Md. Small MS4 Coal. v. Md. Dep't of the Env't

• Decision Date: 01 June 2022
• Docket Number: 25, Sept. Term, 2021
• Parties: MARYLAND SMALL MS4 COALITION, et al. v. MARYLAND DEPARTMENT OF THE ENVIRONMENT
• Court: Court of Special Appeals of Maryland

479 Md. 1

276 A.3d 573

MARYLAND SMALL MS4 COALITION, et al.

v.MARYLAND DEPARTMENT OF THE ENVIRONMENT

No. 25, Sept. Term, 2021

Court of Appeals of Maryland.

June 1, 2022

Argued by Christopher D. Pomeroy (Lisa M. Ochsenhirt, AquaLaw PLC, Richmond, VA; Patrick E. Thompson, County Atty., Queen Anne's County, Maryland, Stevensville, MD), on brief, for Petitioners

Argued by Matthew P. Clagett, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent

Nathan Gardner-Andrews, Esquire, General Counsel, National Association of Clean Water Agencies, 1130 Connecticut Avenue, NW, Suite 1050, Washington, DC 20036, for Amicus Curiae National Association of Clean Water Agencies

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.

Per Curiam Opinion

The goal of the federal Clean Water Act is to make the nation's waters fishable and swimmable by eliminating pollutant discharges into those waters.¹ To achieve that goal, the Act requires a permit for all effluent discharges into waters of the United States, including discharges into the Chesapeake Bay and its tributaries. Under the Act and the State water pollution control statute, Respondent Maryland Department of the Environment ("the Department") develops and issues such permits to municipal separate storm sewer systems ("MS4s") in Maryland, which are classified as "large," "medium," or "small."

Beginning in the 1990s, the Department issued permits for owners and operators of large and medium MS4s. In 2016, in response to a challenge by environmental advocates, this Court held that permits issued by the Department to large MS4s satisfied the minimum requirements of the Clean Water Act. Maryland Department of the Environment v. Anacostia Riverkeeper , 447 Md. 88, 134 A.3d 892 (2016) (" Anacostia Riverkeeper "). In 2019, in response to a challenge by two counties that operate medium MS4s, the Court held that permits issued to those MS4s were lawful under the Clean Water Act even if some permit conditions exceeded the minimum requirements of the Act. Maryland Department of the Environment v. County Commissioners of Carroll County , 465 Md. 169, 214 A.3d 61 (2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 1265, 206 L.Ed.2d 255 (2020) (" Carroll County "). In Carroll County , the counties asserted, among other things, that the permit terms unlawfully (1) included requirements that went beyond the Act's "maximum extent practicable" ("MEP") standard and (2) regulated areas of a county outside the MS4's watershed region.

In this case, Petitioner Queen Anne's County ("the County"), which operates a small MS4, brought this action for judicial review of a general permit that the Department issued for operators of 35 small MS4s in Maryland, including the County. The Circuit Court for Queen Anne's County concluded that the decision in Carroll County addressed the issues raised by the County and affirmed the permit. On appeal of that decision, the Court of Special Appeals reached the same conclusion. Before us, the County again raises the grounds that the Court addressed in Carroll County and asks the Court to reconsider its key holdings in that case.

We hold that, pursuant to the doctrine of stare decisis , the holdings of Carroll County apply in this case. We hold that this case is governed by this Court's prior case law and presents neither a material difference nor a change in circumstance that would justify reconsideration of this Court's Carroll County decision. Accordingly, conditions based on regulations of the Environmental Protection Agency ("EPA") in the general permit for small MS4s are not unlawful simply because they may exceed the minimum requirements of the Clean Water Act, such as the MEP standard. In addition, an impervious surface restoration requirement in the permit, which is similar to but less onerous than a permit requirement assessed in Carroll County , does not unlawfully make the County responsible for discharges by third parties.²

I

Regulation of Water Pollution under the Clean Water Act

Pollution can enter waterways in many ways, but the Clean Water Act³ sorts all sources of pollution into two categories – point source and nonpoint source pollution. Carroll County , 465 Md. at 184, 214 A.3d 61. The Clean Water Act defines "point source" as "any discernible, confined and discrete conveyance," and thus includes classic conveyances such as an industrial drainage pipe. 33 U.S.C. § 1362(14). Undefined by the statute, "nonpoint source" includes dispersed runoff from rainwater or snowmelt that sweeps over buildings, farms, and roadways, and that carries pollutants and pesticides into navigable waters, their tributaries, and groundwater. See Carroll County , 465 Md. at 184 & n.3, 214 A.3d 61. Given the unpredictable and amorphous nature of nonpoint source pollution, the Clean Water Act primarily targets point sources of pollution, using point source permits as its primary enforcement mechanism. Id. at 184, 214 A.3d 61.

