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Carroll Co. seeks Supreme Court review of stormwater obligation

The Maryland Department of the Environment imposed upon Carroll County stormwater pollution-prevention standards more stringent than those permitted under the federal Clean Water Act, the county is arguing in urging the U.S. Supreme Court to review and overturn a decision that upheld MDE’s imposition.

In papers filed with the justices last week, Carroll stated the act’s National Pollutant Discharge Elimination System permit conditions apply to a county’s control of stormwater runoff from its storm sewer systems and not to runoff from natural, “nonpoint” sources such as parking lots or fields.

Thus, Maryland’s top court wrongly held that the department acted within its statutory authority when it issued an NPDES permit holding Carroll County responsible for stormwater runoff to the Chesapeake Bay not only from its Municipal Storm Sewer Systems – known as MS4s —  but from non-point sources, the county stated in its petition for Supreme Court review.

In its 4-3 decision, the Court of Appeals said deference is owed to MDE’s interpretation of the NPDES permitting requirement.

In its appeal, the county said deference is not owed because the department’s broad reading of the law was clearly wrong.

“The Court of Appeals of Maryland’s decision has interjected substantial uncertainty and dramatically expanded the regulatory liability of MS4 owners by amending the jurisdictional scope of the NPDES program to include nonpoint source runoff that is not otherwise regulated by the Clean Water Act, as well as by transferring responsibility to the MS4 owner for third parties’ discharges that are not operated by the MS4 permittee,” wrote Christopher D. Pomeroy, the county’s counsel of record at the Supreme Court. “Guidance from this (Supreme) Court is needed to stop states from misconstruing the Clean Water Act to expand the jurisdictional scope of the NPDES permit program for MS4s beyond the clear intent of Congress.”

Pomeroy is with AquaLaw PLC, a Richmond, Va.-based law firm specializing in permitting requirements under the Clean Water Act.

On Tuesday, MDE told the justices it would not respond to the county’s petition for Supreme Court review unless they request a response. MDE is represented by Assistant Maryland Attorney General Adam D. Snyder.

The Supreme Court has not stated when it will vote on the county’s petition in the case, County Commissioners of Carroll County, Maryland v. Maryland Department of the Environment, No. 19-592.

Frederick County, which also unsuccessfully challenged the legality of a similar MDE-issued permit in the Court of Appeals, opted not to seek review by the U.S. Supreme Court.

Frederick County Attorney John S. Mathias said Tuesday that county leaders concluded it was not worth the expense to mount a Supreme Court appeal in light of the few cases the justices choose to review.

“The U.S. Supreme Court is very selective,” Mathias added.

In its controversial decision last August, the Court of Appeals seized on the Clean Water Act’s call that pollution be reduced to the “maximum extent practicable,” or MEP, in upholding MDE’s permit for Carroll County. The court said the law’s reduction standard enables the Maryland Department of the Environment to determine the extent of what is “practicable,” an ambiguous term whose definition Congress 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,” Judge Robert N. McDonald wrote for the majority. “In the end, what legislative history exists is not very illuminating on the role of the MEP standard.”

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.

“Without a doubt, government protection of the environment has a sustaining and welcome purpose,” Watts wrote. “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.”

Judges Michele D. Hotten and Joseph M. Getty joined Watts’ dissent.


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