Small MS4 Coalition v. Dept. of Environment , 250 Md. App. 388 ( 2021 )

Maryland Small MS4 Coalition, et al. v. Maryland Department of the Environment, No.
1865, September Term 2019.
Opinion by Harrell, J.
1. ADMINISTRATIVE LAW AND PROCEDURE - County permittee was entitled
to remand of a decision of the Department of the Environment which designated areas
outside of the county’s actual urbanized area for coverage under a federal stormwater
discharge permit where objections to the Department’s decision were not ascertainable
reasonably during the public comment period but arose after the comment period closed.
Md. Code, Environment Article § 1-601(d).
2. ENVIRONMENTAL LAW – Federal stormwater discharge permit issued to a
small municipal separate storm sewer system (“small MS4”) must contain water quality
based effluent limitations consistent with assumptions and requirements of the applicable
wasteload allocation established in the Chesapeake Bay Total Maximum Daily Load
(“TMDL”) and allocated to regulated stormwater sources in the Maryland Watershed
Implementation Plan. 40 C.F.R. § 122.44(d)(1)(vii)(B).
3. ENVIRONMENTAL LAW – The Department of the Environment is authorized
to include terms and conditions in a permit issued to a regulated small MS4 that are more
stringent than federal regulations require, where such terms and conditions are based on an
approved TMDL or equivalent analysis, and the Department determines that such terms
and conditions are needed to protect water quality. 40 C.F.R. § 122.34(c)(1).
4. ENVIRONMENTAL LAW – The Department of the Environment did not exceed
its authority under the Clean Water Act when it directed small permittees to calculate
impervious surface restoration requirements using total impervious acreage within the
urbanized area as a baseline. Impervious surface restoration requirement represents a valid
reallocation of pollutant loads from nonpoint sources to point sources, in order to achieve
water quality standards based on the Chesapeake Bay TMDL.
5. ENVIRONMENTAL LAW – The Department of the Environment did not act
arbitrarily or capriciously in establishing permit provisions for federally-required control
measures designed to detect/eliminate illicit discharges into the MS4 and prevent or reduce
pollutant runoff from land owned or operated by the county. The administrative record
reveals a rational basis for and/or substantial evidence to support the Department’s decision
to include the permit requirements.
Circuit Court for Queen Anne’s County
Case No. C-17-CV-18-000162
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1865
September Term, 2019
______________________________________
MARYLAND SMALL MS4 COALITION, ET
AL.
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT
______________________________________
Beachley,
Wells,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Harrell, J.
______________________________________
Filed: April 29, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-04-29 * Kehoe, J., did not participate in the Court’s
11:44-04:00 decision to report this opinion pursuant to
Maryland Rule 8-605.1.
Suzanne C. Johnson, Clerk
“Letting the days go by, let the water hold me down
Letting the days go by, water flowing underground
Into the blue again, into the silent water
Under the rocks and stones, there is water underground.”
Lyrics from “Once in a Lifetime” from the
album “Remain In Light” by The Talking
Heads (Sire Records, 1981).
This appeal flows from a petition, filed in the Circuit Court for Queen Anne’s
County, requesting judicial review of a final determination of the Maryland Department of
the Environment (“Department”), appellee, to issue a conditional general stormwater
discharge permit to a number of operators of “small” municipal separate storm sewer
systems (MS4s) (we shall do a deeper dive explaining this term shortly), including Queen
Anne’s County (“the County”), appellant. The circuit court affirmed the Department’s
final determination.
The County noted an appeal from the decision of the circuit court, presenting the
following questions for our consideration:
1. Has [the Department] acted unlawfully by designating geographic areas
outside of the urbanized area for regulation under the General Permit?
2. Has [the Department] unlawfully made the County responsible for
discharges from independent third parties and nonpoint source runoff that
does not flow into or discharge from the County’s MS4?
3. Has [the Department] unlawfully imposed requirements beyond the
maximum extent practicable in the General Permit?
For the following reasons, we shall vacate, in part, the judgment of the circuit court
and remand to that court with instructions to remand the matter to the Department for
further proceedings consistent with this opinion. We shall affirm otherwise the judgment.
BACKGROUND
A. Statutory and Regulatory Scheme
The permit here was issued by the Department pursuant to authorization under the
federal Clean Water Act, 33 U.S.C. § 1251 through § 1388 (“CWA”). Congress enacted
the CWA in 1972 to “restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the core provisions of the CWA is
§ 1311(a), which “generally prohibits ‘any person’ from discharging pollutants from a
point source into a waterway.”1 Maryland Department of the Environment v. County
Commissioners of Carroll County, 465 Md. 169, 184 (2019) (quoting 33 U.S.C. § 1311(a))
(footnotes omitted), cert. denied sub nom. County Commissioners of Carroll County,
Maryland v. Maryland Dep’t of the Env’t, 140 S. Ct. 1265 (2020).
“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.”
Maryland Department of the Environment v. Anacostia Riverkeeper, 447 Md. 88, 96 (2016)
(footnote omitted). The Department is authorized by the EPA to administer the NPDES
program in Maryland. Id. (citing Code of Maryland Regulations (“COMAR”)
26.08.04.07).
1
“‘[P]erson’ means an individual, corporation, partnership, association, State,
municipality, commission, or political subdivision of a State, or any interstate body.” 33
U.S.C. § 1362(5). “The term ‘point source’ means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, [or other types of
conveyance], from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
2
Maryland’s NPDES permit program must be consistent with the CWA and with
EPA guidelines. 33 U.S.C. § 1342(c)(2). “To achieve water quality standards, the [CWA]
requires that discharge permits include pollution controls for point sources.” Carroll
County, 465 Md. at 186 (citing 33 U.S.C. § 1311(b)).
“‘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.’”
Anacostia Riverkeeper, 447 Md. at 96 (quoting S. Fla. Water Mgmt. Dist. v. Miccosukee
Tribe, 541 U.S. 95, 102 (2004)). “These limits are called effluent limitations.”2 Id.At issue in this appeal is a permit for a type of “point source” discharge known as a
municipal separate storm sewer system, commonly referred to as an MS4. “An MS4 is a
network of conveyances (including storm drains, gutters, and other drainage systems)
designed to carry only stormwater (as opposed to a ‘combined sewer system’ that conveys
both sanitary sewage and stormwater).” Carroll County, 465 Md. at 188 (citing 40 C.F.R.
§ 122.26(b)(8)). “Stormwater” is the “rain and snowmelt that filters through the soil and
courses over surfaces – collecting pollutants along the way – before passing through the
municipal storm sewer systems and into waterbodies.” Anacostia Riverkeeper, 447 Md. at
97 (footnote omitted).
2
An “effluent limitation” is defined as “any restriction established by a State or the
[EPA] 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.” 33 U.S.C. §
1362(11).
3
MS4s differ from other “point sources” of water pollution, such as a discharge pipe
from a factory, in that the quantity and quality of stormwater that is conveyed by an MS4
into a waterway varies, depending on weather and land use practices. Carroll County, 465
Md. at 188-89. In addition, it is “difficult to discern the amount of pollutant that any one
[MS4] discharger contributes to a waterbody because municipalities have so many outfalls,
or discharge points, leading into the waters.” Anacostia Riverkeeper, 447 Md. at 98.
Accordingly, instead of numerical effluent limitations, “an MS4 permit generally requires
the permittee to implement flexible management programs designed to reduce the pollution
introduced into stormwater, thereby limiting the amount of pollution discharged into the
waterway.” Carroll County, 465 Md. at 189 (footnote omitted). Under the CWA,
municipal stormwater permits must require “controls” that will “reduce the discharge of
pollutants to the maximum extent practicable[.]” 33 U.S.C. § 1342(p)(3)(B)(iii). The
required “controls” include “management practices, control techniques and system, design
and engineering methods,” as well as “such other provisions as the [EPA] or the State
determines appropriate for the control of such pollutants.” Id.
