Dept. of Env. v. Assateague Coastal Trust ( 2023 )

Maryland Department of the Environment v. Assateague Coastal Trust, No. 11, September
Term 2022, Opinion by Booth, J.
Environmental Law – Administrative Law – Clean Water Act – Maryland Water
Pollution Control Laws.
Under the Clean Water Act, 33 U.S.C. § 1251, et seq. and Maryland’s water pollution
control law, Title 9, Subtitle 3 of the Environment Article of the Maryland Code, the
Maryland Department of the Environment (“Department”) has the authority to issue
general discharge permits upon a determination that the discharge meets all state and
federal water quality standards.
After the Department published a Final Determination to reissue, with modifications, a
general discharge permit for Animal Feeding Operations (“AFOs”) (“2019 General
Permit”), Assateague Coastal Trust (“Assateague”) filed a petition for judicial review
alleging that: (1) the Department’s failure to include water quality based effluent
limitations violates the Clean Water Act and Maryland’s water pollution control law; and
(2) the Department either has not regulated ammonia emissions at all, or alternatively, if
ammonia emissions are included with the permit conditions, the conditions are insufficient.
The Maryland Supreme Court holds that:
1. The Department’s AFO general discharge permit framework—which addresses
water quality standards by requiring technology based effluent limitations in the
form of best management practices that are prepared for a particular facility based
upon site specific conditions, while retaining discretion in the Department to impose
additional water quality controls where they are necessary to protect and maintain
water quality standards of a particular waterway—is reasonable, and is consistent
with federal and state law.
2. There is substantial evidence in the record to reflect that the Department not only
acknowledges its authority to regulate ammonia emissions and air deposition
through the 2019 General Discharge Permit, but that it has, in fact, exercised this
authority by requiring best management practices to address ammonia emissions
where they are determined to be a resource concern. The Department’s decision to
evaluate each AFO individually and to require appropriately tailored best
management practices to control these emissions where they present a real risk of
discharge, is reasonable and falls within the discretion afforded to the Department
by the Legislature under the State’s water pollution control law.
Circuit Court for Montgomery County
Case No.: 482915V
Argued: November 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
No. 11
September Term, 2022
MARYLAND DEPARTMENT OF THE
ENVIRONMENT
v.
ASSATEAGUE COASTAL TRUST
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Opinion by Booth, J.
Watts, J., dissents.
Filed: August 9, 2023
* At the November 8, 2022 general election, the
voters of Maryland ratified a constitutional
amendment changing the name of the Court of
Appeals of Maryland to the Supreme Court of
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this Maryland. The name change took effect on
document is authentic.
December 14, 2022.
2023-08-09
10:57-04:00
Gregory Hilton, Clerk
This appeal concerns judicial review of the most recent iteration of a general
discharge permit that the Maryland Department of the Environment (the “Department” or
“MDE”) issued to Animal Feeding Operations (“AFOs”) in connection with its authority
to issue water pollution control permits under the federal Clean Water Act1 and Maryland’s
water pollution control law.2 The current iteration of this general discharge permit for
AFOs was finalized by the Department pursuant to certain statutory requirements under
federal and state law, which require that the Department review and issue or reissue water
pollution control permits every five years.
After the Department published its Notice of Final Determination to reissue with
revisions the general discharge permit for AFOs (the “2019 General Permit”), Assateague
Coastal Trust (“Assateague”) filed a petition in the Circuit Court for Montgomery County
seeking judicial review. After the circuit court vacated the permit and remanded the matter to
the Department with instructions to incorporate certain water quality standards into the permit,
the Department filed an appeal to the Appellate Court of Maryland.3 While the case was
1
Codified generally as 33 U.S.C. §§ 1251–1389 (2018).
2
Maryland Code, Environment (2014 Repl. Vol., 2022 Supp) (“EN”) Title 9,
Subtitle 3.
3
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
pending in that court, Assateague filed a petition for writ of certiorari. We granted the petition
to consider the following questions, which we have reordered and rephrased as follows:4
1. Whether the Department’s Final Determination to issue the 2019 General
Permit was reasonable and complied with the water quality standards
established under the Clean Water Act and the State’s water pollution
control law.
2. Whether the Department’s permit conditions in the 2019 General Permit
that address AFO ammonia emissions were reasonable and complied with
the water quality standards established under the State’s water pollution
control law.
Ultimately, we answer both questions “yes” and uphold the Department’s Final
Determination.
I.
Statutory Background
Before we turn to Assateague’s arguments in support of its challenge to the 2019
General Permit that is the subject of this matter, it is useful to provide an overview of the
applicable federal and state laws and regulatory framework. We discuss below the Clean
4
The questions presented in the petition for writ of certiorari are:
1. Whether the Maryland Department of the Environment (“MDE”) erred in
issuing a General Discharge Permit for Animal Feeding Operations without
including controls for ammonia emissions, when Maryland water pollution
control laws unambiguously require regulation of ammonia emissions[.]
2. Whether the Clean Water Act and the more stringent Maryland Water Pollution
Control laws require water discharge limitations that take into account impaired
receiving waters (i.e. water quality-based effluent limitations) where effluent
limitations based solely on minimum levels of treatment achieved by technology
are ineffective[.]
2
Water Act and Maryland’s water pollution control law, the general permitting scheme for
water pollution discharge permits under both federal and state law, as well as the specific
federal and state regulations that govern discharge permits for concentrated animal feeding
operations (“CAFOs”), as well as other types of AFOs.
A. The Federal Clean Water Act
1. NPDES Permitting Scheme
Congress enacted the federal Clean Water Act in 1972 “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Among its core provisions, the Clean Water Act prohibits the “discharge of any pollutant”5
to waters of the United States, except as authorized by a permit issued under the National
Pollution Discharge Elimination System (“NPDES”). 33 U.S.C. §§ 1251(a)(1), 1311(a),
1342(a)(1). An NPDES permit places limits on the type and quantity of pollutants that can
be released into the Nation’s waters. These limits are called “effluent limitations.”6 The
U.S. Environmental Protection Agency (“EPA”) is authorized to issue and enforce these
permits. 33 U.S.C. §§ 1319, 1342(a)(1).
5
The term “discharge of a pollutant” means “any addition of any pollutant to
navigable waters from any point source.” 33 U.S.C. § 1362(12). A “point source” is
defined as “any discernible, confined, and discrete conveyance, including but not limited
to any pipe, ditch, channel, [or other type of conveyance], from which pollutants are or
may be discharged.” 33 U.S.C. § 1362(14).
6
“Effluent limitation” is defined as “any restriction . . . on quantities, rates, and
concentrations of chemical, physical, biological, and other constituents which are
discharged from point sources into navigable waters.” 33 U.S.C. § 1362(11).
3
The Clean Water Act authorizes the EPA to delegate its NPDES permitting
authority to a state. 33 U.S.C. § 1342(b). This regulatory approach enables the federal and
state water pollution permitting laws to work in tandem with one another.
33 U.S.C. § 1342(b). State law must be at least as stringent as the provisions of the Clean
Water Act; however, a state has the ability to impose more stringent pollution control laws
as it desires. 40 C.F.R. §§ 122.44(d), 123.25(a).
State permits must be fixed for terms not exceeding five years and are subject to EPA
review. 33 U.S.C. § 1342(b)(1); 40 C.F.R. § 123.44. After a state submits a permit for
review, the EPA may make objections or recommendations to the proposed permits.
40 C.F.R. § 123.44. States must take action to eliminate the EPA’s objections.
40 C.F.R. § 123.44. Maryland is among the states authorized to issue NPDES permits.7 The
Department administers both the federal and state water pollution permitting programs.8
Under both federal and state laws, water pollution discharge permits can take one
of two forms. The first type is an “individual discharge permit,” which is written to reflect
site-specific conditions of an applicant discharging to a designated body of water. The
permit terms, conditions, and limitations are based upon extensive information submitted
in the application and are unique to that discharger. See 40 C.F.R. § 122.21; COMAR
7
See U.S. EPA Memorandum of Agreement with the State of Maryland for NPDES,
May 18, 1989; available at https://perma.cc/4978-DSU9; see also Piney Run Pres. Ass’n
v. County Comm’rs of Carroll County, 268 F.3d 255, 265 (4th Cir. 2001).
8
See EN § 9-323 (stating that water pollution discharge permits are issued by the
Department) and COMAR 26.08.04.07A. (stating that “[t]he Department shall administer
the National Pollutant Discharge Elimination System (NPDES) program as part of its own
discharge permit system”).
4
26.08.04.02–.07. An individual discharge permit allows specific effluent limitations based
on many factors, including the type of industry or operation, the technology available,
pollutant constituents, and the characteristics of the receiving body of water. Id.
The second type of discharge permit—which is the type at issue here—is a “general
discharge permit,” which may be issued for a particular industry or category of discharges
when they are susceptible to regulation under common terms and conditions. See 40 C.F.R.
§§ 122.28(a), 123.25; COMAR 26.08.04.08.–.09. General discharge permits include
conditions and other eligibility requirements that all facilities must meet to obtain coverage
under the general permit. Id. Prior to discharging, the operator must file a notice of its
intent to discharge in compliance with the general permit. 40 C.F.R. § 122.28(b)(2);
COMAR 26.08.04.09N(3)(a). The specific classes or categories of discharges authorized
by a general permit are determined at the regulatory agency’s discretion.
40 C.F.R. § 122.28(a)(2)(ii)(E); COMAR 26.08.04.08A(4). As we will discuss in more
detail herein, the EPA and MDE have both chosen to regulate CAFOs under general
discharge permits. 40 C.F.R. § 122.23; COMAR 26.08.04.09N.
2. Pollution Controls in Permits
Under the Clean Water Act, “water quality standards” are the benchmark for clean
water. 33 U.S.C. § 1313(b); Maryland Dep’t of the Env’t v. County Comm’rs of Carroll
County, 465 Md. 169, 186 (2019). These standards are established under the Act as
follows. First, states assess the surface waters within their jurisdiction to determine the
known or desired uses for each water body’s “designated use” (e.g., public water supply,
fishing, recreational use). 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 130.3, 131.6; COMAR
5
26.08.02.01.–.03. The states then establish a water quality standard for any pollutants of
concern to reflect the ambient water quality needed to support the known or desired uses.
Id. All water quality standards proposed by the states are subject to EPA review, and if the
EPA does not approve them, the EPA will set the standards itself. 33 U.S.C. § 1313.
To achieve water quality standards, the Act requires that discharge permits include
pollution controls for point sources. 33 U.S.C. § 1311(b). “The Act calls these controls
‘effluent limitations’—‘effluent’ being the material discharged by a point source.” Carroll
County, 465 Md. at 186. “Effluent limitations may be ‘technology based’ or ‘water quality
based.’” Id. We describe the differences between these two types of effluent limitations
below.
a. Technology Based Effluent Limitations.
“Technology based effluent limitations are generally the first round of controls in the
effort to achieve water quality standards.” Id. (citing 33 U.S.C. § 1311(b)(1)(A)). They
“represent the minimum level of control that must be imposed in a permit[.]” 40 C.F.R.
§ 125.3(a). The Clean Water Act directs the EPA to issue nationally applicable effluent
limitations or guidelines for classes or categories of point sources. 33 U.S.C. § 1314(b).
These guidelines—often referred to as “ELGs”—consist of industry-specific, technology
based effluent limitations, which require the use of “best practicable control technology
currently available” that will result in reasonable progress toward the national goal of
eliminating the discharge of all pollutants. See 33 U.S.C. §§ 1311(b)(1), 1314(b)(1). If
technology based effluent limitations are not sufficient for a particular water body to meet or
exceed the water quality standard, the Department is required to impose more stringent
6
controls—“water quality based effluent limitations,” often referred to as “WQBELs”—for
those receiving water bodies. 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 130.7(c).
b. Water Quality Based Effluent Limitations.
Water quality based effluent limitations are numerical limitations based on the
amount and kind of pollutants in a particular water body affected by a particular discharge
and are more stringent than technology based effluent limitations. 33 U.S.C.
§ 1311(b)(1)(C); 40 C.F.R. § 130.7(c); see also Carroll County, 465 Md. at 187. To
determine if more stringent controls are needed, states are required to identify any bodies
of water within their boundaries where the first round of controls—technology based
effluent limitations—are inadequate to achieve or maintain the established water quality
standard. 33 U.S.C. § 1313(d)(1)(A).
We recently observed that the two types of effluent limitations “differ in their
reference point and in their strategies for reducing pollution.” Carroll County, 465 Md. at
187. We explained that
[f]or technology based limitations, the reference point is the source, and the
strategy is to deploy pollutant-reducing technology at that source regardless
of its contribution of pollutants to the waterway. By contrast, for water
quality based effluent limitations, the reference point is the waterway, and
the strategy is for the point source to implement any additional actions
(beyond the already required technologies) necessary to achieve the
applicable water quality standard.
Id. at 187–88 (footnotes omitted). Because water quality based effluent limitations are tied
to water quality standards of particular waterways, it is useful to discuss the requirement
under the Clean Water Act for states to develop a list of impaired waterways and the EPA’s
7
regulations for establishing Total Maximum Daily Loads or “TMDLs” in connection with
impaired waters.
3. Total Maximum Daily Loads (“TMDLs”)
An important element for determining the conditions that may appear in a discharge
permit is what is known as the TMDL. Carroll County, 465 Md. at 190. A TMDL is a
numeric measure representing the maximum amount of a pollutant that a particular body
of water can receive without violating water quality standards. 33 U.S.C. § 1313(d)(1)(C);
NPDES Permit Writers’ Manual (Sept. 2010), at 6-11. A water body’s TMDL serves as
an informational tool to assist regulators in controlling water quality. But “the acronym
‘TMDL’ has come to refer to more than just a numeric measure of a pollutant.” Carroll
County, 465 Md. at 190. It also refers to the “process and calculations used to determine
that level of a pollutant and its allocation among various sources of the pollutant.” Id.
“The document in which an agency calculates the TMDL [for a particular waterway], in
the sense of a numeric measure of a pollutant, and allocates that level among various
sources of pollution is also sometimes referred to as a ‘TMDL.’” Id. We will discuss
TMDLs as a numeric measure and as a process in turn.
a. TMDL as a Numeric Measure.
“The EPA has elaborated on the meaning of TMDL as a numeric measure of
pollution in its regulations.” Carroll County, 465 Md. at 191. The term “load” refers to a
measure of water pollution. See 40 C.F.R. § 130.2(e) (defining “load” as “[a]n amount of
matter or thermal energy that is introduced into a receiving water”). TMDL is defined in
regulation as “the sum of” amounts of the relevant pollutant emanating from various point
8
and nonpoint sources9 together with a “natural background” amount of the pollutant and a
“margin of safety.” 40 C.F.R. §§ 130.2(i), 130.7(c)(1). “To understand this definition of
a TMDL as a numeric measure [also] requires an understanding of the TMDL process.”
Carroll County, 465 Md. at 191.
b. TMDL as a Process
The EPA and states work together to establish TMDLs in what has been described
as a form of “cooperative federalism.” Maryland Dep’t of the Env’t v. Anacostia
Riverkeeper, Inc., 447 Md. 88, 101 (2016) (citing American Farm Bureau v. EPA, 792 F.3d
281, 289 (3d Cir. 2015); Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d, 210,
214–17 (D.D.C. 2011)). Establishing TMDLs is a multi-step process.
The first step in the process is that a state must establish water quality standards for
impaired waterways. Anacostia Riverkeeper, 447 Md. at 101; see also American Farm
Bureau, 792 F.3d at 289 (explaining that TMDLs arise after a state enacts water quality
standards pursuant to its laws as required by the Clean Water Act). After setting water
quality standards, the second step is that states must establish effluent limitations in
discharge permits—which is the primary way to meet water quality standards because
effluent limitations restrict the discharge of pollutants. See 33 U.S.C. § 1362(11). The
9
Pollutants come from both point and nonpoint sources. As previously noted, the
Clean Water Act defines a point source as “any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel . . . or [other type of
conveyance], from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
Nonpoint sources come from dispersed areas “where water runs off the land without being
collected or channeled into a point source.” Maryland Dep’t of the Env’t v. County
Commr’s of Carroll County, 465 Md. 169, 184 (2019) (footnote omitted).
9
third step in the TMDL process is based on the direction in the Act that each state identify
waterways for which technology based effluent limitations are not achieving water quality
standards. Carroll County, 465 Md. at 191 (citing 33 U.S.C. § 1313(d)(1)(A)).
“If water quality standards are not being met in a waterway due to excess levels of
a particular pollutant, the state is to determine the maximum amount of that pollutant that
the waterway can receive without violating water quality standards—i.e., the TMDL for
that pollutant as to that waterway.” Carroll County, 465 Md. at 191 (citing 33 U.S.C.
§ 1313(d)(1)(c)). “The resulting TMDL—as a cap on the pollutant—is sometimes referred
to as a ‘pollution budget’ or ‘pollution diet.’” Id. (citing Norfolk S. Ry. Co. v. City of
Roanoke, 916 F.3d 315, 324 (4th Cir. 2019); Conservation Law Found. v. EPA, 964 F.
Supp. 2d 175, 179 (D. Mass. 2013)). “The EPA’s regulations recognize that, in order for
a state to calculate the maximum level of a pollutant that a waterway can tolerate without
violating the water quality standards, a state agency must conduct a complex scientific
analysis.” Id. As part of this analysis, the state agency is required to consider, among other
things, “the relationship between the water quality standards and the level of the pollutant
in the waterway, the various sources of the pollutant, and the extent to which each source
contributes to the violation of water quality standards.” Id. at 191–92 (citing 40 C.F.R.
§ 130.7(c)).
As we explained in Carroll County,
Once the agency produces its best estimate of the maximum pollutant level
consistent with water quality standards—i.e., the TMDL in the sense of a
numeric measure of pollution—it must then apportion that amount to the
relevant sources of that pollution while allowing for the margin of safety
required by the Act. See 40 C.F.R. §§ 130.2(i), 130.7(c). The portion
10
assigned to each relevant point source is called a “wasteload allocation.” 40
C.F.R. § 130.2(h). The portion assigned to each nonpoint source is called a
“load allocation.” 40 C.F.R. § 130.2(g). In all, therefore, the TMDL—in the
sense of the numeric amount—for a given pollutant for a particular waterway
is the sum of the wasteload allocations, the load allocations, the natural
background, and the margin of safety. 40 C.F.R. §§ 130.2(i), 130.7(c)(1).
After a state has determined a TMDL for a particular pollutant with respect
to a particular waterway, it is to be submitted to the EPA for approval. 33
U.S.C § 1313(d)(2).
465 Md. at 192.
“When a state submits a TMDL to the EPA, the state provides not only the
maximum pollutant amount, but also the various wasteload allocations and load
allocations, together with an explanation of the calculations that resulted in that maximum
amount and the allocations.” Id. (citing EPA, Water Quality Planning and Management,
50 Fed. Reg. 1774, 1775 (January 11, 1985)).
“To enforce the TMDL limits and corresponding water quality standards, [the]
agenc[y] [] issu[ing] [a] discharge permit[] seek[s] to ensure that the total pollution
discharged by point sources does not exceed the wasteload allocations in the relevant
TMDLs. The combined pollution allocated to all of the point sources should equal the sum
of the wasteload allocations in a TMDL.” Id. at 193.
The Department has developed TMDLs for impaired waterways within Maryland,
which have been approved by the EPA. At the time of the State’s most recent submission
pursuant to the requirements of the Clean Water Act, Maryland has established 568
11
TMDLs.10 The establishment of TMDLs and specific water quality standards tied to
particular impaired waterways will factor into our discussion of the Department’s chosen
permit scheme for AFOs. In addition to describing the approval process associated with
the individual TMDLs, it is also useful to discuss the Chesapeake Bay TMDL, which looms
in the regulatory background of the State’s water quality standards.
c. The Chesapeake Bay TMDL and Maryland’s Watershed Implementation
Plan (“WIP”)
In Anacostia Riverkeeper, we described in some detail the creation of the
Chesapeake Bay TMDL. 447 Md. at 104–07. After decades of multilateral efforts to
restore the Chesapeake Bay,11 in 2009, the EPA began the development of a Chesapeake
10
See Maryland Department of the Environment, Approved TMDLs, available at
https://perma.cc/MG9E-S6QB. Under the Clean Water Act, every two years, states are
required to submit their list of impaired and threatened waters to the EPA for approval.
See 33 U.S.C. §§ 1313(d), 1315(b), 1324(a)(1)(E). The Department submitted its most
recent Integrated Report of Surface Water Quality (“Integrated Report”) to EPA on
January 27, 2022 available at https://perma.cc/22ZL-KJKM. The EPA approved the
submission on February 25, 2022. Letter from Catherine Libertz, Director, Water
Division, EPA to D. Lee Currey, Director, Water and Science Administration, MDE
dated February 25, 2022. available at https://perma.cc/63Z4-2BD4. According to the
Integrated Report, “Maryland has established 568 TMDLs out of a total of 972 water
body-pollutant impairments.” Integrated Report at 12. These numbers can go up or down
each time a list is submitted as impairments are added or deleted based on updated
information and data.
11
Maryland native and United States Senator Charles Mathias was instrumental in
the early efforts to address the declining health of the Chesapeake Bay. In the 1970s,
Senator Mathias sponsored a congressionally funded, 5-year study to analyze the rapid
loss of aquatic life that was affecting the Bay. EPA, Chesapeake Bay Total Maximum
Daily Load for Nitrogen, Phosphorus and Sediment, 1-3 (December 29, 2010) (“Bay
TMDL”), available at https://perma.cc/WM8V-PLV7. That study was the first basin-
wide assessment of the Chesapeake Bay, its tributaries, and surrounding land. It
12
Bay-wide TMDL (“Bay TMDL”). EPA, Chesapeake Bay Total Maximum Daily Load for
Nitrogen, Phosphorus and Sediment (December 29, 2010) (“Bay TMDL”), available at
https://perma.cc/WM8V-PLV7, ES-4. The Bay TMDL was designed to ensure that all
pollution control measures needed to fully restore the Bay and its tidal rivers are in place
by 2025. Bay TMDL, at ES-1. After publishing a draft for a period of public review, the
EPA adopted the Bay TMDL in late 2010.12 Although it was developed in 2009 and
approved in 2010, the development of the Bay TMDL was a decades-long process.
Anacostia Riverkeeper, 447 Md. at 106 (citing American Farm Bureau v. EPA, 984 F.
Supp. 2d 289, 299 (M.D. Pa. 2013); American Farm Bureau, 792 F.3d at 291).13
identified excess nitrogen and phosphorus pollution as the main source of the Bay’s
degradation. Id.12
The EPA established the Bay TMDL pursuant to a number of existing
authorities, including the Clean Water Act and its implementing regulations, judicial
consent decrees requiring the EPA to restore clean water in the Chesapeake Bay and the
region’s steams, creeks, and rivers that were failing to meet water quality standards, a
settlement agreement resolving litigation brought by the Chesapeake Bay Foundation, the
2000 Agreement between certain Bay States, and Executive Order 13508. See Bay
TMDL at 1-16. The Executive Order directed the EPA to “mak[e] full use of its [Clean
Water Act] authorities to lead a collaborative and effective federal and state effort to meet
the Bay’s nutrient and sediment goals.” Id. at 1-17. After it was established, the Bay
TMDL survived legal challenges before the U.S. District Court for the Middle District of
Pennsylvania, as well as the Third Circuit. American Farm Bureau Fed’n v. EPA, 984
F. Supp. 2d 289 (M.D. Pa. 2013) aff’d, 792 F.3d 281 (3d Cir. 2015), cert denied, 577
U.S. 1138 (2016).
13
Some of these restoration efforts include the Chesapeake Bay Agreement in 1980,
another agreement in 1987, amendments to the 1987 agreement in 1992, and the
Chesapeake Bay 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).
13
The Bay TMDL—the largest ever developed by the EPA—identifies necessary
pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland,
New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia (the “Bay
States”) and sets pollution limits necessary to meet applicable water quality standards in
the Bay and its tidal tributaries. Bay TMDL at ES-3, 2-6–2-7.14 These pollution limits are
divided by jurisdiction and major river basins based upon state-of-the-art modeling tools,
extensive monitoring data, peer-reviewed science, and close interaction with jurisdiction
partners. Bay TMDL, ES-1.15
14
The Bay TMDL set Bay watershed limits of 185.9 million pounds of nitrogen
per year, 12.5 million pounds of phosphorus per year, and 6.45 billion pounds of sediment
per year—representing a 25 percent reduction in nitrogen, 24 percent reduction in
phosphorus, and 20 percent reduction in sediment. Bay TMDL, ES-1. The pollutant
reductions were allocated among the Bay States by major river basin. Bay TMDL, ES-
5, ES-7. Maryland’s target loads are scaled to the five major basins in the State, which
are the Potomac River basin, the Eastern Shore, the Western Shore, the Patuxent River
basin, and Maryland’s portion of the Susquehanna River basin. Id.In 2011, the EPA adjusted these figures based upon an updated Chesapeake Bay
Program Watershed Model. See Letter from Shawn M. Garvin, Regional Administrator,
EPA to Robert M. Summers, Secretary, MDE, dated August 1, 2011, available at
https://perma.cc/2L7Z-2BTE. The new watershed model increased these figures to a total
basin/jurisdiction allocation of 191.57 million pounds of nitrogen per year, 14.55 million
pounds of phosphorus per year, and 7.34 billion pounds of sediment per year. Id. Under the
2011 watershed model, Maryland’s allocations were 41.17 million pounds of nitrogen/year,
2.81 million pounds of phosphorus/year, and 1,350 million pounds of sediment/year. Id.Maryland incorporated these revised target loads into its Phase II Watershed Implementation
Plan (“Phase II WIP”), which we discuss in more detail herein.
15
The Bay TMDL divides the waterways within the Chesapeake Bay watershed into
92 impaired segments. Bay TMDL, at xiii. Thus, the Bay TMDL “is actually an assemblage
of 276 TMDLs: individual TMDLs for each of the 3 pollutants—nitrogen, phosphorus, and
sediment—for each of the 92 segments (3 x 92 = 276).” Bay TMDL, at xiii, 2-7.
14
While the Bay TMDL establishes the pollutant loadings for nitrogen, phosphorus,
and sediment needed to restore and maintain the health of the Bay, it does not, by itself,
implement the needed pollution controls. Rather, it is an “information and planning tool”
designed to make certain that by 2025, all practices necessary to restore the Bay and its
tidal waters are in place. Bay TMDL, ES-6. To ensure that the Bay States meet the targets
established by the Bay TMDL, the EPA established a unique “accountability framework,”
the cornerstone of which is the requirement that each of the Bay States develop a
“Watershed Implementation Plan” (“WIP”) to serve as a roadmap for how and when a
jurisdiction plans to meet its pollutant allocations under the Bay TMDL. Id. at ES-1. “Each
Bay State’s WIP serves two basic purposes—to break down the EPA’s total Bay TMDL
pollutant allocations among geographic areas and among point and nonpoint sources within
the state, and to identify the programs and policies that the state will use to achieve those
pollutant reductions.” Carroll County, 465 Md. at 194–95; see also American Farm
Bureau, 984 F. Supp. 2d at 298, 323.
The EPA directed that the Bay States’ WIPs be prepared in a three-phased
planning process designed to ensure the involvement of interested parties and offer
multiple opportunities to refine the plans over time. Bay TMDL, ES-14. Maryland’s
WIPs have been developed by the Department together with the Departments of Planning,
Agriculture and Natural Resources. See Maryland’s Phase I Watershed Implementation
Plan for the Chesapeake Bay Total Maximum Daily Load, December 3, 2010 (“Phase I
WIP”), available at https://perma.cc/8SCP-R76E. Maryland’s Phase I WIP was
15
submitted and accepted by the EPA on December 29, 2010.16 The second phase (“Phase
II WIP”)17 and third (“Phase III WIP”) 18 were submitted and accepted by the EPA in
16
Maryland’s Phase I Watershed Implementation Plan for the Chesapeake Bay Total
Maximum Daily Load, December 3, 2010 (“Phase I WIP”), available at
https://perma.cc/82FT-JE5Q. Maryland has been a leader in the Bay’s Restoration.
Maryland’s initial efforts predate the establishment of the Bay TMDL. As noted in the Phase
I WIP, between 1985 and 2009, Maryland reduced nitrogen pollution by 33% and
phosphorus pollution by 38%. Id. at ES-3. These reductions were realized notwithstanding
a 29% population increase that occurred in the State between 1985 and 2009. Id.Maryland’s Phase I WIP highlights the State’s efforts to restore the health of the
Bay, including being the first State to:
 require nutrient management plans on all farms;
 commit to implementing state-of-the-art technology on all of the State’s 69
largest wastewater treatment plants—accounting for 95% of the State’s
wastewater flows;
 require nutrient removal technology for new and failing septic systems in its
Critical Area—land within 1,000 feet of the Bay;
 require environmental site design to reduce stormwater runoff on all new
development approved after May 2010 and implement one of the most
progressive sets of stormwater requirements for a stormwater (MS4) permit
in the Bay Watershed;
 place stringent air pollution controls on power plants reducing air emissions
by over 75% from coal fired power plants by 2013[.]
