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Maryland Dep't of the Env't v. Riverkeeper

Court of Appeals of Maryland

March 11, 2016


         Argued November 5, 2015.

         As Corrected May 3, 2016.

         No. 42

          Circuit Court for Montgomery County. Case No.: 339466. Certiorari to the Court of Special Appeals (Circuit Court for Montgomery County). Ronald B. Rubin JUDGE.

         No. 43

         Circuit Court for Anne Arundel County. Case No.: 02-C-14-186144. Appeals from the Circuit Courts for Baltimore County, Anne Arundel County and Prince George's County. H. Patrick Stringer, Jr., Laura S. Kiessling, Beverly J. Woodard JUDGES.

         No. 44

         Circuit Court for Baltimore City. Case No.: 24-C-14-000364. Appeal from the Circuit Court for Baltimore City. Kendra Y. Ausby JUDGE.


         No. 42

         ARGUED BY Paul N. De Santis, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief FOR PETITIONERS

         ARGUED BY Jennifer C. Chavez (Khushi K. Desai, Earthjustice of Washington, DC) on brief FOR RESPONDENTS

         No. 43

         ARGUED BY Jennifer C. Chavez (Khushi K. Desai, Earthjustice, Washington, DC) on brief FOR APPELLANTS

         ARGUED BY Paul W. Smail (Jon Mueller, Chesapeake Bay Foundation, Inc. of Annapolis, MD) on brief FOR APPELLANTS

         ARGUED BY Paul N. De Santis, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD; Nancy McCutchan Duden, County Attorney, Kelly Phillips Kenney, Assistant County Attorney, Anne Arundel County Office of Law of Annapolis, MD; M. Andree Green, County Attorney, Josue Pierre, Associate County Attorney, Prince George's County Office of Law of Upper Marlboro, MD) on brief FOR APPELLEE

         No. 44

         ARGUED BY Jennifer C. Chavez (Khushi K. Desai, Earthjustice, Washington, DC Paul W. Smail, Jon Mueller, Chesapeake Bay Foundation, Inc. of Annapolis, MD) on brief FOR APPELLANTS

         ARGUED BY M. Rosewin Sweeney (Thomas M. Lingan, Diana M. Krevor, Venable, LLP of Baltimore MD; George A. Nilson, City Solicitor, Baltimore City Law Department of Baltimore, MD) on brief FOR APPELLEES

         ARGUED BY Paul N. De Santis, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD; Nancy McCutchan Duden, County Attorney, Kelly Phillips Kenney, Assistant County Attorney, Anne Arundel County Office of Law of Annapolis, MD; M. Andree Green, County Attorney, Josue Pierre, Associate County Attorney, Prinre George's County Office of Law of Upper Marlboro, MD) on brief FOR APPELLEES

         ARGUED BEFORE: Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ.


          [447 Md. 95] Adkins, J.


         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.[1]

         [447 Md. 96]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" ),[2] 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" ) An NPDES permit, however, does not give a discharger carte blanche. " Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent limitation as " any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance" ). The type of discharge determines the type of limitations the permit must impose on the discharger.

         The Permits before us control stormwater pollutant discharge.[3] [447 Md. 97] 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[4] 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 [447 Md. 98] 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).[5]

          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." ).[6] Pursuant to 33 U.S.C. § 1342(p)(3)(B)(iii), [447 Md. 99] 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 . . . ." [7]

          Best management practices (" BMPs" ) have been a long-standing control or effluent limitation[8] 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, 235 Or.App. 132, 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.[9]

          [447 Md. 100] 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.[10] 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 .

          [447 Md. 101] 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 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 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[11] per 100 milliliters as the criteria. Id. at § 2.3, at 11 (citing COMAR and [447 Md. 102] 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.).[12] 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." ).[13]

          [447 Md. 103] 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).[14] 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.[15]

          [447 Md. 104] 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.[16]

         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.[17] By far, though, the [447 Md. 105] most critical TMDL in this case is the Chesapeake Bay TMDL (" Bay TMDL" ).

         Regarded as a national treasure,[18] 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 [447 Md. 106] 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.[19] 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 [447 Md. 107] Bay and applies to the District of Columbia and the six " Bay" states, including Maryland. EPA, Chesapeake Bay TMDL at ES-1.[20]


         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.[21] " 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 (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.[22] " The [447 Md. 108] 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 .[23] 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 [447 Md. 109] (" the Guidance" ).[24] 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.[25] In the Guidance, MDE sets forth acceptable models that the Counties can use, including, Maryland's Assessment and Scenario Tool (" MAST" ).[26] 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 [447 Md. 110] ensured the States were accountable in achieving pollution reductions. Id. Notably, the EPA expressed no concerns about Maryland's Final WIP,[27] 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" ].[28]

         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. [29]

         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 [447 Md. 111] 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).[30] 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 [447 Md. 112] reference the 2000 Maryland Stormwater Design Manual (" the Manual" ). Id. at 1167, 1169.[31] 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).