“Best management practices,” or, as they are commonly referred to, “BMPs,” “have
been a long-standing control or effluent limitation in MS4 permits.” Anacostia
Riverkeeper, 447 Md. at 99 (citing 40 C.F.R. §§ 122.44(k)(2) and (3)). EPA regulations
define BMPs as “[m]ethods, measures or practices selected by an agency to meet its
nonpoint source control needs.” 40 C.F.R. § 130.2(m). “BMPs include but are not limited
to structural and nonstructural controls and operation and maintenance procedures.” Id.
The EPA has defined BMPs more specifically, stating that “BMPs can be either
4
nonstructural (good housekeeping practices, pollution prevention, contour plowing, cover
crops) or structural (wet or dry detention ponds), and can include treatment requirements,
operating procedures, and practices to control site runoff, spillage, or leaks.”3
The NPDES discharge permit program for MS4s has been put into operation in two
phases, beginning with systems serving larger and denser populations. Phase I included
“large” MS4s, which serve populations of 250,000 or more, and “medium” MS4s, which
serve populations of 100,000 to 249,999. Carroll County, 465 Md. at 243-44.4 Phase II
extended the permit requirement to “small” MS4s, such as those operated by the County,
which serve fewer than 100,000 people. Id. at 245. The permit at issue here is a Phase II
general permit issued to a group of small MS4 operators.5
Significantly, not all small MS4s are subject to regulation under the NPDES
program. Operators of small MS4s, including, but not limited to, systems operated by
federal, state and local governments, require a permit to discharge stormwater only if: (1)
3
EPA, Introduction to the Clean Water Act at 81, available at
https://cfpub.epa.gov/watertrain/pdf/modules/introtocwa.pdf (last visited 25 March 2021).
4
Also included in Phase I were MS4s that were “determined by the EPA or a state
to be significant contributors of pollutants, regardless of the size of the population served
by those MS4s.” Maryland Dep’t of the Env’t v. County Commissioners of Carroll County,
465 Md. 169, 243-44 (2019), cert. denied sub nom. County Commissioners of Carroll
County, Maryland v. Maryland Dep’t of the Env’t, 140 S. Ct. 1265 (2020).
5
A general permit sets forth required terms and conditions applicable to all eligible
small MS4s, although additional terms and conditions may be established for individual
small MS4 operators. 40 C.F.R. § 122.28(d). A permittee complies with permit application
requirements by submitting a notice of intent. 40 C.F.R. § 122.28 (d)(2)(i).
5
the small MS4 is located within an “urbanized area,”6 40 C.F.R. § 122.32(a)(1); (2) the
Department determines that storm water discharge from the small MS4 “results in or has
the potential to result in exceedances of water quality standards, including impairment of
designated uses, or other significant water quality impacts, including habitat and biological
impacts” 40 C.F.R. 123.35(b)(1); or (3) the Department determines that stormwater
discharge from the small MS4 “contributes substantially to the pollutant loadings of a
physically interconnected municipal separate storm water sewer that is regulated by the
NPDES storm water program.” 40 C.F.R. 123.35(b)(4). Only the first two conditions are
relevant here.
To determine whether small MS4s that are located outside of an urbanized area
should be subject to regulation, the Department must first “[d]evelop criteria to evaluate
whether a storm water discharge results in or has the potential to result in exceedances of
water quality standards, including impairment of designated uses, or other significant water
impacts, including habitat and biological impacts.” 40 C.F.R. § 123.35(b)(1)(i). The
permitting authority then must apply that criteria to small MS4s located outside of an
urbanized area.7 40 C.F.R. § 123.35(b)(2). Any small MS4 that meets the criteria must be
designated for regulation and issued a discharge permit. 40 C.F.R. § 123.35(b)(3), (d).
6
For purposes of the NPDES permit program, an “urbanized area” is “determined
by the latest Decennial Census by the Bureau of the Census.” 40 C.F.R. § 122.32(a)(1).
“If [a] small MS4 is not located entirely within an urbanized area, only the portion that is
within the urbanized area is regulated[.]” Id.
7
The regulations require that the criteria be applied “at a minimum, to any small
MS4 located outside of an urbanized area serving a jurisdiction with a population density
(continued)
6
Under certain conditions, the Department may waive or phase-in the requirements
applicable to regulated small MS4s. 40 C.F.R. § 122.32(d) and (e); § 123.35(d). Where a
general permit is issued, an owner or operator of a small MS4 may request to be excluded
from the coverage of the general permit by applying for an individual permit. 40 C.F.R. §
122.28(b)(3)(iii).8
The procedure the Department must follow in issuing a permit is set forth in the
Environment (“EN”) Article. It requires “published notice of permit applications (EN § 1-
602), informational meetings (EN § 1-603), and publication of [the Department’s] tentative
determination (EN § 1-604(a)).” Potomac Riverkeeper, Inc. v. Maryland Department of
the Environment, 238 Md. App. 174, 204 (2018). “If the tentative determination is to [issue
the permit], EN § 1-604(a)(3) requires [the Department] to prepare a draft permit and
‘publish a notice of the tentative determination’ that provides 30 days for public comment,
and, if requested, hold a public hearing pursuant to EN § 1-604(a)(4).” Id.
If, during the notice and comment period, the Department receives comments
adverse to its tentative determination, the Department is required to prepare and publish a
notice of the final determination. EN § 1-604(b).9 “[T]he final version of the permit
of at least 1,000 people per square mile and a population of at least 10,000[.]” 40 C.F.R.
§ 123.35(b)(2).
8
The County has not tested these waters.
9
“If the Department is not required to prepare a final determination . . . the tentative
determination is a final decision by the Department when the permit is issued or denied.”
EN § 1-604(b)(3).
7
adopted in the final determination need not be identical to the one previously made
available for public comment.” Potomac Riverkeeper, 238 Md. App. at 204. As we have
observed, “[a]n alternative requirement precluding amendments could lead to a never-
ending cycle of comments and revisions.” Id. Moreover, there is no provision for
additional public comment on the Department’s final determination and revised final
permit. Id.
A final determination of the Department to issue a discharge permit is subject to
judicial review in the circuit court. EN § 1-601(c). The decision of the circuit court may
be appealed to this Court. EN § 1-601(e)(2).
B. Tentative Determination
On 22 December 2016, the Department notified the County and 34 other counties
and municipalities of its tentative determination to issue an NPDES general permit for
discharges from small MS4s. The County was one of 13 newly designated for coverage
under the Phase II permitting process. A draft of the permit was made available for review.
The Department advised that a public hearing concerning the tentative determination would
be held on 6 February 2017, and that written comments concerning the tentative
determination would be accepted through 30 March 2017.
Pertinent to this appeal, the Department’s tentative determination was that all MS4s
throughout the County were subject to regulation under the general permit. The
Department’s stated justification was that the County as a whole “is located within an
urbanized area.”
8
Also relevant is a proposed condition of the permit that requires permittees to initiate
efforts to restore twenty percent of the total impervious surface area within the urbanized
area of the MS4 jurisdiction that has little or no stormwater management.10 Permittees are
required to perform watershed assessments, identify water quality improvement
opportunities, secure appropriate funding, and develop an implementation schedule to
demonstrate that the twenty percent impervious area restoration requirement will be
achieved by 2025.
C. Comment Period
The County participated in the public hearing. Todd Mohn, the County’s Director
of Public Works, gave brief comments in which he questioned the County-wide designation
based on location within an urbanized area. Mr. Mohn stated that the tentative
determination was still under review and that the County reserved the right to provide
further comment.
In written comments submitted on 30 March 2017, the County maintained that the
scope of the proposed permit was overbroad, as less than four percent of the County fell
within an urbanized area as defined by statute and regulation. The County commented
further that the draft permit should be clarified to state that the twenty percent restoration
10
An “impervious surface” is an area that has “been paved or otherwise developed,
as opposed to natural, undeveloped areas.” Carroll County, 465 Md. at 195. “To ‘restore’
an impervious surface is to make it function more like a natural terrain that absorbs and
filters rain water.” Id. Examples of restoration efforts listed in the general permit include
environmental site design, structural stormwater controls, retrofitting, and stream
restoration.
