Petition of Blue Water Baltimore ( 2024 )

In the Matter of the Petition of Blue Water Balt., et al., Nos. 1426 & 1803, September
Term, 2022. Opinion by Nazarian, J.
ENVIRONMENTAL LAW – PERMITS AND CERTIFICATIONS – DISCHARGE
OF POLLUTANTS
The Department of the Environment is afforded wide flexibility in choosing municipal
separate storm sewer system (“MS4”) permit terms that comply with the federal maximum
extent practicable (“MEP”) standard. The Department has discretion to include water
quality-based effluent conditions in addition to the MEP standard to protect water quality
and has broad discretion in how it achieves consistency with wasteload allocations
(“WLAs”). The Department did not act arbitrarily or capriciously in issuing MS4 permits
with terms it found consistent with applicable total maximum daily load WLAs to protect
water quality. The administrative record reveals a rational basis for and substantial
evidence to support the Department’s decision to include the challenged permit
requirements.
Circuit Court for Baltimore City
Case No. 24-C-21-005448
Circuit Court for Baltimore County
Case No. C-03-CV-21-004013
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
______________________________________
CONSOLIDATED CASES
______________________________________
Nos. 1426, 1803
September Term, 2022
______________________________________
IN THE MATTER OF THE PETITION OF
BLUE WATER BALTIMORE, INC., ET AL.
______________________________________
Wells, C.J.,
Nazarian,
Tang,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: January 31, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.02.12
'00'05- 12:58:22
Gregory Hilton, Clerk
In this appeal, environmental advocates challenge the most recent stormwater
permits issued by the Maryland Department of the Environment (the “Department”) to
Baltimore City and Baltimore County. They argue that the permits don’t do enough to limit
pollution or flooding, are legally deficient, and require a do-over. In these consolidated
cases initiated in the Circuit Courts for Baltimore County and Baltimore City, Blue Water
Baltimore, Inc., the Chesapeake Bay Foundation, Inc., and various individuals (the
“Environmental Advocates”) assert that (1) the municipal separate storm sewer system
(“MS4”) permits fail to meet water quality standards of receiving waters, (2) the permits
violate the anti-backsliding provision of the Clean Water Act, and (3) the Department
otherwise failed to “consider the totality of information available, resulting in
disproportionate impacts.” The Department and City of Baltimore defended the permits
and both circuit courts affirmed the final determination of the Department to issue them.
We affirm as well.
I. BACKGROUND 1
A. General Overview Of Discharge Permit Requirements.
MS4 permits are a type of National Pollutant Discharge Elimination System
1
MS4 permitting has been explained in depth already in connection with other
challenges to other MS4 permits and we need not reinvent that wheel here. See
Maryland Dep’t of the Env’t v. Anacostia Riverkeeper, 447 Md. 88 (2016); Maryland
Dep’t of the Env’t v. Cnty. Comm’rs of Carroll Cnty., 465 Md. 169 (2019); Maryland
Small MS4 Coal. v. Md. Dep’t of the Env’t, 479 Md. 1 (2022). For much more extensive
legal, historical, and scientific background on MS4 permitting, see Anacostia
Riverkeeper, 447 Md. at 96–103, and Carroll County, 465 Md. at 182–97, and for
extensive background on the Chesapeake Bay Total Maximum Daily Load and the
Clean Water Act, see American Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289, 294–
307 (M.D. Pa. 2013).
(“NPDES”) permit, 33 U.S.C. §§ 1311(a), 1342, and in Maryland, the Department is the
NPDES permitting authority, as delegated by the Environmental Protection Agency
(“EPA”). 33 U.S.C. § 1342(a)(5), (b); Md. Code (1987, 2014 Repl. Vol., 2022 Supp.),
§ 9-253 of the Environment Article (“EN”); COMAR 26.08.04.01. Under the Clean Water
Act, all point source 2 discharges of pollutants are prohibited unless authorized by permit.
33 U.S.C. § 1311(a).
Generally, discharge permits must include: “(1) effluent limitations that reflect the
pollution reduction achievable by using technologically practicable controls and (2) any
more stringent pollutant release limitations necessary for the waterway receiving the
pollutant to meet ‘water quality standards.’” Piney Run Pres. Ass’n v. Cnty. Comm’rs of
Carroll Cnty., 268 F.3d 255, 265 (4th Cir. 2001) (quoting American Paper Inst. v. EPA,
996 F.2d 346, 349 (D.C. Cir. 1993)). In other words, “[e]ffluent limitations may be
[(1)] ‘technology based’ or [(2)] ‘water quality based.’” Carroll County, 465 Md. at 186;
see also 33 U.S.C. § 1362(11) (defining “effluent limitation” as “any restriction . . . on
quantities, rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources into navigable waters”). Those are
2
A point source is “any discernible, confined and discrete conveyance,” and includes,
for example, “any pipe, ditch, channel, tunnel, . . . or vessel or other floating craft, from
which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). By contrast, a
“nonpoint source” is “[u]ndefined by the statute,” but “includes dispersed runoff from
rainwater or snowmelt that sweeps over buildings, farms, and roadways, and that carries
pollutants and pesticides into navigable waters, their tributaries, and groundwater.”
Maryland Small MS4 Coal., 479 Md. at 7.
2
not necessarily “mutually exclusive goals” and certain permit requirements can support
both. Maryland Small MS4 Coal., 479 Md. at 42.
Typical “end-of-pipe” discharges from factories or wastewater treatment plants use
technology-based effluent limitations, which are “designed from the perspective of the
discharger” and specify “a numeric level of pollution . . . . [T]he point source must install
technology to ensure that the amount of pollution emitted from the pipe is below the
specified level.” Carroll County, 465 Md. at 211–12. “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.’” Id. at 187 (quoting 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 130.7(c)).
B. MS4 Permit Requirements.
This appeal involves a specific kind of discharge system: stormwater pollutants that
pass through municipal separate storm sewer systems, known colloquially as MS4s. MS4s
include complex systems of drains, gutters, ditches, and outfalls that dispose of untreated
rain and runoff and “[t]he quantity of stormwater that flows through these conveyances
into a waterway can vary unpredictably depending on the weather, any development of the
land . . . , and other activities on the land . . . .” Id. at 188–89. MS4s are unpredictable, so
the statute distinguishes them from the typical “end-of-pipe” permit standards. “It is also
difficult to discern the amount of pollutant that any one discharger contributes to a
waterbody because municipalities have so many outfalls, or discharge points, leading into
the waters.” Anacostia Riverkeeper, 447 Md. at 98. The Baltimore County and Baltimore
City MS4 systems in particular carry water from large land masses, including impervious
3
(i.e., paved over) developed areas, that picks up various pollutants as it flows downstream
and eventually into the Chesapeake Bay.
