Maryland Attorney General Opinion 104OAG003

ENVIRONMENT

LAND USE & PLANNING – GROWTH TIERS – WHETHER A LOCAL

JURISDICTION IS PROHIBITED FROM AUTHORIZING

MAJOR SUBDIVISIONS SERVED BY SEPTIC SYSTEMS IF THE

JURISDICTION’S GROWTH TIERS DO NOT COMPLY WITH

THE STATUTORY CRITERIA – WHETHER THE STATE MUST

ENFORCE VIOLATIONS OF THE STATUTE

February 15, 2019

The Honorable Kumar P. Barve

House of Delegates of Maryland

You have asked for our opinion on two questions regarding

the Sustainable Growth and Agricultural Preservation Act of 2012

(the “Act”). See 2012 Md. Laws, ch. 149. The Act was passed in

response to a federal mandate under the Clean Water Act that

required Maryland to demonstrate how it would reduce nutrient

pollution to the Chesapeake Bay, including how it would reduce

nitrogen discharges from on-site sewage disposal systems, more

commonly known as “septic systems” or “septics.” 2012 Md.

Laws, ch. 149, Preamble; see also U.S. Environmental Protection

Agency’s Interim Expectations for the Phase III Watershed

Implementation Plans (Jan. 2017 Interim Version) (“Phase III

Interim Letter”). In an effort to fulfill that mandate, the Act

effectively requires that local jurisdictions wishing to authorize

certain types of major residential subdivisions—especially major

subdivisions on septics—must first adopt a map of up to four

“growth tiers.” Those growth tiers, broadly speaking, describe the

type of development that may occur in each “tier” and set the

method of sewage treatment that may be used for residential

subdivisions within each tier. See Md. Code Ann., Land Use

(“LU”) § 1-502; Md. Code Ann., Envir. (“EN”) § 9-206. A local

jurisdiction that does not adopt tiers “in accordance with” the Act

is prohibited, among other things, from authorizing a major

residential subdivision served by septics anywhere in the

jurisdiction. EN § 9-206(f). Instead, such a local jurisdiction may

authorize a major subdivision only if the subdivision will be served

by public sewer and is located in an area that meets the criteria for

“Tier I” land. See EN § 9-206(f)(2).

According to your request, one local jurisdiction has adopted

growth tiers that do not meet the Act’s criteria for determining

which area should be included in which tier. See LU § 1-508

(setting those criteria). Based on that understanding, you ask two

questions, which we have rephrased slightly:

3

4 [104 Op. Att’y

1. Is a local jurisdiction with a noncompliant

growth tier map prohibited from authorizing a

major residential subdivision on septic

systems?

2. Does the Act, or any other State law,

compel the State to enforce violations of the

Act?

With respect to your first question, it is our opinion that a local

jurisdiction with a noncompliant growth tier map is generally

prohibited from approving a major residential subdivision unless

the subdivision is served by public sewer and is located in a Tier I

area. Thus, in such a jurisdiction, major subdivisions on septics

generally would not be permitted, even in areas where they would

otherwise be permissible had the locality adopted a compliant tier

map. Under EN § 9-206(f), a local jurisdiction may approve major

subdivisions other than those on public sewer in a Tier I area only

if the jurisdiction has adopted a tier map “in accordance with” the

Act or, in other words, has adopted a map that complies with the

Act’s criteria for mapping the growth tiers. A noncompliant tier

map does not meet that condition. It is possible, however, that a

noncompliant tier map with minor errors or inaccuracies might

substantially comply with the Act under limited circumstances.

With respect to your second question, no State law “compels”

the State to bring an enforcement action directly against a local

jurisdiction for violating the Act. However, the Maryland

Department of the Environment (“MDE”) likely has authority to

disapprove certain applications, permits, and plans related to water

and sewer issues when those applications, permits, and plans

conflict with the Act. To take just one example, it appears that

MDE must at least consider compliance with the Act as part of the

process for evaluating permits to construct waste-disposal systems

and would have little, if any, discretion to overlook a noncompliant

tier map when reviewing a permit application to build a septic

system for a major residential subdivision. In that sense, MDE is

charged with enforcing the Act. Moreover, MDE has broad

discretionary authority to enforce violations of Title 9, Subtitle 2 of

the Environment Article, including the provisions of the Act that

prohibit local jurisdictions from authorizing major subdivisions on

septic systems unless the jurisdiction has complied with the Act’s

tier-mapping criteria. Although that power is discretionary and

does not “compel” enforcement, the failure of local jurisdictions to

comply with the Act could risk breaking Maryland’s commitments

under the Clean Water Act to reduce nutrient pollution in the Bay.

Gen. 3] 5

If the U.S. Environmental Protection Agency (“EPA”) finds that

Maryland has broken its commitments, EPA could take certain

actions against Maryland, such as subjecting Maryland to increased

federal oversight and reducing the State’s federal funding. Thus,

as a practical matter, MDE might need to take enforcement action

to ensure that it can meet its obligations under the Clean Water Act.

I

Background

A. The History of the Act: The Role of the 2010 Chesapeake

Bay TMDL in Its Enactment

The General Assembly adopted the Act to address an

impending federal mandate that required Maryland and the six

other jurisdictions in the Chesapeake Bay watershed (the “Bay

jurisdictions”) to demonstrate, before December 30, 2012, how

each jurisdiction would reduce its nutrient discharges to the Bay.

2012 Md. Laws, ch. 149, Preamble. That mandate was the product

of the “2010 Chesapeake Bay Total Maximum Daily Load,” or

“Bay TMDL,” a Bay-wide planning document that EPA had issued

pursuant to the federal Clean Water Act and various consent

decrees. See generally Maryland Dep’t of the Env’t v. Anacostia

Riverkeeper, 447 Md. 88, 101-07 (2016). Although much of the

2012 Act is codified in the Land Use Article, it was enacted to

enable Maryland to meet the Clean Water Act requirements set by

EPA under the Bay TMDL, see 2012 Md. Laws, ch. 149, Preamble,

and therefore it must be read in the context of those requirements.

1. Applicable Clean Water Act Requirements

The Clean Water Act seeks to ensure “fishable and

swimmable” waters. Shanty Town Assocs. Ltd. P’ship v. EPA, 843

F.2d 782, 784 (4th Cir. 1988). The federal statute implements that

goal primarily by regulating discharges from point sources, such as

pipes, through a permitting system that controls what the permit-

holder may discharge. See American Farm Bureau Fed’n v. United

States Envtl. Prot. Agency, 792 F.3d 281, 299-300 (3d Cir. 2015).

Point-source dischargers include wastewater treatment plants,

power plants, manufacturing and commercial entities, and

municipal stormwater systems. Point-source permitting, however,

does not address pollution caused by “nonpoint sources” that

discharge pollutants through seepage and run-off, instead of

through a pipe. Examples of nonpoint source discharges include

seepage from septic systems, run-off from stormwater that is not

6 [104 Op. Att’y

collected into a stormwater management system, agricultural run-

off, and air pollution. When a body of water remains impaired by

a particular pollutant despite point-source regulation, the affected

State must also regulate nonpoint source discharges of that

pollutant. Specifically, the State must set a pollution “diet,”

expressed as a “total maximum daily load” (“TMDL”) for the

pollutant, and then decide how to allocate the required reductions

among various point-source and nonpoint source discharges.

A State’s TMDL is subject to EPA’s approval. Failing that

approval, or failing the State’s submission of a proposed TMDL,

EPA itself must issue the TMDL. 33 U.S.C. § 1313(d)(2). Once a

TMDL has been set, the State must implement that TMDL through

a continuing planning process subject to EPA’s approval. 33

U.S.C. § 1313(e). The TMDL must, among other things,

demonstrate “reasonable assurance” that the jurisdiction can meet

the reductions in load and that the body of water can attain its

necessary water quality standard when those reductions are

achieved. Bay TMDL, ES-8; see also Farm Bureau, 792 F.3d at

291-92 (illustrating EPA’s use of “reasonable assurance[s]” in

adopting a TMDL). Although “it is up to the States to choose how

to implement [their] plans,” they “are often left with the difficult

choice of implementing the TMDL in accordance with EPA’s

suggestions, or face losing federal grants if they do not.” Food &

Water Watch v. United States Envtl. Prot. Agency, 5 F. Supp. 3d

62, 77 (D.D.C. 2013) (citing 33 U.S.C. § 1313(e)).1

2. The Bay TMDL

By 2012, the pollution of the Bay by nutrient discharges,

especially nitrogen discharges like sewage, had been known and

studied for decades.2 See, e.g., 2012 Md. Laws, ch. 149, Preamble.