Phase I WIP, ES-3–ES-4. And most notably for purposes of this case, Maryland “was the
first state in the watershed to receive federal approval for [its] Concentrated Animal Feeding
Operation program that [met] all of the new EPA regulations and require[d] comprehensive
nutrient management on poultry operations for the first time.” Phase I WIP, ES-3.
17
The Department and other state agencies charged with the preparation of the
State’s WIP submitted the Phase II WIP on March 30, 2012. See Letter from Robert M.
Summers, Secretary, MDE to Shawn M. Garvin, Regional Administrator, EPA dated
March, 30, 2012, available at https://perma.cc/8C3Y-V278. Thereafter, the Department
incorporated updates, new or refined strategies, and narrative reports in a revised Phase II
WIP, which was accepted by EPA on October 26, 2012: Maryland’s Phase II Watershed
Implementation Plan for the Chesapeake Bay TMDL, October 2012 (“Phase II WIP”),
available at https://perma.cc/U8XG-5VTT.
16
2012 and 2019, respectively. Each phased WIP allocated allowable loads of nitrogen,
phosphorus, and sediment among various pollutant source sectors and identified
statewide strategies for reducing the levels of these pollutants that are impairing the
Chesapeake Bay. With each iterative phase, Maryland’s WIP has been refined to
implement key pollution reduction strategies among the five major pollution source
sectors—agriculture, natural lands, septic, stormwater, and wastewater—and has
“substantial[ly] increase[d]” its 2025 nutrient targets. Phase III WIP, ES-4–ES-5.19
Against the backdrop of the Clean Water Act and the EPA regulations, we turn next
to Maryland’s water pollution control law.
B. Maryland’s Water Pollution Control Law
The State’s water pollution control law is set forth in Subtitle 3 of Title 9 of the
Environment Article of the Maryland Code. The legislative purpose of the subtitle “is to
establish effective programs and to provide additional and cumulative remedies to prevent,
abate, and control pollution of the waters of the State.” EN § 9-302(a). The General
Assembly has directed the Department to “cooperate with local governments, agencies of
other states, and the federal government in carrying out” the legislative policy of the State’s
18
Maryland’s Phase III Watershed Implementation Plan to Restore Chesapeake Bay
by 2025, August 23, 2019 (“Phase III WIP”), available at https://perma.cc/NY6Y-9ZW5.
19
Maryland’s Phase III WIP states that its “2025 nutrient targets for Bay Restoration
are 45.8 million pounds of total nitrogen (TN) and 3.68 pounds of total phosphorus (TP)
per year,” which “represents a substantial increase in effort over the Phase II WIP, with an
additional million pounds of nitrogen reduction required by 2025.” Phase III WIP, ES-4.
17
water pollution control law. EN § 9-302(c).20 As discussed below, the Legislature has
codified some of the specific requirements for discharge permits, while also leaving
considerable discretion in the Department to structure permits and determine whether they
comply with federal and state law, as well as considerable discretion to promulgate rules
and regulations to address other aspects of water pollution.21 See EN §§ 9-313, 9-324,
9-326.
20
The legislative policy of the Maryland water pollution control law, EN § 9-302(b),
states:
Because the quality of the waters of this State is vital to the interests of the
citizens of this State, because pollution is a menace to public health and
welfare, creates public nuisances, harms wildlife, fish and aquatic life, and
impairs domestic, agricultural, industrial, recreational, and other legitimate
beneficial uses of water, and because the problem of water pollution in this
State is closely related to the problem of water pollution in adjoining states,
it is the policy of this State:
(1) To improve, conserve, and manage the quality of the waters of this State;
(2) To protect, maintain, and improve the quality of the water for public
supplies, propagation of wildlife, fish, and aquatic life, and domestic,
agricultural, industrial, recreational, and other legitimate beneficial uses;
(3) To provide that no waste is discharged into any waters of this State
without first receiving necessary treatment or other corrective action to
protect the legitimate beneficial uses of the waters of this State;
(4) Through innovative and alternative methods of waste and wastewater
treatment, to provide and promote prevention, abatement, and control of
new or existing water pollution; and
(5) To promote and encourage the use of reclaimed water in order to conserve
water supplies, facilitate the indirect recharge of groundwater, and
develop an alternative to discharging wastewater effluent to surface
waters, thus pursuing the goal of the Clean Water Act to end the discharge
of pollutants and meet the nutrient reduction goals of the Chesapeake Bay
Agreement.
21
Maryland’s water pollution control law defines “pollution” as:
18
1. General Discharge Permit Overview
Maryland law prohibits the “discharge [of] any pollutant into the waters of this
State” unless authorized through a discharge permit issued by the Department. EN
§§ 9-322; 9-323.22 Maryland law is more stringent than federal law because it regulates
“nonpoint discharges,” i.e., discharges to groundwater and surface water, whereas federal
law regulates only “point source” discharges to surface water. Compare 33 U.S.C.
any contamination or other alteration of the physical, chemical, or biological
properties of any waters of this State, including a change in temperature,
taste, color, turbidity, or odor of the waters or the discharge or deposit of any
organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or
other substance into any waters of this State, that will render the waters
harmful or detrimental to:
(1) Public health, safety, or welfare;
(2) Domestic, commercial, industrial, agricultural, recreational, or other legitimate
beneficial uses;
(3) Livestock, wild animals, or birds; or
(4) Fish or other aquatic life.
EN § 9-101(h).
22
EN § 9-323(a)(1) states:
A person shall hold a discharge permit issued by the Department before the
person may construct, install, modify, extend, alter, or operate any of the
following if its operations could cause or increase the discharge of pollutants
into the waters of this State:
(i) An industrial, commercial, or recreational facility or disposal system;
(ii) A State-owned treatment facility; or
(iii) Any other outlet or establishment.
19
§§ 1311, 1342, 1362(12), 1362(14), with EN §§ 9-101(b),23 (l)(1),24 9-322. The
Department is authorized to issue a discharge permit upon its determination that the
discharge meets all state and federal water quality standards and appropriate effluent limits.
See EN § 9-324 (“Subject to the provisions of this section, the Department may issue a
discharge permit if the Department finds that the discharge meets: (1) All applicable State
and federal water quality standards and effluent limitations; and (2) All other requirements
of this subtitle.”). The Department is authorized to issue state discharge permits “on any
conditions the Department considers necessary to prevent a violation” of the State’s water
pollution control law. EN § 9-326(a).
The Legislature has established certain statutory requirements for state discharge
permits that are consistent with the federal counterpart established by the NPDES
permitting program. For example, discharge permits must be fixed for a term not
23
EN § 9-101(b) defines “Discharge” as:
(1) The addition, introduction, leaking, spilling, or emitting of a pollutant
into the waters of this State; or
(2) The placing of a pollutant in a location where the pollutant is likely to
pollute.
24
EN § 9-101(l) states, in pertinent part:
“Waters of this State” includes:
(1) Both surface and underground waters within the boundaries of this State
subject to its jurisdiction, including that part of the Atlantic Ocean within
the boundaries of this State, the Chesapeake Bay and its tributaries, and
all ponds, lakes, rivers, streams, public ditches, tax ditches, and public
drainage systems within this State, other than those designed and used to
collect, convey, or dispose of sanitary sewage[.]
20
exceeding five years. EN § 9-328; 33 U.S.C. § 1342(b)(1). Each time a general discharge
permit is renewed or reissued, it is subject to review by the EPA and subject to the public
participation process outlined in Title 1, Subtitle 6 of the Environment Article.
EN § 9-324(b). We discuss this process below.
Prior to issuing or reissuing a general discharge permit, the Department is required
to prepare a draft permit and a tentative determination that includes, among other things, a
statement that the Department intends to issue a general permit for a certain class of
discharges. EN §§ 1-603, 1-604; COMAR 26.08.04.08G(1)–(3). The Department must
make the draft permit available for inspection and copying, publish notice of the tentative
determination, and allow 30 calendar days for public comment prior to the issuance of the
final determination. EN § 1-604(a)(2), (3); COMAR 26.08.04.08G(4)(b). The Department
also prepares a “fact sheet,” which describes the class of dischargers to be regulated,
outlines the proposed permit conditions and limitations, and specifies the procedures for a
person to review and copy the tentative determination, draft permit, and related materials.
COMAR 26.08.04.08G(2).
The Department must hold a public hearing if a written request is made for a public
hearing within 20 calendar days of publication of the notice of tentative determination.
EN §1-604(a)(4)(i); COMAR 26.08.04.01–.02. The Department must give a person who
attends a public hearing an opportunity to make comments concerning the issuance of a
general permit and accept written comments on the proposal to issue a general permit for
at least five days after the public hearing. COMAR 26.08.04.08H(5). With respect to
public comments, the Department’s regulations state that any person who believes that any
21
condition of a draft permit is inappropriate “shall raise all reasonably ascertainable issues
and submit all reasonably available arguments and documents supporting their position by
the close of the public comment period, including any public hearing[.]” COMAR
26.08.04.08I(3).25
The Department must prepare a final determination if it receives comments adverse
to the tentative determination or if the final determination is substantially different from
the tentative determination. EN § 1-604; COMAR 26.08.04.08I. A notice of final
determination is required to be published, and a party seeking judicial review must file a
petition within 30 days of the publication of a notice of final determination.
EN §§ 1-604(b)(2), 1-605(b).
Notably, permits issued to discharge pollutants into the waters of the State are not
subject to a contested case hearing. EN § 1-601(a)(3), (b). In other words, a person seeking
to challenge a final determination of a general discharge permit is not entitled to an
evidentiary hearing. Instead, the General Assembly has provided for a right of judicial
review for any person who meets the threshold standing requirements and who participated
in the public comment process. EN § 1-601(c). Judicial review is limited to the
administrative record before the Department. EN §§ 1-601(d), 1-606(c). That record
consists of, among other things, the draft permit, the Department’s written basis for its final
25
Any supporting materials which are submitted are required to be “included in full
and may not be incorporated by reference, unless they are already part of the administrative
record in the same proceeding, or consist of State or federal statutes and regulations, EPA
documents of general applicability, or other generally available reference materials.”
COMAR 26.08.04.08I(4).
22
determination, documents supporting the stated basis, comments on the draft permit,
responses to any comments, and tapes and transcripts of the public hearings. EN § 1-
606(c). Judicial review is limited to issues raised during the public comment process unless
objections were not reasonably ascertainable during that process or arose afterward. EN
§ 1-601(c).
Judicial review begins in the relevant circuit court26 pursuant to the procedures set
forth in EN § 1-601 et seq. and Maryland Rule 7-201 et seq. (rules governing actions for
judicial review when a statute authorizes such judicial review). There is a right to appeal
the decision of the circuit court to the Appellate Court of Maryland. EN § 1-601(e)(2).
2. The Department’s Regulatory and Rulemaking Authority under Maryland’s
Water Pollution Control Laws
The Legislature has given the Department extensive regulatory authority in
connection with its duties and obligations under the State’s water pollution control laws.
EN §§ 9-313, 9-314. When promulgating rules and regulations under Subtitle 3 of Title 9
of the Environment Article, the Department is required to consider, among other things:
existing physical conditions; the character of the area involved, including surrounding land
uses; priority ranking of waters as to effluent limits; the nature of the existing receiving
water body; the technical feasibility of measuring or reducing a particular type of water
pollution; and the economic reasonableness of measuring or reducing the particular type of
water pollution. EN § 9-313(b). The General Assembly has also provided the Department
26
Venue is appropriate in a circuit court for a county in which the activity governed
by the permit will occur. EN § 1-601(e)(1). We discuss this requirement in more detail in
note 37 infra.
23
with discretion to “[i]mpose, as circumstances require, different requirements for different
pollutant sources and for different geographic areas” unless a provision of Subtitle 3
“provides for a particular type of rule or regulation.” EN § 9-313(c).
The statute also gives specific directives related to the Department’s rules and
regulations that set water quality standards and effluent standards. EN § 9-314.
Specifically, EN § 9-314(b) states, in pertinent part, that the Department’s rules and
regulations that set water quality standards and effluent limitations “shall include at least
the following:”
(1) Water quality standards that specify the maximum permissible short term
and long term concentrations of pollutants in the water, the minimum
permissible concentrations of dissolved oxygen and other desirable
matter in the water, and the temperature range for the water.
(2) Effluent standards that specify the maximum loading or concentrations
and the physical, thermal, chemical, biological and radioactive properties
of wastes that may be discharged into the waters of this State.
The statute further directs that the “[e]ffluent standards set under this section shall
be at least as stringent as those specified by the National Pollutant Discharge Elimination
System.” EN § 9-314(c). Pursuant to its authority, the Department has promulgated water
pollution regulations, which are set forth in Subtitle 8 of Title 26 of the Code of Maryland
Regulations.
In addition to its rulemaking and regulatory authority, the Legislature has given the
Department additional powers and duties, including the authority to:
 administer and enforce the State’s water pollution control law and the rules
and regulations promulgated pursuant to the law;
24
 develop comprehensive programs and plans for the prevention, control, and
abatement of pollution of the waters of the State;
 advise, consult, and cooperate with the federal government and other state
agencies, and industries to carry out the provisions of the law;
 accept and administer grants and loans to carry out the Department’s
functions;
 encourage, participate in, finance, or conduct studies, investigations and
research related to water pollution or its causes, control, or abatement;
 issue, modify, or revoke orders and permits that prohibit discharges of
pollutants into the waters of this State or to adopt any other reasonable
remedial measures to prevent, control, or abate pollution or undesirable
changes in the quality of the waters of this State; and
 exercise every incidental power necessary to carry out of the provisions of
Subtitle 9.
EN § 9-319(a).
In connection with the Legislature’s directives, the Department has adopted
regulations and permitting schemes to address the five major pollution source sectors
associated with water pollution—agriculture,27 natural lands, septic, stormwater, and
wastewater. Phase III WIP, ES-4–ES-5. One category of the agriculture pollutant source
27
It is undisputed that agricultural activities generate water pollution, which can
arise from multiple sources. See EPA Development Document for the Final Revisions to
the National Pollutant Discharge Elimination System Regulation and the Effluent
Guidelines for Concentrated Animal Feeding Operations, December 2002 (“EPA
Development Document”), 7-1. One particular pollutant source is animal manure, which
contains nitrogen and phosphorus. Id. at 7-3. Given its high nutrient content, “animal
manure can serve as a valuable agricultural resource[]” when growing crops or plants. Id.
at 7-3. But in an area “where the amount of nutrients in manure generated from AFOs is
greater than the nutrient requirements of the crops grown in the area, excess land
application has occurred, which can lead to increased nutrient runoff and seepage and
subsequent degradation of water resources.” Id.
25
is animal feeding operations or “AFOs.” The Department has adopted regulations and a
permitting process for AFOs that mirrors the EPA’s federal regulatory and permitting
process for CAFOs. We discuss below these dual permitting processes that the Department
administers under both federal and state law.
C. Permitting Process for Animal Feeding Operations (“AFOs”)
Both the EPA and MDE have elected to regulate types of animal feeding operations
through the issuance of general discharge permits that include technology based effluent
limitations in the form of “best management practices” or “BMPs” that are site-specific to
each covered operation. 40 C.F.R. § 412.4(c); EN § 9-326. BMPs are defined as
“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. “BMPs also include treatment requirements, operating procedures, and
practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage
from raw material storage.” 40 C.F.R. § 122.2.
As we discuss in more detail below, once the AFO general discharge permit has
been issued by the Department, each AFO owner or operator seeking to obtain permit
coverage must undergo a site-specific approval process. That process includes the
submission of a nutrient management plan that incorporates technology based effluent
limitations in the form of best management practices, which are prepared by licensed and
certified nutrient planners based upon the specific site conditions of the particular operation
and the surrounding features. Each nutrient management plan is subject to public review
and comment. If the Department approves the nutrient management plan, its terms are
26
incorporated as terms and conditions of the permit coverage. Any person aggrieved by the
approval of an individual plan and corresponding permit coverage has a right to file for a
contested case hearing.
1. Federal Regulations
The EPA regulates point source discharges by a concentrated animal feeding
operation (“CAFO”), which is an animal feeding operation that exceeds certain size
thresholds and discharges pollutants into navigable waters. Under federal regulations, an
AFO becomes a CAFO in two ways: (1) automatically, if it confines a certain number of
animals; and (2) if it is specifically designated as a CAFO based on a determination that it
is a significant contributor of pollutants to the waters of the United States. 40 C.F.R.
122.23(b)-(c).
The federal regulations establish a “zero discharge” general permit for CAFOs,
which prohibits all discharges of pollutants to surface and ground waters from CAFO
production areas.28 See 40 C.F.R. § 412.46. The premise of a zero discharge permit is that
the property design and implementation of onsite best management practices (or “BMPs”)
will either prevent nutrient loss or allow for nutrient-uptake by vegetation, thereby
eliminating actual discharges to surface and ground waters. See 68 Fed. Reg. 7176, 7179
(February 12, 2003). Under the zero discharge permit framework, the EPA regulations
establish best management practices for CAFOs, which are non-numerical effluent
limitations, but “are still technology-based because they are based on the technology
28
“Production area” is defined to mean, among other things, the animal confinement
area of an AFO, including all housed lots and confinement houses. See 40 C.F.R. § 412.2(h).
27
standards prescribed by the [Clean Water] Act.” Waterkeeper Alliance Inc. v. E.P.A., 399
F.3d 486, 496 (2d Cir. 2005); see also 40 C.F.R. § 122.44(k) (describing circumstances in
which the EPA may promulgate BMPs in place of numeric effluent limitations).
When issuing a permit, the Department is directed to use the best practicable control
technology currently available—as established by any effluent limitation that is applicable
to the facility—to achieve a level of water pollution control that produces the least impact
on water quality. See 40 C.F.R. § 125.3(a)(2)(i). With respect to CAFOs, the regulations
require the implementation of best management practices to address three particular
sources of pollution that are commonly generated by CAFOs: manure, litter, and process
wastewater. See, e.g., 40 C.F.R. § 412.31. Notably, the federal CAFO regulations do not
require the implementation of BMPs to address air emissions. See generally 40 C.F.R.
§§ 412.31(a).29
2. Maryland’s AFO General Discharge Permit Process
Maryland began regulating CAFOs through regulations and a general permit
originally adopted in 1996. The 1996 general permit only regulated CAFOs as defined by
federal regulations. Assateague Coastkeeper v. Maryland Dep’t of the Env’t, 200 Md. App.
665, 678 (2011), cert. denied 424 Md. 291 (2012). To be covered under the permit, an
29
Although the EPA does not regulate air emissions through its water pollution
point source permits, the Bay TMDL reflects the EPA’s “commit[ment] to reducing air
deposition of nitrogen to the tidal waters of the Chesapeake Bay from 17.9 to 15.7 million
pounds per year[,]” noting that “[t]he reductions will be achieved through implementation
of federal air regulations during the coming years.” Bay TMDL ES-6.
28
applicant needed only to submit an application, a notice of intent, and pay the required fees.
Id.In January 2009, MDE established new AFO general discharge permit regulations.
36:1 Md. Reg. 24. The regulations governing AFOs are contained in COMAR under
Subtitle 8 “Water Pollution” in sections 26.08.01 General, 26.08.03 Discharge Limitations,
and 26.08.04 Permits. Maryland’s AFO regulations were approved by the EPA on January
29, 2010. EPA, NPDES CAFO Rule Implementation Status—National Summary End
Year 2011 (Dec. 31, 2011), available at https://perma.cc/AQE6-QTJH. The Maryland
AFO discharge permit scheme recognizes that CAFOs are regulated under the Clean Water
Act and CAFO owners or operators must obtain an NPDES permit issued by the
Department. COMAR 26.08.03.09B(3).
In addition to regulating CAFOs, Maryland also regulates AFOs and Maryland
Animal Feeding Operations (“MAFOs”). AFOs are operations that do not meet the CAFO
size threshold and are only regulated by the State. See generally COMAR
26.08.01.01B(13-2); 40 C.F.R. § 122.23(b)(2); 40 C.F.R. Part 412. MAFOs meet the
CAFO size criteria, but discharge pollutants only into groundwater, not surface water.
COMAR 26.08.03.09.B(1)(d). MAFOs are not required to obtain an NPDES permit
because they do not discharge to surface water, but they are regulated by the Maryland
general discharge permit issued for AFOs. COMAR 26.08.03.09C(5)–(6).
The CAFO performance standards established by federal regulation have been
incorporated by reference into Maryland’s AFO regulations. See 40 C.F.R. §§ 122.23,
412.46; COMAR 26.08.03.09B. Specifically, the general discharge permit scheme
29
imposes a “zero discharge” limitation for AFOs, which prohibits all discharges of
pollutants to surface and ground waters from AFO production areas. See 40 C.F.R.
§ 412.46 (related to CAFOs); see also COMAR 26.08.03.09B.
Since the 2009 the adoption of the permit scheme set forth in the AFO regulations,
the Department has issued two successive AFO general discharge permits—the first in
2009 and the second in 2014 upon the expiration of the first permit. With each issuance of
the general permit, the permit conditions have been strengthened.30 Assateague challenged
the Department’s issuance of the 2009 General Permit and the 2014 General Permit in two
separate cases, and the Appellate Court of Maryland upheld the Department’s final
determination with respect to both permits. See Assateague Coastkeeper, 200 Md. App. at
678–79; Food and Water Watch & Assateague Coastal Trust v. Maryland Dep’t of the
Env’t, 2018 WL 2203175 (Md. Ct. Spec. App.), cert. denied, 460 Md. 502 (2018). We will
discuss these challenges in more detail when we address Assateague’s arguments related
to the 2019 General Permit.
In order to obtain permit coverage under the general permit, all AFOs are required
to submit a notice of intent and an individual nutrient management plan that addresses site-
specific conditions, which is subject to the public participation process. COMAR
28.08.04.09N(3). In addition to submitting a notice of intent, each AFO is required to
30
As a general rule, the Clean Water Act prohibits subsequent iterations of NPDES
permits from containing “less stringent” conditions than the provisions in the previous
permit—sometimes referred to as the “anti-backsliding prohibition” in the Act. 33 U.S.C.
§ 1342(o).
30
develop and implement for their production areas a nutrient management plan—often
referred to as a “Required Plan”—that meets the requirements of 40 C.F.R. § 122.42(e)
and applicable effluent limitations and standards, including CAFO-specific effluent
limitation guidelines set forth in 40 C.F.R. Part 412.
The General Assembly has delegated authority to the Maryland Department of
Agriculture (“MDA”) to oversee the creation of nutrient management plans, the licensing
and certification requirements for the professionals who prepare the plans, as well as rule
making and regulatory authority in connection with the preparation and oversight of the
plans. Maryland Code, Agriculture Article (2011 Repl. Vol., 2022 Supp.) (“AG”)
§ 8-801.1. The MDA has promulgated regulations that set forth the contents of a Required
Plan in COMAR 15.20.08.04. A Required Plan establishes operational and management
practices regarding, among other things, waste storage, animal confinement, and land
application areas to prevent the discharge of pollutants to waters of the State. The plans
are site-specific and prepared by nutrient management planners who are licensed and
certified by the MDA. COMAR 26.08.01.01B(53-1), 15.20.04; 40 C.F.R. § 122.42(e)(1)-
(6).31 Plan writers are trained to evaluate an operation’s site-specific environmental effects
31
The development of Required Plans is yet another area which involves oversight
by multiple federal and state agencies—the EPA, the U.S. Department of Agriculture, the
MDE, and the MDA—and in which the federal and state regulations overlap. The nutrient
management plans must meet federal and state requirements. See 40 C.F.R.
§ 122.42(e)(1)–(6); COMAR 26.08.01.01B(53-1). The MDA has promulgated regulations
specifying the contents of a nutrient management plan in COMAR 15.20.08.04, and
regulations for the recommendations of nutrient management plans in COMAR
15.20.08.05.
31
and are tasked with developing site-specific practices to mitigate negative environmental
impacts. COMAR 15.20.07–.08. After plan writers identify environmental hazards such
as waste storage, animal confinement, proximity to waterbodies, and water quality, the plan
writers develop mitigation measures in accordance with the standards and specifications
developed by the U.S. Department of Agriculture’s Natural Resources Conservation
Service (“NRCS”). See 40 C.F.R. § 122.42(e)(1)–(6); COMAR 26.08.01.01B(53-1).
Required Plans must ensure that appropriate measures are employed to store,
stockpile, and manage manure and waste nutrients associated with animal production in
accordance with federal and state requirements, including standards and specifications
developed by the NRCS. See 40 C.F.R. § 122.42(e)(1)-(6); COMAR 26.08.01.01B(53-1).
The plans must be based upon an assessment of “possible resource concerns,” and they
must implement applicable NRCS conservation standards where resource concerns exist.
40 C.F.R. § 122.42(e)(1)-(6); COMAR 26.08.01.01B(53-1).
A “resource concern” is a term of art, defined in the NRCS Planning Procedures
Handbook, Title 180, § 600.2(120), as “[a]n expected degradation of the soil, water, air,
plant, or animal resource base to the extent that the sustainability or intended use of the
resource is impaired.” (Nov. 2014). As it pertains to Assateague’s challenge to ammonia
emissions—which we discuss below—air quality-based resource concerns include
“airborne soil and smoke particulates that can cause safety-related problems, machinery
and structure damage, health problems, deposition of airborne sediment in water
conveyances, airborne chemical drift, odors, and fungi, molds, and pollen.” NRCS
National Planning Procedures Handbook, Title 180, § 600.2(3).
32
The Department reviews each Required Plan to ensure that its management practices
are sufficiently protective given the specific circumstances of the farm, the surrounding
topography, and the proximity of any waterways that may be affected by the farm’s
operations. The issuance of coverage under the general discharge permit is contingent
upon approval of the Required Plan for the particular operation. COMAR 26.08.04.09.
After the plan writer prepares the Required Plan and submits it to the Department,
the plan is subject to public review, comment, and a public hearing in accordance with
COMAR 28.08.04.09N(3). Any person aggrieved by the Department’s final approval of a
Required Plan may request a contested case hearing. COMAR 26.08.04.09N(3)(1)(ii).
When the Department approves an AFO’s Required Plan, the terms are incorporated into
the general permit as conditions that are enforceable by the Department. COMAR
26.08.04.09N(3)(l)(iv). In locations or circumstances in which the Department concludes,
in its sole discretion, that the general discharge permit does not adequately protect state
waters, the Department may require the AFO owner or operator to apply for and obtain an
individual discharge permit for that particular facility. COMAR 26.08.04.09N(1)(a). Once
a permit is issued, permit holders must comply with monitoring, record keeping, and
reporting requirements for discharge permits. COMAR 26.08.04.03. The Department
conducts ongoing inspections of the permit holder’s operation to ensure compliance with
terms of the discharge permit. EN § 9-328.1.
The above-described process for an individual AFO owner or operator seeking
general permit coverage mirrors the process established by the EPA for CAFOs. See
33
40 C.F.R. § 122.23(h)(1).32 This makes sense given the Department’s responsibility for
administering both the NPDES permits required for CAFOs, and state general discharge
32
40 C.F.R. § 122.23(h)(1) establishes the following procedures for CAFOs seeking
coverage under a general discharge permit:
CAFO owners or operators must submit a notice of intent when seeking
authorization to discharge under a general permit in accordance with
§ 122.28(b). The Director must review notices of intent submitted by CAFO
owners or operators to ensure that the notice of intent includes the
information required by § 122.21(i)(1), including a nutrient management
plan that meets the requirements of § 122.42(e) and applicable effluent
limitations and standards, including those specified in 40 CFR part 412.
When additional information is necessary to complete the notice of intent or
clarify, modify, or supplement previously submitted material, the Director
may request such information from the owner or operator. If the Director
makes a preliminary determination that the notice of intent meets the
requirements of §§ 122.21(i)(1) and 122.42(e), the Director must notify the
public of the Director’s proposal to grant coverage under the permit to the
CAFO and make available for public review and comment the notice of
intent submitted by the CAFO, including the CAFO’s nutrient management
plan, and the draft terms of the nutrient management plan to be incorporated
into the permit. The process for submitting public comments and hearing
requests, and the hearing process if a request for a hearing is granted, must
follow the procedures applicable to draft permits set forth in 40 CFR 124.11
through 124.13. The Director may establish, either by regulation or in the
general permit, an appropriate period of time for the public to comment and
request a hearing that differs from the time period specified in 40 CFR
124.10. The Director must respond to significant comments received during
the comment period, as provided in 40 CFR 124.17, and, if necessary, require
the CAFO owner or operator to revise the nutrient management plan in order
to be granted permit coverage. When the Director authorizes coverage for
the CAFO owner or operator under the general permit, the terms of the
nutrient management plan shall become incorporated as terms and conditions
of the permit for the CAFO. The Director shall notify the CAFO owner or
operator and inform the public that coverage has been authorized and of the
terms of the nutrient management plan incorporated as terms and conditions
of the permit applicable to the CAFO.