As a result, MS4 permits must be “more comprehensive than the typical NPDES
permit,” Maryland Small MS4 Coal., 479 Md. at 11, and they involve management
programs rather than numeric caps on the amount of pollutants discharged. These programs
include features the Department describes as “things like erosion and sediment control,
litter-reduction, and stormwater management—designed to reduce the amount of pollution
that makes it into the stormwater in the first place.” The programs are considered best
management practices (“BMPs”), and they can be “an appropriate control when ‘[n]umeric
effluent limitations are infeasible.’” Anacostia Riverkeeper, 447 Md. at 99 (quoting 40
C.F.R. § 122.44(k)(3)).
1. The MS4 technology-based standard is the MEP standard.
The Clean Water Act carved out a different standard for MS4s, distinct from
numeric caps on discharges typically required for NPDES point sources. Id. at 98
(“Congress adopted a flexible approach to the control of pollutants in MS4s.”). MS4
permits instead require controls of stormwater point sources “to reduce the discharge of
pollutants to the maximum extent practicable,” 33 U.S.C. § 1342(p)(3)(B)(iii), 3 a principle
3
The full text of 33 U.S.C § 1342(p)(3)(B) provides:
(B) Permits for discharges from municipal storm sewers—
(i) may be issued on a system- or jurisdiction-wide basis;
(ii) shall include a requirement to effectively prohibit non-
Continued . . .
4
commonly referred to as the “MEP standard.” “The MEP standard is analogous to a
technology based effluent limitation in that its reference point is the MS4 operator rather
than the waterway,” and its differences from typical point source regulation reflect the
unique and complicated nature of MS4s as pollution sources. Carroll County, 465 Md. at
212; see also id. at 234–37 (discussing how the MEP standard is more flexible and allows
for pollution mitigation programs that serve as surrogates for typical NPDES
requirements). “Congress did not define the MEP standard in the Act and the EPA has
explicitly declined to define it as well.” Id. at 210. The MEP standard is, however, less
stringent than water quality based effluent limitations. Id. at 211–12. “[T]his approach
contemplates that states shall set controls they deem necessary to reduce the discharge of
pollutants into their waters.” Anacostia Riverkeeper, 447 Md. at 178 (citing 33 U.S.C.
§ 1342(p)(3)(B)(iii)). And this leaves broad discretion in the Department to establish and
define programs for MS4s.
2. MS4 water quality based effluent limitations are discretionary,
but if used, must be consistent with total maximum daily load
(“TMDL”) wasteload allocations (“WLAs”).
Discharge permits also must achieve limitations “necessary to meet water quality
stormwater discharges into the storm sewers; and
(iii) shall require controls to reduce the discharge of
pollutants to the maximum extent practicable, including
management practices, control techniques and system,
design and engineering methods, and such other provisions
as the Administrator or the State determines appropriate for
the control of such pollutants.
5
standards,” 4 as required by 33 U.S.C. § 1311(b)(1)(C). But again, MS4s are different—the
overarching MEP approach assigned to MS4s “unambiguously demonstrates that Congress
did not require municipal storm-sewer discharges to comply strictly with 33 U.S.C.
§ 1311(b)(1)(C).” Defenders of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999).
MS4s “are not . . . required to impose effluent limitations necessary to meet water quality
standards,” Anacostia Riverkeeper, 447 Md. at 104 (emphasis added), but permitting
authorities have discretion to include water quality based effluent conditions in addition to
the MEP standard to protect water quality. Carroll County, 465 Md. at 220–21; id. at 214
(“[A]n MS4 permit may include, as needed, effluent limitations consistent with TMDL
wasteload allocations, in compliance with the EPA regulation that requires a discharge
permit for a point source to contain such effluent limitations.”). Since 1990, the EPA has
“‘recommend[ed] that the . . . permitting authority exercise its discretion to include
appropriate narrative and/or numeric water quality-based effluent limitations . . . as
necessary to meet water quality standards.’” Id. at 222 (quoting EPA Letter to Maryland
Department of the Environment re Supplemental Comments on Frederick County Phase I
MS4 Permit (Sept. 23, 2014)).
The Department imposes water quality standards on MS4 operators that incorporate
the “assumptions and requirements of wasteload allocations,” Carroll County, 465 Md. at
193 (cleaned up), through use of an impervious acre metric that acts as a surrogate for
4
“‘Water quality standards’ are targets set by the states and approved by the EPA.”
Maryland Small MS4 Coal., 479 Md. at 9 (citing 33 U.S.C. § 1313).
6
Chesapeake Bay stormwater WLAs. When a state identifies impaired waters (waters where
technology-based effluent limitations in NPDES permits are not stringent enough to ensure
water quality), it must establish a TMDL for every pollutant that prevents the water from
meeting water quality standards. 33 U.S.C. § 1313(d)(1). The TMDL describes a numeric
cap or “‘level’ of a pollutant that a water body can tolerate without violating applicable
water quality standards.” Carroll County, 465 Md. at 190. A TMDL is made up of the sum
of individual WLAs for point sources and load allocations (“LAs”) for nonpoint sources
plus natural background. 40 C.F.R. § 130.2(i).
The EPA issued the Chesapeake Bay TMDL in 2010. See Carroll County, 465 Md.
at 194. It requires Bay jurisdictions, including Maryland, to reduce discharges of pollutants
for which the Bay has failed to attain target water quality standards—i.e., nitrogen,
phosphorus, and sediment—by 2025. Id.; Anacostia Riverkeeper, 447 Md. at 106–07, 109.
And “the Bay TMDL is neither self-implementing nor directly enforceable. Rather, it
serves as an informational tool that the EPA and the states use in seeking to achieve the
specified pollutant levels—and the applicable water quality standards—by means of
discharge permits and other regulatory tools.” Carroll County, 465 Md. at 193; Anacostia
Riverkeeper, 447 Md. at 123 (the impervious surface restoration requirement is a
“surrogate or proxy” effluent limitation with a water quality-based standard, and only
indirectly reduces pollution). “TMDLs inform,” Anacostia Riverkeeper, 447 Md. at 100,
but “WLAs are more akin to restrictions.” Id. at 104. As such, TMDL WLAs require
7
“translation pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B)” 5 into permit limits. Id. at 133.
But those water quality standards, in the MS4 context, are “like the MEP standard, flexible
as to how a permitting authority complies” with its obligation “to establish effluent
limitations that take into account WLAs[.]” Id. at 134–35. The text of the regulation, 40
C.F.R. § 122.44(d)(1)(vii)(B), “does not instruct the permitting authority as to how it must
ensure this consistency,” but “[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 WLAs.” Id. at 136. And “the overarching federal law for MS4s—33
U.S.C. § 1342(p)(3)(B)(iii)—is broad and flexible,” even with respect to the water quality
based effluent limitations. Id. at 137; see also id. at 179 (citing 40 C.F.R.
