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Maryland Department of Environment v. Riverkeeper

Court of Special Appeals of Maryland

April 2, 2015

MARYLAND DEPARTMENT OF THE ENVIRONMENT, ET AL.
v.
ANACOSTIA RIVERKEEPER, ET AL

Page 980

Appeal from the Circuit Court for Montgomery County, Ronald B. Rubin, Judge.

Argued by: Nancy W. Young (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD. Walter Wilson (Marc P. Hansen, County Attorney, Edward B. Lattner, Chief on the brief) all of Rockville, MD, for Appellant.

Argued by: Jennifer C. Chavez (Khushi K. Desai, Earthjustice on the brief) all of Washington, D.C., for Appellee.

Nazarian, Leahy, Friedman, JJ.

OPINION

Page 981

[222 Md.App. 156] Nazarian, J.

TABLE OF CONTENTS

I. BACKGROUND

A. Statutory Background.

1. The Clean Water Act and federal permit requirements.

2. The role of the States and Maryland's permit requirements.

B. The Permit.

C. The Proceedings.

II. DISCUSSION

A. Standard of Review.

B. The Permit Is Subject To $S 1342, Not $S 1311.

C. The Permit Does Not Comply With State Law Regarding

The Permitting Process.

1. The Permit does not give meaningful opportunity for

notice and comment, and eludes judicial review.

a. The Environment Article requires that the public have

an opportunity for notice and comment.

b. Specific shortcomings of the Permit

i. The public can't comment about decisions that have yet to be made.

ii. The Permit is not specific enough.

iii. The Permit overrelies on incorporation by reference.

iv. The Permit contains no meaningful deadlines or ways to measure

compliance.

2. The agency decision to issue the Permit was unsupported by

substantial evidence with respect to TMDLs and the twenty percent

requirement.

a. The twenty percent requirement.

b. The TMDL requirement.

[222 Md.App. 157] This case arises out of protracted litigation over the terms of the stormwater management permit (the " Permit" ) that the Maryland Department of the Environment (" the Department" ) issued to Montgomery County (the " County" ) in 2010. The County and Department appeal the decision of the Circuit Court for Montgomery County remanding the Permit to the Department " for further proceedings to allow the agency to comply with Maryland law, the Clean Water Act, and federal regulations consistent with" the court's interpretation of the governing law and regulations. We agree that the Permit must be revised, and so we affirm the circuit court's decision to remand. Importantly, though, we hold that the Department and the County had the law right: the Permit falls short not for failing to hold the County to State water quality standards, as the challengers urge,[1] but because it did not

Page 982

afford an appropriate opportunity for public notice and comment and because it lacks crucial details that would explain the County's stormwater management obligations.

I. BACKGROUND

Stormwater is what the word suggests: water from rain- or other storm events that, as it (over)flows into streams and [222 Md.App. 158] rivers, picks up and carries large quantities of pollutants that evade Mother Nature's filtration process. The pollutants can include anything from road detritus--trash, road salts, grease, and other materials from cars--to pesticides, to natural materials, such as fecal bacteria from animal waste.

The County collects stormwater through a municipal separate storm sewer system (the County's is big enough to qualify as an " MS4," a term we will define later) that covers a nearly-500-square-mile area. After it falls from the sky, stormwater flows, in higher volumes and at higher speeds, through natural outfalls or through the County's sewer pipes and wastewater treatment facilities, then into the Middle Potomac and Patuxent River basins. Everyone agrees that this is bad for the rivers: in its comments during the Permit application process, the Department recognized that interested parties saw stormwater as " the '. . . biggest form of pollution affecting the Anacostia River. . .' carrying trash and accumulated pollutants and causing flooding in low-lying areas of various watersheds throughout the County. . . . It becomes fairly easy for all organizations, individuals, and government agencies to agree that urban stormwater is a problem that must be addressed." And just as everything else in life flows downhill, the pollution (and corresponding degradation of water quality) flows downstream into the waters of the District of Columbia and Prince George's County, and eventually into the Chesapeake Bay.

