Md. Dep't of the Env't v. Cnty. Commissioners of Carroll Cnty.

• Decision Date: 06 August 2019
• Docket Number: No. 5, 7, Sept. Term, 2018,5, 7, Sept. Term, 2018
• Citation: 465 Md. 169,214 A.3d 61
• 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

465 Md. 169

214 A.3d 61

MARYLAND DEPARTMENT OF THE ENVIRONMENT

v.COUNTY COMMISSIONERS OF CARROLL COUNTY, Maryland

Frederick County, Maryland

v.Maryland Department of the Environment

No. 5, 7, Sept. Term, 2018

Court of Appeals of Maryland.

August 6, 2019

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, 6 Herndon Avenue, Annapolis, MD 21403, for Amicus Curiae Brief for the Chesapeake Bay Foundation, 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.

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.

IBackground

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

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, 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 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 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 in Maryland is issued under the Act and under a parallel State program. See Maryland Code, Environment Article ("EN"), § 9-322 et seq. ; COMAR 26.08.04.07. Under Maryland law, the Department is the agency designated to issue and enforce these permits. EN § 9-253 ; COMAR 26.08.04.01. 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.

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 26.08.02.01 - .03.

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 based" or "water quality based." See EPA, NPDES Permit Limits , https://perma.cc/L4G6-24K9; 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 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...