§ 122.44(d)(1)(vii)(B)) (the EPA “has afforded permitting agencies such as [the
Department] the flexibility to develop effluent limitations”).
3. Maryland’s impervious surface restoration (“ISR”) strategy.
In order to meet Bay TMDL water quality targets, the EPA directed Maryland to
create watershed implementation plans (“WIPs”) that provide a roadmap for how it would
achieve the Bay TMDL’s goals for reducing pollution. Carroll County, 465 Md. at 194–
5
The regulation requires the Department to establish effluent limitations that take
TMDL WLAs into account:
When developing water quality-based effluent limits under this
paragraph the permitting authority shall ensure that[] . . .
[e]ffluent limits developed to protect a narrative water quality
criterion, a numeric water quality criterion, or both, are
consistent with the assumptions and requirements of any
available wasteload allocation for the discharge prepared by
the State and approved by EPA . . . .
8
95. Maryland developed its WIPs in three different phases. Maryland’s first phase (the
“Phase I WIP”) committed the State to reducing the adverse effect of MS4 discharges by
an amount equal to retrofitting twenty percent of the State’s impervious area to restore the
areas’ pollution-trapping capabilities. This retrofitting is called the “ISR strategy.” The ISR
strategy is a water quality-based effluent limitation that operates “in addition to” the MEP-
level programs. See id. at 211–12. At times, it also supports the MEP standard. Maryland
Small MS4 Coal., 479 Md. at 42.
“Impervious surfaces that do not absorb rainwater have long been recognized as a
key cause of water pollution and the resulting impairment of water quality, particularly in
urban areas.” Id. at 15. Restoration can involve replacing an impervious surface with
material that allows for absorption of stormwater, in order to “function more like a natural
terrain that absorbs and filters rain water.” Carroll County, 465 Md. at 195. Environmental
groups largely favor such “green infrastructure,” which, according to the Environmental
Advocates, can “include constructed wetlands, rain gardens, protecting large open natural
spaces, or planting trees along city streets and greening alleyways.”
Maryland is now on Phase III of the WIP strategy, which requires Baltimore City
and County to restore ten percent of their impervious areas during the five-year MS4 permit
term (in addition to maintaining all of the restoration achieved in Phase I). One important
aspect of the Department’s implementation of the statewide ISR strategy is the “credits to
acres approach,” which allows jurisdictions to avoid the costly green infrastructure projects
with practices that more indirectly impact water quality and stormwater volume. To detail
these practices, the MS4 permits incorporate two documents by reference: the 2000
9
Maryland Stormwater Design Manual (“Design Manual”) and the Accounting for
Stormwater Wasteload Allocations and Impervious Acres Treated Guidance for [NPDES]
Stormwater Permits (2021) (the “Accounting Guidance”). The Design Manual provides
guidance on how to size, design, select, and locate alternative BMPs to meet Maryland’s
WIP performance standards, Anacostia Riverkeeper, 447 Md. at 112, while the Accounting
Guidance provides a “credits to acres approach” that translates pollutant reduction qualities
of BMP into credits for acres restored. Id. at 109, 159–60. The credits assigned by the
Accounting Guidance provide flexibility to permittees to determine how best to satisfy the
Bay TMDL’s pollution allocations based on local conditions and resources. These credits
allow jurisdictions to utilize “alternative BMPs” such as street sweeping, storm drain
cleaning, stream restoration, and tree planting to meet the ISR requirement. Permittees’
authority to choose alternative BMPs and the effectiveness of the BMPs strikes at the heart
of the present challenge to the permits.
C. Earlier Maryland Decisions On MS4 Permits.
MS4 permitting challenges have made their way up to the Maryland Supreme Court
three times—sometimes for being too strict and sometimes for being too lax, depending on
who is seeking review. The first case involved “large” MS4 permits, the second involved
“medium” jurisdictions, and the last challenged “small” MS4 permits. 6 In Anacostia
Riverkeeper, environmental advocates challenged permit terms as not stringent enough to
satisfy the Clean Water Act. In Carroll County, the counties argued that their respective
6
Baltimore County and Baltimore City are categorized under the Clean Water Act as
“large MS4s.” See 40 C.F.R. § 122.26(b)(4).
10
permits were too stringent and exceeded the Department’s authority under the Act. And
lastly, in the Maryland Small MS4 Coalition case, the permittee county asked the Maryland
Supreme Court to reconsider its holding in Carroll County. In all three cases, the Maryland
Supreme Court affirmed the Department’s authority to issue the permits in question.
1. Anacostia Riverkeeper
In this 2016 Maryland Supreme Court decision, Anacostia Riverkeeper and other
environmental groups—including two of the parties here, Blue Water Baltimore and the
Chesapeake Bay Foundation—challenged large MS4 permits for not being stringent
enough. 447 Md. at 95 n.1. The primary contention was that the twenty percent ISR
requirement imposed on jurisdictions was “too opaque” and undefined to comply with
federal and state law. Id. at 123. In other words, the challengers contended that the MS4
permits allowed for too much flexibility for permittees’ compliance because they could
choose their own BMPs from the State’s Design Manual. See id. at 125.
The Court held that MS4s are not required to impose strict numerical limits that
would otherwise be required in a typical “end-of-pipe” NPDES permit:
MS4s are subject to the MEP standard under 33 U.S.C. § 1342.
MS4s are not, however, required to impose effluent limitations
necessary to meet water quality standards. The [Clean Water
Act] still requires Maryland to set water quality standards and
TMDLs—subject to the EPA’s approval. Flowing from this
obligation is the requirement that MS4s are subject to effluent
limitations that are consistent with WLAs of EPA-approved
TMDLs.
Id. at 104 (emphasis added). The Court also held that the Department had established a
sufficient performance standard in its Design Manual from which “Counties may choose
11
from to fulfill the 20% restoration requirement.” Id. at 125. “Because 33 U.S.C.
§ 1342(p)(3)(B)(iii) does not require a specific performance standard, and because the
concepts of restoration and impervious surface ‘not restored to the MEP’ are sufficiently
clear as to the controls that the Counties must install, the 20% restoration requirement in
the Permits complies with the MEP standard.” Id. at 126; see also id. at 133 (“[W]e uphold
the Guidance as a component the Counties may legally use to achieve the 20% restoration
requirement.”). The Court held that the ISR requirement satisfied both the State stormwater
permitting standards (that incorporate water quality standards) and the MEP standard in
the Clean Water Act. Id. at 126, 128–29.
