Maryland court denies request to remand permit issued to Upper Potomac River Commission

By Davion Smith | Aug 10, 2018

ANNAPOLIS, Md. (Legal Newsline) – A state-owned wastewater treatment facility in Westernport, Md., now has continued authorization to dump effluent into the North Branch Potomac River, despite concerns from a group that the practice is significantly affecting the river's water quality.

Environmental protection organization Potomac Riverkeeper Network submitted a petition in the Maryland Court of Special Appeals requesting the court to order the Maryland Department of Environment (MDE) to reconsider awarding a permit renewal that would allow the Upper Potomac River Commission to discharge effluent in the river from its facility.

The organization brought its case to the Court of Appeals after being rejected by the Circuit Court for Allegany County.

But the appeals court also denied the request July 26, ruling that Potomac Riverkeeper Network failed to show that its objections satisfied the legal conditions under which a permit issuance may be brought for reconsideration.

Maryland's environmental laws state that any entity wanting to dump effluent in state waters must first get approval in the form of a permit from the MDE.

But, the MDE is required to give the public an opportunity to comment before it decides the conditions of an effluent permit. Persons who participated in the comment process may seek judicial review if they are dissatisfied after the permit is issued.

If a judicial review is held, it must be limited to concerns raised during the comment process, state environmental laws say. The same laws, however, allow a court to consider objections raised outside the scope of issues that were presented during comment process if "the objections were not reasonably ascertainable during the comment period," or the grounds for the objections "arose after the comment period," the ruling states.

Potomac Riverkeeper Network contends that tests and observations made after the comment period showed that the river had become considerably discolored and unsightly. It contended that stricter effluent restrictions must be placed on the Upper Potomac River Commission's permit so that its effluent doesn't cause damaging interference to swim and fishing activities in the river.

Potomac Riverkeeper Network further argued that the discoveries on the river discoloration arose after the comment period, so it is warranted for the permit to be remanded back to the MDE for reconsideration.

Potomac Riverkeeper Network further said that based on the water discoloration it discovered, the permit renewal that Potomac River Commission was awarded would be in direct violation of Maryland's environmental laws.

Those laws say "The waters of this state may not be polluted by ... waste in amounts sufficient to be unsightly, produce taste or odor, change the existing color to produce objectionable color for aesthetic purposes, create a nuisance, or interfere directly or indirectly with designated uses," the ruling states.

Though the Court of Appeals acknowledged the Potomac Riverkeeper Network's argument, it accepted counter arguments that stated that the issues of discoloration raised by Potomac Riverkeeper Network are "not materially different" from objections that had already been considered during the comment period.

As such, when the court of appeals handed down its decision on July 26, it upheld the circuit court's decision not to put the effluent permit up for reconsideration.

Though an effluent permit is valid for five years, the MDE had created a clause that provides for the current permit to be "reopened" to include additional limitations, if such a course of action becomes necessary.

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