Maryland’s highest court will review Frederick County’s yearslong challenge to state stormwater management mandates.
The Maryland Court of Appeals announced last week it will hear oral arguments in Frederick County’s 2015 lawsuit against the Maryland Department of the Environment.
The case originated with the county government’s challenge to state-mandated fees or taxes to upgrade the county’s stormwater management system.
The county’s Municipal Separate Storm Sewer System (MS4) permit imposes requirements for how pipes, swales and ditches direct stormwater flow into surface water features to protect land from erosion and flooding.
In December 2014, the Department of the Environment issued an MS4 permit that would require the county to implement substantial improvements to its system to comply with state regulations. A county analysis estimated the cost to comply with the mandates would total more than $142 million, according to court filings.
The mandate became an important campaign issue during the 2014 county election. County executive and council candidates denounced the measure as a “rain tax” and questioned the science behind the stormwater cleanup targets.
In January 2015, the county petitioned Frederick County Circuit Court for judicial review of the department’s permitting decision. Among other arguments, the county asserted that increasing its spending on the stormwater program would necessitate a fee or tax “far greater than County residents can reasonably absorb,” according to court records.
The bulk of the county’s argument against the permit centered on the department’s classification of Frederick County as a medium-sized system. This is the same classification the department gave the more densely populated Howard County. The county asserts that the classification should consider only the population living outside incorporated towns and cities in the county, which have their own permits and requirements. The county further argued that the state’s permit would require the county to exercise jurisdiction over the incorporated towns, villages and cities, as well as over private property.
Frederick County Circuit Judge William R. Nicklas Jr. upheld the state’s decision. In a July 2017 order, Nicklas instructed the state to clarify several parts of the permit but ruled it was otherwise enforceable.
The department’s designation of Frederick County as a medium-sized system was proper, according to Nicklas. The medium-size designation is appropriate under the federal Environmental Protection Agency’s standards, which consider the amount of wastewater produced, not strictly population, according to Nicklas’ order.
A month after Nicklas issued the order, the county requested that the Court of Appeals review the decision.
The Court of Appeals, Maryland’s highest court, granted what is called a “writ of certiorari” indicating it will review the case.
Oral arguments in the case have not been scheduled yet, but will take place during the term that goes from Sept. 6 to Aug. 31, 2019. The oral arguments will be scheduled for the same day as arguments in a similar case brought against the Department of the Environment by the commissioners of Carroll County, according to court records.
Myersville is currently undertaking improvements to meet the requirements of its own MS4 permit. The town aims to restore 20 percent of impervious surfaces, such as parking lots, into water-absorbing surfaces by 2025.