(December 4, 2019) – NACWA led a group of national and state stormwater associations in filing a November 25 brief with the US Supreme Court in support of the review of a Maryland court decision that could open municipal stormwater utilities to greater Clean Water Act (CWA) liability.

A four-to-three majority of the Maryland Court of Appeals ruled earlier this year that CWA permits for municipal separate storm sewer systems (“MS4s”) can require MS4s to remediate nonpoint source pollution that does not originate from—or even enter—their systems, is outside their geographic boundaries, and over which they have no authority or control.  

The Maryland court reached this decision by misinterpreting the CWA and its enabling regulations. The decision threatens to expand the obligations of local communities that own and operate MS4 systems—and all point source owners and operators—far beyond what the CWA permit program allows.  This could require diversion of necessary public ratepayer dollars to pay for private pollution, while subjecting clean water utilities to enforcement actions and citizen suits.

Other organizations joining the brief include the National Municipal Stormwater Alliance, the Association of Missouri Missouri Cleanwater Agencies, the Maryland Municipal Stormwater Association, the North Carolina Water Quality Association, the South Carolina Water Quality Association, the Virginia Municipal Stormwater Association, and West Virginia Municipal Water Quality Association. 

For more information on this litigation, contact Emily Remmel, NACWA’s Director of Regulatory Affairs.