Enviros' Legal Challenge to Maryland Storm Sewer Permit Dismissed

A new permit was scheduled to go into effect on March 20, 2009, but was stayed as a result of the legal challenge by the nonprofit environmental groups Potomac Riverkeeper and Anacostia Riverkeeper, which were seeking more specific requirements in the permit.

Maryland Department of the Environment Deputy Secretary Robert Summers said, "The dismissal of the legal challenge to Montgomery County's MS4 stormwater permit means that, absent an appeal, this critical permit to reduce pollution and protect our waterways can move forward. This permit is emblematic of the significant emphasis Maryland must place on controlling stormwater runoff."

The plaintiff groups acknowledged that the new permit includes many improvements over the previous permit, but they argued that instead of requiring that the county ensure that discharges from its storm sewers do not violate these state water quality standards, it calls for open-ended planning towards eventual pollution reductions. "The permit does not require Montgomery County to demonstrate, however, that these programs will actually work," said Potomac Riverkeeper Ed Merrifield.

The permit also fails to ensure the sewer system is not overloading water bodies that are already deemed impaired, the groups claim, and in addition, the permit closes out the public by failing to allow members of the public to participate in and influence the permitting process.

Because the water restoration program and TMDL plans are not written into the permit directly, members of the public, and groups like Potomac Riverkeeper that represent them, do not have a forum in which they can comment on them, or challenge them if they are inaccurate, the groups argued. Once the permit is approved it is final, and citizens will have little if any recourse should the county fail to do enough to clean up the river.

Montgomery County's MS4 permit includes new provisions requiring restoring an additional 20 percent of impervious surfaces in addition to 10 percent already required, for a total of 30 percent.

Trash on the Anacostia River (Photo courtesy Anacostia Watershed Society)

It requires developing and implementing measurable strategies to reduce trash as part of the county's commitment to a trash-free Potomac River, and setting pollution limits necessary to meet water quality standards for impaired waters. The District of Columbia is a partner in the Trash Free Potomac Watershed Treaty, which aims to clear the watershed of trash by 2013.

The Anacostia River, an urban tributary to the Potomac River, has a severe problem with excessive trash. The Maryland Department of the Environment is currently developing a TMDL for the Anacostia River for trash.

"This permit is one of the most progressive in the country and clearly demonstrates that Montgomery County and Maryland are serious about improving water quality," said Summers.

This year, Governor Martin O'Malley committed Maryland to more than double the state's nitrogen removal efforts by 2011. Summers says controlling pollution from stormwater is a key part of that effort.

Maryland's new two-year milestones include a goal of retrofitting 90,000 acres of existing urban and suburban land with stormwater controls.

In 2008, the Department of the Environment took action to reduce pollution from stormwater in three ways - it updated Montgomery County's municipal stormwater permit, updated regulations under the Stormwater Management Act of 2007, and issued an updated the general construction permit.

Urban and suburban runoff account for 16 percent of Maryland's nitrogen load to Chesapeake Bay, and the Department of the Environment estimates that upgrading the state's MS4 permits, as well as implementing the Stormwater Management Act of 2007 and the new construction general permit together will cut urban stormwater nutrient loads by up to 30 percent.

The five-year permit, required by the federal Clean Water Act, mandates actions to eliminate the negative impacts of polluted stormwater runoff in Montgomery County, which has eight federally listed impaired waterways.

EPA has approved Total Maximum Daily Loads, TMDLs, for these impaired waters in Montgomery County:

• Bacteria, sediment, and nutrients in the Anacostia River
• Bacteria in Cabin John Creek, a tributary of the Potomac River which empties into the Chesapeake Bay
• Bacteria in Rock Creek, a free-flowing tributary of the Potomac River
• Phosphorus in the sediment of Clopper Lake, a 90-acre impoundment on Long Draught Branch within Seneca Creek State Park. Clopper Lake is owned by the Forest and Park Service of the Maryland Department of Natural Resources.

• Triadelphia Reservoir: for nutrients and sediment
• Rocky Gorge Reservoir: for nutrients

Copyright Environment News Service, ENS, 2009. All rights reserved.