2. Carroll County
Three years later, the Supreme Court clarified the relationship of these separate legal
standards in Carroll County. 465 Md. at 222–23. This MS4 challenge came from the
opposite side, with the counties suing the Department for making permit conditions too
strict. There, the parties agreed the ISR requirement was “a water quality based control that
[wa]s in addition to those provisions included under the MEP standard,” but one county
contended that requiring permittees to go beyond the MEP standard in the statute was
unlawful. Id. at 213 (emphasis added). The Court narrowed its holding by stating that the
question in Anacostia Riverkeeper “was whether the [ISR] requirement satisfied the MEP
standard whereas in [Carroll County] the question is whether it unlawfully exceeds it.” Id.
at 214.
The Court upheld the permits. In the course of analyzing them, the Court considered
that under the Clean Water Act, MS4 permits “‘shall require controls to reduce the
12
discharge of pollutants to the maximum extent practicable, including management
practices, control techniques and system, design and engineering methods, and such other
provisions as the [EPA] Administrator or the State determines appropriate for the control
of such pollutants.’” Id. at 215 (quoting 33 U.S.C. § 1342(p)(3)(B)(iii)) (emphasis added).
The Court held that the phrase “such other provisions” authorized the Department to
include permit conditions that “are not limited by the MEP standard,” including conditions
that require compliance with water quality standards. Id. at 217.
In order to “[h]armoniz[e] MS4 [p]ermit [t]erms with the TMDL [p]rocess” the
Court clarified that there is no practicability analysis with respect to water quality
compliance in MS4 permits:
The EPA’s regulations require that a water quality based
effluent limitation be derived from the applicable water quality
standard, without referring to a practicability test. Permitting
agencies shall ensure that the level of water quality to be
achieved by water quality based effluent limitations on point
sources is derived from, and complies with, all water quality
standards. The EPA’s rationale is that deriving 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. Importantly,
this rationale does not distinguish between types of point
sources, i.e., whether the discharger is a factory, a wastewater
treatment plant, an MS4, or any other kind of point source. . . .
Thus, when an entity discharges to a waterway subject to a
TMDL, its permit must contain effluent limitations consistent
with the assumptions and requirements of the corresponding
wasteload allocation in the TMDL.
When the final provision of clause (B)(iii) is read to encompass
water quality based effluent limitations, MS4 permits are
treated like any other discharge permit for purposes of
implementing TMDLs. This interpretation harmonizes clause
(B)(iii) with the TMDL provisions insofar as the latter likewise
13
do not distinguish between types of point sources. By contrast,
if permitting agencies must constrain all TMDL based effluent
limitations in MS4 permits by some sort of practicability
analysis, there would be tension with the basic tenet that water
quality based effluent limitations must derive from water
quality standards.
Id. at 222–23 (cleaned up) (emphasis added).
The Court explained that the ISR “permit term is a numeric water quality based
effluent limitation” that is authorized by 33 U.S.C. § 1342(p)(3)(B)(iii). Id. at 234. Even
still, NPDES permits for MS4s are more flexible and implement pollution mitigation
programs as surrogates compared to the typical NPDES requirements. Id. at 234–37. The
Court found that the ISR term in the counties’ permits “correspond[ed] 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 . . . .” Id. at 238. The Court added that “[t]o the extent that the
Counties challenge restoration provisions in their permits that derive from EPA-approved
local TMDLs, such challenges should have been made when the local TMDL was approved
by the EPA and are not appropriately part of judicial review of an MS4 permit in State
court.” Id. at 264.
One county also challenged the twenty percent ISR requirement as arbitrary and
capricious because “compliance with the permit’s requirements within five years was
financially and logistically impossible.” Id. at 225. The Court rejected this challenge,
stating that “[t]he fact that an agency does not change a proposed action . . . in light of
comments requesting a change does not mean that the process lacked a meaningful
14
opportunity for comment or that the agency failed to consider those comments.” Id. at 226.
Further, the Court found that there was “a rational basis for saying that the restoration
requirement is necessary for consistency with the Bay TMDL and the Maryland WIP” and
thus it was reasonable for the ISR requirement to be included in the permit. Id. at 226–27.
3. The Maryland Small MS4 Coalition Case
In this most recent MS4 case decided in 2022 (after the current permits were issued),
Queen Anne’s County brought an action for judicial review of its small MS4 permit and
asked the Maryland Supreme Court to reconsider its holdings in the Carroll County case
and hold that the “such other provisions” language of 33 U.S.C. § 1342(p)(3)(B)(iii) does
not authorize the Department to impose requirements that exceed the MEP standard. 479
Md. at 6. The Supreme Court declined the invitation. Instead, it clarified that Anacostia
River and Carroll County are not inconsistent with the MEP standard:
In response to challenges from environmental groups, the
Anacostia Riverkeeper decision concluded that the permit
conditions in question satisfied the baseline MEP standard. In
response to a converse challenge from permittees, the Carroll
County decision concluded that the Act authorizes permit
conditions beyond the MEP standard for the purpose of
satisfying water quality standards. Together, the two decisions
stand for the proposition that MS4 permit conditions must meet
the MEP standard, but may do more to protect the water quality
of a waterway. These two holdings are not in conflict with one
another.
Id. at 33.
The Court elaborated on the relationship between the MEP standard and the water
quality standards necessary for TMDLs, stating that permit conditions must satisfy the
MEP standard, but may do more. Id. at 42–43. “This supplementary relationship”
15
analogizes “the relationship between technology-based effluent limitations and water
quality limitations in typical NPDES permits.” Id. at 43. “In both types of permits,” the
Court continued, “there is a minimum standard, and in both types of permits the permitting
authority may increase the stringency of those standards to protect water quality.” Id.
D. Baltimore County’s & Baltimore City’s MS4 Permits.
1. Public notice and comment period.
Against this abridged regulatory backdrop, we turn to the specific permits before us
in this appeal. The Environmental Advocates 7 sue to overturn the MS4 permits the
Department issued to Baltimore City and Baltimore County. Draft permits were issued in
October 2020, underwent a public notice and comment period, see EN §§ 9-324, 1-601 et
seq., and went into effect November 5, 2021. In our view, the final permits were not
meaningfully different from the drafts.
7
The Chesapeake Bay Foundation is a conservation organization “whose mission is to
‘Save the Bay’ and keep it saved” at least in part by “[r]educing urban and suburban
stormwater pollution . . . .” Blue Water Baltimore is an organization “focused on
restoring the health of Baltimore’s rivers, streams, and harbor to the benefit of our
environment and communities.” In doing so, it “conducts long-term water quality
monitoring in the tidal Patapsco River and its tidal tributaries, non-tidal tributaries in
the Jones Falls and Gwynns Falls watersheds, as well as Herring Run, a tributary of the
Back River.”