         The Permits

         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) [447 Md. 113] (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.).[32]

         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 [447 Md. 114] 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." ); [33] 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 [447 Md. 115] does not constitute a justification for noncompliance with the terms of this permit." [34] 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]." ).[35] 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 [447 Md. 116] 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.[36] The Water Groups[37] 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 [447 Md. 117] 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 wasteload allocations, supported by substantial evidence?
3. Do the provisions of the MS4 permits that require that the public have an opportunity to review and comment on restoration plans intended to meet the wasteload allocations established for the permittees under applicable total maximum daily loads satisfy public participation requirements?
4. Do the provisions of the MS4 permits satisfy federal monitoring requirements?

         We uphold MDE's decision to issue the Permits on all grounds. Thus, we reverse the judgment of the Court of Special Appeals, which did not uphold the Montgomery County Permit, and we affirm the judgments of the circuit courts, which upheld the Permits in Anne Arundel County, Baltimore City, Baltimore County, and Prince George's County.

         [447 Md. 118] STANDARD OF REVIEW

         Before 2009, challenges to the issuance or denial of a discharge permit were subject to a contested case hearing. Md. Code (1984, 2014 Repl. Vol.), § 10-222 of the State Government Article (" SG" ), which is part of Maryland's Administrative Procedure Act, delineates the grounds upon which a court can reverse an agency decision in a contested case. Specifically, SG § 10-222 provides that a court can reverse an agency decision in a contested case that " is unsupported by competent, material, and substantial evidence in light of the entire record as submitted" or that " is arbitrary or capricious."

         In 2009, the General Assembly changed the procedures for challenging a discharge permit. EN § 1-601 now permits direct judicial review of agency permitting decisions without a contested case hearing. Although this statute does not set forth a standard of review, the substantial evidence and arbitrary and capricious standards apply where an " organic statute" authorizes judicial review without a contested case hearing and does not set forth a standard of review. See Supervisor of Assessments of Carroll Cnty. v. Peter & John Radio Fellowship, Inc., 274 Md. 353, 355, 335 A.2d 93, 94 (1975) (" Our cases have held that where no scope of review is thus provided, decisions of an administrative body will not be disturbed on appeal unless they are not supported by substantial evidence or are arbitrary, capricious or unreasonable." ) (citations omitted); Med. Waste Assocs., Inc. v. Md. Waste Coal., Inc., 327 Md. 596, 621, 612 A.2d 241, 253 (1992) ( " In an action for judicial review of an administrative decision granting a permit, however, the court determines not only whether the agency's decision to issue the permit was in accordance with law, but also whether the particular administrative decision was arbitrary, capricious or unsupported by substantial evidence in light of the record as a whole." ). Thus, even though all challenges going to the merits of the Permits in these consolidated cases originated in the Circuit Courts,[38] we [447 Md. 119] will review MDE's decision to issue the Permits under the substantial evidence and arbitrary and capricious standards of review.

         Applying the substantial evidence standard of review to a case where no contested case hearing took place may seem anomalous because there is no formal record that was presented before an administrative law judge. EN § 1-606, however, expressly details the documents that can be included in a record. EN § 1-606(c)(1)-(9).[39] For example, EN § 1-606 stipulates that any draft permit, comments submitted to MDE [447 Md. 120] during the public comment period, transcripts of public hearings on the permit application, and responses to submitted comments constitute part of the administrative record. Thus, we are essentially reviewing the same record that we would have examined, excluding the administrative law judge's decision, had the merits of this case been subject to a contested case proceeding. Accordingly, our review of the issuance of the Permits fits within the substantial evidence standard of review contemplated by SG § 10-222.

          In a review for substantial evidence, we ask " whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Najafi v. Motor Vehicle Admin., 418 Md. 164, 173, 12 A.3d 1255, 1261 (2011). We should accord deference " 'to the agency's fact-finding and drawing of inferences'" when the record supports them. Id. (citation omitted); see Mayor & Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399, 396 A.2d 1080, 1089 (1979) (" The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness." ) (citation and internal quotation marks omitted). Moreover, we shall review the agency's decision " 'in the light most favorable to it.'" Najafi, 418 Md. at 173, 12 A.3d at 1261. Finally, we must accord an agency great deference regarding factual questions involving scientific matters in its area of technical expertise. Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999) (" [T]he expertise of the agency in its own field should be respected." ).