1

The Clean Water Act also includes special provisions for the

Chesapeake Bay: The EPA Administrator, “in coordination with” the

signatories to the Chesapeake Bay Agreement, “shall ensure that

management plans are developed and implementation is begun . . . to

achieve and maintain . . . the nutrient goals of the Chesapeake Bay

Agreement for the quantity of nitrogen and phosphorus entering the

Chesapeake Bay and its watershed.” 33 U.S.C. § 1267(g). Maryland is

a signatory to the Chesapeake Bay Agreement and thus subject to those

requirements. See Chesapeake Bay Watershed Agreement (2014)

(Preamble; Affirmation).

2

See Chesapeake Bay Program Technical Studies: A Synthesis i-I,

United States Environmental Protection Agency (1982) (summarizing

results of studies of nutrient pollution of the Bay). For a history of the

Gen. 3] 7

Those nitrogen discharges from sewage can be reduced by

directing the sewage to an upgraded wastewater treatment plant,

which treats the sewage and then discharges it through a point

source regulated through the Clean Water Act’s permitting system.

Bay TMDL, 4-37. But on-site sewage disposal systems are not

“point sources,” so the seepage of nitrogen from those facilities into

the Bay is not regulated through the permitting system.

Before the Bay TMDL, there was no comprehensive system

for reducing, tracking, and allocating nutrient discharges to the Bay

from nonpoint sources, including septics. Id., ES-3. EPA’s

issuance of the Bay TMDL in December 2010 filled that void by

putting the Bay jurisdictions on a diet to reduce their nitrogen,

phosphorus, and sediment discharges (known as pollutant “loads”)

from all pollution sources, including nonpoint sources like septic

systems. See Anacostia Riverkeeper, 447 Md. at 106-07. The Bay

TMDL allocates shares of the diet among the watershed states and

by major river basin. Bay TMDL, ES-5, ES-7. For all

jurisdictions, the Bay TMDL set a target of 2017 for achieving 60%

of the required reductions and a target of 2025 for 100% of the

reductions. The Bay jurisdictions, collectively, must reduce their

total nitrogen discharges by 25% by 2025. Id., ES-1; see also Farm

Bureau, 792 F.3d at 292 (describing the Bay TMDL). To achieve

that overall goal, the Bay TMDL requires Maryland to reduce

nitrogen discharges by 10.33 million pounds per year in order to

reach a target of 39.09 million pounds. See Maryland’s Phase I

Watershed Implementation Plan for the Chesapeake Bay Total

Maximum Daily Load ES-7 to ES-8 (Dec. 3, 2010) (“Phase I

WIP”).

While preparing the Bay TMDL, EPA had determined

specific load limits for each pollutant and had required each

jurisdiction to create an initial Phase I “Watershed Implementation

Plan,” or “WIP,” to demonstrate the state’s methods for achieving

the required reductions. Id., ES-3, 5; see also Anacostia

Riverkeeper, 447 Md. at 109-10 (explaining the importance of

WIPs to the TMDL process). EPA also set deadlines for the

submission of Phase II WIPs, due in late 2011, and Phase III WIPs,

due in 2017. See Letter from William C. Early, Acting EPA

Bay jurisdictions’ joint efforts, over more than three decades, to address

the pollution of the Bay by nutrients, see, e.g, Rena Steinzor & Shana

Jones, Collaborating to Nowhere: The Imperative of Government

Accountability for Restoring the Chesapeake Bay, 4 Geo. Wash. J. of

Energy & Envtl. L. 51 (2013).

8 [104 Op. Att’y

Regional Administrator, to Hon. L. Preston Bryant, Chair,

Chesapeake Bay Programs’ Principals’ Staff Committee (Nov. 4,

2009) (“Expectations Letter”). In preparing their Phase I WIPs, the

watershed States were to allocate shares of the load limits for each

pollutant among various sectors identified by EPA. The point-

source sectors included wastewater treatment plants and industrial

facilities, and nonpoint sources were categorized into agricultural,

stormwater run-off, septic, and forest sectors. Bay TMDL, ES-8,

ES-9, 4-1, 4-5. Only after the State made allocations among those

sectors could the State model, monitor, and reduce each sector’s

discharges to keep the sector from exceeding its assigned share.

See, e.g., Phase I WIP, ES-2, ES-3, ES-6 (stating that the WIP’s

function is to “identify final target loads to be achieved by various

pollution source sectors” as part of the “accountability framework”

to “ensure the TMDL goals are reached in a reasonable

timeframe”); Anacostia Riverkeeper, 447 Md. at 107-08

(explaining the role of modeling in the implementation of the Bay

TMDL). In essence, discharges from the various sectors would

have to be reduced, and Maryland would have to decide how to

distribute the burden among the sources in each sector.

The Bay jurisdictions would also have to demonstrate that

their plans would work in practice. Bay TMDL, 7-6. EPA

therefore required the jurisdictions to demonstrate “reasonable

assurance” that they could actually achieve the required pollution

reductions. Bay TMDL, 7-1; see also Anacostia Riverkeeper, 447

Md. at 109-10, 127-28 (emphasizing the importance of the

requirement that MDE provide “reasonable assurance” to EPA).

As part of that demonstration, each jurisdiction had to “describe

procedures for estimating additional loads due to growth” and to

plan for “additional pollutant load reductions that are at least

sufficient to offset the growth and development that is anticipated

in the watershed between 2011 and 2025.” Bay TMDL, 7-6. The

Bay jurisdictions were to submit their initial watershed

implementation plans in 2010. Then, in 2011, the jurisdictions

were to begin preparing their Phase II plans for submission. Id., 7-

7. EPA made clear that a jurisdiction’s failure to make satisfactory

progress or to adopt sufficient plans could result in any of

numerous “back-stop” actions by EPA, including a significant

curtailment of the water-pollution powers that EPA had delegated

to the State and a loss of federal funding.3

3

EPA listed the following “back-stop” actions:

[E]xpanding coverage of [point-source] permits

to sources that are currently unregulated,

Gen. 3] 9

To comply with these requirements, therefore, Maryland

would need to demonstrate how it would reduce nitrogen

discharges from each sector of point-source and nonpoint-source

discharges. By 2010, Maryland had long regulated point sources

through its permitting system and had also regulated many

nonpoint source discharge sectors. However, Maryland had never

established an overall mechanism for managing discharges from

the septics sector.

3. The Failure of the First Septics Bill and the Development

of the Tier Approach by the Task Force Created to

Address the Impacts of Major Developments Served by

Septics

Maryland submitted the final draft of its Phase I WIP in

December 2010. The Phase I plans were only required to identify,

“to the extent that it [was] available,” the “specific actions and

controls that will be implemented by 2017.” Expectations Letter

(Enclosure B at 14). In its plan, Maryland projected that septics-

served households in the State would increase by 75,000 by 2020

and would result in increased nitrogen discharges of 1.4 million

pounds per year. Those increased nitrogen discharges from septics

thus would have to be offset by higher reductions in other uses.

Phase I WIP at 3-3 to 3-4. Later, Maryland would have to provide

information about how to achieve those offsets in its Phase II WIP.

MDE began preparing its Phase II WIP in 2011. That year,

legislation was introduced to “[l]imit[] the number of on-site

sewage disposal systems and improv[e] those systems,” with the

goal of “reducing the nitrogen load to the Chesapeake Bay,

focusing development within Priority Funding Areas, and

preserving agricultural and rural land and the character of those

areas.” H.B. 1107, 2011 Leg., Reg. Sess., Preamble. Although the

increasing oversight of state-issued [point-source]

permits, requiring additional pollution reductions

from point sources such as wastewater treatment

plants, increasing federal enforcement and

compliance in the watershed, prohibiting new or

expanded pollution discharges, redirecting EPA

grants, and revising water quality standards to

better protect local and downstream waters.

Id., ES-8; see also Letter from William C. Early, Acting EPA Regional

Administrator, to Hon. L. Preston Bryant, Chair, Chesapeake Bay

Programs’ Principals’ Staff Committee (Dec. 29, 2009) (“Consequences

Letter”).

10 [104 Op. Att’y

bill did not pass, then-Governor O’Malley appointed a 28-member

task force that included representatives from the Maryland Farm

Bureau, the Maryland Association of Counties, the Maryland

Municipal League, environmental organizations, and various

government agencies to reach consensus on legislation to achieve

those goals. Executive Order 01.01.2011.05. The task force was

also to address “the impact of major developments on septic

systems and their effects on nutrient pollution, land preservation,

agri-business, and smart growth.” Id.

In its report, the task force acknowledged EPA’s

“accountability framework” and agreed on a “Comprehensive Plan

Tier Approach” under which “[l]ocal jurisdictions should designate

areas within . . . [their] comprehensive plan[s] into one of four

tiers” and then require “[w]astewater disposal methods, rural

preservation spending, and other criteria [to] vary by land use tier.”

Final Report of the Task Force on Sustainable Growth &

Wastewater Disposal 1, 5 (Dec. 2011). With little dissent, the task

force then outlined four tier classifications based on criteria such

as the availability of public water and sewer and the existence of

areas that were designated or planned for conservation. Id. at 5-7.

