CLEAN WATER ACT PERMIT CHALLENGES
MARYLAND MS4 PERMIT CHALLENGES
Municipal Separate Storm Sewer Systems (MS4s) discharge polluted runoff from buildings, parking lots and roads. MS4 permits are issued to municipalities to ensure that the MS4 pollution is regulated pursuant to the Clean Water Act. MS4 permits have been issued by the Maryland Department of the Environment (MDE) that have insufficient limits and unenforceable terms, and are therefore allowing pollution to impact our local waters.
Maryland Court of Appeals
September Term, 2015; Nos. 43 and 44
CBF challenged the MS4 permit issued to Anne Arundel County by filing a Petition for Judicial Review on March 14, 2014 with the Circuit Court for Anne Arundel County. Oral arguments were held on November 10, 2014. The Circuit Court Judge affirmed the permit, granting MDE deference in its decision to issue the permit.
CBF and its partners West/Rhode Riverkeeper and Magothy River Association filed an appeal to the Court of Special Appeals on December 22, 2014 (Case No.: 1851-2014). This case was consolidated with the MS4 appeals filed by Earthjustice in Prince George's and Baltimore Counties.
Prior to oral arguments in the Court of Special Appeals for the consolidated cases in Anne Arundel, Prince George's and Baltimore Counties, on May 19, 2015, MDE filed a Petition for Writ of Certiorari with the Maryland Court of Appeals asking the high court to address two legal questions.
- Did the MS4 permits issued by MDE appropriately incorporate by reference publicly available materials?
- Was the Department's final decision to issue the permits with a 20% restoration requirement based upon the State’s Chesapeake Bay TMDL strategies, and a reporting requirement to establish strategies to address wasteload allocations, supported by substantial evidence?
On November 5, 2015 the Maryland Court of Appeals heard oral arguments for the consolidated cases, the MS4 Permit issued in Baltimore City and MDE's appeal of the Court of Special Appeals decision in Montgomery County. (CBF filed an Amicus Brief in the Court of Special Appeals for the Montgomery County case on April 3, 2015. In this case, the court ruled in favor of Anacostia Riverkeeper holding that the county permit does not comply with Maryland law, the Clean Water Act and Federal Regulations).
On March 11, 2016, the Court of Appeals affirmed the Circuit Court rulings in Anne Arundel, Baltimore City, Baltimore County and Prince George's Counties. In addition, The Court of Appeals reversed the decision of the Court of Special Appeals and affirmed MDE's decision to issue the Montgomery County permit. CBF and our partners have filed a Motion For Reconsideration asking the Court of Appeals to revise a portion of its Opinion addressing the restoration plans required under the MS4 Permits. The Motion was denied on May 20, 2016. CBF continues to monitor MS4 permits and restoration plans throughout Maryland.
Maryland Court of Special Appeals
Case Number: 00773, September Term, 2015
CBF also filed a Petition for Judicial Review of the MS4 permit issued in Howard County on January 16, 2015. However, Howard County filed a Motion to Dismiss CBF's Petition for Judicial Review alleging lack of standing and a hearing was held on May 19, 2015. The Circuit Court ruled in favor of the County and granted its Motion to Dismiss. CBF filed an appeal of this decision to the Maryland Court of Special Appeals. CBF's filed its principle brief on December 18, 2015 and the County’s Brief was filed on February 19, 2016. However, CBF dismissed their appeal on March 16, 2016 as a result of the Court of Appeals March 11, 2016 Decision.
Circuit Court Proceedings
CBF filed Petitions for Judicial Review of the MS4 permits issued in December 2014 and January of 2015 to the following Maryland Counties:
Charles County - Case No.: 08-C-15-000136
Carroll County - Case No.: 06-C-15-068113
Frederick County - Case No.: 10-C-15000259
Harford County - Case No.: 12-C-15000220
The Counties also filed a separate Petition for Judicial Review of the MS4 permits issued by MDE at or near the same time CBF filed their Petitions.
CBF, MDE, and the Respondent Counties initially requested a Stay of these Proceedings pending the resolution of the cases in the Maryland Court of Appeals. After the Maryland Court of Appeals cases were decided, CBF filed Motions with the respective counties to Consolidate CBF's cases with the Counties Petitions. A Hearing was held in Carroll County on October 21, 2016 and the Court Dismissed CBF's case without ruling on our request for consolidation. Based on this result, and the likelihood of similar outcomes in the other three counties, CBF will file Motions to Dismiss our cases in Charles, Frederick, and Harford Counties. CBF believes this is an appropriate step to take in order to redirect its resources and efforts to monitor compliance with the MS4 permits. We will take appropriate action, if necessary, to help protect and restore the Chesapeake Bay and its tributaries if the various jurisdictions do not fulfill their obligations under the terms of the MS4 permits.
