Schneider v. Donaldson Funeral Home, P.A. et al

Filing 25

MEMORANDUM. Signed by Judge J. Frederick Motz on 1/6/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ALAN J. SCHNEIDER

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v.
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DONALDSON FUNERAL HOME, P.A.,
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et al.
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Civil No. JFM-16-2843

MEMORANDUM
Plaintiff Alan J. Schneider (“Schneider”) brings this lawsuit against defendants
Donaldson Funeral Home, P.A., Donaldson Properties No. 3 LLC, Dewitt Jay Donaldson
(collectively “Donaldson”), and Howard County, Maryland (“the County”), seeking declaratory
and injunctive relief and the imposition of civil penalties under the Federal Water Pollution
Control Act (“the Act” or “CWA”). Schneider asserts multiple violations of the CWA relating to
Donaldson’s construction of a funeral home and mortuary on a parcel of land near Schneider’s
residential property and abutting a state waterway. Now pending is Schneider’s motion for
temporary restraining order (“TRO”) and preliminary injunctive relief, (ECF No. 12),
Donaldson’s motion to dismiss (ECF No. 14), and the County’s motion to dismiss, (ECF No.
10). The motions are fully briefed and no oral argument is necessary. See Local R. 105.6. For
the reasons set forth below, Schneider’s motion for temporary restraining order and preliminary
injunctive relief is denied, and both Donaldson’s and the County’s motions to dismiss are
granted.
BACKGROUND
This dispute arises out of Donaldson’s construction of a funeral home and mortuary in
Howard County, Maryland. Plaintiff lives on a residential property at 12598 Clarksville Pike in
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Clarksville, Maryland, near defendant Donaldson’s construction site. (ECF No. 1 ¶¶ 49–50).
Donaldson’s property is intersected on the northwest corner by a small waterway (“the
Tributary”) that flows parallel to the back property line and downstream towards Schneider’s
residential lot and alongside his property line. (Id. ¶¶ 50–51). Schneider derives aesthetic
benefit from the Tributary bordering his residential property and he “regularly enjoy[s] the
natural environment behind [his] home.” (Id. at Ex. 5, p. 2). The Tributary eventually flows into
Carrolls Branch I, a slightly larger waterway that has been designated, along with its tributary
streams, as a “Tier II” waterway by the Maryland Department of the Environment (“MDE”). (Id.
¶¶ 51–52). MDE designates certain bodies of water as Tier II when “the water quality . . . is
better than that required by water quality standards to support the existing and designated uses.”
MD. CODE REGS. 26.08.02.04-1(C) (2016). Carrolls Branch I has been designated for use as
Recreational Trout Waters and Public Water Supplies. (ECF No. 1 ¶ 53).
In January of 2010, Donaldson proposed the construction of a funeral home and mortuary
on a parcel of residential property in Clarksville, Maryland located upstream from Schneider’s
residence. (Id. ¶ 47). Despite the efforts of Schneider and other local residents to oppose
Donaldson’s development plan, the County’s Board of Appeals (“the Board”) granted Donaldson
a conditional use permit to build the proposed mortuary in July 2013. (Id. ¶ 61). The Board’s
approval was conditioned on Donaldson’s adherence to the Amended Conditional Use Plan the
defendant submitted to the Board in August 2012. (Id. ¶ 62, Ex. 8, p. 2). The Amended
Conditional Use Plan did not identify any wetlands on the site, and an expert hired by Donaldson
to testify at the Board hearing stated that he did not find any wetlands when inspecting the
property. (Id. ¶ 63, 65, Ex. 13, Ex.14, p. 13). According to Schneider, Donaldson never
submitted a “Social and Economic Justification” (“SEJ”) for the building project. (Id. ¶ 66).

