112 A.3d 979
Md. Ct. Spec. App.2015Background
- This appeal challenges Montgomery County's 2010 MS4 stormwater permit issued by the Maryland Department of the Environment.
- Anacostia Riverkeeper and other environmental groups challenged the permit, resulting in a circuit court remand for revisions to comply with state and federal law and public participation requirements.
- The dispute centers on whether the permit complies with federal Clean Water Act provisions, especially §1342 and the state Environment Article provisions on public notice, review, and standards;
- A central point is the twenty percent impervious surface restoration requirement and the need for TMDL implementation plans linked to WLAs under state law.
- The trial court found the permit vague, lacking ascertainable metrics, deadlines, and concrete monitoring/ reporting requirements, and procedurally deficient with respect to notice and comment.
- The Maryland Court of Special Appeals affirms the remand, concluding the permit must be revised to provide meaningful notice and comment and to articulate measurable obligations, without altering the substantive policy that MS4s are subject to 1342-based controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permit is governed by §1342 rather than §1311 | Anacostia argues §1311 applies for water quality standards. | Md Dept argues §1342 governs MS4s with MEP and BMPs, not §1311. | §1342 governs the permit; not §1311. |
| Whether the Permit provides meaningful public notice and comment under state law | Anacostia contends the permit defers key terms and relies on outside sources, hindering comment. | Department asserts notice was provided and plans would be developed post-approval. | Permit fails to provide meaningful notice and comment; opaque and underinclusive. |
| Whether the Permit contains ascertainable metrics for TMDLs and the 20% restoration | Anacostia argues metrics are undefined and plans are post-approval, not enforceable. | County/Department point to referenced materials and an iterative BMP approach. | Permit lacks specific, enforceable metrics and deadlines for TMDLs and twenty percent restoration. |
| Whether incorporation by reference renders the Permit incomprehensible and reviewable | Anacostia asserts essential terms are buried in manuals referenced by the Permit. | Department contends references are standard and allow appropriate flexibility. | Incorporation by reference makes terms unreviewable; the Permit must spell out enforceable requirements. |
Key Cases Cited
- Assateague Coastkeeper v. Maryland Dep’t of the Env., 200 Md. App. 665 (2011) (state water policy and TMDL-related requirements)
- Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) (NPDES permits and CAFO-like scrutiny of nutrient plans)
- Browner v. EPA, 191 F.3d 1159 (9th Cir. 1999) (MEP vs. water quality standards for MS4s under §1342)
- Divers’ Environmental Coalition v. State Water Resources Control Bd., ?, () (recognized BMP approach emphasis for stormwater permits)
- EPA v. State Water Resources Control Bd., 426 U.S. 200 (1976) (permitting translates goals into enforceable obligations)