The Clean Water Act (the " Act" ), along with its Maryland counterpart and overlapping layers of regulations,[2] regulates and seeks to limit water pollution from stormwater runoff into municipal sewer systems that discharge into rivers. This case involves a successful challenge to the terms of the stormwater permit the Department issued to the County in 2010. We begin by discussing the statutory requirements, then walk [222 Md.App. 159] through the process the County went through with the Department to obtain the Permit, then summarize the proceedings that culminated in this appeal.

A. Statutory Background.

1. The Clean Water Act and federal permit requirements.

The Act was passed in 1972 to " restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a). The Act presumptively prohibits the discharge of pollutants, id. § 1251(a)(1), and renders any discharge unlawful, id. § 1311(a), unless the discharging party obtains a permit under the " National Pollutant Discharge Elimination System" (" NPDES" ). Id. § 1342(a)(1).

As initially drafted, § 1311 limited the amount of pollutants that could enter the water from a particular source. The Act

Page 983

imposes " effluent limitations" on discharges from any " point source" (a term we will get to momentarily) by requiring the source to use " the best practicable control technology [" BPT" ] currently available." 33 U.S.C. § 1311(b)(1)(A)(i). When first enacted, the Act required effluent limitations to be in place by July 1, 1977. Id. § 1311(b)(1)(A). Section 1311 also required compliance with any " more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations." Id. § 1311(b)(1)(C) (emphasis added); see also Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999) (noting too that " although the BPT requirement takes into account issues of practicability," the EPA nonetheless requires the level of controls necessary to " implement existing water quality standards" (quoting Rybachek v. EPA, 904 F.2d 1276, 1289 (9th Cir. 1990))).

At its inception, the Act directed its efforts primarily at the most obvious " point source" pollution. The term " point source" was defined within the Act in a technical way that aimed to capture a broad universe of potential pollution sources:

[222 Md.App. 160] The term " point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

33 U.S.C.A. § 1362(14); see also 40 C.F.R. § 122.2. The parties don't dispute that a sewage system like the County's qualifies as a network of point sources, but that point has not been altogether obvious since the Act came about. The Act did not purport initially to regulate stormwater discharge, and in fact exempted stormwater separate from industrial or commercial activity. See Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1372 n.5, 186 U.S.App.D.C. 147 (D.C. Cir. 1977) (citing 40 C.F.R. § 125.4 (1975)); see also Jeffrey G. Miller, The Supreme Court's Water Pollution Jurisprudence: Is the Court All Wet?, 24 Va. Envtl. L.J. 125, 131-32 (2005); The Clean Water Act Handbook at 167 (Mark A. Ryan ed. 2011) (" Stormwater runoff in the early days of the NPDES program was treated as a diffuse source of nonpoint source pollution. This may have seemed logical because most runoff cannot efficiently be controlled using the strict end-of-pipe effluent limitations that are effective in regulating traditional industrial and municipal discharges." (emphasis added)). But in 1987, Congress amended the Act to bring stormwater discharge specifically within its reach, and since then storm sewer discharge has been treated as a point source and covered by the NPDES permit requirements. Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1296 & n.5 (9th Cir. 1992).[3] See 33 U.S.C. § 1342(p)(3)(B); [222 Md.App. 161] see also Browner, 191 F.3d 1159. The amendments applied discharge limitations to MS4 systems that serve a population of

Page 984

100,000 or more,[4] 33 U.S.C. § 1342(p)(2)(C), (D):

Permits for discharges from municipal storm sewers . . . (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.