As is particularly relevant here, one goal was that major residential

developments would be directed toward areas planned for public

sewer service. Id. The task force submitted its report in December

2011. Meanwhile, Maryland had to prepare its Phase II WIP.

4. EPA’s Instructions for Maryland’s Phase II WIP:

Describe How Maryland Will Either Avoid or Offset Any

Growth in Nonpoint Source Discharges from Septics,

Agriculture, and Development Sources

In February 2012, EPA instructed Maryland further on what

it had to include in its Phase II WIP. See EPA Evaluation of

Maryland’s Trading and Offset Program 3 (Feb. 17, 2012).

According to EPA, by the end of the year, Maryland had to show

more definitively how it would address any increased discharges

caused by growth in nonpoint source sectors, especially with regard

to “septics, agriculture and development.” Id. at 17-19. EPA gave

Maryland three choices: (1) develop a credible offset program for

a sector that would require any growth in that sector to be offset by

reductions from the other sectors; (2) show “quantitatively” why

the sector was not growing; or (3) if the sector was growing, show

Gen. 3] 11

“quantitatively” why it was not contributing new or increased

loads. Id.

Maryland thus faced the following situation at the outset of

the 2012 legislative session: Maryland had to reduce its nitrogen,

phosphorus, and sediment discharges to the Bay by 2025, and

during 2012, Maryland would have to demonstrate to EPA how

each nonpoint source sector would achieve those reductions.

Moreover, that year, in its Phase II WIP, Maryland would have to

show how it would achieve the reductions if any particular sector

grew. Even if no sector grew, Maryland would have to predict land

uses to determine the necessary reductions for each sector and to

track actual reductions for purposes of reporting on the attainment

of milestones. Noncompliance with the TMDL process could

result in loss of federal funding, loss of control over point-source

permitting, regulation of previously unregulated dischargers, and

other negative consequences.

B. The Adoption of the Act in 2012: The Legislative Decision

to Preserve Agricultural Uses by Limiting Residential

Development on Septics to Certain “Tiers” of Land

New septics legislation was introduced in 2012. The

legislation, which eventually passed and became the Act,

“embodie[d] the nearly unanimous recommendations of the Task

Force,” including the tier-mapping mechanism for allocating

growth among different land uses. See 2012 Md. Laws, ch. 149,

Preamble. In the Preamble, the General Assembly expressly

acknowledged Maryland’s obligations under the Bay TMDL. Id.

Explaining that federal law would require the State to give EPA a

detailed “Phase II” plan with “specific actions” for achieving the

required reductions in nitrogen discharges to the Bay, the General

Assembly recognized that the State had to ration the reductions

among various types of users. Id. The General Assembly also

found that development using septics, if allowed to continue at the

current rate and in the same way, would increase the load of

nitrogen added to the State’s waters. Id. That increase would

require Maryland to tighten restrictions on other nitrogen sources,

such as farms, wastewater treatment plants, and stormwater run-off

from existing urban uses, thereby “constraining economic growth

and placing additional burdens on the agricultural community.” Id.

In an effort to avoid those negative results, and to enable

Maryland to provide “reasonable assurance” to EPA that the State

could meet its obligations under the Bay TMDL, the General

12 [104 Op. Att’y

Assembly designed the Act in large part to account for, predict, and

place limits on major residential development, especially

development served by septic systems. The Act sought to achieve

those purposes primarily by establishing four land use tiers (i.e.,

Tiers I, II, III, and IV) and by prohibiting local jurisdictions from

authorizing major residential subdivisions, including major

subdivisions on septics, in certain tiers and under certain

circumstances.4 See LU § 1-508.

Tier I applies to areas “served by public sewerage systems and

mapped [as] locally designated growth areas,” while Tier II

includes areas “planned to be served by public sewerage systems”

and designated for growth by the local jurisdiction. LU § 1-

508(a)(1)-(2). These two tiers are intended to reflect the areas

within the county where major growth is expected to occur and

where such development should therefore be served by public

sewer systems. Your questions pertain more to Tiers III and IV—

two lower-growth areas not planned to be served by public sewer.

We start with Tier IV, the lowest growth area, because it is

somewhat easier to understand than Tier III. In essence, Tier IV

denotes areas that are not planned for public sewer service and that

are either dominated by agricultural lands, forested lands, and other

natural areas, or are designated in one of a number of ways for

preservation or conservation. See Maryland Dep’t of Planning,

Implementation Guidance for The Sustainable Growth and

Agricultural Preservation Act of 2012, at 10 (Aug. 1, 2012) (“MDP

Implementation Guide”). More specifically, Tier IV comprises:

(i) areas planned or zoned by a local

jurisdiction for land, agricultural, or resource

protection, preservation, or conservation;

(ii) areas dominated by agricultural lands,

forest lands, or other natural areas; or

4

There is no single, State-wide definition of major or minor

subdivisions under the Act. Instead, the Act contemplated that local

jurisdictions would adopt their own definitions of major and minor

subdivisions for purposes of the Act and also placed important

limitations on those local definitions. For a local definition adopted

before December 31, 2012, a “minor subdivision” may not exceed 7 new

lots. EN § 9-206(a)(6)(i)(1)(B). If a local jurisdiction did not adopt

definitions of major and minor subdivision applicable to the Act by

December 31, 2012, a “major subdivision” is “five or more new lots . . .

or other divisions of land,” and a “minor subdivision” is “fewer than”

that number. EN § 9-206(a)(5), (6).

Gen. 3] 13

(iii) rural legacy areas, priority preservation

areas, or areas subject to covenants,

restrictions, conditions, or conservation

easements for the benefit of, or held by a State

agency, as defined in § 9-206 of the

Environment Article, or a local jurisdiction

for the purpose of conserving natural

resources or agricultural land.

LU § 1-508(a)(4).

Tier III includes other areas not planned for sewer service but

where the local jurisdiction is planning for growth or for “large lot

development.” MDP Implementation Guide at 10. Tier III also

includes municipal corporations and “existing Rural Villages and

towns” that are not served by public sewer. Id. In other words,

Tier III denotes areas that:

(i) are not planned for sewerage service and

not dominated by agricultural or forest land;

(ii) are not planned or zoned by a local

jurisdiction for land, agricultural, or resource

protection, preservation, or conservation; and

(iii) are one of the following:

1. municipal corporations not served by a

public sewerage system;

2. rural villages as described in § 5-7B-03(f)

of the State Finance and Procurement Article;

3. mapped locally designated growth areas; or

4. areas planned and zoned for large lot and

rural development[.]

LU § 1-508(a)(3). With a few limited exceptions, Tier III areas are

generally the only areas under the Act in which major residential

development on septic systems is allowed to occur. See EN § 9-

206(g)(1) (explaining the type of sewage treatment method

permissible for residential subdivisions in each tier).5

5

In some cases, a specific geographic area may not “fit” neatly into

any of the tiers. MDP Implementation Guide at 12. For example, an

area might be served by public sewer but not within a designated growth

14 [104 Op. Att’y

Although the Act does not expressly require a local

jurisdiction to adopt these tiers, see LU § 1-502 (providing that a

local jurisdiction “may adopt” tiers (emphasis added)), the Act

gives local jurisdictions a significant incentive to do so.

Specifically, a local jurisdiction cannot approve a “residential

major subdivision” other than one served by public sewer in a “Tier

I” area until the jurisdiction has adopted a map that classifies the

land within its borders “in accordance with” the tier-mapping

provisions in Title 1, Subtitle 5 of the Land Use Article. EN § 9-

206(f).6 Put another way, a local jurisdiction that has not adopted

area (and thus not within Tier I as defined by the Act), such as when

public sewer is extended to a non-growth area to relieve that area’s

failing septic systems. See id. The Department of Planning has provided

recommendations to the local jurisdictions about how to best classify

those areas, using designations like Tier IA, IIA, IIIA, and IVA, but has

recognized that such areas might properly be placed in more than one

tier. Id.

6

Although this provision states that a local jurisdiction’s tier map

must be adopted “in accordance with § 5-104 of the Land Use Article,”

EN § 9-206(f) (emphasis added), that appears to be a drafting error.

