Dept. of Env. v. Anacostia Riverkeeper , 447 Md. 88 ( 2016 )

Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., No. 42,
September Term, 2015, Blue Water Baltimore, et al. v. Maryland Department of the
Environment, No. 43, September Term, 2015, Blue Water Baltimore, et al. v. Maryland
Department of the Environment, et al., No. 44, September Term, 2015, Opinion by Adkins, J.
Environmental Law – Administrative Law – Clean Water Act – Permitting Process.
Maryland Department of the Environment’s decision to issue several stormwater discharge
permits to counties in Maryland is supported by substantial evidence, is not arbitrary and
capricious, and is legally correct. Additionally, these permits satisfy federal monitoring
requirements and do not violate public participation mandates.
Maryland Department of the Environment,
et al. v. Anacostia Riverkeeper, et al. IN THE COURT OF APPEALS
Circuit Court for Montgomery County OF MARYLAND
Case No.: 339466
Argued: November 5, 2015
No. 42
Blue Water Baltimore et al. v. Maryland September Term, 2015
Department of the Environment
Circuit Court for Anne Arundel County
Case No.: 02-C-14-186144 MARYLAND DEPARTMENT OF THE
Argued: November 5, 2015
ENVIRONMENT, et al.
Blue Water Baltimore, et al. v. Maryland v.
Department of the Environment, et al. ANACOSTIA RIVERKEEPER, et al.
Circuit Court for Baltimore City
Case No.: 24-C-14-000364
Argued: November 5, 2015 No. 43
September Term, 2015
BLUE WATER BALTIMORE, et al.
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT
No. 44
September Term, 2015
BLUE WATER BALTIMORE, et al.
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT, et al.
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Glenn T., Jr. (Retired,
Specially Assigned),
JJ.
Opinion by Adkins, J.
Filed: March 11, 2016
FACTS AND LEGAL PROCEEDINGS
Maryland Department of the Environment (“MDE”) issued municipal separate
storm sewer system (“MS4”) discharge permits (“the Permits”) to Anne Arundel County,
Baltimore City, Baltimore County, Montgomery County, and Prince George’s County
(“the Counties”). Multiple organizations argue that the Permits do not comply with federal
and state law, and they request that we remand for MDE to correct these legal errors.1
Federal Framework: NPDES Permits and Municipal Stormwater Discharges
Under the Clean Water Act (“CWA”), the discharge of pollutants is illegal. 33 U.S.C.
§ 1311. Through the National Pollution Discharge Elimination System (“NPDES”),2 33 U.S.C.
§ 1342, either the Environmental Protection Agency (“EPA”) or an EPA-approved state, such
as Maryland, may issue permits exempting a discharger from this prohibition. See Piney
Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 265 (4th Cir. 2001).
MDE is the authority in Maryland that administers the NPDES program. Code of Maryland
Regulations (“COMAR”) 26.08.04.07. An NPDES permit, however, does not give a
discharger carte blanche. “Generally speaking, the NPDES requires dischargers to obtain
1
We refer to the various environmental groups and individuals who challenge the
Permits as the Water Groups. They include Anacostia Riverkeeper, Blue Water Baltimore,
Inc., Chesapeake Bay Foundation, Inc., Earthjustice, Friends of the Earth, Gunpowder
Riverkeeper, Inc., Magothy River Association, Inc., Mattawoman Watershed Society,
Natural Resources Defense Council, Patuxent Riverkeeper, Inc., Potomac Riverkeeper
Network, Sierra Club, Waterkeeper Alliance, Waterkeepers Chesapeake, West/Rhode
Riverkeeper, Inc., Mac Thorton and Pat Munoz.
2
Congress established the National Pollution Discharge Elimination System
(“NPDES”) pursuant to 1972 amendments to the Clean Water Act (“CWA”). Natural Res.
Def. Council, Inc. v. Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977).
permits that place limits on the type and quantity of pollutants that can be released into the
Nation’s waters.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102 (2004).
These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent
limitation as “any restriction established by a State or the Administrator on quantities, rates,
and concentrations of chemical, physical, biological, and other constituents which are
discharged from point sources into navigable waters, the waters of the contiguous zone, or
the ocean, including schedules of compliance”). The type of discharge determines the type
of limitations the permit must impose on the discharger.
The Permits before us control stormwater pollutant discharge.3 Stormwater consists
of the rain and snowmelt that filters through the soil and courses over surfaces—collecting
pollutants along the way—before passing through the municipal storm sewer systems4 and
into waterbodies. During the development of the Permits, the Water Groups explained the
3
Notably, in 1973, the EPA exempted “separate storm sewers containing only storm
runoff uncontaminated by any industrial or commercial activity” from the requirements of
33 U.S.C. § 1342. Id. at 1372. The United States Court of Appeals for the D.C. Circuit
invalidated this regulatory action in Natural Resources Defense Council, Inc. v. Costle. Id.
at 1377 (“[T]he EPA Administrator does not have authority to exempt categories of point
sources from the permit requirements of [33 U.S.C. § 1342].”). It was not until 1987 that
Congress acted to regulate municipal separate storm sewer systems (“MS4s”). See Natural
Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1296 (9th Cir. 1992) (explaining that
Congress passed amendments to the CWA in 1987 in recognition of “the environmental
threat posed by storm water runoff and EPA’s problems in implementing regulations”).
4
MS4s are classified based on the population in the jurisdiction. 40 C.F.R. § 122.26
(b)(4), (7), (16). Because the Counties all have more than 250,000 people, the Permits are
large MS4 permits. MDE, Montgomery County NPDES Permit Fact Sheet; MDE, Anne
Arundel County NPDES Permit Fact Sheet; MDE, Baltimore County NPDES Permit Fact
Sheet; MDE, Prince George’s County NPDES Permit Fact Sheet; MDE, Baltimore City
NPDES Permit Fact Sheet.
2
problems that stormwater poses, whether to the surface conditions of Maryland’s waters,
for humans who recreate and subsist on them, and for wildlife who live in them. See Letter
with Comments on Draft MS4 Permit for Baltimore City from Blue Water Baltimore, Inc.
and Earthjustice, to Brian Clevenger, MDE (Sept. 21, 2012). In recognition of extensive
public commentary on the severity of the problems associated with stormwater, MDE
stated: “[i]t becomes fairly easy for all organizations, individuals, and government agencies
to agree that urban stormwater is a problem that must be addressed.” MDE, Response to
Formal Comments for Montgomery County NPDES Permit (2009).
Nevertheless, municipal stormwater discharge is “highly intermittent,” “usually
characterized by very high flows occurring over relatively short time intervals,” and
“depend[s] on the activities occurring on the lands.” See National Pollutant Discharge
Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.
Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. § 122.26). It is also difficult
to discern the amount of pollutant that any one discharger contributes to a waterbody
because municipalities have so many outfalls, or discharge points, leading into the waters.
See MDE, Montgomery County NPDES Permit Fact Sheet (900 outfalls); MDE, Anne
Arundel County NPDES Permit Fact Sheet (nearly 1,000 outfalls); MDE, Baltimore
County NPDES Permit Fact Sheet (nearly 700 outfalls.); MDE, Prince George’s County
NPDES Permit Fact Sheet (more than 4,000 outfalls); MDE, Baltimore City NPDES
3
Permit Fact Sheet (around 350 outfalls.); see also 40 C.F.R. § 122.26(b)(5), (9) (outlining
minimum diameters of pipes in major MS4 outfalls).5
Because of the nature of municipal stormwater discharges, Congress adopted a
flexible approach to the control of pollutants in MS4s. See 55 Fed. Reg. at 48,038 (The
Congressional Record from 1986 stated not only that “an end-of-the-pipe treatment
technology is not appropriate for [the MS4] discharge” but also that “[MS4] controls may
be different in different permits.”).6 Pursuant to 33 U.S.C. § 1342(p)(3)(B)(iii), municipal
stormwater permits “shall require controls to reduce the discharge of pollutants to the
maximum extent practicable, including management practices, control techniques and
system, design and engineering methods . . . .”7
5
A point source is “any discernible, confined and discrete conveyance . . . from
which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Although storm sewers
are point sources, the urban runoff that leads to them had once been considered nonpoint
source pollution. Mark Ryan, The Clean Water Act Handbook 167 (3d ed. 2011)
(“Stormwater runoff in the early days of the NPDES program was treated as a diffuse
source of nonpoint source pollution. This may have seemed logical because most runoff
cannot efficiently be controlled using the strict end-of-pipe effluent limitations that are
effective in regulating traditional industrial and municipal discharges.”); cf. Ecological
Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 508 (9th Cir. 2013) (“Stormwater
runoff is ‘a nonpoint or point source . . . depending on whether it is allowed to run off
naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through
a system of ditches, culverts, channels, and similar conveyances (and is thus a point source
discharge).’”).
6
Congress passed the Water Quality Act of 1987, thereby amending the CWA and
revising the law for municipal stormwater discharge. See Water Quality Act, Pub. L. No.
100-4, 101 Stat. 7, 69 (1987) (codified at 33 U.S.C. § 1342(p)); see also Natural Res. Def.
Council, Inc., 966 F.2d at 1296, 1308.
7
We shall sometimes refer to this provision with the acronym MEP.
4
Best management practices (“BMPs”) have been a long-standing control or effluent
limitation8 in MS4 permits. See 40 C.F.R. § 122.44(k)(2) (BMPs “control or abate the
discharge of pollutants when [a]uthorized under [33 U.S.C. § 1342(p)]”); id. § 122.44(k)(3)
(BMPs are an appropriate control when “[n]umeric effluent limitations are infeasible”); see
also Tualatin Riverkeepers v. Or. Dep’t of Envtl. Quality, 230 P.3d 559, 564 (Or. Ct. App.
2010) (“‘Best management practices,’ such as those incorporated in the permits at issue in
this case, are a type of effluent limitation.”). The EPA defined BMPs to mean “schedules
of activities, prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce the pollution of ‘waters of the United States.’” 40 C.F.R.
§ 122.2; cf. Natural Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 579 (2d Cir. 2015)
(“But EPA’s narrative WQBEL [water-quality based effluent limitation] does not qualify
as a BMP, as it is neither a practice nor a procedure.”). Examples of the types of BMPs
the Counties might implement pursuant to the Permits are infiltration practices and green
roofs.9
8
Although, as we explain, effluent limitations in MS4 permits are not required to
meet water quality standards, we note that these limitations are often described as water
quality based effluent limitations (“WQBELs”). See 33 U.S.C. § 1312.
9
An infiltration practice “is characterized by a depression to form an infiltration
basin where sediment is trapped and water infiltrates the soil.” EPA, Chesapeake Bay
Phase 5.3 Community Watershed Model § 6.7.5., at 6-51 (2010), available at
http://www.chesapeakebay.net/about/programs/modeling/53/. “A green roof, or rooftop
garden, is a vegetative layer grown on a rooftop.” EPA, Using Green Roofs to Reduce
Heat Islands (last updated Sept. 22, 2015), available at http://www.epa.gov/heat-
islands/using-green-roofs-reduce-heat-islands.
5
Through guidance memos, the EPA has endorsed the use of BMPs in MS4s for
decades but has increasingly recommended that, where feasible, such permits include
numeric effluent limitations. Interim Permitting Approach for Water-Quality Based
Effluent Limitations in Storm Water Permits, 61 Fed. Reg. 43,761 (1996); EPA,
Memorandum on Establishing Total Maximum Daily Load (TMDL) Wasteload
Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on
Those WLAs § 3 (2002) [hereinafter “2002 Memo”]; EPA, Memorandum on Revisions to
the November 22, 2002 Memorandum 4–5 (2010) [hereinafter “2010 Memo”]; EPA,
Memorandum on Revisions to the November 22, 2002 Memorandum at 4 n.5 (2014)
[hereinafter “2014 Memo”]. (A “numeric” effluent limitation “refers to [a] limitation[]
with a quantifiable or measurable parameter related to a pollutant (or pollutants).”).
Total Maximum Daily Loads (“TMDLs”)
The concept of total maximum daily load (“TMDL”) looms large in this case.10 We
begin by setting forth its basic purpose, then unpacking its complex formation.
TMDLs inform. See Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 291 (3d Cir.
2015) (“Our understanding of [TMDLs] as informational tools is supported by every case
and piece of scholarship to consider them as well as the language of the Chesapeake Bay
TMDL itself.”); see also EPA, Chesapeake Bay TMDL § 1.41, at 1-15 (2010) (“TMDLs
10
At the end of 2010, when the EPA issued the Chesapeake Bay TMDL (“Bay
TMDL”), which we will discuss, the EPA explained that there were more than 40,000
completed TMDLs in the United States. EPA, Chesapeake Bay TMDL Executive
Summary, ES-3 (2010) [hereinafter “Bay TMDL ES”], available at
http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-document.
6
are ‘primarily informational tools’ that ‘serve as a link in an implementation chain . . . .’”),
available at http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-document.
TMDLs arise out of a multi-step process that begins with the establishment of water
quality standards (“WQS”). See Am. Farm Bureau Fed’n, 792 F.3d at 289 (“TMDLs
happen after a state enacts pursuant to its law (but required by the Clean Water Act) ‘water
quality standards.’”). Because the EPA and the states interact throughout this process, it
has been described as one of “cooperative federalism.” Id. at 288; see Anacostia
Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214–17 (D.D.C. 2011).
Water quality standards, as the term itself suggests, protect water quality. 40 C.F.R.
§ 130.2(d); COMAR 26.08.02.01(A). Each state must set water quality standards by
assigning a “use” to a water, such as recreation or fishing, then developing criteria to
protect those uses, as well as ensuring that higher quality waters do not degrade to the
minimally accepted standard (also known as an anti-degradation policy). 33 U.S.C. § 1313;
COMAR 26.08.02.01(B)(1). All water quality standards are subject to EPA review, and
if the EPA does not approve of them, the EPA will set those standards itself. 33 U.S.C.
§ 1313.
By way of example, the EPA approved a TMDL that MDE submitted for fecal
bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County in 2007. See
MDE, Total Maximum Daily Loads of Fecal Bacteria for the Non-tidal Cabin John Creek
Basin in Montgomery County, Maryland (Document version: Oct. 13, 2006) [hereinafter
“John Creek Basin TMDL”]. These bacteria are microscopic organisms in animal waste.
Fecal bacteria in water can raise the risk of illness in humans who recreate there. Id. at
7
§ 1.0, at 1. To develop the WQS, MDE selected “water contact recreation and protection
of aquatic life and public water supply” as the use of the water and 126 MPN11 per 100
milliliters as the criteria. Id. at § 2.3, at 11 (citing COMAR 26.08.02.08O and
26.08.02.03-3). This figure (126) represents a mean density for this pollutant. Id.; see
40 C.F.R. § 130.2(i) (“[M]ass per time, toxicity, or [an]other appropriate measure” may
be used to express TMDLs.).
After setting WQSs, the states establish effluent limitations in permits as the primary
way to meet the WQSs because, as we have explained, effluent limitations restrict the
discharge of pollutants. See 33 U.S.C. § 1362(11). Nevertheless, we note, importantly,
that MS4s are not subject to the requirement of imposing effluent limitations “necessary to
meet water quality standards.” See 33 U.S.C. § 1311(b)(1)(C); see also Defenders of
Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999); cf. 33 U.S.C. § 1342(p)(3)(A)
(Industrial dischargers must comply with 33 U.S.C. § 1311.). 12 This important point
notwithstanding, Congress requires that “[e]ach State shall identify those waters within
its boundaries for which the effluent limitations required by [33 U.S.C. § 1311] are not
stringent enough to implement any water quality standard applicable to such waters.”
33 U.S.C. § 1313(d)(1)(A).
11
MPN refers to Most Probable Number. Code of Maryland Regulations
(“COMAR”) 26.08.02.03-3C.
12
The Water Groups do not challenge the Court of Special Appeals’ holding that
the Montgomery County Permit “is not subject to the technology-based discharge
limitations (“TBDLs”) of § 1311(a), but rather to § 1342(p)(3)(B) . . . .” Md. Dep’t of the
Env’t v. Anacostia Riverkeeper, 222 Md. App. 153, 172, 112 A.3d 979, 990 (2015)
(emphasis in original), cert. granted, 443 Md. 734, 118 A.3d 861.
8
This is where the TMDL comes into play. The TMDL tells a state what is the
threshold amount of a pollutant that a body of water can tolerate before violating the WQS.
See In re City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *4 (EAB July 27,
2001) (“A TMDL is a measure of the total amount of a pollutant from point sources,
nonpoint sources and natural background, that a water quality limited segment can tolerate
without violating the applicable water quality standards.”); EPA, Chesapeake Bay TMDL
§ 1.1, at 1-2 (“A TMDL specifies the maximum amount of a pollutant that a waterbody can
receive and still meet applicable WQS.”).13
States must establish TMDLs “at a level necessary to implement the applicable
water quality standards,” 33 U.S.C. § 1313(d)(1)(C), when they identify those waters for
which effluent limitations cannot implement the WQSs, 33 U.S.C. § 1313(d)(1)(A).14 As
with water quality standards, the states have the obligation of setting TMDLs and
submitting them to the EPA for approval. See supra MDE, John Creek Basin TMDL (The
EPA approved of MDE’s TMDL in March 2007.). If the EPA disapproves of the TMDLs,
the EPA will set them itself. 33 U.S.C. § 1313(d)(2).
13
The EPA has defined the TMDL as “[t]he sum of the individual WLAs for point
sources and LAs for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i)
(emphasis added). In this case, we focus on wasteload allocations (“WLAs”), which we
will soon discuss. The other major component of the TMDL equation—load allocations
(“LAs”)—deals with nonpoint sources of pollution, 40 C.F.R. § 130.2(g), and is irrelevant
to this case because we are concerned with the discharge of pollutants from point sources.
See Natural Res. Defense Council, 966 F.2d at 1295–96 & n.5 (discussing the legislative
and regulatory history leading up to the regulation of stormwater as a point source).
14
To be clear, Maryland, as all other states, must comply with 33 U.S.C. § 1313(d)
and establish TMDLs even though MS4s are not subject to effluent limitations “necessary
to meet water quality standards.” See 33 U.S.C. § 1311(b)(1)(C).
9
For this case, wasteload allocations (“WLAs”) are the most critical part of the
TMDL equation. See 40 C.F.R. § 130.2(i) (A TMDL is “[t]he sum of the individual WLAs
for point sources and LAs [load allocations] for nonpoint sources and natural
background.”). The WLA represents a water’s “loading capacity” assigned to its “point
sources of pollution.” Id. § 130.2(h). Continuing with our example, MDE set the TMDL
for fecal bacteria at 176.36 billion MPN/day, the LA at 68.17 billion MPN/day, and the
WLA at 108.19 billion MPN/day. MDE, John Creek Basin TMDL.15
Although TMDLs are informational tools, of which WLAs are a part, WLAs are
more akin to restrictions. See Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289, 328
(M.D. Pa. 2013) (“WLAs are not permit limits per se; rather they still require translation
into permit limits . . . .”) (citation omitted) (internal quotation marks omitted) (emphasis in
original), aff’d, 792 F.3d 281 (3d Cir. 2015). Under 40 C.F.R. § 122.44(d)(1)(vii)(B),
15
MDE documented WLAs for two sources of fecal bacteria for the Cabin John
Creek TMDL—domestic pets and wildlife—but the final WLA represents “one combined
load for the entire land area of the county.” MDE, Total Maximum Daily Loads of Fecal
Bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County, Maryland
§ 4.8, at 32 (Document version: Oct. 13, 2006) [hereinafter “John Creek Basin TMDL”].
MDE was acting according to the EPA’s 2002 guidance memo: “available data and
information usually are not detailed enough to determine WLAs for NPDES-regulated
stormwater discharges on an outfall-specific basis.” See EPA, Memorandum on
Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for
Storm Water Sources and NPDES Permit Requirements Based on Those WLAs 4 (2002)
[hereinafter “2002 Memo”]. Since then, the EPA continues to express that it “does not
expect states to assign WLAs to individual MS4 outfalls.” EPA, Memorandum on
Revisions to the November 22, 2002 Memorandum at 7 (2014) [hereinafter “2014 Memo”].
10
permitting authorities must ensure that effluent limitations “are consistent with the
assumptions and requirements” of any approved WLA.16
We conclude our introduction of TMDLs by noting that MS4s are subject to the
MEP standard under 33 U.S.C. § 1342. MS4s are not, however, required to impose effluent
limitations necessary to meet water quality standards. The CWA still requires Maryland
to set water quality standards and TMDLs—subject to the EPA’s approval. Flowing from
this obligation is the requirement that MS4s are subject to effluent limitations that are
consistent with WLAs of EPA-approved TMDLs.