34
permits for AFOs that are not required to obtain an NPDES permit. See COMAR
26.08.04.07A.33
II.
Procedural History
A. 2019 AFO General Discharge Permit – Administrative Record
The Department proposed to reissue its AFO general discharge permit in 2019, with
modifications. As it did with prior iterations, the Department submitted the permit to the
EPA for its review as required by federal regulations.34 The Department and the EPA
corresponded with one another regarding various provisions and requirements in the draft
permit. After including the EPA’s suggested modifications, the Department published a
notice of tentative determination to reissue the permit. The EPA did not exercise its
statutory authority to object to that determination.
The 2019 General Permit follows the same regulatory framework as the 2009 and
2014 General Permits. Pertinent to Assateague’s challenges raised here, the 2019 General
Permit also contained some new provisions. We first describe some of the provisions of
33
Because the general discharge permit is issued as a joint federal NPDES permit
and a Maryland general discharge permit, the face of the permit includes the numeric
permit number under both permit schemes—the 2019 General Permit is issued as
“Maryland Permit No. 19AF” and “NPDES Permit No. MDG01.”
34
The Department must provide the EPA with the opportunity to object to state-
issued general discharge permits to “ensure compliance” with the “[Clean Water Act]or
any guidelines of regulations” and to ensure that the state-issued permit will “[a]chieve
water quality standards.” 40 C.F.R. § 123.44(c)(1), (4), (8) (incorporating the requirements
of 40 C.F.R. § 122.44(d)).
35
the 2019 General Permit that are substantially the same as previous iterations of the AFO
general discharge permit, and then describe some of the key additions.
1. Provisions of the 2019 General Permit that are Substantially the Same as in
the 2014 and 2009 General Permits
As in previous permit iterations, the 2019 General Permit prohibits all discharges of
pollutants to surface and ground waters from AFO production areas, unless caused by a
storm event or an upset event in certain limited instances. 2019 General Permit, Part I.B.35
To obtain coverage under the 2019 General Permit, an AFO owner or operator is required
to submit a notice of intent and develop a Required Plan, which must be submitted and
approved in order to obtain coverage under the general permit. The 2019 General Permit,
Part II, AA. defines “Required Plan(s)” as “those Plans that CAFO and MAFO applicants
are required to submit to the Department pursuant to COMAR 26.08.04.09N(3)(b) and the
35
The general discharge permit creates different prohibitions for different types of
AFOs.
For “Existing CAFOs[,]” “no discharge of pollutants, including manure, litter, or
process wastewater, to surface waters of the State from CAFO production areas shall be
permitted unless the discharge results from a storm event greater than the 25-year, 24-hour
storm,” as described elsewhere in the general discharge permit. 2019 General Permit, Part
II.B.2.
For “New Source CAFOs[,]” “No discharge of pollutants, including manure, litter
or process wastewater to surface waters for the State from production areas shall be
permitted unless the operator demonstrates that an ‘upset’”—as described in the general
discharge permit— “has occurred.” 2019 General Permit, Part II.B.3.
For “MAFOs[,]” “No discharge of pollutants, including manure, litter or process
wastewater, to surface waters for the State from MAFO production areas, regardless of the
intensity of the storm event, is authorized under this permit[.]” 2019 General Permit, Part
II.B.4.
36
federal regulations in 40 CFR 122.42(e). These Plans include, but are not limited to,
CNMPs[36] and NMPs[37] and any other plans deemed necessary to perform a proper review
of the application by the Department.” The Required Plan must be prepared for each site
by a certified and licensed planner based upon the specific site conditions for a particular
operation, using technology based effluent limitations in the form of BMPs as set forth in
the federal and state regulatory framework. The comprehensive nutrient management plan
that is part of the Required Plan that is developed for a specific operation is required to
meet the requirements of the NRCS National Planning Procedures Handbook (NPPH), Part
600.60 A(1)–Component Planning Technical Guidance, Subpart G, Amendment 6,
November 2014. The Required Plan must include nine minimum standards to protect water
36
Under the definitions of the 2019 General Permit, Part II, E. states:
“Comprehensive Nutrient Management Plan” or “CNMP” describes and
documents a conservation system that is unique to an AFO. The CNMP
addresses all aspects of the AFO including animal waste handling, nutrient
management, and conservation practices as described in the NRCS National
Planning Procedures Handbook (NPPH), Part 600.60 A(1) – Component
Planning Technical Guidance, Subpart G, Amendment 6, November 2014,
which is consistent with all requirements of COMAR 15.20.07 and 15.20.08
and federal effluent guidelines at Title 40 CFR 412.31. A CNMP satisfies
the requirement for a “required plan” for both CAFOs and MAFOs, as
defined in Part III.B of this permit. A CNMP includes a nutrient
management plan portion and a conservation plan portion, along with an
implementation schedule in addition to other NRCS requirements.
37
Under the definitions of the 2019 General Permit, Part II, U. states:
“Nutrient Management Plan (NMP)” means a plan written by a nutrient
management planner certified by the [Maryland Department of Agriculture]
that meets all requirements of COMAR 15.20.07 and 15.20.08.
37
quality, which include: animal waste storage capacity; a setback or vegetated filter strip
between litter storage and surface waters; protocols for manure and soil testing; protocols
for land application of manure and wastewater; and monitoring and record keeping
requirements. 2019 General Permit, Part IV.B.
Some of the 2019 General Permit’s general conditions that were included in
previous iterations of the permit are:
 A requirement that the permittee comply at all times with the General
Permit, the approved Required Plans, the Clean Water Act, and the
Maryland water pollution control law
 A right of entry at all times by the Department, or their authorized
representatives, as well as researchers authorized by the Department, the
Maryland Department of Agriculture, and the EPA, to inspect and copy
records, monitoring equipment and methods, sample any discharge of
pollutants, take photographs
Part VII. General Conditions, A. and B. The General Conditions also address TMDLs.
2019 General Permit, Part VII.K. That general permit provision states:
K. Total Maximum Daily Loads. Permit requirements are consistent with
existing Total Maximum Daily Loads (TMDLs) for impaired water bodies.
Additional TMDLs and wasteload allocations (WLAs) may be determined for
nutrients in tidal waters. If WLA assessment for nutrients in tidal waters or
a later assessment of wastewater discharged from these operations indicates
that WLAs are required, additional or alternative controls or monitoring may
be required.
1. Best management practices (BMPs) for AFOs are identified in the
operation’s Required Plans(s) which may include a CNMP, NMP, and a
Conservation Plan. At a minimum, the permittee shall implement these
BMPs as specified in the Required Plan(s).
2. In order to ensure that this permit provides effluent discharge controls
consistent with the assumptions and the requirements of the Chesapeake
Bay TMDL WLA, the Department may require, during the permit review
process, and at any time after the issuance of the permit coverage,
38
additional BMPs and controls to protect the public health and to protect,
maintain and restore water quality, and the existing and designated uses
of the waters of the State. For AFOs within the Chesapeake Bay
watershed, this may include additional BMPs listed in Maryland’s
Watershed Implementation Plan (WIP) for Chesapeake Bay. These
BMPs may include, but are not limited to, the agricultural practices set
forth in the following categories contained in the WIP: Nutrient
Management/Annual Practice; Other Practices; Additional BMPs, and:
Pasture BMPs.
(Emphasis added). In addition, “[i]f the Department, in its sole discretion, determines that
this General Discharge Permit is not adequately protective of state waters at an operation,
the Department may require any person authorized by this permit to apply for an individual
State discharge permit.” 2019 General Permit, Part VII,M.2.
2. New Requirements Under the 2019 General Permit
In conjunction with its notice of tentative determination to reissue the AFO general
discharge permit, the Department prepared a fact sheet, which summarized changes or
modifications that were being made from the prior iteration of the AFO general discharge
permit. One of the new requirements of the 2019 General Permit identified on the fact
sheet was the addition in Part IV.D. subsection 2, which the Department described as the
addition “of a section on outdoor air quality for poultry operations . . . [r]equir[ing] the
appropriate NRCS Practice Standards if air quality is a resource concern.”
Specifically, the new requirement set forth in Part IV.D.2 of the 2019 General
Permit states that nutrient management plans prepared for a particular facility must address
any “resource concerns” about the particular AFO’s air quality: “For poultry: If outdoor
air quality is determined to be a resource concern, use appropriate NRCS Practice
Standards to address the concern.”
39
During the public comment period on the proposed permit, the Department received
numerous written comments and held two public hearings in October 2019 regarding the
tentative determination. Two specific and competing comments—one by the Delmarva
Poultry Industry, Inc. (“Poultry Industry”) and one by Assateague—related to the
Department’s new permit provision set forth in Part IV.D.2 addressing air emissions. Part
IV.D states:
1. Odors: the facility shall be operated at all times to minimize nuisance
odors associated with process wastewater treatment and storage
operations from escaping the facility boundaries.
2. For poultry: If outdoor air quality is determined to be a resource concern,
use appropriate NRCS Practice Standards to address the concern.
The Poultry Industry took the position that the Department had no authority to
regulate odors or air quality through a water pollution discharge permit and requested that
the Department remove Part IV.D.1 and 2. On the other hand, Assateague maintained that
the new language in the draft permit was inadequate. Specifically, Assateague submitted
the following written comment concerning the newly added Part IV.D.2:
The only reference the draft permit makes to the substantial ammonia
pollution caused by AFOs is new language in Part IV.D. that advises, but
does not require, an operator to “use appropriate NRCS Conservation
Practice Standards to address the concern” if “outdoor air quality is
determined to be a resource concern.” Once again, the framework for
determining whether or not something is a resource concern is left up to the
owner or operator of the regulated AFO. As such, there are no pollution
limits or standards in the draft permit capable of protecting waters of the
State, AFO workers, or downwind communities from the massive amount of
ammonia emitted by large poultry AFOs, as well as potentially hazardous
amounts of particulate matter or any other pollutant.
40
After reviewing the testimony and written comments received during the public
participation process, the Department prepared a report of its findings that summarized the
comments it received, identified several revisions to the draft permit in response to those
comments, and where no changes were made, provided its explanation to support the
permit conditions. With respect to the new requirement set forth in Part IV.D.2., the
Department considered the competing comments by the Poultry Industry and Assateague
and provided a written response explaining why it was not making changes to the air quality
requirements that had been added to that permit provision. In response to the comments
received regarding the Department’s approach to regulating air pollution and ammonia
depositions from AFOs, the Department summarized the comments it had received, and its
response, in its report:
[Summary of Comments:] The Permit does not adequately address air
pollution (particulate matter/ammonia depositions) from poultry house
exhaust fans and manure sheds that are deposited in the air and make
their way to surface waters causing health and water quality
impairments. Air and water quality monitoring are essential to
determine impacts to surface/ground water/air quality. The Permit
must be amended to reflect air emissions and monitoring requirements
based on results from studies to be conducted by December 1, 2021. The
Department should require an air sampling plan with results submitted
to MDE within a certain period of time. How will MDE regulate these
emissions in the Permit and determine impacts to resources? What is
the monitoring strategy?
[The Department’s Response:] EPA does not regulate odors or air quality
through its CAFO permitting program. See generally 40 CFR 122.23. While
MDE derives much of its NPDES permitting authority from EPA and the
[Clean Water Act], it is authorized, as a delegated program, to impose
requirements that are more stringent than what is required by the [Clean
Water Act] or EPA’s regulations. Therefore, MDE included in the draft
General Discharge Permit provisions that require AFO owners or operators
to implement BMPs in order to reduce nuisance odors and address any air
41
quality resource concerns using appropriate NRCS Practice Standard(s). See
General Discharge Permit at Part IV.D.1–2.
MDE’s Air and Radiation Administration (ARA) continues to monitor
activities within the animal husbandry industry as well as EPA’s ongoing
efforts to evaluate environmental impacts and possible regulatory initiatives.
Ammonia emissions/ammonia deposition have been considered and
addressed to the extent permissible under the Clean Water Act and the state’s
water pollution control law and implementing regulations with the
requirement of several NRCS practices including litter amendments and
hedgerows/shelterbelts.
There are several Natural Resources Conservation Service (“NRCS”)
practice standards that can be implemented by AFO operators to reduce
actual or potential ammonia emissions from poultry houses. NRCS Practice
Standard, Amendments for Treatment of Agricultural Waste, is used in
poultry houses to reduce the potential for high ammonia emissions such as
sodium bisulfate, aluminum sulfate, acidified clay, and ferric sulfate. These
amendments are applied to the litter prior to bird placement to reduce
potential high levels of ammonia, suppress ammonia volatilization from litter
and reduce emissions from the poultry facilities. Modern poultry houses
have internal ventilation and cooling systems. Though the primary goal of
these systems is to provide bird comfort, an added benefit is that they reduce
dust and feathers inside the houses. This results in less particulate matter to
be discharged into the atmosphere. The emission of dust and feathers may
be addressed through NRCS Practice Standards (Hedgerow Planting) or
(Windbreak/Shelterbelt Establishment). The implementation of these BMPs
can provide ammonia reduction and a means to reduce dust and feathers.
The draft General Discharge Permit contains BMPs to sufficiently minimize
AFO ammonia emissions from poultry houses therefore no revisions are
necessary.
Although the Department did not modify Part IV.D. in a manner suggested by either
the Poultry Industry or Assateague, it added additional provisions that are relevant to
Assateague’s challenges. Specifically, in its Notice of Final Determination, the
Department stated, in pertinent part, that it was adding the following to the 2019 General
Permit Part III.B.5:
42
 Committing the Department to develop a form on which a CNMP writer must
identify the resources evaluated and identify all specific resource concerns at
the particular AFO, which must be provided to the Department when the
AFO’s CNMP is submitted
 Requiring the Required Plan to “identify the distance to and the name of the
nearest waterbody(s), the 12-digit watershed name and number, the water
quality status of the watershed(s) by identifying if there are any . . . TMDL
impairments for nitrogen, phosphorus, bacteria or sediment and if the facility
is located in a Tier 2 watershed(s)”
The Department issued its Notice of Final Determination, finalized the Permit, and issued
it effective July 8, 2020.
B. Judicial Review of the Permit
On July 23, 2020, Assateague filed a petition for judicial review in the Circuit Court
for Montgomery County38 challenging the Department’s Final Determination to issue the
2019 General Permit. Assateague argued that the 2019 General Permit failed to comply
with federal and state law because it did not include water quality based effluent
38
In 2009, the Legislature added a provision to EN § 1-601(e)(1), which states that:
“Unless otherwise required by statute, a petition for a judicial review . . . shall be filed in
the circuit court where the application for the permit states that the proposed activity will
occur.” 2009 Md. Laws, ch. 651 (emphasis added). In the Amici Brief filed by the
Delmarva Chicken Association, Inc., Maryland Dairy Industry Association, Inc., Maryland
Farm Bureau, Inc., Maryland Grain Producers Association, Maryland Pork Producers
Association and MidAlantic Farm Credit, ACA, these Amici point out that because there
are “no AFOs in Montgomery County[,]” there is “no proposed activity that will occur” in
Montgomery County. These Amici assert that Assateague’s “venue of choice was
deliberate forum shopping done to prevent any AFO owner/operation or other interested
person from learning [that] the [p]etition had been filed in time to participate as a party in
this case.” In light of the fact that: (1) the Department did not challenge Assateague’s
choice of venue in this case; and (2) we are reversing the circuit court’s judgment, we will
not consider in this case whether the statutory venue requirements were violated and if so,
the consequences for failing to comply. In any event, we trust that future petitions for
judicial review will be filed in a venue that complies with the statutory requirements.
43
limitations, and because it did not adequately address ammonia emissions. The
Department defended its decision, arguing that the general permit framework complied
with the water quality standards under both federal and state law.
On March 11, 2021, the circuit court issued a memorandum opinion and an order
reversing the Department’s Final Determination and remanding the 2019 General Permit
“to mandate effluent limitations for ammonia and other water quality based effluent limits.”
The Department filed an appeal to the Appellate Court of Maryland. This Court granted
the Department’s petition for a writ of certiorari prior to the Appellate Court’s
consideration of this matter.
III.
Discussion
A. What and How We Review
In this case, we are being asked to determine whether the Department erred in
making its Final Determination to issue the 2019 General Permit. Assateague has
challenged the Department’s Final Determination by asserting that: (1) the Department’s
failure to include water quality based effluent limitations in the general discharge permit
for AFOs violates the Clean Water Act and Maryland’s water pollution control law; and
(2) the Department either has not regulated ammonia emissions at all, or, alternatively, if
ammonia emissions are included with the permit conditions, the conditions are insufficient.
When this Court or any appellate court reviews the final decision of an
administrative agency, we look through the circuit court’s decision and evaluate the
decision of the agency. Carroll County, 465 Md. at 201. In other words, we are not
44
assessing the merits of the circuit court’s decision, but are instead directly reviewing the
permit in light of the issues raised by Assateague and the Department’s response thereto.
Prior to January 1, 2010, challenges to the issuance or denial of a discharge permit
were subject to a contested case hearing under the Administrative Procedure Act (“APA”).
See Md. Code (2004 Repl. Vol., 2009 Supp.) State Government (“SG”) § 10-201 et seq.;
EN § 1-601(b) (1993). Indeed, Assateague’s challenge to the 2009 General Permit was
brought under the provisions of the APA. See Assateague Coastkeeper, 200 Md. App. at
669. In 2009, the General Assembly amended the provisions of EN § 1-601(b) to eliminate
an aggrieved party’s right to a contested case hearing for certain types of environmental
permits, including discharge permits issued under § 9-323 of the Environment Article. See
2009 Md. Laws, ch. 651.
Under the 2009 amendments, a person challenging a general permit issued under
EN § 9-323 has a right to seek judicial review, which is limited to the administrative record
before the Department. EN § 1-601(a). “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 . . . and does not set forth a standard of review.”
Anacostia Riverkeeper, 447 Md. at 118. We explain how these standards apply when
reviewing an environmental permit such as a discharge permit.
B. Standards of Review of Discharge Permits
“The standards for judicial review of a discharge permit—and their corresponding
levels of deference to the agency—vary depending on whether the court is reviewing an
45
agency’s fact findings, discretionary decisions, or legal conclusions.” Carroll County, 465
Md. at 201 (citing Anacostia Riverkeeper, 447 Md. at 118–21).
1. Review of Fact Findings
“For fact findings, a reviewing court applies the ‘substantial evidence’ standard,
under which the court defers to the facts found and inferences drawn by the agency when
the record supports those findings and inferences.” Id. As we observed in Anacostia
Riverkeeper, “[a]pplying 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.” 447 Md. at 119; see also Kor-Ko
Ltd. v. Maryland Dep’t of the Env’t, 451 Md. 401, 424–25 (2017) (observing that a
reviewing court may experience problems “in performing [its] duties” because the
Legislature does not require the Department “to express its reasoning in written, detailed
findings of fact and conclusions of law, but rather foster[s] a somewhat looser and elusive
decisional process[]” when issuing certain environmental permits). Notwithstanding some
of the challenges that a reviewing court may encounter when undertaking judicial review
of an environmental permit that is not subjected to a traditional contested case
administrative process,39 the judicial review provisions of Title 1, Subtitle 6 of the
39
In Kor-Ko Ltd. v. Maryland Department of the Environment, we commented on
the challenges created by the “legislative mandate that these environmental permits
proceed [in a manner] other than through a traditional contested case administrative agency
process with detailed findings of fact and conclusions of law, and how, in our view, that
impacts the courts’ abilities to afford meaningful review of such actions.” 451 Md. 401,
411 n.8 (2017).
46
Environment Article identify the documents that may be included in the administrative
record upon which a reviewing court may conduct its review. These include draft permits,
statements, or fact sheets explaining the basis for the Department’s determination, and the
Department’s responses to comments submitted in connection with the public participation
process. EN § 1-606(c)(1)–(9).40
In a review for substantial evidence, we ask “whether a reasoning mind reasonably
could have reached the factual conclusion the agency reached.” Anacostia Riverkeeper,
447 Md. at 120 (quotations omitted). We accord deference to the agency’s fact finding and
drawing of inferences when the record supports them. Id.; see also Mayor & Alderman of
City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399 (1979) (“The court may
40
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 or intent from the Department or Board to deny the application
or to terminate the permit or license;
(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.
47
not substitute its judgment on the question whether the inference drawn is the right one or
whether a different inference would be better supported. The test is reasonableness, not
rightness.”) (citation and internal quotation marks omitted). Moreover, we review the
agency’s decision in the light most favorable to it. Anacostia Riverkeeper, 447 Md. at 120(quotations omitted). Finally, we accord an agency “great deference” with respect to
factual issues that involve scientific matters within an agency’s area of technical expertise.
Carroll County, 465 Md. at 201–02 (citing Anacostia Riverkeeper, 447 Md. at 120); see
also Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 (1999) (stating that
“the expertise of the agency in its own field should be respected[]”).
2. Review of Matters Committed to the Agency’s Discretion
“With respect to matters committed to agency discretion, a reviewing court applies
the ‘arbitrary and capricious’ standard of review, which is ‘extremely deferential’ to the
agency.” Carroll County, 465 Md. at 202 (citing Harvey v. Marshall, 289 Md. 243, 296–
99 (2005); Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 529 (2004)). “This
standard is highly contextual, but generally the question is whether the agency exercised
its discretion ‘unreasonably or without a rational basis.’” Id. (citing Harvey, 389 Md. at
297; Arnold Rochvarg, Principles and Practice of Maryland Administrative Law, § 20.1 at
255 (2011)).
“For guidance, a reviewing court may look to case law applying the similar standard
in federal administrative law.” Id. (citing Anacostia Riverkeeper, 447 Md. at 120–21;
48
Office of People’s Counsel v. Public Serv. Comm’n, 461 Md. 380, 399 (2018)).41 Under
this standard, a reviewing court may not second-guess an agency’s judgment: “a decision
of less than ideal clarity” will be upheld “if the agency’s path may be reasonably
discerned.” Office of People’s Counsel, 461 Md. at 399 n.16 (quoting Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)); see also Carroll
County, 465 Md. at 202.
3. Review of the Agency’s Legal Conclusions
With respect to an agency’s legal conclusions, a reviewing court accords the agency
less deference than with respect to findings of fact or discretionary decisions. Carroll
County, 465 Md. at 202–03.42 “An agency decision based on regulatory and statutory
41
In Office of People’s Counsel v. Public Serv. Comm’n, 461 Md. 380, 399 n.16
(2018), we noted that the “leading case defining the federal standard is Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77
L.Ed.2d 443 (1983).” We observed that in State Farm,
the Supreme Court identified several factors that could render an agency action
arbitrary or capricious, including whether: (1) there is a rational connection
between the facts found and the choice made; (2) the decision was based on a
consideration of the relevant factors; (3) there has been a clear error of
judgment; (4) the agency relied on factors which Congress has not intended it
to consider; (5) the agency has entirely failed to consider an important aspect
of the problem; (6) there is an explanation for a decision that runs counter to
the evidence; and (7) the decision is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.
Office of People’s Counsel, 461 Md. at 399 n.16.
42
In Comptroller of Maryland v. FC-GEN Operations Investments LLC, 482 Md.
343, 360 (2022), we explained that the phrase “errors of law” in connection with judicial
review of a decision of an administrative agency “encompasses a variety of legal challenges,
including: (1) the constitutionality of an agency’s decision; (2) whether the agency had
49
interpretation is a conclusion of law.” Kor-Ko Ltd., 451 Md. at 412 (quoting Carven v.
State Ret. & Pension Sys. of Md., 416 Md. 389, 406 (2010)). “[A] court will not uphold an
agency action that is based on an erroneous legal conclusion.” Carroll County, 465 Md. at
203 (citing Anacostia Riverkeeper, 447 Md. at 122). That said, we apply the following
principles of deference with respect to the Department’s interpretation of the statutes that
it administers and the rules that it has promulgated in connection therewith.
a. Deference to Agency’s Interpretation of Statutes that it Administers
When a party challenges the agency’s interpretation of a statute it administers, the
court must determine “how much weight to accord that interpretation, keeping in mind that
it is always within the court’s prerogative to determine whether an agency’s conclusions
of law are correct.” Id. (cleaned up). When considering the deference owed to a state
agency’s interpretation of the law, this Court has applied “a sliding-scale approach” that
“is similar to federal Skidmore deference.”43 Comptroller of Maryland v. FC-GEN
jurisdiction to consider the matter; (3) whether the agency correctly interpreted and applied
applicable case law; (4) and whether the agency correctly interpreted an applicable statute or
regulation.” We explained that although we do not apply any agency deference when
undertaking a review of the first three types of legal challenges, we occasionally apply
agency deference when reviewing errors of law related to the fourth category. Id.43
Skidmore deference, which derives its name from Skidmore v. Swift & Co., 323
U.S. 134 (1944), was the primary deference doctrine used by the federal courts from 1944
until it was displaced by Chevron deference in 1984 with the U.S. Supreme Court’s
articulation of a more highly deferential standard that federal courts apply when an agency
interprets a statute that the agency is charged with administering. See Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). In Skidmore, the
Court stated that the weight a court will give an agency interpretation “will depend on the
thoroughness of the evidence in its consideration, the validity of its reasoning, its
50
Operations Investments LLC, 482 Md. 343, 363 (2022) (citing Arnold Rochvarg,
Principles and Practice of Maryland Administrative Law, §§ 19.1–19.3 at 243–49 (2011)).
The weight given to an agency’s interpretation will vary, depending on a number of factors.
Id. “We give more weight when the interpretation resulted from a process of reasoned
elaboration by the agency, when the agency has applied that interpretation consistently
over time, or when the interpretation is the product of contested adversarial proceedings or
formal rule making.” Id. (quoting Carroll County, 465 Md. at 203–04 (citing Baltimore
Gas & Electric Co. v. Pub. Serv. Comm’n, 305 Md. 145, 161 (1986))) (internal quotation
marks omitted).44
consistency with earlier and later pronouncements, and all those facts which give it the
power to persuade, if lacking power to control.” 323 U.S. at 140.
44
In Comptroller of Maryland v. FC-GEN Operations Investments LLC, 482 Md.
343, 363 (2022) and Maryland Department of the Environment v. County Commissioners
of Carroll County, 465 Md. 169, 203 (2019), we restated this Court’s articulation of the
agency deference factors set forth in Baltimore Gas & Electric Co. v. Public Service
Commission, 305 Md. 145, 161 (1986). We observed that “Skidmore is a direct ancestor”
of Baltimore Gas & Electric Co., which we described as being “the leading case of this
Court concerning the degree of judicial deference owed to state agency actions.” Carroll
County, 465 Md. at 206 n.32; see also FC-GEN, 482 Md. at 362–63. In Baltimore Gas &
Electric Co., this Court stated:
The weight to be accorded an agency’s interpretation of a statute depends on
a number of considerations. Although never binding upon the courts, the
contemporaneous interpretation of a statute by the agency charged with its
administration is entitled to great deference, especially when the
interpretation has been applied consistently and for a long period of time . . . .
Another important consideration is the extent to which the agency engaged
in a process of reasoned elaboration in formulating its interpretation of the
statute. When an agency clearly demonstrates that it has focused its attention
on the statutory provisions in question, thoroughly addressed the relevant
issues, and reached its interpretation through a sound reasoning process, the
51
b. Deference to Agency’s Interpretation of its Regulations
When the construction of an administrative regulation is an issue—as opposed to a
question of statutory interpretation—“deference is even more clearly in order.” Kor-Ko
Ltd., 451 Md. at 412 (cleaned up) (quoting Maryland Transp. Auth. v. King, 369 Md. 274,
288 (2002)). We grant such deference to an agency’s interpretation of its regulations
because
agency rules are designed to serve the specific needs of the agency, are
promulgated by the agency, and are utilized on a day-to-day basis by the
agency. A question concerning the interpretation of an agency’s rule is as
central to its operation as an interpretation of the agency’s governing statute.
Because an agency is best able to discern its intent in promulgating a
regulation, the agency’s expertise is more pertinent to the interpretation of an
agency’s rule than to the interpretation of its governing statute.
Id. at 412–13 (quoting King, 369 Md. at 289) (additional citations and quotation marks
omitted). “Put another way, the courts do not play the role of an über administrative agency
in reviewing the actions of state or local administrative bodies, but, rather we exercise
discipline in our review so as not to cross the separation of powers boundary.” Id. at 413.
C. The Department’s Decision to Regulate AFOs Through a General Permit
Scheme—Which Requires Technology Based Effluent Limitations to Address
Water Quality Standards With the Ability to Impose Additional Water Quality
agency’s interpretation will be accorded the persuasiveness due a well-
considered opinion of an expert body . . . . In addition, the nature of the
process through which the agency arrived at its interpretation is a relevant
consideration in assessing the weight to be accorded the agency’s
interpretation. If the interpretation is the product of neither contested nor
adversarial proceedings nor formal rule promulgation, it is entitled to little
weight.
