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Timothy B. Wheeler is managing editor and project writer for the Bay Journal. He has more than two decades of experience covering the environment for The Baltimore Sun and other media outlets. .(JavaScript must be enabled to view this email address).

Maryland stormwater permits upheld, rejecting complaints they’re not tough enough

State appeals court sides with state regulators; environmental groups file another suit against EPA over tributary cleanup plans

  • March 11, 2016

Environmental regulators acted within the law in giving Maryland’s largest localities some leeway in deciding how to reduce polluted runoff from their streets, buildings and parking lots, the state’s highest court has ruled.

In a unanimous 100-page opinion, the Court of Appeals on Friday dismissed complaints by several environmental groups that stormwater pollution discharge permits issued by the state were not sufficiently stringent and had been drafted without adequate public input.

The groups — including Waterkeepers Chesapeake and the Chesapeake Bay Foundation — had gone to court to challenge stormwater permits given by the Maryland Department of the Environment to Baltimore city and Anne Arundel, Baltimore, Prince George’s and Montgomery counties. 

A Montgomery County Circuit Court judge had sided with the challengers, ordering the state to revise its permit for that county. But judges in the other jurisdictions had deferred to the state agency.

Ben Grumbles, Maryland’s environment secretary, called the decision a “big, big win” for the Chesapeake Bay and its rivers.

“The ruling supports our approach of combining accountability with flexibility to help local governments find practical solutions to reducing polluted stormwater runoff,” Grumbles said in a statement.

Environmentalists said they were disappointed, as they had contended that the permits issued by the state were so vague as to be virtually unenforceable.

“What we were fighting for were tighter permits, with very clear compliance benchmarks,” said Paul Smail, a Bay Foundation lawyer. “The Court of Appeals obviously didn’t agree with our arguments.”

Stormwater runoff is a significant source of the nutrient and sediment pollution that causes water quality problems in the Chesapeake Bay and its tributaries, and it’s the only source of those pollutants that’s growing, according to the federal-state Bay Program partnership.

Under the federal Clean Water Act, large municipalities and counties must take steps to reduce runoff. Their discharges via storm drains into rivers and streams are treated like an industry’s, with regulators issuing the localities permits that spell out steps they must take to curtail storm water pollution over the next five years.

The permits that the MDE issued called for the localities to control or treat runoff from 20 percent of their land that is paved or covered by buildings. The environmental groups argued that that and other permit requirements were not specific enough, and that the public didn’t get a chance to review and comment on what their communities would be doing to comply.

But the appeals court deferred to the regulators and ruled that the department was not required by law to impose any stricter or more specific requirements.

The environmental groups still have one appeal pending over their complaint that Baltimore city, in particular, was not required to do enough to root out illicit discharges into its storm sewers. Betsy Nicholas, executive director of Waterkeepers Chesapeake, said the groups would decide whether to pursue that case in light of the appeals court’s ruling on the others.

The high court’s decision comes just a few days after the Waterkeepers filed another suit over Maryland’s pollution reduction efforts. That complaint challenges the Environmental Protection Agency’s approval of a decision by state regulators not to prepare pollution reduction plans for 53 river and stream segments in the state that were deemed impaired by nutrient and sediment pollution.

Instead of drawing up individual pollution plans — formally known as “total maximum daily loads,” or TMDLs — for each of the waterways, state officials opted to apply the pollution reduction requirements called for in the Chesapeake Bay TMDL to all of them.

The challengers contend that amounts to a “one-size-fits-all” approach to reducing pollution, when water-quality problems in Chesapeake tributaries may vary and in many cases may be more severe than in the Bay proper.

“The Patapsco and Back rivers … from year to year, they consistently score worse than any other segment and the Bay itself” in measures of water quality, pointed out David Flores, the Baltimore Harbor Waterkeeper. Without more sampling and investigation to identify problems in each tributary, Flores added, “we don’t have assurance that all significant sources of pollution in our water are really being addressed.”

An EPA spokesman declined to comment on the lawsuit. But Lee Currey, MDE’s science services director, defended the consolidation, saying it saved time and labor to apply the Bay TMDL instead of drawing up 53 individual plans.

The state lacks funds to do extensive water quality monitoring in each river and stream, he said. But he denied that local waterways are getting short shrift as a result. Those information gaps are being filled in, he suggested, by increasingly sophisticated computer modeling used to prepare the Bay TMDL, which can simulate conditions where no samples have been taken.

“The Bay TMDL is protective not only of the mainstem of the Bay but of those tributaries of the Bay,” Currey said.

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About Timothy B. Wheeler
Timothy B. Wheeler is managing editor and project writer for the Bay Journal. He has more than two decades of experience covering the environment for The Baltimore Sun and other media outlets. .(JavaScript must be enabled to view this email address).
Read more articles by Timothy B. Wheeler


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