s pretty unusual for us to be fighting in this day and age over standing,” said Chavez, of the San Francisco-based environmental law group Earthjustice.

Standing is “not even a close question in this case,” she added. “Here we have members testifying that they kayak and fish.”

Chavez said the Maryland Department of Environment unlawfully issued the permit without specifying limits on the discharge of pollutants, such as fecal bacteria.

“It’s time for them to insert some meaningful enforceable controls into the permit,” she said. “It just doesn’t do the job.”

MDE spokesman Jay Apperson defended the agency’s permit.

“The municipal storm water permit for Montgomery County is arguably one of the most progressive in the country,” he said. “It’s a model for subsequent storm water permits.”

Apperson added the agency will “have to review the court’s decision before making any determination on any next steps.”

The Riverkeeper groups allege pollutants leached into the Potomac River in the years following the MDE’s 1996 issuance of a permit — required under the federal Clean Water Act — designed to regulate the discharge of storm water runoff from the storm drain system the county owns and operates.

During a 2008 renewal process, the groups submitted comments calling the permit’s erosion, sediment and refuse control requirements insufficient.

In March 2009, the MDE announced its decision to renew the permit and stated that individuals who believe they will be harmed as a result of the permit could request a contested case hearing.

The Riverkeeper groups, including Thornton, raised objections, which were referred to the Office of Administrative Hearings. MDE challenged the objections, saying the groups had no standing.

An administrative law judge agreed with the agency in June 2009, and the groups sought judicial review in Baltimore County Circuit Court. The case was transferred in September 2010 to Montgomery County Circuit Court, where Thornton resides.

Rubin dismissed the case in October 2011, citing the law on standing in effect when the case was brought.

But the Court of Special Appeals reversed Rubin and remanded the case to the circuit court.

Joining Graeff’s unreported opinion were Judges Albert J. Matricciani Jr. and Lawrence F. Rodowsky, a retired jurist sitting by special assignment.

The unreported opinion is available as RecordFax #13-0107-03, 26 pages.