305 Md. at 161–62.
52
Controls for a Particular Operation if They Are Determined to be Necessary
to Protect a Particular Waterway—Is Reasonable and Lawful
Assateague contends that the Department’s failure to include uniform water quality
based effluent limitations in the General AFO Permit violates the Clean Water Act and
Maryland’s water pollution control law. Assateague’s challenge in this regard is not
limited to ammonia emissions, but is also related to all pollutants that water quality based
effluent limitations are intended to address. Assateague states that, where technology
based effluent limitations are insufficient to achieve the water quality standards, water
quality based effluent limitations must be included in the general discharge permit.45
Assateague argues that the general discharge permit is “silent” as to water quality based
effluent limitations “and only briefly discusses TMDLs or water quality standards.”
Assateague asserts that there is no “detailed or rational explanation for the Department’s
determination that CAFOs operating pursuant to the general discharge permit ‘will not
cause or contribute to the violation of water quality standards, and therefore [water quality
based effluent limitations] are not necessary.’” Assateague criticizes this statement in the
permit, claiming that the Department is simply repeating the Department’s conclusion that
it made in connection with the issuance of its 2009 General Permit, which Assateague
45
Seemingly built into Assateague’s argument is the conclusion that the technology
based effluent limitations required by the General AFO permit scheme, are, in fact,
insufficient to achieve water quality standards, and therefore, the permit must contain water
quality based effluent limitations. As we discuss in more detail herein, the Department’s
determination that technology based effluent limitations, approved on a site-by-site basis,
combined with the Department’s ability to add additional water quality controls depending
upon the particular operation, as well as the operation’s proximity to a particular waterway
and its water quality, is not arbitrary or capricious.
53
contends “predates the establishment of the Bay TMDL, the creation of the current Bay
Model, and the current federal CAFO rule, not to mention many of the scientific studies
and technical reports that were in the record before the Department when it made its
determinations with respect to the current Permit.”
The Department asserts that its general discharge permit scheme for AFOs not only
complies with the Clean Water Act and Maryland’s water pollution control law, but is also
a reasonable method for imposing water quality standards on AFOs. The Department
points out that the general discharge permit scheme is consistent with the EPA’s CAFO
regulations and the Department’s AFO regulations, which have been in effect for over 13
years, as well as the two prior permits issued pursuant to the statutory five-year permit
cycle, both of which were upheld by the Appellate Court of Maryland.
The Department contends that the 2019 General Permit complies with water quality
standards by requiring technology based effluent limitations through site-specific best
management practices that must be approved prior to a particular AFO obtaining permit
coverage. The Department notes that the general discharge permit then provides for
additional, water quality based controls during the permit review process, and at any time
after the issuance of the permit, to protect, maintain, and restore water quality and the
existing and designated waters of the State. In other words, rather than establishing
uniform water quality based effluent limitations that would apply to all operations without
regard to the geographic location of the operation, including its proximity to any particular
nearby waterway (or the specific water quality of the waterway in question), the
Department asserts that its general discharge permit framework requires the permittee—
54
through the plan writer—to research, identify, and implement the permit controls
appropriate to its design and location as part of the permitting process.
At the outset, it is important to note that the Department does not start from scratch
each time it issues a water pollution control permit for a particular pollutant source. As
noted above, the Department is required under federal and state law to reissue or replace
water pollution control permits every five years. For this reason, the administrative record
for the 2019 General Permit includes the administrative record for the previous iterations
of this same permit, including the Department’s initial rationale and methodology for
choosing to regulate this pollutant source—AFOs—through the same general discharge
permit regulatory framework established by the EPA regulations, as well as its own
regulations.
We observe that Assateague’s general arguments concerning the Department’s
failure to include uniform water quality based effluent limitations in the 2019 General
Permit are not simply directed to this particular permit, but to the general CAFO
regulatory framework established over a decade ago by the EPA and by the Department.
Assateague argues that the AFO general discharge permit framework—which does not
include uniform water quality based effluent limitations—does not satisfy the water quality
standards under federal and state law because it relies only on technology based effluent
limitations.
As noted above, Assateague has challenged both prior iterations of this same permit.
Because some of Assateague’s arguments being made here are similar to the arguments
that were made in those cases (and because the administrative record related to the 2019
55
General Permit includes the former iterations of the permit, as well as the Department’s
rationale and methodology for the general permit structure), it is useful to start our
discussion with those cases.
1. Assateague’s Challenge to the 2009 General Permit
In Assateague Coastkeeper, 200 Md. App. at 665, Assateague challenged the
Department’s Final Determination to issue the 2009 AFO General Permit. Assateague’s
challenge to the 2009 General Permit predated the General Assembly’s changes to the
statute, which eliminated contested case hearings in connection with the issuance of general
permits under the State’s water pollution control law. See 2009 Md. Laws, ch. 651.
Accordingly, Assateague’s challenges to that permit were considered within the context of
the APA, with proceedings before an administrative law judge (“ALJ”) and a final decision
maker (“FDM”), followed by judicial review in the circuit court and the Appellate Court.
Assateague Coastkeeper, 200 Md. App. at 680. Assateague’s arguments were rejected at
all levels. Id. at 669–70.
In seeking to have the 2009 General Permit overturned, Assateague alleged that the
permit violated both federal and state law, making three primary arguments. First,
Assateague argued that the 2009 General Permit violated federal law because it
impermissibly narrowed the scope of CAFOs that required an NPDES permit. Id. at 683.
Second, Assateague contended that the permit conditions for MAFO litter storage were
insufficient because the Department ignored scientific studies related to poultry manure
storage, and that it therefore “acted arbitrarily and capriciously” in issuing the general
discharge permit. Id. Third—and similar to Assateague’s argument in this case—it
56
asserted that the 2009 General Permit structure “failed to assure compliance with
applicable water quality standards before the issuance of permit coverage” to individual
permittees. Id. Assateague argued that the Department could not, “without sufficient
evidence, presume that compliance with the technical standards in the [General] Permit
will assure compliance with all the various water quality standards applicable in
Maryland.” Id. (Internal citations omitted).
In connection with the administrative proceedings, the Department submitted
affidavits from Robert M. Summers, Ph.D., who was the Department’s Deputy Secretary
at that time, and from Dinorah Dalmasy, a Senior Regulatory and Compliance Engineer
with the Department. Id. at 680–81. In his affidavit, Dr. Summers explained the
Department’s process, methodology, and the scientific data upon which it relied to
establish the MAFO litter storage requirements. Id. at 681. The details of the Department’s
methodology are described at length in the Appellate Court’s opinion. Id. at 692–97.
Ms. Dalmasy explained the Department’s development of TMDLs for water bodies
in the State that had been identified as being impaired by pollutants, and how the 2009
General Permit was consistent with Maryland’s watershed-based approach to developing
its TMDLs, which had been approved by the EPA:
TMDLs establish the assimilative capacity of a waterbody, i.e., the maximum
allowable load of the specific substance the waterbody can receive without
violating water quality standards. Maryland’s nutrients and bacteria TMDLs
include load allocations (LAs) for nonpoint sources and waste load
allocations (WLAs) for point sources. The LA component of a TMDL
includes allocations to agricultural, landuse, urban, and forested areas; the
WLA includes allocations to traditional point sources (e.g., waste water
treatment plants) and NPDES-regulated stormwater discharges. MDE’s
current modeling tools and data resolution do not allow quantitative
57
allocations to specific [AFO] sites. Rather, an overall LA is estimated for
each impaired water quality segment, as one aggregate load that includes all
agricultural practices (e.g., cropland, pasture, [AFOs]). Maryland’s nutrient
and fecal bacteria TMDL analyses developed to date include an estimate of
the baseline agricultural landuse load as part of the total watershed nutrients
or bacteria budget. Maryland’s bacteria and nutrient TMDLs apply a
watershed based approach, which considers all potential pollutant sources
and estimates load reduction targets for those sources necessary for the
attainment of the State water quality standards. As an example, in
Maryland’s nutrient TMDLs to date, all of which have been approved by
EPA, the nonpoint source loads were computed in one of two ways:
1. As the product of observed concentrations and estimated flows.
These loads account for contributions from atmospheric deposition,
septic tanks, agricultural land (cropland, pasture, animal feeding
operations), forest, and urban land. The percentages of these loads
by land use were determined using ratios of land use and load
coefficients by land use from the Chesapeake Bay Program
watershed model.
2. As the summation of all of the individual land use areas and
multiplying by the corresponding land use loading coefficients from
the Chesapeake Bay Program watershed model.
Maryland’s TMDLs apply a watershed-based approach, which considers all
potential pollution sources . . . and estimates load reduction targets for those
sources necessary for the attainment of State water quality standards. The
agricultural load allocation includes all source categories (i.e., cropland,
pastures, AFOs/CAFOs, MAFOs) but they are not broken out or quantified
separately from this aggregated load. All currently approved nutrients and
bacteria TMDLs were developed prior to the issuance of the January 2, 2009
Final Determination to issue the General [] Permit for [AFOs].
Id. at 715–16. Ms. Dalmasy stated that the 2009 General Permit was “consistent with
existing approved TMDLs, since those TMDLs do not provide specific load allocations to
this source of pollution.” Id. at 716. She further explained that “the new permit
requirements will result in more stringent control of potential pollutants from these sources;
and that the permit’s requirements will ensure that no new discharges will increase the
58
pollutant loads in watersheds with established TMDLs.” Id. Ms. Dalmasy concluded that
the 2009 General Permit “ensure[d] compliance with . . . the Clean Water Act,” and that it
“contains measures intended to ensure that [AFO] discharges do not cause or contribute to
violations of water quality standards.” Id.
In upholding the 2009 General Permit, the ALJ determined that the Department was
not “narrowing the definition of CAFOs,” but was “actually expanding the group of AFOs
that must submit to some sort of permitting requirement in order to operate and store
manure.” Id. at 684. The ALJ likewise rejected Assateague’s assertion that the
Department’s decision to regulate MAFOs differently from CAFOs for manure storage
purposes was arbitrary and capricious, noting that MDE’s decision was based on available
scientific information. Id. Finally, the ALJ found that the 2009 General Permit complied
with federal regulations governing water quality, noting: (1) all of Maryland’s water quality
standards had been approved at that point by the EPA; and that (2) the permit was consistent
with the existing approved standards. Id. Thereafter, Assateague filed exceptions to the
ALJ’s decision with the FDM.
The FDM upheld the Final Determination to issue the 2009 General Permit,
concluding that compliance with the permit will “result in a reduction in pollutants to State
waters.” Id. at 688. In support of its conclusion, the FDM noted that the EPA had approved
Maryland’s use of a watershed-based approach to developing TMDLs. Id. at 717. The
FDM stated that such an approach “considers all pollutant sources . . . and estimates load
reduction targets for those sources necessary for the attainment of State water quality
standards.” Id. at 717 n.31. The FDM explained:
59
While no specific waste load is allocated to CAFOs in Maryland’s TMDLs,
a portion of the load allocation includes contributions from existing CAFOs.
The TMDLs contain load reduction targets that are not specific for individual
land uses or facilities. Methods available to Maryland to accomplish the load
reduction targets that include diverse programs that address air deposition,
septic system discharges, environmental site design, and a host of BMPs,
including not only those incorporated in the [General Permit], but also such
things as conservation tillage, off-stream watering, and forest buffers.
The pollutant contributions from CAFOs already in existence that will
acquire NPDES permits for the first time under the [General Permit] are
taken into account in the existing LA and therefore are included in the
reduction targets. Further, the requirements of the [General Permit] are quite
stringent, and it is reasonable to conclude that compliance with the [General
Permit] will reduce the loading to the impaired waterbody. More
specifically, the [General Permit] will regulate the discharges from a
significant number of CAFOs that previously had not been required to obtain
a general or an individual permit. For the first time, these CAFOs will be
subject to stringent requirements aimed at reducing pollutant discharges to
State waters. Because this represents a net reduction, it is not prohibited by
40 C.F.R. § 122.4(i). As the TMDLs are further implemented, additional
reductions may be required of the CAFO and nonpoint sources to fully
achieve the TMDL.
Where no TMDL has been prepared for an impaired water, an existing CAFO
subject to the [General Permit] for the first time will also be reducing its
contribution to the impaired water. At the time a TMDL is prepared,
consideration will be given to the contribution of the CAFO, and it is possible
that further reductions will be required.
Id. at 717–18. With respect to new CAFOs, the FDM noted that they would be subject to
the zero discharge requirement under federal regulations, which promotes “up-front design,
construction, operation, and maintenance to ensure that predictable discharges do not
occur.” Id. at 717 n.30 (quoting 73 Fed. Reg. 70459 (Nov. 20, 2008)). After the circuit
court affirmed the Department’s Final Determination, Assateague appealed to the
Appellate Court, which also affirmed the Department’s Final Determination.
60
With respect to Assateague’s argument that the Department had insufficient
evidence concerning the water quality impacts related to litter storage, the Appellate Court
determined that the Department had a reasonable basis for establishing its litter storage
requirements. Id. at 697. The Appellate Court similarly rejected an argument made by
Assateague that the permit had not done enough to regulate MAFOs, and was “arbitrary
and capricious because it [was] contrary to the policy goals” of Section 9-302(a) of the
Environment Article. Id. at 697–98 (cleaned up). The Appellate Court agreed with the
Department’s position that its decision to regulate MAFOs—which were previously
unregulated—was consistent with the statutory policy goal to “prevent, abate, and control
pollution of the waters of [the] State,” and that its review of the Department’s decision to
issue the general discharge permit was “limited to the narrow issue of whether there was
substantial evidence to support” the Department’s determination. Id. at 698. The court
observed that Assateague’s policy arguments were not a basis for reversing the agency’s
determination. Id.The Appellate Court also addressed Assateague’s assertion that the 2009 General
Permit violated the federal regulations governing water quality standards. Id. at 704.
Before the Appellate Court, Assateague framed its arguments as follows. Id. at 704–05.
First, Assateague argued that the 2009 General Permit violated the federal regulations
because it authorized “new discharges” to impaired waters without demonstrating
compliance with the requirements of 40 C.F.R. § 122.4(i), which prohibit the issuance of
an NPDES permit to “a new discharger, if the discharge from its construction or operation
will cause or contribute to the violation of water quality standards.” Id. at 704. Second,
61
Assateague asserted that, under federal regulations, the Department was required to
conduct a case-by-case analysis for each CAFO to determine whether water quality based
effluent limitations are necessary for the specific NPDES to meet water quality standards
for receiving bodies, and that the 2009 General Permit failed to comply with this
requirement. Id. at 705 (citing 40 C.F.R. § 122.44(d)(1)). Assateague further asserted
that—given that the Department had not established a TMDL for all waterways that might
be impacted by CAFOs, and even for CAFOs that discharge into an impaired waterway in
which a TMDL has been established—the Department failed to identify the quantitative
significance of any pollutant offsets. Id. at 714. Assateague contended that, in the absence
of “particularized and scientific analyses of the impacts of the new discharges,” the
Department could not “properly conclude that the [2009 General Permit] would have no
significant impact on the impaired waterway(s).” Id. (Cleaned up).
For its part, the Department defended the overall framework of the general discharge
permit, making many of the same arguments that it has put forth in this case. Concerning
Assateague’s first argument, the Department pointed out that Assateague’s interpretation
of the federal regulation was not the view accepted by the EPA—which is that a previously
unpermitted pollutant source that becomes permitted under the 2009 General Permit
scheme does not “cause or contribute to the impairment if it constitutes a net reduction in
the loading of the substance causing the impairment.” Id. at 705 (Emphasis added)
(internal citations omitted) (footnote omitted). The Department also asserted that the 2009
General Permit did not violate the federal regulation prohibiting the issuance of a discharge
permit if its issuance would “cause or contribute to the violation of water quality standards”
62
because under both federal and state regulations, CAFOs are subject to the “zero discharge”
standard. Id. at 706 (citing 40 C.F.R. § 412.46; COMAR 26.08.03.09B). The Department
argued that the general discharge permit’s requirement that AFOs implement Department-
approved Required Plans, “which are farm-specific plans to ensure protection of water
resources through appropriate management practices, provides further assurance that [2009
General Permit]-authorized facilities will not violate water quality standards.” Id. at 706(internal citations omitted). The Department defended the structure of the general
discharge permit by stating that it reviews each plan “to make sure that the specific
practices proposed are sufficiently protective given the circumstances of the specific farm
and the specific waterway that may be affected by the farm’s operation,” giving the
Department “the opportunity to impose additional restrictions, identify specific load
allocations, and even kick the farm out of the [general discharge permit] and require an
individual NPDES permit.” Id.Concerning the competing interpretations of the language “cause or contribute” in
the federal regulations, the Appellate Court observed that the Department is “the agency
tasked with enforcing and administering federal regulations regarding water quality
standards, see [EN] § 9-324, and that [the reviewing courts] give considerable weight to an
administrative agency’s interpretation and application of the statute which the agency
administers, recognizing its expertise in the field.” Id. at 713–14 (cleaned up) (quoting
Najafi v. Motor Vehicle Admin., 418 Md. 164, 173–74 (2011)) (additional citations
omitted). The Appellate Court determined that the Department’s “construction of 40
C.F.R. § 122.4(i) as allowing the consideration of pollution offsets in determining whether
63
a discharge ‘causes or contributes’ to a violation of water quality standards, is reasonable”
and, accordingly, the court would not “substitute [its] judgment for that of the agency.” Id.
at 714.
As for Assateague’s second argument, the Appellate Court pointed out that Ms.
Dalmasy had submitted an affidavit describing the Department’s process for establishing
TMDLs, how the general discharge permit scheme fit within the overall TMDL framework,
and the Department’s conclusion “that the [general discharge permit] ‘ensures compliance
with water quality standards as required by the Clean Water Act,’ and it ‘contains measures
intended to ensure that [AFO] discharges do not cause or contribute to violations of water
quality standards.’” Id. at 715–16. The Appellate Court observed that the FDM credited
Ms. Dalmasy’s affidavit in upholding the Department’s Final Determination. Id. at 716–
17. With respect to existing CAFOs, the court noted that the FDM concluded that the
issuance of the general discharge permit to existing CAFOs in impaired waterways—
regardless of whether a TMDL has been promulgated—would not cause or contribute to a
violation of water quality standards. Id. The Appellate Court pointed out that, in support
of its conclusion, the FDM had noted that the “EPA has approved Maryland’s use of a
watershed-based approach in developing TMDLs.” Id. at 717. After summarizing the
FDM’s findings and conclusions, the Appellate Court stated that the FDM’s “finding here,
that the issuance of the [general discharge permit] ‘will not cause or contribute to the
violation of the water quality standards,’ is a factual finding, or at least a mixed question
of fact and law, which limits [the court’s] review to whether there was substantial evidence
in the record to support the finding and whether a ‘reasoning mind’ could have reached
64
that conclusion.” Id. at 718. The court determined that there was a substantial basis for
the FDM’s decision that the 2009 General Permit would not “‘cause or contribute’ to a
violation of water quality standards.” Id.The Appellate Court similarly rejected Assateague’s assertion that the 2009 General
Permit “further violates federal law because it fails to comply with other applicable federal
laws governing water quality standards.” Id. at 719, 721. The Appellate Court noted that
the 2009 General Permit reflected the process by which the Department reviews permit
applications—the filing of the notice of intent and Required Plan—which are subject to
public review and comment, and observed that permit coverage may not be approved prior
to a completion of the public participation process. Id. at 721 (citing 2009 General Permit,
Part III.C.3.). The Appellate Court determined that it “was within the province of [the
Department] to determine that this process is sufficient to ensure that the issuance of new
permits will not cause or contribute to the violation of water quality standards[,]” and that
the court would not substitute its judgment for that of the agency on this issue. Id.Finally, the court also rejected Assateague’s arguments that the 2009 General Permit
was less stringent than federal law, concluding that, by its plain terms, the permit was
“broader, not less stringent, than federal law.” Id. at 722–24.
2. Assateague’s Challenge to the 2014 General Permit
In 2014, MDE published its Final Determination to issue the 2014 General
Discharge Permit. Food and Water Watch and Assateague (collectively “Appellants”)
challenged the permit, contending that it failed to comply with federal monitoring
requirements. Food and Water Watch v. MDE, 2018 WL 2203175 at *1 (Md. App. May
65
14, 2018). The Department defended the 2014 General Permit by pointing out that, under
the Clean Water Act and the federal regulations, the Department has discretion in
determining what conditions shall be in the NPDES permit, including technology based
effluent limitations, the duration of the permit, best management practices, and monitoring
requirements to assure compliance with the permit limitations. Id. at *5 (citing 33 U.S.C.
§ 1318(a)(1)(A)(iii)-(iv); 40 C.F.R. § 122.44(i)(1)). The Department noted that, under the
EPA regulations, the “EPA specifically acknowledges that these requirements may not be
appropriate for every NPDES permit” and that the Department exercises discretion in
requiring additional best management practices as it deems necessary—discretionary
authority it expressly retained in the 2014 General Permit. Id.The Appellate Court affirmed the Department’s decision. First, the Appellate Court
concluded that the 2014 General Permit included measures to ensure compliance with
federal and state law because the permit incorporated each permittee’s Required Plan,
which, if not implemented, constituted a violation of the permit. Id. at *9. The Appellate
Court also rejected the Appellant’s argument that the general discharge permit’s effluent
limitations in the form of best management practices could “not replace [water quality]
effluent limitations for compliance.” Id. at *9–10. The court noted that federal law allows
for best management practices in the place of numeric effluent limitation guidelines when
“numeric effluent limitations are infeasible” or “the practices are reasonably necessary to
achieve effluent limitations and standards or to carry out the purposes and intent of the
Act.” Id. at *10 (citing 40 C.F.R. § 122.44(k)(3)-(4)). The court concluded that the 2014
General Permit was “reasonable and necessary to carry out the intent of the [Clean Water
66
Act], as numeric limitations are infeasible because the 2014 [General] Permit is [a] zero
discharge [permit].” Id.The Appellate Court similarly rejected Appellant’s argument that the Department’s
failure to include monitoring violated 40 C.F.R. § 122.44(i), which provides that “each
NPDES permit shall include conditions meeting the following [monitoring] requirements
when applicable[.]” Id. at *10. The court deferred to the Department’s determination that
“when applicable” does not mean that monitoring is required in every case, and that,
because the 2014 General Permit is a zero discharge permit, monitoring is unnecessary to
ensure compliance. Id. at *11. The Appellate Court held that there was substantial
evidence in the record that the 2014 General Permit complied with the EPA’s regulations,
and concluded that the Department’s decision was rational and lawful. Id.
3. The 2019 General Permit Framework Complies with Federal and State Laws
Our reasons for upholding the Department’s Final Determination with respect to the
2019 General Permit are consistent with the reasons expressed by our colleagues in the
above-described cases involving challenges to the two prior iterations of this permit. The
federal and state laws and regulations that establish the general framework for this
particular type of pollutant source have not changed since those cases were decided.
Starting with federal law, the Clean Water Act expressly provides for a tiered
approach to water quality controls. As discussed above, under the Act, technology based
effluent limitations are the first round of controls in the effort to achieve water quality
standards. Carroll County, 465 Md. at 186 (citing 33 U.S.C. § 1311(b)(1)(A)). The Act
directs the EPA to issue nationally applicable effluent guidelines for classes or categories
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of point sources. 33 U.S.C. § 1314(b). The EPA has chosen to regulate CAFOs—as a
pollutant-source class—through a zero discharge general permit scheme, which prohibits
all discharges of pollutants to surface and ground waters from CAFO production areas. 40
C.F.R. § 412.46. Under the federal regulations, each CAFO is required to implement
technology based effluent limitations in the form of best management practices that are
tailored to the particular site and operation. See 40 C.F.R. § 122.42(e). The Department
has incorporated by reference the EPA’s CAFO performance standards into Maryland AFO
regulations. See 40 C.F.R. § 412.46; COMAR 26.08.03.09B.
The Department’s AFO general discharge permit model is also consistent with the
State’s water pollution control law. As noted above, the General Assembly has conferred
considerable discretion in the Department to: (1) determine whether the discharge will meet
all state and federal water quality standards, and appropriate effluent limitations; and (2)
establish the conditions necessary to prevent a violation of federal and state laws. See EN
§ 9-324(a) (stating that “the Department may issue a discharge permit if the Department
finds that the discharge meets: (1) All applicable State and federal water quality standards
and effluent limitations; and (2) All other requirements of this subtitle[]”) (emphasis
added); EN § 9-326 (stating that “[t]he Department may make the issuance of a discharge
permit contingent on any conditions the Department considers necessary to prevent
violation of this subtitle[]”) (emphasis added).
In addition to its permitting authority, the Legislature has also given the Department
extensive regulatory and rulemaking authority. See EN § 9-313. In connection with this
authority, the General Assembly does not mandate that the Department adopt a particular
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type or types of discharge permits for different pollutant sources. Rather, the Legislature
has given the Department considerable discretion in the development of its permitting
schemes. The Legislature recognizes that there is no “one-size-fits all” approach to
regulating water pollution. The water pollution control law specifically states that the
Department’s rules and regulations may “[i]mpose, as circumstances require, different
requirements for different pollutant sources and for different geographical areas[.]” EN
§ 9-313(c) (emphasis added).
Since 2009, the Department has adopted the same regulatory model as the EPA.
Under both the federal and state regulations, the AFO permittee is required to prepare a
Required Plan providing conditions that are tailored to the particular operation,
surrounding environment, and where applicable, affected waterway(s). The plans are
prepared by plan writers who are licensed and certified by the Maryland Department of
Agriculture. COMAR 26.08.01.01B(53-1), 15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). The
plan writers are required to identify environmental hazards, such as waste storage, animal
confinement, proximity to waterbodies and water quality, and develop mitigation measures
in accordance with the standards and specifications set forth in the NRCS manual.
COMAR 26.08.01.01B(53-1), 15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). The plans must be
based upon an assessment of “possible resource concerns,” and they must implement
applicable NRCS standards where resource concerns exist. COMAR 26.08.01.01B(53-1),
15.20.04, 40 C.F.R. § 122.42(e)(1)-(6). Under the requirements of the National Planning
and Procedures Handbook, plan writers are required to evaluate site-specific practice
effects on identified resource concerns and develop a combination of practices that mitigate
69
all negative effects. See NPPH, 180-600-I. The Required Plan must also identify the
distance to, and name of, the nearest waterbody, and the watershed status, including
whether there are any TMDL impairments established for the particular watershed.
The Department reviews each Required Plan to ensure that its practices are
sufficiently protective given the specific circumstances of the farm, the surrounding
topography, and the proximity and condition of any waterway that may be affected by the
farm’s operation. The Department retains the authority to require additional best
management practices and water quality controls if it determines, in its sole discretion, that
they are necessary to maintain water quality standards. 2019 General Permit, Part VII.K.2.
The Department also retains the discretion to require that an individual AFO obtain an
individual discharge permit. 2019 General Permit, Part V.II.M.
Under both federal and state regulations, the Required Plans are reviewed and
approved prior to the individual AFO obtaining coverage under the general discharge
permit. 40 C.F.R. § 122.23(h)(1); COMAR 26.08.04.09N. The Required Plans are subject
to public review and comment, and a person aggrieved by the Department’s final approval
of a Required Plan may request a contested case hearing. COMAR 26.08.04.09N(3)(l)(ii).
The Department asserts that its AFO general discharge permit framework is not only
consistent with this authority, but is particularly appropriate with respect to general
discharge permits for AFOs, which are located in various geographic areas across the State,
including portions of Garrett County and Worcester County that are located outside the
Chesapeake Bay watershed. The Department explains that its general discharge permit
framework allows it to consider those regional differences and tailor each permit’s
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requirements to the specific AFO’s impact to nearby waterways, depending on the
characteristics of that particular waterway.
As discussed above, the Legislature has given broad discretion to the Department to
establish permit terms and conditions as the Department determines are necessary. The
text of the statute does not instruct the Department as to how it must make these
determinations or the water quality controls that must be included. When reviewing
matters that are committed to agency discretion, we apply an “arbitrary and capricious”
standard of review, which is extremely deferential to the administrative agency. Carroll
County, 465 Md. at 202; see also Anacostia Riverkeeper, 447 Md. at 120 (stating that courts
are to accord an agency “great deference regarding factual questions involving scientific
matters in its area of technical expertise[]”). In this case, the Department, through the
promulgation of formal regulations, has chosen to adopt the same general discharge permit
framework established by federal regulations—a zero discharge general permit that
imposes technology based effluent limitations in the form of best management practices as
a first level of control, while retaining discretion and authority to impose additional water
quality controls based upon the particular farming operation, and its location to a particular
impaired waterway. We determine that the Department’s decision to continue to utilize
the same discharge permit regulatory framework for the 2019 General Permit—a
permitting model that has been in place for over a decade and utilized in two prior permit
iterations—is not arbitrary or capricious and is consistent with the discretionary authority
conferred upon the Department under both federal and state law.
