MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.
ANACOSTIA RIVERKEEPER, et al. BLUE WATER BALTIMORE, et al.
MARYLAND DEPARTMENT OF THE ENVIRONMENTBLUE WATER BALTIMORE, et al.
MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.
Argued: November 5, 2015
Circuit Court for Baltimore City Case No.: 24-C-14-000364.
Circuit Court for Anne Arundel County Case No.: 02-C-14-186144.
Circuit Court for Montgomery County Case No.: 339466.
Barbera, C.J. Battaglia Greene Adkins McDonald Watts Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ.
FACTS AND LEGAL PROCEEDINGS
Maryland Department of the Environment ("MDE") issued municipal separate storm sewer system ("MS4") discharge permits ("the Permits") to Anne Arundel County, Baltimore City, Baltimore County, Montgomery County, and Prince George's County ("the Counties"). Multiple organizations argue that the Permits do not comply with federal and state law, and they request that we remand for MDE to correct these legal errors.
Federal Framework: NPDES Permits and Municipal Stormwater Discharges
Under the Clean Water Act ("CWA"), the discharge of pollutants is illegal. 33 U.S.C. § 1311. Through the National Pollution Discharge Elimination System ("NPDES"),  33 U.S.C. § 1342, either the Environmental Protection Agency ("EPA") or an EPA-approved state, such as Maryland, may issue permits exempting a discharger from this prohibition. See Piney Run Pres. Ass'n v. Cnty. Comm'rs of Carroll Cnty., Md., 268 F.3d 255, 265 (4th Cir. 2001). MDE is the authority in Maryland that administers the NPDES program. Code of Maryland Regulations ("COMAR") 26.08.04.07. An NPDES permit, however, does not give a discharger carte blanche. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102 (2004). These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent limitation as "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance"). The type of discharge determines the type of limitations the permit must impose on the discharger.
The Permits before us control stormwater pollutant discharge. Stormwater consists of the rain and snowmelt that filters through the soil and courses over surfaces-collecting pollutants along the way-before passing through the municipal storm sewer systems and into waterbodies. During the development of the Permits, the Water Groups explained the problems that stormwater poses, whether to the surface conditions of Maryland's waters, for humans who recreate and subsist on them, and for wildlife who live in them. See Letter with Comments on Draft MS4 Permit for Baltimore City from Blue Water Baltimore, Inc. and Earthjustice, to Brian Clevenger, MDE (Sept. 21, 2012). In recognition of extensive public commentary on the severity of the problems associated with stormwater, MDE stated: "[i]t becomes fairly easy for all organizations, individuals, and government agencies to agree that urban stormwater is a problem that must be addressed." MDE, Response to Formal Comments for Montgomery County NPDES Permit (2009).
Nevertheless, municipal stormwater discharge is "highly intermittent, " "usually characterized by very high flows occurring over relatively short time intervals, " and "depend[s] on the activities occurring on the lands." See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47, 990, 48, 038 (Nov. 16, 1990) (codified at 40 C.F.R. § 122.26). It is also difficult to discern the amount of pollutant that any one discharger contributes to a waterbody because municipalities have so many outfalls, or discharge points, leading into the waters. See MDE, Montgomery County NPDES Permit Fact Sheet (900 outfalls); MDE, Anne Arundel County NPDES Permit Fact Sheet (nearly 1, 000 outfalls); MDE, Baltimore County NPDES Permit Fact Sheet (nearly 700 outfalls.); MDE, Prince George's County NPDES Permit Fact Sheet (more than 4, 000 outfalls); MDE, Baltimore City NPDES Permit Fact Sheet (around 350 outfalls.); see also 40 C.F.R. § 122.26(b)(5), (9) (outlining minimum diameters of pipes in major MS4 outfalls).
Because of the nature of municipal stormwater discharges, Congress adopted a flexible approach to the control of pollutants in MS4s. See 55 Fed. Reg. at 48, 038 (The Congressional Record from 1986 stated not only that "an end-of-the-pipe treatment technology is not appropriate for [the MS4] discharge" but also that "[MS4] controls may be different in different permits."). Pursuant to 33 U.S.C. § 1342(p)(3)(B)(iii), municipal stormwater permits "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods . . . ."
