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MoCo judge tells state to rewrite county’s stormwater runoff regulations

ROCKVILLE – A Montgomery County Circuit Court judge has sent the county’s stormwater runoff regulations back to the Maryland Department of the Environment for a rewrite.

Judge Ronald B. Rubin ruled from the bench Wednesday afternoon that the permit issued by MDE needs to spell out clear benchmarks, guidelines and standards, rather than ordering the county to follow “best management practices.”

“I do not understand what the agency did and why it did it,” Rubin said. “It’s impossible to understand what the county is supposed to do and how to do it.”

Jay Apperson, a spokesman for MDE, said the agency would review a forthcoming written order and “respond properly.”

Rubin did not set a deadline for MDE to make the revisions.

Jennifer C. Chavez, a lawyer for Anacostia Waterkeeper Inc., Potomac Waterkeeper Inc. and two county residents who challenged the permit, was pleased with Rubin’s decision.

“The judge’s ruling could not be more on point,” said Chavez, a lawyer with Earthjustice, a Washington D.C., nonprofit public interest law organization. “When you start reading [the permit], you see there’s no ‘there’ there.”

MDE initially granted Montgomery County the permit in 1996 and has renewed it several times since in consultation with the U.S. Environmental Protection Agency. The permit, which ensures the county’s compliance with the federal Clean Water Act, also specifically allows stormwater runoff discharges for the towns of Chevy Chase, Chevy Chase Village, Kensington, Somerset, Poolesville and Village of Friendship Heights.

The plaintiffs first challenged proposed revisions in December 2008 during a public comment period and requested a public hearing in March 2009, touching off a legal battle over whether they had standing to seek a public hearing. An administrative law judge said they did not, a decision upheld by Rubin in October 2011. But a Court of Special Appeals panel in January 2013 reversed Rubin and sent the case back to him.

Montgomery County has used the permit since 2010 even as the standing issue was being litigated.

In Rockville on Wednesday, Chavez reiterated her arguments that the permit, as written, did not comply with state water quality standards, did not have enough monitoring to ensure compliance and provided no deadlines for meeting standards.

“It’s basically based on wishful thinking,” she said. “There’s no accountability in this permit.”

Nancy W. Young, an assistant attorney general with MDE, said the permit requires the county to provide annual reports of its performance. She acknowledged a lot of regulations in the permit were “incorporated by reference” but said the county must submit annual reports on its progress.

“These stormwater management controls are powerful,” she said. “The state is serious about meeting water quality standards.”

Walter E. Wilson, an associate county attorney, said the permit met federal Clean Water Act standards and was one of the most stringent in the state and country.

But Rubin repeatedly pressed Young and Wilson to point out specific details and clear benchmarks in the permit.

“How would I measure that?” the judge asked Wilson at one point.

“It largely boils down to following best management practices,” Wilson replied.

That was not enough for Rubin.

“If the county doesn’t know how to do it, it gives me pause,” he said.

Relying on best practices, Rubin said in his ruling, makes it difficult for members of the public to understand if the county is meeting state and federal standards.

“I don’t think there’s sufficient clarity in the permit,” Rubin said. “Best practices change all the time.”

Chavez said that once MDE makes the changes to the permit, the revised permit would be up for public comment as it was back in 2008.