2

The Board, Schneider claims, is required to request an SEJ from a permit applicant prior to
allowing the discharge of material into a Tier II waterway, and the Board must consider the SEJ
before approving a construction permit. (Id.).
In August of 2015, MDE visited the Donaldson site and observed the presence of
jurisdictional wetlands. (Id. ¶ 63). In response, Donaldson updated his building site plan to
include the wetlands and submitted the revised plan to the County’s Department of Planning and
Zoning (“DPZ”) for permit consideration in October 2015. (Id. ¶ 67). In November, Schneider
and other local citizens informed DPZ that Donaldson was required to apply for coverage under
MDE’s General Permit for Stormwater Associated with Construction Activity (“GCP”) before
commencing construction on the property. (Id. ¶ 72–73). Schneider also told the County that an
antidegradation review was required prior to granting a construction permit. (Id. ¶ 71).
According to Schneider, Donaldson began clearing vegetation and moving heavy equipment on
the property on March 26, 2016. (Id. ¶ 74). On April 4, 2016, DPZ officially issued Donaldson
a “Commercial New Building Permit.” (Id. ¶ 68). The County, Schneider claims, never
conducted any kind of antidegradation review, and Donaldson did not receive coverage under the
state GCP before his building permit was approved by DPZ. (see Id. ¶ 68–74). Donaldson
applied for coverage under the GCP no earlier than April 4, 2016. (Id. ¶ 75). Schneider alleges
Donaldson’s GCP application included outdated information about the property and that
Donaldson did not include a no-discharge alternative analysis or an SEJ as required to satisfy
Maryland’s Tier II Antidegradation Review requirements. (Id. ¶ 77). Plaintiff claims that
Donaldson’s construction of the funeral home and mortuary is causing the unlawful discharge of
materials into the Tributary. (See id. ¶¶ 85–105).

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Schneider sent a Notice of Intent to Sue (NOI) under Section 505 of the CWA to the
County and to Donaldson on April 6, 2016, and he mailed copies of the NOI to the Administrator
of the EPA, the Maryland Secretary of the Environment, and the Regional Adminsitrator for the
EPA Region 3. (Id. ¶ 79). All intended recipients received copies of the NOI between April 7
and April 11, 2016. (Id. ¶ 80). Schneider filed a complaint in this court on August, 12 2016.
The complaint asserts three claims against Donaldson under the CWA: discharge of pollutants
without an authorizing permit under Section 402 (Count I), discharge of dredge or fill material to
jurisdictional waters without an authorizing permit under Section 404 (Count II), and failure to
conduct an antidegradation review (Count III). The complaint also brings one claim against the
County under the CWA for failure to conduct an antidegradation review (Count IV). On
September 9, 2016, Schneider filed a motion for a TRO and preliminary injunctive relief. (ECF
No. 12). The County filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure on September 9, 2016. (ECF No. 10). Defendant Donaldson
filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) on September 13, 2016, seeking
dismissal of all three counts. (ECF No. 14).
STANDARD
Schneider moves for a TRO and preliminary injunction against both Donaldson and the
County. In order to demonstrate the appropriateness of a TRO or a preliminary injunction, the
plaintiff must establish “(1) he is likely to succeed on the merits, (2) he is likely to suffer
irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor,
and (4) an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). Preliminary injunctive relief is “an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 2948, pp. 129–130 (2d ed.1995)).
Donaldson and the County move to dismiss Schneider’s claim under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Federal courts maintain subject
matter jurisdiction only over actual “cases or controversies,” U.S. CONST. art. III, § 2, and the
doctrine of standing is a critical aspect of this constitutional requirement. Marshall v. Meadows,
105 F.3d 904, 906 (4th Cir.1997); see also Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006)
(citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454
U.S. 464, 471–76 (1982)) (“Article III gives federal courts jurisdiction only over ‘cases and
controversies,’ . . . and the doctrine of standing identifies disputes appropriate for judicial
resolution.”). In order to establish standing, a plaintiff must demonstrate: 1) he has suffered an
“injury in fact” which is both “concrete and particularized” and “actual or imminent,” rather than
“‘conjectural’ or ‘hypothetical;’” (2) the injury is “fairly traceable to the challenged action of the
defendant and not the result of the independent action of some third party not before the court;”
and (3) it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations
omitted). The CWA gives standing to any “person or persons having an interest which is or may
be adversely affected,” 33 U.S.C. § 1365(a), (g), and the CWA standing threshold is satisfied
when a litigant meets the requirements for standing under Article III, see, e.g., Sierra Club v.
Virginia Elec. & Power Co., 145 F. Supp. 3d 601, 609 (E.D. Va. 2015).
Additionally, defendants move to dismiss Schneider’s CWA claims under Federal Rule
of Civil Procedure 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6) for failure to
state a claim, the court “must accept as true all of the factual allegations contained in the