Best management practices ("BMPs") have been a long-standing control or effluent limitation in MS4 permits. See 40 C.F.R. § 122.44(k)(2) (BMPs "control or abate the discharge of pollutants when [a]uthorized under [33 U.S.C. § 1342(p)]"); id. § 122.44(k)(3) (BMPs are an appropriate control when "[n]umeric effluent limitations are infeasible"); see also Tualatin Riverkeepers v. Or. Dep't of Envtl. Quality, 230 P.3d 559, 564 (Or. Ct. App. 2010) ("'Best management practices, ' such as those incorporated in the permits at issue in this case, are a type of effluent limitation."). The EPA defined BMPs to mean "schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of 'waters of the United States.'" 40 C.F.R. § 122.2; cf. Natural Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 579 (2d Cir. 2015) ("But EPA's narrative WQBEL [water-quality based effluent limitation] does not qualify as a BMP, as it is neither a practice nor a procedure."). Examples of the types of BMPs the Counties might implement pursuant to the Permits are infiltration practices and green roofs.
Through guidance memos, the EPA has endorsed the use of BMPs in MS4s for decades but has increasingly recommended that, where feasible, such permits include numeric effluent limitations. Interim Permitting Approach for Water-Quality Based Effluent Limitations in Storm Water Permits, 61 Fed. Reg. 43, 761 (1996); EPA, Memorandum on Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs § 3 (2002) [hereinafter "2002 Memo"]; EPA, Memorandum on Revisions to the November 22, 2002 Memorandum 4–5 (2010) [hereinafter "2010 Memo"]; EPA, Memorandum on Revisions to the November 22, 2002 Memorandum at 4 n.5 (2014) [hereinafter "2014 Memo"]. (A "numeric" effluent limitation "refers to [a] limitation with a quantifiable or measurable parameter related to a pollutant (or pollutants).").
Total Maximum Daily Loads ("TMDLs")
The concept of total maximum daily load ("TMDL") looms large in this case. We begin by setting forth its basic purpose, then unpacking its complex formation.
TMDLs inform. See Am. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 291 (3d Cir. 2015) ("Our understanding of [TMDLs] as informational tools is supported by every case and piece of scholarship to consider them as well as the language of the Chesapeake Bay TMDL itself."); see also EPA, Chesapeake Bay TMDL § 1.41, at 1-15 (2010) ("TMDLs are 'primarily informational tools' that 'serve as a link in an implementation chain . . . .'"), available at http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-document.
TMDLs arise out of a multi-step process that begins with the establishment of water quality standards ("WQS"). See Am. Farm Bureau Fed'n, 792 F.3d at 289 ("TMDLs happen after a state enacts pursuant to its law (but required by the Clean Water Act) 'water quality standards.'"). Because the EPA and the states interact throughout this process, it has been described as one of "cooperative federalism." Id. at 288; see Anacostia Riverkeeper, Inc. v. Jackson, 798 F.Supp.2d 210, 214–17 (D.D.C. 2011).
Water quality standards, as the term itself suggests, protect water quality. 40 C.F.R. § 130.2(d); COMAR 26.08.02.01(A). Each state must set water quality standards by assigning a "use" to a water, such as recreation or fishing, then developing criteria to protect those uses, as well as ensuring that higher quality waters do not degrade to the minimally accepted standard (also known as an anti-degradation policy). 33 U.S.C. § 1313; COMAR 26.08.02.01(B)(1). All water quality standards are subject to EPA review, and if the EPA does not approve of them, the EPA will set those standards itself. 33 U.S.C. § 1313.
By way of example, the EPA approved a TMDL that MDE submitted for fecal bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County in 2007. See MDE, Total Maximum Daily Loads of Fecal Bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County, Maryland (Document version: Oct. 13, 2006) [hereinafter "John Creek Basin TMDL"]. These bacteria are microscopic organisms in animal waste. Fecal bacteria in water can raise the risk of illness in humans who recreate there. Id. at § 1.0, at 1. To develop the WQS, MDE selected "water contact recreation and protection of aquatic life and public water supply" as the use of the water and 126 MPN per 100 milliliters as the criteria. Id. at § 2.3, at 11 (citing COMAR 26.08.02.08O and 26.08.02.03-3). This figure (126) represents a mean density for this pollutant. Id.; see 40 C.F.R. § 130.2(i) ("[M]ass per time, toxicity, or [an]other appropriate measure" may be used to express TMDLs.).
