Coastkeeper v. Md. Dep't of The Env't.

• Decision Date: 06 September 2011
• Docket Number: 2010.,No. 471,Sept. Term,471
• Citation: Coastkeeper v. Md. Dep't of The Env't., 200 Md.App. 665, 28 A.3d 178 (Md. App. 2011)
• Parties: ASSATEAGUE COASTKEEPER et al.v.MARYLAND DEPARTMENT OF the ENVIRONMENT.
• Court: Court of Special Appeals of Maryland

200 Md.App. 665

28 A.3d 178

ASSATEAGUE COASTKEEPER et al.

v.MARYLAND DEPARTMENT OF the ENVIRONMENT.

No. 471

Sept. Term

2010.

Court of Special Appeals of Maryland.

Sept. 6, 2011.

Michael K. Murphy, Washington DC (Carey Anne Fenton, Gibson, Dunn & Crutcher LLP and Scott Edwards, Liane Curtis, Irvington, MY), on the brief, for appellant.Adam D. Snyder (Andrea S. Baker, Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: GRAEFF, HOTTEN and RAYMOND G. THIEME, JR. (Retired, Specially Assigned).GRAEFF, J.

This appeal involves the propriety of regulation by the Maryland Department of the Environment (“MDE”), appellee, of Animal Feeding Operations (“AFOs”), facilities that house animals.¹ AFOs produce large quantities of animal manure each year, which is applied to crops in place of chemical fertilizer. The manure contains nutrients that, if improperly managed, contribute to water quality problems for lakes, rivers, and groundwater.

As discussed in more detail, infra, both federal and state law prohibit discharges of pollutants to water, except as authorized by permit. The challenge here is to the decision by MDE to issue a General Discharge Permit for AFOs (the “GP”). The GP authorizes certain discharges, but it imposes requirements regarding the management of manure and its application as fertilizer. Both parties have represented that the GP primarily impacts poultry farms on the Eastern Shore.

Appellants, Assateague Coastkeepers, Waterkeeper Alliance, Lower Susquehanna Riverkeeper, and Charles and Betty Schelts, acknowledge some benefit from the GP, in that it imposes restrictions on entities that were not otherwise restricted, but they contend that the GP is not stringent enough. ² They argue that the GP allows discharge of pollutants in violation of federal law, and it fails to address adequately the problem of animal waste threatening “the quality of the waters of the nation” and of Maryland.

Appellants challenged the GP pursuant to the Administrative Procedure Act. See Md.Code (2004 Repl.Vol., 2009 Supp.) § 10–201 et seq. of the State Government Article (“S.G.”). After a decision by an administrative law judge (“ALJ”) in MDE's favor, to which appellants filed exceptions, the Final Decision Maker (“FDM”) of MDE found that the promulgation of the GP was in accord with state and federal law and it was not arbitrary and capricious. Accordingly, the FDM granted MDE's motion for summary decision. The Circuit Court for Baltimore City affirmed the decision of the FDM.

Appellants presented seven questions for our review.³ We have consolidated and rephrased these questions, to the extent properly before this Court,⁴ as follows:

1. Did the FDM err: (a) in failing to find that the decision to promulgate the GP was arbitrary and capricious and unsupported by substantial evidence; and (b) in granting MDE's motion for summary decision when there was a dispute of material fact?

2. Does the GP violate federal regulations governing water quality standards?

3. Is the GP less stringent than federal law because it fails to regulate all AFOs that meet the federal definition of Concentrated Animal Feeding Operations?

For the reasons that follow, we shall affirm the judgment of the circuit court.

STATUTORY BACKGROUND

A.Federal Regulatory Scheme

Congress enacted the federal Clean Water Act (“CWA”) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a) (2008). Among its core provisions, the CWA prohibits the “discharge of any pollutant” to waters of the United States, except as authorized by a permit issued under the National Pollutant Discharge Elimination System (“NPDES”). Id. §§ 1251(a)(1), 1311(a), 1342(a)(1).

The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12). A “point source” is defined as “any discernible, confined and discrete conveyance,” including any container or “concentrated animal feeding operation” (“CAFO”) “from which pollutants are or may be discharged.” Id. § 1362(14). An AFO becomes a CAFO in two ways: (1) automatically, if it confines a certain number of animals; and (2) if it is specifically designated as a CAFO based on a determination that it is a significant contributor of pollutants to waters of the United States. 40 C.F.R. § 122.23(b)-(c) (2010).⁵

Agricultural storm water runoff is excluded as a discharge requiring an NPDES permit. See 33 U.S.C. § 1362(14). The CWA regulates discharges to surface water; it does not regulate discharges to ground water because ground water does not qualify as “waters of the United States.” See Rice v. Harken Exploration Co., 250 F.3d 264, 269 (5th Cir.2001).

