Ruling Throws into Question Numerous State-Issued Municipal Stormwater Permits Intended to Clean Up the Chesapeake Bay

HIGHLIGHTS:

  • The Maryland Court of Special Appeals (CSA) issued a significant decision in Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., holding that the Municipal Separate Storm Sewer Permit (MS4) issued by the Maryland Department of the Environment (MDE) to Montgomery County, Md., violated the Federal Clean Water Act (CWA) and state of Maryland law.
  • The CSA held that the permit was not specific enough to allow for adequate public comment and did not provide meaningful deadlines to measure compliance with water quality goals. The decision could be reversed or modified by the Maryland Court of Appeals should it decide to review the ruling.
  • MS4 permits are considered by EPA to be the "regulatory backbone" necessary to help achieve the Chesapeake Bay total maximum daily load (TMDL) plan issued in 2010 by EPA to clean up the Chesapeake Bay watershed. The seven jurisdictions affected are the District of Columbia, Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia.

The Maryland Court of Special Appeals (CSA) issued a significant decision in Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., holding that the Municipal Separate Storm Sewer Permit (MS4) issued by the Maryland Department of the Environment (MDE) to Montgomery County, Md., violated the Federal Clean Water Act (CWA) and state of Maryland law. On April 2, 2015, the court held that the permit was not specific enough to allow for adequate public comment and did not provide meaningful deadlines to measure compliance with water quality goals. MS4 permits are required under federal and state law to address stormwater runoff impairing water quality and to ensure that the municipalities manage, implement and enforce stormwater management programs to comply with Maryland's receiving water quality standards. The decision could be reversed or modified by the Maryland Court of Appeals should it decide to review the ruling.1 However, if the decision stands, it could have major implications for the Chesapeake Bay cleanup program and could force MDE and EPA to reassess MS4 permits that have recently been issued to counties and municipalities in Maryland to meet Bay cleanup goals.

MS4 Permits Serve as the "Regulatory Backbone"

EPA believes that MS4 permits are the "regulatory backbone" necessary to help achieve the Chesapeake Bay total maximum daily load (TMDL) plan issued in 2010 by EPA to clean up the Chesapeake Bay watershed. The Bay TMDL is essentially a "pollution diet" encompassing a 64,000-square-mile watershed and identifying the necessary pollution reductions for major sources of nitrogen, phosphorus and sediments across the following jurisdictions:

  • District of Columbia
  • Delaware
  • Maryland
  • New York
  • Pennsylvania
  • Virginia
  • West Virginia

The TMDL was 10 years in the making, including a two-year public participation effort and the formulation of detailed Watershed Implementation Plans (WIPs) by each of the seven jurisdictions explaining how they will meet pollution allocations. The end result was a pollution diet that calls for reductions by 2025 of the following:

  • 25 percent less nitrogen
  • 24 percent less phosphorus
  • 20 percent less sediment

The comprehensive pollution diet incorporates accountability measures and clearly identifies goals and appropriate timelines in hopes of obtaining cleanup of the Bay and the region's streams, creeks and rivers by 2025 with an interim goal of achieving at least a 60 percent reduction in loads by 2017. The Bay TMDL is intended to further the overall goal of the CWA to restore the "Waters of the United States" so that they are "fishable" and "swimmable." In 2013, a federal court in Pennsylvania upheld the Bay TMDL and a decision is expected on the appeal of that ruling this year by the U.S. Court of Appeals for the Third Circuit.2 Most of the Chesapeake Bay and its tidal waters are listed as impaired because of excess nitrogen, phosphorus and sediment that enter the water from agricultural operations, concentrated animal feeding operations (CAFOs), urban and suburban stormwater runoff, wastewater facilities, air pollution and other sources. Maryland contributes 17 percent of the sediment loads delivered to the Bay and EPA has been working closely with MDE and counties and municipalities in the state to develop MS4 permits designed to reduce sediment-laden stormwater needed to achieve the TMDL's ambitious goals.

Litigation Reaches the Maryland Court of Special Appeals

The Montgomery County permit challenged in this case was issued in February 2010 for a five-year period and specifically required the county to "implement or install best management practices on twenty percent of the impervious surfaces within the County in an effort to restore the pollution reductions functions performed by undeveloped land" and to submit "a long term schedule for completion of detailed assessments of each watershed in the County." The Permit also called for pollution controls that included "management programs designed to control storm water discharges to the maximum extent practicable" along with implementing updated storm water design polices and principles and to "maintain programmatic and implementation information." The Anacostia Riverkeeper, an advocacy organization, challenged the permit. In December 2013, the Montgomery County Circuit Court held that the permit failed to ensure compliance with state water quality standards and effluent limitations under section 303(a)(1) of the CWA. The court also found that the permit relied on a vague "best management practices" standard that "did not state with clarity ... how one will measure compliance or noncompliance [and] lacks ascertainable metrics for meeting water quality standards." The court further held that "the permit's requirements to restore 20% of impervious surface is simply too general to show how permittees will meet water quality standards."