The Chesapeake Bay TMDL
As we will discuss in more detail, the Permits require the Counties to take actions
to make progress in meeting the WLAs of many EPA-approved TMDLs.17 By far, though,
the most critical TMDL in this case is the Chesapeake Bay TMDL (“Bay TMDL”).
Regarded as a national treasure,18 the Chesapeake Bay is the largest estuary in the
United States, a product of flooding from the Susquehanna River over thousands of years.
16
Thus, MDE has incorporated this requirement into the Permits at Part IV.E.
17
See Part IV.E.4. The Fact Sheet for Montgomery County’s Permit shows that,
less than two years before that Permit became effective, the EPA had approved seven
TMDLs (and consequently seven WLAs), that five TMDLs were pending the EPA’s
approval or soon to be subject to the EPA’s review, and that MDE would later address 21
TMDLs. At the time the other Permits were issued, the EPA had approved 34 WLAs for
Anne Arundel County, 33 WLAs for Baltimore County, 63 WLAs for Prince George’s
County, and 18 WLAs for Baltimore City.
18
On May 12, 2009, President Barack Obama issued Executive Order 13508,
Chesapeake Bay Protection and Restoration, and called the Chesapeake Bay a “national
treasure.” The White House Office of the Press Secretary, Executive Order 13508—
Chesapeake Bay Protection and Restoration (May 12, 2009), available at
11
Alice Jane Lippson, The Chesapeake Bay in Maryland: An Atlas of Natural Resources 2
(Johns Hopkins University Press 1973). Over 2,000 species of animals and plants reside
in the Chesapeake Bay. Alice Jane Lippson & Robert L. Lippson, Life in the Chesapeake
Bay viii (Johns Hopkins University Press 1984). These include phytoplankton, the blue
crab, and striped bass, among many, many others. Lippson, The Chesapeake Bay in
Maryland, supra at 14, 26, 36. In addition to housing much wildlife, the Chesapeake Bay
is a shipping and commerce hub and a source of recreation. Chesapeake Bay Program,
Chesapeake Bay: Introduction to an Ecosystem 2 (2004).
Human activity, however, threatens this complex ecosystem. “Excess sediment and
nutrients endanger the Bay’s water quality.” Id. at 3–4. Such threats include: depriving
species of oxygen; delivering chemicals which collect in animal tissue; and even destroying
habitats because sunlight cannot reach critical underwater grasses where species reside. Id.
There is, then, no underestimating the importance of the restoration of the
Chesapeake Bay in Maryland. See Am. Farm Bureau, 984 F. Supp. 2d at 298 (“[The Bay]
has been described as one of the most biologically productive ecosystems in the world,”
and, along with its watersheds, “add[s] ecological, economic, recreational, historic, and
cultural value to the region.”).
How to restore the Bay, however, has been a prolonged, frustrated process. See id.
(The Bay TMDL “is not a new or recent idea,” and thus, “it would be improper to view the
Final TMDL in a vacuum as a single, isolated effort to restore water quality to the
https://www.whitehouse.gov/the-press-office/executive-order-chesapeake-bay-protection-
and-restoration.
12
Chesapeake Bay.”). Some of these restoration efforts include the Chesapeake Bay
Agreement in 1980, another agreement in 1987, amendments to the agreement in 1992,
and the Chesapeake 2000 Agreement. Department of Legislative Services, Office of Policy
Analysis, Chesapeake Bay Restoration and the Tributary Strategy: An Analysis of
Maryland’s Efforts to Meet the Nutrient and Sediment Reduction Goals of the Chesapeake
2000 Agreement 3–4 (2007).
The EPA established the Bay TMDL in December 2010. See Am. Farm Bureau
Fed’n, 792 F.3d at 290 (“As noted, for the Chesapeake Bay the relevant states and the EPA
agreed that the EPA would draft the TMDL in the first instance.”). It has survived legal
challenges before the U.S. District Court for the Middle District of Pennsylvania as well
as the Third Circuit.19 See Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 294; Am. Farm
Bureau Fed’n, 792 F.3d at 287. These courts have noted that the efforts to restore the
Chesapeake Bay extend back decades, and that the development of the Bay TMDL itself
has been a decade-long process. Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 299; Am.
Farm Bureau Fed’n, 792 F.3d at 291.
19
On February 29, 2016, the United States Supreme Court denied American Farm
Bureau Federation’s Petition for Writ of Certiorari for review of the Third Circuit’s
decision to uphold the EPA’s exercise of its authority in developing the Bay TMDL. See
Supreme Court of the United States (March 10, 2016), available at
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-599.htm.
13
The Bay TMDL provides information pertaining to pollution reduction for nitrogen,
phosphorus and sediment in the Chesapeake Bay and applies to the District of Columbia
and the six “Bay” states, including Maryland. EPA, Chesapeake Bay TMDL at ES-1.20
Modeling
Before delving into Maryland’s role in the formation of the Bay TMDL, we must
discuss the “critical and valuable” role that modeling played in the Bay TMDL’s
development. EPA, Chesapeake Bay TMDL at ES-5.21 “Modeling is an approach that
uses observed and simulated data to replicate what is occurring in the environment to make
future predictions.” Id. “A model ‘is an abstraction from and simplification of the real
world.’” Am. Farm Bureau, 984 F. Supp. 2d at 340 (citation omitted). Models are essential
when one seeks to study “ecosystems that are too large or complex for real-world
monitoring,” such as the Chesapeake Bay and its watersheds. Chesapeake Bay Program,
About the Bay Program: Modeling, available at http://www.chesapeakebay.net/
about/programs/modeling (last visited Feb. 9, 2016) [hereinafter CBP: Modeling].
20
A multi-year congressional study revealed in 1983 that nitrogen and phosphorus
were major sources contributing to the Bay’s degradation. Ben Franklin, Chesapeake Bay
Study Citing Pollution Threats, N.Y. Times (Sept. 27, 1983) (“The reports said the steady
inflow of nitrogen and phosphorus . . . had caused large, offensive, blue-green ‘blooms’ of
algae on the bay’s surface. The algae growth consumes oxygen in the water and reduces
the penetration of sunlight, killing aquatic life in large areas of the bay.”). Former
Maryland Senator Charles Mathias was a chief supporter of this study. Id.
21
To be clear, the EPA did not rely exclusively on modeling to develop this TMDL
but also used monitoring and environmental research. EPA, Chesapeake Bay TMDL, at
5-19.
14
A prominent component in the modeling of the Bay TMDL was the Phase 5.3
Chesapeake Bay Watershed Model [“Phase 5.3 Model”]. EPA, Chesapeake Bay TMDL,
at 5-19.22 “The Phase 5.3 Model is the most recent of a series of increasingly refined
versions of the Chesapeake Bay Watershed Model.” EPA, Chesapeake Bay Phase 5.3
Community Watershed Model § 1.2.1, at 1-13 (2010), available at
http://www.chesapeakebay.net/about/programs/modeling/53/.23 The Phase 5.3 Model
simulates the “loading and transport of nitrogen, phosphorus, and sediment from pollutant
sources throughout the Bay watershed.” EPA, Chesapeake Bay TMDL, at 5-20.
Additionally, this model provides “estimates of watershed nitrogen, phosphorus, and
sediment loads resulting from various management scenarios.” Id.
Because models are not “perfect forecasts,” however, modeling is “part of a broader
toolkit,” including monitoring, “to gain the highest possible level of accuracy.” CBP:
Modeling. As the EPA explained: “The Bay modeling framework takes advantage of
decades of atmospheric deposition, streamflow, precipitation, water quality, biological
resource, and land cover monitoring data” as well as “tracking and reporting of the
22
The EPA has explained that “[t]he primary reason, and benefit, for applying a
watershed model for TMDL development typically is the ability to predict pollutant
generation from varying land uses and from multiple subwatersheds.” EPA, Handbook for
Developing Watershed TMDLs: Draft 58 (2008). As opposed to single-segment TMDLs,
watershed TMDLs involve the “simultaneous development of multiple TMDLs for
hydrologically linked impaired segments.” Id. at 3.
23
The District Court for the Middle District of Pennsylvania rejected American
Farm Bureau Federation’s challenge to the Phase 5.3 Model “as being insufficient for
allocations established at the sub-watershed level.” Am. Farm Bureau Fed’n, 984 F. Supp.
2d at 341–42. The American Farm Bureau Federation did not appeal this issue to the Third
Circuit. Am. Farm Bureau Fed’n, 792 F.3d at 294.
15
implementation of pollution load reduction best management practices.” EPA, Chesapeake
Bay TMDL, at § 5.1, 5-1–5-2. These resources allowed the EPA to calibrate its models.
Id.
Because the Bay TMDL exists in significant part as a result of modeling, and
because of how prevalent modeling is in TMDL formulation, MDE incorporated modeling
into the Permits.
MDE incorporated by reference a document the agency published, called
Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated,
Guidance for National Pollutant Discharge Elimination System Stormwater Permits (“the
Guidance”).24 As the name suggests, the document serves dual purposes: the Counties can
assess progress in achieving WLAs and also assess restoration of impervious surface areas
through a credits-to-acres approach.25 In the Guidance, MDE sets forth acceptable models
that the Counties can use, including, Maryland’s Assessment and Scenario Tool
(“MAST”).26 MDE, Guidance at 2. The Guidance includes the pollutant rates for the Bay
TMDLs—Total Nitrogen (“TN”), Total Phosphorus (“TP”), and Total Suspended
Sediment (“TSS”)—and requires that the Counties use these pollutant rates together with
land use data to calculate baseline stormwater loads. Id. at 2–3. As the document explains,
24
Although MDE did not incorporate the Guidance into the Montgomery County
Permit, we set forth in our discussion why the Guidance is nevertheless available to the
County in carrying out Permit requirements. See infra Discussion at pp. 42, 54 n.60.
25
We discuss the credits-to-acres approach in depth in the Discussion.
26
This model is accessible at www.mastonline.org.
16
“[t]hese pollutant loads are specific to the [] Bay TMDL.” Id. at 2. But the Counties may
use the principles and methods in the Guidance “for any EPA approved TMDL.” Id. at 1.
Maryland’s Watershed Implementation Plan (“WIP”)
The EPA developed the Bay TMDL to ensure that the Bay jurisdictions would put
in place “all pollution control measures needed to fully restore the Bay and its tidal rivers”
by 2025. EPA, Chesapeake Bay TMDL at ES-1. The EPA approved the Bay TMDL “only
after” determining that each jurisdiction provided “reasonable assurance” that it would
meet established pollutant reductions. Am. Farm Bureau Fed’n, 792 F.3d at 291. The Bay
jurisdictions set forth their strategies for meeting pollutant reductions in Watershed
Implementation Plans (“WIPs”). Id.
WIPs are “roadmaps” setting forth a plan for how and when a jurisdiction will reach
the pollution reduction goals in the Bay TMDL. EPA, Chesapeake Bay TMDL, at ES-8.
The EPA described these roadmaps as the “cornerstone” that ensured the States were
accountable in achieving pollution reductions. Id. Notably, the EPA expressed no
concerns about Maryland’s Final WIP,27 whereas the EPA had to implement backstop
allocations and adjustments in other Bay jurisdictions so that the EPA had reasonable
assurance that all jurisdictions would achieve necessary reductions. See EPA, Chesapeake
27
The EPA highlighted Maryland’s pursuit of legislation to fund urban stormwater
management programs as a specific improvement between the draft and final versions of
Maryland’s Watershed Implementation Plan (“WIP”). EPA, Bay TMDL ES-10; see H.B.
987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012); see also Maryland Code (1982, 2007 Repl.
Vol.), § 4-202.1(a)(1) of the Environment Article (“EN”).
17
Bay TMDL Executive Summary, ES-10–ES-13 (Dec. 29, 2010) [hereinafter “Bay TMDL
ES”].28
Maryland’s WIP lists restoration of “twenty percent of the counties’ impervious
surface area that is not already restored to the maximum extent practicable (MEP)” in the
“key elements” supporting the reasonable assurance of the implementation of the WIP.
Phase I WIP at 5-30. The elements also include the adaptive management approach
whereby additional or alternative practices are implemented if existing programs are not
meeting target reductions. Id.29
Maryland’s Stormwater Management History
In addition to an explication of the federal permitting system, NPDES, and the
complex components arising out of it, such as TMDLs, we also set forth Maryland’s
stormwater management program, which has evolved since its inception in the 1980s, and
which is informative for purposes of analyzing the Permits.
In 1982, the General Assembly enacted laws “to reduce as nearly as possible the
adverse effects of stormwater runoff.” Maryland Code (1982, 2007 Repl. Vol.), § 4-201
28
For example, in Pennsylvania, the EPA transferred half of the stormwater load
not subject to permit restriction to the wasteload allocation (and thus bringing the load
within the scope of a permit’s restrictions) to increase the reasonable assurance the state
would achieve pollutant allocations for urban stormwater discharge. EPA, Bay TMDL
ES-11.
29
Maryland allocated pollutant loads by sector. Thus, although its strategy to reduce
impervious surface area will help the State comply with the pollutant load requirements for
stormwater, Maryland will nevertheless have to implement other strategies to target other
sectors, such as agriculture, air, and wastewater. Department of Legislative Services,
Office of Policy Analysis, Achieving the Chesapeake Bay Restoration Mandate in
Maryland 3–4 (2012).
18
of the Environment Article (“EN”); see H.B. 1091, 1982 Gen. Assemb. Reg. Sess. (Md.
1982). As a result, each county and municipality in Maryland was required for the first
time to “adopt ordinances necessary to implement a stormwater management program” by
July 1, 1984. See EN § 4-202. Then authorized by the General Assembly, the Department
of Natural Resources issued regulations setting forth minimum control requirements and
design criteria for the counties and municipalities. See 10 Md. Reg. 881, 884–85 (May 13,
1983) (to be codified at COMAR 08.05.05).30 The regulations fostered the “primary goal”
of “maintain[ing] after development, as nearly as possible, the predevelopment runoff
characteristics” of the land. See EN § 4-203(b)(1); see also EN § 4-204(a) (Development
of land is prohibited without submitting a stormwater management plan and obtaining the
municipality’s or county’s approval of the plan.)
Maryland entered a new phase of stormwater management in the early 2000s.
Pursuant to EN § 4-203(b), MDE adopted regulations to “rectify the[] programmatic
shortcomings” of then-existing regulations that had provided “sparse guidance” on “water
quality enhancement.” 27 Md. Reg. 1167, 1168 (June 16, 2000) (to be codified at COMAR
26.07.02). Amending the stormwater regulations, MDE intended to “provide water quality
treatment of up to 90 percent of the average annual rainfall throughout the State, establish
ground water recharge standards, and outline a channel erosion control strategy,” as well
as “promote environmentally friendly site design.” Id. To fulfill this purpose, MDE
incorporated by reference the 2000 Maryland Stormwater Design Manual (“the Manual”).
30
MDE subsequently assumed the Department of Natural Resources’ position to
issue such regulations in 1987. S.B. 671, 1987 Gen. Assemb. Reg. Sess. (Md. 1987).
19
Id. at 1167, 1169.31 MDE required the counties and municipalities to revise their
ordinances to incorporate the Manual’s policies and practices by July 1, 2001. Id. at 1170.
The Manual “provide[d] designers a general overview on how to size, design, select
and locate BMPs at a new development site to comply with State stormwater performance
standards.” Center for Watershed Protection (“CWP”) & MDE, Manual, § 1.3, at 1.16.
There are 14 performance standards, including the water quality volume standard (“WQv”).
Id. § 1.2, at 1.13.
Another stormwater management phase began when the General Assembly required
MDE to mandate the use of environmental site design (“ESD”) in 2007. H.B. 786, Gen.
Assemb. Reg. Sess. (Md. 2007). ESD is best understood as those practices, such as “small-
scale stormwater management practices, nonstructural techniques, and better site
planning,” that “mimic natural hydrologic runoff characteristics and minimize the impact
of land development on water resources.” EN § 4-201.1(b); see, e.g., note 9 (green roofs).
MDE implemented regulations to this effect and explained that “[t]he goal of the
regulations is to maintain after development as nearly as possible, the predevelopment
runoff characteristics of the site being developed using ESD to the MEP.” 35 Md. Reg.
2191 (Dec. 5, 2008) (to be codified at COMAR 26.17.02).
31
The Center for Watershed Protection (“CWP”) produced a draft of the Manual in
1997 for the Water Management Administration pursuant to an agreement between MDE
and the Department of Natural Resources and a grant from the National Oceanic and
Atmospheric Administration. The Water Management Administration administers the
stormwater program for MDE. MDE, Water Management Permits (last visited Feb. 8,
2016) http://www.mde.maryland.gov/programs/permits/watermanagementpermits/pages/
permits/watermanagementpermits/index.aspx.
20
The Permits
MDE issued several series of MS4 permits to the Counties that preceded the Permits
before us today. See MDE, NPDES MS4 Permit Montgomery County Fact Sheet (2008)
(The first two permits were issued in 1996 and 2001.); MDE, Basis for Final Determination
to Issue Prince George’s County’s NPDES MS4 Permit (2013) (The first three permits
were issued in 1993, 1999, and 2004.); MDE, Basis for Final Determination to Issue
Baltimore County’s NPDES MS4 Permit (2013) (The first three permits were issued in
1994, 2000, and 2005.); MDE, Basis for Final Determination to Issue Anne Arundel
County’s NPDES MS4 Permit (2013) (The first three permits were issued in 1993, 1999,
and 2004.); MDE, Basis for Final Determination to Issue Baltimore City’s NPDES MS4
Permit (2013) (The first three permits were issued in 1993, 1999, and 2005.).32
At issue here are five-year term Permits MDE most recently issued: to Montgomery
County in February 2010, to Baltimore County in December 2014, to Baltimore City in
December 2013, to Prince George’s County in January 2014, and to Anne Arundel County
in February 2014.
The Water Groups challenge the Permits in several respects, namely, (1) the
requirement to restore impervious surface area, (2) the requirement to submit plans for
TMDLs, (3) the monitoring requirements, and (4) the public’s ability to participate in the
development of the Permits.
32
We shall sometimes refer to this agency document in the record as the Basis for
Final Determination.
21
Some of these provisions are new and therefore represent an increase in
responsibility on the Counties to maintain and improve the quality of their waters. See,
e.g., MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4
Permit (2013) (“These meetings resulted in the addition of more stringent conditions to
Anne Arundel County’s stormwater permit, in large part due to a regional and growing
focus on restoring Chesapeake Bay.”); id. (“New requirements in the permit will
include . . . developing restoration plans to meet stormwater WLAs for impaired waters.”);
MDE, NPDES Montgomery County Stormwater Permit Response to Formal Comments at
2 (2009) (“MDE believes that this current municipal stormwater permit will force
Montgomery County to make major strides toward controlling urban runoff better than
ever before. New conditions such as trash abatement jurisdiction-wide and requiring an
additional 20% of the County’s impervious area to be restored are major additions.”);33
MDE, Maryland’s 2006 TMDL Implementation Guidance for Local Governments i (2006)
(“Until recently, Maryland has focused primarily on TMDL development, which
establishes limits on pollutant loads. Now the State is moving into the implementation
phase . . . .”).
33
Cf. Montgomery County Department of Environmental Protection, Annual Report
NPDES MS4 Permit Montgomery County, Maryland III-56 (2003) (“The Permit requires
the County to track progress and evaluate effectiveness of implementing programs and
projects to restore a drainage area ‘equaling ten percent of Montgomery County’s
impervious area that has not been treated to the maximum extent practicable’ (10%
goal).”).
22
Before discussing these Permit provisions, we note additional Permit requirements
that illustrate the breadth of the Counties’ obligations. The Counties must implement
management programs “to control stormwater discharges to the maximum extent
practicable.” These programs include a stormwater management program (“SWMP”) and
an erosion and sediment control program in accordance with state law; an “illicit discharge
detection and elimination” program; requirements to reduce trash; obligations on the
Counties to reduce pollutants associated with maintenance activities and on municipal
facilities to submit pollution prevention plans; as well as a requirement to engage in public
outreach activities to reduce stormwater pollution.
The Permits also require the Counties to engage in thorough analyses of the water
quality of their watersheds. Among other things, the watershed assessments oblige the
Counties to identify and prioritize water quality improvement projects.