The appellants also include individuals whose affidavits were used to establish standing
under EN § 1-601(c). The City took issue in its brief with the appellants’ attempt to rely
on these affidavits as evidence, but the substance of those affidavits was part of the
administrative records, and we limit our review to what was before the Department
during the public comment period. EN §1-601 et seq.; Md. Rules 7-201 et seq.
As mentioned before, we’ll refer to all appellants as they labeled themselves in their
briefs: the “Environmental Advocates.”
16
During the statutory comment period, the Environmental Advocates took the
position that the draft permits “lack[ed] specificity and focus needed to deliver reduction
in stormwater runoff.” More specifically, they attacked the draft permits for relying on ISR
“equivalent standard[s],” which, they said, “fail[] to meaningfully reduce pollutant loads
to local waters even though it may minimally reduce nutrient and sediment loads to the
bay.” They added that “[t]he permits also fail to acknowledge changing weather patterns
linked to climate change” and urged the Department to “[r]evise the [MEP] standard to
reflect specific, individual pollutant load reduction goals.”
In support of their arguments, the Environmental Advocates provided the
Department with its own data showing, in their view, that “[w]ater [q]uality is not
improving as a result of our current MS4 permitting regime.” Blue Water Baltimore
explained that it “routinely collect[s] scientifically rigorous water quality data for a full
suite of parameters at 49 stations throughout the Jones Falls and Gwynns Falls watershed,
as well as the tidal Patapsco River and the tributaries that feed into it” and highlighted
“several key findings.” Among them were “significantly improving trends in Enterococcus
bacteria” but also “significantly worsening trends” involving “polluted stormwater runoff”:
For example, 23 of our 27 nontidal stations (85%) showed a
worsening trend for at least one of the following parameters:
Total Nitrogen (mg/L), Total Phosphorus (mg/L), Specific
Conductance (uS/cm), or Turbidity (NTU) across all weather
types over a 7-year time period. Only 2 stations showed a
statistically significant improvement for a single measurement
of water health.
***
Interestingly, our 7-year nontidal dataset covers the previous
MS4 permit term, suggesting to Blue Water Baltimore that the
17
current approach to stormwater management in Baltimore
City, namely street sweeping, is not improving water quality.
We similarly question whether Baltimore County’s approach
is keeping pace with climate change, a growing suburban
population, and increased development. We believe our data
suggests that substantial changes, including greater reliance on
stormwater interventions that reduce stormwater volumes, and
treat stormwater before it enters our waterways, are necessary
if we expect to see future water quality improvements.
The letter urged the Department to require green infrastructure and to reduce the amount
of ISR credit from alternative BMPs like street sweeping, septic pump-outs, and stream
restoration.
Blue Water Baltimore also urged the Department to consider Baltimore City and
Baltimore County together to relieve “inequity”:
By allowing under-compliance with stormwater remediation
requirements within the Patapsco or Back River watersheds in
[Baltimore] County, [the Department] is allowing a more
affluent, predominantly white, and populous jurisdiction to
eschew pollution and volume reductions to the detriment of the
less populous, predominantly Black, and less affluent
downstream neighbor, Baltimore City. Under-compliance in
Baltimore County will not necessarily impact County
residents; but instead, will impact City residents, already
suffering from unmitigated stormwater, poor water quality in
receiving waterways, increased flood volumes, and associated
public health impacts and property damage.
The permittees also participated in the public comment process. Local governments
urged the Department to “defer to the Permittees to determine what constitutes MEP” based
on fiscal and policy considerations. According to the permits, “the Department . . . solicited
ideas, concerns, and available data related to restoration implementation. These discussions
18
were an open, ongoing dialogue with the regulated community relating to restoration
practices and permit requirements over several years.”
2. Terms and conditions of the permits at issue.
Despite the recommendations of the Environmental Advocates, the Department
issued the MS4 permits simultaneously on November 5, 2021, and they appear to be
substantially similar to the draft permits. Part III of the permits, titled “WATER
QUALITY,” requires the jurisdictions to “manage, implement, and enforce stormwater
management programs” that comply with federal law and to comply with the following
requirements:
1. Effectively prohibit pollutants in stormwater discharges
or other unauthorized discharges into, through, or from
the MS4 as necessary to comply with Maryland’s
receiving water quality standards;
2. Attain applicable stormwater wasteload allocations
(WLAs) for each established or approved Total
Maximum Daily Load (TMDL) for each receiving
water body, consistent with Title 33 of the U.S. Code
(USC) § 1342(p)(3)(B)(iii); 40 CFR § 122.44(k)(2) and
(3); and
3. Comply with all other provisions and requirements
contained in this permit, and in plans and scheduled
developed in fulfillment of this permit.
The permits provide that compliance with that Part satisfies the MEP standard and
represents “adequate progress toward compliance with Maryland’s receiving water quality
standards and U.S. [EPA] established or approved stormwater WLAs for this permit term.”
Part IV of the permits, titled “STANDARD PERMIT CONDITIONS,” provides for
stormwater management programs and stormwater restoration. With respect to the ISR
19
requirement for stormwater restoration, the permits state that “MS4 permits must require
stormwater controls to reduce the discharge of pollutants to the MEP and such other
provisions as the Department determines appropriate for the control of such pollutants.”
The permits also provide that they must be consistent with stormwater WLAs of TMDLs
and that they are. The City and County are required, by the end of their permit terms, to
restore an additional 3,696 and 2,696 acres, respectively. For example, Baltimore City’s
MS4 permit requires the following:
1. Annual alternative control practices used by Baltimore
City to meet its prior MS4 permit’s impervious acre
restoration requirement shall be:
a. Continued annually at the same level of
implementation (e.g., street lane miles swept,
catch basin cleaning) under this permit;
b. Replaced with 5,701 impervious acres using
stormwater management BMPs, programmatic
initiatives, or alternative control practices in
accordance with the 2021 Accounting Guidance;
or
c. A combination of a and b above.
2. The impervious acre restoration requirements described
below are in addition to the requirements listed [above].
The permits give the jurisdictions flexibility to implement the ISR strategy “by
implementing stormwater BMPs, programmatic initiatives, or alternative control practices
in accordance with the 2021 Accounting Guidance . . . as long as the total restoration at the
end of year one meets the implementation benchmark schedule” in the permits. The
jurisdictions also must submit annual implementation plans to the Department for approval,
as well as annual BMP effectiveness monitoring.
20
E. Judicial Review.
On December 3, 2021 and December 6, 2021, the Environmental Advocates filed
petitions for judicial review of the MS4 permits in the Circuit Court for Baltimore County
and the Circuit Court for Baltimore City, respectively. The circuit courts affirmed the
Department’s final determination to issue the permits. The Environmental Advocates filed
timely notices of appeal, and this Court consolidated the appeals on motion of the
Environmental Advocates on May 2, 2023.
