Waterkeeper Alliance, Inc. v. Md. Dep't of Agric.

Decision Date02 May 2013
Docket NumberNo. 1289,Sept. Term, 2011.,1289
Citation211 Md.App. 417,65 A.3d 708
CourtCourt of Special Appeals of Maryland


Jane Barrett (Andrew W. Keir, Environmental Law Clinic University of Maryland Francis King Carey School of Law, on the brief), Baltimore, MD, for Appellant.

Margaret Witherup (Gordon Feinblatt, LLC of Baltimore, MD), on brief; Thomas Filbert (Craig A. Nielsen, Douglas F. Gansler, Attorney General of Maryland, Annapolis, MD), on brief, for Appellees.



This appeal concerns the Maryland Department of Agriculture's (“MDA”) decision to exempt nutrient management plans (“NMPs”) 1 from public disclosure in response to a Public Information Act request. An NMP “indicates how essential primary nutrients, that is, nitrogen, phosphorus, and potassium, are to be annually managed on farm fields for crop production and for the protection of water quality.” COMAR (2000). As discussed further, infra, the General Assembly promulgated a law governing the preparation and filing of NMPs and plan summaries. This law provides that [t]he [MDA] shall maintain a copy of each [NMP] summary for 3 years in a manner that protects the identity of the individual for whom the [NMP] was prepared.” Md.Code (1974, 2007 Repl.Vol.), § 8–801.1(b)(2) of the Agriculture Article2 [hereinafter Agric. § 8–801.1(b)(2)].

Appellants, Waterkeeper Alliance, Inc. (Waterkeeper Alliance), Assateague Coastkeeper, Baltimore Harbor Waterkeeper, Inc., Lower Susquehanna Riverkeeper, Patuxent Riverkeeper, Potomac Riverkeeper, Inc., Severn Riverkeeper, South Riverkeeper, and West/Rhode Riverkeeper, Inc., 3 filed a complaint, pursuant to the Public Information Act, specifically Md.Code (1984, 2009 Repl.Vol., 2012 Supp.), § 10–613(a) of the State Government Article [hereinafter State Gov't § 10–613(a)],4 in the Circuit Court for Anne Arundel County against appellees, the MDA, the Secretary of Agriculture, Roger Richardson, the Assistant Secretary, Royden Powell, and the Chief of the Office of Resource Conservation, Louise Lawrence, alleging that the MDA improperly denied them evaluation of NMPs 5 for the Nest Egg Farm in Princess Anne, Maryland, and for Animal Feeding Operations (“AFOs”) 6 that were located in the Chesapeake Bay watershed.7

After being notified of a possible disclosure,8 appellee, the Maryland Farm Bureau, Inc. (“Farm Bureau”) filed a motion for summary judgment, averring that Agric. § 8–801.1(b)(2) required that the MDA maintain all NMPs in a manner that protected its members' identities beyond three years. Thereafter, the MDA filed a cross-motion for summary judgment. The circuit court granted the MDA's cross motion for summary judgment, but denied the Farm Bureau's motion for summary judgment. The court ordered that the MDA disclose NMP summaries that were older than three years “without any redaction of identifying information unless failure to redact identifying information from [NMP] [s]ummaries ... would allow for the identification of the individual for whom the [NMP] was prepared.”

Subsequently, the Farm Bureau filed a motion for clarification to which the court further ordered that the MDA “redact any plan information that could be used to create a linkage between a specific individual and a specific [NMP],” and redact “entries for name, address, signature, and unique identification number.” Appellants, the Waterkeepers, noted an appeal, and present the following question for our consideration:

Did the [c]ircuit [c]ourt err when it interpreted section 8–801.1(b)(2) of the Agriculture Article (“the Statute) 9 to include any documents related to nutrient management plans (“NMPs”), when the [s]tatute expressly applies only to NMP summaries maintained by the Maryland Department of Agriculture (“MDA”) for three years or less?

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

A. Federal Regulatory Framework

In 1948, the United States (“U.S.”) Congress enacted the Federal Water Pollution Control Act to promote states to safeguard and restore the country's bodies of water. National Pork Producers Council v. Environmental Protection Agency, 635 F.3d 738, 742 (5th Cir.2011) [hereinafter National Pork]. In 1972, the Clean Water Act 10 replaced the Federal Water Pollution Control Act, and encompassed a responsibility to conform to the 1972 National Pollutant Discharge Elimination System (“NPDES”) permit program. Id. Although the Clean Water Act forbids the release of pollutants into U.S. waters, under the permit program, the EPA may grant permits to individuals and companies to discharge pollutants, but with significant limitations. Id. at 743.

