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Stormwater runoff in Baltimore city. The Court of Appeals last week ruled against environmental organizations which argued the Maryland Department of the Environment's stormwater permits for Baltimore and several Maryland counties were unlawfully vague because the agency did not provide clear benchmarks, guidelines and standards for stormwater. (Maximilian Franz/The Daily Record)

Md. high court upholds stormwater permitting process

In a defeat for environmentalists, Maryland’s top court has unanimously upheld the state’s pollution-prevention permitting process for stormwater control.

Environmental organizations had challenged the Maryland Department of the Environment’s permits for Baltimore and several Maryland counties as unlawfully vague, saying the MDE failed to provide clear benchmarks, guidelines and standards for stormwater control. Without clear direction, the state and local efforts to protect Maryland rivers and the Chesapeake Bay from stormwater-driven pollution would be “like an endless marathon with no finish line,” the groups’ attorney, Jennifer C. Chavez, had told the Court of Appeals.

But in a 98-page opinion, the high court said Friday that MDE’s permitting process satisfied federal monitoring requirements under the Clean Water Act and U.S. Environmental Protection Agency regulations. The Court of Appeals also said the environmental groups had sufficient notice of the pending permits and an opportunity to be heard before their issuance.

Ben Grumbles, MDE’s secretary, hailed the court’s ruling as “a big win for the Chesapeake Bay and local streams and rivers.”

The decision “supports our approach of combining accountability and flexibility to help local governments find practical solutions to reduce polluted stormwater runoff,” Grumbles said in a statement Friday.

Chavez on Monday called the court’s decision “a setback” to the right of the public in general, and environmental groups in particular, to know what specific actions counties will take to reduce stormwater-pollution.

“That will make our work more difficult,” said Chavez, of Earthjustice, a Washington D.C., environmental advocacy group.

Earthjustice is continuing to review the high court’s decision and evaluating its next step, she added.

‘Flexible approach’

At issue before the high court was the validity of MDE’s Municipal Separate Storm Sewer System, or MS4, discharge permits that required Baltimore and the counties to meet a 20 percent stormwater restoration requirement and mandated they submit reports on their strategies to address waste allocations. The environmental groups, including Riverkeeper organizations and the Sierra Club, had challenged the 20 percent standard as vague and not in keeping with Clean Water Act and EPA regulations.

The groups said the permits lack specific runoff-prevention actions and deadlines for the jurisdictions and thus are not clear, enforceable and subject to scrutiny by environmental groups and the general public.

But the high court, in ruling for MDE, said the Clean Water Act “imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants.”

The act “provides a flexible approach to MS4 permitting,” Judge Sally D. Adkins wrote for the court. “Moreover, this approach contemplates that states shall set controls they deem necessary to reduce the discharge of pollutants into their waters.”

The MDE’s 20 percent standard is supported by substantial evidence gleaned from studies that resulted in the state’s Watershed Implementation Plan for restoring the Chesapeake Bay, the high court said. These studies show that the 20 percent requirement was neither arbitrary nor capricious, the court added.

The Court of Appeals issued its opinion in three cases consolidated into one.

In one case, the high court reversed decisions by the Montgomery County Circuit Court and the Court of Special Appeals, which had found MDE’s permits to be vague.

In the other two cases, the Court of Appeals affirmed decisions in favor of MDE by the Anne Arundel County, Baltimore City, Baltimore County and Prince George’s County circuit courts.

The three cases are Maryland Department of the Environment et al. v. Anacostia Riverkeeper et al., No. 42 Sept. Term 2015; Blue Water Baltimore et al. v. Maryland Department of the Environment, No. 43, Sept. Term 2015; and Blue Water Baltimore et al. v. Maryland Department of the Environment et al., No. 44, Sept. Term 2015.