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Maryland Department of Environment v. County Commissioners of Carroll County

Court of Appeals of Maryland

August 6, 2019

Maryland Department of the Environment

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          Circuit Court for Carroll County, Case No. 06-C-15-068141, Thomas F. Stansfield, Judge

         Circuit Court for Frederick County, Case No. 10-C-15-000293, William R. Nicklas, Judge

         Argued by Adam D. Snyder, Assistant Attorney General (Kunle Adeyemo, Assistant Attorney General, Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief, for Appellant/Cross-Appellee.

         Brittany E. Wright, Esquire, Paul W. Smail, Esquire, for Amicus Curiae Brief for the Chesapeake Bay Founday, Inc. in Support of Appellant/Cross-Appellee.

         Argued by M. Rosewin Sweeney (Thomas M. Lingan and Diana M. Krevor, Venable LLP of Baltimore; Timothy C. Burke, County Attorney, Carroll County Government of Westminster, MD) on brief, for Appellee/Cross-Appellant.

         Argued by Christopher D. Pomeroy ( Lisa M. Ochsenhirt, AquaLaw PLC of Richmond, VA; John S. Mathias, County Attorney and Kathy L. Mitchell, Assistant County Attorney, Frederick County Government of Frederick, MD) on brief, for Appellant.

         Argued by Adam D. Snyder, Assistant Attorney General (Kunle Adeyemo, Assistant Attorney General, Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief, for Appellee.

         Brittany E. Wright, Esquire, Paul W. Smail, Esquire, 6 Herndon Avenue, Annapolis, MD 21403, for Amicus Curiae Brief for the Chesapeake Bay Founday, Inc. in Support of Appellee.

         Argued before: Barbera, C.J.,[*] Greene,[*] Adkins, McDonald, Watts, Hotten, Getty, JJ.


         McDonald, J.

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          [465 Md. 182] In the quest to conserve a vital resource - the nation’s waters - Congress has enlisted the federal, state, and local governments under the Clean Water Act ("the Act")[1] in a regulatory approach sometimes called "cooperative federalism." This effort involves a type of regulation that takes the form of a "permit" issued by a federal agency (or a state agency with federal oversight) at specified intervals to the regulated entity. Such permits authorize discharges of pollution into waterways, which the Act otherwise prohibits. When the targeted pollution is in stormwater, the permittee - i.e., the regulated entity - is often a local government. Inevitably, as in any assignment of responsibility for solving a serious problem, there is disagreement as to the solution and the allocation of that responsibility. One way to resolve such disputes is through judicial review of the permit.

          This consolidated appeal concerns judicial review of the most recent permits issued to Carroll County and Frederick County ("the Counties") under the Act and a parallel Maryland regulatory scheme. The permits regulate the discharge of polluted stormwater into waterways in the Chesapeake Bay watershed. The permits were developed and issued by the Maryland Department of the Environment ("Department") under the supervision of the United States Environmental Protection Agency ("EPA"), as part of an EPA-led, multi-state effort to restore the Chesapeake Bay in compliance with the Act.

          Both Counties raise serious issues concerning the scope of the permits, the level of effort required of each County, the classification of the Counties (which affects certain conditions in the permits), and the absence or inclusion of certain terms in the permits. Ultimately, we hold that the Department did not exceed its authority under State and federal law when it [465 Md. 183] issued the permits, nor did it act arbitrarily or capriciously in including the challenged terms in the permits.



          A. The Clean Water Act and Stormwater Controls for the Chesapeake Bay

         The Chesapeake Bay lies between the western and eastern shores of Maryland

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and Virginia. As a recent federal court opinion has noted, its name derives from the Algonquin word for "great shellfish bay." Norfolk Southern Railway Co. v. City of Roanoke, 916 F.3d 315, 323 (4th Cir. 2019) (Wilkinson, J., concurring). While the Bay once hosted a quantity of fish and shellfish described as "unbelievable, ... indescribable, and ... incomprehensible," that is no longer the case and "[i]nstead of fish, we quantify phosphorus, nitrogen, sediment, and other pollutants" that threaten the health of the Bay’s marine life. Id.

         The watershed of the Chesapeake Bay - the land from which water drains into it - covers about 64,000 square miles in six states and the District of Columbia ("the Bay States"), and extends from Cooperstown, New York, to Norfolk, Virginia. Pollution from that region contaminates the waters that feed the Bay and ultimately the Bay itself. "Restoring damaged waters like the Chesapeake Bay requires sustained effort, entailing cooperation and coordination among the federal government, state and local governments, the enterprise of the private sector, and all the people who make this region their home." Norfolk Southern, 916 F.3d at 323 (internal quotation marks and citation omitted).

          Federal, state, and local governments have spent decades devising programs to reduce the pollution that enters the Bay. This appeal concerns one such program. In any effort to describe a complex regulatory regime, overseen by various government agencies, one inevitably must become familiar with the concepts, jargon, and acronyms that define that [465 Md. 184] effort. We begin with an overview of the key elements pertinent to this appeal.