These cases are being handled by CBF Litigation Attorney Paul Smail and litigation staff.
United States District Court for the District of Maryland
Potomac Riverkeeper and Chesapeake Bay Foundation v. Washington Suburban Sanitary Commission
Case No.: 14-CV-00417-TDC
The Potomac Water Filtration Plant, owned and operated by Washington Suburban Sanitary Commission (WSSC), provides the majority of the public drinking water supply in Montgomery County and Prince George's County, Maryland. The facility is located on the south branch of the Potomac River approximately 10 miles northwest of Washington, D.C. and within the Chesapeake Bay watershed. The plant removes water from the Potomac River, filters and disinfects it, transfers the treated water to a drinking water reservoir, and discharges the remaining wastewater back into the Potomac River. WSSC has chronically failed to meet monthly and daily effluent limitations for sediment and aluminum in the wastewater.
On February 12, 2014, CBF and Potomac Riverkeeper filed a lawsuit in the U.S. District Court of Maryland against WSSC for significant and ongoing violations of the Clean Water Act including National Pollutant Discharge Elimination System (NPDES) permit violations. Thereafter, the Maryland Department of the Environment (MDE) filed a Notice of Intent to Sue WSSC. CBF served WSSC with Interrogatories and Request for Production of Documents while settlement negotiations were ongoing and a consent decree was pending.
After over six months of settlement negotiations between CBF, co-plaintiff Environmental Integrity Project, WSSC and MDE, on October 20, 2015, WSSC's board voted unanimously to approve the Consent Decree and significantly reduce the amount of chemicals it releases into the Potomac River from one of its water purification plants. WSSC also agreed to pay a $100,000 state penalty and implement up to $8.5 million worth of short-term pollution control projects at the plant. After receiving comments from the United States Department of Justice pursuant to the Clean Water Act, the United States District Court granted an Order for Entry of the Consent Decree on April 15, 2016. Entry of the Consent Decree by the Court begins the process of planning and implementing Supplemental Environmental Projects CBF and its partner negotiated as a term of the Consent Decree.
The agreement is an important victory for clean water in the Potomac River and the Chesapeake Bay. In addition to the other commitments, WSSC will pay $1 million to for environmental projects that help reduce sediment pollution in the Potomac drainage area. WSSC will have up to ten years to complete the long term improvements to the plant.
This matter is being handled by CBF Litigation Attorneys Paul Smail and Ariel Solaski, along with counsel from the Environmental Integrity Project.
VIRGINIA STORMWATER MANAGEMENT
In The United States District Court For the Western District of Virginia
Norfolk Southern Railway Company v. City of Roanoke
Case No.: 7:16-v-cv-00176
The Commonwealth of Virginia instituted a program allowing localities the ability to assess fees from landowners, including corporate and individual citizens, to address stormwater carrying pollution that runs into local streams and rivers. As a result, The City of Roanoke established an Ordinance which generates revenue for stormwater management activities. The Ordinance institutes a fee assessment structure based upon the amount of impervious surface identified on improved parcels of land.
Norfolk Southern Railway Company (NSR) filed suit in the U.S. District Court for the Western District of Virginia, on April 12, 2016, seeking a partial exemption from the City's fee assessment. NSR claims the fees are unlawful under the Federal Railroad Revitalization Reform Act of 1976 because railroad tracks are not exempted from the City's Ordinance, but lawns are exempted. NSR also claims that the Ordinance violates the anti-discrimination provisions of the Federal Railroad Reform Act. The City of Roanoke filed a Motion to Dismiss the lawsuit on June 6th.
CBF filed a Motion For Leave to Intervene on July 8th as NSR's suit attacking the fee assessment threatens to challenge an important program by Virginia to fund stormwater management locally and reduce pollutants to the Chesapeake Bay.
A Hearing on the City of Roanoke's Motion to Dismiss and CBF's Motion to Intervene was held on September 14th. After hearing arguments on both sides, on October 6th, the Court issued an opinion Denying Without Prejudice the Motion to Dismiss filed by the City. However, the Court narrowed the issues to whether the City's stormwater utility fee is a "tax" for purposes of the NSR, and not a fee. In addition, the Court is allowing limited discovery on this single issue. The Discovery period is scheduled to close on January 6, 2017.
On October 19th, the Court Granted CBF's Motion to Intervene under Federal Rules of Civil Procedure 24(b) allowing permissive intervention. As a result, CBF is now an intervenor-defendant in this case supporting the City of Roanoke and the fee assessment. CBF will continue to monitor the discovery proceedings and participate if necessary. It is expected that the City will renew its motion at the conclusion of discovery.
