SB 334
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
Senate Bill 334 (Senator Carter)
Judicial Proceedings and Education, Health, Environment and Transportation
and Environmental Affairs
Water Pollution Control - Intervention in Civil Actions - Rights and Authority
This bill establishes that a person who meets the threshold standing requirements under the
federal Clean Water Act (CWA) has an unconditional right and the authority to intervene
in a civil action initiated by the State in State court to require compliance with (1) Subtitle 3
of Title 9 of the Environment Article, which governs water pollution control; (2) related
regulations; or (3) any related discharge permit, effluent limitation, or order issued by the
Maryland Department of the Environment (MDE). A person exercising the right to
intervene pursuant to the bill must act in accordance with applicable practices, procedures,
and laws in the State. A person who meets the requirements to intervene under the bill has
the same rights as an interested person or aggrieved party under CWA, including the right
to apply for judicial appeal.
Fiscal Summary
State Effect: Potential minimal increase in State expenditures from increased litigation
beginning as early as FY 2022. Because MDE, the State agency that oversees CWA in
Maryland, pursues very few enforcement actions in civil court pursuant to Subtitle 3 of
Title 9 of the Environment Article, any impact is anticipated to be minimal. State revenues
are not materially affected.
Local Effect: Potential minimal. The bill primarily affects MDE, and civil enforcement
actions for the affected statutory provisions are rare. However, the bill may have an impact
on local finances and operations to the extent that a third party intervenes in a civil
enforcement case between a local government and MDE.
Small Business Effect: Minimal; civil enforcement actions relating to the affected subtitle
are rare.
 Analysis
Current Law:
Suits in Maryland by MDE and Political Subdivisions
MDE is authorized to bring a criminal prosecution or a suit for a civil penalty for a violation
of any provision of the Environment Article or any rule, regulation, order, or permit
adopted or issued under the article with a specified statute of limitations. MDE is also
authorized to institute actions for administrative penalties within a specified statute of
limitations.
A political subdivision of the State is authorized to bring a suit for a civil penalty for a
violation of any provision of the Environment Article or any rule, regulation, order, or
permit adopted or issued under the article, or for a violation under any regulatory program
the political subdivision is required to adopt and enforce under the Environment Article
within a specified statute of limitations.
Citizen Suits Pursuant to the Federal Clean Water Act
Generally, pursuant to CWA 33 U.S.C.A. § 1365, any citizen may commence a civil action
on his/her own behalf (1) against any person, as specified, who is alleged to be in violation
of either a related effluent standard or limitation or an order issued by the Administrator of
the U.S. Environmental Protection Agency or a state with respect to such a standard or
limitation or (2) against the administrator where there is an alleged failure of the
administrator to perform any related act or duty that is not discretionary with the
administrator, as specified. However, such an action cannot be initiated (1) prior to 60 days
after the plaintiff has given specified notice of the alleged violation or (2) if the
administrator or state has commenced and is diligently prosecuting a civil or criminal
action in a court of the United States or a state to require compliance with the standard,
limitation, or order, but in any such action in a court of the United States any citizen may
intervene as a matter of right.
Standing in Maryland
Generally, a party to a civil action must be authorized to participate in the action, either by
statute or by having common law “standing.” Standing means that a party has a sufficient
stake in a controversy to be able to obtain judicial resolution of that controversy. Maryland
law traditionally has limited standing to a person that is “aggrieved” by an action or
decision. To show standing, a person generally must demonstrate that the person has
experienced an adverse effect from the law or action in question and the adverse effect will
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continue unless the court grants relief. Alternatively, a person may be granted standing by
statute.
“Aggrievement” has been defined by court decisions to mean that the plaintiff has a
specific interest or property right that has been affected by the disputed action or decision
in a way that is different from the effect on the general public. With respect to cases
involving challenges to specific types of permits and zoning/planning decisions, Maryland
courts have defined “aggrievement” to mean the ownership of property either adjacent to
or within “‘sight or sound’ range of the property that is the subject of [the plaintiff’s]
complaint.”
The Court of Appeals has held that an association lacks standing to sue where it has no
property interest of its own, distinct from that of its individual members. Citizens Planning
& Housing Ass’n. v. County Executive, 273 Md. 333 (1974). In Medical Waste Ass’n. v.
Maryland Waste Coalition, 327 Md. 596 (1992), the Court of Appeals stated that if an
individual or organization is seeking to redress a public wrong, the individual or
organization has no standing unless the wrong suffered is different in character and kind
from that suffered by the general public.
Maryland Environmental Standing Act
Under the Environmental Standing Act, the Attorney General (acting on behalf of the State
or a unit or officer of the State); a political subdivision of the State; or any other person,
regardless of whether the person possesses a special interest different from the general
public, may pursue legal action in an appropriate court for mandamus or equitable relief
against the State or an agency for its failure to perform a nondiscretionary duty under an
environmental statute, ordinance, rule, regulation, or order. However, the Act does not
authorize citizen suits against private individuals or entities that violate environmental
laws, nor does it authorize actions for monetary damages.
Standing under Federal Law
Federal law is broader than State law in its determination of standing. Under federal law, a
party has standing if its use and enjoyment of the area is affected by the challenged
action/decision or if the party has a particular interest in the property affected. Federal law
also makes little distinction between individual and group standing.
Under federal case law, in order to have standing, “a plaintiff must show (1) it has suffered
an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Federal case law requires an association to meet a
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three-part test in order to have standing. Under the test, an association has standing if
(1) one or more members of the association have standing as individuals; (2) the interests
that the association seeks to protect in the case are germane to the association’s purpose;
and (3) neither the claim asserted nor the relief requested requires the participation of the
member with individual standing in the lawsuit.
Additional Information
Prior Introductions: None.
Designated Cross File: HB 76 (Delegate Love) - Environment and Transportation.
Information Source(s): Caroline, Howard, Montgomery, and Prince George’s counties;
City of Bowie; Judiciary (Administrative Office of the Courts); Maryland Department of
the Environment; Maryland Department of Transportation; Office of Administrative
Hearings; Department of Legislative Services
Fiscal Note History: First Reader - January 19, 2021
rh/lgc Third Reader - April 10, 2021
Revised - Amendment(s) - April 10, 2021
Analysis by: Kathleen P. Kennedy Direct Inquiries to:
(410) 946-5510
(301) 970-5510
SB 334/ Page 4


Statutes affected:
Text - First - Water Pollution Control - Intervention in Civil Actions - Rights and Authority: 9-344.1 Environment
Text - Third - Water Pollution Control - Intervention in Civil Actions - Rights and Authority: 9-344.1 Environment