After setting WQSs, the states establish effluent limitations in permits as the primary way to meet the WQSs because, as we have explained, effluent limitations restrict the discharge of pollutants. See 33 U.S.C. § 1362(11). Nevertheless, we note, importantly, that MS4s are not subject to the requirement of imposing effluent limitations "necessary to meet water quality standards." See 33 U.S.C. § 1311(b)(1)(C); see also Defenders of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999); cf. 33 U.S.C. § 1342(p)(3)(A) (Industrial dischargers must comply with 33 U.S.C. § 1311.). This important point notwithstanding, Congress requires that "[e]ach State shall identify those waters within its boundaries for which the effluent limitations required by [33 U.S.C. § 1311] are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. § 1313(d)(1)(A).
This is where the TMDL comes into play. The TMDL tells a state what is the threshold amount of a pollutant that a body of water can tolerate before violating the WQS. See In re City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *4 (EAB July 27, 2001) ("A TMDL is a measure of the total amount of a pollutant from point sources, nonpoint sources and natural background, that a water quality limited segment can tolerate without violating the applicable water quality standards."); EPA, Chesapeake Bay TMDL § 1.1, at 1-2 ("A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet applicable WQS.").
States must establish TMDLs "at a level necessary to implement the applicable water quality standards, " 33 U.S.C. § 1313(d)(1)(C), when they identify those waters for which effluent limitations cannot implement the WQSs, 33 U.S.C. § 1313(d)(1)(A). As with water quality standards, the states have the obligation of setting TMDLs and submitting them to the EPA for approval. See supra MDE, John Creek Basin TMDL (The EPA approved of MDE's TMDL in March 2007.). If the EPA disapproves of the TMDLs, the EPA will set them itself. 33 U.S.C. § 1313(d)(2).
For this case, wasteload allocations ("WLAs") are the most critical part of the TMDL equation. See 40 C.F.R. § 130.2(i) (A TMDL is "[t]he sum of the individual WLAs for point sources and LAs [load allocations] for nonpoint sources and natural background."). The WLA represents a water's "loading capacity" assigned to its "point sources of pollution." Id. § 130.2(h). Continuing with our example, MDE set the TMDL for fecal bacteria at 176.36 billion MPN/day, the LA at 68.17 billion MPN/day, and the WLA at 108.19 billion MPN/day. MDE, John Creek Basin TMDL.
Although TMDLs are informational tools, of which WLAs are a part, WLAs are more akin to restrictions. See Am. Farm Bureau Fed'n v. EPA, 984 F.Supp.2d 289, 328 (M.D. Pa. 2013) ("WLAs are not permit limits per se; rather they still require translation into permit limits . . . .") (citation omitted) (internal quotation marks omitted) (emphasis in original), aff'd, 792 F.3d 281 (3d Cir. 2015). Under 40 C.F.R. § 122.44(d)(1)(vii)(B), permitting authorities must ensure that effluent limitations "are consistent with the assumptions and requirements" of any approved WLA.
We conclude our introduction of TMDLs by noting that MS4s are subject to the MEP standard under 33 U.S.C. § 1342. MS4s are not, however, required to impose effluent limitations necessary to meet water quality standards. The CWA still requires Maryland to set water quality standards and TMDLs-subject to the EPA's approval. Flowing from this obligation is the requirement that MS4s are subject to effluent limitations that are consistent with WLAs of EPA-approved TMDLs.
The Chesapeake Bay TMDL
As we will discuss in more detail, the Permits require the Counties to take actions to make progress in meeting the WLAs of many EPA-approved TMDLs. By far, though, the most critical TMDL in this case is the Chesapeake Bay TMDL ("Bay TMDL").
Regarded as a national treasure,  the Chesapeake Bay is the largest estuary in the United States, a product of flooding from the Susquehanna River over thousands of years. Alice Jane Lippson, The Chesapeake Bay in Maryland: An Atlas of Natural Resources 2 (Johns Hopkins University Press 1973). Over 2, 000 species of animals and plants reside in the Chesapeake Bay. Alice Jane Lippson & Robert L. Lippson, Life in the Chesapeake Bay viii (Johns Hopkins University Press 1984). These include phytoplankton, the blue crab, and striped bass, among many, many others. Lippson, The Chesapeake Bay in Maryland, supra at 14, 26, 36. In addition to housing much wildlife, the Chesapeake Bay is a shipping and commerce hub and a source of recreation. Chesapeake Bay Program, Chesapeake Bay: Introduction to an Ecosystem 2 (2004).