          Where Pollutants Come From - Point and Nonpoint Sources

          An important distinction for purposes of the Clean Water Act is the difference between "point sources" and "nonpoint sources" of water pollution. Point sources are discrete and localized, like a pipe carrying discharges from a factory or wastewater treatment plant.[2] Nonpoint source pollution, by contrast, comes from dispersed areas like farms or fields where water runs off the land without being collected or channeled into a point source.[3] This distinction matters for purposes of the Act because the federal statute regulates point sources of water pollution but does not directly regulate nonpoint sources.

         Discharge Permits

         The Act generally prohibits "any person"[4] from discharging pollutants from a point source into a waterway.[5] 33 U.S.C. § 1311(a). Accordingly, the statute requires a permit for the discharge of pollutants

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into a water body from a point source [465 Md. 185] under specified conditions. The Act establishes the National Pollution Discharge Elimination System ("NPDES") to govern such permits. 33 U.S.C. § 1342. The EPA is authorized to issue and enforce these permits. 33 U.S.C. § § 1319, 1342(a)(1). The EPA may also delegate that authority to a state so long as the state’s law establishes a parallel permitting program consistent with the Act. 33 U.S.C. § 1342(b). The EPA has delegated such authority to most states, including Maryland.[6]

         Each discharge permit in Maryland is issued under the Act and under a parallel State program. See Maryland Code, Environment Article ("EN"), § 9-322 et seq. ; COMAR Under Maryland law, the Department is the agency designated to issue and enforce these permits. EN § 9-253; COMAR Permits are generally issued for fixed terms of five years or less, subject to renewal. See 33 U.S.C. § 1342(b)(1)(B); EN § 9-328(b). As a general rule, the Act prohibits subsequent permits from containing "less stringent" conditions than the conditions in the previous permit - sometimes referred to as the "anti-backsliding prohibition" in the Act. 33 U.S.C. § 1342(o).

         The Act does not require permits for nonpoint sources or otherwise directly regulate them. Accordingly, the EPA does not regulate those sources of water pollution. States may do so through their own regulatory programs, as Maryland has done.[7] The Act authorizes federal grants to assist the states in such efforts. 33 U.S.C. § 1288.

         [465 Md. 186] Pollution Controls in Permits - Water Quality Standards and Effluent Limitations

         Under the Act, "water quality standards" are the benchmark for clean water. For each water body covered by the Act, states submit water quality standards to the EPA for review and approval.[8] The standards are to be based on the water body’s "designated use" (e.g., public water supply, fishing, recreational use) and include criteria necessary to support that use (e.g., specific limits on certain pollutant concentrations). See 33 U.S.C. § 1313(c)(2)(A); 40 CFR § § 130.3, 131.6; COMAR

         To achieve water quality standards, the Act requires that discharge permits include pollution controls for point sources. 33 U.S.C. § 1311(b). The Act calls these controls "effluent limitations" - "effluent" being the material discharged by a point source.[9] Effluent limitations may be "technology

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based" or "water quality based." See EPA, NPDES Permit Limits,; Natural Resources Defense Council v. EPA, 808 F.3d 556, 563 (2d Cir. 2015).

         Technology based effluent limitations are generally the first round of controls in the effort to achieve water quality standards. See 33 U.S.C. § 1311(b)(1)(A). They "represent the minimum level of control that must be imposed in a permit[.]" 40 CFR § 125.3(a). But even the most stringent technology based effluent limitations have not achieved water quality standards in thousands of the nation’s waterways.[10] Congress anticipated this possibility in 1972 by retaining water quality [465 Md. 187] standards "as a supplementary basis for effluent limitations ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205 n.12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). If technology based limitations do not achieve the water quality standards, permits may include "any more stringent limitation ... necessary to meet water quality standards" - i.e., "water quality based effluent limitations." 33 U.S.C. § 1311(b)(1)(C); 40 CFR § 130.7(c).[11] Thus, regardless of whether a waterway is over-polluted due to point sources, nonpoint sources, or some mixture of both, the Act authorizes the imposition of water quality based controls on point sources, in addition to the most stringent technology based controls.[12]

          These two types of effluent limitations differ in their reference point and in their strategies for reducing pollution.[13] For technology based limitations, the reference point is the source, and the strategy is to deploy pollutant-reducing technology at that source regardless of its contribution of pollutants to the waterway. By contrast, for water quality based effluent limitations, the reference point is the waterway, and [465 Md. 188] the strategy is for the point source to implement any additional actions (beyond the already required technologies) necessary to achieve the applicable water quality standard.[14]

          The Point Sources Here - Municipal Separate Storm Sewer Systems (MS4s)

         This appeal concerns permits for a type of point source known as a "municipal

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separate storm sewer system" ("MS4").[15] An MS4 is a network of conveyances (including storm drains, gutters, and other drainage systems) designed to carry only stormwater (as opposed to a "combined sewer system" that conveys both sanitary sewage and stormwater). 40 CFR § 122.26(b)(8).

