June 07, 2016 Articles

Court of Appeals Upholds Maryland's Flexible Approach to Stormwater Permitting

The ruling paves the way for counties to seek innovative private sector solutions.

By Rafe Petersen and Andrew H. "Andy" Emerson – June 7, 2016

The Maryland Court of Appeals has issued an important decision broadly upholding county stormwater permits issued by the Maryland Department of the Environment (MDE). The court’s unanimous decision, written by Judge Sally Adkins, addressed challenges to four MDE-issued stormwater permits for county municipal separate sewer systems (MS4s) in Montgomery, Baltimore, Anne Arundel, and Prince George’s Counties, as well as the permit for the city of Baltimore. As a result, the decision is dispositive of all of the current major challenges to county MS4 permits in Maryland and should ensure that these permits stand on solid legal footing moving forward. Adding to the case law in this arena is the recent decision by the U.S. Supreme Court not to hear challenges to the total maximum daily load (TMDL) waste-load allocations for the Chesapeake Bay. See Am. Farm Bureau Fed’n v. U.S. Envtl. Prot. Agency, 792 F.3d 281 (3d Cir. 2015), cert. denied (U.S. Feb. 29, 2016). Thus, there appears to be a clear path for the counties to follow in addressing non-source pollutants.

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