Human activity, however, threatens this complex ecosystem. "Excess sediment and nutrients endanger the Bay's water quality." Id. at 3–4. Such threats include: depriving species of oxygen; delivering chemicals which collect in animal tissue; and even destroying habitats because sunlight cannot reach critical underwater grasses where species reside. Id.
There is, then, no underestimating the importance of the restoration of the Chesapeake Bay in Maryland. See Am. Farm Bureau, 984 F.Supp.2d at 298 ("[The Bay] has been described as one of the most biologically productive ecosystems in the world, " and, along with its watersheds, "add[s] ecological, economic, recreational, historic, and cultural value to the region.").
How to restore the Bay, however, has been a prolonged, frustrated process. See id. (The Bay TMDL "is not a new or recent idea, " and thus, "it would be improper to view the Final TMDL in a vacuum as a single, isolated effort to restore water quality to the Chesapeake Bay."). Some of these restoration efforts include the Chesapeake Bay Agreement in 1980, another agreement in 1987, amendments to the agreement in 1992, and the Chesapeake 2000 Agreement. Department of Legislative Services, Office of Policy Analysis, Chesapeake Bay Restoration and the Tributary Strategy: An Analysis of Maryland's Efforts to Meet the Nutrient and Sediment Reduction Goals of the Chesapeake 2000 Agreement 3–4 (2007).
The EPA established the Bay TMDL in December 2010. See Am. Farm Bureau Fed'n, 792 F.3d at 290 ("As noted, for the Chesapeake Bay the relevant states and the EPA agreed that the EPA would draft the TMDL in the first instance."). It has survived legal challenges before the U.S. District Court for the Middle District of Pennsylvania as well as the Third Circuit. See Am. Farm Bureau Fed'n, 984 F.Supp.2d at 294; Am. Farm Bureau Fed'n, 792 F.3d at 287. These courts have noted that the efforts to restore the Chesapeake Bay extend back decades, and that the development of the Bay TMDL itself has been a decade-long process. Am. Farm Bureau Fed'n, 984 F.Supp.2d at 299; Am. Farm Bureau Fed'n, 792 F.3d at 291.
The Bay TMDL provides information pertaining to pollution reduction for nitrogen, phosphorus and sediment in the Chesapeake Bay and applies to the District of Columbia and the six "Bay" states, including Maryland. EPA, Chesapeake Bay TMDL at ES-1.
Before delving into Maryland's role in the formation of the Bay TMDL, we must discuss the "critical and valuable" role that modeling played in the Bay TMDL's development. EPA, Chesapeake Bay TMDL at ES-5. "Modeling is an approach that uses observed and simulated data to replicate what is occurring in the environment to make future predictions." Id. "A model 'is an abstraction from and simplification of the real world.'" Am. Farm Bureau, 984 F.Supp.2d at 340 (citation omitted). Models are essential when one seeks to study "ecosystems that are too large or complex for real-world monitoring, " such as the Chesapeake Bay and its watersheds. Chesapeake Bay Program, About the Bay Program: Modeling, available at http://www.chesapeakebay.net/ about/programs/modeling (last visited Feb. 9, 2016) [hereinafter CBP: Modeling].
A prominent component in the modeling of the Bay TMDL was the Phase 5.3 Chesapeake Bay Watershed Model ["Phase 5.3 Model"]. EPA, Chesapeake Bay TMDL, at 5-19. "The Phase 5.3 Model is the most recent of a series of increasingly refined versions of the Chesapeake Bay Watershed Model." EPA, Chesapeake Bay Phase 5.3 Community Watershed Model § 1.2.1, at 1-13 (2010), available at http://www.chesapeakebay.net/about/programs/modeling/53/. The Phase 5.3 Model simulates the "loading and transport of nitrogen, phosphorus, and sediment from pollutant sources throughout the Bay watershed." EPA, Chesapeake Bay TMDL, at 5-20. Additionally, this model provides "estimates of watershed nitrogen, phosphorus, and sediment loads resulting from various management scenarios." Id.
Because models are not "perfect forecasts, " however, modeling is "part of a broader toolkit, " including monitoring, "to gain the highest possible level of accuracy." CBP: Modeling. As the EPA explained: "The Bay modeling framework takes advantage of decades of atmospheric deposition, streamflow, precipitation, water quality, biological resource, and land cover monitoring data" as well as "tracking and reporting of the implementation of pollution load reduction best management practices." EPA, Chesapeake Bay TMDL, at § 5.1, 5-1–5-2. These resources allowed the EPA to calibrate its models. Id.