33 U.S.C. § 1342(p)(3)(B) (emphasis added).

The Act also raises standards for permits where the " effluent limitations [imposed by § 1311] are not stringent enough to implement any water quality standard applicable to such waters." Id. § 1313(d). A state must establish a total maximum daily load (" TMDL" ) for those pollutants that keep it from meeting water quality standards; the TMDL " is the sum of pollutants a body of water can absorb from all point and non-point sources, plus a margin of safety, and still meet water quality standards for its designated uses." Assateague Coastkeeper v. Maryland Dep't of the Env., 200 Md.App. 665, 675 n.8, 28 A.3d 178 (2011). So, for example, the EPA has issued a TMDL for the Chesapeake Bay that applies expressly to this Permit, in addition to other local TMDLs. As the Chesapeake Bay Foundation explains it,[5] " Maryland's ability to comply with the Bay TMDL pollution reduction requirements relies heavily on reducing pollutants from urban stormwater," and " the ability to track and confirm progress " on that reduction " through public participation, monitoring, and [222 Md.App. 162] setting and using interim benchmarks is of the utmost importance " (emphasis added).

The " maximum extent practicable" language in § 1342 leaves altogether unclear, though, who deems a measure maximally practicable. And although that concept differs from the prior standard, and relieves municipal systems of the burden to meet specific water quality standards (a burden that still applies to private sources), it leaves open whether MS4s also must comply with the " effluent limitations" (and concomitant BPT standard) in § 1311. Add to this mix the state environmental regulations we discuss next, and the picture (like the water) becomes murkier.

2. The role of the States and Maryland's permit requirements.

The Act recognizes the " responsibilities and rights" of the various states to respond to System requirements, id. § 1251(b), and the EPA has delegated to Maryland the right to issue permits, see Assateague Coastkeeper, 200 Md.App. at 677-78 n.10, a task that it in turn has delegated to the Department. The Environment Article to the Maryland Code declares pollution to be " a menace to public health and welfare," and declares the State's policies regarding water pollution and water quality:

(1) To improve, conserve, and manage the quality of the waters of this State;
(2) To protect, maintain, and improve the quality of water for public supplies, propagation of wildlife, fish, and aquatic life, and domestic, agricultural, industrial, recreational, and other legitimate beneficial uses;
(3) To provide that no waste is discharged into any waters of this State without first receiving necessary treatment

Page 985

or other corrective action to protect the legitimate beneficial uses of the waters of this State;
(4) Through innovative and alternative methods of waste and wastewater treatment, to provide and promote prevention, [222 Md.App. 163] abatement, and control of new or existing water pollution; and
(5) To promote and encourage the use of reclaimed water in order to conserve water supplies, facilitate the indirect recharge of groundwater, and develop an alternative to discharging wastewater effluent to surface waters, thus pursuing the goal of the Clean Water Act to end the discharge of pollutants and meet the nutrient reduction goals of the Chesapeake Bay Agreement.

Md. Code (1996, 2007 Repl. Vol.), § 9-302(b) of the Environment Article (" Envir." ). Like the Act, Maryland law prohibits discharges generally (providing that " a person may not discharge any pollutant into the waters of this State," id. § 9-322), but allows for a discharge permit to issue from the Department, id. § 9-323, and specifies both what a permit must contain and how it must be obtained:

(a) Subject to the provisions of this section, the Department may issue a discharge permit if the Department finds that the discharge meets:
(1) All applicable State and federal water quality standards and effluent limitations ; and
(2) All other requirements of this subtitle.
* * *
(d) The Department shall give public notice of each application for a discharge permit as required by Title 1, Subtitle 6 of this article, and by making available to the public appropriate documents, permit applications, supporting material, plans, and other relevant information.

Id. § 9-324 (emphasis added).

The statute also allows the Department to " adopt rules and regulations that set, for the waters of this State, water quality standards and effluent standards" :

(a) These standards shall be designed to protect:
(1) The public health, safety, and welfare;
(2) Present and future use of the waters of this State for public water supply;
[222 Md.App. 164] (3) The propagation of aquatic life and wildlife;
(4) Recreational use of the waters of this State; and
(5) Agricultural, industrial, and other legitimate uses of the ...

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