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High court defers to MDE, upholds agency’s stormwater permits

The Maryland Department of the Environment validly imposed stormwater-protection standards on two counties more stringent than the counties’ population sizes would generally call for under the law and legitimately mandated that they reduce polluting discharges beyond “the maximum extent practicable,” as stated by statute, a sharply divided Maryland high court has ruled.

In its 4-3 decision Tuesday, the Court of Appeals rejected Frederick and Carroll counties’ argument that MDE exceeded its statutory authority and acted arbitrarily in issuing them Municipal Separate Storm Sewer System (MS4) discharge permits reserved for more populous jurisdictions. MDE also set pollution-control standards, designed to prevent runoff to the Chesapeake Bay, beyond the federal Clean Water Act’s practicability standard, the counties contended in vain.

By the slimmest of majorities, the high court said deference is generally owed to government agencies when interpreting their controlling statutes and regulations. The court added that the MDE gave due consideration to the counties’ concerns before issuing MS4 permits.

In its 99-page majority decision, the Court of Appeals found significant Frederick and Carroll’s failure to object until 2014 to MDE’s issuance of the stringent Phase I discharge-control requirements reserved for more populous jurisdictions, such as Montgomery and Baltimore counties.

Carroll and Frederick “have at the very least acquiesced in that classification since the 1990s,” Judge Robert N. McDonald wrote for the majority.

“There is thus no question that the agencies charged with administering the Clean Water Act have consistently regarded the counties as Phase I MS4s and that there is a reasonable basis for doing so,” McDonald added. “The counties’ delay in challenging their Phase I designation perhaps means that the department did not exercise its designation authority more formally in the past, but that does not require that we direct that they now be treated as Phase II jurisdictions.”

Regarding the “maximum extent practicable,” or MEP, limitation, the high court said the Clean Water Act and its implementing regulations left enough leeway to enable the Maryland Department of the Environment to determine the extent of what is “practicable,” an ambiguous term whose definition was left to the enforcement agencies.

“When Congress was considering the legislation that added the MS4 permit requirements to the act, legislators often spoke in general terms about achieving water quality standards without elaborating on the MEP standard or addressing whether that standard should apply to every pollutant in an MS4 permit,” McDonald wrote. “In the end, what legislative history exists is not very illuminating on the role of the MEP standard.”

Frederick County Attorney John S. Mathias said Wednesday that no decision has been made on whether to appeal the decision to the U.S. Supreme Court.

“We’ve got some time to decide,” Mathias said.

“We are still trying to absorb 126 pages of the court’s decision (and dissents) and decide what we will do,” he added. “We will comply with the MDE permit and continue to do what’s best for these waters.”

MDE Secretary Ben Grumbles said in a statement Wednesday that “we are committed to working closely with Carroll County and every other county on reducing water pollution and protecting the Chesapeake Bay.”

Carroll County Attorney Timothy C. Burke did not return a telephone message Wednesday afternoon seeking comment on the Court of Appeals’ decision.

McDonald was joined in the opinion by Chief Judge Mary Ellen Barbera and retired Judges Clayton Greene Jr. and Sally D. Adkins, who were sitting by special assignment.

In dissent, Judge Shirley M. Watts stated that the term “maximum extent practicable” is not ambiguous and represents a “ceiling” of pollution control beyond which  the MDE cannot demand, as it did in issuing the Phase 1 MS4 permits to Frederick and Carroll. In addition, the misclassification of the counties as Phase 1 cannot be excused by deference to the agency or past acquiescence by Frederick and Carroll, added Watts, who was joined in dissent by Judges Michele D. Hotten and Joseph M. Getty.

“The MDE, not the counties, has been in the driver’s seat when it comes to classification and permitting,” Watts wrote.

“Without a doubt, government protection of the environment has a sustaining and welcome purpose,” Watts added. “Indeed, protecting and fostering the health of the environment is an important goal in today’s society, now more than ever. But the government must follow the statutes and regulations that it establishes. Misapplication of environmental statutes and regulations serves no purpose and will result in diminishment of regard for the law.”

Getty, in a separate dissent, cautioned the court against deferring too readily to governmental agencies in their interpretations of statutes and regulations, as that function is reserved for the judiciary.

“Granting an agency controlling authority over the interpretation of its own governing regulations amounts to an abdication of this court’s essential duty to interpret and apply the law,” Getty wrote. “By nonetheless affording controlling weight to the department’s post-promulgation views of its governing regulations, our ruling today perpetuates a longstanding inequity, and risks foreclosing judicial review to litigants seeking to challenge administrative overreach.”

The Court of Appeals rendered its decision in the consolidated cases Maryland Department of the Environment v. County Commissioners of Carroll County, Md. and Frederick County, Md., v. Maryland Department of the Environment, Nos. 5 and 7, September Term 2018.

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