Md. Dep't of the Env't v. Anacostia Riverkeeper

• Citation: 134 A.3d 892,447 Md. 88
• Decision Date: 11 March 2016
• Docket Number: No. 44, Sept. Term, 2015,No. 43, Sept. Term, 2015,No. 42, Sept. Term, 2015,42, Sept. Term, 2015,43, Sept. Term, 2015,44, Sept. Term, 2015
• Parties: MARYLAND DEPARTMENT OF the ENVIRONMENT, et al. v. ANACOSTIA RIVERKEEPER, et al. Blue Water Baltimore, et al. v. Maryland Department of the Environment. Blue Water Baltimore, et al. v. Maryland Department of the Environment, et al.
• Court: Court of Special Appeals of Maryland

447 Md. 88

134 A.3d 892

MARYLAND DEPARTMENT OF the ENVIRONMENT, et al.

v.ANACOSTIA RIVERKEEPER, et al.

Blue Water Baltimore, et al.

v.Maryland Department of the Environment.

Blue Water Baltimore, et al.

v.Maryland Department of the Environment, et al.

No. 42, Sept. Term, 2015

No. 43, Sept. Term, 2015

No. 44, Sept. Term, 2015

Court of Appeals of Maryland.

March 11, 2016.

Reconsideration Denied May 20, 2016.

Paul N. De Santis, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioners in No. 42, Sept. Term, 2015.

Jennifer C. Chavez (Khushi K. Desai, Earthjustice, Washington, DC), on brief, for Respondents in No. 42, Sept. Term, 2015.

Jennifer C. Chavez (Khushi K. Desai, Earthjustice, Washington, DC), on brief, for Appellants in No. 43, Sept. Term, 2015.

Paul W. Smail (Jon Mueller, Chesapeaker Bay Foundation, Inc., Annapolis, MD), on brief, for Appellants in No. 43, Sept. Term, 2015.

Paul N. De Santis, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD; Nancy McCutchan Duden, Co. Atty., Kelly Phillips Kenney, Asst. Co. Atty., Anne Arundel County Office of Law, Annapolis, MD; M. Andree Green, Co. Atty., Josue Pierre, Associate Co. Atty., Prince George's County Office of Law, Upper Marlboro, MD), on brief, for Appellee in No. 43, Step. Term, 2015.

Jennifer C. Chavez (Khushi K. Desai, Earthjustice, Washington, DC; Paul W. Smail, Jon Mueller, Chesapeake Bay Foundation, Inc., Annapolis, MD), on brief, for Appellants in No. 44, Sept. Term, 2015.

M. Rosewin Sweeney (Thomas M. Lingan, Diana M. Krevor, Venable, LLP, Baltimore, MD; George A. Nilson, City Solicitor, Baltimore City Law Department, Baltimore, MD), on brief, for Appellees in No. 44, Sept. Term, 2015.

Paul N. De Santis, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD; Nancy McCutchan Duden, Co. Atty., Kelly Phillips Kenney, Asst. Co. Atty., Anne Arundel County Office of Law, Annapolis, MD; Andree Green, Co. Atty., Josue Pierre, Associate Co. Atty., Prince George's County Office of Law, Upper Marlboro, MD), on brief, for Appellees in No. 44, Sept. Term, 2015.

Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.

ADKINS, J.

FACTS AND LEGAL PROCEEDINGS

Maryland Department of the Environment ("MDE") issued municipal separate storm sewer system ("MS4") discharge permits ("the Permits") to Anne Arundel County, Baltimore City, Baltimore County, Montgomery County, and Prince George's County ("the Counties"). Multiple organizations argue that the Permits do not comply with federal and state law, and they request that we remand for MDE to correct these legal errors.¹

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") 26.08.04.07. An NPDES permit, however, does not give a discharger carte blanche. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters."

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 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

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 systems⁴ 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." SeeNational Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. § 122.26 ). It is also difficult to discern the amount of pollutant that any one discharger contributes to a waterbody because municipalities have so many outfalls, or discharge points, leading into the waters. See MDE, Montgomery County NPDES Permit Fact Sheet (900 outfalls); MDE, Anne Arundel County NPDES Permit Fact Sheet (nearly 1,000 outfalls); MDE, Baltimore County NPDES Permit Fact Sheet (nearly 700 outfalls.); MDE, Prince George's County NPDES Permit Fact Sheet (more than 4,000 outfalls); MDE, Baltimore City NPDES Permit Fact Sheet (around 350 outfalls.); see also40 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), 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 limitation⁸ 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 (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

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 http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay- tmdl-document [https://perma.cc/9R7V-9VHV].

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...