The Clean Water Act of 1972 (CWA) authorizes any citizen to file a law suit to require a State to comply with the CWA. This enforcement provision permits an abuse, such as is present in the case of Anacostia Riverkeepers, et al., vs. Maryland Department of Environment and Montgomery County, MD. If the Riverkeepers could be successful in this law suit, it would be devastating for every county in the State. Consequently, Frederick County is supporting the Maryland Association of Counties (MACO) in filing an Amicus Brief in support of the State of Maryland and Montgomery County in defending this case.
In brief, the Circuit Court for Montgomery County, Maryland (Judge Ronald Rubin) ruled that the undertakings that Montgomery County agreed to do under its stormwater discharge permit were not sufficient because they could not show that they brought the quality of water to a certain standard. Judge Rubin ruled that the stormwater remediation must be measured and that it must meet the “point source” water quality standards that apply to wastewater treatment plants. On the one hand, Judge Rubin makes a good point because it is indeed a problem if there is no way to measure the effectiveness of stormwater remediation requirements. But, with respect to stormwater discharge, the CWA never required proof that the remediation reduce pollutants to a certain, measurable level. The “point source” standards that the CWA applies to wastewater treatment plants do not apply to stormwater runoff. It is effectively impossible to measure all the sources of stormwater runoff, and thus there is no measurement required in addressing stormwater runoff. Judge Rubin disagreed, and therefore his ruling is being appealed to the Maryland Court of Special Appeals. If Judge Rubin’s ruling is not overturned, this would lead to undermining the entire premise for the stormwater discharge permits. There could be some good come of this because it could require a remediation system with measurable, ascertainable requirements. But I don’t think this will happen; I believe the court misinterpreted the CWA. I expect the State of Maryland will prevail; then we will be left with the stormwater discharge permits, and we will have to work to limit the cost of those mandates to that which is “practicable.”
If people from outside the Chesapeake Bay watershed are given standing to sue Maryland residents in court, then those same people should have to share in the cost to do the remediation requirements that they want us to pay for. If they have a responsibility to help pay for the remediations, then fine, let them have standing to sue. But if they don’t have any obligation to help pay for the work, then they should not have standing to sue us to make us do it. Let them go back to the Sierra Mountains and deal with their own waters.