9
requirement applied only to the impervious coverage within the legitimate urbanized area
that is served by the County’s MS4. The County expressed support for the joint comments
submitted by the Maryland Association of Counties, the Maryland Municipal League, and
the Maryland Municipal Stormwater Association (collectively, “Associations”).
One of the concerns articulated in the Associations’ comments was that the
Department had stated and applied improperly the criteria for designating small MS4s for
coverage:
[t]he Draft [general permit] appears to designate an entire jurisdiction if only
a part of the jurisdiction is within an [urbanized area]. This is manifestly
improper. [The Department] should clarify in the final [general permit] and
Fact Sheet that, for any small MS4 owned or operated by a jurisdiction
identified on Table A.1 as “within an urbanized area,” the permit’s
requirements apply only to portions of the MS4 within the [urbanized area].
For these reasons, the Associations object to the designation of any
jurisdiction on Table A.1 unless that jurisdiction owns or operates an MS4
within an [urbanized area]. And among the potential designees based on the
[urbanized area] criterion, if a particular jurisdiction provides information
that its MS4 is located outside of the [urbanized area], it should not be
required to obtain permit coverage, and should be dropped from Table A.1
(unless the locality voluntarily elects to accept the designation.)
In addition, the Associations asserted that the baseline impervious area assessment
used to calculate the twenty percent restoration requirement should not include any
impervious area not served by the MS4. The Associations maintained that “a permittee is
not responsible for nonpoint sources (properties with sheet flow from the parcel[s] into
streams, creeks, etc.) and third-party direct dischargers (properties with their own discharge
points into streams, creeks, etc.) that do not enter into and are not discharged from the
permittee’s MS4.”
10
A third concern raised by the Associations is that the twenty percent restoration
requirement and other terms of the permit exceeded the “maximum extent practicable”
(“MEP”) standard for many potential permittees and was therefore unlawful.
D. Final Determination
On 27 April 2018, the Department issued a final determination to issue the general
permit, together with a document entitled “Basis for Final Determination” that provided an
explanation for its actions and responded to public comments addressed to the tentative
determination. The Basis for Final Determination included information regarding a
process and criteria used to designate MS4s located in non-urbanized areas. The
Department also addressed comments regarding impervious area restoration requirements
and concerns about permit conditions in excess of the MEP, into which we shall delve in
greater detail later in this opinion.
Contemporaneous with the final determination, the Department sent a letter to the
County, stating a different rationale than in the tentative determination for designating the
entire geographic area of the County. In lieu of justifying inclusion of the County as a
whole, based on a finding that it was located within an urbanized area, the Department
explained, apparently for the first time, that it had evaluated MS4s outside of the urbanized
areas and determined that the “County’s stormwater discharges result in or have the
potential to result in exceedances of water quality standards or other significant water
quality impacts,” and therefore were subject to regulation pursuant to 40 C.F.R. §
123.35(b)(1)(i).
The Department described the designation process and criteria as follows:
11
The Department’s water quality criteria for evaluating MS4s in non-
urbanized areas are based on the State’s TMDL program and the Maryland
Biological Stream Survey (MBSS).[11] Maryland’s TMDL program includes
water quality assessments found in the Integrated Report of Surface Water
Quality [ ] which identifies waters that meet water quality standards, and
waterways that are impaired or threatened and require TMDLs.
Documentation includes watershed assessments, water quality data, and
mapping of impaired waterways. These water quality analyses are reviewed
by the Department to determine whether MS4 discharges may contribute to
stream impairments or exceedances of water quality standards.
The MBSS data are a comprehensive compilation of local water quality
conditions throughout the State of Maryland. The data are based on field
protocols that evaluate stream impairments and water quality through fish
and habitat indicators. The MBSS data show that streams receiving
stormwater runoff from urban development often have degraded biological
communities. Results of these field surveys provide ratings of “good”,
“fair”, “poor”, or “very poor” indicating overall stream health. The MBSS
data are reviewed by the Department to determine whether MS4 discharges
have the potential to impact biological and habitat conditions in local
streams.
The Department stated that, in accordance with that process and criteria, it had
evaluated MS4s in the County that are located outside the urbanized area and made the
following findings:
• The majority of local TMDLs in Queen Anne’s County are located
outside of the urbanized area, and significant urban land use exists
outside of the Centreville Urban Cluster. Local TMDLs include
impairments for bacteria in Corsica River, Lower Choptank River
Mainstem, Eastern Bay, Wells Cove, Wye River, and Lower Chester
River; mercury in Tuckahoe Lake; nutrients in Corsica River and
Middle Chester River; polychlorinated biphenyls (PCBs) in Corsica
River; and phosphorus in Southeast Creek.
11
TMDL is an acronym for “total maximum daily load,” which is “a measure of
the total amount of a pollutant from point sources, nonpoint sources and natural
background, that a water quality limited segment can tolerate without violating the
applicable water quality standards.” Potomac Riverkeeper, Inc. v. Maryland Dep’t of the
Env’t, 238 Md. App. 174, 185 (2018) (citation omitted).
12
• 26 MBSS stations located outside of the urbanized area indicate a
score of poor or very poor stream health for numerous streams and
watersheds. Many of these are located in unnamed tributaries in the
Corsica River watershed and streams in the Chester River watershed
including Red Lion Branch and Andover Branch.
• The 2016 Integrated Report documented that Rosin Creek and an
unnamed tributary to the Upper Chester River are impaired due to
total suspended solids (TSS), indicating that these streams do not meet
water quality standards.
• Tributaries draining into the Centreville Urban Cluster and the
Corsica River are impaired by an unknown source affecting aquatic
life.
After setting forth its findings, the Department concluded that:
[s]tormwater discharges inside and outside of the County’s urbanized area
contribute to these water quality impairments and future MS4 discharges
have the potential to cause significant water quality impacts.[12] Because of
the link between the County’s MS4 discharges and water quality impairment,
the geographic area under the authority of Queen Anne’s County has been
designated by the Department for coverage under the general permit.
Subsequently, the County must submit a Notice of Intent (NOI) in
accordance with the general permit and obtain coverage under the NPDES
MS4 program.
The County did not submit a Notice of Intent, but filed instead a petition for judicial
review of the Department’s final determination. The circuit court affirmed the
Department’s decision to approve and issue the general NPDES discharge permit. This
appeal followed.13 Additional facts will be introduced later in this opinion.
12
In a footnote, which we have omitted, the Department provided a link to the water
quality documentation referred to in the letter.
13
The appeal was filed originally by the Maryland Small MS4 Coalition,
representing Queen Anne’s County and Cecil County, and by Queen Anne’s County as a
separately named party. Cecil County dismissed its appeal.
13
STANDARD OF REVIEW
“In an appeal of the circuit court’s review of an agency action, an appellate court
reviews the agency’s action itself rather than the decision of the circuit court.” Carroll
County, 465 Md. at 201 (citing Hollingsworth v. Severstal Sparrows Point, LLC, 448 Md.
648, 654 (2016)). “Our role is ‘limited to determining if there is substantial evidence in
the record as a whole to support the agency’s findings and conclusions, and to determine
if the administrative decision is premised upon an erroneous conclusion of law.’”
Richardson v. Maryland Dep’t of Health, 247 Md. App. 563, 569 (2020) (quoting
Milliman, Inc. v. Md. State Ret. and Pension Sys., 421 Md. 130, 151 (2011)), cert. denied
sub nom. Richardson v. Md. Dep’t of Health, 472 Md. 17 (2021).
“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
agency’s fact findings, discretionary decisions, or legal conclusions.” Carroll County, 465
Md. at 201 (citing Anacostia Riverkeeper, 447 Md. at 118-21). The Court of Appeals
summarized these varying standards as follows:
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.