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Assateague also challenges the 2019 General Permit because it asserts that the AFO
permit framework “predates the establishment of the Bay TMDL, the creation of the
current Bay Model, and the current federal CAFO rule,[46] not to mention many of the
scientific studies and technical reports that were in the record before the Department when
it made its determinations with respect to the current Permit.” In other words, Assateague
appears to be arguing that the AFO general discharge permit framework is out-of-date. We
disagree. As discussed above, the federal and state regulations that establish a general
discharge permit structure for this particular pollutant source have not changed.
Assateague does not point to any evidence in the record in this case that supports the notion
that the EPA’s and the Department’s regulatory permitting framework for this particular
pollutant source is no longer reasonable or fails to comply with federal or state law.
With respect to Assateague’s argument that the AFO general discharge permit
framework predates the establishment of the Bay TMDL and the creation of the current
46
Although it is not entirely clear what “EPA Rule” Assateague refers, as discussed
in detail, the EPA regulatory framework that establishes a general discharge permit for the
CAFO industry has not changed. To the extent that Assateague is referring to the guidance
set forth in the NPDES Permit Writers’ Manual for Concentrated Animal Feeding
Operations, it states that “situations could arise where the permitting authority needs to
impose more stringent requirements,” such as where a CAFO discharges to an impaired
waterbody or “where an analysis of frequency, duration and magnitude of the anticipated
discharge” indicates the “reasonable potential” to affect water quality. EPA NPDES Permit
Writers’ Manual for Concentrated Animal Feeding Operations, February 2012, (“NPDES
Permit Writers’ Manual for CAFOS”), 4-36 (emphasis added). In other words, in the
EPA’s view, water quality based effluent limitations may be needed in specific instances
following what amounts to a site-specific analysis. This language is consistent with the
Department’s permit conditions, which give the Department the discretion to impose
additional water quality controls on a site-specific basis, depending upon the location of a
particular operation, its proximity to a specific waterway, and the environmental health of
that waterway.
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Bay Model and therefore is no longer valid, we disagree. Although the Bay TMDL was
not adopted until December 2010, it was being developed at the same time as the 2009
General Permit. As we noted in Anacostia Riverkeeper, the development of the
Chesapeake Bay TMDL was a decades-long process. 447 Md. at 106. In that case, we
rejected a similar argument made by Montgomery County in connection with its challenge
to the Department’s issuance of a stormwater permit. Specifically, we noted that, although
the Department issued Montgomery County’s permit before the Chesapeake Bay TMDL
was established and Maryland’s Phase I WIP was approved, these documents were not
prepared in isolation, and we therefore observed that it would be “improper to view the
[final Chesapeake Bay TMDL] in a vacuum as a single, isolated effort to restore water
quality to the Chesapeake Bay.” Id. (quoting American Farm Bureau, 984 F. Supp. 2d at
298). We reject Assateague’s argument for similar reasons here.
Moreover, the administrative record in this case reflects that, in its development of
TMDLs and the associated load and wasteload allocations, the Department factored in the
AFO general discharge permit scheme. Specifically, in connection with the 2009 General
Permit, Ms. Dalmasy described the Department’s inclusion of the AFO general discharge
permit structure as part of the establishment of the State’s estimated agricultural load
allocations necessary for the attainment of State water quality standards.
Maryland’s approved phased WIP established the State’s roadmap for how it will
meet its pollutant allocations under the Bay TMDL. Maryland’s Phase I WIP, which was
completed in December 2010, allocated allowable loads of nitrogen, phosphorus, and
sediments among different pollutant sources and identified statewide strategies for
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reducing the levels of these pollutants that are impairing the Chesapeake Bay. Phase I
WIP, iii. With respect to the agricultural source sector, the Phase I WIP specifically
described the AFO general discharge permit scheme, noting that “Maryland’s CAFO
Program is current with federal regulations having been approved by EPA on January 29,
2010 after a rigorous review of Maryland’s regulations, general permit and fact sheet.”
Phase I WIP, 2-42. The Phase I WIP described in detail the general permitting plan for
this particular type of pollutant source—AFOs—the use of best management practices in
the form of Required Plans that would be approved on a site-specific basis. See Phase I
WIP, ES-3, 2-42. Building upon the details set forth in its Phase I WIP, the Department
continued to refine its TMDL load allocation in the Phase II WIP, which were based upon
the updated Bay Model, and accounted for agricultural impacts as part of its allocations.
Phase II WIP, A-32. The development of the agricultural source component of the Phase
II WIP involved extensive meetings between the Department and MDA, and various
stakeholders.47 During these discussions, the State workgroup formed to address
agricultural source pollutants—the Water Quality Goal Implementation Team Agriculture
Workgroup—sought specific guidance from the EPA in connection with the manner in
which CAFO production areas would be factored into the TMDL load allocations and
wasteload allocations. In other words, the Phase II WIP continued to take into account the
47
The Phase II WIP describes the process that was undertaken by MDE and MDA
to establish the portions of the Phase II WIP applicable to agriculture, including extensive
meetings within each of the 23 counties in Maryland, that included a broad spectrum of
stakeholders, including farmers, the University of Maryland Extension, Chesapeake Bay
Foundation, Sierra Club, River Keepers, Maryland Farm Bureau, and the Delmarva Poultry
Institute. Phase II WIP, A-30.
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AFO general discharge permit approach—utilizing technology based effluent limitations
in the form of BMPs—for this particular pollutant source as part of the State’s overall load
analysis in connection with the Chesapeake Bay TMDL.
The Phase III WIP describes additional efforts the State has undertaken to ensure
that the agricultural sector satisfies the necessary Bay TMDL through BMPs to satisfy the
nitrogen and phosphorus reduction goals within the Bay Model. Phase III WIP, B-10. Like
the Phase II WIP, the Phase III WIP for agriculture was developed by the Department and
MDA with active engagement by various agriculture and environmental stakeholders
participating in numerous meetings across the State. Phase III WIP, B-2 –B-4. The Phase
III WIP describes the State’s efforts—coordinated through the MDA and local soil
conservation districts—to inspect BMPs, verify that they relate to an NRCS standard, and
to ensure that they are functioning as intended as far as nitrogen and phosphorus reduction
within the Bay Model, and are satisfying water quality standards. Phase III WIP, B-9 – B-
11.
The Department has determined that AFOs operating in compliance with the general
discharge permit are not generally expected to cause or contribute to a violation of the
water quality standards. That said, the Department’s position “is that it will impose
additional water quality based effluent limitations if—during the permit review process or
at any time after the issuance of permit coverage—the Department determines that they are
necessary to protect, maintain, and restore water quality and the existing and designated
uses of waters of the State.”
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The Department’s consistently stated position has been incorporated into the general
discharge permit terms since the issuance of the 2009 General Permit. Turning to the
language of the 2019 General Permit, it expressly acknowledges that there may be
instances in which BMPs may be insufficient to address water quality standards. The
permit specifically states that “[a]dditional TMDLs and wasteload allocations (WLAs) may
be determined for nutrients in tidal waters. If WLA assessment for nutrients in tidal waters
or a later assessment of wastewater discharged from these operations indicates that WLAs
are required, additional or alternative controls or monitoring may be required.” 2019
General Permit, Part VII.K (emphasis added). The 2019 General Permit also states that
“the Department may require, during the permit review process, and at any time after the
issuance of the permit coverage, additional [best management practices]” to ensure that the
permit provides effluent discharge controls consistent with the Bay TMDL and its
wasteload allocations. 2019 General Permit, Part VII.K.2 (emphasis added). For AFOs
within the Chesapeake Bay watershed, the 2019 General Permit states that the additional
measures may include the additional best management practices outlined in the WIP. Id.In addition, “[i]f the Department, in its sole discretion, determines that this General
Discharge Permit is not adequately protective of state waters at an operation, the
Department may require any person authorized by this permit to apply for an individual
State discharge permit.” 2019 General Permit, Part VII.M.2.
By its express terms, the 2019 General Permit gives the Department the authority to
impose additional pollutant “controls or monitoring” if a WLA assessment for a particular
waterway indicates it is required. The Department asserts that its decision to require
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additional pollutant controls that are tied to an operation’s proximity to a particular
waterway and its overall health is not only reasonable, but is also consistent with the overall
approach of the TMDL process, which is to establish water quality based effluent
limitations for particular waterways.
The Department asserts that this permit condition, which provides for the
implementation of additional site-specific limits where needed, also is consistent with the
EPA NPDES Permit Writers’ Manual for CAFOs, which states that “situations could arise
where the permitting authority needs to impose more stringent requirements,” such as
where a CAFO discharges to an impaired waterbody or “where an analysis of frequency,
duration and magnitude of the anticipated discharge” indicates the “reasonable potential”
to affect water quality. EPA NPDES Permit Writers’ Manual for Concentrated Animal
Feeding Operations, February 2012, (“NPDES Permit Writers’ Manual for CAFOS”), 4-
36 (emphasis added). In other words, according to the Department, the EPA’s view is that
water quality based effluent limitations may be needed in specific instances following what
amounts to a site-specific analysis.
This has been the Department’s consistent position taken since the issuance of the
2009 General Permit. Like the Appellate Court which considered this same issue when
analyzing the permit conditions in the 2009 General Permit, we conclude that the
Department’s determination that the 2019 General Permit conditions will not cause or
contribute to the violation of the water quality standards is a determination that the
Legislature has placed within the discretion and expertise of the Department. The
77
Department’s determination is not arbitrary or capricious, and this Court will not substitute
its judgment for that of the Department.
Finally, Assateague asserts that this Court’s trilogy of cases that upheld the
Department’s permitting scheme for Municipal Separate Stormwater Sewer Systems
(“MS4”) support their position that water quality based effluent limitations are required to
be included in the AFO general discharge permit. Anacostia Riverkeeper, 447 Md. 88(2016); Carroll County, 465 Md. at 169; Maryland Small MS4 Coal. v. Maryland Dep’t of
the Env’t, 479 Md. 1 (2022). Assateague asserts that Anacostia Riverkeeper and Carroll
County “unquestionably require the Department to establish permit limits sufficient to meet
water quality standards but confer considerable flexibility on the Department regarding how
to do so.” (Emphasis added). We completely agree with this statement. That is, under both
state and federal law: (1) the Department is required to establish permit limits sufficient to
meet water quality standards; and (2) the Department has considerable flexibility regarding
how to satisfy the water quality standards. However, Assateague appears to be arguing that
the term “water quality standards” is synonymous with “water quality based effluent
limitations.” It is not. As we explained in Carroll County, technology based and water
quality based effluent limitations are two different types of controls employed to achieve
water quality standards. Carroll County, 465 Md. at 186–88.
Because these cases involved a completely different pollutant source involving a
completely different regulatory scheme, we do not need to delve too far into them, other
than to note that, in each, this Court upheld the Department’s interpretation and application
of its regulatory authority under federal and state law to regulate stormwater management
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permits. In Anacostia Riverkeeper, we upheld the Department’s decision to issue MS4
permits to various counties after the Department’s decision was challenged by
environmental groups. 447 Md. at 179. In that case, we determined that applicable
provisions of the Clean Water Act that address stormwater management permits, as well
as the implementing regulations, provide the Department with flexibility in connection
with its implementation of stormwater management effluent limitations established in
water pollution control permits. Id. We concluded that there, as here, the text of the statute
“does not instruct the permitting authority as to how it must ensure” consistency with water
quality standards, and the agency has “the flexibility to determine the appropriate
procedures for developing” permittee-specific limits. Id. at 136–37.
In Maryland Department of the Environment v. County Commissioners of Carroll
County, certain counties sought judicial review of their MS4 permits issued by the
Department. 465 Md. 169. We upheld the Department’s decision to include certain
impervious surface restoration requirements in addition to what is referred to as the
“maximum extent practicable” standard, determining that such requirements were lawful
and were not arbitrary or capricious. 465 Md. at 264–65. In Maryland Small MS4
Coalition v. Maryland Department of the Environment, we upheld the Department’s final
determination in connection with the issuance of other MS4 permits to other counties after
applying the doctrine of stare decisis and determining that the holdings of Carroll County
applied to that case. 479 Md. 1.
In this case, there is more than ample evidence in the record to establish that the
Department’s general permitting approach to AFOs is reasonable, and complies with the
79
Clean Water Act and Maryland’s state water pollution control law, as well as its watershed-
based approach to the Bay TMDL, which has been approved by the EPA and has been
incorporated into all three phases of the WIP. Under both the Clean Water Act and
Maryland’s water pollution control law, the Department has the authority to determine the
appropriate permitting procedures to ensure that permittees comply with water quality
standards. We determine that the Department’s AFO general discharge permit framework
is consistent with the authority given to the Department under federal and state law to
regulate particular types of pollutant sources utilizing its expertise, and is not arbitrary or
capricious.
D. The Department’s Decision to Require Plans to Address Ammonia Emissions
Through Best Management Practices—Is Reasonable and Consistent with
Federal and State Law
We turn next to Assateague’s permit challenges pertaining to ammonia emissions.
Ammonia is a form of nitrogen that is toxic to plant and aquatic life in large
concentrations. See EPA Development Document for the Final Revisions to the National
Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for
Concentrated Animal Feeding Operations, December 2002 (“EPA Development
Document”), 7-1; see also NPDES Permit Writers’ Manual for CAFOs, at 6-2. Nitrogen
from animal waste or litter can be released to the atmosphere as gaseous ammonia through
volatilization or denitrification. Id. It is undisputed that ammonia emissions in the form
of agricultural atmospheric deposition are a source of nitrogen to the Bay. See Phase II
WIP, A-32.
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Assateague makes several arguments with respect to ammonia emissions and air
deposition. First, Assateague asserts that the Department “reissued the permit without any
limitations on ammonia” and states that, when developing the record and responding to
comments, the Department has consistently taken the position that, as a matter of law,
ammonia is not subject to regulation under this permit. Assateague asserts that not only
has the Department “repeatedly and categorically” excluded ammonia as a matter of law
from the 2019 General Permit, but it also contends that there is not “a single term,
condition, or limit in the Permit that even references ammonia.” Second—and somewhat
contradictory to its primary argument that ammonia emissions are not regulated in any
manner by the 2019 General Permit—Assateague argues that the Department’s regulation
of ammonia emissions does not go far enough. Assateague characterizes the Department’s
regulation of ammonia emissions as being a “discretionary approach” which, according to
Assateague, leaves the decision to regulate ammonia emissions squarely within the control
of the plan writer.
Finally, Assateague asserts that “[t]he record contains no discussion about the
Department’s current, planned, or previous exercise of discretion to impose ammonia, or
any sort of air quality [] BMPs at individual AFOs” and asserts that the record is “devoid
of any discussion of the types of site-specific ‘outdoor air quality’ conditions that might be
present at a facility or any threshold characteristics that could guide this exercise of
discretion established by the Permit.” Assateague asserts that the lack of discussion is “not
surprising” because it contends that “the record makes clear that the Department intends
not to regulate this pollutant.”
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The Department asserts that it not only recognizes its authority to impose
technology based effluent limitations on ammonia emissions, but that it did so in the 2019
General Permit. The Department points to the plain language of the permit, as well as the
administrative record, which it contends provides substantial evidence that it intends to
regulate ammonia emissions through best management practices incorporated into an
approved Required Plan where air quality is a resource concern. As further evidence of
the Department’s determination that it has the authority to regulate and intends to regulate
ammonia emissions, the Department points to the Phase II WIP, in which it specifically
recognized that “agricultural atmospheric deposition” was one of the contributing sources
of nitrogen to the Bay and accounted for that impact in its TMDL load allocation. Phase
II WIP, A-32.48
Based upon our review of this record, there is substantial evidence contained therein
to support the Department’s stated position that it intends to regulate ammonia emissions
through technology based effluent limitations in the form of best management practices
identified in a Required Plan, which, once approved, is incorporated into the general
discharge permit.
48
Specifically, the Phase II WIP identified the following “Sources of Nitrogen to
the Bay” based upon 2009 figures and the Chesapeake Bay Program Watershed Model
Phase 4.3: Agriculture-Chemical Fertilizer (15%); Agriculture-Manure (17%);
Agricultural Atmospheric Deposition (6%); Atmospheric Deposition – Mobile, Utilities
and Industries (19%); Atmospheric Deposition – Natural (1%); Atmospheric Deposition to
Tidal Waters (7%); Municipal and Industrial Wastewater (19%); Developed Lands –
Chemical Fertilizer (10%); and Septic Systems (4%). Phase II WIP, A-32 (emphasis
added).
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The 2019 General Permit is the first iteration of the AFO general discharge permit
in which the Department has inserted specific permit conditions to regulate ammonia
emissions. In other words, the new permit condition imposes additional restrictions on
poultry operations where outdoor air quality is a resource concern, thereby providing
stronger environmental protections than prior permit iterations. The Department’s fact
sheet—which specifically identified the changes being made in the 2019 Draft Permit from
the 2014 General Permit—identified Part IV.D.2 as being a newly added “section on
outdoor air quality for poultry operations . . . [r]equir[ing] the appropriate NRCS Practice
Standards if air quality is a resource concern.”
The plain language set forth in Part IV.D.2 of the 2019 General Permit states that
nutrient management plans prepared for a particular facility must address any “resource
concerns” about the particular AFO’s air quality, stating: “For poultry: If outdoor air
quality is determined to be a resource concern, use appropriate NRCS Practice Standards
to address the concern.” The permit’s table of contents refers to this new condition as
implementing “Other Best Management Practices” for the “Reduction of Ammonia, dust,
and feathers.”
As discussed above, Assateague and the Poultry Industry each provided competing
written comments to this new addition—with the Poultry Industry asserting that the
Department lacked the authority to regulate air emissions in a water pollution control
permit, and Assateague asserting that the language did not go far enough. In its written
comments, Assateague acknowledged that Part IV.D.2 was “new language” that was
directed at “ammonia emissions.” Assateague’s written comments were directed at the
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permit’s “framework,” in which the permit writer addresses “outdoor air quality” if it is
determined to be a resource concern. In Assateague’s view, because the framework for
regulating ammonia emissions “is left up to the owner or operator of the regulated AFO[,]”
“there are no pollution limits or standards in the draft permit capable of protecting waters
of the State[.]”
After reviewing the testimony and written comments received during the public
participation process, the Department prepared a report of its findings that summarized the
comments it received, identified several revisions to the draft permit in response to those
comments, and, where no changes were made, provided its explanation to support the
permit conditions. With respect to the new air emissions requirement contained in Part
IV.D.2., the Department considered the competing comments by the Poultry Industry and
Assateague, and provided a written response explaining why it was not making changes to
the permit condition—a written response that the Legislature specifically instructs us to
consider in connection with our judicial review of environmental permits. See
EN § 1-606(c) (stating that judicial review of the Department’s determination of water
pollution control permits is limited to the record compiled by the Department, including
the Department’s responses to public comments).
We reject Assateague’s argument that the Department has excluded the regulation
of ammonia emissions or air deposition “as a matter of law” and has taken the position that
it has no authority to regulate air deposition through a water pollution control permit.
Assateague’s argument is in direct conflict with the evidence in the administrative record.
In the Department’s written response to Assateague’s comments, it expressly
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acknowledges its authority under state law to include air deposition in this permit. In
explaining its basis for including Part IV.D.2, the Department accurately stated that: “EPA
does not regulate odors or air quality through its CAFO permitting program. See generally
40 CFR 122.23.” Although the Department correctly pointed out that the EPA does not
regulate air quality through its CAFO permitting regulations, the Department also correctly
acknowledged that it has such authority under both federal and state law. In its written
comments, the Department explained that, “[w]hile MDE derives much of its NPDES
permitting authority from the EPA and the [Clean Water Act], it is authorized, as a
delegated program, to impose requirements that are more stringent than what is required
by the [Clean Water Act] or EPA’s regulations.” (Emphasis added). The above comment
reflects that the Department recognizes its legal authority to include air emissions in the
2019 General Permit.
Not only did the Department recognize its legal authority under state law to include
ammonia emissions, the Department also explained that it, in fact, “included in the draft
General Discharge Permit provisions that require AFO owners or operators to implement
BMPs in order to reduce nuisance odors and address any air quality resource concerns
using appropriate NRCS Practice Standard(s).” (Emphasis added). The Department also
explained specifically how “ammonia and ammonia deposition” would be addressed and
the types of best management practices that a permit writer is to include where air quality
is a “resource concern”:
There are several Natural Resources Conservation Service (“NRCS”)
practice standards that can be implemented by AFO operators to reduce
actual or potential ammonia emissions from poultry houses. NRCS Practice
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Standard, Amendments for Treatment of Agricultural Waste, is used in
poultry houses to reduce the potential for high ammonia emissions such as
sodium bisulfate, aluminum sulfate, acidified clay, and ferric sulfate. These
amendments are applied to the litter prior to bird placement to reduce
potential high levels of ammonia, suppress ammonia volatilization from litter
and reduce emissions from the poultry facilities. Modern poultry houses
have internal ventilation and cooling systems. Though the primary goal of
these systems is to provide bird comfort, an added benefit is that they reduce
dust and feathers inside the houses. This results in less particulate matter to
be discharged into the atmosphere. The emission of dust and feathers may
be addressed through NRCS Practice Standards (Hedgerow Planting) or
(Windbreak/Shelterbelt Establishment). The implementation of these BMPs
can provide ammonia reduction and a means to reduce dust and feathers.
(Emphasis added).
The Department’s response specifically mentions implementing Natural
Resource Conservation Practice Standards that are designed and used to reduce
ammonia emissions. For example, Amendments for Treatment of Agricultural Waste
is a standard intended to “address the use of amendments to manure and other
agricultural wastes for specific purposes such as odor reduction, ammonia emissions
reduction, reduction of soluble phosphorus, etc.” USDA Natural Resources
Conservation Service, National Handbook of Conservation Practices Notice 137 (Apr.
26, 2005) (emphasis added), available at https://perma.cc/UPP8-XVTD. The
Department also mentioned Hedgerow Planting, a standard used, among other things,
to “[i]ntercept airborne particulate matter or to reduce chemical drift and odor
movement.” USDA Natural Resources Conservation Service, Conservation Practice
Standard / Hedgerow Planting (Dec. 2018), available at https://perma.cc/2W8N-XRJ4.
Similarly, the Department mentioned Windbreak/Shelterbelt Establishment, which is a
standard used, among other things, to “[i]mprove air quality by reducing and intercepting
86
air borne particulate matter, chemicals and odors.” USDA Natural Resources Conservation
Service, Conservation Practice Standard / Windbreak/Shelterbelt Establishment (Dec.
2011), available at https://perma.cc/LN2Q-7N3R.
Based upon the above-described BMPs, the Department explained that, in its
judgment, “[t]he draft General Discharge Permit contains BMPs to sufficiently minimize
AFO ammonia emissions from poultry houses therefore no revisions are necessary.”
The above written response illustrates that the Department correctly recognized its
authority to regulate ammonia emissions as part of the 2019 General Permit; considered
the public comments, including those comments made by Assateague and the Poultry
Industry related to ammonia emissions; and explained how best management practices that
are included in the NRCS Practice Standards—such as litter amendments, internal
ventilation and cooling systems, hedgerow plantings, and the establishment of
windbreak/shelterbeds—provide ammonia reduction. The Department’s decision to
regulate ammonia emissions through best management practices—with the Department’s
discretion to incorporate additional water quality controls based upon the location of a
particular operation and its proximity to a particular waterway—is reasonable and is
consistent with its authority under state law.49
49
Finally, the parties each cite County of Maui, Hawaii v. Hawaii Wildlife Fund,
140 S. Ct. 1462 (2020). In that case, the question presented to the United States Supreme
Court was whether pollution from an underground injection well that eventually makes its
way into the Pacific Ocean could constitute a “discharge of pollutant” from a “point
source” subject to regulation under the federal Clean Water Act. 140 S. Ct. at 1466. The
Court held that the Act requires a permit where there is a direct discharge of a pollutant
from a point source into water, or where there is a “functional equivalent” of a
87
We agree with the Department that, not only is there substantial evidence in the
administrative record for the 2019 General Permit to support the Department’s exercise of
its authority to regulate ammonia emissions through the general discharge permit, but that
the Phase II WIP also reflects that it has acknowledged this authority. The Phase II WIP
specifically identified “agricultural atmospheric deposition” as one of the contributing
sources of nitrogen to the Bay and accounted for that impact in its TMDL load allocation.
Phase II WIP, A-32. In Ms. Dalmasy’s explanation of the Department’s process for
establishing TMDLs, she explained how the load allocations “account for contributions
from atmospheric deposition . . . .” Assateague Coastkeeper, 200 Md. App. at 715. There
is substantial evidence in the record to reflect that the Department acknowledges its
authority under state law to regulate ammonia emissions through its water pollution control
permits and has, in fact, included BMPs to address ammonia emissions in this iteration of
the AFO general discharge permit.
Next, Assateague asks us to determine that the language in Part IV.D.2 is
insufficient because it contends that there is not “a single term, condition, or limit in the
Permit that even references ammonia.” The Department explains that the permit language
is sufficient because the language includes terms of art that address ammonia emissions.
discharge. Id. We determine that this case is inapposite to our analysis here. In this case,
it is undisputed that agricultural ammonia emissions are a source of nitrogen pollution that
impacts the Chesapeake Bay. See Phase II WIP, A-32. As discussed above, there is
substantial evidence in the record that the Department acknowledges its authority under
state law to regulate ammonia emissions through its water pollution control permits, and
has, in fact, included BMPs to address ammonia emissions in the 2019 General Permit.
88
The terms of art are defined in other technical documents—such as the NRCS Practice
Standards—that the Permit incorporates by reference. We agree with the Department.
The 2019 General Permit states that, “[i]f outdoor air quality is determined to be a
resource concern, use appropriate NRCS Practice Standards to address the concern.” Part
IV.D.2. A “resource concern” is defined in the NRCS Planning Procedures Handbook, Title
180, § 600.2(120), as “[a]n expected degradation of the soil, water, air, plant, or animal
resource base to the extent that the sustainability or intended use of the resource is impaired.”
(Emphasis added). As it pertains to Assateague’s challenge to ammonia emissions, air
quality-based resource concerns include “airborne soil and smoke particulates that can
cause safety-related problems, machinery and structure damage, health problems, deposition
of airborne sediment in water conveyances, airborne chemical drift, odors, and fungi, molds,
and pollen.” NRCS National Planning Procedures Handbook, Title 180, § 600.2(3)
(emphasis added). As the Department explained in its written response to public comments,
the NRCS practice standards that address the generation of ammonia emissions include the
application of litter amendments, cooling and ventilation systems, the planting of hedgerows,
and the establishment of vegetated windbreaks and shelterbelts.
We agree with the Department that the 2019 General Permit incorporates sufficient
language for a licensed certified plan-writer to understand that where “air quality” is a
“resource concern” as those terms are defined in the NRSC National Planning and
Procedures Handbook—a document that has been around for more than a decade, and is
required by the Department’s and MDA’s regulations to be utilized by certified plan writers
in preparing the Required Plan for a particular operation.
89
In Anacostia Riverkeeper, one of the water groups’ challenges to the Department’s
issuance of certain stormwater management permits related to the fact that the permit
incorporated by reference the 2000 Maryland Stormwater Design Manual, which the water
group contended contravened the public participation requirements. 447 Md. at 172–73.
In rejecting the water groups’ argument, we acknowledged that the stormwater permits at
issue, indeed, relied “heavily on incorporation by reference.” Id. at 172. That said, we
noted that “such incorporation by reference, even of important documents,” did not
contravene the public participation requirements. Id. We observed that “including the best
management practices [in the stormwater management permits] would significantly
lengthen the document” and “would obfuscate other requirements” in the permit. Id. at 173(emphasis added). Accordingly, we saw “no reason” to require that the Department include
the content of the manual in the permit itself. Id.We approach the 2019 General Permit in a similar manner. We see no reason to
require the Department to precisely identify the BMPs that are required for ammonia
emissions. These practices are included in NRCS National Planning and Procedures
Handbook, which is available to the public. In reviewing water pollution control permits,
we will not substitute our judgment for that of the agency, and we affirm even decisions of
“’less than ideal clarity’ so long as the court can reasonably discern the agency’s
reasoning.” Carroll County, 465 Md. at 202 (citing Bowman Transp., Inc., 419 U.S. at
285–86). The Department requires that air quality be addressed—if it is determined to be
a resource concern—by utilizing the methods and technology described in the NRCS
National Planning Procedures Handbook. Because the Department is not required to
90
include the information incorporated by reference in the NRCS Planning Procedures
Handbook, and we can reasonably discern the agency’s reasoning, we conclude that the
Department’s permit conditions are not arbitrary or capricious.
To support its argument that the 2019 General Permit does not go far enough to
regulate ammonia emissions, Assateague included as part of the circuit court record a study
that has been referred to as the “Baker Study” (published as Baker, J., et al. “Modeling and
Measurements of Ammonia from Poultry Operations: Their Emissions, Transport, and
Deposition in the Chesapeake Bay,” Science of the Total Environment, 706:135290 (March
1, 2020) (https://pubmed.ncbi.nlm.nih.gov/31838459/)). Given the discussion of this study
in the briefs, it is worth addressing here.