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complaint” and “draw all reasonable inferences in favor of the plaintiff.” E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). The complaint must
allege facts sufficient to “state a claim to relief that is plausible on its face,” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007), and allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009).
The court is not required to accept the legal conclusions derived from the facts, and “[a]
complaint that provides no more than labels and conclusions or a formulaic recitation of the
elements of a cause of action” is insufficient to meet the pleading standard. Twombly, 550 U.S.
at 555; see also Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (stating that the “mere
recital of elements of a cause of action, supported only by conclusory statements, is not sufficient
to survive a motion made pursuant to Rule 12(b)(6)”). Generally, a motion to dismiss for failure
to state a claim “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); see
also Tobey v. James, 706 F.3d 379, 387 (4th Cir. 2013). In considering a motion to dismiss
under Rule 12(b)(6), a court is generally limited to reviewing the allegations contained in the
complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016). The
court may, however, consider documents that are “explicitly incorporated into the complaint by
reference and those attached to the complaint as exhibits,” a “document submitted by the movant
that was not attached to or expressly incorporated in a complaint, so long as the document was
integral to the complaint and there is no dispute about the document's authenticity,” id. at 166,
and “matters of public record,” Moore v. Flagstar Bank, 6 F. Supp. 2d 496, 500 (E.D. Va. 1997).
ANALYSIS

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Plaintiff Scheider moves for a TRO and preliminary injunctive relief against defendants
Donaldson and the County, requesting that the court order Donaldson to stop construction of the
funeral home and mortuary on his Clarksville property. Schneider’s complaint alleges three
claims against defendant Donaldson under the CWA: discharge of pollutants without an
authorizing permit under section 402 (Count I); discharge of dredge or fill material to
jurisdictional waters without authorizing permit under section 404 (Count II); and failure to
conduct an antidegradation review (Count II). Additionally, Schneider claims the County has
violated the CWA by failing to conduct an antidegradation review (Count IV). Both defendants
move to dismiss all claims against them under the CWA for lack of standing and for failure to
state a claim for which relief can be granted.
I.

Statutory Overview
Congress amended the CWA in 1972 “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters” and with an eye toward “the national goal that the
discharge of pollutants into the navigable waters be [e]liminated by 1985.” 33 U.S.C. §1251(a);
see also Envtl. Prot. Agency v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,
203 (1976). “The centerpiece of the Clean Water Act is section 301(a),” Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th Cir. 2000), which provides that
“[e]xcept as in compliance with this section [and other sections] of this title, the discharge of any
pollutant by any person shall be unlawful.” 33 U.S.C. 1311(a). The Act provides a few narrow
exceptions to section 301’s general prohibition; notably, the discharge of pollutants is allowed in
accordance with the boundaries of a permit properly issued through the National Pollution
Discharge Elimination System (“NPDES”). See 33 U.S.C. § 1342.