Anacostia Riverkeeper, 447 Md. at 120, 134 A.3d 892. In particular, with
respect to factual issues that involve scientific matters within an agency’s
area of technical expertise, the agency is entitled to “great deference.” Id.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. Harvey v. Marshall, 389 Md. 243,
14
296-99, 884 A.2d 1171 (2005); Spencer v. Md. State Bd. of Pharmacy, 380
Md. 515, 529, 846 A.2d 341 (2004). This standard is highly contextual, but
generally the question is whether the agency exercised its discretion
“unreasonably or without a rational basis.” Harvey, 389 Md. at 297, 884
A.2d 1171; Arnold Rochvarg, Maryland Administrative Law, § 20.1 at 255
(2011).
Under this standard, a reviewing court is not to substitute its own judgment
for that of the agency and should affirm decisions of “less than ideal clarity”
so long as the court can reasonably discern the agency’s reasoning. Bowman
Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86,
95 S.Ct. 438, 42 L.Ed.2d 447 (1974).
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 fact findings or
discretionary decisions. Anacostia Riverkeeper, 447 Md. at 122, 134 A.3d
892. In particular, a court will not uphold an agency action that is based on
an erroneous legal conclusion. Id. However, in construing a law that the
agency has been charged to administer, the reviewing court is to give careful
consideration to the agency’s interpretation.
Id. at 201-03.
Our review of the Department’s final determination to issue the permit is based on
the administrative record before the Department. EN § 1-601(d). We limit our review to
objections raised during the public comment period. Id. If, however, the petitioner seeking
judicial review demonstrates that “(i) [t]he objections were not reasonably ascertainable
during the comment period; or (ii) [g]rounds for the objection arose after the comment
period[,]” we must remand to the Department for consideration of such objections. Id.
Remand is not required “if the proffered new objections are not materially different from
objections that were already considered” by the Department. Potomac Riverkeeper, 238
Md. App. at 205.
15
ANALYSIS
The County identifies two provisions of the permit as relevant to this appeal. The
first is the designation of the area subject to regulation. The County argues that the
Department’s designation of areas outside of the actual urbanized area of the County (1)
exceeded the Department’s authority, (2) was procedurally deficient, and (3) was not
supported by substantial evidence.
The second provision the County challenges is the requirement that it commence
restoration efforts for twenty percent of impervious acreage within the urbanized area. The
County asserts that this condition unlawfully makes it responsible for third-party and
nonpoint source stormwater discharges.
The County further asserts that the Department lacks authority to impose conditions
that exceed the “maximum extent practicable” standard, and, therefore, the restoration
requirement and any other permit conditions that exceed that standard are invalid. We shall
address the County’s contentions in turn.
I. Designation of Area Subject to Permit
The County concedes that the portion of its MS4 that is located in the actual
urbanized area is subject to regulation under the CWA. The County asserts, however, that
the Department’s designation of MS4s outside of the urbanized area, based on purported
links to broader and perhaps non-contemporary water quality impairments, was contrary
to federal and State law because (1) the Department did not provide notice of the process
or criteria used in the designation process until after the opportunity for public comment
expired, and (2) the Department’s finding of a causal or potentially causal connection
16
between waterbody impairment and discharge from County-operated MS4s outside of the
urbanized area was not supported by substantial evidence.
The Department maintains that the County had ample opportunity to raise concerns
regarding the area of designation because the County participated in informal discussions
regarding the designation criteria in the federal regulations and their applicability to the
County. The Department asserts further that, based on data showing impairments in water
quality in rivers and streams flowing through the County, it was reasonable for the
Department to find that County-operated MS4s located outside of the urbanized area at
least contributed potentially to excesses in water quality standards or resulted in other
significant water quality impacts in the County.
Based on our review of the administrative record, we conclude that, pursuant to EN
§1-601(d), remand is required because the grounds for the Department’s ultimate
determination that there was a link between the County’s MS4s and water quality
impairments were not reasonably ascertainable during the comment period, but were
evident only when the final determination was issued, after the comment period expired.
We explain.
When the Department issued its tentative determination and published the draft
general permit for public comment, the justification for designating all County-operated
MS4s for regulation under the general permit was they were “located within an urbanized
area.” The County objected to that justification on grounds that only a small area of the
County was actually an urbanized area. In the Department’s final determination, however,
it revised its justification for designating all MS4s in the County, asserting that, based on
17
criteria which apparently had not been made public previously, the Department had
determined that “[s]tormwater discharges inside and outside of the County’s urbanized area
contribute to [ ] water quality impairments[,] and future MS4 discharges have the potential
to cause significant water quality impacts.”
The Department’s contention that the County had an opportunity to object to the
Department’s designation of MS4s outside of the urbanized area prior to the issuance of
the final determination is not supported by the record. The email correspondence that the
Department highlights in support of this contention was sent prior to the tentative
determination and explains the designation of the entire County pursuant only to the
urbanized area criteria in 40 C.F.R. § 122.32(a)(1). The Department points also to
documentation that demonstrates generally that the County participated in informal
meetings regarding the Department’s tentative determination. We can find nothing in that
documentation, or elsewhere in the record, however, demonstrating that, prior to the
expiration of the comment period, the County was put on notice of the Department’s
determination that MS4s outside of the County’s actual urbanized area were subject to
regulation based on a purported link to water quality impairments, pursuant to 40 C.F.R. §
123.35(b)(1)(i). Nor does it appear that such a determination was a foreseeable response
to the comments made during the public comment period. Cf. Potomac Riverkeeper, 238
Md. App. at 211 (holding that interested parties had adequate opportunity to anticipate and
comment on terms of final permit as such terms were a reasonably foreseeable response to
public comments). We conclude that the County’s objections to the final determination
18
regarding the area of designation were not “reasonably ascertainable” during the comment
period, but were evident only upon issuance of the final determination.
Consequently, pursuant to EN § 1-601(d), remand is required to allow the County
an opportunity to comment on the Department’s determination that MS4s outside of the
urbanized area of the County are subject to regulation under the NPDES, and so that the
Department may consider the County’s objections. To those ends, we shall vacate the
circuit court’s judgment affirming the Department’s final determination as it pertains to the
area of the County that is subject to regulation under the general permit and remand to the
circuit court with instructions to remand to the Department for further proceedings
consistent with this opinion.
Because the County concedes that the portion of its MS4 located within the actual
urbanized area is subject to the permitting requirements of the Clean Water Act, we shall
consider the remaining issues as they may apply to whatever the permit area turns out to
be.
II. Responsibility for Nonpoint Source Runoff and Third-Party Discharge?
The County contends that the Department exceeded its jurisdictional authority by
imposing permit conditions that assign responsibility to the County to remediate pollutants
in stormwater that does not enter the County’s MS4, such as nonpoint source runoff or
third-party discharge. In support of this contention, the County relies on 40 C.F.R. §
122.26(a)(9)(i)(A), which, as it applies to small MS4s, provides that “for discharges
composed entirely of storm water . . . operators shall be required to obtain a NPDES permit
19
only if . . . [t]he discharge is from a small MS4 required to be regulated pursuant to [40
C.F.R.] § 122.32.” (emphasis added).
On this point, the County focuses primarily on the requirement to restore twenty
percent of all untreated impervious surface within the urbanized area. Because the entire
urbanized area of the County is not served by the County’s MS4, requiring restoration of
twenty percent of the total impervious surface area within the urbanized area makes the
County responsible for nonpoint source runoff that does not enter and therefore is not
discharged from its MS4. Similarly, the County claims that the total impervious surface
in the urbanized area includes privately-owned industrial, residential, and commercial
developments that often have their own stormwater drainage systems and, therefore, the
requirement to restore twenty percent of the total impervious surface area in the urbanized
area assigns responsibility for third-party point source discharge that is not discharged from
the County’s MS4.14
The Department responds that neither the impervious restoration requirement nor
any other provision of the general permit makes the County responsible legally for
14
On appeal, the County challenges two additional provisions of the permit: “Good
Housekeeping” requirements, which direct the County to control stormwater on its own
properties; and post-construction stormwater runoff control requirements, which direct the
County to regulate stormwater on property where planned construction projects will disturb
5,000 square feet or more of land area. The County maintains that, to the extent such
properties are not served by the regulated portion of its MS4, those conditions constitute
unauthorized regulation of nonpoint source pollution discharge and are therefore invalid.