II. DISCUSSION
This appeal asks three questions about what is required legally of these MS4 permits
by state and federal law and whether there is competent, substantial evidence in the record
to support the Department’s determination that those standards are met by these permits.
The Environmental Advocates attack the permits by asking this Court to resolve three
questions: 8 First, “Do the Permits violate federal or state law by not ensuring compliance
8
The Department (and, by adoption, the County, see Md. Rule 8-503(f)) phrased the
Questions Presented as follows:
1. Do the Permits’ restoration requirements, derived from
the Chesapeake Bay total maximum daily load and Maryland’s
Phase III Watershed Implementation Plan, and scientifically
verified by the Chesapeake Bay Program, protect water
quality?
2. Do the Permits’ restoration requirements constitute
unlawful backsliding when they are water quality-based
effluent limitations that require additional restoration from
what the Permits’ previous iterations required?
3. Do the Permits consider climate change and impacts on
City residents, because (a) they require pollution reduction
Continued . . .
21
with water quality standards?” Second, “Do the Permits violate federal or State law by
allowing unlawful backsliding?” 9 And third, “Do the Permits violate federal or State law
by failing to consider the substantial evidence in the record related to climate change,
disproportionate impacts, and ineffective stormwater management controls?”
The Environmental Advocates argue that the Department applied the wrong legal
standards in drafting the terms of the permits and that it acted arbitrarily and capriciously
by failing to issue permits that would meet mandated water quality standards. The
Department responds that the Environmental Advocates “seek[] to impose additional
standards on the Department” not required by state and federal law and the permits are
otherwise supported by competent, substantial evidence. We agree with the Department
practices that also manage stormwater volume and (b) afford
the City with flexibility to address impacts on City residents?
The City phrased its Questions Presented as follows:
1. Did MDE’s determination to issue the City’s permit violate
federal or State law regarding water quality standards given the
Court of Appeals’ (now Maryland Supreme Court) opinion in
Anacostia Riverkeeper?
2. Did MDE’s determination to issue the City’s MS4 permit
violate federal or State law prohibiting backsliding when it
imposes new and continuing restoration requirements?
3. Did MDE’s determination to issue the City’s MS4 permit
violate federal or State law when there are no legal
requirements for an MS4 permit to include requirements
related to climate change and community impacts?
(Footnote omitted).
9
“Backsliding” refers to permits which “contain effluent limitations which are less
stringent than the comparable effluent limitations in the previous permit.” 33 U.S.C.
§ 1342(o)(1).
22
that the record supports its decision to issue the permits and we affirm the judgments of the
circuit court.
A. Standards of Review.
It’s important to define the narrow issue before us and our limited role as a
reviewing court. The Environmental Advocates don’t (and can’t) challenge the Bay TMDL
or Maryland’s Phase III WIP. See Carroll County, 465 Md. at 264 (no judicial review of
EPA-approved TMDLs). By statute, we review only the agency’s decision to issue each
permit against the administrative record before the Department, EN § 1-601(d), 1-606(c),
and we determine whether the permitting decision is legally correct and supported by
competent, substantial evidence, and determine whether the agency action is arbitrary and
capricious. Maryland Small MS4 Coal., 479 Md. at 30; Anacostia Riverkeeper, 447 Md. at120–21. In addition, we “review[] the agency action itself rather than the decision of the
circuit court.” Carroll County, 465 Md. at 201.
Factual findings, the review of matters committed to the Department’s discretion,
and our review of the Department’s legal conclusions are all subject to different standards
of review. See id. at 201–04. First, when reviewing factual findings by the Department
under the “substantial evidence” standard, we “defer[] to the facts found and inferences
drawn by the agency when the record supports those findings and inferences. . . . [W]ith
respect to factual issues that involve scientific matters within an agency’s area of technical
23
expertise, the agency is entitled to ‘great deference.’” Id. at 201–02 (citing Anacostia
Riverkeeper, 447 Md. at 120) (citation omitted).
Second, when reviewing the Department’s discretionary decisions, we apply the
“arbitrary and capricious” standard, which also affords great deference to the Department.
Id. at 202. “[G]enerally the question is whether the agency exercised its discretion
‘unreasonably or without a rational basis.’” Id. (quoting Harvey v. Marshall, 389 Md. 243,
297 (2005)). For purposes of MS4 permitting, we may consider federal administrative case
law and “should affirm decisions of ‘less than ideal clarity’ so long as the court can
reasonably discern the agency’s reasoning.” Id. (quoting Bowman Transp., Inc. v. Ark.-
Beset Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)).
Third, when reviewing the Department’s legal conclusions, we “accord[] the agency
less deference than with respect of fact findings or discretionary decisions.” Id. at 202–03.
We won’t uphold an action based on legal error, but we “give careful consideration to the
agency’s interpretation” of laws the Department has been charged to administer. Id. at 203.
B. There Is Competent, Substantial Evidence That The Permits
Comply With Applicable State And Federal Water Quality
Standards.
The heart of the Environmental Advocates’ challenge to the permits lies in their
contention that pollution reduction data from the past seven years reveals that the
Department has issued ineffective MS4 permits in the past. As drafted, they contend, the
Department has acted arbitrarily and reached conclusions not supported by the evidence in
the administrative record, and thus the permits violate federal and state law because they
don’t ensure compliance with water quality standards. The Department disagrees as a
24
factual matter and responds that “the Permits ensure conformity with water quality
standards because the restoration requirement is consistent with the goals and assumptions
of the Bay TMDL.” We agree, given the deference owed to the Department here, that the
Department had a rational basis for implementing permit terms it found were consistent
with applicable WLAs.
1. The Department exercised its discretion to implement water
quality based effluent limitations in the permits.
As a threshold matter, we address the City’s contention that MS4s are not required
to comply with water quality standards. The City contends that Anacostia Riverkeeper’s
holding that “MS4s are not subject to the requirement of imposing effluent limitations
necessary to meet water quality standards,” 447 Md. at 102 (cleaned up), “is controlling
and dispositive” and “the standards referenced by Appellants are inapplicable to the City’s
MS4 permit.” This overstates the holding of Anacostia Riverkeeper. The Department
exercised its discretion and implemented water quality-based effluent limitations in the
permits akin to those in the Carroll County decision. As the Department concedes, the
permits’ restoration requirement is, at least in part, a water quality-based effluent
limitation. This means that the ISR requirement must be consistent with applicable WLAs
per 40 C.F.R. § 122.44(d)(1)(vii)(B). But again, the Department has a lot of flexibility in
how it achieves this consistency in the permits, and the permits here are valid.
2. The Department has broad discretion in how it achieves
consistency with TMDL WLAs.