          MS4s differ from typical "end-of-pipe" point sources in certain respects. A common point source, such as a pipe that discharges waste from a factory, usually discharges a known and finite set of pollutants from a specific location. By contrast, stormwater picks up various pollutants as it flows across widely dispersed areas, including paved (or "impervious") surfaces, on its way to one of the many conveyances that make up an MS4, and then into a waterway. The quantity of stormwater that flows through these conveyances into a waterway can vary unpredictably depending on the weather, any [465 Md. 189] development of the land (e.g., whether the land is paved), and other activities on the land (e.g., litter, use of lawn fertilizers).

         Given these differences between an MS4 and a typical point source like a factory, a discharge permit for an MS4 differs from that for a typical point source. A discharge permit for a typical end-of-pipe point source usually sets numeric limits as effluent limitations for the known set of pollutants discharged from that pipe.[16] Using that same approach for an MS4 would entail setting effluent limitations for each conveyance within the stormwater drainage system, which would be administratively, technically, and financially burdensome.[17] Instead, an MS4 permit generally requires the permittee to implement flexible management programs designed to reduce the pollution introduced into stormwater, thereby limiting the amount of pollution discharged into the waterway.[18] In the language of the Act, an MS4 permit is to include "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 [EPA] or the State determines appropriate

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for the control of such pollutants." 33 U.S.C. § 1342(p)(3)(B)(iii).

         [465 Md. 190] Implementation of the MS4 Permit Requirement - Phase I and Phase II

         The Act and related EPA regulations have applied the permit requirement to MS4s in two phases. The first phase ("Phase I") took effect during the period 1987-94 and included stormwater systems that were serving more heavily populated areas - dubbed "large" and "medium" MS4s - and those that were contributing to the failure of a water body to meet water quality standards, irrespective of the size of the population served. See 33 U.S.C. § 1342(p)(2); 40 CFR § 122.26(b). Subsequently, a second phase ("Phase II") covered "small" MS4s. See 33 U.S.C. § 1342(p)(5)-(6); 40 CFR § 122.34. As a general rule, permits for MS4s included in Phase I have been subject to an earlier timetable and more stringent conditions than permits for MS4s included in Phase II.

         Total Maximum Daily Load (TMDL)

         An important element in determining the conditions that appear in a discharge permit is what is known as the "total maximum daily load" - or "TMDL." The Clean Water Act does not define this phrase, but describes it as the "level" of a pollutant that a water body can tolerate without violating applicable water quality standards. 33 U.S.C. § 1313(d)(1)(C). In practice, the acronym "TMDL" has come to refer to more than just a numeric measure of a pollutant. It has also come to refer to the process and calculations used to determine that level of a pollutant and its allocation among sources of the pollutant. The document in which an agency calculates the TMDL, in the sense of a numeric measure of a pollutant, and allocates that level among various sources of pollution is also sometimes referred to as a "TMDL." A singularly complex example pertinent to this case is what is referred to as the Chesapeake Bay TMDL ("Bay TMDL"),[19] which is discussed in greater detail below.

         [465 Md. 191] The EPA has elaborated on the meaning of TMDL as a numeric measure of pollution in its regulations. The term "load" refers to a measure of water pollution. See 40 CFR § 130.2(e) (defining "load" as "[a]n amount of matter or thermal energy that is introduced into a receiving water"). The phrase "total maximum daily load" or "TMDL" is defined in regulation as "the sum of" amounts of the relevant pollutant emanating from various point and nonpoint sources together with a "natural background" amount of the pollutant and a "margin of safety." 40 CFR § § 130.2(i), 130.7(c)(1). A TMDL, in this sense, "can be expressed in terms of either mass per time, toxicity, or other appropriate measure...." 40 CFR § 130.2(i). To understand this definition of TMDL as a numeric measure requires an understanding of the TMDL process.

         The TMDL process is based on the direction in the Act that each state identify waterways for which technology based effluent limitations are not achieving water quality standards.[20] 33 U.S.C. § 1313(d)(1)(A). If water quality standards are not being met in a waterway due to excess levels of a particular pollutant, the state is to determine the maximum amount of that pollutant that the waterway can receive without violating water quality

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standards - i.e ., the TMDL for that pollutant as to that waterway. 33 U.S.C. § 1313(d)(1)(C). The resulting TMDL - as a cap on the pollutant - is sometimes referred to as a "pollution budget" or "pollution diet." E.g., Norfolk Southern, 916 F.3d at 324; Conservation Law Foundation v. EPA, 964 F.Supp.2d 175, 179 (D. Mass. 2013).

         The EPA’s regulations recognize that, in order for a state to calculate the maximum level of a pollutant that a waterway can tolerate without violating water quality standards, a state agency must conduct a complex scientific analysis. The state agency must consider, among other things, the relationship between the water quality standards and the level of the pollutant in the waterway, the various sources of the pollutant, [465 Md. 192] and the extent to which each source contributes to the violation of water quality standards. See 40 CFR § 130.7(c). As indicated earlier, in developing the TMDL for that pollutant, the agency must also factor in "seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." 33 U.S.C. § 1313(d)(1)(C).