Section 5-104 does not govern the adoption of a local jurisdiction’s tier

map, so that section cannot possibly be the provision to which the

General Assembly meant to refer. To the contrary, as originally enacted,

the statute cross-referenced a different provision in Article 66B of the

Maryland Code—a provision which is now codified as Title 1, Subtitle

5 of the Land Use Article. See 2012 Md. Laws, ch. 149 (providing that

local jurisdictions had to adopt their growth tiers “in accordance with

§ 1.05 of Article 66B”). While it is not entirely clear why the current

statute refers to § 5-104 instead of Title 1, Subtitle 5, it appears that the

error occurred as part of the process for transferring the provisions of

Article 66B into the new Land Use Article. As originally enacted, the

provisions of the Act governing the adoption of “growth tiers” were

codified in Article 66B, § 1.05. Later during the same legislative

session, the General Assembly reorganized Article 66B into the newly

created Land Use Article. See 2012 Md. Laws, ch. 426. When the

provisions that had been in § 1.05 of Article 66B were recodified as Title

1, Subtitle 5, see LU §§ 1-501 to 1-509, the Legislature did not update

the cross-reference in EN § 9-206(f), leaving the obsolete reference to

Article 66B. Our Office identified that problem, see Letter of Attorney

General Douglas F. Gansler to Governor Martin O’Malley (April 27,

2012), and as part of the next year’s corrective bill, the Legislature

attempted to update the cross-reference. See 2013 Md. Laws, ch. 43.

However, in doing so, the General Assembly accidentally cross-

referenced the wrong provision, i.e., LU § 5-104, rather than Title 1,

Subtitle 5. (In fact, what is now LU § 1-504 had not even been located

in § 1.05 of Article 66B at all; it was codified in § 1.06 instead.) The

most likely explanation for that mistake is that the drafters copied an

Gen. 3] 15

growth tiers into its comprehensive plan “in accordance with” the

Land Use Article can only authorize minor residential subdivisions

on septics (as well as major or minor subdivisions served by public

sewer in a Tier I area). EN § 9-206(f)(2).7

Separate requirements apply to jurisdictions that do adopt

tiers “in accordance with” the Land Use Article. Those

jurisdictions may approve major subdivisions in more areas, but

they still may only approve a residential subdivision in a “tier”

eligible for that use. See EN § 9-206(g). For example, residential

subdivisions in Tier I are not eligible for septic; they must be served

by public sewer. EN § 9-206(g)(1)(i). Similarly, in Tier II, only

minor residential subdivisions on septics may be approved; major

subdivisions must be served by public sewer. EN § 9-206(g)(1)(ii).

In Tier III, a local jurisdiction may approve a major subdivision

only if the local planning board has recommended approval after a

public hearing and a review of various factors, including “potential

environmental issues.” LU § 5-104. Finally, for Tier IV areas, a

local jurisdiction may not authorize a major subdivision, regardless

of the method of sewerage service, unless MDP has certified that

the project qualifies for an exception based on the density of the

developments in the jurisdiction. EN § 9-206(g)(1)(iii), (h).

C. The Tier Mapping Process

The Act also addressed the mechanics of tier-mapping. The

Act generally did not require counties to re-inventory the areas in

their respective jurisdictions. Instead, in an uncodified section, the

General Assembly stated its intent that the counties could do their

tier-mapping from information already included in their

comprehensive plans and zoning ordinances:

It is the intent of the General Assembly that

local jurisdictions should use their existing

comprehensive plan and zoning ordinance, if

desired, to create the tiers as provided in

Article 66B, § 1.05 of the Code and Title 1,

existing cross-reference in a nearby subsection that had correctly referred

to LU § 5-104. See EN § 9-206(g)(1)(iv). In any event, whatever the

reason for the error, we read EN § 9-206(f) as requiring a local

jurisdiction’s tier maps to be adopted “in accordance with” Title 1,

Subtitle 5 of the Land Use Article. See also footnote 9, infra.

7

Under LU § 1-506, a county may choose not to adopt Tier II so long

as it documents its reasons for that choice.

16 [104 Op. Att’y

Subtitle 5 of the Land Use Article, as enacted

by this Act.

2012 Md. Laws, ch. 149, § 4(a). As explained by MDP,

“[m]apping the Growth Tiers . . . is intended to be a straight-

forward exercise based on existing local government plans and

goals for growth and land preservation,” such that “most of the Tier

mapping will be a reflection of existing zoning, comprehensive

plans and sewer service.” MDP Implementation Guide at 1.

Accordingly, many of the tier definitions are couched in the land-

planning vocabulary that local governments were already using in

their zoning maps, comprehensive plans, and other similar

planning documents. For example, areas to be mapped Tier IV

include rural legacy areas and priority preservation areas, LU § 1-

508(a)(4)(iii), both of which are defined by statute.8

When preparing a tier map, a local jurisdiction “may submit

the [jurisdiction’s] proposed tiers and any relevant information to

[MDP] for . . . technical assistance, review, and comment.” LU

§ 1-503. After adopting growth tiers, the local jurisdiction must

provide to MDP “information necessary to demonstrate the precise

location of the tiers,” including, as necessary, maps and relevant

water and sewer plans. LU § 1-504. MDP then “may comment on

the growth tiers.” LU § 1-505. If MDP chooses to comment, the

local legislative body or planning board must “review the [adopted]

mapped growth tiers . . . in light of th[ose] comments” and “hold at

least one public hearing on the comments.” LU § 1-507(a)-(b).

Finally, the Act requires jurisdictions that adopt tiers to incorporate

them into their comprehensive plans. LU § 1-509.

D. EPA’s Approval of Maryland’s Phase II WIP “In Reliance”

on the Act

As the General Assembly had intended, the State presented

the Act to EPA as evidence of “specific actions that, once

implemented, will achieve the reductions necessary to meet the

nutrient and sediment limits by 2025.” See 2012 Md. Laws, ch.

149, Preamble; see also EPA Evaluation of Maryland’s Final Phase

I and 2012-2013 Milestones; Phase II WIP at 48, 81. EPA

approved Maryland’s Phase II Plan “in reliance” on Maryland’s

representations. Anacostia Riverkeeper, 447 Md. at 127-28. In

fact, in its evaluation of Maryland’s plan, EPA specifically stated

that “achievement of projected pollutant load reductions will be

Md. Code Ann., Nat. Res. (“NR”) § 5-9A-02(i); Md. Code Ann.,

8

Agric. (“AG”) § 2-518; Md. Code Ann., State Fin. & Proc. (“SFP”) § 5-

408.

Gen. 3] 17

supported by key state legislation passed in the 2012 session,”

including the Act. EPA Evaluation of Maryland’s Final Phase II

Watershed Implementation Plan, at 1 (May 30, 2012) (“EPA

Evaluation of Phase II WIP”); see also id. at 3 (noting that

Maryland had made three “[k]ey improvements since draft Phase

II WIP and final 2012-2013 milestone submission”). Specifically,

EPA noted that Maryland had enacted a “requirement, beginning

December 31, 2012, for local jurisdictions to adopt a four-tiered

system to guide growth on central sewer and septic systems, before

a jurisdiction may approve a major residential subdivision served

by onsite sewage disposal systems, community sewerage systems,

or shared systems.” Id. EPA then stated: “EPA will maintain

‘ongoing oversight’ for all sectors in Maryland to ensure that

commitments are implemented.” Id.

E. Cecil County’s Growth Tiers

Your letter explains that your questions were prompted by the

tier designations adopted by Cecil County. In December 2012,

Cecil County adopted growth tiers. MDP commented on those tiers

pursuant to LU § 1-505 and found that the tier designations

conflicted with the statutory criteria in multiple ways. See letter

from Richard Josephson, Director of Planning Services, MDP, to

Hon. Tari Moore, County Executive of Cecil County (Dec. 27,

2012). Among other things, MDP found that the county had not

classified priority preservation areas, rural legacy areas, or areas

planned or zoned for agricultural or resource protection as Tier IV

land, instead designating those areas as Tier III. Id. Those

designations, MDP explained, conflicted with the statutory criteria

providing that such areas are supposed to be in Tier IV. LU § 1-

508(a)(4)(iii). Cecil County held a public hearing on the

Department’s comments, as required under LU § 1-507, but did not

modify or amend its adopted tier designations. In December 2016,

the County incorporated its growth tier map into its comprehensive

plan.

II

Analysis

You pose two questions about the Act. First, you ask whether

a local jurisdiction has the authority to approve a major residential

subdivision on septics if the local jurisdiction has adopted a tier

map that does not comply with the Act’s criteria. Second, you ask

whether the State is “compel[led]” to enforce a local jurisdiction’s

18 [104 Op. Att’y

compliance with the Act. We will address each question in turn.

However, before doing so, we will set forth some general principles

about the respective powers of the State of Maryland and its

political subdivisions.

Maryland’s counties and municipalities “are but local

divisions of the state.” Rockville v. Randolph, 267 Md. 56, 62

(1972). They therefore possess only the powers granted to them by

the State, either through the Maryland Constitution or enactments

of the General Assembly. See Kent Island Def. League, LLC v.

Queen Anne’s County Bd. of Elections, 145 Md. App. 684, 688-89

(2002). As a corollary to that principle, when a local jurisdiction

exercises a power delegated to it by the General Assembly, the

local jurisdiction’s power is “subject to the terms upon which it is

delegated.” Hewitt v. County Comm’rs of Baltimore County, 220

Md. 48, 63 (1959); see also West Montgomery County Citizens

Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 309

Md. 183, 198-99 (1987) (invalidating county’s exercise of power

“in any manner other than that specifically authorized” by the

enabling statute). Thus, a local enactment that exceeds the scope

of the delegation or that violates the conditions on that delegation

is invalid. See, e.g., West Montgomery County Citizens Ass’n, 309

Md. at 198-99.

