Myersville officials have postponed approval of a required policy related to reducing pollutants that flow into its storm system amid constitutionality questions.
The policy, required for all jurisdictions with Municipal Separate Storm Sewer System (MS4) permits, is intended to let local governments monitor and enforce penalties for property owners that release pollutants. The mandate comes from the federal Clean Water Act — handed down to local jurisdictions by way of the Maryland Department of the Environment — as part of efforts to reduce pollutants that flow through local stormwater systems and into the Chesapeake Bay.
The Town Council on Tuesday discussed but did not vote on the proposed ordinance because of questions about its constitutionality and government overreach.
At issue was a clause in the proposed policy, modeled after the language suggested by the U.S. Environmental Protection Agency, that would let the town seek a search warrant to inspect a property where there is "probable cause" of an illicit discharge entering into the storm system. Sewage, wastewater and runoff from indoor drains and sinks are considered illicit discharges, according to the policy.
Council member Dan Papuchis described it as a violation of the Fourth Amendment, noting the precedent such a policy could create when the town does not otherwise allow use of search warrants to enforce town policies.
"I think we're really opening Pandora's box," Papuchis said.
"We need to protect our water supply ... but at the same time we need to protect our citizens as well," Councilman Mark Flynn agreed.
Papuchis proposed either eliminating the clause or strengthening the threshold by which the town could seek a search warrant — changing the language from a "probable cause" to "clear and convincing evidence."
Jurisdictions that do not comply with the state's permit requirements, including adopting an enforcement policy, could face "corrective actions" including fines, although the amount of a fine or type of penalty would depend on the situation, according to Jay Apperson, Maryland Department of the Environment spokesman.
Asked whether such a change would meet the state's requirements, Jay Apperson, a Maryland Department of the Environment spokesman, said he did not want to speculate on policies that had not been adopted. The purpose of the clause was to allow municipalities to follow the "appropriate legal processes" to gain access to properties where there was probable cause of illicit discharge, Apperson said.