         We have characterized the arbitrary and capricious standard of review as one that is " extremely deferential." Harvey v. Marshall, 389 Md. 243, 299, 884 A.2d 1171, 1205 (2005). In reviewing the issuance of an NPDES permit, the U.S. Court of Appeals for the Second Circuit quoted language derived from Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), 103 S.Ct. 2856, 77 L.Ed.2d 443--the [447 Md. 121] United States Supreme Court's leading case on the arbitrary and capricious standard:

To determine whether the agency's actions were " arbitrary and capricious," we consider whether the agency 'relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'

Natural Res. Def. Council, 808 F.3d at 569 (citations and quotation marks omitted). The court also elaborated that " [w]e must be 'satisfied from the record that the agency . . . examine[d] the relevant data and articulate[d] a satisfactory explanation for its action'" and that it " afford[ed] the agency's decision greater deference regarding factual questions involving scientific matters in its area of technical expertise." Id. (quoting State Farm, 463 U.S. at 43) (citations and internal quotation marks omitted). The Second Circuit's articulation of the arbitrary and capricious standard is in accord with Maryland's treatment of this standard as one that is highly deferential. See Harvey, 389 Md. at 299, 884 A.2d at 1205. We are therefore mindful of the Second Circuit's explanation of the principles underlying the arbitrary and capricious standard when applying that standard to this case.[40]

          [447 Md. 122] In addition, we will review an agency decision for an error of law. When our review concerns a legal question, we apply less deference to the agency's conclusions. HNS Dev., LLC v. People's Counsel for Balt. Cnty., 425 Md. 436, 449, 42 A.3d 12, 20 (2012). We refuse to uphold an agency decision " premised solely upon an erroneous conclusion of law." Id. (citation omitted) (internal quotation marks omitted). Otherwise, we ordinarily should give " considerable weight" to an agency's " interpretation and application of the statute which [it] administers." W.R. Grace & Co. v. Swedo, 439 Md. 441, 453, 96 A.3d 210, 217 (2014); John A. v. Bd. of Educ. for Howard Cnty., 400 Md. 363, 381-82, 929 A.2d 136, 147 (2007) (" In reviewing an agency's legal conclusions, it is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency." ).


         Part I: The 20% Restoration Requirement

         The Permits require, by the end of the five-year term, that the Counties restore 20% of the impervious surface areas in their watersheds that have not been restored to the MEP. This requirement " uses percent impervious cover in a watershed as a surrogate TMDL target." ENSR, Pilot TMDL Applications Using the Impervious Cover Method § 1.0, at 1-1 (2005). Like so much of this case, we must unpack the science before we analyze the parties' arguments.

         As we develop on land, science has shown us that we profoundly impact our waters. Consider, for example, when " [t]rees, meadow grasses, and agricultural crops that had intercepted and absorbed rainfall are removed . . . ." CWP & MDE, Manual, § 1.1, at 1.3. Problematically, " [c]leared and graded sites erode, are often severely compacted, and can no longer prevent rainfall from being rapidly converted into stormwater runoff." Id. These kinds of sites are known as impervious surfaces, surfaces " that do[] not allow stormwater to infiltrate into the ground," such as " rooftops, driveways, [447 Md. 123] sidewalks, or pavement." EN § 4-201.1(d). " Impervious surfaces accumulate pollutants deposited from the atmosphere," pollutants which are " rapidly delivered to downstream waters" during storms. CWP & MDE, Manual, § 1.1.1, at 1.5. The purpose of the 20% restoration requirement, then, is to use stormwater management practices to restore the natural, beneficial processes in our environment that we have changed by developing impervious surfaces.

         In other words, the 20% restoration requirement is a surrogate because the requirement does not control pollution reduction directly. See ENSR, Pilot TMDL Applications Using the Impervious Cover Method § 1.0, at 1-1. Rather, it is through restoring impervious surfaces with management practices that the Counties will reduce pollution. See, e.g., CWP & MDE, Manual, § 1.2, at 1.13 (" [Management practices] shall be designed to remove 80% of the average annual post development total suspended solids load (TSS) and 40% of the average annual post development total phosphorus load (TP)." ).

         A. Maximum Extent Practicable

         The Water Groups argue that the 20% restoration requirement is too opaque to comply with 33 U.S.C. § 1342(p)(3)(B)(iii), the MEP standard. They so argue because, they contend, MDE " failed to provide a specific performance standard for restoration activities" or a " numeric limitation . . . for what pollution reductions must be accomplished by the permittees' twenty-percent restoration efforts." They also argue that MDE failed to explain what impervious surface is " not restored to the MEP."