In the area of land use, the State has delegated various powers

to local jurisdictions, but those powers are subject to many State-

law requirements. See, e.g., LU §§ 3-101, 3-102 through 3-113

(requiring counties to adopt comprehensive plans with certain

plans and elements; requiring counties to specify how the plans will

protect certain uses); LU § 1-415 (requiring home-rule counties to

implement the statutorily required visions through their

comprehensive plans); see also LU § 1-203 (providing for

automatic repeal of commissioner-county ordinances to the extent

that they are inconsistent with Division I of the Land Use Article);

Maryland-Nat’l Capital Park & Planning Comm’n v. Greater

Baden-Aquasco Citizens Ass’n, 412 Md. 73, 87-89 (2009)

(explaining that State law imposes limits on local governments’

land use powers); Mayor & Council of Rockville v. Rylyns Enters.,

372 Md. 514, 574 n.31, 575 (2001) (explaining that local

governments “wield only such [land use] powers as are granted to

them by the Legislature” and subject to the limitations imposed by

State law); cf. Md. Code Ann., Local Gov’t § 10-324(c) (providing

that the land use powers that the Express Powers Act grants to

charter and code home rule counties do not preempt the State’s

regulatory authority).

Gen. 3] 19

In addition to the limits imposed by the Land Use Article,

local jurisdictions’ land-use powers are also circumscribed by the

State’s environmental laws. Particularly relevant here are the

State’s laws regarding the “waters of the State” and sewerage

systems, as set forth in Title 9 of the Environment Article. Under

those laws, the Secretary “[h]as supervision and control over the

sanitary and physical condition of the waters of this State to protect

public health and comfort,” and “[s]hall investigate . . . [a]ll points

of sewage discharge.” EN § 9-252(b)(1), (2); see also Department

of Env’t v. Showell, 316 Md. 259, 269 (1989) (describing the

Secretary’s “broad powers to regulate sanitary facilities and

pollution control measures”). As explained below, MDE’s powers

in that regard include such matters as approving local water and

sewer plans and sewerage facilities, including septic systems. See

Part II.B, infra. Although the General Assembly has delegated to

local governments significant authority in the land use context, that

local authority does not override the State’s water and sewer

powers. Indeed, the Court of Appeals has expressly rejected the

proposition that “regulation of access to sewer service is purely a

matter for local control” or would “usurp[] . . . the power of local

governmental entities to control nonpoint source pollution and land

use.” Showell, 316 Md. at 272.

A. Authority to Approve Major Residential Subdivisions Not

Served by Public Sewer: May a Local Jurisdiction that

Adopts a Noncompliant Tier Map Approve Those Projects?

With those legal principles in mind, we turn to the Act, and,

specifically, § 9-206(f) of the Environment Article, to determine

whether a local jurisdiction may approve a major residential

subdivision on septics where the jurisdiction has adopted a tier map

that does not comply with the Act’s requirements. We begin with

the “normal, plain” meaning of the words in the statute and read

those words in context, keeping in mind the legislative purpose of

the enactment. Lockshin v. Semsker, 412 Md. 257, 275 (2010).

Under the plain language of the statute, a local jurisdiction

“[m]ay not authorize a residential major subdivision served by on-

site sewage disposal systems, community sewerage systems, or

shared systems until the local jurisdiction adopts the growth tiers

in accordance with § 5-104 of the Land Use Article.” EN § 9-

206(f)(1). As explained in footnote 6, supra, the reference to § 5-

104 of the Land Use Article in EN § 9-206(f) appears to be a

drafting error, and the General Assembly instead meant to refer to

Title 1, Subtitle 5 of the Land Use Article, where the Act’s tier-

20 [104 Op. Att’y

mapping requirements are actually codified. In any event, EN § 9-

206(f)(1) uses the term “growth tiers,” which are defined to mean

“the tiers adopted by a local jurisdiction in accordance with Title 1,

Subtitle 5 of the Land Use Article.” EN § 9-206(a)(3). Thus, a

local jurisdiction has not adopted “growth tiers” within the

meaning of the Act until it has adopted them “in accordance with

Title 1, Subtitle 5 of the Land Use Article,” EN § 9-206(a)(3), and

a local jurisdiction may not authorize a major subdivision on

septics (or any other major subdivision, except for one served by

public sewer in a Tier I area) until the jurisdiction adopts such

“growth tiers.” EN § 9-206(f)(1).9

That means, at the very least, a local jurisdiction may not

approve a major residential subdivision served by septics if the

jurisdiction has declined to adopt a tier map at all. Such a

jurisdiction would instead be limited to approving minor

subdivisions served by septics or either major or minor

subdivisions served by public sewer in a Tier I area. See EN § 9-

206(f)(2). Your question, however, is whether the statute imposes

those same limits on a local jurisdiction that has adopted a map, but

where the map does not comply with the substantive criteria for

tier-mapping set forth in the Land Use Article. In our opinion, the

answer is generally “yes,” although that might depend, in some

cases, on the type and degree of noncompliance with the Act.

Again, we begin with the words of the statute. As explained

above, EN § 9-206(f)(1) provides, in essence, that a local

jurisdiction’s authority to authorize a major subdivision on septics

is conditioned on that local jurisdiction’s adoption of growth tiers

“in accordance with” Title 1, Subtitle 5 of the Land Use Article.

To be “in accordance with” statutory provisions typically requires

one to comply with those provisions. See, e.g., Greater Baden-

Aquasco Citizens Ass’n, 412 Md. at 107-09 (finding that, when a

master plan that governed a land use action had to be read “in

accordance with” a general plan provision, the land use authority

had to apply the general plan provision); Hewitt, 220 Md. at 63-64

(explaining that, under a statute requiring that zoning regulations

be “in accordance with” a locality’s comprehensive plan, a

“departure” from the comprehensive plan exceeded the locality’s

authority); Aberle v. Faribault Fire Dep’t Relief Ass’n, 230 Minn.

353, 360 (1950) (finding that the words “in accordance with” tend

to require “compliance”); see also Bryan A. Garner, A Dictionary

9

If there were any doubt about that, the Legislature also included

uncodified language in a related enactment confirming that local

jurisdictions must “comply with Title 1, Subtitle 5 of the Land Use

Article when adopting growth tiers.” 2013 Md. Laws, ch. 521, § 3(d).

Gen. 3] 21

of Modern Legal Usage 14 (3d ed. 2011) (explaining that “to be in

accordance is to be in conformity or compliance”). Applying that

ordinary meaning here, given that a local jurisdiction’s growth tiers

must be adopted “in accordance with” Title 1, Subtitle 5 of the

Land Use Article, and given that those provisions establish the

criteria for mapping the tiers, see LU § 1-508, the plain language

of the statute suggests that a locality must adopt its tier map in

compliance with those criteria.10

Thus, under EN § 9-206(f), it appears that the General

Assembly has prohibited a local jurisdiction from authorizing any

major subdivisions, except for those served by public sewer in a

Tier I area, until the locality has adopted growth tiers that comply

with the Act’s requirements. Put another way, the State has

conditioned a local jurisdiction’s authority to approve major

residential subdivisions served by septics on that local

jurisdiction’s adoption of growth tiers, and has conditioned the

adoption of growth tiers on compliance with the criteria. Growth

tiers that do not comply with those criteria do not meet the

necessary conditions for a local jurisdiction to approve major

residential subdivisions outside of Tier I areas.

We recognize there might be an argument that EN § 9-206(f)

merely prohibits a local jurisdiction from authorizing major

subdivisions on septics in those areas that have been mis-mapped,

10

Although in some cases the phrase “in accordance with” might be

read to mean “under” and thus perhaps not to require compliance, see,

e.g., Straus v. Foxworth, 231 U.S. 162, 169 (1913), we believe that

applying such an interpretation here would conflict with the Act’s

purposes. After all, the Act mandates that the “[t]he growth tiers adopted

by a local jurisdiction shall meet the . . . criteria,” LU § 1-508(a)

(emphasis added), and if local jurisdictions could simply ignore those

criteria in adopting their tiers, there would be no point in mandating the

criteria in the first place. Moreover, our interpretation finds support in

the Act’s legislative history. During floor debates on the Act, the bill’s

floor leader (and one of its sponsors) explained that the bill would require

local jurisdictions to adopt “growth tiers in accordance with specified

requirements,” suggesting that compliance with the Act’s requirements

themselves would be necessary, not just that the tiers had to be adopted

“under” the Act. Senate Proceedings No. 47 (March 20, 2012)

(statement of Sen. Pinsky) (emphasis added); see also 87 Opinions of the

Attorney General 106, 113 n.6 (2002) (“Statements of a legislator acting

as floor manager [or as] co-sponsor of the bill . . . while not conclusive

on legislative intent, are generally accorded some weight by the courts

in determining the meaning of a statute.”).