Federal regulations regarding CAFOs have evolved through the years. In 2003, the Environmental Protection Agency (“EPA”) expanded the definition of CAFO to include poultry operations utilizing a dry manure handling system. See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed.Reg. 7176, 7179–80, 7192 (Feb. 12, 2003).

The United States Court of Appeals for the Fifth Circuit recently summarized the regulations in effect in 2003:

Under the 2003 Rule, all CAFOs were required to apply for an NPDES permit whether or not they discharged. 68 Fed.Reg. 7176, 7266 (Feb. 12, 2003). Specifically, every CAFO was assumed to have a “potential to discharge” and had to apply for an NPDES permit. Id. at 7266–67. However, an option built into the Rule permitted a CAFO to request from the EPA a “no potential to discharge” determination. Id. If the CAFO proved that it did not have the potential to discharge, the CAFO was not required to seek a permit. Id. The 2003 Rule also expanded the definition of exempt “agricultural stormwater discharge” to include land application discharge, if the land application comported with appropriate site-specific nutrient management practices. Id. at 7198. However, if the land application was not in compliance with those practices, the land application discharge would be an unpermitted discharge in violation of the CWA. Id. at 7197.

Furthermore, the 2003 Rule created a mandatory duty for all CAFOs, applying for a permit, to develop and implement a site-specific Nutrient Management Plan (NMP). Id. at 7176. An NMP required a CAFO to establish “best management practices” (BMPs). Id. at 7213–14. The BMPs were designed to ensure adequate storage of manure and wastewater, proper management of mortalities and chemicals, and appropriate site-specific protocols for land application. Id. at 7176. The BMPs were neither reviewed by the EPA nor were they included in the terms of a CAFO's permit to discharge.

Nat'l Pork Producers Council v. EPA, 635 F.3d 738, 744 (5th Cir.2011).

In 2005, in Waterkeeper Alliance v. EPA, 399 F.3d 486, 504–06 (2d Cir.2005), the United States Court of Appeals for the Second Circuit held that the EPA had no authority to require CAFOs to apply for a permit based on a “potential to discharge.” It held that the CWA “gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves.” Id. at 505. The court also held that the 2003 Rule violated the CWA in failing to require that NMPs be included in NPDES permits. Id. at 502.⁶

In response to the Waterkeeper decision, the EPA promulgated new regulations in 2008, requiring CAFOs to obtain a NPDES permit if they discharge or “propose to discharge.” ⁷See Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision; Final Rule. 73 Fed.Reg. 70418, 70421–22 (Nov. 20, 2008) (codified at 40 C.F.R. pts. 9, 122, 412). The 2008 rule also required a CAFO seeking a permit to submit a NMP, and it required the permitting authority to review the NMP, provide the public the opportunity to comment, and incorporate the terms of the NMP as an element of the NPDES permit. Id. at 70422.

Additional challenges were made regarding the propriety of the 2008 rule. On March 15, 2011, after the briefs were filed in this case, the United States Court of Appeals for the Fifth Circuit rendered its decision in National Pork Producers Council, 635 F.3d at 750–51, striking down provisions of the 2008 rule. As relevant to this appeal, the court struck down provisions of the CWA that required CAFOs to obtain a NPDES permit if they “propose to discharge” and imposed liability for a failure to apply. Id. The court held that “the EPA's authority is limited to the regulation of CAFOs that discharge,” and “[a]ny attempt to do otherwise exceeds the EPA's statutory authority.” Id. at 751.

Thus, pursuant to federal law, only CAFOs that discharge pollutants are required to apply for a NPDES permit. To obtain a NPDES permit, however, applicants are required to develop and implement NMPs to limit the discharge of pollutants to water.

The CWA contains other provisions to protect water quality, including limiting the issuance of a discharge permit if waters within a State's borders are identified as impaired by pollutants. The CWA requires that states develop water quality standards for water bodies within their boundaries. 33 U.S.C. § 1313(c)(2)(A) (requiring standards sufficient to “protect the public health or welfare, enhance the quality of water and serve the purposes of this Act”). It also requires states to identify those waters within its borders that are impaired by one or more pollutants. Id. § 1313(d)(1)(A). For those impaired waters, states are directed to establish a Total Maximum Daily Load (“TMDL”) for each impairing pollutant that can be accommodated by the water body without violating water quality standards and to allocate the available load to existing...