The Maryland Court of Appeals was to hear oral arguments Nov. 5 in three separate cases involving permits issued by the Maryland Department of the Environment that will govern how stormwater is handled within four of Maryland’s largest counties and Baltimore City.
At issue is whether the permits that the MDE issued were strong enough and included enough public notice and public feedback.
The permits, which are governed by the federal National Pollution Discharge Elimination System, last five years each. Maryland began issuing the permits in the mid-1990s after assessing the counties’ stormwater deficiencies. Local governments with more than 100,000 residents are required to have the Phase I permits; smaller governments need a different permit, called Phase II.
It is the Phase I permits that have prompted the litigation. The permits govern how counties manage their stormwater, how they monitor and report pollutants, how they mitigate runoff flow to their streams and how they tackle trash. State regulators hope that codifying such requirements in a permit will help counties and cities tackle stormwater, which is both a fast-growing source of urban pollution and one of the most difficult to tackle given limited budgets and aversion to more fees and taxes.
The first case to be heard is one involving Montgomery County, which had a stormwater program before Maryland required one for its 10 largest jurisdictions in 2012. The Anacostia Riverkeeper is the lead plaintiff on the case, but the Sierra Club, the Patuxent and Potomac Riverkeepers and the Friends of the Earth are also party to the suit.
Next on the docket is a challenge to the permits for Baltimore, Anne Arundel and Prince George’s counties. The environmental group Blue Water Baltimore is the lead plaintiff in that case, which is made up of separate cases that have been consolidated into one case. The Gunpowder Riverkeeper and the Natural Resources Defense Council are also plaintiffs. A third case involves Blue Water and Baltimore City.
The environmental groups said they filed the litigation as a last resort after 18 months of negotiations with the Maryland Department of the Environment in 2013 and 2014, when Robert Summers was secretary of the department and Martin O’Malley was Maryland’s governor. What the groups wanted were permits that addressed specific issues in the various jurisdictions, a robust monitoring program, enforcement and penalties for noncompliance. What they got, said attorney Jennifer Chavez, was vague and nonspecific promises to provide plans to address pollution.
“All of it really ties back to the same theme — we need to have permits that are written to get results. And, monitoring to give us meaningful feedback on what the permits are actually achieving is really important,” said Chavez, an attorney with Earthjustice who is the lead on the Montgomery County case. “Overarching all of this is the accountability and transparency.”
One major problem, Chavez said, stems from a clause in the permit that says the jurisdictions need to convert 20 percent of their impervious surfaces to pervious surfaces to reduce the pollution flowing into streams. That could mean putting in porous pavement, ripping up pavement, making necessary repairs to reduce runoff or adding some best management practices for drainage. But if a rural county like Carroll does 20 percent and a dense city like Baltimore does the same, Chavez asked, did the permit achieve its goal? Did it ask enough of the city? Did it ask too much of the rural county? Should the permits be more tailored to the reality in each subdivision?
Another problem stems from the structure of the permit, which allows counties to have a year to submit their plans for compliance. By the time the public sees the compliance plan, the permit is already in place.
“By then, the ability to challenge it is gone,” said Chesapeake Bay Foundation staff attorney Elaine Lutz, who is involved in the challenge to the Anne Arundel County permit. “It cuts out the public review of those very substantive permit plans.”
Lutz said her office has filed legal challenges against the permits for Charles, Frederick, Howard, Harford and Carroll counties. They have the same basic permits as the counties being challenged in the Nov. 5 hearing, but the state issued them a year later, so the environmentalists waited to file their objections.
Without robust permits that include monitoring and are tied to the pollution limits established in the Chesapeake Bay’s Total Maximum Daily Load, Lutz said, “the state has no chance of meeting their urban stormwater requirements under the Bay TMDL.”
Stormwater is the fastest growing source of urban pollution in the Chesapeake Bay watershed. It’s also one of the most misunderstood. An effort in 2012 in Maryland to collect funds to upgrade stormwater systems was derided as a “rain tax.” Legislators repealed the mandate that the counties set up utilities to charge residents for stormwater treatment, but the counties still have to meet their targets under the pollution diet one way or another. They can choose to charge a fee, use property tax revenues or find some creative financing.