22 [104 Op. Att’y

and does not put the jurisdiction on the same footing as a

jurisdiction that has failed to adopt a tier map at all. However, the

statutory language does not support that distinction. Instead, the

statute provides that a local jurisdiction cannot approve major

subdivisions other than those served by public sewer in a Tier I area

unless and “until” the locality adopts, into its comprehensive plan,

growth tiers that are “in accordance with” the criteria in the Land

Use Article. A map that is not “in accordance with” those criteria,

by definition, cannot satisfy the condition that the Act places on a

local jurisdiction’s authority to approve most types of major

subdivisions, regardless of whether the subdivision will be built in

a compliant or noncompliant area. That interpretation also furthers

the core purposes of the Act, namely, to allocate the burden of

reducing nutrient pollution so as to preserve agricultural and other

existing uses and to enable the State to identify, in the State’s

upcoming WIP, detailed strategies for reducing that pollution. See

2012 Md. Laws, ch. 149, Preamble. A local jurisdiction’s adoption

of noncompliant tiers, even if a subdivision has not yet been

approved in a noncompliant area, could cast doubt on whether

Maryland has given the requisite “reasonable assurance” to EPA

that it can meet its obligations under the Bay TMDL.

Nonetheless, there may be circumstances under which a local

jurisdiction’s mapping errors are so minor that the locality should

be deemed to have substantially complied with the Act’s criteria.

Substantial compliance is generally sufficient to satisfy a statutory

requirement when it “has fully attained the objective of the statute

as though there had been complete and literal compliance,” that is,

where “there has been such compliance with the essential

requirements of the statutory provision as may be sufficient for the

accomplishment of its purpose.” 64 Opinions of the Attorney

General 20, 24-25 (1979) (quoting Houman v. Mayor & Council of

Borough of Pompton Lakes, 155 N.J. Super. 129, 169-70 (Law.

Div. 1977)). Thus, substantial compliance might be achieved here

where mis-mapping does not prevent the tiers from serving the

Act’s purposes.11 But, to be clear, it seems highly unlikely that a

11

Given that comprehensive plans are to be “comprehensive”—that

is, they are to be integrated and long-range planning documents as

distinct from piecemeal zoning—and given that tier mapping is to be

done in comprehensive plans, we are not suggesting that a local

jurisdiction could easily show that its map is in substantial compliance

despite the mis-mapping of a particular area. See, e.g., LU § 3-110 (plans

are to “serve as a guide for the development and economic and social

well-being of the local jurisdiction”); Coffey v. Maryland-Nat’l Capital

Park & Planning Comm’n, 293 Md. 24, 31 (1982) (cautioning that the

Gen. 3] 23

local jurisdiction could substantially comply with the statute by

authorizing a subdivision in a mis-tiered area when the subdivision

would not be permitted if the area had been placed in the correct

tier.

Whether a particular tier map meets the Act’s criteria in a

particular instance may also depend in part on the extent to which

the criteria allow flexibility as to how they may be implemented.

Some criteria do not give the local jurisdictions any flexibility as

to the tier in which particular areas should be located. One such

example is the criterion that requires priority preservation areas and

rural legacy areas, both of which are defined by State law and

certified by State agencies, to be mapped as Tier IV land.12 See LU

§ 1-508(a)(4)(iii). Other criteria do not seem to allow for much, if

any, leeway for a different reason; they rely on definitions that local

jurisdictions must apply under other laws when creating various

statutorily mandated plans. For example, areas that are “planned

to be served by public sewerage systems,” LU § 1-508(a)(2), are

designated by the jurisdiction’s water and sewer plans, see EN § 9-

505, while “areas planned or zoned . . . for land, agricultural, or

resource protection, preservation, or conservation,” LU § 1-

508(a)(4)(i), are presumably designated in the jurisdiction’s

comprehensive plans or zoning regulations.13 The Legislature’s

intent for those criteria, as explained in an uncodified section of the

Act, was apparently that local jurisdictions would use their other

plans to make their tier maps. See 2012 Md. Laws, ch. 149, § 4(a).

cumulative effect of not requiring subdivision plans to comport with

planning documents “can be illustrated by comparison to the putting of

water in a teacup drop by drop. After a period of time there comes the

drop which will cause the cup to overflow”).

12

A “Priority Preservation Area” is an area certified as such by the

Department of Agriculture and the Department of Planning based on

certain agricultural or forestry attributes. See AG § 2-518; SFP § 5-408.

A “Rural Legacy Area” is an area designated as such under the Rural

Legacy Program as an area “rich in a multiple of agricultural, forestry,

natural, and cultural resources.” NR § 5-9A-02(i).

13

See, e.g., LU §§ 3-201, 3-203 (addressing the preparation of

comprehensive plans), 4-202 (addressing zoning regulations “in

accordance with the plan”). Comprehensive plans must contain elements

and visions responsive to the State’s environmental and natural resource

laws. See LU §§ 3-102 through 3-113.

24 [104 Op. Att’y

However, the Act contains other criteria that seem to allow

local jurisdictions some interpretive leeway in implementing the

Act. For example, LU § 1-508(a)(3) requires the inclusion in Tier

III of areas not planned for sewer service that are “not dominated

by” either forest land or agricultural land. Because the phrase “not

dominated by” does not lend itself to any one specific meaning, this

criterion appears to allow local jurisdictions at least some

flexibility in determining which areas fit within that category and

thus at least some flexibility in mapping tiers that are “in

accordance with” that criterion. See MDP Implementation Guide

at 13 (explaining that “[t]here are a number of reasonable

approaches to delineating areas that . . . are dominated by

agricultural and forest lands or other natural areas” and

recommending a few potential approaches for how to apply that

criterion); see also id. at 12 (explaining that there are some

geographic areas that may not clearly “fit” within any particular

tier and that some of those areas “can be designated as any Tier on

the Tier map”).

Still, the extent and nature of a local jurisdiction’s leeway

regarding even those generally worded criteria may be

circumscribed by two interrelated considerations. First, as noted

above, many of those criteria are couched in terms that the State or

local governments use in other contexts, so a local jurisdiction’s

departure from that usage solely for purposes of the Act might be

subject to challenge as an abuse of discretion.14 Second, we are to

read the Act in light of its purposes. See, e.g., Merchant v. State,

448 Md. 75, 95 (2016) (explaining that a statute must be read

“within the context of the statutory scheme to which it belongs,

considering the purpose, aim, or policy of the Legislature in

enacting the statute” (citation and internal quotation marks

omitted)). The Act is a State-wide statute, with State-wide goals,

such that the effect of a local jurisdiction’s noncompliance is not

limited solely to the land within the jurisdiction’s borders. One

goal of the tier mechanism, as reflected in the Act’s Preamble, is to

enable Maryland to provide reasonable assurance to EPA that the

14

For example, jurisdictions with areas within the Chesapeake and

Atlantic Coastal Bays Critical Area might already have adopted an

approach for determining whether an area is “dominated by forest” or

agriculture. That is because regulations promulgated by the Critical

Areas Commission define “limited development” areas for purposes of

the State’s critical area laws, in part, based on whether the areas are

“dominated by agriculture, wetland, forest, barren land, surface water, or

open space.” COMAR 27.01.02.04; see also 73 Opinions of the Attorney

General 57, 62-63 (1988) (addressing the extent of local jurisdictions’

authority regarding the program criteria developed by the Commission).

Gen. 3] 25

State can forecast, allocate, and reduce nonpoint source pollution

in the Bay. But that goal could be undermined if the Act were

construed to give each local jurisdiction unlimited discretion to

construe and apply the tier criteria in widely varying ways. In sum,

with limited exceptions, a local jurisdiction that has failed to map

its land “in accordance with” the tier-mapping criteria in Title 1,

Subtitle 5 of the Land Use Article will lack the authority to approve

major residential subdivisions on septics, because it will not have

met the conditions that State law places on that authority.

B. Must the State “Enforce” the Tier Definitions?

You also ask whether any law “compel[s]” the State to

“enforce” violations of the Act. We are not aware of any law that

compels the State to enforce the Act or its criteria in the sense of

requiring the State to bring an enforcement action against a local

jurisdiction for mis-mapping its land. However, that does not mean

that the State lacks any means to ensure compliance with the Act’s

requirements. Instead, in our view, there are at least two types of

mechanisms by which the State may be able to enforce the Act.15

First, even before passage of the Act, MDE had authority over

certain aspects of the planning process for sewerage systems,

including septic systems. More specifically, MDE had the power

to approve county water and sewer plans, to sign off on final

subdivision plats for residential developments, and to approve

permits for the installation of individual sewerage systems. The

Act did not take away any of that authority. To the contrary, the

General Assembly sought to use existing “planning processes such

as . . . water and sewer plan[s], and subdivision plan approval” to

accomplish its purpose of “[p]lanning for growth served by on-site

sewage disposal systems and shared systems.” 2012 Md. Laws, ch.

