Confusion, Frustration as Maryland High Court Hears Stormwater Permits Case

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.