We do not consider these objections as they were not raised during the public comment
period. EN § 1-601(d). The only permit condition that appears to have been challenged
as an unlawful regulation of nonpoint source runoff is the impervious surface restoration
requirement.
20
discharges occurring outside of its MS4 system. The Department maintains that the
impervious surface restoration requirement merely uses the extent of the County’s
urbanized area “as a means to calculate the amount of pollution reduction that the County
must achieve to offset the water quality impacts of its MS4 system.” The Department
points out that the County is free to implement restoration requirements within the limits
of its MS4 system, that any impervious areas in the urbanized area that is treated already
with approved stormwater management practices or natural filtration is not included in the
baseline assessment, and that liability for any unauthorized discharge of pollution from
third-party point sources remains with the third party, not the County. The Department
asserts that the decision of the Court of Appeals in Carroll County is dispositive on this
point. Before examining the parties’ contentions and applicable law in depth, a brief
overview of the Chesapeake Bay TMDL and Maryland’s responsibilities with respect to
the Bay TMDL will be a useful point-of-departure.
A. Chesapeake Bay TMDL and the Maryland Watershed Implementation Plan
Under the CWA, each state is directed to “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)) (footnote omitted). “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 [total maximum daily load] for
that pollutant as to that waterway.” Id. (citing 33 U.S.C. § 1313(d)(1)(C)). In other words,
21
a TMDL is a “cap on the pollutant[,]” or, as it is sometimes referred to, a “‘pollution
budget’ or ‘pollution diet.’” Id. (citation omitted).
Generally, pollution limits established in a TMDL are apportioned to the relevant
sources of that pollution, which include point sources and nonpoint sources. Carroll
County, 465 Md. at 192 (citing 40 C.F.R. §§ 130.2(i), 130.7(c)). As alluded to earlier, a
point source is defined as “any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, [or other types of conveyance], from which
pollutants are or may be discharged.” 33 U.S.C. § 1362(14). By contrast, nonpoint source
pollution “comes from dispersed areas like farms or fields where water runs off the land
without being collected or channeled into a point source.” Carroll County, 465 Md. at 184
(footnote omitted). “The [CWA] does not require permits for nonpoint sources or
otherwise directly regulate them[,]” although states, including Maryland, have regulatory
programs that address nonpoint sources of water pollution. Id. at 185.
“The portion [of pollutant limits] assigned to each relevant point source is called a
‘wasteload allocation.’” Id. at 192 (citing 40 C.F.R. § 130.2(h)). “The portion assigned to
each nonpoint source is called a ‘load allocation.’” Id. (citing 40 C.F.R. § 130.2(g)).
“[T]he TMDL – in the sense of a 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.” Id. (citing 40 C.F.R. §§ 130.2(i), 130.7(c)(1)).
In 2010, the EPA established a TMDL for the Chesapeake Bay, as part of an effort
to restore the water quality of the Bay. See Anacostia Riverkeeper, 447 Md. at 106. The
Bay TMDL “identifies the necessary pollution reductions of nitrogen, phosphorus and
22
sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia,
and the District of Columbia and sets pollution limits necessary to meet applicable water
quality standards in the Bay and its tidal rivers and embayments.” Chesapeake Bay TMDL
Executive Summary, 1.15 These pollution limits are divided among the seven Bay
jurisdictions according to major river basins. Id. at 7. For Maryland, the pollution limits
for nitrogen, phosphorus, and sediment are allocated between the Susquehanna, Eastern
Shore, Western Shore, Patuxent and Potomac basins. Id. (Table ES-1).
To achieve the goals of the Bay TMDL, the EPA directed each Bay jurisdiction to
create a “Watershed Implementation Plan” (“WIP”), which “functions as a ‘roadmap’ for
how and when the State will reach the pollution reduction goals set forth in the Bay
TMDL.” Carroll County, 465 Md. at 194-95 (citing Anacostia Riverkeeper, 447 Md. at
109). Each state was expected to subdivide the Bay TMDL allocations among pollutant
sources and evaluate “current legal, regulatory, programmatic and financial tools available
to implement the allocations; identify and rectify potential shortfalls in attaining the
allocations; describe mechanisms to track and report implementation activities; provide
alternative approaches; and outline a schedule for implementation.” Chesapeake Bay
TMDL Executive Summary, 8-9.
15
The Chesapeake Bay TMDL Executive Summary is available here:
https://www.epa.gov/sites/production/files/2014-
12/documents/bay_tmdl_executive_summary_final_12.29.10_final_1.pdf (last visited 24
March 2021).
23
Maryland’s WIP subdivided the Bay TMDL according to the following source
sectors: wastewater, septic systems, regulated stormwater, sediment and erosion control,
concentrated animal feeding operations, agriculture, atmospheric sources, and “other
sources.” Maryland’s Final Phase I Watershed Implementation Plan – Executive Summary
(Dec. 3, 2010) (“Maryland WIP”), ES-8.16 As explained in the Executive Summary,
strategies to be employed by the State to achieve the goals of the Bay TMDL included
“increasing acres retrofitted with stormwater controls[.]” Id. at ES-5. Pertinent to this
appeal, the Maryland WIP called for NPDES stormwater discharge permits for Phase I and
Phase II MS4 jurisdictions to include a requirement for restoration of a percentage of
impervious surface that does not have adequate stormwater controls. 17 Maryland WIP at
5-7, 5-8.
B. General Permit Impervious Restoration Requirement
The Maryland WIP strategy to implement impervious surface restoration through
the issuance of NPDES permits is incorporated into Part V of the general permit at issue in
16
The Maryland Phase I Watershed Implementation Plan, including the Executive
Summary, is available at:
https://mde.maryland.gov/programs/Water/TMDL/Documents/www.mde.state.md
.us/assets/document/MD_Phase_I_Plan_12_03_2010_Submitted_Final.pdf (last visited
25 March 2021).
17
An impervious surface, as alluded to briefly in n.10 at 9 supra, is one which “does
not allow stormwater to infiltrate into the ground[,]” such as “rooftops, driveways,
sidewalks, or pavement.” EN § 4-201.1(d). As the Court of Appeals has observed, “the
volume of stormwater runoff increases sharply with impervious cover.” Anacostia
Riverkeeper, 447 Md. at 125 (quoting the 2000 Maryland Stormwater Design Manual §
1.1, at 1.4). The purpose of restoring impervious surface is “to abate [] the increase in
stormwater runoff and the discharge of pollutants because of the increase in impervious
surfaces.” Id.
24
this appeal. Permittees are required to develop a “baseline impervious area assessment”
which is then used to calculate the twenty percent restoration requirement. For small MS4
counties designated for coverage in the general permit, the baseline is determined
“according to the impervious surfaces within the urbanized area of that jurisdiction.”
In addition to calculating the total impervious acres within the urbanized area, each
permittee must submit information regarding the acreage within that area that is already
treated with BMPs. The restoration requirement applies to twenty percent of the total
impervious surface in the urbanized area that has no such treatment. The general permit
requires permittees to commence restoration activities that will achieve the twenty percent
restoration requirement by 2025.
C. Maryland Department of the Environment v. Carroll County, et al.
The potential impact of this case compels a closer look. In 2014, Carroll County
and Frederick County (“counties”) were issued renewed Phase I permits for their respective
medium MS4s. Carroll County, 465 Md. at 197. The permits included a requirement to
restore twenty percent of impervious surface based on a county-wide total of unrestored
impervious surface, although the counties’ MS4s serve only a portion of the counties’
geographic area. Id. at 230-31. The counties appealed, asserting the same argument made
here: specifically, that NPDES permits regulate discharges of pollutants only from the MS4
itself, and, therefore, the county-wide baseline for impervious surface restoration exceeded
the Department’s authority under the CWA, as it made effectively the permittees
responsible for discharges that never entered their MS4 systems. Id. at 231-33. The Court
25
of Appeals rejected that argument and upheld the county-wide impervious surface
calculation as a basis for restoration requirements. Id. at 264.