         Once the agency produces its best estimate of the maximum pollutant level consistent with water quality standards - i.e., the TMDL in the sense of a numeric measure of pollution - it must then apportion that amount to the relevant sources of that pollution while allowing for the margin of safety required by the Act. See 40 CFR § § 130.2(i), 130.7(c). The portion assigned to each relevant point source is called a "wasteload allocation." 40 CFR § 130.2(h). The portion assigned to each nonpoint source is called a "load allocation." 40 CFR § 130.2(g). In all, therefore, the TMDL - in the sense of a numeric amount - for a given pollutant for a particular waterway is the sum of the wasteload allocations, the load allocations, the natural background, and the margin of safety. 40 CFR § § 130.2(i), 130.7(c)(1). After a state has determined a TMDL for a particular pollutant with respect to a particular waterway, it is to be submitted to the EPA for approval. 33 U.S.C. § 1313(d)(2).

         When a state submits a TMDL to the EPA, the state provides not only the maximum pollutant amount, but also the various wasteload allocations and load allocations, together with an explanation of the calculations that resulted in that maximum amount and the allocations. EPA, Water Quality Planning and Management, 50 Fed.Reg. 1774, 1775 (January 11, 1985) ("it is impossible to evaluate whether a TMDL is technically sound and whether it will be able to achieve [water quality] standards without evaluating component [wasteload and load allocations] and how these loads were calculated"). As indicated earlier, an example of a document that contains the separate TMDLs (in the sense of numeric amounts) for relevant pollutants, explains the reasoning and calculations underlying [465 Md. 193] those caps, and allocates those totals among the relevant sources of pollution is the Bay TMDL.

         A TMDL such as the Bay TMDL is neither self-implementing nor directly enforceable. Rather, it serves as an informational tool that the EPA and the states use in seeking to achieve the specified pollutant levels - and the applicable water quality standards - by means of discharge permits and other regulatory tools. See American Farm Bureau Federation v. EPA, 984 F.Supp.2d 289, 297-98 (M.D. Pa. 2013), aff’d, 792 F.3d 281 (3d Cir. 2015). To enforce the TMDL limits and corresponding water quality standards, agencies that issue discharge permits seek to ensure that the total pollution discharged by point sources does not exceed the wasteload allocations in the relevant TMDLs. The combined pollution allotted

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to all of the point sources should equal the sum of the wasteload allocations in a TMDL. Therefore, the discharge permit for each point source is to contain water quality based effluent limitations consistent with the "assumptions and requirements" of the wasteload allocation for that source in any applicable TMDL. 40 CFR § 122.44(d)(1)(vii)(B).

         A discharge permit may incorporate provisions related to several TMDLs. The permits at issue in this case incorporate provisions not only from the Bay TMDL, but also from TMDLs, developed by the Department and approved by the EPA, for certain waterways.[21] Appendices to the Counties’ MS4 permits list the approved TMDLs applicable to each County. One example, which will be discussed later in this opinion, is the TMDL for fecal bacteria in Double Pipe Creek, whose watershed spans both Counties.

          Chesapeake Bay TMDL and Maryland Watershed Implementation Plan (WIP)

         In 2009, after decades of multilateral efforts aimed at restoring the Chesapeake Bay,[22] the EPA began the development [465 Md. 194] of a Chesapeake Bay-wide TMDL.[23] After publishing a draft for a period of public review, the EPA adopted the Bay TMDL in late 2010.[24] The Bay TMDL establishes limits for three pollutants - nitrogen, phosphorus, and sediment - that threaten marine life by feeding large algae blooms that block sunlight and reduce oxygen levels in the water.[25] Bay TMDL at 2-6, 2-7. Specifically, the Bay TMDL pollutant caps are designed to satisfy water quality standards involving "aquatic life uses" and criteria such as water clarity and dissolved oxygen levels. Id. at 3-1, 3-2.

         Given the breadth and complexity of the Bay TMDL, the EPA established a unique accountability framework to achieve its goals. Bay TMDL at ES-8. Although the Act generally does not require an implementation plan for a TMDL, the EPA directed each Bay State to create a "Watershed Implementation Plan" ("WIP") to reduce pollution to the levels set by the Bay TMDL. Each Bay State’s WIP serves

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two basic purposes [465 Md. 195] - to break down the EPA’s statewide Bay TMDL pollutant allocations among geographic areas and among point and nonpoint sources within the state, and to identify the programs and policies that the state will use to achieve those pollutant reductions. The Maryland WIP was developed by the Department together with the Departments of Planning, Agriculture, and Natural Resources. Maryland’s Final Phase I Watershed Implementation Plan (Dec. 3, 2010), available at ("Maryland WIP").[26] Like the other Bay State WIPs, the Maryland WIP functions as a "roadmap" for how and when the State will reach the pollution reduction goals set forth in the Bay TMDL. Maryland Department of the Environment v. Anacostia Riverkeeper, 447 Md. 88, 109, 134 A.3d 892 (2016).