Although the Baker Study was submitted as part of the circuit court record as an
exhibit to Assateague’s memorandum of law, it was not included in the Department’s
administrative record. Rather, a draft of that study was referenced in footnote 45 of the
written public comment submission by Assateague and other organizations. The Baker
Study was officially published on March 1, 2020—after the Department issued its Final
Determination. The Department has not challenged Assateague’s inclusion of the Baker
Study as part of the judicial record in this case, 50 instead choosing to address the merits of
the Study.
50
In undertaking our review of this permit, we are mindful of the Legislature’s
directive that we confine our review of the administrative record. We also observe that,
under the Department’s regulations, any supporting materials that a member of the public
wishes the Department to consider must be “included in full and may not be incorporated by
reference, unless they are already part of the administrative record in the same proceeding or
91
The Baker Study modeled ammonia emissions from poultry houses on the Eastern
Shore and concluded that approximately 40% of those emissions were redeposited within
1.5 miles of the source, and approximately 70% were redeposited within 31 miles. Id. at
23–24. The Department states that, although “[t]he Baker Study is an important
contribution to the body of scientific knowledge about air emissions from poultry houses,
[] its findings are abstract and theoretical, as the study itself acknowledges.” For example,
the Department points out that the authors of the study acknowledge that the dispersion
model does not allow for land use to be considered as part of their analysis. Id. at 29.
Without land use data, the study was not able to model the extent to which ammonia
emissions actually make it into waterways because, as the study acknowledges,
“[u]nfortunately, determining the deposition to rivers, streams and tributaries would be
very difficult without land-use satellite data.” Id. at 24. The study also notes that the lack
of site-specific data about the proximity of dense forests and other vegetation is also an
“important consideration,” as those features tend to be “near rivers and waterbodies” and
thus “will likely limit direct deposition to the Bay by taking up ammonia that would
otherwise deposit to the water surface.” Id. at 29. And, the Department asserts, most
relevant here, the study acknowledges that one of its “important assumption[s]” was that
“no waste management practices or environmental technologies are used to mitigate
ammonia emissions throughout the modeling domain[,]” and that, specifically, the “use of
consist of State or federal statutes and regulations, EPA documents of general applicability
or other generally available reference materials.” COMAR 26.08.04.08I(4). Because the
Department has chosen to discuss the merits of the study, we shall do so as well.
92
[the BMP] of using aluminum sulfate in the poultry houses for reducing ammonia
emissions was not accounted for.” Id. at 8, 29. In other words, the study recognizes that
its modeling assumptions do not take into account any of the site-specific land uses
surrounding a particular operation, or the very BMPs that are recognized in the NRCS
National Planning and Procedures Handbook.
The Department states that the Baker Study is “an important piece of the scientific
record” and “supports the conclusion that ammonia emissions from poultry CAFOs are
cause for legitimate regulatory concern.” The Department’s view, however, is that the
Baker Study “does not compel the conclusion” that the site-specific approach that the
Department has chosen “is arbitrary, capricious, or unsuited to addressing CAFO air
emissions.” The Department explains that “science and common sense alike suggest that
site-specific factors—distance to a particular waterway, topography, surrounding land use,
vegetative cover, flock size, and fan size and direction—will determine whether gaseous
emissions from a particular CAFO are likely to result in a discharge to waters of the State.”
The Department defends its permit structure by pointing out that the Baker Study
itself reflects, and the record here makes clear, “that the generation and subsequent
deposition of ammonia emissions is subject to considerable variability and is most
accurately evaluated site by site.” The Department states that it has reasonably determined
that a site-specific analysis will help evaluate the extent to which a facility’s air emissions
raise resource concerns and identify appropriate BMPs to address those concerns. The
Department asserts that, rather than implementing a “one-size-fits-all approach,” the 2019
General Permit “requires the licensed nutrient management plan-writer to determine
93
whether outdoor air emissions present a resource concern based on site-specific
considerations, and requires the implementation of appropriate NRCS standards to address
that concern where it exists.”
We determine that it was within the Department’s discretion to require each AFO
to be assessed individually to evaluate ammonia emissions and to require appropriately
tailored BMPs to control these emissions where they present a real risk of discharge. As
this decision falls within the discretion afforded to the Department by the Legislature, we
will not substitute our judgment for that of the agency. See Carroll County 465 Md. at
202; Anacostia Riverkeeper, 447 Md. at 120. Because the Department acted reasonably in
implementing a site-specific approach to regulating outdoor air emissions, we conclude
that the Department’s decision was not arbitrary and capricious.
Finally, with respect to Assateague’s argument that the permit is insufficient
because the framework leaves unfettered discretion with the AFO owner or operator to
adopt BMPs to address ammonia emissions, we disagree. As the Department explains, its
regulations and permit conditions specifically require that a prospective permittee submit
a Required Plan prepared by a certified planner prior to the approval of permit coverage.
The Plans are subject to the public review and comment process. Moreover, unlike the
statutory provisions that prohibit contested case review for general water pollution control
permits, the regulations governing Required Plan approval provide aggrieved persons with
a right to a contested case review. Under some of the newly added terms in the 2019
General Permit, the certified plan writer is required to identify all specific resource
concerns at the particular AFO as part of the Plan’s submission, and the Plan is also
94
required to identify the distance to and name of the nearest waterway as well as the water
quality status of the watershed. 2019 General Permit, Part III.B.5. If an aggrieved person
believes that the Required Plan is insufficient and does not comply with the State’s water
quality standards, it may be challenged through the appropriate administrative proceeding.
IV.
CONCLUSION
For the reasons set forth above, we hold:
1. The Department’s AFO general discharge permit framework—which
addresses water quality standards by requiring technology based effluent limitations in the
form of best management practices that are prepared for a particular facility based upon
site-specific conditions, while retaining discretion in the Department to impose additional
water quality controls where they are necessary to protect and maintain water quality
standards of a particular waterway—is reasonable, and is consistent with federal and state
law.
2. There is substantial evidence in the record to reflect that the Department not
only acknowledges its authority to regulate ammonia emissions and air deposition through
the 2019 General Permit, but that it, in fact, has exercised this authority by requiring best
management practices to address ammonia emissions where they are determined to be a
resource concern. The Department’s decision to evaluate each AFO individually and to
require appropriately tailored best management practices to control these emissions where
they present a real risk of discharge, is reasonable and falls within the discretion afforded
95
to the Department by the Legislature under Maryland’s water pollution control law. We
will not substitute our judgment for that of the agency.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY IS
REVERSED. COSTS TO BE PAID BY THE
APPELLEE.
96
Circuit Court for Montgomery County
Case No. 482915-V
Argued: November 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
No. 11
September Term, 2022
______________________________________
MARYLAND DEPARTMENT OF THE
ENVIRONMENT
v.
ASSATEAGUE COASTAL TRUST
______________________________________
Fader, C.J.
Watts
Hotten
Booth
Biran
Gould
Eaves,
JJ.
______________________________________
Dissenting Opinion by Watts, J.
______________________________________
Filed: August 9, 2023
*At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022.
Respectfully, I dissent.
Under the heading “Environmental Justice”1 in a letter to the Maryland Department
of the Environment (“the Department”), that is part of the record, several advocacy
organizations—including the Assateague Coastal Trust (“Assateague”)—expressed their
concern that the draft of the 2019 General Discharge Permit for animal feeding operations
(“AFOs”)2 issued by the Department was “a clear example of a state program or policy
1
Special Environmental Concerns—an August 2011 publication by the Natural
Resources Conservation Service of the United States Department of Agriculture, which
was included in the November 2014 version of the National Planning Procedures
Handbook, which is part of the record—states that “environmental justice require[s] that
populations . . . are not affected in a disproportionately high and adverse manner by
government programs and activities affecting human health or the environment.”
Unfortunately, “[d]isproportionate exposure to environmental harms in communities of
color and low-income communities has been well documented in Maryland.” Aman
Azhar, Center: Most Maryland state agencies get Ds and Fs on environmental justice
‘scorecard’, The Baltimore Banner (Oct. 14, 2022), https://www.thebaltimorebanner.com/
community/climate-environment/report-most-maryland-state-agencies-get-ds-and-fs-on-
environmental-justice-scorecard-JTJCPB6DRVFWBMNSCCRNZIDD2U/
[https://perma.cc/J9CQ-MGB7].
2
An animal feeding operation, or AFO, is
a lot or facility (other than an aquatic animal production facility) where the
following conditions are met: (i) Animals (other than aquatic animals) have
been, are, or will be stabled or confined and fed or maintained for a total of
45 days or more in any 12–month period, and (ii) Crops, vegetation, forage
growth, or post-harvest residues are not sustained in the normal growing
season over any portion of the lot or facility.
40 C.F.R. § 122.23(b)(1) (paragraph breaks omitted). Under 40 C.F.R. § 122.23(b)(2), a
concentrated animal feeding operation, or CAFO, is an animal feeding operation that meets
the definition of “Large CAFO” in 40 C.F.R. § 122.23(b)(4), meets the definition of
“Medium CAFO” in 40 C.F.R. § 122.23(b)(6), or is designated as a concentrated animal
feeding operation under 40 C.F.R. § 122.23(c), which states in pertinent part that “[t]he
appropriate authority . . . may designate any AFO as a CAFO upon determining that it is a
significant contributor of pollutants to waters of the United States.” Under Code of
with the potential to impose disproportionate negative environmental consequences[.]”
The organizations observed that “[m]any of the lowest income areas of the state are found
in the counties with the greatest concentration of [animal feeding operations]” and that
“several of the dominant poultry producing counties also have among the highest
percentages of minority populations in Maryland.” (Footnote omitted). According to the
organizations, “[t]he enormous quantities of pollution that emanate[] from [animal feeding
operations] pose[] substantial public health risks, including from . . . emissions of
unregulated ammonia[.3]”
Upon receipt of the letter, the Department expressly declined to make any changes
to the part of the draft general discharge permit that purported to address ammonia
emissions. Some of the events that gave rise to the advocacy organizations’ concerns about
ammonia emissions are described in, among other sources, the advocacy organizations’
December 26, 2019 letter to the Department regarding “Comments on Draft General
Discharge Permit for Animal Feeding Operations” and the Department’s “Response to
Public Comments Regarding General Discharge Permit for Animal Feeding Operations”
dated July 8, 2020 as follows. Every year, animal feeding operations in Maryland produce
Maryland Regulations (“COMAR”) 26.08.01.01B(42-1), a Maryland animal feeding
operation, or MAFO, is an animal feeding operation that is not a concentrated animal
feeding operation and that either meets the definition of “large AFO” in COMAR
26.08.03.09A or is designated as a Maryland animal feeding operation under COMAR
26.08.03.09C(2), which states that “[t]he Department may designate as a MAFO a small
or medium AFO if the Department determines that the type or location of animal waste
storage or animal access to surface water is likely to cause a discharge of pollutants to
ground or surface waters of this State.”
-2-
hundreds of millions of chickens—and tens of millions of pounds of poultry waste.
Through a process called volatilization, poultry waste emits ammonia into the air.
Ammonia then leaves poultry houses—often while being propelled by industrial exhaust
fans—and may present a risk to the environment. Ammonia can pollute the Chesapeake
Bay by landing on the bay or one of its many tributaries. Ammonia contains nitrogen,
which causes nutrient pollution—which has been described as the main form of pollution
in the Chesapeake Bay. Nitrogen and phosphorus, another nutrient pollutant, make algae
grow, which pollutes the Bay by decreasing the amount of oxygen and increasing the
amount of toxins and bacteria. Polluted water can kill or contaminate fish and shellfish
and sicken people who drink it, otherwise come into contact with it, or eat contaminated
seafood.
After the Department issued its Notice of Final Determination to reissue the general
discharge permit, which did not contain provisions expressly limiting ammonia emissions,
Assateague petitioned for judicial review. The Circuit Court for Montgomery County
reversed, holding that, based on the plain language and legislative intent of the
Environment Article, the Department erred as a matter of law in reasoning that the water
pollution control statutes of Maryland do not apply to ammonia emissions. Specifically,
the circuit court stated that “[t]he clear intent to expand the [Clean Water Act]’s reach, and
the broadened definitions contained in the Environment Article, require the Department to
regulate ammonia as a water pollutant.” The circuit court concluded that ammonia is a
gaseous pollutant under Md. Code Ann., Env’t (1987, 2013 Repl. Vol.) (“EN”) § 9-101
and is subject to regulation by the Department under the Environment Article, that “CAFOs
-3-
and MAFOs in Maryland actively emit gaseous ammonia into the Bay designating them as
dischargers of pollutants[,]” and that regulating gaseous ammonia does not expand the
Clean Water Act. The Department appealed. While this case was pending in the Appellate
Court of Maryland, Assateague filed a petition for a writ of certiorari, which we granted.
Unlike the Majority, I would not reverse the judgment of the Circuit Court for
Montgomery County in its entirety. See Maj. Slip Op. at 95-96. Rather, I would remand
the case for the circuit court to address the question of whether substantial evidence
supports the conclusion that the Department, through the use of Best Management Practices
Subsection IV.D.2 of the discharge permit, has exercised its authority to regulate ammonia
emissions that impact water quality. In my view, the Department was required to regulate
ammonia emissions under the water pollution control statutes of Maryland but, unlike the
Majority, I do not agree that it is clear that the general permit does so. Simply put, I am
not convinced that the record demonstrates the general permit was intended to and does, in
fact, subject ammonia emissions that impact water quality to regulation.
Nutrient Pollution in the Chesapeake Bay Generally
According to the United States Environmental Protection Agency (“the EPA”),
“[n]utrient pollution is one of America’s most widespread, costly and challenging
environmental problems, and is caused by excess nitrogen and phosphorus in the air and
water.” EPA, Nutrient Pollution / The Issue (updated Aug. 11, 2022), https://www.epa.
gov/nutrientpollution/issue [https://perma.cc/VK3Q-FDZN]. The EPA acknowledges that
“[n]itrogen and phosphorus are nutrients that are natural parts of aquatic ecosystems” and
“support the growth of algae and aquatic plants, which provide food and habitat for fish,
-4-
shellfish and smaller organisms that live in water.” Id. The EPA points out, however, that
“[t]oo much nitrogen and phosphorus in the water causes algae to grow faster than
ecosystems can handle. Significant increases in algae harm water quality, food resources
and habitats, and decrease the oxygen that fish and other aquatic life need to survive.” Id.
According to the EPA, some large growths of algae, or algal blooms, “are harmful to
humans because they produce elevated toxins and bacterial growth that can make people
sick if they come into contact with polluted water, consume tainted fish or shellfish, or
drink contaminated water.” Id.
The EPA observes that “livestock operations[] are [] vulnerable to nutrient losses to
the air. Nitrogen can emanate from farm fields in the form of gaseous, nitrogen-based
compounds, like ammonia and nitrogen oxides. And, ammonia can be harmful to aquatic
life if large amounts are deposited from the atmosphere to surface waters.” EPA, Nutrient
Pollution / The Sources and Solutions: Agriculture (updated Nov. 4, 2021), https://www.
epa.gov/nutrientpollution/sources-and-solutions-agriculture [https://perma.cc/J9MZ-
LXXR].
Nutrients are the primary pollutants in the Chesapeake Bay. Nutrient pollution in
the form of nitrogen and phosphorus in the Chesapeake Bay is so significant that the Clean
Water Act expressly refers to it. Under the Clean Water Act, the Administrator of the EPA
“shall ensure that management plans are developed and implementation is begun by
signatories to the Chesapeake Bay Agreement[4] to achieve and maintain[] the nutrient
4
“The term ‘Chesapeake Bay Agreement’ means the formal, voluntary agreements
-5-
goals of the Chesapeake Bay Agreement for the quantity of nitrogen and phosphorus
entering the Chesapeake Bay and its watershed[.]” 33 U.S.C. § 1267(g)(1)(A). Another
provision of the Clean Water Act states that “[e]ach State shall establish for the waters
identified in paragraph (1)(A) of this subsection, and in accordance with the priority
ranking, the total maximum daily load, for those pollutants which the Administrator
identifies under section 1314(a)(2) of this title as suitable for such calculation.” 33 U.S.C.
§ 1313(d)(1)(C).
Consistent with these provisions of the Clean Water Act, in coordination with “the
seven jurisdictions in the Chesapeake Bay watershed (Delaware, District of Columbia,
Maryland, New York, Pennsylvania, Virginia, and West Virginia),” in 2009, the EPA
began developing—and, in 2010, the EPA issued—the Chesapeake Bay Total Maximum
Daily Load, or TMDL, which the EPA refers to as a “‘pollution diet’” and which sets forth,
among other things, “allocations for nitrogen, phosphorus, and sediment[.]” EPA,
Chesapeake Bay TMDL Executive Summary at 3, 1 (Dec. 29, 2010), https://www.
epa.gov/sites/default/files/2014-12/documents/bay_tmdl_executive_summary_final_12.2
9.10_final_1.pdf [https://perma.cc/F3JN-R4NF]; EPA, Chesapeake Bay TMDL / Section
9. Chesapeake Bay TMDLs at 1 (Dec. 29, 2010),
executed to achieve the goal of restoring and protecting the Chesapeake Bay ecosystem
and the living resources of the Chesapeake Bay ecosystem and signed by the Chesapeake
Executive Council.” 33 U.S.C. § 1267(a)(2). Today, the Chesapeake Executive Council
is comprised of the federal government, the Chesapeake Bay Commission, Delaware, the
District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia.
See Chesapeake Watershed Agreement at 18 (amended Jan. 24, 2020), https://
d18lev1ok5leia.cloudfront.net/chesapeakebay/documents/FINAL_Ches_Bay_Watershed
_Agreement.withsignatures-HIres.pdf [https://perma.cc/AX9M-KQBD].
-6-
https://www.epa.gov/sites/default/files/2014-12/documents/cbay_final_tmdl_section_9_
final_0.pdf [https://perma.cc/P8E4-XZNM]. The Chesapeake Bay Total Maximum Daily
Load “is designed to ensure that all pollution control measures needed to fully restore the
Bay and its tidal rivers are in place by 2025[.]” Chesapeake Bay TMDL Executive
Summary at 1.
Ammonia Pollution in the Chesapeake Bay
Maryland has a large poultry industry, and almost all of its operations are in the
Chesapeake Bay Watershed. In the above-mentioned letter to the Department, Assateague,
the Wicomico County Chapter of the NAACP, Chesapeake Legal Alliance, Environmental
Action Center, Environmental Integrity Project, and other advocacy organizations advised
that, according to the Delmarva Chicken Association, Inc.,5 in 2017, an estimated “306.7
million broilers[6] were raised in Maryland, producing 1.84 billion pounds of meat.” The
organizations observed that the vast majority of animal feeding operations in Maryland are
on the Eastern Shore. The organizations cited a 2015 report by the EPA indicating that
approximately 95% of animal feeding operations in Maryland are in the Chesapeake Bay
Watershed. See EPA, Maryland Animal Agriculture Program Assessment at 38 (Aug.
2015), https://www.epa.gov/sites/default/files/2015-09/documents/marylandanimala
5
The Delmarva Chicken Association, Inc. used to be named the Delmarva Poultry
Industry, Inc.
6
A broiler is “a bird fit for broiling[,] especially [] a chicken that is younger and
smaller than a roaster[.]” Broiler, Merriam-Webster, https://www.merriam-webster.com/
dictionary/broiler [https://perma.cc/YY3L-XLHB]. In turn, a roaster is “a bird fit for
roasting[,] especially [] a young chicken larger than a broiler[.]” Roaster, Merriam-
Webster, https://www.merriam-webster.com/dictionary/roaster [https://perma.cc/3JAL-
ETGE].
-7-
gricultureprogramassessment.pdf [https://perma.cc/24UR-T335].
Through a process called volatilization, poultry waste emits ammonia into the air.
According to the EPA, “[a]mmonia [] volatilization from poultry litter results in
accumulation of atmospheric [ammonia] in the poultry house, which is detrimental to
human and bird health and reduces poultry productivity.” EPA, Development Document
for the Final Revisions to the National Pollutant Discharge Elimination System Regulation
and the Effluent Guidelines for Concentrated Feeding Operations at 8-122 (Dec. 2002),
https://nepis.epa.gov/Exe/ZyPDF.cgi/20002UUV.PDF?Dockey=20002UUV.PDF
[https://perma.cc/JCV2-MNDQ]. In this context, “volatilization” means “pass[ing] off in
vapor[,]” and “litter” means both “material used as bedding for animals” and “material
used to absorb the urine and feces of animals[.]” Volatilize, Merriam-Webster (2023),
https://www.merriam-webster.com/dictionary/volatilize [https://perma.cc/SL5P-SUMG];
Litter, Merriam-Webster (2023), https://www.merriam-webster.com/dictionary/litter
[https://perma.cc/SFJ8-X6YH].
In a publication that is part of the record, the Environmental Integrity Project
pointed out that, even though “[a]mmonia, the pungent gas released from animal waste, is
responsible for a significant fraction of the nitrogen load to the Chesapeake Bay each
year[,]” the Chesapeake Bay Total Maximum Daily Load does not “include any limits on
ammonia emissions from agriculture, although EPA estimated emissions could be cut
about 30% at fairly low cost.” Abel Russ and Eric Schaeffer, Environmental Integrity
Project, Ammonia Emissions from Broiler Operations Higher than Previously Thought at
1, 4, (Dec. 2017), https://www.environmentalintegrity.org/wp-content/uploads/2017/12/
-8-
Ammonia-Emissions.pdf [https://perma.cc/7LVD-Q3XZ] (footnote omitted). The
Environmental Integrity Project observed that, “[i]nstead, EPA is counting on the [nitrogen
oxide] reductions driven by Clean Air Act rules to keep the airborne nitrogen load low
enough to meet cleanup goals by 2025. That scenario will be undermined if ammonia
emissions prove to be higher than EPA expects.” Id. at 4.
The Environmental Integrity Project contended that this is the case—i.e., that, when
developing the Chesapeake Bay Total Maximum Daily Load, the EPA underestimated
ammonia emissions from agriculture. See id. at 1. The Environmental Integrity Project
pointed out that “[t]he largest source of ammonia emissions is livestock waste, and a large
component of that source category comes from the factory farms that produce broiler[]s.”
Id. The Environmental Integrity Project also noted that, based on data from European
broiler animal feeding operations, the EPA assumed that broilers emit 0.27 grams of
ammonia per bird per day and approximately 20,000 tons of ammonia into the Chesapeake
Bay per year. See id. at 1-2. The Environmental Integrity Project argued that it was
improper for the EPA to rely on data from European broiler animal feeding operations
because American ones raise larger birds, reuse litter much more often, and operate in a
warmer climate. See id. at 1-2. The Environmental Integrity Project stated that, based on
a survey of literature concerning American broiler animal feeding operations, their
ammonia emissions were double what the EPA assumed—i.e., broilers emit 0.54 grams of
ammonia per bird per day and approximately 40,000 tons into the Chesapeake Bay per
year. See id. at 2.
Even the Environmental Integrity Project’s numbers could be underestimates of the
-9-
amount of ammonia that animal feeding operations emit into the Chesapeake Bay. In their
letter to the Department, Assateague and other advocacy organizations cited a report by the
Maryland Department of Natural Resources indicating that “[e]stimates of emissions
factors are relatively consistent in Delmarva and range from 0.47 grams of ammonia per
bird per day . . . to 0.98” grams of ammonia per bird per day. See Md. Dep’t of Natural
Resources, Broiler Industry Ammonia Emissions in the Chesapeake Bay Watershed at 6
(June 2010), https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/
013000/013066/unrestricted/20100942e.pdf [https://perma.cc/J5S6-VXPN]. The same
range of numbers appears in a study that is part of the record concerning broiler animal
feeding operations in Pennsylvania and Kentucky. See Eileen F. Wheeler, Kenneth D.
Casey, Richard S. Gates, Hongwei Xin, Jennifer L. Zajaczkowski, Patrick A. Topper, Yi
Liang, and Anthony J. Pescatore, Ammonia emissions from twelve US broiler chicken
houses, Transactions of the ASABE,7 Vol. 49(5), at 1510 (Aug. 2006),
https://dr.lib.iastate.edu/server/api/core/bitstreams/c349d3ef-5998-44ca-8470-
a72cffee3147/content [https://perma.cc/3J3G-K3MQ].8
7
“ASABE” stands for the American Society of Agricultural and Biological
Engineers. See American Society of Agricultural and Biological Engineers, About Us,
https://www.asabe.org/About-Us [https://perma.cc/7HPM-XVAZ].
8
Similarly, according to a scientific journal article that is included in the record,
estimates of emission factors range from 0.035 kilograms of ammonia per bird per year
(i.e., 0.1 grams of ammonia per bird per day) to 0.789 kilograms of ammonia per bird per
year (i.e., 2.16 grams of ammonia per bird per day). See Jordan Baker, William H. Battye,
Wayne Robarge, S. Pal Arya, and Viney P. Aneja, Modeling and Measurements of
Ammonia from Poultry Operations: Their Emissions, Transport, and Deposition in the
Chesapeake Bay, Science of the Total Environment, Vol. 706 (March 1, 2020),
https://www.sciencedirect.com/science/article/abs/pii/S0048969719352829
- 10 -
This Case
Tentative Determination and Public Hearings
On September 4, 2019, the Department issued a “Tentative Determination to Re-
Issue Permit” (“the Tentative Determination”) as to the “General Discharge Permit for
Animal Feeding Operations[,]” as well as a “Fact Sheet Supplement” as to the Tentative
Determination. Neither the Tentative Determination nor the Fact Sheet Supplement
mentioned ammonia emissions.
On October 15 and 21, 2019, the Department conducted public hearings on the
Tentative Determination. During the October 21, 2019 public hearing, a resident of Berlin
stated that any new concentrated animal feeding operation “whose design does not prevent
the discharge of ammonia or particulate matter into the surrounding air should not be
permitted within three kilometers of the surrounding waterways. This would avoid any
direct contamination of the waterways.” Additionally, a resident of Princess Anne stated
that she could “see particulate matter falling” when she used a flashlight at night and that
the Department needed to “address[] ammonia depositions in surface waters because it
goes up in the air from the exhaust fans and it comes down via rain or particulate matter
that’s falling on the ground and in the water.”
[https://perma.cc/3D6U-Y6BH] (“Modeling and Measurements of Ammonia from Poultry
Operations”). The article estimated that approximately 40% of ammonia emissions from
chickens are deposited within 2.5 kilometers (i.e., approximately 1.6 miles) of the animal
feeding operation and that approximately 70% of ammonia emissions from chickens are
deposited within 50 kilometers (i.e., approximately 31 miles) of the animal feeding
operation. See id.- 11 -
Draft Permit and Conservation Practice Standards
On December 1, 2019, the Department issued a draft of a General Discharge Permit
for Animal Feeding Operations (“the draft Permit”). Best Management Practices
Subsection IV.D.2 of the draft Permit stated: “For poultry: If outdoor air quality is
determined to be a resource concern, use appropriate [Natural Resources Conservation
Service] Practice Standards to address the concern.” (Emphasis added). According to the
Department’s brief in this Court, “[a] ‘resource concern’ is a term of art, defined in the
[Natural Resources Conservation Service] National Planning Procedures Handbook, Title
180, § 600.2(120), as ‘an expected degradation of the soil, water, air, plant, or animal
resource base to the extent that the sustainability or intended use of the resource is
impaired.’” (Citation omitted).9
9
The most recent version of the National Planning Procedures Handbook does not
mention ammonia. The November 2014 version of that handbook, which is part of the
record, mentions ammonia on only two pages and simply observes that ammonia is a
pollutant that can be in the form of particulate matter in the air and that “reducing emissions
of directly-emitted particulate matter, [nitrogen oxide], ammonia, and [volatile organic
compound]s from agricultural sources will help to mitigate agriculture’s contribution to
concentrations of particulate matter and ozone in the ambient air.” Natural Resources
Conservation Service, National Planning Procedures Handbook (amended Nov. 2014),
https://directives.sc.egov.usda.gov/OpenNonWebContent.aspx?content=36483.wba
[https://perma.cc/BX4X-J386]. The record contains a provision that was in the March
2003 version of the National Planning Procedures Handbook, but not in the current version
or the November 2014 version—namely, Section 600.54 (“Element Criteria for
[Comprehensive Nutrient Management Plan] Development”) (a) (Manure and Wastewater
Handling and Storage) (2) (Considerations for Manure and Wastewater Handling and
Storage) (i) (Air Quality), which addressed ammonia emissions and related matters as
follows:
During the [Comprehensive Nutrient Management Plan] development
process, [animal feeding operation] operators and/or owners need to consider
- 12 -
The Natural Resources Conservation Service has issued several Conservation
Practice Standards that may be used once a resource concern is identified, three of which
are relevant here because the Department expressly referred to them in the decision at
issue.10 See Natural Resources Conservation Service, Conservation Practice Standards,
https://www.nrcs.usda.gov/resources/guides-and-instructions/conservation-practice-
standards [https://perma.cc/UA7Y-6BES]. The first relevant Conservation Practice
Standard is the one concerning “Amendments for Treatment of Agricultural Waste[,]”
which it defines as “[t]he addition of chemical or biological additives to manure, process
wastewater,[11] contaminated storm water runoff, or other wastes to reduce adverse effects
the impact of selected conservation practices on air quality. Air quality in
and around structures, waste storage areas, and treatment sites may be
impaired by excessive dust, gaseous emissions, and odors. Poor air quality
may affect the health of workers, animals, and persons living in the
surrounding areas. Ammonia emissions from animal operations may be
deposited to surface waters, increasing the nutrient load. Proper siting of
structures and waste storage facilities can enhance dispersion and dilution of
odorous gases. Conservation buffers placed with regard to prevailing wind
patterns can intercept movement of some airborne pollutants. Enclosing
waste storage or treatment facility can reduce gaseous emissions from
[animal feeding operation]s in areas with residential development.