The Court of Appeals began its analysis that led to that holding by noting that “the
impervious surface restoration term is a water quality based effluent limitation authorized
by 33 U.S.C. § 1342(p)(3)(B)(iii).”18 Id. at 234. The Court stressed that such a requirement
does not control directly pollution, but is, instead, “a surrogate or proxy for an amount of
pollution to be reduced.” Id. The Court explained that, according to Department guidance,
the type and quantity of impervious surface restoration activities forms the basis for
calculating loads of pollution reduced, “[t]hus, when the Department is determining how a
county should calculate the number of impervious surface acres to be restored, the
Department is effectively determining a measure of pollution reduction.” Id.
The Court then noted that, according to EPA regulations, water quality based
effluent limitations, such as impervious surface restoration, must be “derived from
applicable water quality standards, without reference to a practicability test.” 19 Id. at 234
18
“Effluent limitations may be ‘technology based’ or ‘water quality based.”
Carroll County, 465 Md. at 186 (citation omitted). “[T]echnology based effluent
limitations are designed from the perspective of the discharger while controls based on
water quality standards – water quality based effluent limitations – are designed from the
perspective of the waterway.” Id. at 211.
19
The Court explained that, “‘[d]eriving water quality-based effluent limits from
water quality standards is the only reliable method for developing water quality-based
effluent limits that protect aquatic life and human health.’” Carroll County, 465 Md. at
234 (quoting EPA, National Pollution Discharge Elimination System: Surface Water
Toxics Control Program – Final Rule, 54 Fed. Reg. 23868, 23879 (2 June 1989) (additional
citation omitted).
26
(citing 40 C.F.R. § 122.44(d)(1)(vii)(A)). Therefore, “when establishing how each
[c]ounty is to calculate the number of impervious surface acres to be restored – i.e., the
proxy for an amount of pollution to be reduced – the [CWA] and EPA regulations direct
the Department to focus on what is necessary to achieve water quality standards in the Bay
and the waters that feed it.” Id. at 235. The Court concluded that “the Department’s use
of a county-wide baseline as a reference point for calculating the impervious surface
restoration condition does not exceed the Department’s authority under the Act because
the impervious surface restoration condition implements a stormwater wasteload allocation
in a TMDL (specifically, the Bay TMDL) designed to achieve water quality standards.”
Id. at 235.
In explicating its rationale, the Court noted with approval an EPA policy allowing
permitting authorities to allocate pollutant loads between point and nonpoint sources as
needed to achieve the TMDL limit, “including potentially ratcheting up the requirements
on point sources when necessary.” Id. at 236. The Court concluded: “[t]hus, nonpoint
source pollution reduction may be assigned to point sources – i.e. through wasteload
allocations in the development of TMDLs.” Id. at 237.
The Court noted further that, pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B), point
source permits must “contain effluent limitations consistent with the ‘assumptions and
requirements’ in wasteload allocations in applicable TMDLs.” 20 Id. The Court concluded,
in summary, that:
20
In pertinent part, 40 C.F.R. § 122.44(d)(1)(vii)(B) provides:
(continued)
27
The impervious surface restoration term in the [c]ounties’ MS4 permits is a
numeric water quality based effluent limitation corresponding to Maryland’s
stormwater wasteload allocation within the Bay TMDL. As such, when
crafting that limitation, the Department was authorized to focus on what
would be necessary to achieve water quality standards, and the Department
determined that the baseline calculation method it chose was necessary to
achieve applicable water quality standards for the Bay. The Department did
not exceed its authority under the Clean Water Act when it directed
calculation of the impervious surface using a county-wide baseline.
Id. at 238.
D. Analysis
The Department’s response to adverse comments to the tentative determination to
require MS4 permittees to restore twenty percent of untreated impervious surface
throughout the urbanized area of the permittee’s jurisdiction, including acreage that is not
served by the MS4, was as follows:
Restoration requirements in the permit are based on the strategies outlined in
Maryland’s WIP for addressing stormwater discharges that impact the
Chesapeake Bay. The WIP establishes the load reductions required to meet
the Bay TMDL and the EPA has approved the 20% restoration strategy for
meeting these targets. Conditions in the general permit must incorporate
assumptions in the WIP so that Maryland may achieve the necessary
pollution reductions.
We agree with the Department that, under Carroll County, the general permit condition
that requires the County to commence restoration efforts on twenty percent of the
[w]hen developing water quality-based effluent limits under this
paragraph the permitting authority shall ensure that . . . [e]ffluent limits
developed to protect a narrative water quality criterion, a numeric water
quality criterion, or both, are consistent with the assumptions and
requirements of any available wasteload allocation for the discharge prepared
by the State and approved by EPA pursuant to 40 C.F.R. [§] 130.7.
28
impervious surface in the urbanized area does not exceed the Department’s jurisdiction
because just as in Carroll County, the permit condition at issue in this appeal is “a numeric
water quality based effluent limitation corresponding to Maryland’s stormwater wasteload
allocation within the Bay TMDL.” 465 Md. at 238.
The County attempts to distinguish Carroll County, asserting that the rationale for
upholding the restoration requirement for medium MS4 operators was that responsibility
for pollutant loads from nonpoint sources “had been . . . assigned to [medium MS4
operators] in the Chesapeake Bay TMDL.” The County argues that the Bay TMDL, which
was issued in 2010, did not “assign” responsibility to small MS4s for nonpoint source
runoff and, therefore, the rationale in Carroll County does not apply here. We disagree.
As discussed, Maryland’s WIP, which was submitted in 2010, the same year as the
TMDL was established, called for an impervious surface restoration provision in all MS4
permits, including permits to be issued, beginning in 2012, to small MS4s, during Phase II
of the permitting process. The Court of Appeals noted that the general permit applicable
to Phase II small MS4s includes an impervious surface restoration term, Id. at 229 n.58,
but the Court did not limit its holding to Phase I permits. Accordingly, we find no merit in
the County’s claim that Carroll County is distinguishable because the permittees in that
case were medium MS4s that had previously been “assigned” responsibility for nonpoint
source pollution.21
21
The County submits that the reasoning in Carroll County “should be revisited for
all MS4s, not just jurisdictions similarly situated to Queen Anne’s County.” As we have
stated, “the ruling of the Court of Appeals remains the law of this State until and ‘[u]nless
(continued)
29
As the Court of Appeals observed, pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B),
“the discharge permit for each point source is to contain water quality based effluent
limitations consistent with the ‘assumptions and requirements’ of the wasteload allocation
for that source in any applicable TMDL.” Id. at 193. We find nothing in the federal
regulations to suggest that a new discharge permit that is issued after a TMDL has been
established is exempt from water quality based effluent limitations consistent with attaining
that TMDL. We agree with the Department that the notion that the County advances - that
the consistency requirement does not apply to any MS4 that was unregulated when the Bay
TMDL was issued in 2010 - is contrary to the premise of a TMDL, which is “designed to
achieve water quality standards.” Id. at 235.
Moreover, it is clear that the consistency requirement applies equally to small MS4s.
Permit requirements for small MS4s are set forth in 40 C.F.R. § 122.34. In pertinent part,
subsection (c)(1) of that regulation provides that, “[a]s appropriate, the permit will include
. . . [m]ore stringent terms and conditions, including permit requirements that modify, or
are in addition to, the minimum control measures based on an approved total maximum
daily load (TMDL) or equivalent analysis, or where the Director determines such terms
and conditions are needed to protect water quality.”
those decisions are either explained away or overruled by the Court of Appeals itself.’”