To the extent that the Environmental Advocates seek to challenge the ISR
requirement, including use of alternative BMPs and the “credits to acres” approach of the
25
Accounting Guidance, this contention is foreclosed by the Maryland Supreme Court’s
decision in Anacostia Riverkeeper. 447 Md. at 128–29. In that case, the Court approved
the use of such a flexible, “iterative” approach to meet TMDL WLAs. Id. at 135 (“iterative”
process incorporating WLAs complies with 40 C.F.R. § 122.44(d)(1)(vii)(B)). The permits
here take the same approach—under each, the jurisdiction provides specific
implementation plans that detail how it will implement adequate progress toward TMDL
WLAs.
To the extent that the Environmental Advocates dispute the effectiveness of the ISR
strategy (namely, the credits assigned to alternative BMP like street sweeping), that raises
factual issues that lie within the Department’s scientific discretion. The Environmental
Advocates argue that “[i]n the past and the current permit, the Department has allowed
Baltimore City to rely in large part on alternative practices such as street sweeping that do
nothing to mitigate the flow and volume of polluted stormwater. Nor have these practices
resulted in observable or quantifiable improvements to local water quality.” We give
deference to the Department in its ISR strategy and apply the “arbitrary and capricious”
standard. Carroll County, 465 Md. at 202. “[G]enerally the question is whether the agency
exercised its discretion ‘unreasonably or without a rational basis.’” Id. (quoting Harvey,
389 Md. at 297). And in the administrative record below, Blue Water Baltimore presented
evidence that “[w]ater [q]uality is not improving as a result of our current MS4 permitting
regime.” It cited to evidence that pollutant trends are not improving, which it characterized
as “suggesting . . . that the current approach to stormwater management in Baltimore City,
namely street sweeping, is not improving water quality.” (First emphasis added.) The
26
Environmental Advocates cite their backward-looking data to argue that the alternative
BMPs haven’t worked to reduce stormwater pollutants.
The Department responded that Blue Water Baltimore’s data is unreliable, first
because it lacks any causation analysis within that data that support the conclusion that
declining trends are due to alternative BMPs. The Department argues the Environmental
Advocates “fail to account for other sources of pollution,” which is why they can only
“suggest[]” the data support their conclusions. The Department insists that the data lacks
any causal connection demonstrating that the trends are attributable to the City’s or
County’s enforcement of the permits, especially when the data accounts for such a vast
area. In its Response to Comments, the Department responded specifically that “alternative
BMPs are often an effective and necessary tool to address local flooding. . . . Keeping
storm drain systems free of debris improves the capture and conveyance of runoff and
effectively reduces local flooding.”
Second, the Department cites an expert panel report on street sweeping and storm
drain cleaning that forecasts estimated future reduction in pollution and recommendations
for counting credits for street and storm drain cleaning. Recommendations of the Expert
Panel to Define Removal Rates for Street and Storm Drain Cleaning Practices (May 19,
2016). The expert report noted “a strong empirical basis for modeling how solids are
transported from the street to the storm drain” and that “[s]treet cleaning may be an
excellent strategy to reduce the toxic inputs from urban portions of the Chesapeake Bay
watershed.” See also Anacostia Riverkeeper, 447 Md. at 107–09, 177 n.107 (use of
monitoring, modeling, and “efficiency estimates” comply with the MEP standard).
27
The Environmental Advocates view the Department’s rejection of their data as
arbitrary and capricious. But the Department had a rational basis to reject Blue Water
Baltimore’s speculation that the alternative BMPs failed to manage stormwater and
improve water quality. Water quality standards in the MS4 context are “like the MEP
standard, flexible as to how a permitting authority complies” with its obligation “to
establish effluent limitations that take into account WLAs[.]” Anacostia Riverkeeper, 447
Md. at 134–35. Here, “the EPA set a minimal, flexible requirement in which the permitting
authority is to design a scheme where effluent limits are compatible or in agreement with
WLAs.” Id. at 136. Although we agree that the Environmental Advocates offered data to
back their claims, the Department wasn’t required absolutely to follow it, and we must be
“extremely deferential” to an agency with respect to this scientific matter committed to its
discretion. Carroll County, 465 Md. at 202 (cleaned up). The Department did not act
arbitrarily and capriciously in rejecting Blue Water Baltimore’s conclusions about the
effectiveness of the alternative BMPs under these circumstances.
We take the Environmental Advocates’ concerns seriously, and they have raised
genuine factual disputes about the future efficacy of the permit conditions. But the
Department resolved those disputes on the merits against the Advocates’ position, and the
law affords the Department wide flexibility in choosing “best management practices” that
are “consistent” with WLAs—flexibility to which we, as a reviewing court, defer so long
as there was substantial evidence to support it, which there was. “The fact that an agency
does not change a proposed action . . . in light of comments requesting a change does not
mean that the process lacked a meaningful opportunity for comment or that the agency
28
failed to consider those comments.” Carroll County, 465 Md. at 226. And because there
was competent, substantial evidence for the Department to conclude that the permits
comply with applicable state and federal water quality standards, we uphold the permits.
C. The Permits Do Not Constitute Unlawful Backsliding.
The Environmental Advocates’ second contention is that the permits violate the
Clean Water Act’s “anti-backsliding” provision, 33 U.S.C. § 1342(o), because “the current
permit’s requirement to restore a total of only 10% of additional impervious surface over
the next permit term” is less than the prior permit’s twenty percent restoration requirement.
The relevant statute, 33 U.S.C. § 1342(o)(1), provides that in general, future NPDES
permits may not “contain effluent limitations which are less stringent than the comparable
effluent limitations in the previous permit.” The statute continues, however, that “in the
case of effluent limitations established on the basis of section 1311(b)(1)(C) or section
1313(d) or (e) of this title, a permit may not be renewed, reissued, or modified to contain
effluent limitations which are less stringent than the comparable effluent limitations in the
previous permit except in compliance with section 1313(d)(4) of this title.” (Emphasis
added.) And section 1313(d)(4) allows revisions to effluent limitations for waters with
corresponding TMDLs so long as “the cumulative effect” will attain water quality
standards:
where the applicable water quality standard has not yet been
attained, any effluent limitations based on a [TMDL] or other
[WLA] established under this section may be revised only if
. . . the cumulative effect of all such revised effluent limitations
based on such [TMDL] or [WLA] will assure the attainment of
such water quality standard . . . .
29
The Department offers two responses: first, although the last permits required
twenty percent restoration, the new permits require each jurisdiction to continue “annually
at the same level of implementation” any alternative practices they used to meet its
previous restoration requirements. Thus, the Department argues, “the Permits’ effluent
limitations are additional and cumulative effluent limitations on top of previous effluent
limitations, an approach that generates additional pollution reductions.” Second, the
Department points out that the exception in 33 U.S.C. § 1313(d)(4)(A) applies because
even if the restoration requirements were “less stringent” than the previous permits, they
nevertheless are designed to attain water quality standards.