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In order to ensure maximum compliance with the statute’s mandate, the CWA sets up a
robust regulatory and enforcement scheme that contemplates interlocking but “distinct roles for
the Federal and State Government.” PUD No. 1 of Jefferson Cty. v. Washington Dep't of
Ecology, 511 U.S. 700, 704 (1994). Section 303 of the Act requires states to set up parallel
regulatory systems for their own waterways that are tailored to specific intrastate needs. See 33
U.S.C. § 1311, 1314. The standards developed by the state provide “a supplementary basis . . .
so that numerous point sources, despite individual compliance with effluent limitations, may be
further regulated to prevent water quality from falling below acceptable levels.” California ex
rel. State Water Res. Control Bd., 426 U.S. at 205. States are required to classify intrastate
waterways according to water quality and designated uses and tailor their discharge regulations
accordingly. See 33 U.S.C. 1313(c)(2)(A); see also PUD No. I, 511 U.S. at 704. Section 303
also includes an “antidegradation policy” that requires “state standards be sufficient to maintain
existing beneficial uses of navigable waters, preventing their further degradation.” PUD No. 1,
511 U.S. at 705. The state must implement its own statewide antidegradation policy that ensures
“[e]xisting instream water uses and the level of water quality necessary to protect the existing
uses shall be maintained and protected.” Id. (quoting 40 C.F.R. § 131.12 (1993)).
The statutory scheme allows for NPDES permits to be issued directly by the EPA
Administrator or, if a state’s water quality regulation program has been approved by the
Administrator, the EPA may delegate its permitting authority to the state regulatory body. See
33 U.S.C. § 1342(a), (b); see also Piney Run Pres. Ass'n v. Cty. Comm'rs of Carroll Cty., MD,
268 F.3d 255, 265 (4th Cir. 2001). Maryland’s regulatory scheme and its accompanying
antidegradation policy has been approved by the EPA, and MDE retains the authority to issue
NPDES permits within the state. See Piney Run Pres. Ass'n, 268 F.3d at 265; see also MD. CODE

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REGS. 26.08.02.04. Permits may be issued to pollutant dischargers on an individual basis, see 40
C.F.R. § 122.21, or the state may approve a general discharge permit for a specific area under
which individual dischargers may apply for coverage, see 40 C.F.R. § 122.28. Requirements for
obtaining coverage under either an individual or a general permit for discharge of pollutants vary
according to a number of contextual factors, and MDE has established a complex apparatus
regulating the issuance and enforcement of discharge permits in the state. See generally MD.
CODE REGS. 26.08.04.
The MDE issued an approved GCP that took effect on January 1, 2015. (See ECF No. 1
¶ 72, Ex. 16). In accordance with EPA regulations, any entity planning to disturb more than one
acre of land during the course of construction must apply for coverage under MDE’s GCP before
commencing work on a construction project. (See id. at Ex. 16, p. 2, Part (I)(B)(3)(c)); see also
40 C.F.R. § 122.26(b)(15)(i). Parties seeking coverage under the GCP must submit a Notice of
Intent (“NOI”) in order to obtain approval, (See id. at Ex. 16, pp. 5–8, Part (II)), and MDE
mandates a stringent review process for all coverage applications and outlines the requirements
for continued compliance with permit terms, (See generally id. at Ex. 16). Once a party is
granted coverage under the GCP, MDE regularly monitors the party’s project to ensure no
violations are occurring. (See id. at Ex. 16, Part(IV)(C)).
II.

Motion for TRO and Preliminary Injunctive Relief against defendants
Donaldson and the County
Schneider seeks an TRO and/or a preliminary injunction against defendant Donaldson

requiring it to cease all work on his property pending the resolution of these proceedings. (ECF
No. 12, pp. 1–2). Plaintiff also requests that the court enjoin the building permits issued by the
County to Donaldson and require the County to adhere to its responsibilities under the CWA

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going forward. (Id. at p. 2). Donaldson insists that it has in fact obtained coverage under MDE’s
GCP and is in full compliance with state regulatory requirements and the CWA. (ECF No. 16, p.
2). The County contends Schneider has failed to identify any violation of federal law on its part,
and as such Schneider is not entitled to a TRO or preliminary injunctive relief. (ECF No. 17, p.
3).
In order to demonstrate that he is entitled to a TRO and preliminary injunctive relief
against defendants, Schneider must establish a likelihood of success on the merits of his claim, a
likelihood of irreparable harm in the absence of relief, that the balance of equities weighs in his
favor, and that an injunction is in the public interest. See Winter, 555 U.S. at 20. Again,
preliminary injunctive relief is considered an extreme remedy, and plaintiff carries a heavy
burden of persuasion. See Mazurek v. Armstrong, 520 U.S. at 972. Schneider’s claims against
Donaldson and the County all depend on the veracity of his allegation that Donaldson is
discharging material into the Tributary in the absence of a valid permit from MDE. Since
Donaldson has been covered under MDE’s GCP since April 19, 2016, (ECF No. 16, Ex. A),
there does not appear to be any ongoing noncompliance with the CWA on the part of either
defendant. Plaintiff therefore lacks standing to sue defendants and he has failed to demonstrate
that he is likely to succeed on the merits of his claims. 1
III.