MDE has also ensured that the Counties cannot use lack of adequate funding as a
defense for failure to comply with Permit terms. The Permits explain that “[l]ack of
funding does not constitute a justification for noncompliance with the terms of this
permit.”34 To this end, the General Assembly enacted EN § 4-202.1 in 2012, requiring the
Counties “to adopt local laws or ordinances necessary to establish an annual stormwater
remediation fee and a local watershed protection and restoration fund to provide financial
assistance for the implementation of local stormwater management plans.” H.B. 987, 2012
Gen. Assemb. Reg. Sess. (Md. 2012); see also EN § 4-202.1(a)(1) (This “section applies
See Montgomery County Permit Part III.I.2 (“Adequate program funding to
34
comply with all conditions of this permit shall be maintained.”).
23
to a county or municipality that is subject to a [NPDES Phase I MS4 permit].”).35 MDE
had investigated the costs of meeting the Bay TMDL and commissioned a study that
revealed that “stormwater BMPs likely represent the largest costs to local governments in
implementing the TMDL.” H.B. 987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012).
The Permits also contain annual reporting requirements for: (1) the components of
the stormwater management programs, and (2) data pertinent to the assessment of progress
in implementing the Permit requirements, such as impervious surfaces and pollutant load
reductions. MDE will review the Counties’ reports to assess “progress toward meeting
WLAs developed under EPA approved TMDLs” and the effectiveness of the programs in
“reducing the discharge of pollutants to the MEP to protect water quality.” MDE will
require BMP and program modifications if the Counties fail to comply with the Permit or
show progress.
The Permits also contain provisions setting forth sanctions for the violation of
Permit conditions, including civil and criminal penalties. See, e.g., Montgomery County
NPDES Permit Part VI.C (“Failure to comply with a permit provision constitutes a
violation of the CWA and is grounds for enforcement action; permit termination,
revocation, or modification; or denial of a permit renewal application.”).
35
The General Assembly amended EN § 4-202.1 in 2015 by repealing the mandate
that the relevant counties collect a stormwater remediation fee and instead “authoriz[ing]
such jurisdictions to do so.” S.B. 863, 2015 Gen. Assemb. Reg. Sess. (Md. 2015)
(emphasis in original).
24
Circuit Court and Court of Special Appeals Opinions
EN § 1-601 provides for judicial review of MDE’s final determination to issue a
permit.36 The Water Groups37 challenged the Permits in the various counties where MDE
issued them.
The Circuit Court for Montgomery County remanded for MDE to revise the Permit
in accordance with its opinion and order. In a reported opinion, the Court of Special
Appeals affirmed. Md. Dep’t of the Env’t v. Anacostia Riverkeeper, 222 Md. App. 153,
157, 112 A.3d 979, 981 (2015), cert. granted, 443 Md. 734, 118 A.3d 861. MDE filed a
petition for writ of certiorari, which we granted.
The Circuit Court for Baltimore County, the Circuit Court for Anne Arundel
County, and the Circuit Court for Prince George’s County affirmed MDE’s decision to
issue those Permits. The Water Groups filed notices of appeal to the Court of Special
Appeals and, upon MDE’s motion, the Court of Special Appeals consolidated these three
cases. MDE then filed a petition for writ of certiorari to this Court with questions nearly
identical to those MDE submitted in its petition for writ of certiorari with respect to the
Montgomery County Permit.
36
The statutory requirements for judicial review, which include standing, are not in
dispute. See EN § 1-601. The Court of Special Appeals determined that Anacostia
Riverkeeper and other environmental groups had standing to challenge the Montgomery
County Permit in Case No. 42. We reach the same conclusion with respect to all parties in
the four other challenges in the circuit courts.
37
Although we refer to the Water Groups collectively, we recognize that different
coalitions within the Water Groups challenged the Permits in each County rather than each
environmental group participating in the challenge before the circuit court in each County.
25
Finally, the Circuit Court for Baltimore City also affirmed MDE’s decision to issue
the Baltimore City Permit. The Water Groups filed a notice of appeal, and the Mayor &
City Council of Baltimore (“Baltimore City”) filed a petition for writ of certiorari with a
request that we consider this petition in conjunction with MDE’s petitions. We granted the
City’s petition.
As the Water Groups state in their brief, “the underlying Permits are substantively
identical” and “are affected by the same legal defects.” We agree that the Permits are so
substantively similar that we will analyze the agreed upon questions brought before the
Court with respect to all the challenged Permits. We have slightly rephrased the questions:
1. Did the MS4 permits issued by MDE for the counties’
municipal storm sewer system appropriately incorporate by
reference publicly available materials and was the
requirement for restoration of 20% of pre-2002 developed
impervious surfaces specific, measurable, and enforceable?
2. Was MDE’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?
3. Do the provisions of the MS4 permits that require that the
public have an opportunity to review and comment on
restoration plans intended to meet the wasteload allocations
established for the permittees under applicable total
maximum daily loads satisfy public participation
requirements?
4. Do the provisions of the MS4 permits satisfy federal
monitoring requirements?
We uphold MDE’s decision to issue the Permits on all grounds. Thus, we reverse
the judgment of the Court of Special Appeals, which did not uphold the Montgomery
26
County Permit, and we affirm the judgments of the circuit courts, which upheld the Permits
in Anne Arundel County, Baltimore City, Baltimore County, and Prince George’s County.
STANDARD OF REVIEW
Before 2009, challenges to the issuance or denial of a discharge permit were subject
to a contested case hearing. Md. Code (1984, 2014 Repl. Vol.), § 10-222 of the State
Government Article (“SG”), which is part of Maryland’s Administrative Procedure Act,
delineates the grounds upon which a court can reverse an agency decision in a contested
case. Specifically, SG § 10-222 provides that a court can reverse an agency decision in a
contested case that “is unsupported by competent, material, and substantial evidence in
light of the entire record as submitted” or that “is arbitrary or capricious.”
In 2009, the General Assembly changed the procedures for challenging a discharge
permit. EN § 1–601 now permits direct judicial review of agency permitting decisions
without a contested case hearing. Although this statute does not set forth a standard of
review, the substantial evidence and arbitrary and capricious standards apply where an
“organic statute” authorizes judicial review without a contested case hearing and does not
set forth a standard of review. See Supervisor of Assessments of Carroll Cnty. v. Peter &
John Radio Fellowship, Inc., 274 Md. 353, 355, 335 A.2d 93, 94 (1975) (“Our cases have
held that where no scope of review is thus provided, decisions of an administrative body
will not be disturbed on appeal unless they are not supported by substantial evidence or are
arbitrary, capricious or unreasonable.”) (citations omitted); Med. Waste Assocs., Inc. v. Md.
Waste Coal., Inc., 327 Md. 596, 621, 612 A.2d 241, 253 (1992) (“In an action for judicial
review of an administrative decision granting a permit, however, the court determines not
27
only whether the agency’s decision to issue the permit was in accordance with law, but
also whether the particular administrative decision was arbitrary, capricious or unsupported
by substantial evidence in light of the record as a whole.”). Thus, even though all
challenges going to the merits of the Permits in these consolidated cases originated in the
Circuit Courts,38 we will review MDE’s decision to issue the Permits under the substantial
evidence and arbitrary and capricious standards of review.
Applying the substantial evidence standard of review to a case where no contested
case hearing took place may seem anomalous because there is no formal record that was
presented before an administrative law judge. EN § 1-606, however, expressly details
the documents that can be included in a record. EN § 1-606(c)(1)-(9).39 For example,
38
The Water Groups initiated a challenge to the Montgomery County Permit before
the General Assembly amended the Environmental Article and thus, the dispute over this
Permit was the subject of a contested case hearing. The administrative law judge (“ALJ”)
concluded that the Water Groups lacked standing to challenge the Permit, but this was
appealed. The Court of Special Appeals eventually held that the Water Groups did in fact
have standing and remanded for consideration of the underlying substantive issues. The
General Assembly, however, changed the procedures for challenging a discharge permit
during this time. As a result, it was the circuit court that first held a hearing on the merits
of the issuance of the Montgomery County Permit. Thus, no issues involving the merits of
this Permit were addressed in a contested case hearing.
39
EN § 1-606(c) provides:
Any judicial review of a determination provided for in accordance with § 1-601
of this subtitle or § 5-204 or § 16-204 of this article shall be limited to a record compiled
by the Department or Board, consisting of:
(1) Any permit or license application and any data submitted to the
Department or Board in support of the application;
(2) Any draft permit or license issued by the Department or Board;
(3) Any notice of intent from the Department or Board to deny the
application or to terminate the permit or license;
28
EN § 1-606 stipulates that any draft permit, comments submitted to MDE during the public
comment period, transcripts of public hearings on the permit application, and responses to
submitted comments constitute part of the administrative record. Thus, we are essentially
reviewing the same record that we would have examined, excluding the administrative law
judge’s decision, had the merits of this case been subject to a contested case proceeding.
Accordingly, our review of the issuance of the Permits fits within the substantial evidence
standard of review contemplated by SG § 10-222.
In a review for substantial evidence, we ask “whether a reasoning mind reasonably
could have reached the factual conclusion the agency reached.” Najafi v. Motor Vehicle
Admin., 418 Md. 164, 173, 12 A.3d 1255, 1261 (2011). We should accord deference “‘to
the agency’s fact-finding and drawing of inferences’” when the record supports them. Id.
(citation omitted); see Mayor & Aldermen of City of Annapolis v. Annapolis Waterfront
Co., 284 Md. 383, 399, 396 A.2d 1080, 1089 (1979) (“The court may not substitute its
judgment on the question whether the inference drawn is the right one or whether a
(4) A statement or fact sheet explaining the basis for the determination
by the Department or Board;
(5) All documents referenced in the statement or fact sheet explaining
the basis for the determination by the Department or Board;
(6) All documents, except documents for which disclosure is
precluded by law or that are subject to privilege, contained in the supporting
file for any draft permit or license;
(7) All comments submitted to the Department or Board during the
public comment period, including comments made on the draft application;
(8) Any tape or transcript of any public hearings held on the
application; and
(9) Any response to any comments submitted to the Department or
Board.
29
different inference would be better supported. The test is reasonableness, not rightness.”)
(citation and internal quotation marks omitted). Moreover, we shall review the agency’s
decision “‘in the light most favorable to it.’” Najafi, 418 Md. at 173, 12 A.3d at 1261.
Finally, we must accord an agency great deference regarding factual questions involving
scientific matters in its area of technical expertise. Bd. of Physician Quality Assurance v.
Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999) (“[T]he expertise of the agency in its
own field should be respected.”).
We have characterized the arbitrary and capricious standard of review as one that is
“extremely deferential.” Harvey v. Marshall, 389 Md. 243, 299, 884 A.2d 1171, 1205
(2005). In reviewing the issuance of an NPDES permit, the U.S. Court of Appeals for the
Second Circuit quoted language derived from Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)—the United States Supreme Court’s leading
case on the arbitrary and capricious standard:
To determine whether the agency’s actions were “arbitrary and
capricious,” we consider whether the agency ‘relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.’
Natural Res. Def. Council, 808 F.3d at 569 (citations and quotation marks omitted). The
court also elaborated that “[w]e must be ‘satisfied from the record that the agency . . .
examine[d] the relevant data and articulate[d] a satisfactory explanation for its action’” and
that it “afford[ed] the agency’s decision greater deference regarding factual questions
30
involving scientific matters in its area of technical expertise.” Id. (quoting State Farm, 463
U.S. at 43) (citations and internal quotation marks omitted). The Second Circuit’s
articulation of the arbitrary and capricious standard is in accord with Maryland’s treatment
of this standard as one that is highly deferential. See Harvey, 389 Md. at 299, 884 A.2d at
1205. We are therefore mindful of the Second Circuit’s explanation of the principles
underlying the arbitrary and capricious standard when applying that standard to this case.40
In addition, we will review an agency decision for an error of law. When our review
concerns a legal question, we apply less deference to the agency’s conclusions. HNS Dev.,
LLC v. People’s Counsel for Balt. Cnty., 425 Md. 436, 449, 42 A.3d 12, 20 (2012). We
refuse to uphold an agency decision “premised solely upon an erroneous conclusion of
law.” Id. (citation omitted) (internal quotation marks omitted). Otherwise, we ordinarily
should give “considerable weight” to an agency’s “interpretation and application of the
statute which [it] administers.” W.R. Grace & Co. v. Swedo, 439 Md. 441, 453, 96 A.3d
210, 217 (2014); John A. v. Bd. of Educ. for Howard Cnty., 400 Md. 363, 381–82, 929
A.2d 136, 147 (2007) (“In reviewing an agency’s legal conclusions, it is a fundamental
40
Case law from the U.S. Court of Appeals for the D.C. Circuit, the preeminent
federal appellate court for review of administrative action, is also helpful in understanding
the degree of deference accorded under the arbitrary and capricious standard. In
Weyerhaeuser Co. v. Costle, the court noted that in light of the structure and aims of the
Clean Water Act, “and the breadth of authority delegated by it to the EPA to identify highly
sophisticated control technology in an area fraught with scientific uncertainty,” its review
of the agency’s action “encounter[ed] significant limitations in the substantive aspect
where the given statutory standards are ‘arbitrary,’ ‘capricious,’ or ‘abuse of discretion.’”
590 F.2d 1011, 1025 (D.C. Cir. 1978). The court highlighted that “an expansive concept
and exercise of the review power [by numerous courts] charged with that function could
easily impede accomplishment of the [Clean Water] Act’s ambitious pollution-ending
aspiration as well as its goal of industry-by-industry uniformity.” Id.
31
principle of administrative law that a reviewing court should not substitute its judgment for
the expertise of those persons who constitute the administrative agency.”).
DISCUSSION
Part I: The 20% Restoration Requirement
The Permits require, by the end of the five-year term, that the Counties restore 20%
of the impervious surface areas in their watersheds that have not been restored to the MEP.
This requirement “uses percent impervious cover in a watershed as a surrogate TMDL
target.” ENSR, Pilot TMDL Applications Using the Impervious Cover Method § 1.0, at
1-1 (2005). Like so much of this case, we must unpack the science before we analyze the
parties’ arguments.
As we develop on land, science has shown us that we profoundly impact our waters.
Consider, for example, when “[t]rees, meadow grasses, and agricultural crops that had
intercepted and absorbed rainfall are removed . . . .” CWP & MDE, Manual, § 1.1, at 1.3.
Problematically, “[c]leared and graded sites erode, are often severely compacted, and can
no longer prevent rainfall from being rapidly converted into stormwater runoff.” Id.
These kinds of sites are known as impervious surfaces, surfaces “that do[] not allow
stormwater to infiltrate into the ground,” such as “rooftops, driveways, sidewalks, or
pavement.” EN § 4-201.1(d). “Impervious surfaces accumulate pollutants deposited
from the atmosphere,” pollutants which are “rapidly delivered to downstream waters”
during storms. CWP & MDE, Manual, § 1.1.1, at 1.5. The purpose of the 20% restoration
requirement, then, is to use stormwater management practices to restore the natural,
32
beneficial processes in our environment that we have changed by developing impervious
surfaces.
In other words, the 20% restoration requirement is a surrogate because the
requirement does not control pollution reduction directly. See ENSR, Pilot TMDL
Applications Using the Impervious Cover Method § 1.0, at 1-1. Rather, it is through
restoring impervious surfaces with management practices that the Counties will reduce
pollution. See, e.g., CWP & MDE, Manual, § 1.2, at 1.13 (“[Management practices] shall
be designed to remove 80% of the average annual post development total suspended solids
load (TSS) and 40% of the average annual post development total phosphorus load (TP).”).
A. Maximum Extent Practicable
The Water Groups argue that the 20% restoration requirement is too opaque to
comply with 33 U.S.C. § 1342(p)(3)(B)(iii), the MEP standard. They so argue because,
they contend, MDE “failed to provide a specific performance standard for restoration
activities” or a “numeric limitation . . . for what pollution reductions must be accomplished
by the permittees’ twenty-percent restoration efforts.” They also argue that MDE failed to
explain what impervious surface is “not restored to the MEP.”
We disagree because (1) the applicable law does not impose a specific performance
standard on MS4s and (2) MDE did actually select a performance standard for the Counties
to adhere to. 33 U.S.C. § 1342(p)(3)(B)(iii) states:
Permits for discharges from municipal storm sewers shall
require controls to reduce the discharge of pollutants to the
maximum extent practicable, including management practices,
control techniques and system, design and engineering
33
methods, and such other provisions as the Administrator or the
State determines appropriate for the control of such pollutants.
From the text, we discern that Congress established a broad requirement for MS4s. The
list of required controls is not exclusive. See 55 Fed. Reg. at 48,038 (“[MS4] controls may
be different in different permits.”). And the purpose of the controls—reducing the
discharge of pollutants—exists alongside the flexible, undefined standard “to the
maximum extent practicable.” See City of Abilene v. EPA, 325 F.3d 657, 659–60 (5th Cir.
2003); Natural Res. Def. Council, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 25
N.Y.3d 373, 406 (N.Y. 2015) (Rivera, J., dissenting in part) (“The CWA does not define
the maximum extent practicable standard. However, it appears to provide broad authority
to agencies to control stormwater pollution.”); 55 Fed. Reg. at 48,038 (“In enacting section
405 of the WQA [Water Quality Act], Congress recognized that permit requirements for
[MS4s] should be developed in a flexible manner to allow site-specific permit conditions
to reflect the wide range of impacts that can be associated with these discharges.”).
33 U.S.C. § 1342(p)(3)(B)(iii) imposes no minimum standard or requirement on
MDE other than to establish controls for MS4s to reduce the discharge of pollutants. See
Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1308 (9th Cir. 1992) (“Congress
did not mandate [in § 1342(p)(3)(B)(iii)] a minimum standards approach or specify that
EPA develop minimal performance requirements. . . . . Congress could have written a
statute requiring stricter standards, and it did not.”). Thus, we reject the Water Groups’
34
argument that MDE committed legal error by “fail[ing] to provide a specific performance
standard for restoration activities.”41
Moreover, MDE tethered restoration to the practices in the Manual, which MDE
incorporates into the Permits by reference. See Part III.E (“These management programs
are designed to control stormwater discharges to the maximum extent practicable . . . .”);
Part III.E.1 (“At a minimum, the County shall . . . [i]mplement the stormwater management
. . . practices found in the [Manual] . . . .”). The Manual explains that the list of acceptable
stormwater management practices is tied to the WQv. “The Water Quality Volume
(denoted as the WQv) is the storage needed to capture and treat the runoff from 90% of the
average annual rainfall.” CWP & MDE, Manual, § 2.1, at 2.2. 42 The Manual further
explains that the “WQv is directly related to the amount of impervious cover created at a
41
A review of the EPA’s guidance on MS4s shows that the restoration requirement
does have a numeric limitation—20%, which denotes the minimum percentage of
impervious surface with respect to which the Counties must implement stormwater
management practices from the Manual in order to fulfill this Permit requirement. See
EPA, 2014 Memo at 4 n.5. (A numeric effluent limitation has “a quantifiable or measurable
parameter related to a pollutant . . . . Numeric WQBELs may include . . . limits on pollutant
discharges by specifying parameters such as . . . percentage or amount of effective
impervious cover . . . .”). In other words, the EPA’s guidance shows that numeric limits
need not be limits on pollution reduction to be acceptable. The limits can, alternatively,
specify parameters such as percentage of impervious cover.
42
By connecting restoration practices to the water quality volume (“WQv”)
standard, MDE acted in accordance with the EPA’s then most recent guidance on the
development of BMPs. See EPA, Revisions to the November 22, 2002 Memorandum
“Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for
Storm Water Sources and NPDES Permit Requirements Based on Those WLAs” 3 (Nov.
12, 2010) (“Where WQBELs in permits for stormwater discharges from MS4s . . . . are
expressed in the form of BMPs, the permit should contain objective and measurable
elements (e.g., schedule for BMP installation or level of BMP performance).”) [hereinafter
“2010 Memo”].
35
site.” Id. In other words, MDE chose a standard that relates to the very problem the 20%
restoration requirement serves to abate: the increase in stormwater runoff and the discharge
of pollutants because of the increase in impervious surfaces. See CWP & MDE, Manual,
§ 1.1., at 1.4 (“As can be seen, the volume of stormwater runoff increases sharply with
impervious cover.”). Thus, the record reflects that MDE has established a performance
standard, WQv, that defines as acceptable those practices the Counties may choose from to
fulfill the 20% restoration requirement. See id. § 2.7 (Acceptable Urban BMP Options).
Moreover, our discussion of restoration is instructive as to why, despite the Water
Groups’ contention, the “impervious surface area that is not restored to the MEP” is
sufficiently clear and measurable. (Emphasis added.) The area that is not restored to the
MEP is the area without the restoration controls described in the Manual. Moreover, the
Manual explains that impervious area refers to an area “that does not have vegetative or
permeable cover.” CWP & MDE, Manual, § 2.1, at 2.4. Put together, the “impervious
surface area that is not restored to the MEP” refers to a defined type of area (impervious
surface) lacking a type of stormwater management control (the BMPs in the Manual). By
way of example, previous MS4 reports delineate these criteria so that MDE can evaluate
whether Montgomery County (in this example) installed the required controls. See
Montgomery County Department of Environmental Protection, Annual Report for 2006
NPDES MS4 Permit F2, at III-64; see also 33 U.S.C. § 1342(p)(3)(B)(iii) (MS4 permits
“shall require controls” such as management practices.).