Because the Bay TMDL exists in significant part as a result of modeling, and because of how prevalent modeling is in TMDL formulation, MDE incorporated modeling into the Permits.
MDE incorporated by reference a document the agency published, called Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated, Guidance for National Pollutant Discharge Elimination System Stormwater Permits ("the Guidance"). As the name suggests, the document serves dual purposes: the Counties can assess progress in achieving WLAs and also assess restoration of impervious surface areas through a credits-to-acres approach. In the Guidance, MDE sets forth acceptable models that the Counties can use, including, Maryland's Assessment and Scenario Tool ("MAST"). MDE, Guidance at 2. The Guidance includes the pollutant rates for the Bay TMDLs-Total Nitrogen ("TN"), Total Phosphorus ("TP"), and Total Suspended Sediment ("TSS")-and requires that the Counties use these pollutant rates together with land use data to calculate baseline stormwater loads. Id. at 2–3. As the document explains, "[t]hese pollutant loads are specific to the  Bay TMDL." Id. at 2. But the Counties may use the principles and methods in the Guidance "for any EPA approved TMDL." Id. at 1.
Maryland's Watershed Implementation Plan ("WIP")
The EPA developed the Bay TMDL to ensure that the Bay jurisdictions would put in place "all pollution control measures needed to fully restore the Bay and its tidal rivers" by 2025. EPA, Chesapeake Bay TMDL at ES-1. The EPA approved the Bay TMDL "only after" determining that each jurisdiction provided "reasonable assurance" that it would meet established pollutant reductions. Am. Farm Bureau Fed'n, 792 F.3d at 291. The Bay jurisdictions set forth their strategies for meeting pollutant reductions in Watershed Implementation Plans ("WIPs"). Id.
WIPs are "roadmaps" setting forth a plan for how and when a jurisdiction will reach the pollution reduction goals in the Bay TMDL. EPA, Chesapeake Bay TMDL, at ES-8. The EPA described these roadmaps as the "cornerstone" that ensured the States were accountable in achieving pollution reductions. Id. Notably, the EPA expressed no concerns about Maryland's Final WIP,  whereas the EPA had to implement backstop allocations and adjustments in other Bay jurisdictions so that the EPA had reasonable assurance that all jurisdictions would achieve necessary reductions. See EPA, Chesapeake Bay TMDL Executive Summary, ES-10–ES-13 (Dec. 29, 2010) [hereinafter "Bay TMDL ES"].
Maryland's WIP lists restoration of "twenty percent of the counties' impervious surface area that is not already restored to the maximum extent practicable (MEP)" in the "key elements" supporting the reasonable assurance of the implementation of the WIP. Phase I WIP at 5-30. The elements also include the adaptive management approach whereby additional or alternative practices are implemented if existing programs are not meeting target reductions. Id.
Maryland's Stormwater Management History
In addition to an explication of the federal permitting system, NPDES, and the complex components arising out of it, such as TMDLs, we also set forth Maryland's stormwater management program, which has evolved since its inception in the 1980s, and which is informative for purposes of analyzing the Permits.
In 1982, the General Assembly enacted laws "to reduce as nearly as possible the adverse effects of stormwater runoff." Maryland Code (1982, 2007 Repl. Vol.), § 4-201 of the Environment Article ("EN"); see H.B. 1091, 1982 Gen. Assemb. Reg. Sess. (Md. 1982). As a result, each county and municipality in Maryland was required for the first time to "adopt ordinances necessary to implement a stormwater management program" by July 1, 1984. See EN § 4-202. Then authorized by the General Assembly, the Department of Natural Resources issued regulations setting forth minimum control requirements and design criteria for the counties and municipalities. See 10 Md. Reg. 881, 884–85 (May 13, 1983) (to be codified at COMAR 08.05.05). The regulations fostered the "primary goal" of "maintain[ing] after development, as nearly as possible, the predevelopment runoff characteristics" of the land. See EN § 4-203(b)(1); see also EN § 4-204(a) (Development of land is prohibited without submitting a stormwater management plan and obtaining the municipality's or county's approval of the plan.)