With stormwater, rain falls, hits the streets and carries pollutants with it to streams and rivers. Pollutants include motor oil, fertilizers, pet waste, sediment and litter. Stormwater runoff can also cause stream bank erosion, flooding and damage to aquatic life. In Maryland, which passed a “flush tax” more than a decade ago, residents understood the need to pay more to upgrade treatment plants and keep sewage out of the Chesapeake. They have been less understanding about the stormwater fee, which varied among the jurisdictions. Counties in Western Maryland, the Eastern Shore and the southern portion of Maryland didn’t have to pay it at all, despite rampant development in places like Lexington Park near the Patuxent River Naval Air Station and bustling new developments outside Easton and Cambridge.
Political backlash against the stormwater fee and other fees enacted during the O’Malley administration helped to propel Larry Hogan into the governor’s mansion in January. Since then, counties have been repealing their fees, though some are committing to raise funds to upgrade stormwater treatment through a property tax increase.
The Court of Appeals will hear the arguments and make its ruling within a few months.
The Circuit Court ruled against the environmental groups in the cases of permits for Baltimore and the three counties. The environmental groups appealed to the Court of Special Appeals. But Maryland Department of the Environment lawyers asked if the cases could be consolidated in the highest court and heard along with the Montgomery case. The court agreed.
Chavez won decisively at the Court of Special Appeals in April with the Montgomery case. The three-judge panel for the lower court called the permit requirements “vague” and “simply too general” and said it lacked meaningful deadlines. The judges ordered the document back to the department for revisions.
“The permit does not state with clarity what the permittees will do, how they are to do it, what standards apply, or how one will measure compliance or noncompliance. The permit lacks ascertainable metrics for meeting water quality standards that can either be met or not met,” the judges wrote. “The Court finds that it is not sufficient for the permit to require that permittees engage in best management practices and file annual reports on their activities.”
Summers, the MDE secretary during the drafting of these permits, said that he hoped in his multiple meetings with the environmental groups that he could deter them from filing legal challenges and instead get them to work with the department to strengthen the permits, which come up for reissue every five years. He said the permits weren’t as specific as the groups would like because 10 jurisdictions needed to inventory their stormwater issues and develop plans, and the urgency to issue permits overrode the desire for details. The challenges, he said, were an “unfortunate holdup” to a process that has long been delayed by developers and the difficulty in regulating a source of pollution that’s so diffuse.
Developers have opposed the permits because they didn’t want to spend extra money on state-of-the-art stormwater designs. They have also been vocal opponents of the fee: A Montgomery County developer sued over his $11,000 stormwater fee. In July, a judge agreed the county should limit fees to any costs they incur to treat the private owners’ runoff, stoking fear in other counties that they could be the next target of a lawsuit.
“There were specific requirements in the Montgomery County permit,and they were among the most aggressive requirements in the Bay if not the nation,” Summers said. “To argue the permit was too vague to require action was just wrong. The detriment of filing suit and then continuing to argue this is that it effectively delayed for five years a bunch of other permits, which we did get through recently, but of course those are being challenged as well...I just see it as another opportunity for delay in a program that’s already been delayed significantly and was designed to be something that got progressively stronger with each iteration.”
Summers added that the state needs to issue a permit before a county issues a plan, so the state can address what’s in it. As for monitoring, Summers said, the department requires it, and will continue to do so under the new secretary, Ben Grumbles, who spent much of his career with the EPA.
Summers said he could not persuade the groups to work with a flawed permit and try to make a better one. As a result, he said, the litigation took up staff time that could have better been invested in making the permits more robust.
But Patuxent Riverkeeper Fred Tutman disagreed. Tutman left the television business to become a Riverkeeper after discovering a discharge in his neighborhood that had been allowed under a variance in a permit. His river has long been impaired, and stormwater from development is a major reason.
“Regrettably, the wrong permit pretty much short-circuits the ability to get the right outcome. Working with an agency to tune up a bad permit is a lot more work than getting the right one,” Tutman said. “It’s the only thing we can hold them to. We can’t hold them to meetings and discussions, but we can hold them to regulations and judgments. That’s what we’re fighting for.”