Because 33 U.S.C. § 1342(p)(3)(B)(iii) does not require a specific performance
standard, and because the concepts of restoration and impervious surface “not restored
36
to the MEP” are sufficiently clear as to the controls that the Counties must install, the
20% restoration requirement in the Permits complies with the MEP standard. See 33
U.S.C. § 1342(p)(3)(B)(iii).
B. Substantial Evidence and Arbitrary and Capricious
The Water Groups also argue that MDE has not explained why it selected 20% as
the restoration goal or how this Permit provision will promote necessary pollution
reduction. The Water Groups contend that MDE ineffectively justifies its choice based on
the Bay TMDL because the Permits do not assure that the Counties will achieve the Bay
TMDL’s objectives or reductions. Even accepting a connection between the 20%
restoration requirement and the Bay TMDL, the Water Groups argue that MDE still failed
to take into account numerous other TMDLs related to the Counties’ waters.
We disagree with the Water Groups’ position because (1) the applicable law affords
permitting authorities flexibility in establishing controls for MS4s and (2) MDE has
justified its decision based on a well-developed and vetted strategy. Natural Res. Def.
Council, 808 F.3d at 569 (citation and internal quotation marks omitted). (“We must be
‘satisfied from the record that the agency . . . examine[d] the relevant data and articulate[d]
a satisfactory explanation for its action.’”).
Congress established a flexible framework in 33 U.S.C. § 1342(p)(3)(B)(iii). As
the text states, MS4s shall require controls “and such other provisions as the
Administrator or the State determines appropriate for the control of such pollutants.”
33 U.S.C. § 1342(p)(3)(B)(iii) (emphasis added). MDE has determined that the 20%
restoration requirement is a key strategy in restoring the Chesapeake Bay. See Part VI.A
37
(Chesapeake Bay Restoration by 2025.). The Permits in particular state that the Counties
will carry out the 20% restoration requirement in order to comply with the Bay TMDL. Id.
A review of Maryland’s Watershed Implementation Plan (“WIP”) is instructive as
to why the 20% restoration requirement will help to restore the Chesapeake Bay. MDE,
Basis for Final Determination. As we have discussed, WIPs are “roadmaps” setting forth
a plan for how and when a jurisdiction will reach the pollution reduction goals in the Bay
TMDL. EPA, Bay TMDL ES at ES-8. The EPA developed the Bay TMDL “in reliance
on” the WIPs that each affected jurisdiction submitted to the EPA. Am. Farm Bureau
Fed’n, 792 F.3d at 291 (emphasis added). Moreover, the EPA approved the Bay TMDL
“only after” determining that each jurisdiction provided “reasonable assurance” that it
would meet the pollutant reductions in its WIP. Id. (emphasis added); see EPA, Bay TMDL
ES at ES-8 (The WIPs are the “cornerstone” that ensures accountability to achieve
pollution reductions).43
Importantly, the strategies in Maryland’s WIP for urban stormwater include, among
other things, the reduction of impervious surface area by 20% over a five-year period, just
as the Permits do. Compare Maryland Phase I Watershed Implementation Plan: Executive
Summary ES-15 (Dec. 3, 2010) [hereinafter Phase I WIP ES], with Part III.G.2. In fact,
restoration of “twenty percent of the counties’ impervious surface area that is not already
restored to the maximum extent practicable (MEP)” is listed in the “key elements” that
43
Notably, the EPA expressed no concerns about Maryland’s WIP, whereas the
EPA had to implement backstop allocations and adjustments in other Bay jurisdictions so
that the EPA had reasonable assurance that all jurisdictions would achieve necessary
reductions. See EPA, Bay TMDL ES at ES-10–13.
38
provide reasonable assurance of the implementation of Maryland’s WIP. Maryland Phase
I Watershed Implementation Plan: § 5.2.2, at 5-30 (Dec. 3, 2010).
MDE incorporated another important element from the WIP to bolster compliance
with the 20% restoration requirement. The EPA explained that the WIPs were to include
“mechanisms to track and report implementation activities” and “provide alternative
approaches.” EPA, Chesapeake Bay TMDL ES at ES-8–ES-9. Maryland’s WIP thus
includes what we refer to as the adaptive management approach, whereby additional or
alternative practices are implemented if existing programs are not meeting target reductions.
Phase I WIP at 5-30.44 MDE incorporated this approach from the WIP into the Permits as
part of the agency’s review of the Counties’ annual reports: “BMP and program
modifications shall be made” if the Counties fail to comply with the Permits or fail to show
progress in meeting WLAs of EPA-approved TMDLs.45 We are satisfied from the record
that MDE “examine[d] the relevant data and articulate[d] a satisfactory explanation for its
action.” Natural Res. Def. Council, 808 F.3d at 569 (citations and internal quotation marks
omitted). We conclude, then, that MDE’s decision to include the 20% restoration
44
We also sometimes refer to this as the “iterative” process, a phrase MDE uses to
refer to the same sequence of events in the Permits.
45
We will explore the relationship between TMDLs and WLAs in more detail in
our discussion of the Water Groups’ challenge to the TMDL planning requirement in the
Permits.
39
requirement in the Permits was supported by substantial evidence and is not arbitrary and
capricious.46
Although we recognize that MDE issued the Montgomery County Permit before
Maryland’s WIP and the Bay TMDL were prepared, the Bay TMDL was not an isolated
event. See Am. Farm Bureau, 984 F. Supp. 2d at 298 (The Bay TMDL “is not a new or
recent idea,” and thus, “it would be improper to view the Final TMDL in a vacuum as a
single, isolated effort to restore water quality to the Chesapeake Bay.”). As we have
discussed, an important prior effort to restore the Chesapeake Bay was the Chesapeake
2000 Agreement. To achieve the restoration goals of that agreement, the Governor of
Maryland’s Chesapeake Bay Cabinet prepared a draft of the State’s plan. Department of
Legislative Services, Office of Policy Analysis, Chesapeake Bay Restoration and the
Tributary Strategy: An Analysis of Maryland’s Efforts to Meet the Nutrient and Sediment
Reduction Goals of the Chesapeake 2000 Agreement iii (2007). The strategy for
stormwater included restoration of impervious surface in Montgomery County, the first
County to successfully implement this program. Id. at 13. The State conceived of this
46
To the extent that the Water Groups seek to challenge the soundness of a past
action, i.e., Maryland’s WIP, this is not the proper forum for such a challenge. See In re
City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *17 (EAB July 27, 2001)
(“[W]e find that this is not the appropriate forum for raising this issue [of a time period
incorporated into a TMDL]. We agree with the Region (Ten of the EPA) that Petitioner’s
allegations are in essence challenges to,” among other things, “the Region’s decision to
approve the Paradise Creek TMDL.” Petitioner “should have” raised that challenge
earlier.). As to the soundness of Maryland’s WIP, for example, the Water Groups should
have raised that challenge in the litigation over the EPA’s decision to promulgate the Bay
TMDL. See Brief for Water Groups at 40, Blue Water Balt. v. Md. Dep’t of the Env’t (No.
44) (“Nor does Appendix A to the Phase II WIP . . . explain how the twenty-percent
restoration requirement relates to the need to reduce the discharge of pollutants . . . .”).
40
strategy as an effective state-wide method of improving the Chesapeake Bay. See
Maryland’s Chesapeake Bay Tributary Strategy Statewide Implementation Plan 16 (2008)
(stormwater strategy). Thus, MDE’s decision to include the 20% restoration requirement
in the Montgomery County Permit was also supported by substantial evidence and was not
arbitrary and capricious.
We further disagree with the Water Groups’ position that the 20% restoration
requirement is insufficient because it does not relate to other TMDLs. Indeed, the Permits
incorporate a requirement to submit plans regarding WLAs for all EPA-approved TMDLs.
That requirement ensures the Permits address all applicable TMDLs.47
C. The Methodology in the Guidance
Finally, with respect to the 20% restoration requirement, the Water Groups object
to MDE’s method of calculating impervious surface area not restored to the MEP. They
assert that the Guidance, which MDE incorporated into these Permits by reference, is
flawed because MDE arbitrarily selected 2002 as the baseline for measuring impervious
surface area. For example, the Water Groups allege that MDE has ignored the current
definition for MEP in the agency’s own regulations.
47
We also find unpersuasive the Water Groups’ reliance on the EPA’s discussion
of the MEP standard when the EPA promulgated rules for MS4 permitting. See NPDES—
Regulations for Revision of the Water Pollution Control Program Addressing Storm Water
Discharges, 64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999). Although the Water Groups stress
that “specific local concerns” are a factor for MS4s to consider in selecting controls to
reduce pollutant discharges, that factor is one of many from a non-exclusive list. The more
enlightening aspect of the EPA’s commentary is that the agency “intentionally [did] not
provide[] a precise definition of MEP to allow maximum flexibility in MS4 permitting.”
Id.
41
We disagree with the Water Groups because MDE reasonably justifies its decision
based on the accurate determination that 2002 marked a significant milestone in the State’s
treatment of water quality. See Najafi, 418 Md. at 173, 12 A.3d at 1261 (discussing the
substantial evidence test); Natural Res. Def. Council, 808 F.3d at 569 (discussing the
arbitrary and capricious test).
MDE explained its selection of 2002 in the Guidance: “Maryland regulations and
local ordinances began requiring BMPs [around this time] to address a specific suite of
volumes [recharge (Rev), water quality (WQv), and channel protection (Cpv)] and it can
therefore be justified that water quality treatment has been provided to the MEP.” MDE,
Guidance at 4. In proposing new regulations for stormwater management in 2000, MDE
explained: “The resulting program will provide water quality treatment of up to 90 percent
of the average annual rainfall throughout the State, establish ground water recharge
standards, and outline a channel erosion control strategy.” 27 Md. Reg. at 1168.
Additionally, MDE explained that prior regulations had provided “sparse guidance” on
“water quality enhancement.” Id. To bolster MDE’s focus on water quality, the agency
incorporated the Manual by reference into the 2000 regulations. See id. at 1170; see also
CWP & MDE, Manual § 2.1, at 2.2 (“The WQv is directly related to the amount of
impervious cover created at a site.”).
The Water Groups reject MDE’s decision by arguing that Maryland’s regulations
currently define “maximum extent practicable” based on a different requirement the State
imposed after 2002. That is, COMAR 26.17.02.02B(22) defines MEP as the design of
“stormwater management systems so that all reasonable opportunities for using ESD
42
planning techniques and treatment practices are exhausted and, only where absolutely
necessary, a structural BMP is implemented.” (Emphasis added.)
MDE has explained, however, that pursuant to the Stormwater Management Act of
2007, which precipitated the regulatory change the Water Groups refer to,48 the
performance requirement ESD pertains to “future development,” not to restoration. MDE,
Basis for Final Determination. As set forth in EN § 4-203(b)(1), “[t]he rules and
regulations shall [i]ndicate that the primary goal of the State and local programs will be to
maintain after development, as nearly as possible, the predevelopment runoff
characteristics.”) (emphasis added). See also COMAR 26.17.02.01B (“These regulations
for stormwater management apply to the development or redevelopment of land . . . .”).
MDE has reached a correct legal conclusion, and one regarding the law in which the agency
has expertise. See John A., 400 Md. at 381–82, 929 A.2d at 147 (“In reviewing an agency’s
legal conclusions, it is a fundamental principle of administrative law that a reviewing court
should not substitute its judgment for the expertise of those persons who constitute the
administrative agency.”). We find no error here.
Although the agency selected ESD as the MEP via regulation in 2009,49 MDE chose
2002 because that year marked the beginning of the stormwater management era when
BMPs were subjected to performance standards to better treat water quality. 27 Md. Reg.
at 1168. WQv is one such standard. CWP & MDE, Manual § 1.2, at 1.13. The Manual
48
See Fiscal and Policy Note, H.B. 786, 2007 Sess. (2007).
49
See 36 Md. Reg. 652, 652 (April 24, 2009) (to be codified at COMAR
26.17.02.02B(22)).
43
shows a direct relationship between the amount of impervious surface and WQv. Id. § 2.1,
at 2.3 (Figure 2.2). Thus, beginning in 2002, Maryland connected stormwater management
practices to the restoration of impervious surface area, which is the Permit requirement at
issue. MDE’s conclusion that the Counties should calculate impervious surface area using
2002 as a baseline as part of the 20% restoration requirement was supported by substantial
evidence and was not arbitrary and capricious. See Banks, 354 Md. at 69, 729 A.2d at 381
(“[T]he expertise of the agency in its own field should be respected.”).50
Because we uphold the Guidance as a component the Counties may legally use to
achieve the 20% restoration requirement, we must address whether Montgomery County
can use this methodology, too. We recognize that MDE issued the Montgomery County
Permit before MDE prepared the Guidance. Compare Montgomery County Permit: Part
I: C (Effective Date: February 16, 2010), with MDE, Basis for Final Determination at 10
(MDE held meetings with the Counties about the Guidance from August 2010 to February
2011 before completing it in June 2011.). As we have discussed, MDE limited the practices
the County could implement by connecting restoration to the Manual. But, importantly,
MDE did not limit the manner in which Montgomery County could show its compliance
with the 20% restoration requirement. See, e.g., Montgomery County Permit: Part G.2
50
Moreover, MDE explained that it designed the Permit to incentivize use of ESD
even though it did not tailor the 20% restoration requirement to this concept. MDE, Basis
for Final Determination (“[T]he Guidance clearly shows that ESD practices will be given
greater pollutant load reductions than other acceptable water quality treatment practices.”);
see MDE, Accounting for Stormwater Wasteload Allocations and Impervious Acres
Treated, Guidance for National Pollutant Discharge Elimination System Stormwater
Permits at 10, Table 4: Structural BMP Retrofit Matrix (2011) [hereinafter “the
Guidance”].
44
(Watershed Restoration), Part IV.A (Annual Reporting). Because the Permit does not
restrict how the County must show its progress in achieving the 20% restoration
requirement and because of the important links we have already analyzed between the
Guidance and the Manual (i.e., the WQv standard), we conclude that Montgomery County
can rely on the Guidance in showing its compliance with this requirement.
Part II: TMDL Plans
As we discussed at the outset of this opinion, TMDLs are informational tools, of
which WLAs—wasteload allocations—are critical. As the District Court for the Middle
District of Pennsylvania aptly noted, “WLAs are not permit limits per se; rather they still
require translation into permit limits . . . .” Am. Farm Bureau Fed’n, 984 F. Supp. 2d at
328 (citation and internal quotation marks omitted) (emphasis in original). The EPA
requires such translation pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B), which the Water
Groups argue MDE failed to comply with.51
Pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B), MDE included a provision that
requires the Counties to submit plans for all EPA-approved TMDLs one year after the
issuance of the Permits (or alternatively, one year after the EPA approves the TMDL).52
51
After analyzing this challenge, we will return to discuss the TMDL planning
requirement in the final section of this opinion, which concerns the Water Groups’
argument that all the Permits fail to comply with federal and state public participation laws.
52
We shall sometimes refer to this Permit requirement as the TMDL implementation
plans or the restoration plans. We stress that this requirement is distinct from the 20%
restoration requirement. The operative word here is plan whereas the operative phrase with
respect to the 20% restoration requirement is restoration of 20% of impervious surface
area. In other words, MDE is assessing the former by looking for the submission of a
45
In creating these restoration plans, the Counties must select actions (including cost
estimates) and set forth a schedule (including deadlines and pollution reduction
benchmarks) to meet WLAs. Because MDE foresaw the process of meeting WLAs as
“iterative,” the Counties must also describe what actions they will take when they fail to
make progress in meeting WLAs.53
Effluent Limitations Must Be Consistent with WLAs
40 C.F.R. § 122.44(d)(1)(vii)(B) requires MDE to establish effluent limitations that
take into account WLAs:
When developing water quality-based effluent limits under this
paragraph the permitting authority shall ensure
that[] . . . [e]ffluent limits developed to protect a narrative
water quality criterion, a numeric water quality criterion, or
both, are consistent with the assumptions and requirements
of any available wasteload allocation for the discharge
prepared by the State and approved by EPA pursuant to 40
CFR 130.7.
(emphasis added).
The Water Groups construe the contents of the TMDL implementation plans, that
is, the actions and deadlines discussed supra, as effluent limitations. As they put it, nothing
else in the Permits is “remotely capable of . . . impos[ing] effluent limitations that are
consistent with the assumptions and requirements of TMDLs.” Thus, the Permits can only
be in compliance with 40 C.F.R. § 122.44(d)(1)(vii)(B) when MDE has reviewed the
planning document and analyzing the latter by reviewing the amount of impervious surface
area the Counties have restored.
53
As we mentioned earlier, we sometimes refer to this process as the adaptive
management approach to the Counties’ implementation of BMPs.
46
contents of the TMDL implementation plans. The problem for MDE, then, is one of timing.
Because MDE will review the contents one year after issuing the Permits, the Water
Groups conclude that MDE cannot know whether the effluent limitations in the Permits
are consistent with the WLAs.
We disagree with the Water Groups because (1) 40 C.F.R. § 122.44(d)(1)(vii)(B) is,
like the MEP standard, flexible as to how a permitting authority complies with this
regulation and (2) MDE has complied with the regulation by incorporating the WLAs (the
most critical element of the regulation) into the Permits and by using an “iterative” process
of agency review and program change to ensure progress in meeting the WLAs.
Before we analyze MDE’s “iterative” process, we must take issue with the Water
Groups’ position that the contents of the restoration plans are effluent limits. We
understand the effluent limits to be best management practices (“BMPs”).54 But,
importantly, the Permits do not incorporate these effluent limits in the restoration plans but
in another section of the Permits—Part III.E. That is, the Counties must implement a
stormwater management program (“SWMP”), including the “practices found in the 2000
Maryland Stormwater Design Manual.”55 Importantly, the Permits instruct that “these
54
The EPA provided guidance that, at the time MDE was designing the Permits,
endorsed this approach. See EPA, 2002 Memo at 4 (Effluent limits “should be expressed
as best management practices (BMPs) or other similar requirements, rather than as numeric
effluent limits.”); EPA, 2010 Memo at 3 (“Where WQBELs in permits for stormwater
discharges from MS4s . . . are expressed in the form of BMPs, the permit should contain
objective and measurable elements (e.g., . . . level of BMP performance.).”). The level of
BMP performance, as we have discussed, is the WQv standard.
55
These practices are best management practices. See, e.g., CWP & MDE, Manual
§ 1.3 (“[Chapter 2] also briefly outlines the six groups of acceptable BMPs that can be used
47
[management] programs shall be integrated with other permit requirements to promote a
comprehensive adaptive approach toward solving water quality problems.” In this light,
we understand the TMDL implementation plans as roadmaps because they describe a plan
for achieving a goal (using BMPs to meet WLAs). See, e.g., Montgomery County Permit
Part III.J (In the TMDL implementation plans, the County must “describe those actions
necessary to meet the storm drain system’s share of WLAs in EPA approved TMDLs.”).
The requirement to implement BMPs, however, exists independent of the requirement to
submit the TMDL implementation plans.
Having clarified this matter, we turn to the regulation to better understand MDE’s
obligation with respect to effluent limits and WLAs. We note that the plain text imposes a
duty on the permitting authority to ensure that effluent limits are consistent with WLA
assumptions and requirements. See In re City of Moscow, Idaho, 2001 WL 988721, at *9
(“[T]he governing regulations require consistency . . . .”) (emphasis in original). But the
text does not instruct the permitting authority as to how it must ensure this consistency.
See id. at 8 (noting the lack of detail in the regulation). Instead, the EPA set a minimal,
flexible requirement in which the permitting authority is to design a scheme where effluent
limits are compatible or in agreement with WLAs. See National Pollution Discharge
Elimination System, 54 Fed. Reg. 23,868, 23,870, 23,879 (June 2, 1989) (codified at 40
C.F.R. § 122.44) (“Subparagraph (vii) does not prescribe detailed procedures for
to meet recharge and water quality volume sizing criteria.”); see also COMAR
26.17.02.02A, B(5) (defining BMP as it relates to the Manual and the stormwater
management chapter of COMAR).
