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Justices decline to hear Carroll Co.’s stormwater appeal

The U.S. Supreme Court on Monday let stand without comment a decision that the Maryland Department of the Environment can impose upon counties stormwater pollution-prevention standards more stringent than those called for under the federal Clean Water Act.

The justices refused to hear Carroll County’s appeal of a Maryland high court decision that MDE acted within its Clean Water Act authority when it issued a permit holding the county responsible for stormwater runoff to the Chesapeake Bay not only from the county’s Municipal Storm Sewer Systems – known as MS4s – but from natural “nonpoint” sources such as parking lots and fields.

The county had contended in its request for Supreme Court review that the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit conditions must be limited to a county’s control of stormwater runoff from its MS4s — and cannot include runoff from nonpoint sources. MDE, represented by the Maryland Attorney General’s Office, stated that the federal law imposes no such restriction on states.

The Supreme Court’s refusal to hear the appeal is just that and not a decision on the merits of the arguments. The case was docketed at the Supreme Court as County Commissioners of Carroll County, Md., v. Maryland Department of the Environment, No. 19-592.

In its failed bid 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, Virginia-based law firm specializing in permitting requirements under the Clean Water Act.

In its successful request that the justices not hear the appeal, MDE stated that federal courts have regarded the Clean Water Act as setting minimum requirements for pollution prevention.

“This power to regulate pollution in a way that is more stringent or more extensive than federal law requires has been exercised by Maryland’s General Assembly, through legislation authorizing the department to set pollution control standards that are ‘at least as stringent as those specified by the National Pollutant Discharge Elimination System,’” wrote Assistant Maryland Attorney General Adam D. Snyder, MDE’s counsel of record before the justices.

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

The court 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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