Md. appeals court rejects environmental advocates’ challenge to stormwater permits

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Stormwater permits obtained by Baltimore City and Baltimore County met state and federal legal standards, the Maryland Appellate Court ruled Wednesday.

In a reported opinion written by Judge Douglas R. M. Nazarian, the Maryland Appellate Court rejected environmental advocates’ challenge to the Maryland Department of the Environment’s issuance of municipal separate storm sewer system (MS4) permits, holding that the permits comply with state and federal water quality standards.

The appeal, which consolidated cases initiated in the Baltimore City and Baltimore County circuit courts, saw Blue Water Baltimore, the Chesapeake Bay Foundation and various individuals argue that the permits failed to meet water quality standards of receiving waters and violated the anti-backsliding provision of the Clean Water Act, and that the state agency failed to “consider the totality of information available, resulting in disproportionate impacts.”

According to the opinion, Baltimore City and Baltimore County obtained the MS4 permits as part of Maryland’s watershed implementation plans, developed at the direction of the Environmental Protection Agency. The watershed implementation plans provide a roadmap for how the state would achieve the Chesapeake Bay’s total maximum daily load goals for reducing pollution.

Maryland’s watershed implementation plan is divided into three phases, with the state now in the last phase, which requires Baltimore City and Baltimore County to restore 10% of paved, developed areas during the five-year MS4 permit term.

Paved, or “impervious” surfaces, do not absorb rainwater and reroute stormwater, leading to water pollution and the impairment of water quality. According to the opinion, restoration of these surfaces can involve replacing an impervious surface with material that allows for the absorption of stormwater, in order for the surface to function more like a natural terrain.

“The Department exercised its discretion and implemented water quality-based effluent limitations in the permits,” the Maryland Appellate Court wrote in its ruling.

While Blue Water Baltimore presented data indicating that water quality is not improving as a result of the MS4 permitting regime, the Department of the Environment argued that the data lacks any causal connection demonstrating that the trends are attributable to Baltimore City’s or Baltimore County’s enforcement of the permits.

The appeals court deferred to the findings of the Department of the Environment, determining that “because there was competent, substantial evidence for the Department to conclude that the permits comply with applicable state and federal water quality standards, we uphold the permits,” the court wrote.

This isn’t the first time the appellate courts have heard challenges to the grant of MS4 permits.

MS4 permitting challenges have reached the Maryland Supreme Court three times, according to the opinion, and all three times, the high court affirmed the Department of the Environment’s authority to issue the permits in question.

Taylor Lilley, counsel for the group of environmental advocates, said the MS4 permits adversely affect Baltimore residents.

“These permits shortchange Baltimore residents suffering from flooding and don’t do enough to prevent polluted runoff to local waterways,” Lilley said in a statement. “When the government’s goal is to meet permit requirements — not reduce pollution and flooding — the residents bear the financial burden of flooded streets and homes.”

In its appeal, Blue Water Baltimore urged the Department of the Environment to consider what the organization describes as inequity among residents if the permits are upheld.

“By allowing under-compliance with stormwater remediation requirements within the Patapsco or Back River watersheds in [Baltimore] County, [the Department] is allowing a more affluent, predominantly white, and populous jurisdiction to eschew pollution and volume reductions to the detriment of the less populous, predominantly Black, and less affluent downstream neighbor, Baltimore City,” Blue Water Baltimore argued.

A spokesperson for the Chesapeake Bay Foundation said the foundation and Blue Water Baltimore are weighing next steps in the case.

A spokesperson for the Maryland Office of the Attorney General declined to comment.