In a comprehensive 40-page opinion, the Maryland Court of Special Appeals agreed with MDE that the permit does not require an MS4 permittee to meet state water quality standards because the 1987 amendments to the CWA created a different standard for municipal storm water permits than for industrial stormwater sources – namely that MS4 permits must meet the "maximum extent practicable" (MEP) standard under section 402(p)(3) rather than the more prescriptive standard in section 303(a)(1) of ensuring compliance with water quality standards. The court relied on the Ninth Circuit's opinion of Defenders of Wildlife v. Browner3in which Congress determined that municipal stormwater discharges differed from industrial discharges. Therefore, best management practices (BMPs) to the MEP was a more appropriate standard for controlling municipal stormwater.

However, the legal standard was the only basis of agreement with MDE. Rather, the CSA found that while the permit may have complied with technical notice and comment rules, the permit failed to meet the requirements of the CWA and state law on two levels:

  1. "It failed to comply from a practical point of view because it omits or obscures important elements leaving anyone not an expert unable to decipher it. ... The permit contained aspirational goals rather than particularized objectives [and is] impossible to discern when the county would have to complete critical tasks."
  2. The permit fails as a substantive matter because "it does not contain ascertainable metrics that defines how the County must comply, or whether at some point it has complied with what all agree are two of the Permit's most important terms: regulation of TMDLs and the twenty percent requirement."

As to the first failing, the CSA focused heavily on the failure of the permit to provide sufficient and specific information to allow for the public to fairly comment on it. The permit "deferred the process of defining important substantive provisions, (TMDL implementation plans, SWMP, etc.), until well after approval" noting that "the public can't comment on a program that doesn't yet exist and by the time the program did exist, the time for comment on it had passed." The permit also did not contain sufficient information on monitoring and reporting and relied too much on incorporating outside sources (such as the state's BMP manual) so as to prevent "someone outside the [permit negotiations] to tell where to look to understand the Permit or how to challenge its terms." Thus, "there is not enough in it for the public fairly to comment on it."

As to the second failing, the CSA held that the permit failed to address the two most important elements, "[namely] the twenty percent requirement and setting of TMDLs." It contained no meaningful deadlines or ways to measure compliance, does not "connect specific or measurable BMPs or various management programs [and] requires no justification for why a BMP strategy was selected and how that program or strategy will reduce discharges to the maximum extent practicable." Most significantly, the CSA held that the permit fails to explain how "anyone can define the universe of impervious surfaces or how specific BMPs will achieve the 20% impervious restoration requirement under the permit." While the CSA agreed with MDE that the BMPs must be flexible enough to adopt them to the highly variable nature of stormwater discharges, it held that "even those flexible standards have to be expressed in a way that gives meaning to the permit ... ." Finally, the CSA agreed with Anacostia that the permit "lacks the necessary clarity for attaining TMDL requirements" noting that the county "is left to design [TMDL] implementation programs after the final permit is approved [and that] the Plans do not become [an] enforceable condition of the permit."

Implications of the CSA Decision

Should the CSA decision stand, it could profoundly impact the MS4 permits issued by MDE over the past year after careful review and approval by EPA and also affect the larger issue of how states and localities can work to achieve Bay cleanup goals. As of December 2014, MDE issued eight final MS4 permits to major Maryland counties and municipalities.4 Those permits rely on flexible programs and practices that allow for public participation as watershed assessments are completed and restoration plans are developed. They do not include the kind of prescriptive provisions, such as specific and measurable programs and practices that the CSA found are required to comply with the CWA and state law. Rather, the permits are premised on a flexible "iterative process" that allows for permittees to develop restoration plans with public input after the permits are issued to demonstrate that they are working towards achieving pollution reduction targets such as the 20 percent retrofit requirement. Several permits have been challenged in state court and recently in the Circuit Court in Anne Arundel County that upheld MDE's and EPA's approach finding that the permit does have adequate tracking implementation and water quality monitoring provisions.5

Revisions of MS4 permits to address the CSA ruling could also create practical and legal difficulties regarding the reissuance of valid MS4 permits. MDE would have to identify specific and measurable BMPs with benchmarks to demonstrate that the permit requirements such as the 20 percent restoration will be achieved even before watershed assessments are completed to determine the causes of water quality impairments for specific watersheds and the appropriate measures and schedules to achieve restoration goals. That could place major burdens on the largest Maryland municipal permittees who are facing projected costs of over $2 billion between 2014 and 2018 to meet permit targets.6 The ruling could also impact the cooperative federalism principle fundamental to the Bay TMDL whereby states and localities work cooperatively with EPA and the private sector on cost-effective and flexible measures to meet the Bay programs' ambitious goals.

Note: All the quoted text in this alert appears in the opinion for Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., Court of Special Appeals of Maryland, No. 2199, April 2, 2015.