Scott S. Allen

March 26, 2010

On February 16, 2010 Maryland's Department of the Environment issued a Municipal Separate Storm Sewer System (MS4) permit to Montgomery County. MS4 permits are part of the National Pollutant Discharge Elimination System established by the Clean Water Act. This permit has been challenged in a petition filed on Mar. 17, 2010 by Potomac Riverkeeper, Anacostia Riverkeeper, Waterkeeper Alliance, Friends of the Earth, and two individuals represented by the law firm Earthjustice.

Montgomery County's permit is deemed by some to be one of the nation's most progressive. It is the first such permit in the state of Maryland that focuses on the condition of aquatic organisms, through stream biological and habitat monitoring, to set priorities for its permit-associated management programs.

The petitioners claim that the permit does not meet the requirements of the Clean Water Act. Specifically, they argue that it lacks enforceable limits and deadlines, and fails to limit the amount of pollution that can wash into the Potomac and other waterways.

Maryland's Department of the Environment has responded to criticism of the permit by claiming that the Clean Water Act does not require the state to impose numerical limitations on storm system discharge. Furthermore, they argue that the best management practices in the permit are more cost effective than the monitoring that would be necessary to enforce any numerical water quality standard.

This case raises the issues of not only whether the Clean Water Act requires numerical limitations on discharge, but also whether numerical limitations or best management practices are more cost effective and better suited to protect the environment. Both sides present compelling arguments. A permit based on best management practices may be much more difficult to enforce than one based on clear numerical limits. But a system that focuses on the actual conditions of the environment may be more scientifically sound and effective then one based on set numerical limits.

Sources:

Alexandra Meril, Groups Seek Montgomery Co. Stormwater Permit Review, News Channel 8, Mar. 17, 2010, http://www.news8.net/news/stories/0310/716946.html.

Jessica Glasser, Groups Want Review of Montgomery County Stormwater Permit, WUSA9, Mar. 19, 2010, http://www.wusa9.com/news/local/story.aspx?storyid=98694&catid=189.

Maryland Department of the Environment, Montgomery County Municipal Stormwater Permit: Response to Formal Comments (2009), http://www.mde.state.md.us/assets/document/

MO%20CO%20Final%20Response%20to%20Comments.pdf.

Montgomery County Maryland, National Pollutant Discharge Elimination System Permit Program, http://www.montgomerycountymd.gov/deptmpl.asp?url=/content/dep/NPDES/home.asp (last visited Mar. 22, 2010).

Potomac Riverkeeper v. Md. Dep't of the Env't, No. 328758V (Montgomery County Cir. Ct. filed Mar. 17, 2010).

33 U.S.C.A. § 1342 (2008).