         We disagree because (1) the applicable law does not impose a specific performance standard on MS4s and (2) MDE did actually select a performance standard for the Counties to adhere to. 33 U.S.C. § 1342(p)(3)(B)(iii) states:

Permits for discharges from municipal storm sewers 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 [447 Md. 124] the State determines appropriate for the control of such pollutants.

         From the text, we discern that Congress established a broad requirement for MS4s. The list of required controls is not exclusive. See 55 Fed.Reg. at 48,038 (" [MS4] controls may be different in different permits." ). And the purpose of the controls--reducing the discharge of pollutants--exists alongside the flexible, undefined standard " to the maximum extent practicable." See City of Abilene v. EPA, 325 F.3d 657, 659-60 (5th Cir. 2003); Natural Res. Def. Council, Inc. v. N.Y. State Dep't of Envtl. Conservation, 25 N.Y.3d 373, 406, 13 N.Y.S.3d 272, 34 N.E.3d 782 (N.Y. 2015) (Rivera, J., dissenting in part) ( " The CWA does not define the maximum extent practicable standard. However, it appears to provide broad authority to agencies to control stormwater pollution." ); 55 Fed.Reg. at 48,038 ( " In enacting section 405 of the WQA [Water Quality Act], Congress recognized that permit requirements for [MS4s] should be developed in a flexible manner to allow site-specific permit conditions to reflect the wide range of impacts that can be associated with these discharges." ).

          33 U.S.C. § 1342(p)(3)(B)(iii) imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants. See Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1308 (9th Cir. 1992) (" Congress did not mandate [in § 1342(p)(3)(B)(iii)] a minimum standards approach or specify that EPA develop minimal performance requirements. . . . . Congress could have written a statute requiring stricter standards, and it did not." ). Thus, we reject the Water Groups' argument that MDE committed legal error by " fail[ing] to provide a specific performance standard for restoration activities." [41]

          [447 Md. 125] Moreover, MDE tethered restoration to the practices in the Manual, which MDE incorporates into the Permits by reference. See Part III.E (" These management programs are designed to control stormwater discharges to the maximum extent practicable . . . ." ); Part III.E.1 (" At a minimum, the County shall . . . [i]mplement the stormwater management . . . practices found in the [Manual] . . . ." ). The Manual explains that the list of acceptable stormwater management practices is tied to the WQv. " The Water Quality Volume (denoted as the WQv) is the storage needed to capture and treat the runoff from 90% of the average annual rainfall." CWP & MDE, Manual, § 2.1, at 2.2.[42] The Manual further explains that the " WQv is directly related to the amount of impervious cover created at a site." Id. In other words, MDE chose a standard that relates to the very problem the 20% restoration requirement serves to abate: the increase in stormwater runoff and the discharge of pollutants because of the increase in impervious surfaces. See CWP & MDE, Manual, § 1.1., at 1.4 (" As can be seen, the volume of stormwater runoff increases sharply with impervious cover." ). Thus, the record reflects that MDE has established a performance standard, WQv, that defines as acceptable those practices the Counties may choose from to fulfill the 20% restoration requirement. See id. § 2.7 (Acceptable Urban BMP Options).

          [447 Md. 126] Moreover, our discussion of restoration is instructive as to why, despite the Water Groups' contention, the " impervious surface area that is not restored to the MEP " is sufficiently clear and measurable. (Emphasis added.) The area that is not restored to the MEP is the area without the restoration controls described in the Manual. Moreover, the Manual explains that impervious area refers to an area " that does not have vegetative or permeable cover." CWP & MDE, Manual, § 2.1, at 2.4. Put together, the " impervious surface area that is not restored to the MEP" refers to a defined type of area (impervious surface) lacking a type of stormwater management control (the BMPs in the Manual). By way of example, previous MS4 reports delineate these criteria so that MDE can evaluate whether Montgomery County (in this example) installed the required controls. See Montgomery County Department of Environmental Protection, Annual Report for 2006 NPDES MS4 Permit F2, at III-64; see also 33 U.S.C. § 1342(p)(3)(B)(iii) (MS4 permits " shall require controls" such as management practices.).

         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. See 33 U.S.C. § 1342(p)(3)(B)(iii).

         B. Substantial Evidence and Arbitrary and Capricious

         The Water Groups also argue that MDE has not explained why it selected 20% as the restoration goal or how this Permit provision will promote necessary pollution reduction. The Water Groups contend that MDE ineffectively justifies its choice based on the Bay TMDL because the Permits do not assure that the Counties will achieve the Bay TMDL's objectives or reductions. Even accepting a connection between the 20% restoration requirement and the Bay TMDL, the Water ...

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