DG stormwater pond Myersville 2 (copy)

The Myersville stormwater pond, at left, behind the town office and the fire station. 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.

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.”

Follow Cameron Dodd on Twitter:

@CameronFNP.

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(12) comments

MD1756

To say the county and tax payers can't afford the problems they have created is to push off the costs onto someone (i.e., other counties) or something else (i.e., creatures that live in the adversely impacted waters. People and governments need to stop pushing their responsibilities onto others. Population growth is one of the major causes of these problems. Time and again EPA has had to step in to enforce against state/local governments to install needed pollution controls and fight the attitude that the costs are unaffordable and must take decades to complete. EPA has worked to provide information for municipalities to figure out funding for needed projects: https://www.epa.gov/waterfinancecenter/efcn. It is better for everyone if states/municipalities use these resources proactively rather than waiting for EPA to step in and provide enforcement when local governments fail to meet their responsibilities. There are numerous enforcement action results that can be found on EPA's enforcement web pages for how to successfully address the issues in less than 30 years. Frederick County setting a tax of 1 cent is completely ridiculous and is not in the spirit of trying to address the problems. The permitting system is not broken, Frederick county government is merely shirking its responsibilities.

hayduke2

[thumbup]

hayduke2

Managing storm water and run-off is not glamorous but needed. Too bad the county is approaching this with a negative focus. Development and related actions add a tremendous amount of run-off to our streams and rivers and there are ways to address it.

Dwasserba

"Frederick County is on track to charge homeowners $100 a year for stormwater management by 2020, according to Pomeroy." Good to know.

pappyjoe

Ya! my check is in the mail, $100.00 short. Heres how you solve the problem. Shut down ALL DEVELOPMENT by the end of today!!

rwaesche

Frederick County Government has many effective programs but storm water management isn't one of them.

jnorcross

Wouldn't it make sense to require all this massive overbuilding in Frederick to include water-absorbing surfaces?

hayduke2

[thumbup]

Titanman123

Seeks very anti environment. Where are all of the the Sierra club and others to act Jan Gardner on this?

hayduke2

Really?

matts853

Jan is doing her job, balancing the needs of the County within its fiscal means. The water quality issues we have across the country are the result of centuries of poor land use decisions and a lack of infrastructure to deal with storm water runoff. Now that we've finally wised up to how bad the problems are, we are trying to play catch up with solutions that cost $100s of Millions. That kind of money isn't exactly lying around.

What Jan is saying to the State is that I want to solve the problem and I'm making an effort with what I think I can afford from the taxpayers. She has to weigh that with the fines and penalties of non-compliance. So she's asking the State for a little slack until she has a chance to fully fund the improvements. Which will probably be never considering the exorbitant costs. That's how bad things are.

Blaine and Delauter would have told the State we're not spending a penny on no stinking waste water stuff, and the State would have sued us for more than it's costing us to comply the best we can.

Think Titan. You can do better.

hayduke2

Matt - [thumbup]

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