Defendants’ Motions to Dismiss
Donaldson and the County move to dismiss the claims against them under Rule 12(b)(1)

for lack of standing and 12(b)(6) for failure to state a claim. For the reasons elaborated below,
Schneider lacks standing to sue both defendant Donaldson and the County. Furthermore,

1

Plaintiff’s lack of standing to sue both defendants and the deficiencies in his CWA claims are
examined in detail in the discussion of defendants’ motions to dismiss in Section II.
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Schneider fails to state a cognizable claim against either Donaldson or the County under the
CWA.
a. CWA claims against defendant Donaldson
As a threshold matter, Schneider appears to lack standing to sue defendant Donaldson.
The CWA provides citizens with a right of action “against any person . . . who is alleged to be in
violation of [] an effluent standard or limitation,” 33 U.S.C. § 1365(a)(1)(A), and a citizen will
have standing under the citizen suit provision if the traditional Article III requirements are
satisfied, see Virginia Elec. & Power Co., 145 F. Supp. 3d at 609. Standing requires the plaintiff
to demonstrate injury in fact that is fairly traceable to actions of the defendant and is likely to be
redressed by a favorable decision on the part of the court. Defenders of Wildlife, 504 U.S. at
560. 2 The Supreme Court has held, however, that “citizens lack statutory standing under §
505(a) to sue for violations that have ceased by the time the complaint is filed.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175 (2000) (citing Gwaltney of
2

While Schneider fails to sufficiently demonstrate an ongoing violation as required for standing
under Section 505, the court notes that he has successfully demonstrated the requirements for
Article III standing. With respect to the injury requirement, the Supreme Court has stated that
“environmental plaintiffs adequately allege injury in fact when they aver that they use the
affected area and are persons ‘for whom the aesthetic and recreational values of the area will be
lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727,
735 (1972). Schneider has alleged in his complaint that Donaldson is discharging pollutants into
a stream that abuts his property, that plaintiff regularly enjoys the area behind his lot where the
stream flows, and that plaintiff derives aesthetic benefit from the presence of the stream. (See,
e.g., ECF No. 1, Ex. 5, p. 2). Having identified a specific and personalized grievance, Schneider
has alleged sufficient injury in fact to establish standing with respect to defendant Donaldson.
Furthermore, the alleged injury is certainly “fairly traceable to the challenged action of the
defendant.” Defenders of Wildlife, 504 U.S. at 560 (quoting Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41–42 (1976))). Schneider claims his injury is caused by the
discharge of pollutants into the Tributary and that Donaldson’s construction of the mortuary
upstream is the direct cause of the offensive discharge. (see, e.g., ECF No. 1. ¶¶ 85–95). The
CWA authorizes federal courts to issue injunctions and impose civil penalties in the event that
they determine an individual or entity has violated the Act, see 33 U.S.C. § 1365(a), and
therefore a favorable decision by this court is likely to redress the alleged harm.
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Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 56–63 (1987)). While
Schneider may have established Donaldson’s original noncompliance with CWA requirements in
his complaint, Donaldson has demonstrated both that it is currently covered under MDE’s GCP
as required by the federal and state regulatory regime and that it is apparently in compliance with
the terms of the permit.
Schneider asserts three claims against Donaldson under the CWA alleging three separate
violations of the Act: (1) discharge of pollutants into the Tributary without an authorizing permit
under Section 402; (2) discharge of dredge or fill material to jurisdictional waters without an
authorizing permit under Section 404; and (3) failure to conduct an antidegradation review.
(ECF No. 1, pp. 16–19). Schneider is correct that Donaldson originally failed to obtain the
necessary discharge permit from MDE in order to commence construction. (see ECF No. 14, Ex.
A). Indeed, MDE made note of Donaldson’s noncompliance during an April 4, 2016 inspection
of the property, when it also determined that the wetlands present on the property were well
outside the area of disturbance contemplated by the mortuary project. (Id.). Donaldson,
however, did eventually apply for and retain coverage under MDE’s validly issued GCP on April
19, 2016. (see ECF No. 14, Ex. C). Furthermore, when MDE conducted a site visit on
Donaldson’s property on May 6, 2016, the inspection revealed no apparent violations of relevant
environmental regulations. (Id. at Ex. D). Donaldson appears to be in full compliance with the
regulatory requirements imposed by MDE, and therefore Schneider’s allegations are insufficient
to establish any current or ongoing violations on the part of the defendant.
Even if Schneider was able to establish standing to sue under the CWA, it is clear from
the allegations in the complaint that the alleged CWA violations in Schneider’s complaint are
merely collateral attacks on MDE permitting decisions masquerading as federal statutory claims