Maryland entered a new phase of stormwater management in the early 2000s. Pursuant to EN § 4-203(b), MDE adopted regulations to "rectify the programmatic shortcomings" of then-existing regulations that had provided "sparse guidance" on "water quality enhancement." 27 Md. Reg. 1167, 1168 (June 16, 2000) (to be codified at COMAR 26.07.02). Amending the stormwater regulations, MDE intended to "provide water quality treatment of up to 90 percent of the average annual rainfall throughout the State, establish ground water recharge standards, and outline a channel erosion control strategy, " as well as "promote environmentally friendly site design." Id. To fulfill this purpose, MDE incorporated by reference the 2000 Maryland Stormwater Design Manual ("the Manual"). Id. at 1167, 1169. MDE required the counties and municipalities to revise their ordinances to incorporate the Manual's policies and practices by July 1, 2001. Id. at 1170.
The Manual "provide[d] designers a general overview on how to size, design, select and locate BMPs at a new development site to comply with State stormwater performance standards." Center for Watershed Protection ("CWP") & MDE, Manual, § 1.3, at 1.16. There are 14 performance standards, including the water quality volume standard ("WQv"). Id. § 1.2, at 1.13.
Another stormwater management phase began when the General Assembly required MDE to mandate the use of environmental site design ("ESD") in 2007. H.B. 786, Gen. Assemb. Reg. Sess. (Md. 2007). ESD is best understood as those practices, such as "small-scale stormwater management practices, nonstructural techniques, and better site planning, " that "mimic natural hydrologic runoff characteristics and minimize the impact of land development on water resources." EN § 4-201.1(b); see, e.g., note 9 (green roofs). MDE implemented regulations to this effect and explained that "[t]he goal of the regulations is to maintain after development as nearly as possible, the predevelopment runoff characteristics of the site being developed using ESD to the MEP." 35 Md. Reg. 2191 (Dec. 5, 2008) (to be codified at COMAR 26.17.02).
MDE issued several series of MS4 permits to the Counties that preceded the Permits before us today. See MDE, NPDES MS4 Permit Montgomery County Fact Sheet (2008) (The first two permits were issued in 1996 and 2001.); MDE, Basis for Final Determination to Issue Prince George's County's NPDES MS4 Permit (2013) (The first three permits were issued in 1993, 1999, and 2004.); MDE, Basis for Final Determination to Issue Baltimore County's NPDES MS4 Permit (2013) (The first three permits were issued in 1994, 2000, and 2005.); MDE, Basis for Final Determination to Issue Anne Arundel County's NPDES MS4 Permit (2013) (The first three permits were issued in 1993, 1999, and 2004.); MDE, Basis for Final Determination to Issue Baltimore City's NPDES MS4 Permit (2013) (The first three permits were issued in 1993, 1999, and 2005.).
At issue here are five-year term Permits MDE most recently issued: to Montgomery County in February 2010, to Baltimore County in December 2014, to Baltimore City in December 2013, to Prince George's County in January 2014, and to Anne Arundel County in February 2014.
The Water Groups challenge the Permits in several respects, namely, (1) the requirement to restore impervious surface area, (2) the requirement to submit plans for TMDLs, (3) the monitoring requirements, and (4) the public's ability to participate in the development of the Permits.
Some of these provisions are new and therefore represent an increase in responsibility on the Counties to maintain and improve the quality of their waters. See, e.g., MDE, Basis for Final Determination to Issue Anne Arundel County's NPDES MS4 Permit (2013) ("These meetings resulted in the addition of more stringent conditions to Anne Arundel County's stormwater permit, in large part due to a regional and growing focus on restoring Chesapeake Bay."); id. ("New requirements in the permit will include . . . developing restoration plans to meet stormwater WLAs for impaired waters."); MDE, NPDES Montgomery County Stormwater Permit Response to Formal Comments at 2 (2009) ("MDE believes that this current municipal stormwater permit will force Montgomery County to make major strides toward controlling urban runoff better than ever before. New conditions such as trash abatement jurisdiction-wide and requiring an additional 20% of the County's impervious area to be restored are major additions.");MDE, Maryland's 2006 TMDL Implementation Guidance for Local Governments i (2006) ("Until recently, Maryland has focused primarily on TMDL development, which establishes limits on pollutant loads. Now the State is moving into the implementation phase . . . .").