This case is being handled by CBF Litigation Attorney Jon Mueller and staff counsel in the Virginia Office.
MARYLAND LAND USE CASES
Maryland Court of Special Appeals
Chesapeake Bay Foundation, Inc., et. al. v. K Hovnanian's Four Seasons at Kent Island, LLC, et. al.
Case No.: September Term, 2016 No. 1705
The Maryland Board of Public Works voted 2-1 on November 18, 2015 to approve a Tidal Wetlands License for K. Hovnanian to build an active adult community known as Four Seasons on approximately 556 acres of land on Kent Island in Queen Anne’s County, Maryland. The license authorizes K. Hovnanian to
- drill a sewer line beneath the State wetlands of Cox Creek;
- construct a community pier extending into Chester River; and,
- discharge fill from the development project’s stormwater management system into Cox Creek and the Chester River.
CBF, along with our co-petitioners Queen Anne’s Conservation Association, Midshore Riverkeeper Conservancy, Chester River Association, and neighbors Robert Foley and Hal Fisher filed a Petition for Judicial Review of the Board’s decision with the Queen Anne’s County Circuit Court on December 18, 2015.
This matter has been ongoing for some time. K. Hovnanian applied for a Tidal Wetlands License in 1999 and was initially denied on Mar 23, 2007. K. Hovnanian appealed this decision to the Maryland Court of Appeals and the case was remanded back to the Board of Public Works for further consideration. K. Hovnanian submitted a modified proposal to the Board in May, 2013. However, MDE did not provide for public hearings or allow public comments on the revised License application regarding the current stormwater management system. As a result, the Board should not have voted to approve the License. CBF is committed to restoring water quality in the Chesapeake Bay and preserving the conservation of wetlands from polluted stormwater runoff.
A Hearing in this matter was held on June 28, 2016 and on September 20th, Judge John W. Sause, Jr., issued a Memorandum Affirming the decision made by the Board of Public Works approving the Tidal Wetlands License. CBF and our co-petitioners filed an Appeal of this decision to the Maryland Court of Special Appeals on October 20, 2016.
This case is being handled by CBF Litigation Attorney Paul Smail.
Circuit Court of Maryland For Anne Arundel County
Vieglais v. Dep’t of Natural Resources
Case No.: C-02-CV-15002402
The owners of Beehive Beach Farm, which consists of approximately 28.09 acres of land and is located on Sahlin Farm Road in Annapolis, Maryland, sought a variance to construct a home near steep slopes descending to Hopkins Creek on the Severn River. The Administrative Hearing Officer ("AHO") denied the variance after a hearing on December 2, 2014 stating that the conditions for granting a variance were not met.
Prior to the AHO decision, the Maryland Department of Natural Resources ("DNR") disapproved the proposed development of the property, asserting that it violated the terms of the Forest Conservation Easement ("FCE"). The purpose of the FCE is to restrict and limit the use of land and contiguous waters to preserve the state's forests and protect the Chesapeake Bay Critical Area shoreline and aquatic habitat. The FCE prohibits construction of new structures within the Critical Area Buffer. Approximately 19.07 acres of the Vieglais property is located in the critical area and is classified Resource Conservation Area ("RCA").
As a result, the property owners filed a lawsuit against DNR in the Circuit Court for Anne Arundel County on July 31, 2015 alleging breach of contract and requesting injunctive and declaratory relief pertaining to the provisions of the FCE. They claim DNR violated the terms of the FCE, by not allowing them to construct a new dwelling on their waterfront property at the location they desired. They also appealed the AHO decision. However, the administrative appeal was stayed pending the outcome of the suit against DNR.
Conservation easements serve a critical role in preserving riparian forests and other sensitive lands from development in the Chesapeake Bay watershed. CBF filed a Motion to Intervene in the Circuit Court action on December 11, 2015, as an interested person on the side of DNR to ensure enforcement and interpretation of the FCE. Plaintiffs filed an Opposition to CBF's intervention and a Motions Hearing was held on March 9, 2016. On March 15th CBF's Motion to Intervene was granted. A Pre-trial Conference was held on July 21, 2016 and Discovery has concluded. After Discovery was completed, DNR, CBF and fellow co-intervenors (James and Sylvia Earl, Sherwood Forest Company and Sherwood Forest Club, Inc.) filed Motions for Summary Judgement asserting that Defendants are entitled to Judgment in their favor as a matter of law. Plaintiffs also filed a Motion for Summary Judgment. As a result, a Complex Motions Hearing is scheduled for December 19, 2016 and Trial is scheduled to begin on February 6, 2017.
This case is being handled by CBF Litigation Attorney Paul Smail.