          Implementing the Maryland WIP in MS4 Permits

          The Maryland WIP listed several requirements to be included in the then-upcoming round of Phase I MS4 permits in Maryland. Two of these requirements correspond to terms in the Counties’ permits that are part of the dispute in this litigation.

         First, a commitment in the Maryland WIP involves restoration of impervious surfaces - i.e., areas that have been paved or otherwise developed, as opposed to natural, undeveloped areas. Natural areas allow stormwater to soak into the ground, where pollutants are filtered to some extent. Impervious surfaces prevent that filtration process. Instead, stormwater that encounters an impervious surface rushes over it, collecting pollutants along the way. To "restore" an impervious surface is to make it function more like a natural terrain that absorbs and filters rain water. Doing so accomplishes the [465 Md. 196] same end as a direct pollutant control, like a filter or other cleansing mechanism attached to a conveyance. The less impervious surface that exists, the less polluted stormwater will run across it and into the conveyances of the MS4. Thus, as is true in general for stormwater management programs in MS4 permits, an impervious surface restoration requirement serves as a surrogate for direct pollution controls. See Anacostia Riverkeeper, 447 Md. at 122-23, 134 A.3d 892. The Maryland WIP called for "[c]ompletion of restoration efforts for twenty percent of the [Phase I MS4] counties’ impervious surface area that is not already restored to the maximum extent practicable." Maryland WIP at 5-30.

          Second, another provision of the Maryland WIP refers to many applicable local TMDLs with stormwater wasteload allocations. For example, for the Counties, the relevant local TMDLs are compiled, as mentioned above, in appendices to their MS4 permits. The Maryland WIP requires the creation of "[s]tormwater watershed implementation plans for each EPA approved stormwater wasteload allocation" in the relevant local TMDLs. Maryland WIP at 5-30. Such local watershed implementation plans are distinct from the overall Maryland WIP.

          Maryland Stormwater Management Act

         In addition to the permitting program, the State Stormwater Management Act

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has, since the mid-1980s, required local jurisdictions to implement stormwater management programs "to reduce as nearly as possible the adverse effects of stormwater runoff." EN § 4-201. Each county and municipality is to adopt ordinances necessary to implement such a program consistent with State law. EN § 4-202. The Legislature directed the Department to adopt regulations governing such programs that would, among other things, indicate that the primary goal is "to maintain after development, as nearly as possible, the predevelopment runoff characteristics." EN § 4-203(b)(1); see also Anacostia Riverkeeper, 447 Md. at 110-13, 134 A.3d 892. The statute authorizes jurisdictions to impose and collect stormwater remediation fees and other charges to [465 Md. 197] carry out such programs. EN § § 4-202.1, 4-204; see also 96 Opinions of the Attorney General 61 (2011). Such fees provide "important revenue needed to offset the costs of building and maintaining municipal gutters and drains, monitoring pollution levels, policing illegal discharges of polluted water, and educating the public on proper environmental practices." Norfolk Southern, 916 F.3d at 325 (referring to similar local stormwater fee in Virginia).

          The Carroll County and Frederick County MS4 Permits

         The Department first issued MS4 permits to Carroll County and Frederick County during the 1990s as part of Phase I of the MS4 permitting process, and has renewed those permits several times since then. The permits that are the subject of this case are Carroll County’s fourth and Frederick County’s third round of MS4 permits, which were both issued in December 2014. In accordance with State law, the Department first issued draft permits for public comment. See EN § 1-604(a). In each case, the Department held a public hearing and accepted comments on the draft permit. After considering those comments, the Department made a Final Determination to issue each permit together with a document entitled "Basis for Final Determination" that provided an explanation for its action. EN § 1-604(b).

          Pertinent to this case, the Maryland WIP commitment involving impervious surface restoration is incorporated into Part IV.E.2.a of each permit. This provision has two components. First, it requires each County to submit to the Department an "impervious surface area assessment" consistent with guidelines provided by the Department. That assessment, if approved by the Department, "shall serve as the baseline for the restoration efforts" required by the permit. Second, by the end of the permit term, each County "shall commence and complete the implementation of restoration efforts for twenty percent of the County’s impervious surface area consistent with the methodology described in [a Department guidance document] that has not already been restored to the" maximum extent practicable.

         [465 Md. 198] Part IV.E.2.b of each permit includes a provision based on the commitment in the Maryland WIP concerning local TMDLs. This provision requires each County to submit to the Department for approval a plan to implement each stormwater wasteload allocation in each relevant, EPA-approved local TMDL. Each plan must include a final date for "meeting applicable [wasteload allocations] and a detailed schedule for implementing all [necessary] structural and nonstructural water quality improvement projects, enhanced stormwater management programs, and alternative stormwater control initiatives." Upon approval by the Department, the plans become enforceable conditions of the permits.