48
developing water quality-based effluent limits. Rather, the regulation prescribes minimum
requirements for developing water quality-based effluent limits, and at the same time, gives
the permitting authority the flexibility to determine the appropriate procedures for
developing water quality-based effluent limits.”); The American Heritage Dictionary of the
English Language 392 (4th ed. 2006) (Consistent means in agreement or compatible.)56;
cf. Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 328 (“Accordingly, in some circumstances,
a state may write a NPDES permit limit that is different from the WLA, provided that it is
consistent with the operative assumptions underlying the WLA.”).
In re City of Moscow, Idaho is illustrative of the flexibility the regulation affords
MDE. There, the Environmental Appeals Board rejected the City of Moscow’s petition
for review of an EPA-issued NPDES permit. 2001 WL 988721, at *1. In pertinent part,
the Board concluded that the EPA (Region X) did not err in creating permit limits although
the EPA did not incorporate the design flow rate of an applicable TMDL. Id. at *8–9.
After reviewing 40 C.F.R. § 122.44(d)(1)(vii)(B) and the regulatory history, see 54 Fed.
Reg. 23,868, 23,879, the Board explained that there was no law or rule prescribing how the
EPA was to select a flow rate to create effluent limits, In re City of Moscow, Idaho, 2001
WL 988721, at *8. The Board concluded that the agency acted “well within the discretion
accorded [it] under the applicable regulatory scheme.” Id. at *9.
56
“When conducting a ‘plain meaning analysis,’ dictionary definitions ‘provide a
useful starting point for discerning what the legislature could have meant in using a
particular term.’” Preston v. State, 444 Md. 67, 84, 118 A.3d 902, 912 (2015) (internal
quotation marks omitted) (citations omitted).
49
So too here. No law or regulation specifies how or burdens MDE in undertaking
the process of complying with 40 C.F.R. § 122.44(d)(1)(vii)(B). In fact, as we have
discussed, the overarching federal law for MS4s—33 U.S.C. § 1342(p)(3)(B)(iii)—is broad
and flexible, too. See Natural Res. Def. Council, 966 F.2d at 1308.
Under the Permits, the Counties must include in the TMDL implementation plans
the actions needed to meet “WLAs in EPA approved TMDLs.” Part III.J.1. Thus, the
Permit ties the activities to WLAs, not to some other benchmark that could be inconsistent
with the WLA. As the Permits make clear, “[a]ll EPA approved TMDL’s that establish
WLA’s applicable to the County’s storm drain system are incorporated by reference into
this permit.” Id.
The Counties must also submit “documentation of progress toward meeting
applicable WLAs developed under EPA approved TMDLs.” Reporting on WLA progress
is reinforced through watershed assessment and restoration requirements. See Part III.F
(“[W]atershed assessments shall [s]pecify how restoration efforts will increase progress
toward meeting any applicable WLAs included in EPA approved TMDLs.”); Part III.G
(The Counties shall annually report on progress toward meeting WLAs.).
Moreover, “MDE will review program implementation, annual reports, and periodic
data submittal on an annual basis.” The Permit requires “BMP and program modifications”
if this report fails to “show progress toward meeting WLAs.” The modifications are a
product of the “iterative approach” the Counties must follow if they do not make progress
in achieving WLAs. That is, the Counties must propose “additional or alternate stormwater
controls” to meet WLAs, which MDE will review and approve, if adequate.
50
Environmental Defense Center, Inc. v. United States Environmental Protection
Agency (“EDC”) is instructive on the importance of permittee reporting and agency review
to ensure compliance with the law. 344 F.3d 832, 858 (9th Cir. 2003). In EDC, the Ninth
Circuit vacated a portion of an EPA rule that permitted small MS4s to discharge under a
general permitting scheme, and remanded for the EPA to revise the rule to comply with the
CWA. Id. at 858.57 The Ninth Circuit stated that the rule did not require the permitting
authority to review the MS4 operator’s stormwater management program “to ensure” that
the operator’s program would “in fact” comply with the relevant law. Id. at 855 (emphasis
in original). Thus, the Ninth Circuit concluded that “nothing prevents the operator of a
small MS4 from misunderstanding or misrepresenting its own stormwater situation.” Id.
The scheme the Ninth Circuit rejected in EDC is materially different from the
scheme in the Permits here. MDE requires reporting, assessment, and adaptation to ensure
that the Counties’ BMPs will make progress to achieve WLAs. We find the effluent limits
under this scheme to be consistent with approved WLAs. See id. at 856 (“However,
stormwater management programs that are designed by regulated parties must, in every
instance, be subject to meaningful review by an appropriate regulating entity . . . .”). Thus,
the Permits comply with 40 C.F.R. § 122.44(d)(1)(vii)(B).
57
In a general permitting scheme, a general permit is established with set limits and
requirements. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003). Then,
a discharger may file a notice of intent (“NOI”), through which the discharger agrees to
discharge under the terms of the general permit. Id. “[T]he NOI represents no more than
a formal acceptance of terms elaborated elsewhere.” Id.
51
Part III: Monitoring
Here, the Water Groups raise two arguments: the Permits do not include federally
mandated monitoring to (1) produce representative data in the MS4 jurisdictions and (2)
assure compliance with Permit requirements. They contend that MDE elected not to
comply with federal regulations that impose the above requirements and that the record
does not otherwise show that MDE complied with these laws. MDE responds by defending
its monitoring scheme as sufficient to comply with the applicable federal regulations.
Moreover, MDE argues that some of the federal provisions are inapposite because they
only pertained to the initial application for MS4 permits in the 1990s.
A. The Permit’s Monitoring Requirements
We begin by noting what the Permits require. Under Part III.F, each County must
conduct chemical, biological, and physical monitoring at one outfall and an associated in-
stream station.58 The Permits set forth the number of required monitoring events, sampling
methods, pollutants, and locations.59 The Counties must also conduct monitoring of stream
58
The designated locations in Anne Arundel County are the Parole Plaza outfall and
Church Creek in-stream station in the South River watershed. The watershed in Baltimore
County is the Scotts Level Branch watershed. The watershed in Prince George’s County
is the Bear Branch watershed. Baltimore City’s location is the Moores Run. Although
Montgomery County’s Permit states that the watershed is the Lower Paint Branch
watershed, Part III.H.1, the location was changed to the Sligo Creek Watershed after it was
determined that the prior location was no longer effective for monitoring purposes. See
Montgomery County Department of Environmental Protection, Annual Report for 2010
NPDES MS4 Permit, at III-26.
59
For chemical monitoring, the Counties must monitor 12 storm events each year,
use automated or manual sampling methods, submit three representative samples for
laboratory analysis under EPA approved methods, and record continuous flow
measurements. Part IV.F.1. The Counties must obtain pollutant samples for biochemical
52
channel protection.60 These two levels of monitoring occur at different locations. Compare
note 58, with note 60.
B. Applicable Law
We now consider what federal monitoring regulations apply to the Permits. Under
40 C.F.R. § 122.48(b), “[a]ll permits shall specify [r]equired monitoring including type,
intervals, and frequency sufficient to yield data which are representative of the monitored
activity including, when appropriate, continuous monitoring.” (Emphasis added.)
Moreover, monitoring requirements must “assure compliance with permit limitations.”
40 C.F.R. § 122.44(i)(1); see also In re Gov’t of the D.C. Mun. Separate Storm Sewer Sys.,
10 E.A.D. 323, 2002 WL 257698, at *20 (Feb. 20, 2002) (“First, both section 122.48(b)
and section 122.44(i) would appear to require that certain monitoring conditions be
included in all permits.”). The Clean Water Act makes plain the EPA’s broad authority to
oxygen demand, total Kjeldahl nitrogen, nitrate plus nitrite, total suspended solids, total
petroleum hydrocarbons, e. coli or enterococcus, total lead, total copper, total zinc, total
phosphorus, and hardness. Id. The Counties must also record continuous flow
measurements and use the data to estimate pollutant load reductions. Id. And the Counties
must report such estimates for EPA approved TMDLs. Id.
For biological monitoring, the Counties must annually gather benthic
macroinvertebrate samples through approved methods. For physical monitoring, they must
conduct a geomorphologic stream assessment, a stream habitat assessment, and use a
hydrologic and/or hydraulic model to analyze the effects of rainfall, discharge rates, stage,
and if necessary, continuous flow on channel geometry. Id. Benthic pertains to species
living on the floor of a waterbody. Chesapeake Bay Program, Chesapeake Bay:
Introduction to an Ecosystem at 3.
60
In Anne Arundel County, the designated location is the Picture Spring Branch in
the Severn River watershed. In Baltimore County, it is the Windlass Run watershed. In
Prince George’s County, it is the Black Branch watershed. In Baltimore City, it is the
Stony Run Watershed. And in Montgomery County, it is the Clarksburg Special Protection
Area.
53
set these requirements. 33 U.S.C. § 1318(a); Natural Res. Def. Council, Inc. v. EPA, 863
F.2d 1420, 1434 (9th Cir. 1988) (The EPA “has wide discretion and authority to determine
monitoring requirements in NPDES permits . . . .”). These requirements apply to state
programs. 40 C.F.R. § 123.25(15), (19).
The Water Groups point us to an additional regulation as part of their argument that
the Permits are not capable of producing representative data. Specifically, pursuant to 40
C.F.R. § 122.26(d)(2)(iii)(D), applicants for large MS4s must submit a “proposed
monitoring program for representative data collection for the term of the permit that
describes the location of outfalls or field screening points to be sampled (or the location of
instream stations),” and, among other things, “why the location is representative.” But
MDE disputes whether this regulation is even applicable to our analysis of the agency’s
decision to issue the Permits when the regulation, in its view, pertains to applicants (i.e.,
permittees). MDE argues that we should read 40 C.F.R. § 122.26(d)(2)(iii)(D) as relevant
only to a permit application—not a permit—and, moreover, only to the first cycle of permit
applications for MS4s (i.e., the early 1990s). In MDE’s view, the agency had “the
flexibility to establish requirements [it] deem[ed] appropriate” in subsequent MS4 permits.
Recognizing that 40 C.F.R. § 122.26(d) concerns “[a]pplication requirements,” we
nevertheless agree with the Water Groups that the regulation is relevant to our review of
MDE’s decision to issue the Permits. Although state and federal permitting laws are
unhelpful, an EPA Policy Memorandum interpreting 40 C.F.R. § 122.26(d) (“the Policy
54
Memo”)61 is instructive. In the Policy Memo, the EPA instructs that “reapplications should
focus on maintenance and improvement of [MS4 storm water management] programs” that
were required in the initial applications. EPA, Interpretive Policy Memorandum on
Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,
41,698 (Aug. 9, 1996) [hereinafter Policy Memo].62 According to the Policy Memo, MDE
can make changes to the MS4 monitoring program during the reapplication period, but
such changes must be “appropriate and useful.” Id. at 41,699. In other words, when a
permittee reapplies for a discharge permit, and if the permitting authority reissues the
permit, it is the permitting authority’s responsibility to ensure that the reissued permit
contains programs that are adequate in light of the initial application requirements in 40
61
The parties do not dispute that we should accord considerable deference to the
Policy Memo. Courts have turned to agency interpretations of their own regulations, if
ambiguous, to discern how to understand them. See Coeur Alaska, Inc. v. Se. Alaska
Conservation Council, 557 U.S. 261, 283 (2009) (“The regulations do not give a definitive
answer to the question whether § 306 [of the CWA] applies to discharges regulated by the
Corps under § 404 [of the CWA], but we do find that agency interpretation [in a
memorandum from and to EPA officers] and agency application of the regulations are
instructive and to the point.”) (emphasis added).
62
MDE’s Bases for Final Determination explain that the Counties submitted their
applications as part of their fourth annual reports. MDE followed the method the EPA
suggested in the Policy Memorandum. See EPA, Interpretive Policy Memorandum on
Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,
41,699 (Aug. 9, 1996) [hereinafter Policy Memo] (“MS4s may use the fourth year annual
report . . . as the MS4 permit reapplication.”). Regulating authorities in other jurisdictions
have used the submission of an annual report as part of the permit reapplication process.
See Natural Res. Def. Council, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 34 N.E.3d
782, 790 (N.Y. 2015) (“The vast majority of New York’s 500 plus small MS4s achieved
initial authorization to discharge stormwater prior to the effective date of the 2010 General
Permit; they were able to maintain coverage under the 2010 General Permit by submitting
their 2009 annual reports.”) (citation omitted).
55
C.F.R. § 122.26(d). We rely, then, on 40 C.F.R. § 122.26(d) as a baseline to review the
monitoring program in the Permits to ensure that MDE only made program changes that
were “appropriate and useful.” Id. at 41,699.
C. The EPA Policy Memo
The EPA published the Policy Memo to “respond[] to requests from municipalities
and NPDES permit writers for clarification about regulations which do not appear to
address reapplication requirements, i.e., permit reissuance.” 61 Fed. Reg. at 41,698.
In the Policy Memo, the EPA first explains that it does not require an applicant to
repeat in full the process in 40 C.F.R. § 122.26(d)(1)-(2). Id. The EPA explained that it
would be redundant to “request the same information again [including characterization of
data at § 122.26(d)(2)(iii)], where it has already been provided and has not changed.” Id.
But an applicant “should identify any proposed changes or improvements” to “monitoring
activities.” Id.
If MS4 applicants and permit writers wish to change programs in future permits, the
EPA explains, they may not only “de-emphasize” but also propose to eliminate a program
component. Id. at 41,699; see id. at 41,698 (“MS4 permit applicants and NPDES permit
writers have considerable discretion to customize appropriate and streamlined
reapplication requirements on a case-by-case basis.”). De-emphasis may be justified based
on the discharger’s experience during the first permit term. Id. By way of example, the
EPA stated that “new information on the relative magnitude of a problem” and “new data
on water quality impacts of storm water discharges” could justify program changes. Id.
Moreover, elimination could be justified “when a different water quality program would
56
serve the same goals.” Id. We construe the phrase “same goals” as referring to the
CWA’s objective in Chapter 26 of Title 33 of “restor[ing] and maintain[ing] the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see 33
U.S.C. § 1318(a)(1)(A)(i) (“Whenever required to carry out the objective of this chapter
[26: Water Pollution Prevention and Control], . . . . the Administrator shall require the
owner or operator of any point source to establish and maintain such records . . . [and use
such monitoring methods] . . . as he may reasonably require.”) (emphasis added).
If MS4 applicants and permit writers wish to change monitoring programs, the EPA
encouraged them “to determine if storm water monitoring efforts are appropriate and
useful.” 61 Fed. Reg. 41,699. The EPA then suggested alternative techniques:
“municipalities may wish to consider using monitoring techniques other than end-of-the
pipe chemical-specific monitoring, including habitat assessments, bioassessments, and/or
other biological methods.” Id. (emphasis added).
D. Representative Monitoring
MDE argues, somewhat correctly, that the Policy Memo grants it “the flexibility to
establish requirements [it] deem[s] appropriate.” The Water Groups only repeat the
language of the Policy Memo, arguing that MDE can change programs to make them “more
appropriate and useful.” They argue that MDE’s decision was not supported by substantial
evidence. Although the Policy Memo does grant NPDES permit writers, like MDE, the
flexibility to modify program components, including monitoring, 61 Fed. Reg. at 41,699,
the EPA does not allow permit writers to reissue permits and abdicate their responsibility
in “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the
57
Nation’s waters.” 33 U.S.C. § 1251(a). 40 C.F.R. 122.26(d) required, among other things,
a “proposed monitoring program for representative data collection for the term of the
permit that describes the location of outfalls or field screening points to be sampled (or the
location of instream stations),” and, among other things, “why the location is
representative.” And as we also discussed earlier, the Permits must include monitoring
“sufficient to yield data which are representative of the monitored activity.” 40 C.F.R. §
122.48(b).
We conclude that MDE’s monitoring program in the Permits will produce
representative data because MDE has (1) ensured that the Counties monitor stormwater
discharges at monitoring locations that represent an adequate range of land uses statewide,
and (2) increased the frequency of monitoring to yield more representative information at
the County level.
MDE revised the MS4 monitoring program in the late 1990s to implement a
monitoring approach called the “three legged stool,” so named because it incorporated not
only “[c]hemical testing” but also “biological criteria” and “physical assessments.” MDE,
Maryland’s NPDES Municipal Stormwater Monitoring at § 4.2 (1997); see also MDE,
Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4 Permit. The
agency articulated this approach as being “more aligned with the CWA’s goal to ‘restore
and maintain the chemical, physical, and biological integrity of the nation’s waters.’”
MDE, Maryland’s NPDES Municipal Stormwater Monitoring at § 4.2 (emphasis added);
see also MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES
MS4 Permit. MDE also increased the frequency of monitoring so that the Counties needed
58
to monitor twelve storm events instead of three. MDE, Maryland’s NPDES Municipal
Stormwater Monitoring at § 4.0. Finally, in light of the increase in monitoring type, MDE
decreased the number of monitoring sites to one outfall and one associated in-stream station
in a watershed. Id. at § 4.3.
The agency explained that it adopted the “three legged stool” approach after an
analysis of the MS4s’ concerns in implementing the first permits: “local governments
argued that in many instances, biological and physical monitoring results are better
indicators of small stream health.” Maryland’s NPDES Municipal Stormwater Monitoring
§ 4.1; MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4
Permit (2013) (emphasis added). MDE acknowledged the local jurisdictions’ concern that
“water chemistry data are of little value” in discerning the effects of stormwater in local
streams when there is no assessment of stormwater as to “physical stream habitat and
biological health.” MDE, Maryland’s NPDES Municipal Stormwater Monitoring at § 4.1.
Nevertheless, MDE explained in its analysis that “[t]here is still a need to continue water
chemistry work for the far field objectives of nutrient reduction in the Bay and accurate
loading estimates for NPDES.” Id. at § 4.2.
In explaining its decision to increase the number of monitored storm events, MDE
stated that “more frequent sampling” would “improve pollutant load estimates.” MDE,
Maryland’s NPDES Municipal Stormwater Monitoring at § 4.0.
Moreover, in explaining why it pared the number of chemical monitoring sites,
MDE stated that the addition of biological and physical monitoring required the agency to
reapportion resources. Id. at § 4.3. To compensate for the reduced number of sites, MDE
59
explained that: (1) “[a] major goal for future monitoring will be to integrate water
chemistry, biology, and physical assessments in one suitable watershed” to ensure “all
three techniques [are] analyzed holistically”; and that (2) “site selection will be
orchestrated at the state level” to “maintain an adequate number of residential, commercial,
and industrial sites for State water chemistry needs.” MDE, Maryland’s NPDES Municipal
Stormwater Monitoring at § 4.3.63
MDE’s decision-making illustrates that, as the Policy Memo stated, the permitting
authority and permittees worked together to “determine if storm water monitoring efforts
[were] appropriate and useful.” 61 Fed. Reg. at 41,699. MDE did not rubber stamp the
jurisdictions’ proposal but affirmed that “[t]here is still a need to continue water chemistry
work for the far field objectives of nutrient reduction in the Bay and accurate loading
estimates for NPDES.” MDE, Maryland’s NPDES Municipal Stormwater Monitoring at
§ 4.2.64
63
As the initial permit application requirements indicate, the appropriate land uses
that a permittee was to monitor were commercial, residential, and industrial. See 40 C.F.R.
§ 122.26(d)(2)(iii)(A).
64
MDE also took into consideration the financial burden on local jurisdictions in
revising the monitoring program: “The cost for establishing four monitoring sites with
either automated equipment or staff and having numerous storm events sampled and
analyzed [as required of NPDES MS4 permits] makes this one of the more expensive
undertakings for local jurisdictions.” MDE, Maryland’s NPDES Municipal Stormwater
Monitoring § 4.1 (1997). Although the Policy Memo does not explicitly include cost as a
factor in making program changes, it does state that “[c]hanges to the stormwater
management program may be justified due to the availability of new information on the
relative magnitude of a problem.” EPA, Interpretive Policy Memorandum on
Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,
41,699 (Aug. 9, 1996) (emphasis added) [hereinafter Policy Memo]. Research on the cost
60
Moreover, biological and physical monitoring are within the scope of the EPA’s
suggestions for alternative techniques, that is, “monitoring techniques other than end-of-
the pipe chemical-specific monitoring, including habitat assessments, bioassessments,
and/or other biological methods.” 61 Fed. Reg. at 41,699 (emphasis added).
By increasing the number of monitored storm events,65 MDE intended for the
Counties to acquire more representative data about pollutant loads. Compare 61 Fed. Reg.
at 41,699 (The EPA encouraged permit writers “to determine if storm water monitoring
efforts are appropriate and useful.”), with 40 C.F.R. § 122.62(d)(2)(iii)(D) (The initial
application called for “[a] proposed monitoring program for representative data
collection.”).66
to undertake certain monitoring requirements strikes us as information relevant in
considering programmatic changes.
