Md. Dep't of Env't v. Cnty. Comm'rs of Carroll Cnty., 5
| Decision Date | 06 August 2019 |
| Docket Number | No. 5,No. 7,5,7 |
| Parties | MARYLAND DEPARTMENT OF THE ENVIRONMENT v. COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND FREDERICK COUNTY, MARYLAND v. MARYLAND DEPARTMENT OF THE ENVIRONMENT |
| Court | Court of Special Appeals of Maryland |
Environmental Law - Administrative Law - Clean Water Act - Stormwater Discharge Permits - Impervious Surface Restoration. The Maryland Department of the Environment may lawfully include an impervious surface restoration requirement in a municipal separate storm sewer system (MS4) discharge permit without reference to the "maximum extent practicable" standard in the federal Clean Water Act for certain pollution controls. The Department was not arbitrary or capricious in deciding to include such a provision in Frederick County's most recent MS4 permit. 33 U.S.C. §1342(p)(3)(B)(iii); Maryland Code, Environment Article, §9-322 et seq.
Environmental Law - Administrative Law - Clean Water Act - Stormwater Discharge Permits - Scope of MS4 Permit. The Maryland Department of the Environment may lawfully include an impervious surface restoration requirement in a municipal separate storm sewer system (MS4) discharge permit when that requirement is derived from commitments in the State Watershed Implementation Plan that were accepted by the federal Environmental Protection Agency (EPA) when it adopted the Chesapeake Bay TMDL, which in turn allocated pollutant reductions among various sources of pollution for the purpose of achieving water quality standards in the Chesapeake Bay, in compliance with the federal Clean Water Act. To the extent that other restoration requirements in a permit are based on pollutant reduction allocation decisions made in other EPA-approved TMDLs, any challenge to those decisions should have been made in connection with the EPA's approval of the TMDLs themselves and cannot be made as part of judicial review in State court of a permit issued by the Department. 33 U.S.C. §1342(p); Maryland Code, Environment Article, §§1-606, 9-322 et seq.
Environmental Law - Administrative Law - Clean Water Act - Stormwater Discharge Permits - Classification of Phase I Jurisdictions. The Maryland Department of the Environment had authority to treat Frederick County and Carroll County as Phase I jurisdictions for purposes of their municipal separate storm sewer system (MS4) discharge permits. It was not arbitrary or capricious for the Department to classify Carroll County as a Phase I jurisdiction without also including Washington County in that category. 33 U.S.C. §1342(p)(1)-(2); Maryland Code, Environment Article, §9-322 et seq.
Environmental Law - Administrative Law - Clean Water Act - Stormwater Discharge Permits - Water Quality Trading. A potential compliance method in a municipal separate storm sewer system (MS4) discharge permit could authorize the permittee to engage in water quality trading. Water quality trading occurs when a permittee takes credit for a pollution reduction accomplished by another entity that the permittee compensates. It was not arbitrary or capricious for the Maryland Department of the Environment to omit water quality trading from an MS4 permit until it had finally adopted regulations that it had proposed concerning that compliance method. 33 U.S.C. §1342(p); Maryland Code, Environment Article, §9-322 et seq.
Environmental Law - Administrative Law - Clean Water Act - Stormwater Discharge Permits - Permit Provision Related to Comprehensive Plan. The Maryland Department of the Environment included a provision in municipal separate storm sewer system (MS4) discharge permits requiring the permittees to cooperate with other agencies during completion of the water resources element of the local comprehensive plan required by a Maryland statute. The permit provision stated that such cooperation "shall not be restricted by the responsibilities attributed to other entities by separate State statute, including but not limited to reviewing and approving plans and appropriating funds." While the language of this provision is ambiguous, it does not, and could not, transfer the responsibilities of other agencies to the permittee. 33 U.S.C. §1342(p); Maryland Code, Environment Article, §9-322 et seq.; Land Use Article, §3-101 et seq.
Circuit Court for Carroll County
Case No. 06-C-15-068141
Circuit Court for Frederick County
Case No. 10-C-15-000293
Barbera, C.J., *Greene *Adkins McDonald Watts Hotten Getty, JJ.
Opinion by McDonald, J.
*Greene and Adkins, JJ., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.
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 issued the permits, nor did it act arbitrarily or capriciously in including the challenged terms in the permits.
The Chesapeake Bay lies between the western and eastern shores of Maryland 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, entailingcooperation 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 effort. We begin with an overview of the key elements pertinent to this appeal.
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.
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 into a water body from a point source 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...
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