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          Two other aspects of the permits are at issue here. The first is Part VI.B of each permit, which requires the Counties to cooperate with other State agencies in the development of elements of the Counties’ comprehensive growth plans that involve stormwater management. The second contested aspect of the permits is the absence of an authorization for "water quality trading."[27] As relevant here, such trading would allow the Counties to earn credit for pollution reduction by paying others (whether point or nonpoint sources) to take pollution-reducing actions. A County might consider water quality trading in situations where paying another party to achieve a pollution reduction costs less than the County’s own efforts to achieve a similar reduction.

          B. Procedural History

         In January 2015, Carroll County sought judicial review of its 2014 MS4 permit in the Circuit Court for Carroll County. At the request of the parties, the matter was stayed for more than a year while the parties pursued settlement and while challenges to similar permits by environmental advocates were being litigated.[28] After the stay expired, the Circuit Court [465 Md. 199] issued an opinion dated June 26, 2017, agreeing with the County on some of its claims and with the Department on others. The court remanded the County’s permit to the Department. The Department appealed that ruling and the County filed a cross-appeal.

          In January 2015, Frederick County sought judicial review of its 2014 permit in the Circuit Court for Frederick County. As in the Carroll County case, the matter was stayed pending settlement discussions and other litigation. After the stay expired, the Circuit Court issued an opinion dated July 14, 2017, that largely rejected the County’s arguments, but remanded the permit to the Department to address what the court believed were ambiguities and inconsistencies in the permit’s wording. Frederick County appealed that ruling.

          The Court of Special Appeals consolidated the two appeals for argument. Prior to argument and decision in the Court of Special Appeals, the Counties asked this Court to grant a writ of certiorari in their respective cases. The Department agreed that the Counties’ petitions should be granted. This Court granted the two petitions and consolidated the cases for argument.



          Both Counties challenge conditions set forth in their most recent MS4 permits, although some of the bases for their challenges differ.

          Two of the alleged flaws in the permits concern the impervious surface restoration requirement. First, Frederick County argues that the Department exceeded its authority under the Clean Water Act by failing to consider "practicability" when it included the impervious surface restoration requirement in its permit. Frederick County bases this argument on a provision of the Act that requires MS4 permits to include controls to reduce pollution discharges "to the maximum extent practicable" - what is sometimes called the MEP standard. Frederick [465 Md. 200] County further argues that, even if the Act allows the Department to set the restoration requirement without regard to the MEP standard, the

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Department arbitrarily and capriciously failed to consider the County’s contention that compliance with the degree of restoration required by the permit is impossible.

          Second, both Counties assert that the Department exceeded its authority under the Act by including in the permit an impervious surface restoration requirement in which the baseline for measuring compliance with the requirement relates to the unrestored impervious surface throughout the entire County, rather than only the area served by the County’s MS4.

          Both Counties argue that the Department has unlawfully treated them as Phase I jurisdictions for purposes of their MS4 permits - thereby subjecting them to more stringent permit terms required of Phase I jurisdictions than those later required of Phase II jurisdictions - because it incorrectly classified them in the early 1990s as "medium" jurisdictions based on population. Carroll County also argues that its inclusion in Phase I of the MS4 permitting program was arbitrary and capricious.

          Both Counties argue that the Department arbitrarily and capriciously failed to include water quality trading as a compliance mechanism in their permits.

          Finally, Carroll County argues that a provision in its permit that requires the County to cooperate with other State agencies in the development of stormwater-related aspects of the County’s comprehensive growth plan unlawfully imposes new obligations on the County.

          We first discuss the standards that govern our consideration of these arguments. We then consider the substantive issues raised by the Counties.

          A. What and How We Review

         The General Assembly has provided for judicial review of permits issued by the Department, such as the MS4 permits issued to the Counties. EN § 1-601(a)(3), (c). Such review is [465 Md. 201] based on an administrative record that includes the various items set forth in EN § 1-606(c).[29] Judicial review begins in the circuit court pursuant to the Maryland Rules. See Maryland Rule 7-201 et seq. (governing judicial review of administrative actions when a statute provides for judicial review).

         In an appeal of the circuit court’s review of an agency action, an appellate court reviews the agency’s action itself rather than the decision of the circuit court. Hollingsworth v. Severstal Sparrows Point, LLC, 448 Md. 648, 654, 141 A.3d 90 (2016). Thus, while the circuit court decisions here set the stage for our review and determined who would be appellant and appellee in our Court, we are not assessing the merits of those court decisions. Rather, we directly review the permits in light of the issues raised by the Counties.

          1. Standards for Review of Discharge Permits

          a. General Standards for Review of Agency Action

         The standards for judicial review of a discharge permit - and their corresponding levels of deference to the agency - vary depending on whether the court is reviewing an agency’s fact findings, discretionary decisions, or legal conclusions. See

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Anacostia Riverkeeper, 447 Md. at 118-21, 134 A.3d 892.

          Review of Fact Findings

          For fact findings, a reviewing court applies the "substantial evidence" standard, under which the court defers to the facts found and inferences drawn by the agency when the record supports those findings and inferences. Anacostia Riverkeeper, 447 Md. at 120, 134 A.3d 892. In particular, with respect to factual issues that involve scientific matters within [465 Md. 202] an agency’s area of technical expertise, the agency is entitled to "great deference." Id.