Scarborough v. Altstatt, 228 Md. App. 560, 577-78 (2016) (quoting Loyola Fed. Sav. &
Loan Ass’n v. Trenchcraft, Inc., 17 Md. App. 646, 659 (1973)). Thus, assent to the
County’s request in this regard is clearly above our pay grade. Of course, whether the
relevant federal statutes or regulations are to be revised is also for others to consider.
30
In sum, we conclude that the impervious surface restoration requirement in the
general permit, like that in Carroll County, is an authorized water quality based effluent
limitation that represents a valid reallocation of pollutant loads from nonpoint sources to
point sources and that implements a stormwater wasteload allocation in the Bay TMDL.22
Accordingly, we hold that the Department did not exceed its authority under the Clean
Water Act when it directed calculation of the impervious surface to be restored based on
the total impervious surface within the urbanized area of the County that has little or no
stormwater management.
III. Permit Conditions in Excess of the Maximum Extent Practicable?
As we noted earlier in this opinion, it is not feasible to apply numeric effluent
limitations to the regulation of stormwater. Accordingly, “Congress adopted a flexible
approach to the control of pollutants in MS4s.” Anacostia Riverkeeper, 447 Md. at 98.
(citing 55 Fed. Reg. 48,038). In lieu of numeric effluent limitations that are applied to
other point sources, municipal stormwater permits “shall require controls to reduce the
22
Because we have concluded that the impervious surface restoration requirement
represents a valid reallocation of pollutant loads from nonpoint sources to point sources, in
order to achieve water quality standards based on the Bay TMDL, we need not address the
County’s alternative argument, which is that the requirement is unlawful because it makes
the County responsible for third-party point source discharges in the urbanized area that do
not enter the County’s MS4.
As we understand Carroll County, the Department is authorized to impose an
impervious surface restoration requirement that represents a reallocation of nonpoint
source discharge to a point source in order to comply with the TMDL. If the Department’s
determination to include the requirement may be affirmed on that basis, the alternative
third-party argument is inconsequential.
31
discharge of pollutants to the maximum extent practicable . . . .” 33 U.S.C. §
1342(p)(3)(B)(iii).23
“Maximum extent practicable” is not defined in the CWA or by the EPA. The “EPA
has intentionally not provided a precise definition of MEP to allow maximum flexibility in
MS4 permitting[,]” based on the rationale that “MS4s need the flexibility to optimize
reductions in storm water pollutants on a location-by-location basis.” EPA, National
Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution
Control Program Addressing Storm Water Discharges – Final Rule, 64 Fed. Reg. 68722,
68754 (December 8, 1999) (codified at 40 C.F.R. § 122.34).
In Carroll County, the Court of Appeals held that “[t]he Department may lawfully
include an impervious surface restoration requirement in an MS4 permit without reference
to the MEP standard.” Carroll County, 465 Md. at 264. The County disagrees with that,
seeking favor in the dissenting opinion in Carroll County, which concluded that the CWA
does not authorize the Department to impose requirements that exceed the “maximum
extent practicable” standard. Id. at 267 (J. Hotten, dissenting).
The County maintains that, aside from the impervious surface restoration
requirement, the permit contains other beyond-MEP conditions that cannot be considered
23
Consistent with the CWA, the federal regulations applicable to small MS4
permits provide that “[f]or any permit issued to a regulated small MS4, the NPDES
permitting authority must include permit terms and conditions to reduce the discharge of
pollutants from the MS4 to the maximum extent practicable (MEP), to protect water
quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.”
40 C.F.R. § 122.34(a).
32
“water quality based effluent limitations,” and, therefore, are not valid under Carroll
County. Specifically, the County points to permit conditions that require mapping of the
MS4 system, screening of outfalls, and implementation of “good housekeeping” plans for
municipal properties where specified “key” activities are conducted.
The Department responds that the mapping, good-housekeeping, and pollution
prevention permit conditions are water quality based conditions because they control
indirectly the discharge of pollutants, but that, in any event, federal regulations allow
imposition of conditions that are not “water quality based” if needed to protect water
quality. Alternatively, the Department submits that the conditions challenged by the
County do not exceed MEP and/or are otherwise authorized under federal law.
Permit requirements for small MS4s are set forth in 40 C.F.R. § 122.34. Subsection
(b) of the regulation provides that such permits must “include requirements that ensure the
permittee implements, or continues to implement” six “minimum control measures”
(“MCMs”) in the following categories: (1) public education and outreach on storm water
impacts; (2) public involvement/participation; (3) illicit discharge detection and
elimination; (4) construction site storm water runoff control; (5) post-construction storm
water management in new development and redevelopment; and (6) pollution
prevention/good housekeeping for municipal operations. 40 C.F.R. § 122.34(b). The
permitting authority must identify the minimum elements for each MCM, although the
regulations set forth specific minimum requirements for some MCMs and provide general
guidance.
33
The Mapping requirement
To implement the MCM, which is aimed at the detection and elimination of illicit
discharges into the MS4, regulated small MS4s are required to develop a system map. In
pertinent part, the regulation provides that, “at a minimum,” the permittee must be required
to develop a map showing “the location of all outfalls and the names and location of all
waters of the United States that receive discharges from those outfalls[.]” 40 C.F.R. §
122.34(b)(3)(i)(A). The draft permit that accompanied the tentative determination required
permittees to maintain a map of the MS4 “which identifies all pipes, outfalls, inlets,
stormwater management best management practices (BMPs), illicit discharge screening
locations, and surface waters[.]”24
In response to public comments regarding the required map features, the
Department explained that “BMPs that manage stormwater are part of an MS4 and
therefore are required to be mapped under this permit condition[,]” and that “[s]tormwater
conveyances, including pipes, drainage swales, and ditches, are a major component of an
MS4 and therefore are required to be included under this permit condition.” The
Department explained further that the location of BMPs was necessary to comply with
24
The draft permit is not included in the record but is found on MDEC in the circuit
court case: C-17-CV-18-000162, 7/26/18 “Supporting Document Record Documents 010”
at 130-199.
34
State stormwater management regulations that require triennial inspections of stormwater
management practices.25
The Department acknowledged that “the number of inlets could be substantial and
will require a significant effort to map[,]” and, on those grounds, removed inlets from the
mapping requirements for the current permit term. The Department noted that language in
the final permit was “revised to include stormwater conveyances to clarify that the MS4 is
not limited to pipe infrastructure.”
In the final permit, the mapping condition reads as follows:
In order to comply with this MCM, all permittees must:
1. Develop and maintain an updated map of the MS4 that identifies all
stormwater conveyances, outfalls, stormwater best management
practices (BMPs), and waters of the U.S. receiving stormwater
discharges[.][26]
The County asserts that the mapping requirement is beyond MEP because it “far
exceed[s]” federal requirements. We are not persuaded so. The federal regulation requires
that “at a minimum,” permittees must be required to map outfalls and receiving waters. 40
C.F.R. § 122.34(b)(3)(i)(A). It is otherwise up to the permitting authority to identify
additional minimum elements to ensure that permittees develop, implement, and enforce a
program to detect and eliminate illicit discharges into the MS4. Moreover, subsection(c)
25
See 40 C.F.R. § 123.35(f) (authorizing permitting authorities to “include
conditions in a regulated small MS4 NPDES permit that direct the MS4 to follow an
existing qualifying local program’s requirements, as a way of complying with some or all
of the [minimum control measure] requirements in [40 C.F.R.] § 122.34(b)[.]”)
26
The phrase “surface waters” was replaced with “waters of the U.S. receiving
stormwater discharges” to be consistent with the language in the regulation.
35
of the regulation vests the Department with discretion to include “[m]ore stringent terms
and conditions, including permit requirements that modify, or are in addition to, the
minimum control measures . . . where the [Department] determines such terms and
conditions are needed to protect water quality.” 40 C.F.R. § 122.34(c)(1). In accordance
with the regulations, the Department identified two other map elements that it deemed
essential: stormwater conveyances and BMPs.
As noted previously, in reviewing the exercise of discretion by an agency in its
decision making, we do not substitute our judgment, but rather defer to the agency, unless
its discretion was exercised unreasonably or without a rational basis. Carroll County, 465
Md. at 202. We are satisfied that the Department articulated a rational basis for requiring
map features in addition to the minimum requirements set forth in the regulation.