In 1976, the EPA required Concentrated Animal Feeding Operations (“CAFOs”) 11 to obtain permits to release pollutants,which was predicated on the amount of animals located in the facility. Id. However, because of ‘changes that ... occurred in the animal production industries,’ Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486, 494 (2nd Cir.2005) [hereinafter Waterkeeper Alliance v. EPA] (additional citation omitted), the EPA required all CAFOs to “apply for an individual NPDES permit or submit a notice of intent for coverage under an NPDES general permit” in 2003.12Id. at 495 (citing 40 C.F.R. § 122.23(d)(1)) (emphasis added). Additionally, all CAFOs were required to establish and design a site-specified NMP that:

(i) Ensure[d] adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

(ii) Ensure[d] proper management of mortalities (i.e. dead animals) to ensure that they [were] not disposed of in a liquid manure, storm water, or process wastewater storage or treatment system that [was] not specifically designed to treat animal mortalities;

(iii) Ensure[d] that clean water [was] diverted, as appropriate, from the production area;

(iv) Prevent[ed] direct contact of confined animals with waters of the [U.S.];

(v) Ensure[d] that chemicals and other contaminants handled on-site [were] not disposed of in any manure, litter, process wastewater, or storm water storage or treatment system unless specifically designed to treat such chemicals and other contaminants;

(vi) Identif[ied] appropriate site specific conservation practices to be implemented, including as appropriate buffers or equivalent practices, to control runoff of pollutants to waters of the [U.S.];

(vii) Identif[ied] protocols for appropriate testing of manure, litter, process wastewater, and soil;

(viii) Establish[ed] protocols to land apply manure, litter or process wastewater in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and

(ix) Identif[ied] specific records that [would] be maintained to document the implementation and management of the minimum elements described [above].

Waterkeeper Alliance v. EPA, 399 F.3d at 495–96 (quoting 40 C.F.R. § 122.42(e)(1)(i)-(ix)) (word “above” added in Waterkeeper Alliance v. EPA, 399 F.3d at 496).

In Waterkeeper Alliance v. EPA, 399 F.3d at 502, the U.S. Court of Appeals for the Second Circuit determined whether the requisites of the NMPs constituted “effluent limitations,” and hence, were required in the NPDES permit.13 The plaintiffs-environmental organizations contended that the 2003 Rule was unlawful because (1) NPDES personnel were permitted to issue permits to Large CAFOs without an extensive evaluation of the NMPs, and (2) the NPDES permits did not include the NMPs' terms. Id. at 490. The Second Circuit agreed with the plaintiffs, reasoning that the Clean Water Act described 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 [were] discharged from point sources ...,’ id. at 502 (emphasis in original), and thus, because “the requirement to develop a[NMP] constitute[d] a restriction on land application discharges ...,” the requisites of the NMP should have been included in the permits. Id.

In accordance with the Second Circuit's ruling, on June 30, 2006, the EPA proposed that (1) CAFOs present NMPs with their NPDES permit applications, (2) authorities would review the plan, and (3) the permit would include the NMP terms. 71:126 Fed.Reg. 37744 (June 30, 2006). On December 4, 2008, the proposal became finalized as a rule.14National Pork, 635 F.3d at 747. Farmers opposed the 2008 Rule, and filed complaints in several federal courts, arguing that the EPA exceeded its authority in requiring all NMPs to submit procedures regarding land application.15Id. at 753. The actions were transferred to the U.S. Court of Appeals for the Fifth Circuit, and joined into one case, National Pork.Id. at 747. The Fifth Circuit concluded that the farmers' arguments were time-barred because they concerned the 2003 Rule, id. at 754, and ultimately, the Court upheld the 2008 Rule. 16Id. at 756.

B. Maryland Regulatory Framework

The MDA establishes programs regarding “the registration, labeling and application of commercial fertilizers, organic nutrients, organic wastes, soil conditioners and soil amendments.” MDA, Guidelines for Application of Soil Conditioners, Soil Amendments, Waste Materials or Effluent on Agricultural Land (Summary of Existing Guidelines) 1 (2012), http:// mda. maryland. gov/ resource_ conservation/ counties/ Supp 7% 20(2).pdf (last visited Apr. 11, 2013). “The Maryland Department of the Environment ... develop[s] standards and issues discharge permits for, and oversees the safe permissible uses of, solid and liquid byproducts, including those with heavy metals, trace elements, and other pre-application...

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