          Review of Matters Committed to the Agency’s Discretion

          With respect to matters committed to agency discretion, a reviewing court applies the "arbitrary and capricious" standard of review, which is "extremely deferential" to the agency. Harvey v. Marshall, 389 Md. 243, 296-99, 884 A.2d 1171 (2005); Spencer v. Md. State Bd. of Pharmacy, 380 Md. 515, 529, 846 A.2d 341 (2004). This standard is highly contextual, but generally the question is whether the agency exercised its discretion "unreasonably or without a rational basis." Harvey, 389 Md. at 297, 884 A.2d 1171; Arnold Rochvarg, Maryland Administrative Law, § 20.1 at 255 (2011).

          For guidance, a reviewing court may look to case law applying the similar standard in federal administrative law. See Anacostia Riverkeeper, 447 Md. at 120-21, 134 A.3d 892; Office of People’s Counsel v. Public Service Commission, 461 Md. 380, 399, 192 A.3d 744 (2018).[30] Under this standard, a reviewing court is not to substitute its own judgment for that of the agency and should affirm decisions of "less than ideal clarity" so long as the court can reasonably discern the agency’s reasoning. Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).

          Review of the Agency’s Legal Conclusions

          With respect to an agency’s legal conclusions, a reviewing court accords the agency less deference than with [465 Md. 203] respect to fact findings or discretionary decisions. Anacostia Riverkeeper, 447 Md. at 122, 134 A.3d 892. In particular, a court will not uphold an agency action that is based on an erroneous legal conclusion. Id. However, in construing a law that the agency has been charged to administer, the reviewing court is to give careful consideration to the agency’s interpretation.

          In construing a statute, a reviewing court applies the oft-stated approach to statutory construction. That is, the court seeks to ascertain legislative intent - whether that of the General Assembly or of Congress. That endeavor begins with the plain meaning of the text, keeping in mind that the plainest language is controlled by the context in which it appears. Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 514, 525 A.2d 628 (1987). The legislative history of the statute may then be reviewed to understand the purpose of the legislation, resolve ambiguities, and confirm the apparent meaning

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of the text. Past case law construing a provision is, of course, also helpful. Throughout, the court must be mindful that the purpose is not to discern "purely judicial notions of public policy," but rather legislative intent. BAA, PLC v. Acacia Mutual Life Ins. Co., 400 Md. 136, 157, 929 A.2d 1 (2007).

          When a party challenges the agency’s interpretation of the statute the agency administers, the court must assess how much weight to accord that interpretation, keeping in mind that it is "always within [the court’s] prerogative to determine whether an agency’s conclusions of law are correct." Schwartz v. Md. Dep’t of Nat. Res., 385 Md. 534, 554, 870 A.2d 168 (2005). The weight given an agency’s interpretation of a statute it administers depends on several factors. Baltimore Gas & Electric Co. v. Public Service Commission, 305 Md. 145, 161, 501 A.2d 1307 (1986). More weight is appropriate when the interpretation resulted from a process of "reasoned elaboration" by the agency, when the agency has applied that interpretation consistently over time, or when the interpretation [465 Md. 204] is the product of contested adversarial proceedings or formal rule making. Id. at 161-62, 501 A.2d 1307.

          b. Effect of the Clean Water Act’s Scheme of Cooperative Federalism

          In our consideration of the Department’s interpretation and application of the Clean Water Act, we must take into account the extent to which the EPA’s administrative interpretation and federal case law set parameters for the Department’s actions. The shared implementation of a federal policy or program by federal and state agencies is sometimes referred to as "cooperative federalism." See Anacostia Riverkeeper, 447 Md. at 101, 134 A.3d 892. It can affect how a state court reviews that implementation when the state agency’s actions are limited by federal policies. In general, a state agency that is delegated the administration of the discharge permitting program under the Act is "bound to follow EPA’s interpretation of the [Act]." Natural Resources Defense Council v. New York State Dep’t of Envtl. Conservation, 25 N.Y.3d 373, 13 N.Y.S.3d 272, 34 N.E.3d 782, 794 n.16 (2015) (declining to entertain a challenge to an EPA regulation interpreting the Act and state agency’s compliance with that interpretation).[31]

         Under the Act’s cooperative federalism scheme, the EPA has delegated the administration of the Act’s discharge permitting program in Maryland to the Department. Nonetheless, [465 Md. 205] the EPA reviews and has the right to object to the Department’s draft discharge permits. 40 CFR § 123.44 ("EPA review of and objections to State permits"); see also Memorandum of Agreement between EPA and Department (May 18, 1989), available at

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(explaining that the EPA will review all State-prepared permits and may object to them). In addition, the EPA has overseen Maryland’s efforts (as well as those of the other Bay States) to achieve the goals of the Bay TMDL - i.e., efforts to develop and carry out the WIPs. See Farm Bureau, 984 F.Supp.2d at 323-24.

          c. Deference Owed to the EPA’s Construction of the Clean Water Act

          In assessing the weight to be accorded the EPA’s construction of the Act, we look to the deference that would be accorded such interpretations under federal case law. In general, when an agency exercises authority to "make rules carrying the force of law" - i.e., rulemaking, adjudications, or other actions involving similarly extensive administrative procedures - the agency’s interpretation warrants deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Less formal agency action may also merit Chevron deference depending on "the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time." Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002).