The County asserts further that the Department’s decision that the mapping
requirement does not exceed MEP is not supported by substantial evidence. Again, we
disagree.
In response to comments that the mapping requirement “may not be practical[,]”
and is “well beyond an MEP level of effort over the five-year permit term,” the Department
explained that existing small MS4s had been “continually mapping” their systems,
including inlets. The Department concluded that this “clearly demonstrates” that the
mapping requirement is not beyond MEP.
The County appears to interpret the phrase “continually mapping” as evidence that
existing small MS4s had been unable to comply with mapping requirements. Based on
that interpretation, the County argues that the Department “failed to address how it is
36
practicable for newly designated Small MS4 permittees to complete the onerous mapping
process” in five years when other permittees had been working on their maps for over a
decade. We disagree with the County’s interpretation of the Department’s response.
When applying the substantial evidence test, we review the evidence in the light
most favorable to the agency, “because agency decisions are presumed prima facie
correct[.]” Maryland State Highway Admin. v. Brawner Builders, Inc., 248 Md. App. 646,
657 (2020). We ask ‘“whether a reasoning mind reasonably could have reached the factual
conclusion the agency reached.’” GenOn Mid-Atl., LLC v. Maryland Dep’t of the Env’t,
248 Md. App. 253, 267 (2020) (quoting Anacostia Riverkeeper, 447 Md. at 120). “We
defer to the agency’s fact-finding and any inferences that the record supports.” Id.
Viewing the evidence in the light most favorable to the Department, as well as in
context, we construe the Department’s explanation to mean that existing small MS4s had
been able to comply with requirements to develop and maintain an updated map of their
systems, i.e. “continually map” their systems, including charting of inlets. Accordingly,
the Department inferred that it would not be impracticable for new permittees to comply
with the less demanding mapping condition in the final general permit, which did not
require location of inlets because of the “significant effort” involved. We conclude that
the record supports the Department’s decision that the mapping requirement in the general
permit does not exceed MEP.
The Outfall Screening provision
The regulations concerning permit requirements for the illicit discharge detection
and elimination MCM provides guidance for permitting authorities, stating that the “EPA
37
recommends that the permit require the permittee to visually screen outfalls during dry
weather and conduct field tests of selected pollutants as part of the procedures for locating
priority areas.” 40 C.F.R. § 122.34(b)(3)(iii). In accordance with that recommendation,
the outfall screening provision in the general permit requires permittees to screen twenty
percent of total outfalls each year, up to a limit of 100 outfalls annually.
In response to public comments that outfall screening would, for some small MS4
permittees, be equal to what is required for medium MS4s, the Department explained that
the decision was based on “current level of effort of existing small MS4 permittees,” some
of which were “already screening close to 100 structures annually and exceeding
requirements by conducting chemical tests of dry weather flows.”27 The Department
explained further that, “[w]hile required to set a clear, specific, and measurable
requirement, [the Department] determined that it should not be greater than what is
required of Phase I MS4s and therefore capped the requirement at 100 outfalls.” The
Department also noted that outfall screening requirements for small MS4s require
significantly less effort than Phase I permits. We are satisfied that the record supports the
Department’s decision that the outfall screening requirements are not beyond MEP.
27
Public comments also included an assertion that outfall screening was not required by
federal law. Although it is true that the regulations do not mandate outfall screening
requirements, such conditions are recommended by the EPA. See 40 C.F.R. §
122.34(b)(3)(iii).
38
The Good Housekeeping provision
Pursuant to 40 CFR § 122.34(b)(6), permits issued to small MS4s must “identify
minimum elements and require the development and implementation of an operation and
maintenance program that includes a training component and has the ultimate goal of
preventing or reducing pollutant runoff from municipal operations.” The regulation
includes guidance from the EPA which recommends that the permit conditions address the
following:
Maintenance activities, maintenance schedules, and long-term inspection
procedures for structural and non-structural storm water controls to reduce
floatables and other pollutants discharged from the separate storm sewers;
controls for reducing or eliminating the discharge of pollutants from streets,
roads, highways, municipal parking lots, maintenance and storage yards,
fleet or maintenance shops with outdoor storage areas, salt/sand storage
locations and snow disposal areas operated by the permittee, and waste
transfer stations; procedures for properly disposing of waste removed from
the separate storm sewers and areas listed above (such as dredge spoil,
accumulated sediments, floatables, and other debris); and ways to ensure that
new flood management projects assess the impacts on water quality and
examine existing projects for incorporating additional water quality
protection devices or practices. Operation and maintenance should be an
integral component of all storm water management programs.
40 C.F.R. § 122.34(b)(6)(ii).
In accordance with that regulation, the general permit issued by the Department
requires permittees to “develop, implement, and maintain a pollution prevention plan at
publicly owned or operated properties.” The plan must include a description of site
activities; a list of potential pollutants stored or used on site; written procedures designed
to prevent discharge of pollutants; written procedures to address any on site release, spill
or leak; and documentation of any such release, spill, or leak and corresponding response
39
actions. The general permit also requires annual training for staff and contractors and
documentation of pollution prevention efforts related to application of pesticides and
fertilizer, snow and ice control, street sweeping, and inlet cleaning.
Objections to the good housekeeping provisions included comments that it (a)
would be too time consuming, due to the number of properties involved, and (b) would
serve little purpose, because not all publicly owned or operated properties discharge into
the MS4. In response to that comment, the Department added language to the permit to
clarify that (a) permittees may create a standard plan for multiple facilities with similar
operations, and (b) the requirement applied only to properties where certain “key site
activities are performed that have a risk of discharging pollutants into stormwater.”28
In our view, the Department’s response to concerns that the good housekeeping
provisions were beyond MEP addressed satisfactorily those concerns. The County does
not argue otherwise, nor does it assert any other reason why the provisions are beyond
MEP. Moreover, the requirements in the general permit appear to be consistent with the
guidance provided in the regulation regarding the activities, schedules, and procedures that
permit conditions should address. Accordingly, we conclude that the Department did not
act unreasonably or without a rational basis in exercising its discretionary authority,
pursuant to 40 C.F.R. § 122.34(b)(6)(i), to identify the minimum elements of a pollution
28
The “key site activities” listed in the permit are: maintenance of roads, inlets,
vehicles, or heavy equipment; management of storage areas for vehicles or heavy
equipment; and handling of deicers, anti-icers, fertilizers, pesticides, road maintenance
materials such as gravel and sand, or hazardous materials.
40
prevention and good housekeeping program for property owned or operated by permittees.
As the Department points out, if the County believes that it is not feasible for the County
to comply with any of the requirements of the permit, the County may apply for an
individual discharge permit tailored to its unique circumstances.
CONCLUSION
Grounds for the County’s objections to the determination that there was a link
between the County’s MS4s outside the urbanized area and water quality impairments were
not ascertainable reasonably during the comment period. Accordingly, remand to the
Department is required to allow the County an opportunity to comment on that proposed
tentative determination.
We hold that, under the Court of Appeals’ decision in Carroll County, the
Department did not exceed its authority under the Clean Water Act when it directed that
the amount of impervious surface to be restored be determined based on the total
impervious surface within the urbanized area of the County that has little or no stormwater
management.
Finally, we conclude that the Department articulated a rational basis and/or relied
on substantial evidence in determining that mapping, outfall screening, and “good
housekeeping” permit conditions did not exceed the “maximum extent practicable”
standard.
JUDGMENT OF THE CIRCUIT COURT
FOR QUEEN ANNE’S COUNTY
VACATED IN PART. CASE REMANDED
41
TO THE CIRCUIT COURT FOR QUEEN
ANNE’S COUNTY FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. JUDGMENT
OTHERWISE AFFIRMED. COSTS TO BE
PAID TWO-THIRDS BY APPELLANT
AND ONE-THIRD BY APPELLEE.
42