149, Preamble. In our opinion, when MDE, or its designee, is

performing the functions assigned to it as part of these processes,

the agency must at least consider a local jurisdiction’s compliance

with the Act and, in that sense, “enforce” it to some degree.

Second, MDE has discretionary authority to enforce certain

provisions of the Environment Article, such as the provision in EN

§ 9-206(f) that prohibits a local jurisdiction from approving major

15

We do not mean to foreclose the possibility that there might be

other methods that are not discussed in this Opinion through which the

State could, in effect, enforce the Act.

26 [104 Op. Att’y

subdivisions other than those served by public sewer in a Tier I area

until the locality has adopted a tier map in accordance with the Act.

Although the statute does not expressly “compel” the State to take

enforcement action against a noncompliant local jurisdiction, MDE

may need to take action under certain circumstances to ensure that

the State complies with its own obligations under the Clean Water

Act to implement the Bay TMDL.

1. MDE Must Consider Compliance with the Act When

Exercising Its Authority over Sewerage Matters

The first way in which MDE can take steps to ensure

compliance with the Act is through its powers to review and

approve certain plans, plats, and permits that relate to sewerage.

Three such powers are relevant here. First, MDE is charged with

approving subdivision plats that developers must submit before

constructing residential subdivisions. See EN § 9-512(d); COMAR

26.04.03.02I; COMAR 26.04.03.02K. Second, MDE is charged

with approving applications for sewage disposal permits that lot

owners or developers must have before installing any sewerage

system, including septic systems. See EN §§ 9-204(h), 9-

252(b)(4); see also COMAR 26.04.02. Third, MDE is charged

with approving county water and sewer plans. See EN § 9-503.

a. MDE’s Approval of Subdivision Plats

We first consider whether MDE can ensure compliance with

the Act through its authority to approve subdivision plats. MDE

has long had a role with respect to subdivision plats for residential

development. Although the principal power to approve subdivision

plats lies with each local jurisdiction’s planning commission (or

similar local entity), a person may not sell or build on land unless

a plat has been submitted to and approved by the Secretary of the

Environment or the Secretary’s designee. See EN §§ 9-206(j), 9-

512; see also COMAR 26.04.03.02I (“Lots may not be sold for

purposes of construction or construction begun in any subdivision

without the approval” of the Secretary or his designee); COMAR

26.04.03.02K (“A subdivision plat may not be recorded in the land

record offices of this State unless it bears the signature of the

Secretary or the Secretary’s designee.”). MDE typically delegates

Gen. 3] 27

this approval authority to the local health officer in each county,

but the ultimate authority over the process remains with MDE.16

Under that scheme, MDE or its designee may not approve a

subdivision plat unless the proposed sewerage system conforms to

the applicable county’s water and sewer plan and will adequately

serve the development. EN § 9-512(d). Moreover, the Act added

a requirement that applies specifically to plats for proposed major

subdivisions in Tier III or Tier IV areas. EN § 9-206(j). Under that

new requirement, a platted lot for a major subdivision in a Tier III

or Tier IV area may not be developed or sold unless “there [has]

been submitted to [MDE] . . . [d]ocumentation by the local

jurisdiction that a major subdivision on-site sewage disposal

system, a community sewerage system, or a shared facility is in a:

(i) Tier III area as adopted by the local jurisdiction” or (ii) a Tier

IV area that is exempt from the general prohibition on major

residential subdivisions in such areas. EN § 9-206(j)(3).

In our opinion, the Act’s addition of the “documentation”

requirement makes clear that the General Assembly intended MDE

to use its power over the subdivision approval process to enforce

certain aspects of the Act. Although the statute does not say

explicitly that lack of sufficient documentation under § 9-206(j)(3)

is a reason for MDE to deny approval of a subdivision plat, the

provision would make little sense if MDE could simply disregard

noncompliance with the requirement when reviewing plat

applications. After all, the General Assembly was aware of MDE’s

existing authority over subdivision plats, and presumably intended

the documentation provision to work in conjunction with that

16

Local health officers, despite their name, are State officials, and the

Secretary’s designation of a county health officer to perform these

functions is the delegation of a State function. See Sugarloaf Citizens

Ass’n v. Frederick County Bd. of Appeals, 227 Md. App. 536, 549 (2016)

(“The decision of the local health officer on a septic system [proposed in

a site plan] is not a matter of county authority, but State-delegated

authority.”); see also id. (“[S]eptic system decisions are matters of state

law and regulations.” (emphasis in original)). For purposes of this

analysis, then, it does not matter whether the applications are reviewed

by MDE or the Secretary’s designee. In any event, county health officers

presumably lack the authority to take actions not permitted by State law.

See, e.g., Perdue Farms Inc. v. Hadder, 109 Md. App. 582, 590 (1996)

(“We believe that the [local] Board’s authority to impose the condition

complained of is preempted by state law, because the Board’s conditions

would prohibit [nitrogen] spraying in situations in which the State wants

to encourage it.”).

28 [104 Op. Att’y

authority. See 2012 Md. Laws, ch. 149, Preamble (explaining that

the Legislature intended to use “established planning processes” to

achieve the Act’s purposes). Indeed, the legislative history

confirms that the Legislature intended MDE to use the

documentation requirement to enforce the Act to at least some

degree. As explained by the sponsor of the floor amendments that

added the documentation provision, “MDE or MDE’s designee will

check on final subdivision plat approval that a major subdivision

on septics is in the correct growth tier,” and MDE “will not sign off

on final plats without that factual check.” Senate Proceedings No.

50, 2012 Leg., Reg. Sess. (March 23, 2012, Session No. 1)

(statement of Sen. Middleton); see also Hearing Before the House

Envtl. Affairs Comm. on S.B. 236, 2012 Leg., Reg. Sess. (April 4,

2012) (testimony of Joe Bryce, the Governor’s Chief Legislative

Officer) (“[T]here is a provision [in the bill] . . . that adds to

[MDE’s] existing authority in approving these developments to

allow [MDE] to make sure that the major subdivision that’s

submitted is in fact in the local jurisdiction’s Tier III area and not

in a Tier IV [area], and if it is not in a Tier III area then they would

have the ability to not approve [the subdivision] . . . .”).

There remains a question, however, about the extent of

MDE’s power to enforce the Act through the subdivision approval

process. Unquestionably, under the documentation provision,

MDE or its designee may not approve a plat proposing a major

residential subdivision in a Tier III or Tier IV area that is ineligible

for the subdivision according to the local jurisdiction’s own tier

map. However, it is not as clear whether MDE must deny an

application for a subdivision in an area that the locality has mis-

mapped as Tier III instead of Tier IV—that is, when the project, on

its face, is in a tier that the local jurisdiction has mapped as eligible

for it, but the map violates the Act. Given that the statute requires

“documentation” that the proposed subdivision is in a “Tier III area

as adopted by the local jurisdiction,” EN § 9-206(j)(3) (emphasis

added), the statute could be read to authorize MDE only to examine

the locality’s tier map “as adopted,” and not consider whether the

area had been properly categorized as Tier III.

But we must read the provision in light of the General

Assembly’s “purpose, the ends to be accomplished, [and] the evils

to be remedied by” the Act. Lockshin, 412 Md. at 274. Viewed

through that lens, the Act is best read to authorize MDE to decline

to approve a plat for a major subdivision where the local

jurisdiction’s tier map conflicts with the Act’s criteria. The

Legislature’s purposes in adopting the tier mechanism were to help

predict growth in septics discharges, impose limits on development

Gen. 3] 29

using septics so as to preserve agriculture and protect the Bay, and

provide “reasonable assurance” to EPA that the State can fulfill its

obligations under the Bay TMDL. Given those purposes, we think

it unlikely the Legislature intended to immunize a local

jurisdiction’s blatant failure to comply with the Act’s tier-mapping

criteria from any meaningful State review or to allow a local

jurisdiction to undermine the State’s ability to achieve its goals

under the Clean Water Act. Instead, in our view, a local

jurisdiction that has mapped a Tier IV area as Tier III has not

validly “adopted” a tier map in the first place, see Part II.A, supra,

and we do not believe the General Assembly could have intended

such a tier map to suffice as sufficient “documentation” under EN

§ 9-206(j)(3) when the map violates State law and is therefore

invalid. See, e.g., Hewitt, 220 Md. at 63 (explaining that a local

power delegated by the Legislature is “subject to the terms upon

which it is delegated”); Worton Creek Marina, LLC v. Claggett,

381 Md. 499, 512 (2004) (voiding a local ordinance that was “not

in conformity” with State law); West Montgomery County Citizens

Ass’n, 309 Md. at 198-99 (invalidating county’s exercise of power

“in any manner other than that specifically authorized” by State

law). Thus, we conclude that the documentation provision permits

MDE, or its designee, to consider whether the locality has correctly

applied the Act’s tier-mapping criteria.17

Our reading of the documentation provision is reinforced by

the interpretation that both MDP and MDE gave to the Act soon

after its passage. See, e.g., Baltimore Gas & Elec. Co. v. Pub. Serv.