We agree with the Department. The permits are cumulative and their new
requirements add to the requirements from earlier permits, so they aren’t “less stringent
than the comparable effluent limitations in the previous permit.” In addition, as we held
with respect to the Environmental Advocates’ first question, the Department had a rational
basis to conclude that the “cumulative effect” of the ISR strategy would attain the water
quality standard for the applicable WLAs, in compliance with 33 U.S.C. § 1313(d)(4)(A).
The Environmental Advocates may disagree, but the Department’s conclusion is rational
and there’s substantial evidence in the record to support it.
D. The Permits Were Not Arbitrary And Capricious For The
Department’s Failure To Consider “The Totality Of
Information.”
The Environmental Advocates’ final contention is that “the Department has issued
inappropriately segmented permits” that fail to comply with state and federal law. This
issue really re-casts the first issue, that the permits are ineffective, and our discussion about
30
the Department’s broad discretion over MS4 permitting addresses it generally. But the
Environmental Advocates raise several additional problems with the permits that, they
conclude, cause the permits to fall short on water quality and the MEP standards. Given
the flexible legal standards and our deferential standard of review, we see no basis to reject
these permits.
The Environmental Advocates argue that “[t]he Department’s decision to consider
the Baltimore County and Baltimore City MS4 Jurisdiction separately harms the
environment and produces inequitable results.” The Department and City both respond that
the Environmental Advocates failed to preserve this argument because it was never raised
in the administrative proceedings. Md. Rule 8-131(a) (“[o]rdinarily, an appellate court will
not decide any other issue unless it plainly appears by the record to have been raised in or
decided by the trial court”). Although the Environmental Advocates attacked the permits
for taking a “separate and fragmentary” approach to the permits, we don’t read their brief
as raising the specific error that there needed to be a single permit for both Baltimore City
and Baltimore County. Rather, the Environmental Advocates assert generally that the
Department failed to consider the permits holistically.
First, the Clean Water Act authorizes the Department to impose controls on a
“jurisdiction-wide basis.” 40 C.F.R. § 122.26; 33 U.S.C. § 1342(p)(3)(B)(i). And the
Environmental Advocates’ position disregards the context of the NPDES program,
TMDLs, and MS4 permitting. The permits incorporate by reference statewide (the
Maryland WIPs) and regional (e.g., the Bay TMDL) strategies in enforcing the Clean
Water Act, which is itself implementing a national policy. The county-level permits feed
31
this broader objective, and to the extent that the Environmental Advocates view them as
falling short regionally, those complaints raise essentially the same attack on the efficacy
of the permit conditions that we addressed above.
Second, the Environmental Advocates argue that “[t]he Department’s failure to
consider increased rainfall data and Baltimore County’s contribution to the City’s
Stormwater Burden disproportionately impacts Baltimore City residents.” The crux of this
argument is that “the final permits lack any meaningful controls or changes to address these
fundamental stormwater management issues,” and therefore that the permits as a whole
lack a rational basis. The Department responds that it did “consider[] flooding concerns
because the practices approved by the [Bay] Program already account for stormwater
volume and provide the City and County with the flexibility to address local
conditions . . . .” 10
The Department responds that it considered increased rainfall and its impact on the
discharge of pollutants in “several ways,” chiefly through the Design Manual, which
devises restoration practices that manage both pollutants and water volume. See Anacostia
Riverkeeper, 447 Md. at 112, 123–25 (discussing the Design Manual, which implements
10
In support of this contention, the Environmental Advocates cite repeatedly to
affidavits admitted by the circuit court for the limited purpose of establishing
standing in the circuit courts below. The affidavits themselves were not part of the
administrative record before the Department in its decision-making subject here for
review, so we don’t consider them as such. See EN §§ 1-601(d), 1-606(c). But at
oral argument the Environmental Advocates stated that the fact of urban flooding
was before the Department, as were comments offered by some of the same affiants,
and the record supports this assertion. So the assertions contained in the affidavits
are part of the record we review, if not the affidavits themselves.
32
the ISR requirement “to abate[] the increase in stormwater runoff and the discharge of
pollutants because of the increase in impervious surfaces”). In light of the flexibility
afforded jurisdictions in managing MS4 discharges within the statutory scheme, the
Department’s rationale in affording the City flexibility in managing stormwater is
reasonable. “[U]rban restoration is difficult due to available space and construction costs.
Thus, instead of mandating certain kinds of restoration, the Department chose to
incentivize certain stormwater infrastructure projects, such as those that control stormwater
volume and mitigate flooding”—to include street sweeping and storm drain cleaning which
help to manage both pollution and volume. (Citation omitted.) Moreover, the permit
requires the City to solicit public input to address urban flooding. In its Response to
Comments, the Department contends that it worked to “incentivize[] and support[] actions
by local governments and community leaders that collaborate to prioritize restoration in
marginalized communities.”
Finally, the Environmental Advocates argue that the permits are ineffective because
the Department failed to include “climate change related conditions.” The Department
responds first that the “adequate supporting data simply did not exist” in the administrative
record the time the permits were issued. Efforts to address effects of climate change in the
State are ongoing, see EN § 4-203, 11 and the Department insists “the State will update the
11
This statute imposes a duty on the Department to “review and update” stormwater
management regulations “at least once every 5 years . . . using the most recent
precipitation data available[.]” EN § 4-203(b)(3). Accordingly, “[a]fter November 1,
2021, the Department shall report to the General Assembly . . . on any revisions the
Continued . . .
33
Design Manual and practices to account for increased precipitation” when more data is
reported. For that reason, the permits contain “reopener clause[s]” that will allow
modification based on new information (specifically, Part IV.D.1). The flexible, iterative
approach complies with the MS4 legal framework. See Anacostia Riverkeeper, 447 Md. at
135.
We affirm the Department’s decision to issue the 2021 MS4 permits to Baltimore
City and Baltimore County. The Department complied with 33 U.S.C. § 1342 in
implementing MS4 permits with controls designed to reduce the discharge of pollutants to
the maximum extent practicable, and the Department did so in a way that is consistent with
the assumptions and requirements of applicable WLAs. The cumulative nature of the ISR
requirement satisfies 33 U.S.C. § 1342(o)(1) and the permits are valid.
JUDGMENTS OF THE CIRCUIT COURTS
FOR BALTIMORE COUNTY AND
BALTIMORE CITY AFFIRMED.
APPELLANTS TO PAY COSTS.
Department intends to make” to stormwater management regulations. EN
§ 4-203(b)(4). Of course, the permits at issue were effective November 5, 2021, and the
Department insists the Environmental Advocates “put[] the cart before the horse” in
seeking to require that the permits account for increased precipitation relating to climate
change.
34