Frederick County took its ongoing challenge against Maryland stormwater management mandates to the state’s highest court Thursday.
Representatives for the county and the Maryland Department of the Environment appeared for oral arguments in the Court of Appeals seeking action in a years-old dispute over standards for mitigating runoff into Chesapeake Bay.
Attorney Christopher D. Pomeroy, representing Frederick County, argued that compliance with the state’s Municipal Separate Storm Sewer System (M4S) permit requires the county to make an impossible number of improvements within a given time frame.
“Frederick County is doing its part and is comparing very well to other jurisdictions in bay restoration efforts,” Pomeroy said. “We cannot meet [the requirements] even if money were no object, because of technical and schedule-type issues.”
The MS4 permit requires the permitted jurisdiction to restore 20 percent of its impervious surfaces, such as parking lots and sidewalks, into water-absorbing surfaces. The goal is to reduce the amount of pollutants flowing with stormwater into water systems that flow into Chesapeake Bay.
“We believe the question is if [the Maryland Department of the Environment] created an error by creating impracticable requirements, going beyond the standard,” said Adam D. Snyder, a lawyer in the Office of Attorney General, representing the MDE on Thursday.
Frederick County initially challenged the requirements in its Department of the Environment-issued MS4 permit in Frederick County Circuit Court in 2015.
Among other arguments, the county asserts that making stormwater runoff mitigation improvements mandated by the permit would require a fee or tax “far greater than County residents can reasonably absorb,” according to court records. A county analysis estimated the cost of meeting the requirements would be more than $142 million, The News-Post previously reported.
The county also argued it was erroneously classified as the same size stormwater system as Howard County.
Frederick County Circuit Court upheld the state’s decision in July 2017, leading the county to request a review by the Court of Appeals.
In oral arguments Thursday, Pomeroy said that through the permits, MDE had overstepped its authority and required jurisdictions to make improvements beyond the maximum extent practicable, a standard within the Clean Water Act. With a few exceptions, all of Maryland’s counties are failing to meet the MS4 permit requirements, Pomeroy said.
“Why this track record of failure? The permitting system on this particular issue is broken. The requirements are plainly impracticable,” he said. “Frederick County spoke up early rather than accepting an impossible process.”
According to Snyder, the county’s cost analysis is inflated.
“They aren’t coming up with the actual costs and the actual logistics of doing this,” Snyder said. “They’re using MDE planning data that was generated several years earlier. They aren’t using their actual data that shows how much it costs to do this work in Frederick County.”
The MS4 requirements are within the department’s authority, Snyder said, and are designed to force counties and municipalities to take large steps that will reduce pollution.
“Carrol County is on track to meet their 20 percent requirement. We know counties can do this,” he said. “Everyone has to do this. All the people discharging into the bay are hit with harder requirements because that’s what we have to do to clean it up.”
Frederick County is on track to charge homeowners $100 a year for stormwater management by 2020, according to Pomeroy. The county is engaged in retrofitting and other projects county-wide to improve stormwater runoff. But the county does not want to be held responsible for failing to meet impossible standards, he said.
“Frederick County is ramping up its programs substantially,” Pomeroy said. “We ask this court to vacate the permit ... so we can work with the agency constructively to drive the restoration further with standards we can meet.”