         Under Chevron, a federal court first determines "whether Congress has directly spoken to the precise question at issue" in the pertinent statute - in this case, the Clean Water Act. 467 U.S. at 842, 104 S.Ct. 2778. If the Congressional intent is clear, the court "must give effect to [that] unambiguously expressed intent." Id. at 842-43, 104 S.Ct. 2778. But "if the statute is silent or ambiguous with respect to the specific issue," the court must decide "whether the [EPA’s] answer is [465 Md. 206] based on a permissible [or reasonable] construction of the statute." Id. at 843-44, 104 S.Ct. 2778.

         Even if the particular agency interpretation does not meet the criteria for Chevron deference, a reviewing court may defer to that interpretation based on the persuasiveness of the agency interpretation, considering factors such as "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (Jackson, J.).[32]

         This Court has assessed the validity of State agency actions consistent with a federal agency’s regulations or interpretations of a federal statute in light of these principles. See Anacostia Riverkeeper, 447 Md. at 142 & n.61, 134 A.3d 892 (citing federal administrative deference case law and finding an EPA policy memorandum "instructive" on interpretation of federal regulation under the Clean Water Act); Sugarloaf Citizens’ Ass’n v. Department of the Environment, 344 Md. 271, 313, 686 A.2d 605 (1996) (affirming Department action based in part on EPA interpretation of the federal Clean Air Act, which was entitled to deference under Chevron );

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Koons Ford of Baltimore, Inc. v. Lobach, 398 Md. 38, 54, 919 A.2d 722 (2007) (applying Chevron and adopting the FTC’s interpretation of a federal statute that the FTC administers); Montgomery Cty. v. Glenmont Hills Associates Privacy World at Glenmont Metro Ctr., 402 Md. 250, 271-72, 936 A.2d 325 (2007) (citing Chevron in adopting HUD’s interpretation that a federal statute did not preempt local agency action that the Court affirmed).

         [465 Md. 207] 2. Reviewability of Permit Terms Derived from TMDLs and WIP

          Incorporation of TMDLs and the Maryland WIP in the Counties’ MS4 Permits

          The MS4 permits at issue in this appeal incorporate or reference elements of the Bay TMDL, the Maryland WIP, and certain local TMDLs. That raises the question whether this litigation is the appropriate forum for what amounts to a challenge to those prior administrative actions.

          The Appropriate Forum for Challenging Permit Provisions Derived from a TMDL

          Carroll County argues that provisions of a TMDL that are implemented in a permit must be reviewable in the context of judicial review of that permit - i.e., in an action like this one. The County reasons that, because Maryland statutory law does not provide for judicial review of State-authored TMDLs and because the TMDLs themselves are not self-executing, the only viable mode of judicial review is a challenge to a permit.

         The County is correct that the Maryland Code does not provide for judicial review of a TMDL. The County is also correct that a TMDL is not self-executing. Farm Bureau, 792 F.3d at 291 n.4. However, the absence of a statutory mechanism for review of a TMDL in State court does not mean it is not reviewable in any court. The EPA’s approval of a state-submitted TMDL "is an act taken pursuant to the [Clean Water Act] and thus is subject to challenge [in federal court] under the [federal Administrative Procedure Act.]" Anacostia Riverkeeper, Inc. v. Jackson, 798 F.Supp.2d 210, 222 (D.D.C. 2011). For example, the major case challenging the validity of the Bay TMDL was held to be ripe for judicial review in federal court because the "parties present[ed] a purely legal dispute on a well-developed record about the EPA’s process of promulgating a TMDL." Farm Bureau, 792 F.3d at 293-94. Similarly, parties challenging other state-prepared, EPA-approved TMDLs have obtained judicial review of the EPA’s [465 Md. 208] approval of those TMDLs in federal court. See, e.g., Friends of Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006); Natural Resources Defense Council v. Muszynski, 268 F.3d 91 (2d Cir. 2001); City of Kennett v. EPA, 887 F.3d 424 (8th Cir. 2018).

         To the extent that the Counties are challenging decisions previously made or actions taken in adopting an EPA-approved TMDL, judicial review of those decisions or actions was available in federal court. Unsurprisingly, as this Court has previously indicated, an action for judicial review of a discharge permit in State court is not the forum for raising belated challenges to a TMDL that the challenger could have raised elsewhere. See Anacostia Riverkeeper, 447 Md. at 129 n.46, 134 A.3d 892.[33]

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Thus, in an action by a permittee under [465 Md. 209] EN § 1-601 challenging a permit term derived from a TMDL, the permittee may not base that challenge on a decision that was ...

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