Storm Sewers and Impervious Cover in Maryland: A Further Update

The Maryland Division of the Surroundings has for a few years sought to fulfill its obligations underneath the Clear Water Act and the Chesapeake Bay Whole Most Each day Load partly by imposing obligations on municipal separate storm sewers (MS4s) past the statutory minimal imposition of management to the “most extent practicable” or “MEP.” Particularly, it has required “restoration” of 20 % of the “untreated” — that’s, not topic to road cleansing or the like — impervious floor within the jurisdiction even when the floor doesn’t drain to the MS4. In Could 2021 we mentioned a call of the Maryland Courtroom of Particular Appeals (the state’s intermediate appellate courtroom) for probably the most half affirming Maryland’s normal allow scheme for small MS4s, Maryland Small MS4 Coalition v. Md. Dep’t of the Env’t, 250 A.3d 346 (Md. App. 2021).

Final week, the Courtroom of Appeals affirmed. Maryland Small MS4 Coalition v. Md. Dep’t of the Env’t, No. 25, Sept. Time period 2021 (Md. June 1, 2022). It adopted basically the identical reasoning because the Courtroom of Particular Appeals: the federal Clear Water Act units a minimal diploma of management from which allowing jurisdictions might depart as vital to realize water high quality targets. Level supply dischargers, like storm sewer system operators, could also be topic to circumstances essential to mitigate impacts from different, unregulated discharges.

The courtroom had beforehand determined a problem to giant MS4 permits as too lax introduced by an environmental group, Md. Dep’t of the Env’t v. Anacostia Riverkeeper, 134 A.3d 892 (Md. 2016), and to medium MS4 permits as too onerous on the identical grounds because the small MS4 problem, Md. Dep’t of the Env’t v. Carroll Cty., 214 A.3d 61 (Md. 2019), cert. denied, 140 S. Ct. 1265 (2020). (We started this string of weblog posts commenting on Carroll County.) The courtroom due to this fact discovered itself certain to comply with these prior choices:

We maintain that, pursuant to the doctrine of stare decisis, the holdings of Carroll County apply on this case. We maintain that this case is ruled by this Courtroom’s prior case legislation and presents neither a cloth distinction nor a change in circumstance that might justify reconsideration of this Courtroom’s Carroll County resolution.

Slip op. at 2.

Efforts by municipalities to impose impervious floor limits on and even to require “restoration” from non-public events are frequent in Maryland. Additional cost-shifting as could be frequent underneath the cleanup packages has not, to my data, been tried.