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under the CWA. The Fourth Circuit has stated that when a lawsuit is “at root a collateral attack”
alleging “essentially technical violations in the EPA permitting process,” the suit is inappropriate
for resolution by the federal district court. Palumbo v. Waste Tech. Indus., 789 F.2d 156, 160
(4th Cir. 1993); see also Sugarloaf Citizens Ass’n v. Montgomery Cty., Md., 33 F.3d 52 (4th Cir.
1994). As another court in this circuit explained, “[a] citizen suit alleging a violation of a valid
permit is a separate at distinct action from one that challenges the very validity of the permit.”
Sierra Club v. Virginia Elec. & Power Co., 145 F. Supp. 3d 601, 606 (E.D. Va. 2015). While a
citizen can bring a claim under the CWA alleging a violation of a duly issued discharge permit, a
challenge to the underlying validity of an existing permit “constitutes an impermissible collateral
attack.” Id.; see also Ohio Valley Envtl. Coal, Inc. v. Apogee Coal, LLC, 531 F. Supp. 2d 747,
759 (S.D.W. Va. 2008). Schneider does not, as Donaldson points out, allege in his complaint
that Donaldson is violating a valid permit already issued by the MDE or the terms of defendant’s
coverage under the GCP. (See ECF No. 1 ¶¶ 82, 88; ECF No. 22, p. 8). Such an allegation
would, presumably, sustain a claim for violation of the CWA. See Sierra Club, 145 F. Supp. 3d
at 608. Instead, however, Schneider’s complaint alleges Donaldson is discharging materials
without a valid permit and that the defendant failed to comply with the procedural requirement to
conduct an antidegradation review prior to seeking a permit from MDE. (See id. at pp. 16–19). 3
Apparently realizing after Donaldson’s filing in response to his motion for a TRO that
Donaldson did in fact have coverage under the GCP, Schneider attempts to reformulate his
objection as a challenge to the process through which Donaldson was able to gain approval from
the MDE. (See ECF No. 21, p. 2). This reformulation “is simply [an] expression of displeasure
3

It is worth noting that the regulation regarding Tier II antidegredation review contains
conditional language suggesting that such a review is not required in all circumstances. See MD.
CODE REGS. 26.08.02.04-1. MDE is appropriately the regulatory body that determines whether
antidegradation review is necessary or required.
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with the alleged inadequacies of [MDE] review,” Sugarloaf Citizens Ass’n, 33 F.3d 52 (quoting
Palumbo, 989 F.2d at 160), and “constitutes an impermissible collateral attack,” Sierra Club, 145
F. Supp. 3d at 606. Federal courts are inappropriate forums in which to resolve challenges to a
state’s permitting decisions, see id. at 608, and this case appears to be an appropriate
circumstance for this court to abstain from asserting jurisdiction under Buford .v Sun Oil, Co.,
319 U.S. 315 (1943). 4 Maryland provides the plaintiff with an adequate venue in which to air his
grievances with MDE’s permitting decision and an opportunity for review of his objections. See,
e.g., MD. CODE ANN., Environment § 1–601 (West 2016). Schneider’s collateral attack on
MDE’s issuance of GCP coverage to Donaldson is inappropriate for resolution by this court, and
his objections should be brought according to the review procedures set up by the state.
b. CWA claim against the County
The facts alleged in Schneider’s complaint fail to sufficiently demonstrate he has
standing to sue the County under the CWA. The CWA allows citizens to bring suit to enforce an
environmental standard or limitation against an individual or entity alleged to be in violation of