Natural Resources Conservation Service, National Planning Procedures Handbook §
600.54(a)(2)(i) (amended Mar. 2003), https://nutrientmanagement.tamu.edu/content/
resources/nrcs_handbook.pdf [https://perma.cc/QRP2-NAB5].
10
Although these three Conservation Practice Standards are critical to understanding
the Department’s reasoning, the record extract includes only a copy of an outdated version
of one and lacks a copy of either of the others. To give context to the Department’s decision
and to avoid confusion, I will provide the current versions of the three Conservation
Practice Standards at issue.
11
The draft Permit defined “Process wastewater” in pertinent part as
water directly or indirectly used in the operation of the [animal feeding
- 13 -
on air and/or water.” Natural Resources Conservation Service, Conservation Practice
Standard / Amendments for Treatment of Agricultural Waste at 1 (Sept. 2020),
https://www.nrcs.usda.gov/sites/default/files/2022-09/Amendments_Treatment_Agricultu
ral_Waste_591_CPS_9_2020.pdf [https://perma.cc/V2QP-523P]. This Conservation
Practice Standard states that it “applies where the use of a chemical or biological
amendment is needed to alter the physical and chemical characteristics of the waste stream
as a part of a planned manure or waste management system.” Id. The Conservation
Practice Standard sets forth criteria for the labeling and instructions for use of, validation
of products used as, expected performance of, handling and storage of, and byproducts of,
amendments for treatment of agricultural waste. See id. at 1-2.
The Conservation Practice Standard states that “[t]he use of amendments to reduce
ammonia and other emissions from manure in confined spaces may allow altered
ventilation strategies at an appreciable energy savings.” Id. at 2. The Conservation
Practice Standard acknowledges, however, that “[t]he use of an amendment to reduce
ammonia emissions from manure may result in a higher nitrogen content in the manure.
Nutrient management plans may need to be revised to account for the decreased loss of
nitrogen in the manure.” Id.
The second relevant Conservation Practice Standard is the one concerning
“Hedgerow Planting[,]” which it defines as the “[e]stablishment of dense vegetation in a
operation] for any or all of the following: spillage or overflow from animal
or poultry watering systems; washing, cleaning, or flushing pens, barns,
manure pits, or other [animal feeding operation] facilities; direct contact
swimming, washing, or spray cooling of animals; or dust control.
- 14 -
linear design to achieve a natural resource conservation purpose.” Natural Resources
Conservation Service, Conservation Practice Standard / Hedgerow Planting at 1 (Sept.
2010), https://www.nrcs.usda.gov/sites/default/files/2022-09/Hedgerow_Planting_422_C
PS.pdf [https://perma.cc/CVF9-VWZ8]. This Conservation Practice Standard states that
hedgerows can “intercept airborne particulate matter” and that “[w]ater quality benefits
may arise from[ i]nfiltration and assimilation of plant nutrients.” Id. at 1, 3. The
Conservation Practice Standard sets forth several criteria, including that “[h]edgerows shall
be established using woody plants or perennial bunch grasses producing erect stems
attaining average heights of at least 3 feet persisting over winter.” Id. at 1.
The third relevant Conservation Practice Standard is the one as to “Windbreak-
Shelterbelt Establishment and Renovation[,]” which it defines as “[e]stablishing,
enhancing, or renovating windbreaks, also known as shelterbelts, which are single or
multiple rows of trees and/or shrubs in linear or curvilinear configurations.” Natural
Resources Conservation Service, Conservation Practice Standard / Windbreak-Shelterbelt
Establishment and Renovation at 1 (July 2021), https://www.nrcs.usda.gov/sites/default
/files/2022-10/Windbreak-Shelterbelt_Establishment_380_NHCP_CPS_2021.pdf
[https://perma.cc/S6AW-ZKPD]. This Conservation Practice Standard states that
windbreaks and shelterbelts can “[i]mprove air quality by intercepting airborne particulate
matter, chemicals, and odors, and/or by reducing airflow across contaminant or dust
sources[.]” Id. The Conservation Practice Standard states: “On all lands except forest land,
apply this practice to establish, enhance, or renovate windbreaks where rows of woody
plants are desired and suited for the intended purposes.” Id.
- 15 -
Public Comments on the Draft Permit
In a letter to the Department dated December 26, 2019, the Executive Directors of
the Environmental Action Center and the Chesapeake Legal Alliance stated that they were
commenting on the draft Permit on behalf of both of their advocacy organizations, as well
as Assateague, the Wicomico County Chapter of the NAACP, the Center for Progressive
Reform, the Environmental Integrity Project, the Maryland League of Conservation
Voters, Concerned Citizens Against Industrial CAFOs, Waterkeepers Chesapeake, and the
Protectors of the St. Martin River. The organizations requested that the Department revise
the draft Permit to “account[] for and mitigate[] the enormous amounts of ammonia
produced from each poultry house and manure storage shed.” The organizations advised
that animal feeding operations on the Eastern Shore add millions of tons of ammonia to the
air every year and that much of that ammonia is deposited into the Chesapeake Bay and its
tributaries.
The organizations pointed out that Subsection IV.D.2 of the draft Permit stated that
Conservation Practice Standards were to be used “[i]f outdoor air quality is determined to
be a resource concern[.]” The organizations also pointed out that “the framework for
determining whether or not something is a resource concern is left up to the owner or
operator of the regulated [animal feeding operation].” The organizations contended that,
as such, there were “no pollution limits or standards in the draft permit capable of
protecting waters of the State, [animal feeding operation] workers, or downwind
communities from the massive amount of ammonia emitted by large poultry [animal
feeding operations.]”
- 16 -
In another letter to the Department, dated December 26, 2019, the Maryland
Executive Director of the Chesapeake Bay Foundation requested that the Department
revise the draft Permit to “require additional mandatory site-specific terms for [animal
feeding operations] to adequately control ammonia emissions and resulting nitrogen
deposition to ensure that permitted [animal feeding operations] are able to comply with all
applicable water quality standards and the General Permit’s zero-discharge standard.” The
Chesapeake Bay Foundation stated “that ammonia emissions from growing poultry [animal
feeding operations] throughout the Delmarva peninsula are more than just a neighborhood
nuisance.” The Chesapeake Bay Foundation asserted that ammonia “emissions
cumulatively present an unquantified load of air deposition of nitrogen to the Bay” and “an
unpermitted discharge in violation of the Clean Water Act and the General Permit’s zero-
discharge standard.” (Footnote omitted).
The Chesapeake Bay Foundation acknowledged that the Department had indicated
that certain animal feeding operations needed to implement the Conservation Practice
Standard as to “Amendments for Treatment of Agricultural Waste[.]” The Chesapeake Bay
Foundation pointed out, however, that only some of the Concentrated Animal Feeding
Operation Comprehensive Nutrient Management Plans12 included even one best
management practice, whereas other such plans included “no practices to address ammonia
12
A Comprehensive Nutrient Management Plan, or CNMP, is “a conservation plan
that is specifically for an” animal feeding operation and that “identifies conservation
practices and management activities that, when implemented as part of a conservation
system, will manage sufficient quantities of manure, waste water, or organic by-products
associated with a waste management facility.” 7 C.F.R. § 1466.3.
- 17 -
emissions.”
The Department’s Final Determination, Permit, and Response to Public Comments
On July 8, 2020, the Department issued a “General Discharge Permit for Animal
Feeding Operations” (“the Permit”), a “Notice of Final Determination” as to the Permit, a
“Fact Sheet Supplement” as to the Permit, and a “Response to Public Comments Regarding
[the Permit.]” Subsection 1 of Section M, titled “Individual or General Permit Coverage,
Termination, and Closure[,]” within Part VII titled “General Conditions” of the Permit,
stated that “[e]ach [Maryland animal feeding operation] and [concentrated animal feeding
operation] shall be registered either under this General Discharge Permit or an individual,
site-specific discharge permit.” The Fact Sheet Supplement stated that “[e]ach permittee
must develop, submit with its [notice of intent], and implement a site-specific Required
Plan” and that the Department would “use the Required Plan to identify site-specific permit
terms and conditions. The enforceable terms and conditions of the Required Plan are
incorporated by reference into the [] Permit.” (Citation omitted).
The Permit defined “Required Plan(s)” as the plans that concentrated animal
feeding operation and Maryland animal feeding operation “applicants are required to
submit to the Department. . . . These Plans include, but are not limited to, [Comprehensive
Nutrient Management Plans] and [Nutrient Management Plans] and any other plans
deemed necessary to perform a proper review of the application by the Department.”
The Permit was substantively identical to the draft Permit with respect to
- 18 -
ammonia.13 In the Permit, as in the draft Permit, the only mention of ammonia was in the
label of Best Management Practices Subsection IV.D.2 (“Reduction of ammonia, dust, and
feathers”) in the table of contents. Subsection IV.D.2 of the Permit was identical to that
subsection of the draft Permit, stating: “For poultry: If outdoor air quality is determined
to be a resource concern, use appropriate [Natural Resources Conservation Service]
Practice Standards to address the concern.” (Emphasis added).14 Neither the Notice of
13
To be sure, as the Majority notes, the Department added limited new language
indicating that “the certified plan writer is required to identify all specific resource concerns
at the particular AFO as part of the Plan’s submission, and the Plan is also required to
identify the distance to and name of the nearest waterway as well as the water quality status
of the watershed.” Maj. Slip. Op. at 94-95 (citation omitted). This language imposes no
new substantive requirements under Best Management Practices Subsection IV.D.2. In
other words, this additional language does not require that a plan writer or animal feeding
operation owner take any action other than to “identify” resources concerns (which
ostensibly the plan writer was already required to do under the best management practices)
and nearest waterways as well as water quality status. The new language does not impose
any requirements for any further action whatsoever.
14
Subsection IV.D.1 of the Permit stated: “Odors: The facility shall be operated at
all times to minimize nuisance odors associated with process wastewater treatment and
storage operations from escaping the facility boundaries.” Subsection IV.D.3 of the Permit
stated:
Additional Best Management Practices for Organic Poultry Operations:
a) The [Comprehensive Nutrient Management Plan] and [Nutrient
Management Plan] for an organic poultry [concentrated animal
feeding operation] or [Maryland animal feeding operation] shall
account for the uncollected manure that is deposited in the Poultry
Pasture to assure that the vegetation on the Poultry Pasture is adequate
to assimilate the manure nutrients deposited.
b) The [Comprehensive Nutrient Management Plan] and [Nutrient
Management Plan] shall describe how the Poultry Pasture will be
operated to ensure that there is no discharge of manure, litter, or
process wastewater from the Poultry Pasture into surface waters of the
State.
- 19 -
Final Determination nor the Fact Sheet Supplement mentioned ammonia.
Consistent with the letter submitted to the Department on behalf of Assateague and
other advocacy organizations, as well as the letter to the Department on behalf of the
Chesapeake Bay Foundation, one of the Department’s summaries of public comments
stated that the Permit would “not adequately address air pollution (particulate
matter/ammonia depositions) from poultry house exhaust fans and manure sheds that are
deposited in the air and make their way to surface waters causing health and water quality
impairments.” In one of its responses to the public comments received, the Department
reasoned that it was not necessary to revise the draft Permit to address the advocacy
organizations’ concerns about ammonia pollution because the draft Permit incorporated
best management practices “to sufficiently minimize [animal farming operation] ammonia
emissions from poultry houses[.]” The Department concluded that “[a]mmonia
emissions/ammonia deposition have been considered and addressed to the extent
permissible under the Clean Water Act and the state’s water pollution control law and
implementing regulations with the requirement of several” Conservation Practice
Standards.
The Department stated that, under Subsection IV.D.2 of the Permit, animal feeding
operations would be required to implement best management practices to “address any air
quality resource concerns using appropriate” Conservation Practice Standards. The
Department stated that the Conservation Practice Standard concerning “Amendments for
Treatment of Agricultural Waste” “is used in poultry houses to reduce the potential for
high ammonia emissions” and is “applied to [] litter prior to bird placement to reduce
- 20 -
potential high levels of ammonia, suppress ammonia volatilization from litter and reduce
emissions from the poultry facilities.” The Department stated that the Conservation
Practice Standards concerning “Hedgerow Planting” and “Windbreak-Shelterbelt
Establishment and Renovation” could also “provide ammonia reduction[.]”
Proceedings in the Circuit Court
Assateague petitioned for judicial review of the Final Determination. Afterward,
the parties filed memoranda. In its memorandum, the Department stated that Assateague
contended that the Permit was “legally deficient because it does not place controls on the
gaseous emissions of pollutants from [concentrated animal feeding operations], including
ammonia, that might later be deposited into state waters from the atmosphere.” (Citation
omitted). The Department argued that “[t]he simple reason for this omission is that
regulating air emissions through a water discharge permit is outside the scope of both the
[Clean Water] Act and Maryland’s water pollution control statutes.” (Footnote omitted).
On January 26, 2021, the circuit court conducted a hearing.
On March 11, 2021, the circuit court issued an order reversing the Final
Determination and remanding the Permit to the Department “to mandate effluent
limitations for ammonia and other water quality based effluent limitations.” On the same
date, the circuit court issued a memorandum opinion holding that, based on the plain
language and legislative intent of the Environment Article, the Department erred as a
matter of law in reasoning that the water pollution control statutes of Maryland do not apply
to ammonia emissions.
The circuit court concluded that ammonia meets the definition of “pollutant” in EN
- 21 -
§ 9-101(g) because ammonia is a gaseous substance that contains nitrogen and is emitted
from poultry waste through volatilization. The circuit court determined that excluding
ammonia from the definition of “pollutant” in EN § 9-101(g) would be a nonsensical
construction that would greatly inhibit the Department’s ability to protect the Chesapeake
Bay. The circuit court also concluded that animal feeding operations’ actions with regard
to ammonia meet the definition of “discharge” in EN § 9-101(b) because animal feeding
operations use industrial exhaust fans to emit ammonia onto the waters of this State.
The circuit court disagreed with the Department’s contention that the circuit court’s
holding would require the Department to regulate all forms of water pollution that originate
from the air—i.e., to issue water discharge “permits for things as varied as ‘cars and
chimneys.’” (Quoting Chem. Weapons Working Grp., Inc. (CWWG) v. U.S. Dep’t of the
Army, 111 F.3d 1485, 1490 (10th Cir. 1997)). The circuit court concluded that its holding
would not expand the Department’s responsibility to issue water discharge permits beyond
what the water pollution control statutes of Maryland prescribe because the record reflects
that animal feeding operations’ discharges of ammonia are specific, calculable events that
the Department must regulate to fulfill its responsibility to administer those statutes. In
other words, the circuit court determined that the Department’s position was at odds with
“[t]he concrete and measurable nature of the pollution in this case[.]” The circuit court
stated that it would not address Assateague’s contention that substantial evidence did not
support the Department’s decision. On April 12, 2021, the Department noted an appeal.
Petition for a Writ of Certiorari and Motions for Leave to File New Briefs
While this case was pending in the Appellate Court, Assateague petitioned for a writ
- 22 -
of certiorari, raising the following two issues:
1. Whether the Maryland Department of the Environment (“MDE”) erred in
issuing a General Discharge Permit for Animal Feeding Operations without
including controls for ammonia emissions, when Maryland water pollution
control laws unambiguously require regulation of ammonia emissions?
2. Whether the Clean Water Act and the more stringent Maryland Water
Pollution Control laws require water discharge limitations that take into
account impaired receiving waters (i.e. water quality-based effluent
limitations) where effluent limitations based solely on minimum levels of
treatment achieved by technology are ineffective?
The Department filed an answer to the petition and a conditional motion for leave to file a
new principal brief, stating that it did not oppose the grant of the petition. Assateague filed
a motion for leave to file a new brief.15 On June 3, 2022, this Court granted the petition
and the motions. See Md. Dep’t of the Env’t v. Assateague Coastal Tr., 479 Md. 63, 276
A.3d 610 (2022).
Standard of Review
Md. Code Ann., State Gov’t (1984, 2021 Repl. Vol.) § 10-222(h)(3) generally
concerns judicial review of a decision by an administrative agency, stating in pertinent part
that a court may reverse such a decision where “any substantial right of the petitioner may
have been prejudiced because a finding, conclusion, or decision: . . . (iv) is affected by any
[] error of law; (v) is unsupported by competent, material, and substantial evidence in light
of the entire record as submitted; . . . or (vii) is arbitrary or capricious.” (Paragraph breaks
15
When each party filed a motion to file a new brief in this Court, it had already filed
a brief in the Appellate Court.
- 23 -
omitted).16
Clean Water Act and Federal Regulations
In Md. Dep’t of Env’t v. Anacostia Riverkeeper, 447 Md. 88, 96, 134 A.3d 892,
896-97 (2016), we described the National Pollution Discharge Elimination System
established by the Clean Water Act as follows:
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”), 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). [The Department] 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 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, 124 S.Ct. 1537, 158 L.Ed.2d
264 (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.
(Footnote omitted).
In Md. Dep’t of the Env’t v. Cnty. Comm’rs of Carroll County, 465 Md. 169, 186-
88, 214 A.3d 61, 71-72 (2019), we described the requirements under the Clean Water Act
16
EN § 1-601(d)(1) specifically concerns judicial review of a decision by the
Department to issue a general discharge permit, stating in pertinent part that “[j]udicial
review shall be on the administrative record before the Department and limited to
objections raised during the public comment period[.]”
- 24 -
as to water quality standards, technology-based effluent limitations, and water quality-
based effluent limitations as follows:
Under the Act, “water quality standards” are the benchmark for clean
water. For each water body covered by the Act, states submit water quality
standards to the EPA for review and approval. The standards are to be based
on the water body’s “designated use” (e.g., public water supply, fishing,
recreational use) and include criteria necessary to support that use (e.g.,
specific limits on certain pollutant concentrations). See 33 U.S.C. §
1313(c)(2)(A); 40 CFR §§ 130.3, 131.6; COMAR 26.08.02.01-.03.
To achieve water quality standards, the Act requires that discharge
permits include pollution controls for point sources. 33 U.S.C. § 1311(b).
The Act calls these controls “effluent limitations” – “effluent” being the
material discharged by a point source. Effluent limitations may be
“technology based” or “water quality based.” See EPA, NPDES Permit
Limits, https://perma.cc/L4G6-24K9; Natural Resources Defense Council v.
EPA, 808 F.3d 556, 563 (2d Cir. 2015).
Technology based effluent limitations are generally the first round of
controls in the effort to achieve water quality standards. See 33 U.S.C. §
1311(b)(1)(A). They “represent the minimum level of control that must be
imposed in a permit[.]” 40 CFR § 125.3(a). But even the most stringent
technology based effluent limitations have not achieved water quality
standards in thousands of the nation’s waterways. Congress anticipated this
possibility in 1972 by retaining water quality standards “as a supplementary
basis for effluent limitations ... so that numerous point sources, despite
individual compliance with effluent limitations, may be further regulated to
prevent water quality from falling below acceptable levels.” EPA v.
California ex rel. State Water Resources Control Board, 426 U.S. 200, 205
n.12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). If technology based limitations
do not achieve the water quality standards, permits may include “any more
stringent limitation ... necessary to meet water quality standards” – i.e.,
“water quality based effluent limitations.” 33 U.S.C. § 1311(b)(1)(C); 40
CFR § 130.7(c). Thus, regardless of whether a waterway is over-polluted
due to point sources, nonpoint sources, or some mixture of both, the Act
authorizes the imposition of water quality based controls on point sources, in
addition to the most stringent technology based controls.
These two types of effluent limitations differ in their reference point
and in their strategies for reducing pollution. For technology based
limitations, the reference point is the source, and the strategy is to deploy
pollutant-reducing technology at that source regardless of its contribution of
pollutants to the waterway. By contrast, for water quality based effluent
limitations, the reference point is the waterway, and the strategy is for the
- 25 -
point source to implement any additional actions (beyond the already
required technologies) necessary to achieve the applicable water quality
standard.
(Footnotes omitted) (ellipses in original).
33 U.S.C. § 1311(b)(1)(C) sets forth a requirement for States to establish limitations
necessary to meet water quality standards, stating:
In order to carry out the objective of this chapter there shall be achieved . . .
not later than July 1, 1977, any more stringent limitation, including those
necessary to meet water quality standards, treatment standards, or schedules
of compliance, established pursuant to any State law or regulations (under
authority preserved by section 1370 of this title) or any other Federal law or
regulation, or required to implement any applicable water quality standard
established pursuant to this chapter.
33 U.S.C. § 1311(g)(1) sets forth the EPA’s authority to classify ammonia as a
pollutant for purposes of the Clean Water Act, stating:
The Administrator, with the concurrence of the State, may modify the
requirements of subsection (b)(2)(A) of this section with respect to the
discharge from any point source of ammonia, chlorine, color, iron, and total
phenols (4AAP) (when determined by the Administrator to be a pollutant
covered by subsection (b)(2)(F)) and any other pollutant which the
Administrator lists under paragraph (4) of this subsection.
Consistently, Table IB (List of Approved Inorganic Test Procedures) of 40 C.F.R. § 136.3(Intro Identification of Test Procedures), which is within Part 136 (Guidelines Establishing
Test Procedures for the Analysis of Pollutants) of Subchapter D (Water Programs) of
Chapter I (EPA) of Title 40 (Protection of Environment) of the Code of Federal
Regulations, identifies criteria for measuring “Ammonia (as N[itrogen])[.]”
Water Pollution Control Statutes and Regulations of Maryland
As their names suggest, Subtitle 3 (Water Pollution Control) of Title 9 (Water, Ice,
- 26 -
& Sanitary Facilities) of the Environment Article, as well as Subtitle 4 (Water Pollution
Control and Abatement) of Title 4 (Water Management) of the Environment Article,
contain the water pollution control statutes of Maryland. The subtitle that is relevant here
is Subtitle 3 of Title 9 of the Environment Article, which contains statutes concerning
discharge permits. See EN §§ 9-322 to 9-333. Subtitle 4 of Title 4 of the Environment
Article primarily contains statutes concerning oil. See EN §§ 4-406 to 4-411.1, 4-420.
EN § 9-101 contains definitions that apply throughout Title 9 of the Environment
Article. See EN § 9-101(a). Under EN § 9-101(b), “‘[d]ischarge’ means: (1) The addition,
introduction, leaking, spilling, or emitting of a pollutant into the waters of this State; or (2)
The placing of a pollutant in a location where the pollutant is likely to pollute.” (Paragraph
breaks omitted). Under EN § 9-101(g), “‘[p]ollutant’ means: (1) Any waste or wastewater
that is discharged from: (i) A publicly owned treatment works; or (ii) An industrial source;
or (2) Any other liquid, gaseous, solid, or other substance that will pollute any waters of
this State.” (Paragraph breaks omitted). EN § 9-101(h) defines “pollution” as follows:
“Pollution” means any contamination or other alteration of the physical,
chemical, or biological properties of any waters of this State, including a
change in temperature, taste, color, turbidity, or odor of the waters or the
discharge or deposit of any organic matter, harmful organism, or liquid,
gaseous, solid, radioactive, or other substance into any waters of this State,
that will render the waters harmful or detrimental to:
(1) Public health, safety, or welfare;
(2) Domestic, commercial, industrial, agricultural, recreational, or
other legitimate beneficial uses;
(3) Livestock, wild animals, or birds; or
(4) Fish or other aquatic life.
- 27 -
Code of Maryland Regulations (“COMAR”) 26.08.01.01B(20), (66), and (67) contain
identical, or substantively identical, definitions of “discharge,” “pollutant,” and
“pollution,” respectively.
Although EN § 9-101(j) contains a definition of “solid waste,” neither that statute,
EN § 1-101 (which contains definitions that apply throughout the Environment Article),
nor EN § 9-301 (which contains definitions that apply throughout Subtitle 3 of Title 9 of
the Environment Article) sets forth a definition of “waste.” That said, under COMAR
26.08.01.01B(98), “‘[w]aste’ means industrial waste and all other liquid, gaseous, solid, or
other substances which will pollute any waters of this State.”
EN § 9-302(a) and (b) set forth the purpose and legislative policy, respectively, of
Subtitle 3 of Title 9 of the Environment Article. EN § 9-302(a) states that “[t]he purpose
of this subtitle is to establish effective programs and to provide additional and cumulative
remedies to prevent, abate, and control pollution of the waters of this State.” EN § 9-302(b)
sets forth the legislative policy of Subtitle 3 of Title 9 of the Environment Article as
follows:
Because the quality of the waters of this State is vital to the interests of the
citizens of this State, because pollution is a menace to public health and
welfare, creates public nuisances, harms wildlife, fish, and aquatic life, and
impairs domestic, agricultural, industrial, recreational, and other legitimate
beneficial uses of water, and because the problem of water pollution in this
State is closely related to the problem of water pollution in adjoining states,
it is the policy of this State:
(1) To improve, conserve, and manage the quality of the waters of this
State;
(2) To protect, maintain, and improve the quality of water for public
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supplies, propagation of wildlife, fish, and aquatic life, and domestic,
agricultural, industrial, recreational, and other legitimate beneficial uses;
(3) To provide that no waste is discharged into any waters of this State
without first receiving necessary treatment or other corrective action to
protect the legitimate beneficial uses of the waters of this State;
(4) Through innovative and alternative methods of waste and
wastewater treatment, to provide and promote prevention, abatement, and
control of new or existing water pollution; and
(5) To promote and encourage the use of reclaimed water in order to
conserve water supplies, facilitate the indirect recharge of groundwater, and
develop an alternative to discharging wastewater effluent to surface waters,
thus pursuing the goal of the Clean Water Act to end the discharge of
pollutants and meet the nutrient reduction goals of the Chesapeake Bay
Agreement.
EN § 9-322 sets forth a general prohibition on discharging pollutants into the waters
of this State, stating that, “[e]xcept as provided in this subtitle and Title 4, Subtitle 4 of this
article and the rules and regulations adopted under those subtitles, a person may not
discharge any pollutant into the waters of this State.” Consistently, COMAR
26.08.04.01B(1) states that “[a] person may not commit any of the following acts except
as authorized by a discharge permit issued by the Department: []Except as provided in
COMAR 26.08.02.09A(3) and Regulation .08 of this chapter, discharge into the waters of
this State any waste or wastewater regardless of volume.” (Paragraph break omitted). EN
§ 9-323 sets forth a requirement for operators of concentrated animal feeding operations
and other facilities to hold discharge permits.
EN § 9-324(a) states that “the Department may issue a discharge permit if the
Department finds that the discharge meets: (1) All applicable State and federal water
quality standards and effluent limitations; and (2) All other requirements of this subtitle.”
- 29 -
EN § 9-328(b) sets forth the conditions under which the Department may renew a discharge
permit (as it did here), stating:
Before a discharge permit expires, the Department may renew the discharge
permit for another term:
(1) After administrative review in accordance with the rules and
regulations that the Department adopts;
(2) After notice and opportunity for public hearing on the subject;
(3) On the condition that the discharge meets or will meet:
(i) Any applicable State or federal water quality standards or
effluent limitations; and
(ii) Any applicable requirement of this subtitle; and
(4) If the permit holder pays all application and permit fees assessed
by the Department under this subtitle.
EN § 9-327 sets forth the conditions under which the Department may refuse to
issue a discharge permit, stating, among other things, that the Department may refuse to
issue a discharge permit if the Department finds that issuance of the permit would violate
any State or federal law or any rule or regulation adopted under any State or federal law.
EN § 9-326 concerns conditions on discharge permits, stating in relevant part: “(a)(1) The
Department may make the issuance of a discharge permit contingent on any conditions the
Department considers necessary to prevent violation of this subtitle.”