Moreover, we cannot view MDE’s decision in a vacuum. In light of MDE’s addition
of biological and physical monitoring, MDE stated that “[t]o be fair, current chemical
requirements, at least in terms of monitoring sites, need to be pared with a commensurate
reapportionment of resources to accommodate the two additional stool legs.” MDE,
Maryland’s NPDES Municipal Stormwater Monitoring at § 4.3. We believe it was
reasonable for MDE to reallocate resources for its revised program to further the objective
of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251(a).
65
MDE has amassed a wealth of data from monitoring stormwater throughout the
State: “Since the inception of the NPDES stormwater program, Maryland’s MS4
jurisdictions have monitored more than 2,745 storm events along with an additional 1,605
sampling activities during baseflow conditions.” MDE, Basis for Final Determination to
Issue Anne Arundel County’s NPDES MS4 Permit.
66
The Water Groups argue: “[T]he monitoring location for Baltimore City – Moores
Run – is located on the eastern edge of the City near the border with Baltimore County,
and is located within the Back River watershed which is just one of four major watersheds
that receives discharges from the City’s MS4.” MDE’s approach illustrates that
61
The Water Groups insist on interpreting representative in terms of the boundaries
of the political subdivisions. In its analysis of the Counties’ initial monitoring experiences,
MDE explained that site selection was a challenging undertaking, and one that it had to
interpret flexibly so that the Counties could reasonably carry out their monitoring duties.
That is, “monitoring only five sites did not allow any single jurisdiction to monitor all
possible land uses.” Maryland’s NPDES Municipal Stormwater Monitoring at § 2.3. From
MDE’s perspective, however, the state-wide program to improve water quality was
maintained by, “in the aggregate,” monitoring “the continuum from low density residential
to heavy industrial sites.” Id. (emphasis added). The watersheds MDE has approved
extend from low-density residential land use to commercial use and light industrial use.67
representative does not only reflect the boundaries of the political subdivisions. Increasing
the frequency of monitoring at a location is a way to yield more representative data.
To the extent that the Water Groups insist on interpreting representative only with
respect to the boundaries of the political subdivisions, we note that the Permits require
“detailed” watershed assessments “for the entire County.” Part IV.E.1 (emphasis added).
The assessment shall include the following activities: “[d]etermin[ing] current water
quality problems”; “[i]nclud[ing] the results of a visual watershed inspection”; and
“[i]dentify[ing] and rank[ing] water quality problems.” Id. This Permit requirement
facilitates comprehensive data collection in each jurisdiction.
67
For a comparison of land uses, see Anne Arundel County Department of Public
Works, 2013 Annual Report (NPDES MS4 Permit) § III-73, available at
http://www.aacounty.org/departments/public-works/wprp/npdes-ms4-permit/; Baltimore
County Government, 2014 NPDES Annual Report § 10-4, available at
http://www.baltimorecountymd.gov/Agencies/environment/npdes/index.html; City of
Baltimore Department of Public Works et al., 2011 Annual Report (NPDES MS4
Permit); MDE, Review of Prince George’s County’s 2009 Annual Report (NPDES MS4
Permit), available at http://www.mde.state.md.us/programs/Water/Stormwater
ManagementProgram/SedimentandStormwaterHome/Documents/Prince%20George%20
3-6%20Annual%20Report%20Review.pdf; Montgomery County Department of
Environmental Protection, Breewood Tributary Restoration, available at
62
Thus, we conclude MDE has approved of monitoring locations that adequately represent a
continuum of land uses for the agency and the Counties to collect data. See MDE,
Maryland’s NPDES Municipal Stormwater Monitoring at § 4.3 (“[S]ite selection will be
orchestrated at the state level” to “maintain an adequate number of residential, commercial,
and industrial sites for State water chemistry needs.”) (emphasis added).
MDE amended the program with the CWA’s objective at the forefront of its mind:
“restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the
Nation’s waters.” Id.; see 33 U.S.C. § 1251(a). In accordance with the Policy Memo, the
agency’s changes and reasoning strike us as thorough efforts to make the monitoring
program “appropriate and useful.” 61 Fed. Reg. at 41,699. We conclude that MDE acted
within the discretion the EPA accorded it in the Policy Memo. Thus, we also conclude that
MDE has committed no legal errors pertaining to 40 C.F.R. § 122.26(d)(2)(iii)(D).
For many of the same reasons, we believe that the Permits contain monitoring
“sufficient to yield data which are representative of the monitored activity.” 40 C.F.R.
§ 122.48(b). The Permits require monitoring of many pollutants. Part IV.F.1.a-d.68
http://www.montgomerycountymd.gov/DEP/Restoration/breewood.html (last visited Feb.
11, 2016).
68
Part IV.F.1. The Counties must obtain samples representative of a dozen storm
events for biochemical oxygen demand, total Kjeldahl nitrogen, nitrate plus nitrite, total
suspended solids, total petroleum hydrocarbons, e. coli or enterococcus, total lead, total
copper, total zinc, total phosphorus, and hardness. Id. Consequently, “the resulting data
will accurately portray the most common conditions for each site.” EPA, NPDES Storm
Water Sampling Guidance Document § 2.7.1, at 18 (1992). The Counties must also ensure
that a laboratory analysis of these samples is conducted under EPA approved methods.
Part IV.F.1.a.
63
Following the Counties’ first experience implementing MS4 permits, MDE increased the
frequency of monitoring to “improve pollutant load estimates.” MDE, Maryland’s NPDES
Municipal Stormwater Monitoring § 4.0. The agency also decided to orchestrate site
selection at the state level to “maintain an adequate number of residential, commercial, and
industrial sites for State water chemistry needs.” Id. § 4.3. By taking control of the
selection of monitored sites, MDE could better ensure monitoring of a continuum of
activities (industrial, residential, and commercial). Additionally, the Counties will have to
explain their monitoring process to ensure that the agency can evaluate whether they have
complied with MDE’s requirements. Part V.A.1.b. (The Counties shall submit annual
reports and include “[a] narrative summary describing the results and analyses of data,
including monitoring data that is accumulated throughout the reporting year.”). 69
69
When the EPA issued the initial permit application requirements for MS4s, the EPA
set criteria to make storm events and sampling representative. 40 C.F.R. § 122.26(d)(2)(iii)
(citing 40 C.F.R. § 122.21(g)(7)); see EPA, NPDES Storm Water Sampling Guidance
Document § 2.7.1, at 18 (1992) (“These criteria were established to: (1) ensure that adequate
flow would be discharged; (2) allow some build-up of pollutants during the dry weather
intervals, and (3) ensure that the storm would be ‘representative,’ (i.e., typical for the area
in terms of intensity, depth, and duration).”). To wit, a storm event must be “greater than
0.1 inch,” “at least 72 hours” after the “previously measured storm event,” and the sample
must be for a “flow-weighted composite sample” taken for “either the entire discharge or
for the first three hours of the discharge.” 40 C.F.R. § 122.21(g)(7).
As we discussed, it is ambiguous whether this regulation (40 C.F.R. § 122.26(d)(2))
pertains to subsequent permit applications and, thus, to this case. Thus, we turn again to
the EPA Policy Memo which clarifies reapplication requirements. EPA, Interpretive
Policy Memorandum on Reapplication Requirements for Municipal Separate Sewer
Systems, 61 Fed. Reg. 41,698, 41,698 (Aug. 9, 1996) [hereinafter “Policy Memo”]. The
EPA encouraged “permitting authorities to work with permittees to determine if storm
water monitoring efforts are appropriate and useful,” and to “propose changes to make the
program more appropriate and useful.” Id. at 41,699. Because MDE did not propose any
changes to the EPA’s sampling criteria, see MDE, Maryland’s NPDES Municipal
Stormwater Monitoring, at §§ 4.0–4.3; App’x. 5, we conclude that these criteria should
64
MDE also requires the Counties to assess WLAs, which represent pollutant loads.
Part IV.E.2.b.iii. The Counties must record continuous flow measurements to obtain data
to estimate pollutant reductions. Part IV.F.1.a.iv. Because the Counties are to achieve
WLAs over time through restoration activities, MDE requires the Counties to conduct such
monitoring “where the cumulative effects of watershed restoration activities can be
assessed.” Part IV.F.1 (emphasis added).
MDE thus structured the Permits and imposed requirements on the Counties to
ensure that they will monitor the discharge of pollutants to yield representative data. We
conclude that the Permits comply with 40 C.F.R. § 122.48(b).
E. Permit Limitations
40 C.F.R. § 122.44(i) requires monitoring “to assure compliance with permit
limitations.” We begin by noting the two applicable limitations: (1) controls to reduce the
discharge of pollutants70 and (2) the restoration of 20% of impervious surface area not
restored to the MEP. See Part III.D; Part III.E.2.71
inform MDE’s assessment of the Counties’ chemical monitoring summary and,
specifically, whether the Counties obtained representative samples of pollutants.
70
33 U.S.C. § 1342(p)(3)(B)(iii); 40 C.F.R. § 122.44(d)(1)(vii)(B). To be clear,
the phrase “reduce the discharge of pollutants” does not appear in the text of 40 C.F.R.
§ 122.44(d)(1)(vii)(B). But the effect of the regulation is the same. When a permitting
authority ensures that effluent limits will be consistent with WLAs, permittees are
subject to discharge requirements that in accordance with “the portion of a receiving
water’s loading capacity that is allocated to one of its existing or future point sources
of pollution.” 40 C.F.R. § 130.2(h).
71
Under 33 U.S.C. § 1342(p)(3)(B)(iii), MS4s shall require “such other provisions”
as “the State determines appropriate for the control of such pollutants.” MDE (acting on
behalf of the State) required the Counties to achieve the 20% restoration requirement.
65
1. Reduction of Pollutant Discharge
The Permits include two important components that inform our analysis of whether
MDE’s monitoring program ensures reductions in the discharge of pollutants: (a) the
monitoring and modeling scheme and (b) adaptive management. As we explain, our initial
discussion of monitoring and modeling is not sufficient to measure MDE’s compliance
with 40 C.F.R. § 122.44(i). Rather, it is a necessary component of what we consider a two-
part scheme MDE designed to ensure the Counties would implement controls to reduce
stormwater discharges.
a. Monitoring and Modeling
MDE requires the Counties to implement a stormwater management program
(“SWMP”), which consists of BMPs. Part IV.D.1.a. The Counties must integrate SWMPs
with other permit requirements. Part IV.D. Aside from their role in the 20% restoration
requirement, BMPs are most critical in the restoration plans that the Counties must
implement to achieve progress in meeting WLAs. Part IV.E.2, 4; see supra note 17 (The
WLAs are derived from the EPA approved TMDLs for each Permit.).
To achieve progress in meeting WLAs, the Counties must first set a baseline for
stormwater pollutant loads. MDE, Guidance, at 3.72 To set this baseline, the Counties must
apply TMDL pollutant loading rates to urban land use data. Id. An MDE-approved model,
72
As we have previously discussed with respect to the Montgomery County Permit,
the Permit language is broad enough such that Montgomery County can rely on the
Guidance in establishing pollutant loads. Montgomery County Permit Part III.J (“In order
to accomplish these goals, this permit requires in Part III.J.2 below, that the County develop
TMDL implementation plans that include estimates of pollutant loading reductions . . . .”).
66
such as MAST, will automatically calculate the cost and load estimates for Counties to
inform their decision-making. See About MAST, Maryland Assessment Scenario Tool,
available at http://www.mastonline.org/About.aspx. The Counties can compare different
scenarios to determine what BMPs they can implement to reduce pollution. Id.; see also
MDE, Guidance, at 1 (“Local governments can weigh the cost associated with
implementing different practices and choose the most efficient option for meeting pollutant
load reductions.”). The Counties select and begin implementing BMPs in accordance with
their restoration plans. Part IV.E.2. Then they can monitor the effectiveness of the
activities, Part IV.F.1.a.iv, and use the monitoring information to determine if the activities
have helped make progress in achieving WLAs, Part IV.E.2, 4.
But the efficiencies for BMPs that the Counties select are based in part on estimates.
See, e.g., MDE, Guidance, at 10 (Table 4).73 As our discussion of modeling illustrates, a
73
MDE developed efficiencies in part based on the Maryland stormwater
management eras in which approved BMPs were introduced. MDE, Guidance, at 6. BMPs
have become increasingly sophisticated over time. See MDE, Guidance, at 10 (Table 4).
MDE also derived efficiencies from the Chesapeake Bay Program (“CBP”), see id., which
explained inherent limitations in such efficiencies:
It must also be recognized that the BMP efficiencies are being
developed using an adaptive management approach that
recognizes that our knowledge is incomplete. Adaptive
management proposes a science-based and conservative
approach to efficiencies. It allows a BMP efficiency review
and updating at recurring intervals on the basis of new
research, monitoring, and experience.
Chesapeake Bay Program, Phase 5.3 Community Watershed Model, § 6, at 6-9, available
at http://www.chesapeakebay.net/about/programs/modeling/53/.
67
model predicts the reductions a BMP can achieve.74 But it does not tell the Counties
exactly what the BMP will do in terms of pollution reduction. Indeed, many variables
impact this process.75 See Chesapeake Bay Program, Phase 5.3 Community Watershed
Model, § 6.1.2, at 6-4 (“Uncertainty in estimates of BMP effectiveness is due to factors
including (1) variability in precipitation, hydrology, soils, and geology; (2) variable
performance of land management practices; [and] (3) lag time between implementing a
practice and full performance and observed water quality benefits . . . .”); see also id. at
§ 6.2.2, at 6-8 (“Virtually all research data are generated under controlled management
conditions” that, among other things, are designed to minimize hazards; thus, “the
research estimates are more representative of a best-case scenario.”).
But this should not raise a red flag about the legal correctness of the Permits. Indeed,
the inherent shortcoming in estimating BMP effectiveness explains MDE’s decision to
require the Counties to adapt their practices based on improved knowledge over time. See
74
The modeling, which in many cases yields the WLAs the Counties are trying to
meet, is itself a process of estimation and prediction. EPA, Bay TMDL § 5.3, at 5-19 (“The
models produce estimates, not perfect forecasts. Hence, they reduce, but do not eliminate,
uncertainty in environmental decision making.”); see also EPA, Bay TMDL ES at ES-5
(“The TMDL is informed by a series of models . . . .”).
75
Research on BMP effectiveness suggests that it would be challenging to monitor
practices through comparing data at multiple sites because of variables likely beyond the
Counties’ control. See id. at § 6.2.1, at 6-4 (Because “pollutant transport occurs through a
variety of environmental pathways,” transport time “varies substantially . . . . Surface
runoff to a stream can take minutes to days, whereas leaching to groundwater followed by
discharge to a stream can take months to decades.”); cf. Natural Res. Def. Council, Inc., 34
N.E.3d at 783 (“[A]lthough municipalities operate sewer systems, stormwater
contamination results from the often unforeseen or unpredictable choices of individual
residents and businesses (for examples, to let litter pile up or to use certain lawn
fertilizers) . . . .”).
68
infra Discussion: Adaptive Management. Rather, because the Counties must implement
BMPs to make progress in achieving WLAs, estimation and prediction are necessary evils
in this context. Thus, high quality assessments of BMPs are particularly important in the
Permits so that MDE and the Counties can understand which practices are most effective
to meet the many WLAs incorporated into the Permits. See infra note 17.
As we have discussed, MDE requires the Counties to assess BMPs through a
focused monitoring approach. Part IV.F.1.a.iv. In the Basis for Final Determination, MDE
explained that pollution reduction research supported the use of focused monitoring to
better understand and, thus, improve BMPs. MDE, Basis for Final Determination to Issue
Anne Arundel County’s NPDES MS4 Permit (2013).76 The research includes an analysis
of how states, including Maryland, were “tracking nutrient and sediment control practices”
to restore the Chesapeake Bay. See Committee on the Evaluation of Chesapeake Bay
Program Implementation for Nutrient Reduction to Improve Water Quality, Achieving
Nutrient and Sediment Reduction Goals in the Chesapeake Bay vii (National Academies
Press 2011) [hereinafter Achieving Nutrient and Sediment Reduction Goals in the Bay].
The National Research Council (“NRC”)77 established a “multidisciplinary committee of
76
In 2009, the EPA contacted the National Research Council (“NRC”) about
evaluating the Chesapeake Bay Program (“CBP”). Committee on the Evaluation of
Chesapeake Bay Program Implementation for Nutrient Reduction to Improve Water
Quality, Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay viii
(National Academies Press 2011) [hereinafter Achieving Nutrient and Sediment Reduction
Goals in the Bay]. The CBP is a partnership to restore the Chesapeake Bay that began in
the 1980s between the EPA and several jurisdictions including Maryland. Id. at viii.
77
The NRC, established by the National Academy of Sciences, is “the principal
operating agency of both the National Academy of Sciences and the National Academy of
69
experts to provide advice to the EPA, the six states in the Chesapeake Bay watershed,” and
“other interested parties.” Achieving Nutrient and Sediment Reduction Goals in the Bay
at viii.
Importantly, “[t]he EPA specifically directed the NRC to evaluate the tracking of
best management practice implementation . . . .” Id. The NRC’s appointed committee
stated that “[t]argeted monitoring programs . . . would provide valuable data to refine BMP
efficiency estimates . . . .” Id. at 5.78
Consistent with the NRC committee report, MDE’s approach to monitoring requires
the Counties to assess the effectiveness of BMPs. Part IV.F.1 (“Monitoring activities shall
occur where the cumulative effects of watershed restoration activities can be assessed.”).
Indeed, MDE designed the second component of the monitoring program with the same
purpose in mind: monitoring “for determining the effectiveness of stormwater management
practices for stream channel protection.” Part IV.F.2.
MDE then uses the monitoring data to calibrate its models. Part IV.F.1.a.iv (“Data
collected shall be used to estimate annual and seasonal pollutant loads and reductions, and
for the calibration of watershed assessment models.”). That is, MDE’s approach yields
Engineering in providing services to the government, the public, and the scientific
engineering communities.” Id. at iii.
78
The Water Groups contend that the NRC’s opinion “cannot override legally
promulgated regulations.” We do not disagree. Rather, as we have explained, MDE relies
on this publication in support of its program of focused monitoring, which improves the
quality of pollutant data during BMP implementation. See 40 C.F.R. § 122.48(b)
(Monitoring must be “sufficient to yield data which are representative of the monitored
activity.”).
70
more accurate data on the efficacy of BMPs, which increases certainty for all interested
parties in understanding what effects restoration activities will have on the State’s waters.
MDE, Guidance, at 1 (“The data gathered may be used to update and improve Maryland’s
stormwater management matrix of options for achieving water quality.”). Our review of
the first component in the Permits—the monitoring and modeling scheme—illustrates that
it is necessary to ensure the Counties are implementing BMPs to the maximum extent
practicable.
b. Adaptive Management
In their annual report, the Counties must submit the pollutant load reductions
determined through monitoring. Part V.A.2.g; see also Attachment A: Annual Report
Databases (G).
The required measurement is pounds per year, which is consistent with the federal
requirement that a discharger monitors “mass (or other measurement specified in the
permit) for each pollutant” or “volume of effluent discharged from each outfall.” 40 C.F.R.
§ 122.44(i)(1)(i)-(ii). As discussed above, these reductions pertain to the pollutants which
the Counties must monitor. Part IV.1.a.iv; see Attachment A: Annual Report Databases
(G) (The pollutants arise from the Bay TMDL and local TMDLs.).
MDE will review the annual reports, Part V.B, and will require program
modifications “according to needed program improvements identified as a result of
[MDE’s] periodic evaluations,” Part IV.D.79 “Failure to comply with a [P]ermit
See also Part V.A.3 (“Because this permit uses an iterative approach to
79
implementation, the County must evaluate the effectiveness of its programs in each annual
71
provision,” such as the stormwater management or reporting requirements, “constitutes a
violation of the CWA and is grounds for enforcement action; permit termination,
revocation, or modification; or denial of a permit renewal application.” Part VII.C.
As we have discussed,80 MDE has flexibility in setting controls in MS4s: “Congress
did not mandate [in 33 U.S.C. § 1342(p)(3)(B)(iii)] a minimum standards approach or
specify that the EPA develop minimal performance requirements.” Natural Res. Def.
