Relating to Real Estate

In a unanimous decision issued March 11, 2016, the Court of Appeals upheld the Maryland Department of the Environment’s (MDE) flexible approach to permitting stormwater discharges from municipal stormdrains in Maryland’s five most populated jurisdictions. Dept. of Env. v. Anacostia Riverkeeper, 447 Md. 88 (2016).

The decision gives substantial deference to MDE’s permitting decisions and allows for flexibility and innovation in how each jurisdiction will meet its stormwater permit requirements.

Stormwater (water from rain and melting snow) collects pollutants including trash, sediment and other substances as it runs over surfaces and then into the ground or into stormdrains before discharging into a water body. MDE issued municipal separate storm sewer system (MS4) permits to Baltimore City and Anne Arundel, Baltimore, Prince George’s and Montgomery counties requiring the local jurisdictions to try to minimize the amount of pollutants that are discharged from their stormwater. Among other requirements, the MS4 permits require Baltimore City and the counties to restore 20% of their impervious surface area and to submit restoration plans and reports on their strategies to reduce stormwater pollution.

Several environmental groups and organizations (which the Court called the Water Groups) challenged the issuance of the permits. The Water Groups argued that the permits were not sufficiently enforceable, because the 20% standard was too vague and the permits did not contain specific and measurable limits on discharges. The Water Groups also argued that because the municipalities would be submitting restoration plans to MDE after issuance of the permits, there was insufficient opportunity for the public to participate in the restoration plans.

The Circuit Court for Montgomery County agreed with the Water Groups and remanded the Montgomery County MS4 permit to MDE to be revised. The Court of Special Appeals affirmed that decision. The Circuit Courts for Baltimore City and Anne Arundel, Baltimore and Prince George’s counties affirmed MDE’s issuance of the MS4 permits in those jurisdictions. The Court of Appeals (Court) granted certiorari in each of the cases and considered all of the appeals together.

The Court of Appeals rejected each of the Water Groups’ arguments. The Court held that the 20% restoration requirement was supported by substantial evidence and that the Clean Water Act “imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants.” The Court recognized that MDE’s “adaptive management approach” allows MDE to impose additional requirements during the term of a permit based on the results of the local jurisdiction’s monitoring.

The Court also held that the MS4 permits were subject to appropriate public participation and rejected the Water Groups’ assertion that the adoption of restoration plans required additional public notice and comment.

The Court’s decision upholds the validity of all of the major MS4 permits in Maryland and affirms MDE’s flexible approach to MS4 permitting. While MDE praised the decision as “a big win for the Chesapeake Bay and local streams and rivers,” the Water Groups have vowed to “continue pressing MDE to issue stronger stormwater pollution limits.”

For additional information regarding stormwater permitting or other water management issues, please contact Michael C. Powell.

Michael C. Powell
410-576-4175 • mpowell@gfrlaw.com