Although Subtitle 3 of Title 9 of the Environment Article does not mention
ammonia, Sections H (Acute Numeric Toxic Substance Criteria for Ammonia for the
Protection of Fresh Water Aquatic Life (Table 1)), I (Chronic Numeric Toxic Substance
Criteria for Ammonia, Expressed as a 30-day Average, for the Protection of Fresh Water
- 30 -
Aquatic Life (Tables 1 and 2)), J (Saltwater and Estuarine Acute Criteria for Ammonia),
and K (Saltwater and Estuarine Chronic Criteria for Ammonia) of COMAR 26.08.02.03-2
(Numerical Criteria for Toxic Substances in Surface Waters) do so, indicating that
ammonia is a toxic substance.
Maryland Case Law
This is only the fourth administrative case in which we have addressed in detail the
substance of the Clean Water Act and/or the water pollution control statutes of Maryland.
The other three such cases are Anacostia Riverkeeper, 447 Md. 88, 134 A.3d 892, Carroll
County, 465 Md. 169, 214 A.3d 61, and Md. Small MS4 Coal. v. Md. Dep’t of the Env’t,
479 Md. 1, 276 A.3d 573 (2022) (per curiam). Unlike this case, all three of these cases
involved discharge permits for municipal separate storm sewer systems, or MS4s. See
Anacostia Riverkeeper, 447 Md. at 95, 134 A.3d at 896; Carroll Cnty., 465 Md. at 188, 214
A.3d at 72-73; Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 575 (per curiam). The
three cases involved interpretation of 33 U.S.C. § 1342(p)(3)(B)(iii), which states that
“[p]ermits for discharges from municipal storm sewers . . . shall require controls to reduce
the discharge of pollutants to the maximum extent practicable,” or MEP.
In Anacostia Riverkeeper, 447 Md. at 126, 134 A.3d at 915, this Court held, among
other things, that a requirement in discharge permits for municipal separate storm sewer
systems that counties restore 20% of impervious surfaces complied with the “maximum
extent practicable” standard. We observed that Maryland’s watershed improvement plan,
or WIP, “includes what we refer[red] to as the adaptive management approach” or “the
‘iterative’ process,” “whereby additional or alternative practices are implemented if
- 31 -
existing programs are not meeting target reductions.” Id. at 128 & n.44, 134 A.3d at 916
& n.44 (citation omitted). Specifically, the discharge permit for municipal separate storm
sewer systems stated that “‘[best management practice] and program modifications shall
be made’ if the Counties fail to comply with the Permits or fail to show progress in meeting
[wasteload allocation] of EPA-approved [total maximum daily loads].” Id. at 128, 134
A.3d at 916 (footnote omitted). We pointed out that the relevant regulation adopted by the
EPA did “not instruct the permitting authority as to how it must ensure” “that effluent limits
are consistent with [wasteload allocation] assumptions and requirements.” Id. at 136, 134
A.3d at 920-21 (citations omitted). We noted that, “[i]nstead, 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 [wasteload allocations].” Id. at 136, 134 A.3d
at 921 (citation omitted). Immediately afterward, we quoted guidance from the EPA in the
Federal Register observing that the regulation “gives the permitting authority the flexibility
to determine the appropriate procedures for developing water quality-based effluent
limits.” Id. at 137, 134 A.3d at 921 (cleaned up). “[W]e conclude[d] that the nature of the
schedules in the restoration plans d[id] not require [the Department] to incorporate those
plans into the Permits by modification” because the “adaptive management approach is the
true enforcement mechanism that leads to compliance with an effluent limitation or other
limitation.” Id. at 174, 134 A.3d at 943-44 (cleaned up).
In Carroll County, 465 Md. at 264, 214 A.3d at 118, we held, among other things,
that “[t]he Department may lawfully include an impervious surface restoration requirement
in a[ municipal separate storm sewer system] permit without reference to the [‘maximum
- 32 -
extent practicable’] standard.” We observed that, “[t]o achieve water quality standards, the
Act requires that discharge permits include pollution controls for point sources.” Id. at
186, 214 A.3d at 71 (citing 33 U.S.C. § 1311(b)). We also noted that municipal separate
storm sewer systems “differ from typical ‘end-of-pipe’ point sources in certain respects”
and that “a discharge permit for a[ municipal separate storm sewer system] differs from
that for a typical point source.” Carroll County, 465 Md. at 188-89, 214 A.3d at 73.
A dissenting opinion concluded, among other things, that the Department “was not
authorized to set forth in Frederick County’s [municipal separate storm sewer system]
permit requirements that exceed the ‘maximum extent practicable’ standard[.]” Id. at 266,
214 A.3d at 119 (Watts, J., dissenting). In another dissenting opinion, Judge Getty stated
that he “would scale back the agency deference doctrine as recognized in Maryland.” Id.
at 281, 214 A.3d at 128 (Getty, J., dissenting).17
In Md. Small MS4 Coal., 479 Md. at ___ & n.2, 276 A.3d at 576 & n.2 (per curiam),
in a per curiam opinion that Judges McDonald, Hotten, Biran, and Adkins joined, we
declined to overrule Carroll County and again held that conditions based on the EPA’s
regulations in the general permit for municipal separate storm sewer systems were not
17
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the title of the Judges serving on this Court to that of
Justices. The name change took effect on December 14, 2022. And, on the same day, this
Court amended Maryland Rule 1-202, effective immediately, to state that the title of
“Judge” includes a Justice of the Supreme Court of Maryland and the title of “Senior
Justice” means a Senior Judge who has been designated to sit on the Court in a case or
other judicial matter pending before the Court. For purposes of this opinion, I will use the
then-existing title of “Judge” when referring to opinions authored or joined by members of
the Court before December 14, 2022.
- 33 -
illegal on the ground that they exceeded the “maximum extent practicable” standard. We
observed that, in Carroll County, 465 Md. at 186, 214 A.3d at 71, we had “noted that, in a
typical [National Pollution Discharge Elimination System] permit, there would be no
question that the Department is to consider water quality standards in designing a permit –
in fact, such consideration is required by the Act.” Md. Small MS4 Coal., 479 Md. at ___,
276 A.3d at 584 (per curiam). We also pointed out that, in Carroll County, 465 Md. at 188-
89, 214 A.3d at 73, we had “observed that a[ municipal separate storm sewer system]
permit is not a typical [National Pollution Discharge Elimination System] permit;
[municipal separate storm sewer systems] differ from ‘end-of-pipe’ point sources and have
a different permit standard.” Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 584 (per
curiam).
In a concurring opinion that Judges Hotten and Adkins joined, Judge McDonald
indicated that the water pollution control statutes of Maryland, which are more stringent
than the Clean Water Act, could provide the Department with the authority to implement
requirements that exceed the “maximum extent practicable” standard. See id. at ___, 276
A.3d at 604 (McDonald, J., concurring). Another opinion concurring in the judgment only,
which Chief Judge Getty and Judge Booth joined, stated that, it disagreed with the
substance of Carroll County, but would adhere to the principle of stare decisis and not
overrule the case at the time. See Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 606-
07 (Watts, J., concurring in the judgment only). In another opinion concurring in the
judgment only, Judge Booth stated that she would have joined the dissent in Carroll County
but was bound by the doctrine of stare decisis and would not overrule that case at the time.
- 34 -
See Md. Small MS4 Coal., 479 Md. at ___, 276 A.3d at 607-08 (Booth, J., concurring in
the judgment only) (joined by J. Getty and J. Watts).
In addition to Anacostia Riverkeeper, Carroll County, and Maryland Small MS4
Coalition, another Maryland case involving the Clean Water Act and/or the water pollution
control statutes of Maryland is Assateague Coastkeeper v. Md. Dep’t of the Env’t, 200 Md.
App. 665, 669-70, 28 A.3d 178, 181-82 (2011), in which the Appellate Court of Maryland
upheld a discharge permit for animal feeding operations. The appellants contended that,
under the EPA’s regulations, the Department was required to “either ensure compliance
with any applicable [wasteload allocation]/[total maximum daily load] or make a case-by-
case determination of any necessary [water quality-based effluent limitations].” Id. at 719,
28 A.3d at 210 (internal quotation marks omitted). The appellants also argued “that these
site-specific requirements ‘c[ould ]not be reconciled with the broad authorization to
discharge’ contained in the” discharge permit. Id. at 719, 28 A.3d at 210-11.
The Appellate Court pointed out that a Final Decision Maker, or FDM, of the
Department found “that the imposition of [water quality-based effluent limitations] is likely
to be quite site-specific and therefore may be more appropriately imposed through the
[notice of intent] process, including the approval of the [Comprehensive Nutrient
Management Plan].” Id. at 720, 28 A.3d at 211 (footnote omitted). The Appellate Court
stated: “[T]his is a factual finding to which we give deference to the agency.” Id. at 720,
28 A.3d at 211. The Appellate Court observed that, under the discharge permit,
concentrated animal feeding operations were required to submit to the Department for
approval a Comprehensive Nutrient Management Plan, which would address methods of
- 35 -
protecting water quality, and that such plans were subject to public review and comment
before approval. See id. at 721, 28 A.3d at 211. The Appellate Court concluded: “It was
within the province of [the Department] to determine that this process is sufficient to ensure
that the issuance of new permits will not cause or contribute to the violation of water quality
standards. We will not substitute our judgment for that of the agency on this issue.” Id. at
721, 28 A.3d at 211-12.
Application of the Principles Above to this Case
In my view, a remand is necessary for the circuit court to decide whether the
Department’s final determination to use Best Management Practices Subsection IV.D.2 of
the discharge permit to address ammonia emissions is supported by substantial evidence
and not arbitrary and capricious. Stated otherwise, a remand is necessary to determine
whether substantial evidence supports the Department’s position that Best Management
Practices Subsection IV.D.2 regulates ammonia emissions from an animal feeding
operation that impact water quality. If the circuit court is satisfied that there is such
substantial evidence, it would then be necessary for the court to determine whether Part
IV.D.2 complies with Maryland’s water pollution control statutes.
Before this Court, the Department has agreed that Maryland law identifies ammonia
emissions as a pollutant and contends that it devised site-specific evaluations in Best
Management Practices Subsection IV.D.2 to address such emissions. But the record
reflects that the Department developed the best management practices at a time that it
claimed that it was not required under the Clean Water Act or Maryland law to regulate
ammonia emissions. Thus, the best management practices provisions were plainly not
- 36 -
developed for the purpose later stated by the Department.
Subsection IV.D.2 is labeled “Other Best Management Practices” and states in its
entirety: “For poultry: If outdoor air quality is determined to be a resource concern, use
appropriate [Natural Resources Conservation Service] Practice Standards to address the
concern.” By its plain language, Subsection IV.D.2 concerns outdoor air quality, not water
pollution; indeed, there is no indication in the language of Subsection IV.D.2 that its
ultimate purpose is to regulate water pollution. Subsection IV.D.2 allows animal feeding
operations owners to hire licensed plan writers to determine whether there is a resource
concern and then to determine whether to recommend practices such as putting up hedges
or adding amendments to chicken litter to address the concern. The Department is not
involved in these decisions at all.
Under these circumstances, Best Management Practices Subsection IV.D.2 does not
appear to even effectively regulate air quality, let alone water pollution. Part IV.A.1.b
provides that, if the “plan writer”18 identifies a resource concern, it is up to the plan writer
18
Under Part III.B.5, the person responsible for identifying resource concerns at a
concentrated animal feeding operation is not an employee of the Department, but rather is
the same person who writes the concentrated animal feeding operation’s comprehensive
nutrient management plan. A comprehensive nutrient management plan includes a nutrient
management plan and a conservation plan. See COMAR 26.08.01.01B(13-1). In turn, a
nutrient management plan addresses management of “the amount, placement, timing, and
application of animal manure, fertilizer, biosolids, or other plant nutrients to minimize
nutrient loss or runoff and to maintain the productivity of soil when growing agricultural
products.” COMAR 15.20.08.03B(27). Meanwhile, a conservation plan—also known as
a soil conservation and water quality plan—addresses, among other things, “[s]torage for
animal manure and litter[.]” COMAR 26.08.01.01B(83-1)(a). The person who writes the
concentrated animal feeding operation’s comprehensive nutrient management plan will be
either an employee of the concentrated animal feeding operation or someone hired by the
concentrated animal feeding operation.
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which Conservation Practice Standards, issued by the Natural Resources Conservation
Service, the concentrated animal feeding operation should use to address the concern. To
be sure, the plan writer must be certified by the Maryland Department of Agriculture, but
the plan writer is either a nutrient management consultant hired by the concentrated animal
feeding operation itself or a person who owns, operates, or has a legal interest in the
concentrated animal feeding operation. See Md. Code Ann., Agric. (1974, 2016 Repl.
Vol.) § 8-803(a), (g)(1); COMAR 15.20.04.02B(1).
The Department is not involved in either of these determinations—identifying a
resource concern or identifying Conservation Practice standards to address the concern—
which are made by the plan writer, who is hired by the animal feeding operation or is
associated with the animal feeding operation. In short, nothing in the discharge permit or
the applicable COMAR requires the Department to independently determine under
Subsection IV.D.2 whether resource concerns exist or which Conservation Practice
Standards the animal feeding operation should use to address such concerns.
Plainly, the Department could have imposed different requirements in the discharge
permit to address ammonia emissions but did not do so. At oral argument, the Court
pointed out that the discharge permit allows animal feeding operations to identify resource
concerns and choose Conservation Practice Standards. The Court asked the Department’s
counsel whether it would be possible for the Department to impose requirements or best
management practices under its control rather than the animal feeding operations. The
Department’s counsel responded: “It would be possible.”
To be sure, members of the public may comment on and challenge comprehensive
- 38 -
nutrient management plans. And, the Department must notify the public when it receives
a notice of intent or a comprehensive nutrient management plan. See COMAR
26.08.04.09N(3)(b), (d). The Department must also notify the public when it preliminarily
approves the plan, and the notice must provide for a thirty-day period for public comment.
See COMAR 26.08.04.09N(3)(j). The Department must conduct a public hearing on the
preliminary approval upon timely request, and the Department may conduct one on its own
initiative. See COMAR 26.08.04.09N(3)(k)(i), (ii). A person aggrieved by the
Department’s final approval of the plan may request a contested case hearing. See
COMAR 26.08.04.09N(3)(l)(ii).
But, this process does not mean that Subsection IV.D.2 effectively regulates
ammonia emissions. At oral argument, the Court asked the Department’s counsel how, as
a practical matter, a member of the public would be able to challenge a comprehensive
nutrient management plan that did not identify outdoor air quality as a resource concern.
In other words, the Court asked how anyone other than an animal feeding operation plan
writer would be able to identify a resource concern under Best Management Practices
Subsection IV.D.2. The Department’s counsel responded that, although ammonia is
invisible, ventilation fans in poultry houses expel other materials, such as dust, feathers,
litter, and dry poultry manure, which may be detected by the public. The Department’s
counsel stated that, at public hearings on comprehensive nutrient management plans, there
are often many local residents who complain of odors or have otherwise made their own
assessments without entering the property of the animal feeding operation.
These anecdotal circumstances are not an effective substitute for the Department’s
- 39 -
regulation of ammonia emissions. It would be unreasonable to expect local residents and
other interested parties (who cannot enter the property of an animal feeding operation) to
determine for themselves whether ammonia emissions are causing a resource concern, or
to hire their own nutrient management consultant (who could not enter the property at
issue). From my perspective, there is no effective way that an interested party could
challenge a comprehensive nutrient management plan that does not indicate that ammonia
emissions pose a resource concern. And, even if there were such a challenge, it is unclear
whether noncompliance with the best practice set forth in Subsection IV.D.2 would have
any consequence at all.
The Department contends that Subsection IV.D.2 regulates ammonia emissions but
in actuality the Department drafted the provision while it was under the mistaken belief
that it was not allowed to regulate such emissions. The record demonstrates this. In its
response to public comments that the discharge permit did not adequately address ammonia
emissions, the Department stated that “[a]mmonia emissions/ammonia deposition have
been considered and addressed to the extent permissible under the Clean Water Act and
the state’s water pollution control law[.]” In a memorandum filed in the circuit court, the
Department stated that the discharge permit did not place controls on ammonia emissions
because “regulating air emissions through a water discharge permit is outside the scope of
both the [Clean Water] Act and Maryland’s water pollution control statutes.” Following
this explanation, in a footnote, the Department stated that “[n]evertheless, the Department,
in response to public comments it received on the draft GDP, included several provisions
that require the implementation of BMP’s to minimize nuisance odors and to address
- 40 -
outdoor air quality if it is determined to be a resource concern.” The Department’s own
statements demonstrate that it did not design Best Management Practices Subsection
IV.D.2 for the purpose that it now maintains that the provision serves—i.e., the regulation
of ammonia emissions.19
I would remand the case to the circuit court to allow the parties to address, and the
court to determine, whether Part IV.D.2 regulates ammonia emissions as water pollution,
and, if so, whether the provision passes muster under Maryland’s water pollution control
statutes. Judicial review of the Department’s issuance of a discharge permit in the circuit
court is based on the administrative record. See EN §§ 1-601(d)(1), 1-606(c). One possible
outcome is that the circuit court would remand the case to the Department so that it could
issue a new statement or fact sheet explaining the basis for its decision, which is a required
part of the administrative record under EN § 1-606(c)(4).20 In any event, from my
perspective, it is clear that a remand to the circuit court is necessary to assess the
Department’s contention that Subsection IV.D.2 regulates ammonia emissions as water
pollution.
19
Although in its response to comments from the public, the Department
acknowledged that it was authorized to impose requirements more stringent than those of
the Act and stated that it had included in the Permit best management practices “to reduce
nuisance odors and address any air quality resource concerns using appropriate NRCS
Practice Standard(s)[,]” this statement does not mean, or make clear at all, that the
Department accepted or understood that it was authorized to regulate ammonia emissions
as a pollutant under Maryland law.
20
Under EN § 1-605(c), an action for judicial review of the Department’s issuance
of a discharge permit “shall be conducted in accordance with the Maryland Rules.” In turn,
under Maryland Rule 7-209, a court may remand an action for judicial review “to the
agency for further proceedings[.]”
- 41 -
The record demonstrates that the Department’s Final Determination to include Best
Management Practices to regulate ammonia emissions as impacting water quality was
based not on an exercise of discretion by the Department, a finding of fact by the
Department, or use of the Department’s expertise in environmental science, but rather was
based on the Department’s conclusion that it was not authorized to address ammonia
emissions as water pollution through the Permit. This is made clear by, among other
documents, the Permit itself, whose real operative provisions do not mention ammonia
emissions. By its plain language, Subsection IV.D.2 of the Permit (through which, the
Department argues, it regulates ammonia emissions as water pollution) applies only where
“outdoor air quality”—not water quality—“is determined to be a resource concern[.]”
Even though Subsection IV.D of the general permit addresses air emissions from poultry
operations where a site-specific evaluation finds that water quality impacts would occur,
this determination is made without input from the Department and by plan writers who are
compensated by the poultry operation owners, and would be difficult for any member of
the public to meaningfully challenge. In my view, the Department was required to exercise
its discretion and apply its expertise in environmental science to determine how to regulate
ammonia emissions as water pollution through the Permit, and it is not clear from the record
that the Department has done so.
The plain language of the Permit demonstrates that ammonia emissions are not, and
were not intended by the Department to be, subject to regulation as water pollution through
the Permit. The word “ammonia” appears only in the table of contents of the Permit—
specifically, in the title of the advisory Best Management Practices Subsection IV.D.2
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(“Reduction of ammonia, dust, and feathers”) of the Permit. As explained, Subsection
IV.D.2 of the Permit states in its entirety: “If outdoor air quality is determined to be a
resource concern, use appropriate [Natural Resources Conservation Service] Practice
Standards to address the concern.” Nothing in the provision reflects that ammonia
emissions impact water quality, not just air pollution. Subsection IV.D.2 of the Permit
places no effluent limitations whatsoever—whether technology-based or water quality-
based—on ammonia emissions as water pollution.
Even for what it is—namely, a provision relating to air pollution rather than water
pollution—Subsection IV.D.2 of the Permit is toothless. Under the best management
practice, it is up to an individual who writes the Required Plan for an animal feeding
operation to determine whether “outdoor air quality” is “a resource concern[.]” The writer
of a Required Plan and the animal feeding operation are, at a minimum, in a contractual
relationship. Thus, the writer, although trained and certified, may have a financial
incentive not to make a determination that would be costly for the animal feeding operation
to address. To put it colloquially, having a writer of a Required Plan determine whether
outdoor air quality is a resource concern is like having a fox guard the henhouse.
Even in the event that the writer of a Required Plan would determine that outdoor
air quality is a resource concern, Subsection IV.D.2 of the Permit merely sets forth the
aspirational directive to “use appropriate” Conservation Practice Standards “to address the
concern.” Nothing in the best management practice provision requires use of any particular
Conservation Practice Standard, any particular number of such standards, or any particular
method of following such standards. Nor does Subsection IV.D.2 of the Permit set forth
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any benchmarks, parameters, or criteria for determining whether an animal feeding
operation’s use of Conservation Practice Standards has sufficiently addressed the resource
concern related to outdoor air quality (such as by, say, reducing dust emissions by a
specified percentage or limiting feather emissions to a specified weight). Indeed, under
Subsection IV.D.2 of the Permit, an animal feeding operation is not required to end,
resolve, or even mitigate a resource concern relating to outdoor air quality—to the contrary,
the animal feeding operation need only “address the concern” and that is solely if it chooses
to do so. In sum, given that Subsection IV.D.2 of the Permit is not even a mandatory
regulation of ammonia emissions as air pollution in any meaningful way, the provision
certainly is not a regulation of ammonia emissions that affect water quality.
On this point, as explained above, not one, but two other documents reinforce what
the plain language of the Permit makes clear—namely, that ammonia emissions are not,
and were not intended by the Department to be, subject to regulation as water pollution
through the Permit. First, in the Department’s response to comments from Assateague and
other advocacy organizations about the failure of the Permit to adequately address
ammonia emissions, the Department stated that “[a]mmonia emissions/ammonia
deposition have been considered and addressed to the extent permissible under the Clean
Water Act and the state’s water pollution control law and implementing regulations with
the requirement of several [Natural Resources Conservation Service] practices including
litter amendments and hedgerows/shelterbelts.” This statement—which expressly refers
to the Clean Water Act and the water pollution control statutes of Maryland—demonstrates
that the Department’s failure to regulate ammonia emissions beyond the best management
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practices was based on its described interpretation of those statutes, rather than an exercise
of discretion, fact-finding, or the use of any expertise. In its response, the Department said
the quiet part out loud and made clear that it had reasoned that the most that it was
authorized to do with regard to ammonia emissions in the Permit was to direct animal
feeding operations to use Conservation Practice Standards where outdoor air quality is
determined to be a resource concern.21
The Department’s memorandum in the circuit court is the second document showing
the same. In its memorandum, the Department stated that Assateague “argue[d] that the
[Permit] is legally deficient because it does not place controls on the gaseous emissions of
pollutants from [concentrated animal feeding operations], including ammonia, that might
later be deposited into state waters from the atmosphere.” Next, the Department stated:
“The simple reason for this omission is that regulating air emissions through a water
discharge permit is outside the scope of both the Act and Maryland’s water pollution
control statutes.” (Emphasis added) (footnote omitted). In no uncertain terms, the
21
It is of no moment that, in the Department’s response to public comments about
animal feeding operations using industrial exhaust fans to blow ammonia emissions out of
poultry houses, the Department stated that “[m]odern poultry houses have internal
ventilation and cooling systems[,]” which “result[] in less particulate matter to be
discharged into the atmosphere.” For one thing, the Department’s vague statement leaves
unclear how many (if any) animal feeding operations in Maryland have internal ventilation
and cooling systems, what percentage (if any) of animal feeding operations in Maryland
have such systems, and whether poultry houses with such systems lack industrial exhaust
fans. Additionally, even where a poultry house lacks industrial exhaust fans, that
circumstance would not prevent ammonia emissions from being discharged onto the waters
of this State. As Assateague and other advocacy organizations pointed out in their letter to
the Department, “if we are to presume that an [animal feeding operation] does not
‘discharge[,]’ we would be forced to accept as reality an illogical and physically impossible
result: that what goes into a poultry house never comes out.”
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Department candidly acknowledged that it had not regulated ammonia emissions through
the Permit and that the reason why was that it was of the view that doing so would have
been outside the scope of the Clean Water Act and the water pollution control statutes of
Maryland. Together with the plain language of Subsection IV.D.2 and the Department’s
response to public comments, the Department’s memorandum in the circuit court
eliminates any doubt that, based on its earlier interpretation of the Clean Water Act and the
water pollution control statutes of Maryland, the Department designed the Permit without
considering regulating ammonia emissions as water pollution.
The Department has abandoned this interpretation on appeal. In its opening brief in
this Court, the Department argues that “[t]he dispute before this Court thus is not whether
[the Department] can regulate gaseous emissions under State law[,]” that “the plain
language of the general permit demonstrates that the Department has that authority[,]” and
that, “[r]ather, the dispute here is over how [the Department] has chosen to assess and
regulate gaseous emissions discharging to State waters.” (Emphasis in original). And, in
its opening briefs in both appellate courts, the Department asserted that, based on “the
science[,]” the Department determined that “site-specific” (as opposed to “across-the-
board”) regulation of ammonia emissions from animal feeding operations was appropriate.
The record belies multiple aspects of the Department’s assertions. For one thing, as
discussed above, by its plain language, the Permit does not subject ammonia emissions to
regulation as water pollution at all—whether on a “site-specific” basis or on an “across-
the-board” basis. In addition, “site-specific” regulation and “across-the-board” regulation
are not mutually exclusive. Furthermore, the Department does not bring to the Court’s
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attention, and I could not find, anything in the record that indicates that its decision to
implement Subsection IV.D.2 to address ammonia emissions that impact water quality was
based on science. To the contrary, as discussed above, both the Department’s response to
public comments and its memorandum in the circuit court show that the Department’s
decision was based on an interpretation of the Clean Water Act and the water pollution
control statutes of Maryland that it has now abandoned.
Because ammonia meets the definition of a “pollutant” in EN § 9-101(g) and animal
feeding operations’ actions with regard to ammonia meet the definition of “discharge” in
EN § 9-101(b), under EN § 9-324(a)(2), the Department was not authorized to issue the
Permit without regulating ammonia emissions as water pollution through the Permit.
Although I would conclude that the Department must regulate ammonia emissions as water
pollution through the Permit and the record does not establish that it has done so, I would
refrain from offering an opinion on how the Department must do so. In other words, I
would decline Assateague’s invitation to hold that the Department was required to
implement across-the-board water quality-based effluent limitations on ammonia
emissions. The question of how to regulate ammonia emissions that impact water quality
through the Permit is a matter committed to the Department’s discretion and expertise, and
I would not invade the Department’s province by prescribing the methods that the
Department must use to discharge its statutory duties. The problem is that it is not at all
clear that the Department exercised its discretion in the first place to determine how to
regulate ammonia emissions as water pollution through the Permit.
A remand of the case would further the purpose of the water pollution control
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statutes of Maryland “to establish effective programs and to provide additional and
cumulative remedies to prevent, abate, and control pollution of the waters of this State.”
EN § 9-302(a). It would also honor the General Assembly’s express policy “[t]o improve,
conserve, and manage the quality of the waters of this State” “[b]ecause the quality of the
waters of this State is vital to the interests of the citizens of this State” and “because
pollution is a menace to public health and welfare[.]” EN § 9-302(b)(1). In addition, a
remand of the case would help to ensure that Maryland does its part to meet the goal under
the Chesapeake Bay Total Maximum Daily Load “that all pollution control measures
needed to fully restore the Bay and its tidal rivers are in place by 2025[.]” Chesapeake Bay
TMDL Executive Summary at 1.22
For the above reasons, I would remand the case to the circuit court for a
determination as to whether substantial evidence supports a finding that Best Management
Practices Subsection IV.D.2 in fact regulates ammonia emissions as water pollution on a
site-specific basis and whether the Best Management Practices comply with the
requirements of the Act and Maryland statutes.
22
Both the EPA and the Chesapeake Bay Foundation have determined “that
Maryland and other bay states are not on track to meet the 2025 deadline for reducing
pollution in the Chesapeake Bay, a goal established in 2010 by the EPA under the federal
Clean Water Act.” Cadence Quaranta, Clean water advocates and elected officials urge
next Maryland governor to do more to protect the Chesapeake Bay, The Baltimore Banner
(Oct. 19, 2022), https://www.thebaltimorebanner.com/community/climate-environment/
clean-water-advocates-and-elected-officials-urge-next-maryland-governor-to-do-more-to-
protect-the-chesapeake-bay-FGXLPX4B7VAV7DJUPHVGID55MM/ [https://perma.c
c/MG4V-2VGD]. The executive director of the Environmental Integrity Project has stated
that “‘[f]orty-two percent of the nitrogen, 55% of the phosphorus and 60% of the sediment
in the bay comes from agriculture. . . . We’ve relied on voluntary programs and exhortation
to persuade the agricultural industry to do its part, [and] it’s just not working.’” Id.
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Therefore, respectfully, I dissent.
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