Council, Inc., 966 F.2d at 1308; see also 54 Fed. Reg. at 23,870, 23,879 (codified at 40
C.F.R. § 122.44) (“Subparagraph (vii) does not prescribe detailed procedures for
developing water quality-based effluent limits. Rather, the regulation prescribes minimum
requirements for developing water quality-based effluent limits, and at the same time, gives
the permitting authority the flexibility to determine the appropriate procedures for
developing water quality-based effluent limits.”). We discern that the law requires a
regulating authority such as MDE to review the entity’s actions (or non-action, as the case
may be) to ensure accountability in implementing stormwater controls: “stormwater
management programs that are designed by regulated parties must, in every instance, be
subject to meaningful review by an appropriate regulating entity to ensure that each such
report. BMP and program modifications shall be made within 12 months if the County’s
annual report does not demonstrate compliance with this permit . . . .”).
80
See supra Part I.A: Maximum Extent Practicable.
72
program reduces the discharge of pollutants to the maximum extent practicable.” EDC,
344 F.3d at 856.81
MDE’s adaptive management approach includes a requirement to impose program
changes based on annual report data obtained from monitoring. Where, for example, the
Counties’ current strategy is not reducing discharges, the Permits allow MDE to force the
Counties to implement BMPs that will, or at least are an improvement. Because the
Counties will implement controls to reduce discharges under MDE’s oversight, the
monitoring provisions comply with 40 C.F.R. § 122.44(i).82 See Natural Res. Def. Council,
Inc. v. Cnty. of L.A., 673 F.3d 880, 897 (9th Cir. 2011) (“As opposed to absolving
noncompliance or exclusively adopting the MEP standard, the iterative process ensures
81
The Ninth Circuit in EDC concluded that the EPA had implemented a rule that
failed to comply with 33 U.S.C. § 1342(p). See 344 F.3d at 855 (“Nothing in the Phase II
regulations requires that NPDES permitting authorities review these Minimum Measures
to ensure that the measures that any given operator of a small MS4 has decided to undertake
will in fact reduce discharges to the maximum extent practicable.”) (emphasis in original).
82
The New York State Department of Environmental Conservation (“DEC”)
designed a similar approach in its MS4 general permits, which the Court of Appeals of
New York upheld in 2015:
DEC’s review of annual reports allows the Department to keep
tabs on small MS4s and to require any necessary refinement of
best management practices. DEC refers to these contemplated
successive rounds of reviewing and, as necessary, fine-tuning
and refocusing best management practices as the “iterative
process” that is the hallmark of the flexible “maximum extent
practicable” standard, which Congress deliberately chose as
best suited for regulating small municipalities’ stormwater
discharges.
Natural Res. Def. Council, Inc., 34 N.E.3d at 790.
73
that if water quality exceedances ‘persist,’ despite prior abatement efforts, a process will
commence whereby a responsible Permittee amends its [stormwater quality management
program].”), rev’d on other grounds sub nom. L.A. Cnty. Flood Control Dist. v. Natural
Res. Def. Council, Inc., 133 S. Ct. 710, 713 (2013); cf. Port of Seattle v. Pollution Control
Hearings Bd., 90 P.3d 659, 679 (Wash. 2004) (en banc) (“Monitoring and adaptive
management provide a mechanism through which [the Washington State Department of
Ecology] can mitigate [an] inherent uncertainty” in the question of whether there was a
reasonable assurance that an airport runway project would not violate applicable water
quality standards.); University of Maryland/Mid-Atlantic Water Program, BMP
Assessment Final Report 25–26 (2009) (“Utilizing an adaptive management approach
recognizes uncertainty and limitations in science, but does not impede implementation of
management actions.”).83
2. 20% Restoration Requirement
As to the second limitation, it is true that the Permits do not require monitoring of
impervious surfaces in the section entitled “Assessment of Controls,” which contains the
focused monitoring requirements. See Part IV.F. But, as we explain, because (1) 40 C.F.R.
§ 122.44(i) contemplates a flexible approach to monitoring and (2) MDE incorporated a
clear evaluation tool into the Permits to assess restoration of impervious surfaces, MDE
has assured compliance with the 20% restoration requirement under 40 C.F.R. § 122.44(i).
83
“The Mid-Atlantic Water Program (MAWP) housed at the University of
Maryland (UMD) led a project to develop the components or subcategories of select BMPs
and a corresponding definition(s) and effectiveness estimates.” University of
Maryland/Mid-Atlantic Water Program, BMP Assessment Final Report 5 (2009).
74
Under the restoration provision, MDE’s approach requires the Counties first to
submit an assessment of their impervious surface area within a year of the issuance of the
Permits. Part IV.E.2.a. This Permit part incorporates by reference the Guidance, which
contains the methodology we discuss herein. In the assessment, the Counties must
delineate those portions in their jurisdictions “that are either treated to the [MEP], partially
treated, or untreated and available for retrofit.”84 MDE, Guidance at III.4, at 4.
To ensure that the Counties implement satisfactory BMPs on their untreated
surfaces, MDE requires the Counties to translate the activities into credits. Id. at IV, at 8.
This credit system is tethered to the performance standard through which MDE determined
which BMPs are satisfactory: the WQv. Id. “An acre for acre impervious credit will be
given when a structural BMP is specifically designed to provide treatment for the full WQv
(one inch), or [a] proportional acreage of credit will be given when less than the WQ v is
provided.” Id. Moreover, for BMPs that “provide greater than one inch of volume
control,” the activities “receive additional credit.” Id.85
84
We have already discussed and approved of MDE’s decision to require the
Counties to use 2002 as the baseline for determining those impervious surfaces controlled
to the MEP. See supra Part I.C: The Methodology in the Guidance.
85
As MDE explained in the Basis for Final Determination, “the Guidance clearly
shows that ESD practices will be given greater pollutant load reductions than other
acceptable water quality treatment practices.” See MDE, Basis for Final Determination to
Issue Anne Arundel County NPDES Permit. By way of example, the pollution reduction
rate for total suspended sediment (TSS) for the WQv standard is 80%. MDE established
the pollution reduction rate for TSS for a rain garden at 90% and established the rate for
the same pollutant for a dry detention pond at 10%. MDE, Guidance, at 10 (Table 4).
75
Because the Counties must adhere to the credit system, MDE can evaluate the
jurisdictions’ performances uniformly. The Guidance “standardizes procedures for the
reporting of traditional, new, and alternative [BMPs] and the impervious area they control.”
MDE, Guidance at 1; id. (“By developing a comprehensive matrix of practices and
consistent accounting measures, [MDE] brings greater certainty to the local planning and
budgeting process.”). This accounting system is also flexible enough to accommodate
more non-traditional activities for which restoration credits are still available. See MDE,
Guidance at V, at 11 (“This section presents alternative BMPs that will give jurisdictions
greater flexibility toward meeting stormwater permit requirements.”).
Moreover, the Counties must report annually on their progress in achieving the 20%
restoration requirement. Part V.A.1.a.ix.86 Failure to comply with these requirements—
submission of the impervious surface area assessment; implementation of restoration
practices on impervious surfaces not controlled to the MEP; and submission of reports on
the Counties’ activities according to the credit system—is a violation of the CWA and
grounds for agency action. Part VII.C.
We find instructive the Second Circuit’s reasoning in upholding, in part, the EPA’s
monitoring provisions in permits to regulate the discharge of ballast water from ships.
Natural Res. Def. Council, Inc., 808 F.3d at 562.87 As to certain effluent limitations in
86
The Counties must submit annual databases for BMP locations and impervious
surface area to document progress toward the 20% restoration requirement. Part IV.A.2.b-
c; Attachment A: Annual Report Databases.
87
“A ship takes on and discharges ballast water to compensate for changes in its
weight caused by activities such as loading and unloading cargo or consuming fuel or
76
these permits,88 the EPA required the monitoring of “functionality” of a vessel’s ballast
water treatment system, and of the concentrations of two specific bacteria. Id. at 581.89
The EPA did not, however, require vessel owners “to take any measurement of pollutants
or significant categories of living organisms in ballast water being discharged.” Id.
Although environmental organizations argued that the EPA should have required
monitoring of the concentrations of living organisms, the Second Circuit concluded that
the EPA’s provisions complied with 40 C.F.R. § 122.44(i). Id. at 582–83. Because the
regulation sanctioned the monitoring of some “other measurement specified in the permit,”
the functionality and indicator organism monitoring “qualif[ied] as such ‘other
measurement.’” Id. at 582. Although the environmental organizations had advocated for
the alternative of “direct monitoring,” the Second Circuit reasoned that dischargers did not
have the capacity to quantify living organisms of certain size classes. Id. Moreover, the
current technology would require an analysis that was “prohibitively expensive and
supplies.” Natural Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 561 (2d Cir. 2015).
During this process, a ship can collect organisms, then discharge them somewhere else,
thereby “enabling these organisms to establish new, non-native populations. As a result,
ships have become one of the primary ways that invasive species are spread from one
waterbody to another.” Id.
88
The specific limitations to which the relevant monitoring provisions in NRDC
were applicable restricted the discharges of organisms and of pathogen and pathogen
indicators. Id. at 567.
89
Functionality monitoring required a ship owner to measure something to assess
system functionality, “such as how much chlorine the system is using each month.” Id. at
581. Indicator organism monitoring required the owner to analyze samples of ballast
discharge to determine whether the sample contained “significant levels” of the bacteria.
Id.
77
impractical.” Id. There was, in essence, no “feasible” alternative the EPA could have
established under these permits. Id. at 582–83. Thus, the Second Circuit deferred to the
EPA’s decision. Id. at 583.
From NRDC, we discern that a permitting authority has flexibility in how it sets
monitoring requirements. As 40 C.F.R. § 122.44(i) reveals, the EPA wrote the regulation
with the understanding that not every permit limitation could be measured in terms of mass
or volume. See 40 C.F.R. § 122.44(i)(1)(i) (The regulation requires monitoring of mass
“or other measurement specified in the permit.”). In this case, those measurements would
not aid the Counties or MDE in evaluating progress toward restoring impervious surface
area. Rather, MDE requires the translation of restoration practices, implemented on
impervious surface areas, into credits to make restoration of those areas understandable.
The agency can also monitor restoration in a uniform manner.
From NRDC, we also discern that 40 C.F.R. § 122.44(i)(1)(i) requires feasible
monitoring. Here, the Guidance not only promotes accountability in a uniform manner but
also gives MS4 permittees the flexibility to choose from among approved restoration
practices to address local conditions. Flexibility is a hallmark in designing MS4 permits.
See 55 Fed. Reg. at 48,038 (“In enacting section 405 of the [Water Quality Act], Congress
recognized that permit requirements for [MS4s] should be developed in a flexible manner
to allow site-specific permit conditions to reflect the wide range of impacts that can be
associated with these discharges.”). The Water Groups have not presented a feasible
alternative that contains both the flexibility and the accountability to assure compliance
with the permit limitation that Counties restore 20% of their impervious surface areas.
78
MDE has complied with 40 C.F.R. § 122.44(i) by incorporating the Guidance by reference
for the Counties to use to meet the 20% restoration requirement.
We recognize that MDE did not incorporate the Guidance into the Montgomery
County Permit. But that fact is not fatal to that Permit’s ability to comply with 40 C.F.R.
§ 122.44(i). When the County submits its annual report, the County must include databases
of impervious acreage and specify those areas treated by BMPs, proposed for restoration,
under construction for restoration, and completed. Montgomery County Permit Part
IV:A.2, Attachment A: (C). The County must also submit descriptions of the type of BMP
it used at specific locations. Id. at Part IV:A.2, Attachment A: (D). As we have discussed,
those BMPs are the stormwater practices in the Manual. These reporting requirements will
allow MDE to evaluate on a yearly basis the Counties’ compliance with the 20% restoration
requirement. We recognize that this reporting system is not as detailed as the method in
the Guidance, but 40 C.F.R. § 122.44(i) does not include requirements as to the specificity
of the measurement the permitting authority selects. See, e.g., Natural Res. Def. Council,
Inc., 808 F.3d at 581 (As to monitoring of a vessel’s ballast water treatment system, the
EPA required ship owners to measure system functionality, “such as how much chlorine
the system is using each month.”).
The Permit also states that the County must merely describe “the results and analysis
of data.” Part IV.A.1.b. Because the Permit does not prohibit the type of analysis that the
County may use to evaluate the 20% restoration requirement, we conclude that the County
may use the Guidance. Thus, we conclude that the Montgomery County Permit complies
with 40 C.F.R. § 122.44(i) too.
79
Part IV: Public Participation
“Many tensions exist between the democratic aspiration of government of the
people, by the people, and for the people and modern representative government with its
mass electorate and elaborate bureaucracy for carrying out government functions.
Nowhere are these tensions more acute than in the domain of environmental policy.”
National Research Council, Public Participation in Environmental Assessment and
Decision, National Academies Press 7 (2008). The dispute between the Water Groups and
MDE over whether the Permits satisfy public participation requirements exemplifies this
tension. The Water Groups frame their argument by highlighting the ways in which the
Permits’ two most critical elements—the TMDL Plans and the 20% restoration
requirement—fail to satisfy public participation requirements.
A. TMDL Plans
We have discussed at length that the Permits require the Counties to submit TMDL
plans and that, among other things, the Permits satisfy 40 C.F.R. § 122.44(d)(1)(vii)(B),
which requires that effluent limits be consistent with WLAs.
Nevertheless, the Water Groups contend that the TMDL plans create another
problem. The Permits require the Counties to design and submit these plans after the
agency approves of the Permits. See, e.g., Montgomery County Permit Part III.J.2 (“Within
one year of the effective date of this permit or the approval of an applicable TMDL by
EPA, whichever is later, the County shall submit to MDE for review and approval a TMDL
implementation plan . . . .”). The Water Groups contend that MDE has “unlawfully
circumvent[ed]” federal and state procedural requirements because the restoration plans,
80
which include significant new requirements, come into existence more than one year after
the Permits are issued, without providing for public notice and comment.90 The Water
Groups characterize this scheme as an “end-run around mandatory permitting
requirements” and as an approach that “thwart[s] accountability.” Put simply, the essence
of the Water Groups’ argument is that the public cannot comment about decisions that have
yet to be made.
1. Permit Modification
Specifically, the Water Groups view the TMDL plans that must be submitted to MDE
as a modification of the Permits. Federal and state regulations stipulate that a permitting
authority must provide the public an opportunity to be heard prior to a modification of a
permit authorizing discharges. 40 C.F.R. §§ 122.62, 124.10; EN §§ 1-601, 9-324.91 Courts
across the country have cited these federal regulations as well as related state regulations in
recognizing the necessity of public participation when a permit has been modified. See, e.g.,
United States v. Smithfield Foods, 191 F.3d 516 (4th Cir. 1999); Citizens for a Better Env’t—
California v. Union Oil Co. of California, 83 F.3d 1111 (9th Cir. 1996). Thus, the Water
Groups’ argument requires us to determine whether the restoration plans constitute a
90
It is, however, undisputed that MDE provided the public with an opportunity to
comment on the reissuance of the Permits.
91
A permitting authority need not engage in public notice and comment procedures
for “minor modifications” of a permit. 40 C.F.R. §§ 122.62, 122.63. The restoration plans,
however, do not fall within the specific, enumerated list of revisions that constitute a minor
modification under 40 C.F.R. § 122.63. Accordingly, the only issue here is whether the
TMDL plans are a non-minor modification of the Permits.
81
modification of the Permits triggering an obligation upon MDE to implement the public
participation provisions in those regulations.
The Permits direct the Counties to develop restoration plans using BMPs that are
found in the Manual and discussed again in the Guidance. These documents, which MDE
incorporated into the Permits by reference, provide a “menu of options” for the Counties
to utilize. By incorporating these documents, MDE made the BMPs available to the
Counties at the time the agency issued the Permits. When the Counties submitted (or will
submit) restoration plans using these BMPs, no modification will have occurred because
the Counties will merely have drawn from the same pool of BMPs that the agency had
previously analyzed and approved of for restoration purposes. CWP & MDE, Manual
§ 2.0 (“This chapter also presents a list of acceptable BMP options that can be used to
comply with the sizing criteria,” including, the WQv.); see 27 Md. Reg. at 1168 (to be
codified at COMAR 26.07.02) (MDE incorporated the Manual as part of the agency’s
effort to enhance its regulations which had until then provided “sparse guidance” on “water
quality enhancement.”). Although we recognize that the Counties have selected specific
BMPs to implement from among a larger group of BMPs, the larger group still satisfies
MDE’s specific performance standard, WQv. Thus, no “material and substantial alterations
or additions” will occur after Permit issuance “justify[ing] the application of [] conditions
that are different or absent in the existing [P]ermit.” 40 C.F.R. § 122.62(a)(1).
2. Opportunity to Comment
The Water Groups also argue that the restoration plans violate federal and state laws
on public notice and comment because they are unable to meaningfully comment about
82
decisions that have yet to be made. This argument is unavailing because, as we have
explained, the BMPs were previously able for the public to comment on. Indeed, many of
the same Water Groups challenging the Permits in this case submitted comments on these
BMPs.
For example, in the Basis for Final Determination, MDE noted that it “received
many, varied and often conflicting comments regarding the Guidance,” which referred to
the BMPs, and that the Guidance was “widely distributed and commented on.” One salient
BMP that was objected to by some Water Groups was the use of detention facilities, such
as detention ponds.92 For example, Natural Resources Defense Council submitted a
comment in which they criticized the Guidance as “flawed” because it “overestimate[d]
the efficacy of detention ponds” and “overstate[d] the channel protection benefits of
detention practices.” Chesapeake Bay Foundation, also a party, commented that detention
systems “provid[e] very little water quality benefits.”93
On the other hand, the Water Groups strongly supported the use of ESD in their
submitted comments.94 Natural Resources Defense Council proffered that the draft
92
The Guidance classifies detention facilities as a “structural” BMP.
93
The Natural Resources Defense Council, Anacostia Riverkeeper, Maryland Sierra
Club, and Potomac Riverkeeper also commented on street sweeping and catch basin
cleaning, which are deemed “alternative BMPs” by the Guidance. The Water Groups
maintained that these practices were “not the best practices for restoring [] County water
bodies.”
94
ESD is another type of BMP which includes green roofs, reinforced turf, dry
wells, rain gardens, submerged gravel wetlands, permeable pavements, and other “green
infrastructure” BMPs. Nancy Stoner, Acting Assistant Administrator, EPA Office of
Water, & Cynthia Giles, Assistant Administrator, EPA Office of Enforcement and
83
Guidance “ignore[d] the Maryland statute establishing ESD as the preferred Maryland
approach.”95 The Chesapeake Bay Foundation stated that the Permits “should impose a
higher performance standard” and recommended that this “be done primarily through
Environmental Site Design.”96 In its Basis for Final Determination, MDE responded to the
Water Groups’ comments by highlighting its credit approach to improving water quality.
MDE explicated that the Guidance incentivized the utilization of ESD practices by granting
greater pollution credit for ESD and less credit for structural treatment BMPs such as
detention facilities. Furthermore, MDE justified the use of detention ponds and other types
of structural BMPs pursuant to the Manual to afford the Counties the “flexibility to
implement various strategies based on site specific opportunities.” The comments and
MDE’s substantive responses thereto, illustrate that there was a vigorous and pellucid
public discussion regarding the practices set forth in the Manual and Guidance, and that
Compliance Assurance, Protecting Water Quality with Green Infrastructure in EPA Water
Permitting and Enforcement Programs (Apr. 20, 2011).
95
These Water Groups also favored the use of the following BMPs: street sweeping,
catch basin cleaning, erosion and sediment control, and storm drain vacuuming. However,
they noted that these practices should “not be credited toward restoration or retrofit
obligations” because “they do not reduce runoff volume.”
96
Likewise, the Natural Resources Defense Council, Anacostia Riverkeeper,
Maryland Sierra Club, and Potomac Riverkeeper endorsed the use of ESD in comments
they submitted to MDE. These Water Groups disapproved of the draft Permits because
they did “not require or prioritize the use of environmental site design [] techniques” and
allowed the Counties “to meet its ‘restoration requirement’ through the use of non-ESD
practices.”
84
the agency defended its approach to water improvement strategies as flexible but
effective.97
Thus, the record in this case clearly supports that the public had the opportunity and,
in fact, actually commented on which BMPs would best meet the MEP standard for
restoration purposes.98 In arguing that they cannot comment about decisions that have yet
to be made, the Water Groups overlook the fact that the public was able to comment on
BMPs—the core component of the TMDL restoration plans.
Moreover, even though the Counties create the restoration plans after the Permits
are approved, the public is still able to participate in the formulation of the plans. The
Permits explicitly provide for “[a] minimum 30 day comment period” before finalization
of the restoration plans. In addition, the Counties must give notice in a local newspaper
and on their website outlining how the public may obtain information and provide
comments on the restoration plans. Critically, the Counties must also include a summary
in their annual reports of how they “addressed or will address any material public
comments received.” MDE reviews these reports. The Counties are “responsible for
complying with all conditions of” the Permits, and “[f]ailure to comply with a [P]ermit
provision constitutes a violation of the CWA and is grounds for enforcement action.” Thus,
97
In addition to the opportunity to provide written comments on the draft Permits,
MDE held public hearings to accept formal testimony on each Permit.