U.S. Court of Appeals for the D.C. Circuit
White Stallion Energy Center, et al. v. EPA
Case No.: 12-1100
Since 2005, CBF has successfully partnered with other organizations in court to require stringent controls on coal-fired power plants to reduce air borne pollution. In collaboration with others, CBF’s legal actions led to the creation of federal regulations, called the Mercury and Air Toxics Standards (MATS), which are designed to limit the emission of mercury and other toxic air pollutants. The reduction of airborne mercury will reduce the amount of mercury present in fish found within the Chesapeake Bay watershed and protect brain development in children, among other things. However, the MATS have been repeatedly challenged in court by the electric generating industry and some states. While those actions have been defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS.
CBF joined in the filing of a brief opposing the challengers' petition for certiorari. Unfortunately, the petition was granted and the case was heard by the Supreme Court on March 25, 2015, to consider whether EPA should have evaluated the costs of the new rule versus the benefits to human health and the environment before it decided to develop the regulations.
On June 19, 2015, in a 5-4 decision, the United States Supreme Court ruled against EPA and remanded the case back to the United States Court of Appeals for the D.C. Circuit for review of the economic impacts of the rule. The Supreme Court found EPA should have considered industry's costs to comply with the standards before it developed the rule. This, despite the fact that EPA did consider those costs after deciding that mercury and other hazardous pollutants emitted by power plants presented a significant health risk requiring regulation.
After the case was remanded, the National Mining Association and other parties asked the court to throw the standards out. On December 15, 2015, the D.C. Circuit rejected this attempt and remanded the proceedings to EPA without vacating the Mercury and Air Toxics Standards final rule. Undeterred, on March 14, 2016, the coal-industry allied states filed another Petition for Writ of Certiorari with the United States Supreme Court. The Petitioners are requesting the Court review the D.C. Circuit Court's decision not to vacate the MATS rule. CBF joined the Intervenor's Brief in Opposition to the Petition on April 13th. On June 13th, the United States Supreme Court denied the industries Petition and the case continued in the Circuit Court.
EPA completed its economic analysis supporting the rule and on April 25, 2016, submitted its Supplemental Findings in response to Michigan v. EPA. A day later, Murray Energy and other industry groups filed a petition seeking review of EPA's findings in the United States Court of Appeals for the D.C. Circuit. CBF and other environmental groups and organizations filed a Motion For Leave to Intervene opposing the petition. Our Motion to Intervene was granted on August 3, 2016. The Court has issued a briefing schedule and final briefs are due by March 24, 2017.
CBF has intervened in another industry lawsuit targeting the mercury and air toxics standards for power plants. In this challenge, industry groups have appealed EPA's denial of their petitions asking the agency to reconsider the standards. This case is pending in the United States Court of Appeals for the District of Columbia Circuit and on hold pending resolution of the above appeal challenging the MATS rule.
These matters are being handled by counsel for Earthjustice and CBF Vice President for Litigation Jon Mueller. CBF is participating with a number of other environmental groups, including Sierra Club and the Natural Resources Defense Council, as well as public health organizations like the American Lung Association.
MARYLAND CRITICAL AREA CASES
Anne Arundel County Board of Appeals
In the Matter of Snyder Development Corporation and Snyder/Gladstone, LLC.
Case No.: BA 8-16A
Snyder Development Corporation is proposing to build a subdivision, known as Turtle Run, directly on the banks of Deep Cove Creek in Churchton, Maryland. The subdivision is located entirely within the Critical Area. On March 2, 2016, the Anne Arundel County Office of Planning & Zoning (OPZ) granted a Conditional Sketch Plan approval for the Turtle Run subdivision. The approval allows the developer to transfer building density from non-contiguous parcels located outside of the Critical Area or in the Limited Development Area (LDA) to separate property that is located entirely within the Resource Conservation Area (RCA). This transfer would allow the developer to reconfigure lots and transfer density within the critical area. The actions of the OPZ are contrary to the purpose and intent of critical area and county law.
On April 1, 2016, CBF filed an appeal of OPZ's Conditional Sketch Plan with the Anne Arundel County Board of Appeals. A similar appeal was filed by SACReD, West/Rhode Riverkeeper and local property owners. Hearings in this case began on September 7, 2016 and continue through May 2017.
This case is being handled by CBF Litigation Attorneys Ariel Solaski, Paul Smail, and Jon Mueller.
CONOWINGO DAM RELICENSING
Federal Energy Regulatory Commission
Project No.: P-405-106
Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.
In August, 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after Maryland Department of the Environment issues a water quality certification for the projects. CBF continues to monitor the projects for any new developments and will file comments or take action when necessary to protect water quality and aquatic resources.
This matter is being handled by CBF Litigation Attorney Paul Smail, CBF senior scientist Beth McGee and CBF’s Maryland Office.