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Justices show interest in Carroll County’s stormwater appeal

The U.S. Supreme Court has shown an interest in hearing Carroll County’s argument that the Maryland Department of the Environment imposed upon the county stormwater pollution-prevention standards more stringent than those permitted under the federal Clean Water Act.

The high court last week told the department to respond to the county’s contention that the act’s National Pollutant Discharge Elimination System (NPDES) permit conditions must be limited to a county’s control of stormwater runoff from its storm sewer systems — and cannot include runoff from natural, “nonpoint” sources such as parking lots or fields.

Carroll County is urging the justices to review and overturn a Maryland high court ruling that the Maryland Department of the Environment (MDE) acted within its Clean Water Act 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 nonpoint sources.

The Maryland Attorney General’s Office, which represents MDE, had waived the department’s right to respond to the county’s petition for Supreme Court review unless the justices specifically requested a response. The requested response is due Dec. 26, the Supreme Court stated.

Assistant Maryland Attorney General Adam D. Snyder is MDE’s counsel of record at the Supreme Court.

In its bid for Supreme Court review, Carroll County has the support of nearly 10 national and state organizations representing public stormwater management agencies.

The organizations, in a joint brief to the justices last week, argued that extending the public agencies’ management obligations to nonpoint sources would not only violate the Clean Water Act but impose massive costs on rate- and taxpayers, who ultimately pay for the extended coverage.

The public agencies are “stewards of public health, the environment, and public funds, whose work requires substantial investment in major infrastructure projects designed to have the greatest environmental impact within limited ratepayer dollars,” wrote Aaron H. Herzig, the groups’ counsel of record before the justices. “Requiring (the agencies) to address discharges that are not within their boundaries, do not discharge to their systems, and over which they have no control, threatens their ability to complete necessary projects and meet existing regulatory obligations.”

Herzig is with Taft Stettinius & Hollister LLP in Cincinnati.

The justices have not set a date for a vote on whether to hear the county’s appeal. The case is docketed at the high court as County Commissioners of Carroll County, Md., v. Maryland Department of the Environment, No. 19-592.

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

In its request for Supreme Court review, 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.

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.

In its controversial decision, 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 MDE 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 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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