98
We recognize that these public comments on the BMPs did not appear during the
development of the Montgomery County Permit. Nevertheless, the Manual, from which
the BMPs arise, was publicly available. It is the BMPs that are the actions the Counties
will take to make progress toward WLAs.
85
contrary to the Water Groups’ assertion that the Permits “thwart accountability,” the
Permits afford the opportunity for robust public involvement in the attempt to abate
stormwater pollution and improve water quality.
That the Permits provide for public participation at the County level is not enough
for the Water Groups. The Water Groups fault the Permits for not providing for public
participation at the state level and proffer that the Permits “prevent[] members of the public
from commenting on . . . MDE’s decision to approve the restoration plans.” Because the
public had the opportunity to comment on the “menu” of BMPs in the Manual and the
Permits unambiguously mandate public participation at the County level, the restoration
plans have been subject to a “double layer” of public participation. We, therefore, are not
persuaded by the Water Groups’ arguments.
Finally, the Water Groups maintain that MDE’s claims of “potential administrative
burdens are irrelevant and specious.” We must, however, give weight to the notion that
MDE permitted the Counties to draw from a broad group of BMPs in the Manual in light
of the highly variable nature of stormwater discharges. MDE possesses a comparative
advantage in addressing environmental problems affecting our State. It is axiomatic that a
reviewing court should respect “the expertise of an agency in its own field.” Banks, 354 at
69, 729 A.2d at 381 (citations omitted). Moreover, the Counties have expertise in water
quality assessments of waterbodies found within the boundaries of their political
subdivisions. As the Permits require, the Counties “shall complete detailed watershed
assessments” for their entire jurisdiction. Thus, there is great value in deferring to the
Counties’ choice of BMPs, and because the public had an opportunity to comment on the
86
BMPs during the drafting of the Permits as well as on the select BMPs in the restoration
plans the Counties submit to MDE, we conclude that the public has not been deprived of
notice and comment.
3. Case Law
The Seventh Circuit’s decision in Texas Independent Producers and Royalty
Owners Assoc. v. EPA, 410 F.3d 964 (7th Cir. 2005), is also instructive on this point. In
Texas Independent Producers, the EPA issued a general permit for stormwater discharges
from construction sites that required operators to file a Notice of Intent (“NOI”) stating that
they planned to operate under the general permit, rather than apply for an individual permit.
410 F.3d at 968. Absent a negative ruling by the EPA, stormwater discharges that complied
with the terms of the general permit were automatically authorized. Id. The permit also
required that operators “create, maintain, and implement a site-specific Storm Water
Pollution Prevention Plan (“SWPPP”).” Id. An environmental organization challenged
the Permit and asserted that it violated the Clean Water Act because it failed to satisfy
public participation requirements regarding the NOI and SWPPP.
After conducting a Chevron analysis, the court concluded that EPA’s reasoning as
to why it issued the general permit without providing for public review of NOIs and
SWPPPs was “eminently reasonable.” Id. at 978. Notably, the court accepted EPA’s
argument that because the public had the opportunity to comment on the proposed general
permits whose terms governed the NOIs and SWPPPs, there was “no need for additional
public comment or a notice period [regarding NOIs and SWPPPs themselves].” Id. In
addition, the court credited the EPA’s contention “that requiring ‘an additional public
87
hearing on each individual NOI and SWPPP would eviscerate the administrative efficiency
inherent in the general permitting concept,’ in effect making the general permit scheme no
different from the process of obtaining individual permits.” Id.
The Water Groups point out that the permit in Texas Independent Producers was a
general permit whereas the Permits at issue here are “not eligible for general permits.” The
Water Groups rightly note that the “existence of different permitting regimes for large and
small municipal storm sewer systems reflects Congressional policy judgment” that large
MS4s be regulated differently than small systems. Even if the permits are not the same,
the Permits at issue in this case are conceptually analogous to a general permit because all
Counties create their restoration plans based upon the same document setting forth the same
groups of BMPs—the Manual. Accordingly, we find the Seventh Circuit’s determination
regarding public participation in Texas Independent Producers persuasive, and conclude
that the Permits’ TMDL planning requirement does not violate notice and comment
mandates.
The Water Groups rely on the Second Circuit’s decision in Waterkeeper Alliance,
Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005), in support of their argument that the contents of
the TMDL plans are subject to public participation requirements. In Waterkeeper Alliance,
the court examined the regulation of water pollutants contained in the runoff from
concentrated animal feeding operations (“CAFOs”). In pertinent part, the court held that
the nutrient management plans the CAFOs were required to develop were effluent limits
but that the EPA violated public participation requirements because it “fail[ed] to
require that the terms of the nutrient management plans be included in the NPD ES
88
permits.” Waterkeeper Alliance, 399 F.3d at 502–04. The court stated that the plans
were effluent limits because the CAFOs were required to set waste application rates in
the plans. Id. at 502; see 33 U.S.C. § 1362(11) (An effluent limit includes a restriction
on a rate.). In contrast to the nutritional plans discussed in Waterkeeper Alliance, the
most critical element of the restoration plans—the BMPs—is already included in the
Permits because the Permits incorporate the Manual and Guidance, which set forth those
practices. Thus, the Water Groups’ reliance on Waterkeeper Alliance is misplaced. See
Part III.G, Part IV.E.2.a.
A Ninth Circuit decision addressing public participation is also distinguishable. In
Environmental Defense Center v. EPA, the Ninth Circuit remanded an EPA regulation that
required operators of MS4s to develop and implement individualized pollution control
programs that were not subject to agency review or public participation. 344 F.3d at 853–
58. The court found that the rule violated 33 U.S.C. § 1342(p)(3)(B)(iii), which is the same
statutory provision that is at the center of this case. The court held that MS4 pollution
control programs must be reviewed by the permitting agency and were subject to public
comment, in part because those permittee-prepared programs—not the general permits
issued to MS4 operators—would contain the substantive requirements that operators must
implement to reduce discharges to the “maximum extent practicable.” Id. at 855, 857.
Here, the Counties must submit restoration plans derived from specified best
management practices, including ponds, wetlands, infiltration practices, filtering systems,
open channels, and other structural water quality practices, that were previously available
for public comment. In contrast to the specific practices that form the basis of the
89
restoration plans in the Permits, all that was available at the time of permit issuance in
Environmental Defense Center were “six general criteria” designed to protect water quality
that were never reviewed by the public. Id. at 845, 853 (emphasis added).99 Consequently,
the court’s holding in Environmental Defense Center rested, at least in part, on facts that
are distinguishable from the circumstances in this case.
4. Incorporation By Reference And Deference
To be sure, the Permits rely heavily on incorporation by reference. But such
incorporation by reference, even of important documents, does not contravene public
participation requirements because the Manual and Guidance are readily accessible to the
public. Cf. Proposed Action on Regulations, 35:25 Md. Reg. 2193 (Dec. 5, 2008)
(“Pursuant to State Government Article § 7-207, Annotated Code of Maryland, the 2000
Maryland Stormwater Design Manual . . . has been declared a document generally
available to the public and appropriate for incorporation by reference. For this reason, it
99
The six general criteria were:
(1) conducting public education and outreach on stormwater
impacts;
(2) engaging public participation in the development of
stormwater management programs;
(3) detecting and eliminating illicit discharges to the MS4;
(4) reducing pollution to the MS4 from construction activities
disturbing one acre or more;
(5) minimizing water quality impacts from development and
redevelopment activities that disturb one acre or more; and
(6) preventing or reducing pollutant runoff from municipal
activities.
90
will not be printed in the Maryland Register or [COMAR].”).100 Additionally, including
the best management practices in the Permits would significantly lengthen the document,
which would obfuscate other requirements in the Permit. The Manual has also been part
of Maryland regulatory law for two decades. It is so entrenched in the permitting process
that we see no reason to detail the content of the Manual in the Permits.
5. Compliance Schedules
The Water Groups further argue that MDE must formally incorporate the restoration
plans through modification procedures because the plans contain compliance schedules.
They allege that compliance schedules are effluent limitations under the CWA, see 33 U.S.C.
§ 1362(11), (17), and they must be “included in a ‘permit,’” 40 C.F.R. § 122.2. Ergo, MDE
must formally incorporate the Counties’ restoration plans—containing the compliance
schedules—after the Counties submit their plans to MDE. The problem, however, is that
the Water Groups do not explain why the schedules in the restoration plans constitute
compliance schedules.
The Permits state that the Counties must include in their restoration plans “the final
date for meeting applicable WLAs and a detailed schedule for implementing all structural
and nonstructural water quality projects, enhanced stormwater management programs, and
alternative stormwater control initiatives necessary for meeting applicable WLAs.” Part
IV.E.2.b.i. Quite obviously, the restoration plans contain schedules. Id. But a schedule of
100
Indeed, the Manual can be found through a quick Internet search and is
available on MDE’s website: http://www.mde.state.md.us/programs/water/stormwater
managementprogram/marylandstormwaterdesignmanual/Pages/Programs/WaterProgra
ms/SedimentandStormwater/stormwater_design/index.aspx.
91
compliance, which is an effluent limitation, is “any restriction established by a State.” 33
U.S.C. § 1362(11) (emphasis added); see In re Alexandria Lake Area Sanitary Dist.
NPDES/SDS Permit No. MN0040738, 763 N.W.2d 303, 318 (Minn. 2009) (holding that
even though the TMDL was not yet complete, a schedule of compliance existed where the
state pollution control agency required a facility “to meet an effluent limit set upon
completion of the TMDL process”). Here, however, the schedule in the restoration plan is
set by the Counties. States are not required to set compliance schedules, 40 C.F.R. § 122.47,
and MDE has not exercised its discretion to do so.
We recognize that a schedule of compliance is “an enforceable sequence of actions
or operations leading to compliance with an effluent limitation, other limitation,
prohibition, or standard.” 33 U.S.C. § 1362(17). But the “detailed schedule” the Counties
must set is subject to change. The Counties may substitute activities where the initially
scheduled projects are not making progress in achieving WLAs. Part IV.E.2.b.iv.
Consequently, the County-set schedules in the restoration plans are not “enforceable”
sequences of actions or operations. What forces the Counties to comply with the WLAs is
the annual reporting requirement, which explains that “BMP and program modifications
shall be made within 12 months if the [Counties’] annual report[s] do[] not . . . show
progress toward meeting WLAs developed under EPA approved TMDLs.” Part V.A.3.
As we have discussed, 101 this adaptive management approach is the true enforcement
mechanism that “lead[s] to compliance with an effluent limitation [or] other limitation.”
101
See Supra Part III.E.1.b: Adaptive Management.
92
33 U.S.C. § 1362(17). Thus, we conclude that the nature of the schedules in the
restoration plans does not require MDE to incorporate those plans into the Permits by
modification.102
B. 20% Restoration Requirement
The second key component of the Permits that the Water Groups focus on is the
20% restoration requirement.103 This part of the Permits requires the Counties to complete
restoration efforts for 20% of the Counties’ impervious surface area that is not restored to
the maximum extent practicable. Part III.G.2; Part IV.E.2.a. Although not required to do
so, see 33 U.S.C. 1342(p), MDE decided to impose this numeric effluent limitation.104
The Water Groups allege that this provision “is not specific, measurable, or
enforceable.” Thus, they argue, MDE has created a requirement that the Water Groups
cannot comment on or seek judicial review of.
102
Because we disagree with the Water Groups’ arguments, the TMDL plans are
not “enforceable” such that MDE has violated public participation laws. Rather, the TMDL
plans are “enforceable” insofar as the Counties are required to submit them to MDE and
MDE will monitor the Counties’ implementation of the TMDL plans through the reporting
requirements in the Permits.
103
The Water Groups mischaracterize the 20% restoration requirement as a “plan”
and thus discuss it in the same context that they discuss how the TMDL plans violate public
participation requirements. This description is inaccurate because, quite simply, there is
no plan for the 20% restoration requirement. Rather, the Counties need only restore 20%
of their impervious surface area within five years. Part III.G.2. Consequently, the Water
Groups’ argument that MDE’s approval of TMDL plans constitutes a modification with
respect to the 20% requirement is inapposite.
104
As we have previously discussed, MDE’s decision to impose this restoration
requirement on the Counties was supported by substantial evidence and was not arbitrary
and capricious. See supra Part I.B: Substantial Evidence and Arbitrary and Capricious.
93
Because of our earlier analysis, in part, the Water Groups’ arguments are unavailing.
Restoration is not “undefined” as the Water Groups argue because MDE anchored
restoration in the universe of practices in the Manual. See Part III.E.1 (“At a minimum,
the County shall . . . [i]mplement the stormwater management . . . practices found in the
[Manual] . . . .”).105 Although the Water Groups do not know in advance which specific
practices the Counties will select to restore their impervious surfaces, MDE has permitted
the Counties to select from among practices that satisfied a specific performance standard,
WQv. CWP & MDE, Manual § 1.2 (General Performance Standards for Stormwater
Management in Maryland).
Moreover, it is inaccurate for the Water Groups to allege that MDE can approve
activities “that are known to be ineffectual without ever being required to articulate its
rationale for doing so, or being held accountable.” MDE articulated a response to the Water
Groups’ criticism of detention practices: “Maryland’s Manual for stormwater BMP design
and MDE’s approach to retrofitting under the municipal permit program are completely
aligned with the National Research Council report [stating that detention ponds fail to meet
the full range of urban stream and watershed restoration objectives].” MDE, Basis for
Final Determination to Issue NPDES Permit. MDE has responded to comments adverse
to the draft permit in accordance with Maryland law and its response is adequate. See EN
§ 1-604(b) (“The Department shall prepare a final determination if” the Department
received comments adverse to the tentative determination.). Thus, MDE’s approach has
105
See supra Part I.A: Maximum Extent Practicable.
94
not shielded its decision to approve the Counties’ restoration efforts from comment or
judicial review.
The Water Groups criticize MDE’s use of the Guidance because, in their view, the
Guidance provides assumptions about stormwater practices rather than an enforceable
standard. According to the Water Groups, MDE could not know whether the Counties’
efforts would be adequate when it issued the Permits because “whether the chosen practices
actually meet these [pollution reduction] expectations depends entirely on the details of a
permittee’s restoration plans.”
This argument, however, must fail because it overlooks the nature of the 20%
restoration requirement: a surrogate. ENSR, Pilot TMDL Applications Using the
Impervious Cover Method § 1.0, at 1-1 (“The IC [Impervious Cover] method uses percent
impervious cover in a watershed as a surrogate TMDL target.”).106 Because the 20%
restoration requirement is a surrogate for reducing pollution, MDE has logically created an
accountability system based on an assessment of compliance with the surrogate, not on
assessment of pollution reduction in fact.107 See 33 U.S.C. § 1342(p)(3)(B)(iii) (This law
106
There is no allegation that MDE has failed to follow the impervious cover method
in designing the 20% restoration requirement. In fact, attorneys representing the Water
Groups recognized MDE’s adherence to this model when MDE was drafting the Permits.
University of Maryland Environmental Law Clinic, Comments on the Tentative
Determination to Issue the NPDES MS4 Permit to Montgomery County at 9 & n.26 (2008)
(“The watershed restoration approach advanced by the Draft Permits comports with the
impervious cover method (“ICM”). ICM involves reducing impervious cover to a target
percentage as a ‘surrogate TMDL target.’”).
107
The Water Groups also overlook that, before the EPA issued the Bay TMDL,
Maryland “reasonably assured” the EPA that it would achieve the necessary pollution
reductions to restore the Chesapeake Bay. Maryland’s strategy included the 20%
95
requires “controls to reduce the discharge of pollutants” to the MEP, not “reductions to the
MEP.”); EDC, 344 F.3d at 855 (The permitting authority must “review these Minimum
Measures to ensure that the measures that any given operator of a small MS4 has decided
to undertake will in fact reduce discharges to the maximum extent practicable.”) (emphasis
in original).
To ensure that the 20% requirement is met, MDE requires the Counties to translate
the BMPs they implement on impervious surfaces into credits. As we previously
explained, the credit system is related to the performance standard in the Manual: the WQv.
“An acre for acre impervious credit will be given when a structural BMP is specifically
designed to provide treatment for the full WQv (one inch), or [a] proportional acreage of
credit will be given when less than the WQv is provided.” Moreover, for BMPs that
“provide greater than one inch of volume control,” the activities “receive additional
credit.”108 As a result, the Counties must choose the appropriate mix of BMPs to obtain
enough credits to satisfy the 20% requirement. If the Counties ignore the credit system
restoration requirement. See supra Part I.B: Substantial Evidence and Arbitrary and
Capricious.
Our prior discussion of monitoring and modeling also renders the Water Groups’
criticism of the efficiency estimates in the Guidance inapposite. See, e.g., Chesapeake Bay
Program, Phase 5.3 Community Watershed Model, § 6, at 6-9 (“It must also be recognized
that the BMP efficiencies are being developed using an adaptive management approach
that recognizes that our knowledge is incomplete.”). As we have discussed, MDE’s use of
monitoring and the adaptive management approach ensures that the Counties will
implement BMPs to reduce discharges in compliance with the MEP standard. See supra
Part III.E.1: Reduction of Pollutant Discharge.
108
Undoubtedly, if the Counties choose BMPs with efficiency estimates above the
WQv standard, such as infiltration practices and ESD, they will comply with the 20%
restoration requirement.
96
and the consequences of selecting BMPs with efficiency estimates below the WQ v
standard, then the Counties risk failing to fulfill the 20% restoration requirement and
confronting an enforcement action by MDE. Part VI.C. The Counties must complete
restoration efforts for 20% of their impervious surface area within five years under the
express terms of the permit according to the credit system we have explained. The 20%
restoration requirement is thus also measurable and enforceable.109 See also EPA, 2014
Memo at 10 (Box 1: Examples of WQBELs in MS4 Permits) (“The MS4 Permit includes
a specific, quantifiable performance requirement that must be achieved within a set
timeframe. For example: Restore within the 5-year permit term 20 percent of the
previously developed impervious land (2014 Prince George’s County, MD MS4 permit).”).
CONCLUSION
Upholding MDE’s decision to issue the Permits, we are guided first and foremost
by the law. That law, 33 U.S.C. § 1342, provides a flexible approach to MS4 permitting.
Moreover, this approach contemplates that states shall set controls they deem necessary to
reduce the discharge of pollutants into their waters. See 33 U.S.C. § 1342(p)(3)(B)(iii).
The Water Groups insist that the Permits may not contain effluent limitations “to allow
maximum flexibility.” But even the EPA, to whom Congress delegated authority to issue
109
As we discussed, we recognize that MDE did not incorporate the Guidance into
the Montgomery County Permit. But this Permit allows MDE to measure the County’s
progress and ultimate compliance through the annual reporting requirement. Montgomery
County Permit Part IV:A.2, Attachment A: (C, D). See supra Part III.E.2: 20% Restoration
Requirement.
97
regulations pertaining to TMDLs, has afforded permitting agencies such as MDE the
flexibility to develop effluent limitations. See 40 C.F.R. § 122.44(d)(1)(vii)(B).
We recognize that the CWA sets forth an important goal of public participation in
the “development, revision, and enforcement” of these Permits. 33 U.S.C. § 1251(e). In
our consideration of (1) the opportunity to comment in writing and at a public hearing on
the draft Permits, (2) MDE’s responses to the public’s comments, and (3) the opportunity
for the public to participate further in the Counties’ efforts to meet WLAs, MDE has upheld
its part of the bargain. That is, the agency has “provided for, encouraged, and assisted”
public participation as Congress envisioned. 33 U.S.C. § 1251(e). Therefore, we conclude
that MDE’s decision was lawful and that the Permits are valid.
IN CASE NO. 42, JUDGMENT OF
THE COURT OF SPECIAL
APPEALS REVERSED. CASE
REMANDED TO THAT COURT
WITH DIRECTIONS TO REVERSE
THE JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY AND AFFIRM MDE’S
DECISION TO ISSUE THE
MONTGOMERY COUNTY
PERMIT. COSTS TO BE PAID BY
RESPONDENT.
IN CASE NOS. 43 & 44, JUDGMENTS
OF THE CIRCUIT COURTS FOR
ANNE ARUNDEL COUNTY,
BALTIMORE CITY, BALTIMORE
COUNTY, AND PRINCE GEORGE’S
COUNTY AFFIRMED. COSTS TO
BE PAID BY PETITIONER.
98