Last week the Maryland Court of Appeals heard several hours of oral argument in back to back (to back) cases regarding whether five different municipal stormwater (“MS4”) permits issued by the Maryland Department of the Environment (MDE) complied with the federal Clean Water Act and state water pollution laws. Although divided into separate cases due to their unique procedural histories, the three cases were consolidated into one marathon oral argument due to the substantial overlap of the issues involved. The legal arguments have changed significantly since the first motions and petitions were filed several years ago, with some of the most ambitious legal theories having fallen away. What remains in dispute in these cases are largely procedural, though still crucial, issues regarding how to structure the permits so as to ensure that the permits are enforceable and that the counties are accountable to the public. Basically, the cases boil down to a total and justifiable lack of trust in MDE and the counties to get the job done.
In fairness to MDE, it must be noted that the permits contain some very ambitious and laudable goals, which represent some of the most stringent MS4 permit terms in the country. The issue is that neither the counties, nor MDE has come close to living up to the promise of these permits.
A little background is in order. MS4 permits are a unique regulatory tool of the Clean Water Act, reflective of the fact that stormwater runoff is a unique form of water pollution. Congress clarified how urban stormwater is to be regulated way back in 1987, though the first regulations were not written until 1990 and the first permits were issued a few year after that. It may seem ridiculous that we’re still talking about how to address stormwater pollution nearly 30 years after the 1987 Clean Water Act amendments, and this is a point that an exasperated Judge Adkins made when she bluntly asked counsel for Baltimore City “why is it taking so long?”
The simple answer is that addressing stormwater pollution is expensive and, until recently, state and municipal officials (around the country, not just in Maryland) have hid behind the constant refrain that implementing MS4 permits involves an “iterative process.” In other words, each successive permit requires only a little more effort than the last. Again, to give MDE credit where it is due, it first began establishing the more substantive (and expensive) permit requirements to restore a certain percentage of a municipality’s impervious surfaces more than a decade ago, written into Montgomery County’s “second generation” permit. In this respect, MDE took bold action to address stormwater pollution relatively early, compared to other states. It wasn’t until years later, in fact, that progressive members of the General Assembly began introducing bills to require the counties and municipalities with MS4 permits to actually fund those permits with dedicated stormwater fees. Evidently, a legal requirement is not enough to get a county’s attention, only a dedicated funding source could actually drive real action.
Which brings us to today. In Maryland, we are all now familiar with the fight over the “rain tax” (codified in 2012, first collected in 2013, and “repealed” in 2015) and the notion that local governments should be able to determine how to meet their legal obligations under the MS4 permits on their own. Except, as alluded to by Judge Atkins and borne out by history, the counties cannot be trusted to do so, especially without dedicated funding. Counsel for MDE repeatedly tried to refute in his arguments the contention posed by Earthjustice, the Chesapeake Bay Foundation, Blue Water Baltimore and the other clean water advocates in these cases that the MS4 permits written by MDE contained specific and measurable requirements that are easily able to be enforced. The problem with that argument, of course, is that the permits have never been enforced, despite the fact that none of the municipalities have ever achieved the restoration requirements in the permit. Either the permits really are unenforceable or MDE has just deliberately chosen to ignore its enforcement responsibilities.
The correct answer may very well be the latter – that MDE has always made the political decision (or “prosecutorial discretion”) not to enforce the MS4 permits. As counsel for Earthjustice noted in the oral argument, instead of enforcing the terms of Montgomery County’s MS4 permit, for example, MDE simply rolled the unfinished business from the county’s previous permit into its new one. Unfortunately, we cannot even say that much for the rest of the counties’ permits – instead of imposing a separate condition in the new permits to complete the restoration requirements of the old permit, MDE just wiped the slate clean for the other counties.
Perhaps the most telling moment of last week’s lengthy argument came when counsel for MDE was asked what it would do at the end of a five-year permit term if the county came to MDE and said that it just was not going to be able to comply – would MDE enforce the permit, and could it apply five years’ worth of penalties? Counsel’s answer, after a long pause, was: “that’s an interesting question, I haven’t looked into it.” And after several additional minutes facing similar questions from other judges about whether and how MDE would enforce these permits, counsel dismissed the line of questions as “hypothetical.” Sadly, the utter lack of enforcement of these crucial permits is not hypothetical or abstract. The lack of progress is very real. Nitrogen pollution carried by stormwater runoff is the fastest growing source of such pollution in Maryland and across the Bay watershed, and the only source that Maryland has not even begun to control.
One could feel sorry for MDE’s lawyers; they've had a very difficult time over the last several years defending what could otherwise be a very stringent and effective permit in case after case. But the clean water advocates in these cases are ultimately correct that the permits are simply too sloppy and ill-conceived to be effective. A simple recitation of MDE enforcement history is the best argument the advocates can make in these cases.