Feb 06, 2020

Maryland County & MDE Disagree on Storm Water Permit

Carroll County, Maryland wants to take a permit dispute with the Maryland Department of the Environment (MDE) to the U.S. Supreme Court.

storm water

The Municipal Separate Storm Sewer System (MS4) permit, which regulates how much storm water local governments can collect and dispense into local waterways, is under scrutiny by Carroll County, Maryland.

Nevertheless, a recent court filing the state asserts the case should not be heard at the federal level, reported the Carroll County Times. In a Nov. 26 letter to the state, the clerk of the Supreme Court ordered it to respond to Carroll’s petition to have the case heard in federal court. 

The county created a petition questioning the jurisdictional limits of the federal Clean Water Act, as well as a permit holder’s ability to challenge permit conditions, reported the Carroll County Times. The permit under dispute would increase Carroll’s storm water requirements and the cost to the county, according to county staff. Carroll County commissioners in October voted 3-2 to push its storm water permit appeal to the U.S. Supreme Court. 

In its brief, the state argued that the requirements of the permit set forth by MDE are valid under state and federal law.

The county’s first objection is related to a restoration requirement. The latest version of the permit would require the county to manage 20% of the total impervious surfaces throughout the entire county, compared to the previous 10%, reported the Carroll County Times

Carroll’s MS4 permit requires it to continue storm water management programs such as; erosion and sediment control; elimination of illicit discharges; and management and maintenance of county-owned property. 

The state disputed Carroll’s claim that the restoration requirement makes it legally responsible for pollution that flows from impervious surfaces outside its MS4 system.

The county is asserting that the areas that don’t drain into the county’s storm drains should not be included as part of the total impervious surfaces for Carroll. It will cost the county about $28 million to manage this in storm water projects.

The estimate was calculated based on the current average Carroll spends on MS4 per acre now, which is about $30,000.

According to the brief, the requirement does not make Carroll responsible for pollutants outside the geographic area of the county's MS4 system. 

Carroll “remains free to carry out its restoration obligations entirely within the limits of its MS4 system, or elsewhere in the county," according to the MDE brief.

Even if the 20% requirement is beyond the limits of federal law, MDE could still impose the requirement, reported the Carroll County Times. The Clean Water Act allows states to set more stringent permit conditions under state law, according to the brief.

The county’s petition addresses MDE classification of Carroll as a medium-size MS4 system rather than small; Smaller jurisdictions were not required to obtain permits in an earlier phase of the MS4 program, according to the brief. Carroll’s MS4 system serves a population of at least 100,000 people but less than 250,000, which classifies it as a medium jurisdiction.

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