4

The Supreme Court has held that federal courts should abstain from exercising jurisdiction over
cases which primarily concern complex issues of state law when timely and adequate state court
review is available to the plaintiff. See Buford, 319 U.S. at 333. So-called “Buford abstention”
is appropriate with respect to orders of state administrative agencies when: (1) there are “difficult
questions of state law bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar;” or (2) the “exercise of federal review of the
question in a case and in similar cases would be disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public concern.” New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 491 U.S. 350, 361 (1989). The Fourth Circuit has recognized the
appropriateness of Buford abstention in cases involving collateral attacks on state permitting
decisions. See, e.g., Palumbo, 789 F.2d at 160 (mandating Buford abstention in a citizen suit
under RCRA involving a challenge to the Ohio EPA’s issuance of a hazardous waste permit);
Sugarloaf Citizens Ass’n, 33 F.3d 52 (upholding the district court’s application of Buford
abstention in a citizen suit under CAA and RCRA alleging error in the MDE permit issuing
process); see also Sierra Club, 145 F. Supp. 3d at 606 (acknowledging the suitability of Buford
abstention in cases involving collateral attacks on state permitting decisions brought in federal
court under the guise of alleged CWA violations).
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the Act. 33 U.S.C. § 1365(a)(1)(A). Again, standing under the CWA requires the plaintiff to
establish injury in fact that is fairly traceable to the actions of the defendant and is likely to be
redressed by a favorable judicial resolution. Defenders of Wildlife, 504 U.S. at 560. While
Schneider does allege a concrete and specific injury - the alleged degradation of the Tributary
adjacent to his property - he does not sufficiently demonstrate that the injury can be traced
directly to the actions of the County. Furthermore, even if Schneider can show a tenuous
connection between the County’s actions and his injury, he does not show that a favorable
decision by this court is likely to redress his grievances.
The core of Schneider’s claim against the County, though not entirely clear from the facts
alleged in the complaint, is that the County violated the CWA by issuing Donaldson a building
permit prior to conducting an antidegradation review as outlined in the state water regulations.
(ECF No. 1 ¶ 120). In support of his claim, Schneider points to the state’s antidegradation policy
implementation procedures in the Code of Maryland Regulations, which imposes certain
obligations on entities applying for certain types of discharge permits. MD. CODE REGS.
26.08.02.04-1. These antidegradation regulations, however, clearly impose obligations
specifically on permit applicants and MDE. They make no mention whatsoever of the
responsibilities of local zoning boards in issuing basic building permits. See id. Even if, as
Schneider alleges, it was improper for the County to award Donaldson a building permit prior to
Donaldson receiving pollution discharge coverage under the GCP from MDE, this potential
procedural violation ceased when Donaldson obtained GCP coverage on April 19, 2016.
Schneider’s objection, therefore, is more appropriately aimed at MDE and its permit processes

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than at the County. 5 The alleged injury to the Tributary, which Schneider claims is the result of
Donaldson’s discharge of material from the construction site, is traceable to the actions of
Donaldson in commencing the construction and to MDE for allowing Donaldson coverage under
the GCP. Perhaps the County’s issuance of a Commercial Building Permit is proximately related
to the discharge of pollutants from Donaldson’s property, but the connection is tenuous at best.
Furthermore, the court is not in a position to order the abeyance of a local building permit which
appears to have been validly issued and subjected to thorough review processes when the alleged
issue - Donaldson’s failure to obtain a discharge permit from MDE - has since been remedied.
Schneider’s claim against the County is simply not one for which the court can assign an
appropriate remedy.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for a TRO and preliminary injunctive relief
is denied. Defendant Donaldson’s motion to dismiss Counts I–III is granted. The County’s
motion to dismiss Count IV is granted. A separate order follows.

January 6, 2017

/s/
J. Frederick Motz
United States District Judge

Date

5

As explained in Section III(a) supra, Schneider’s issues with MDE permit processes are
inappropriate for resolution by this court.
16