ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al.
On April 2, 2015 a Maryland appellate court issued a decision in a closely watched case involving the appropriate regulatory standards for municipal stormwater permits, giving NACWA and its municipal partners in the case an important legal win. The decision in Maryland Department of the Environment v. Anacostia Riverkeeper (attached) reaffirmed that the Clean Water Act’s (CWA) “maximum extent practicable” (MEP) standard for municipal separate storm sewer systems (MS4s) does not require strict compliance with water quality standards. NACWA joined in a coalition with the Maryland Municipal Stormwater Association (MAMSA) to file a brief in the case, and much of the court’s analysis on the MEP issue echoes arguments from the municipal brief .
The court found that the CWA’s MEP language “relieves municipal systems of the burden to meet specific water quality standards” and dismissed arguments from environmental activist groups in the case that the CWA requires technology-based effluent limitations for MS4s to achieve compliance with water quality standards. In making this finding, the court cited to and endorsed the position of previous federal and state legal decisions that have reached the same conclusion.
However, separate from the MEP discussion, the court also expressed concerns about the lack of any clear “objective metrics” or “benchmarks” in the permit to determine compliance, and also noted concern over the ability of the public to adequately review and comment on key elements of the permit. Accordingly, the court sent the permit back to the state to add more specific and less confusing compliance requirements.
Although this decision only directly impacts MS4 permits in Maryland, it is an important win for the municipal stormwater community nationwide because it reaffirms the key legal principal that the CWA’s MEP standard does not require strict compliance with water quality standards or the inclusion of numeric effluent limits. The concept of “strict compliance” has long been advanced by environmental activist groups to require specific numeric effluent limits in MS4 permits, and it is important to push back against these legal attempts wherever possible. NACWA has long opposed the inclusions of strict compliance language or numeric effluent limits in MS4 permits and will continue to do so.
In the absence of a national stormwater rule, NACWA anticipates that environmental activist organizations will continue to try and tighten MS4 regulations by challenging individual stormwater permits at the local and state level. Many of these challenges will seek to include strict compliance with water quality standards – including numeric effluent limits – into MS4 permits. We are already seeing activist groups take this approach in a number of states. Having legal decisions such as this one that dismiss these activist challenges and reaffirm the primacy of the MEP standards will be very important in persuading courts in other states that may review the issue to reach similar conclusions.
NACWA joined with a number of other municipal organizations in August 2014 to file an amicus brief in the appeal, arguing that the CWA creates a distinct standard for MS4s that only requires control of pollutants to the maximum extent practicable (MEP) and that replaces the requirement to comply with water quality standards. The brief further outlines the significant prior case law supporting this interpretation and establishing the MEP standard as the governing regulatory requirement for MS4s. NACWA and its municipal partners also explain the significant economic burdens that strict compliance with water quality standards – including the possibility of numeric effluent limits – would place on MS4 utilities.
NACWA has a long litigation history of defending the MEP standard and advocating against the inclusion of numeric limits in MS4 permits, including participation in the seminal 1999 case Defenders of Wildlife v. Browner. This decision held that the CWA requirements for MS4s to reduce pollutant to the MEP does not mandate strict compliance with water quality standards or numeric limits. Notwithstanding this decision, environmental groups have repeatedly sought to re-litigate this issue in courts around the nation, especially in state courts. NACWA has contested these suits to avoid any weakening of the strong legal precedent established by Defenders of Wildlife and to defend the MEP standard. NACWA is participating in this appeal to advocate on behalf of the national municipal clean water community.
Other groups joining the municipal brief with NACWA and MAMSA include the Wet Weather Partnership and the Maryland Association of Counties.
Rulings/Pleadings (in format)