Before discussing these Permit provisions, we note additional Permit requirements that illustrate the breadth of the Counties' obligations. The Counties must implement management programs "to control stormwater discharges to the maximum extent practicable." These programs include a stormwater management program ("SWMP") and an erosion and sediment control program in accordance with state law; an "illicit discharge detection and elimination" program; requirements to reduce trash; obligations on the Counties to reduce pollutants associated with maintenance activities and on municipal facilities to submit pollution prevention plans; as well as a requirement to engage in public outreach activities to reduce stormwater pollution.
The Permits also require the Counties to engage in thorough analyses of the water quality of their watersheds. Among other things, the watershed assessments oblige the Counties to identify and prioritize water quality improvement projects.
MDE has also ensured that the Counties cannot use lack of adequate funding as a defense for failure to comply with Permit terms. The Permits explain that "[l]ack of funding does not constitute a justification for noncompliance with the terms of this permit." To this end, the General Assembly enacted EN § 4-202.1 in 2012, requiring the Counties "to adopt local laws or ordinances necessary to establish an annual stormwater remediation fee and a local watershed protection and restoration fund to provide financial assistance for the implementation of local stormwater management plans." H.B. 987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012); see also EN § 4-202.1(a)(1) (This "section applies to a county or municipality that is subject to a [NPDES Phase I MS4 permit]."). MDE had investigated the costs of meeting the Bay TMDL and commissioned a study that revealed that "stormwater BMPs likely represent the largest costs to local governments in implementing the TMDL." H.B. 987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012).
The Permits also contain annual reporting requirements for: (1) the components of the stormwater management programs, and (2) data pertinent to the assessment of progress in implementing the Permit requirements, such as impervious surfaces and pollutant load reductions. MDE will review the Counties' reports to assess "progress toward meeting WLAs developed under EPA approved TMDLs" and the effectiveness of the programs in "reducing the discharge of pollutants to the MEP to protect water quality." MDE will require BMP and program modifications if the Counties fail to comply with the Permit or show progress.
The Permits also contain provisions setting forth sanctions for the violation of Permit conditions, including civil and criminal penalties. See, e.g., Montgomery County NPDES Permit Part VI.C ("Failure to comply with a permit provision constitutes a violation of the CWA and is grounds for enforcement action; permit termination, revocation, or modification; or denial of a permit renewal application.").
Circuit Court and Court of Special Appeals Opinions
EN § 1-601 provides for judicial review of MDE's final determination to issue a permit. The Water Groups challenged the Permits in the various counties where MDE issued them.
The Circuit Court for Montgomery County remanded for MDE to revise the Permit in accordance with its opinion and order. In a reported opinion, the Court of Special Appeals affirmed. Md. Dep't of the Env't v. Anacostia Riverkeeper, 222 Md.App. 153, 157, 112 A.3d 979, 981 (2015), cert. granted, 443 Md. 734, 118 A.3d 861. MDE filed a petition for writ of certiorari, which we granted.
The Circuit Court for Baltimore County, the Circuit Court for Anne Arundel County, and the Circuit Court for Prince George's County affirmed MDE's decision to issue those Permits. The Water Groups filed notices of appeal to the Court of Special Appeals and, upon MDE's motion, the Court of Special Appeals consolidated these three cases. MDE then filed a petition for writ of certiorari to this Court with questions nearly identical to those MDE submitted in its petition for writ of certiorari with respect to the Montgomery County Permit.
Finally, the Circuit Court for Baltimore City also affirmed MDE's decision to issue the Baltimore City Permit. The Water Groups filed a notice of appeal, and the Mayor & City Council of Baltimore ("Baltimore City") filed a petition for writ of certiorari with a request that we consider this petition in conjunction with MDE's petitions. We granted the City's petition.
As the Water Groups state in their brief, "the underlying Permits are substantively identical" and "are affected by the same legal defects." We agree that the Permits are so substantively similar that we will analyze the agreed upon questions brought before the Court with respect to all the challenged Permits. We have slightly rephrased the questions:
1. Did the MS4 permits issued by MDE for the counties' municipal storm sewer system appropriately incorporate by reference publicly available materials and was the requirement for restoration of 20% of pre-2002 developed impervious surfaces specific, measurable, and enforceable?
2. Was MDE's final decision to issue the permits with a 20% restoration requirement based upon the State's Chesapeake Bay TMDL strategies, and a reporting requirement to establish strategies to address ...