A. Point Sources and NPDES Permits

As a starting point, the Clean Water Act prohibits all point source pollutant discharges into the waters of the United States,⁴ unless a permit allows the discharge. 33 U.S.C. §§ 1311(a), 1362(12) ; see Anacostia Riverkeeper , 447 Md. at 96, 134 A.3d 892. Thus, as a general rule, to lawfully discharge from a point source into a waterway such as the Chesapeake Bay or its tributaries, one must have a permit, i.e. , a National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1342. NPDES permits set effluent limitations⁵ for point source discharges, capping the amount of various pollutants that may enter the water. Id. The standards are primarily based on what is reasonably achievable with available technology, but permit standards become more stringent if further reduction of pollutants is necessary to protect water quality. 33 U.S.C. § 1311(b)(1).

Congress entrusted administration of the NPDES permit program primarily to the EPA. 33 U.S.C. § 1319, 1342(a)(1). The EPA may 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). EPA designation of a state permitting agency indeed is the rule rather than the exception.⁶ In Maryland, the Department is the NPDES permitting authority. See Maryland Code, Environment Article ("EN"), § 9-253 ; COMAR 26.08.04.01. The State water pollution control law also directs the Department to adopt regulations concerning water quality standards and to regulate the discharge of pollutants into Maryland waterways. EN § 9-314.

B. Effluent Limitations in Point Source Permits

Although the Act distinguishes between point and nonpoint sources of pollution, pollutants do not, and accomplishment of the statutory purpose inevitably involves some interplay in the regulation of the two sources of pollution. Under the Act's statutory framework, nonpoint source pollution affects the stringency of a typical NPDES point source permit. Aside from technical limitations on effluent discharges, typical NPDES permits – for example, a permit for an industrial drainage pipe – must include "any more stringent limitation, including those necessary to meet water quality standards." 33 U.S.C. § 1311(b)(1)(C) ; 40 CFR § 130.7(c)⁷ ; see Carroll County , 465 Md. at 187, 214 A.3d 61. "Water quality standards" are targets set by the states and approved by the EPA. 33 U.S.C. § 1313. Among other things, water quality standards are based on designated uses for the state's bodies of water, such as "recreation" or "public drinking water supply." See Carroll County , 465 Md. at 186, 214 A.3d 61.

Both point and nonpoint sources impact water quality, but the Act's enforcement mechanism is through point source permits. Thus, if there is an excess of nonpoint source pollution impairing a body of water – despite the measures taken to reduce nonpoint source pollution – point source permits must impose a "more stringent limitation" to counterbalance the nonpoint source pollution and protect the water quality. "Water quality standards are retained as a supplementary basis for effluent limitations, however, 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 Res. Control Bd. , 426 U.S. 200, 205 n.12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Thus, water quality standards provide the link for how point source regulation under the Act accounts for nonpoint source pollution. See American Farm Bureau Federation v. EPA , 792 F.3d 281, 299 (3d Cir. 2015) ; Friends of the Earth, Inc. v. EPA , 446 F.3d 140, 143 (D.C. Cir. 2006).

C. MS4s

MS4s are a subset of point sources of pollution discharges. They are ubiquitous in the daily life of those who live in an urban or suburban area. They consist of drains along roads and other conveyances for the collection and transport of rainwater and snowmelt – and everything else washed in with the water. Unlike a combined sewer system, an MS4 does not mix run off with sanitary sewer water; rather, it collects, transports, and deposits untreated stormwater into local waterways. In 1987, Congress amended the Clean Water Act to include specific permitting standards for MS4s, which have been elaborated in the EPA's regulations.⁸ See 33 U.S.C. § 1342(p) ; 40 CFR §§ 122.30 - .37.

The fundamental issues in this case are whether the Department, as the NPDES permitting authority for Maryland, may mitigate nonpoint source pollution to protect water quality standards when issuing permits for point sources, such as MS4s, and, if so, whether the scope of such regulation may extend in certain ways beyond the MS4's system. The Court has already answered these questions in the affirmative – once with large MS4s and once with medium MS4s. The same answers...