Comm’n of Md., 305 Md. 145, 161 (1986) (explaining that the

contemporaneous interpretation of a statute soon after its

enactment by an agency tasked with its implementation is entitled

to at least some weight in construing the statute). For example, the

Secretaries of both departments informed Cecil County in

September of 2013 that “appropriate steps to ensure compliance

17

The General Assembly also did not alter MDE’s broad powers to

curb water pollution, to meet the nutrient pollution goals of the

Chesapeake Bay agreement, and to cooperate with other agencies. See,

e.g., EN §§ 9-302(b), 9-319. We read the documentation requirement in

the context of the statutory scheme of which MDE’s subdivision

approval and water pollution prevention duties are a part. See, e.g.,

Lockshin, 412 Md. 274-75. In light of that statutory scheme, the

documentation requirement should be read to allow MDE to meet its

obligations under the Clean Water Act. See Anacostia Riverkeeper, 447

Md. at 127-28 (explaining that EPA approved Maryland’s plans “in

reliance on” its representations (internal quotation marks and emphasis

omitted)).

30 [104 Op. Att’y

with State law” would include, “if necessary, disapproval of major

subdivision plats in Tier 3 areas that do not comply with [the Act].”

Letter from MDE Secretary Robert M. Summers, Ph.D., and MDP

Secretary Richard Eberhardt Hall to Hon. Tari Moore, County

Executive, Cecil County (Sept. 13, 2013); see also Letter from Jay

Sakai, Director of MDE’s Water Mgmt. Admin., to Stephanie

Garrity, Health Officer, Cecil County Health Department (Jan.

2014) (stating that MDE “may withhold approval” of a subdivision

plat “if the proposed subdivision does not comply with . . . the

criteria set forth in Section 1-508 of the Land Use Article”).

Although there is some evidence in the legislative history

suggesting that the documentation provision should not be read to

give MDE authority to assess the accuracy of a locality’s tier map,

that history is not conclusive. According to the legislative record,

the bill as introduced would have expressly prohibited MDE from

approving a plat for a major subdivision on septics in a Tier III area

unless MDE had “determined that the [locality’s] Tier III or Tier

IV growth tiers are consistent with” the Act’s tier-mapping criteria.

S.B. 236 (first reader, proposed EN § 9-206(b)(2)(iv)(2)).

Similarly, the bill was amended at one point to expressly provide

that MDE “may not approve a major residential subdivision” on

septics “until the local jurisdiction adopts the growth tiers in

accordance with” the Act, and to require local jurisdictions to

“certify” their growth tiers to MDP. Amendments to S.B. 236,

Senate Educ., Health, and Envtl. Affairs Comm. at 8 (March 23,

2012) (“Senate Committee Amendments”). However, in a later

floor amendment, the Senate: (1) deleted the provision that had

expressly required MDE to determine whether a locality’s Tier III

and IV areas complied with the Act; (2) amended the bill to prohibit

a local jurisdiction, rather than MDE, from approving major

residential subdivisions on septics until it adopted tiers; (3)

removed the requirement for local jurisdictions to “certify” their

tiers to MDP; and (4) added the documentation provision in EN

§ 9-206(j)(3). See Floor Amendments to S.B. 236 (March 23,

2012).

In proposing those floor amendments, Senator Middleton

explained that they were a compromise brokered by Governor

O’Malley’s Administration in response to concerns raised by

counties, developers, farmers, and others. See Senate Proceedings

No. 50 (March 23, 2012, Session No. 1). In particular, the

Maryland Association of Counties (“MACo”) had raised concerns

that the legislation, by explicitly tasking MDE with the approval of

residential subdivisions under the Act, would give MDE a new

“broad-based” power over all land-use decisions regarding those

Gen. 3] 31

subdivisions, even over things like “lot lines and street lines.”

Hearing on H.B. 445 Before the House Envtl. Matters Comm., 2012

Leg., Reg. Sess. (Feb. 15, 2012) (written testimony of MACo on

the bill cross-filed with S.B. 236). Although the original bill had

not expressly expanded MDE’s authority that far, Senator

Middleton explained that there were nonetheless concerns that

local land-use decisions would now be made by “a State agency”

that would not have “the accountability [to local property owners]

that a local board of elected officials do[es].” Senate Proceedings

No. 50 (March 23, 2012, Session No. 1). In response to those

concerns, he said, the amendments provided that “local

jurisdiction[s] will approve the subdivision plats . . . rather than

MDE” and that the “final authority in deciding whether a property

. . . should go in Tier III or Tier IV [will] lie[] with the county.”

Id.; see also Senate Proceedings No. 53 (March 27, 2012)

(statement of Sen. Pinsky) (stating that the floor amendments took

“approval” authority away from the State). Similarly, in

responding to a question about what the “remedy” might be if a

county takes an area that “clearly meets the criteria” for Tier IV but

“put[s] it in Tier III anyhow,” Senator Middleton stated that the

county “would be the ultimate decider of what is [in] Tier IV or

Tier III.” Senate Proceedings No. 50A (March 23, 2012, Session

No. 2). That testimony, along with the General Assembly’s

decision to delete the provision that had expressly required MDE

to assess the accuracy of a locality’s tier map, might suggest that

the Legislature did not intend MDE to check the accuracy of

localities’ tier maps during the subdivision approval process.

However, at the same time the Legislature made those

changes, it also added the “documentation” provision in EN § 9-

206(j)(3). That change expressly preserved a role for MDE in

ensuring compliance with the Act, while clarifying that MDE

would not have any new, broad-based power over non-

environmentally-related matters like lot and street lines. In fact,

when addressing the documentation provision specifically, Senator

Middleton explained that it would serve as a “safeguard[] to ensure

that local jurisdictions follow the . . . framework for the adoption

of growth tiers.” Senate Proceedings No. 50 (March 23, 2012,

Session No. 1) (statement of Sen. Middleton). In doing so, he

emphasized that, under the provision, “MDE w[ould] be able to

ensure at [the] final subdivision plat stage . . . that a local

jurisdiction’s approval of a major subdivision on septics is

accurate,” and that MDE will “make sure that it’s in the right tier

to prevent a county from saying . . . we think this ought to be in a

Tier IV [area] and take what belongs in a Tier III and move it over

32 [104 Op. Att’y

to a Tier IV.” Id. Those statements, in contrast to some of the other

statements quoted above, suggest that the Legislature indeed

intended MDE to use the documentation provision to ensure that

local jurisdictions’ Tier III and Tier IV areas complied with the Act.

In short, the legislative history is not entirely clear as to the

intended effect of the amendments. We therefore hesitate to read

too much into the Legislature’s decision to delete a few draft

provisions as part of a sweeping compromise amendment,

especially when the same amendment added another provision that

seems to serve goals similar to some of the goals of the deleted

provisions.

Rather, in our view, the best way to make sense of the

legislative history is that the floor amendments imposed certain

limits on MDE’s ability to review a locality’s tier map as part of

the subdivision approval process but did not deprive MDE of that

ability entirely. More specifically, under the bill as previously

drafted, MDE and MDP had to approve a local jurisdiction’s tier

map and would have had direct and total veto power over every

aspect of a local jurisdiction’s tier map. That is, local jurisdictions

would have to “certify” their tier maps to MDP, and MDE had to

submit the “initial” subdivision plat application under each local

jurisdiction’s new tier map to MDP for advice on whether the

locality’s growth tiers complied with the Act. Then, if the tiers did

not comply with the Act, MDE would have to refuse to approve the

plat. See S.B. 236 (first reader, proposed EN § 9-206(d)). Under

that version of the bill, therefore, MDP and MDE would have been

able to substitute their judgment for that of the local jurisdiction in

every situation, even when the definitions in the Act allow for

flexibility about how to apply the criteria to each local

jurisdiction’s specific situation.

Under the Act as altered by the Senate floor amendments,

however, MDE and MDP do not have any direct veto power over

a local jurisdiction’s tier map. Although MDE still has authority,

as reflected in the documentation provision, to ensure that a local

jurisdiction does not authorize major subdivisions in areas where

the Act clearly forbids those types of subdivisions—such as in

priority preservation areas and rural legacy areas—the Act does not

permit MDE to second-guess a locality’s implementation of the

more generally worded criteria that allow for flexibility as to their

application. See Senate Proceedings No. 53 (March 27, 2012)

(statement of Sen. Pinsky) (explaining that the application of the

criteria for “dominated by” agricultural and forest land in particular

would be left to the counties to decide). That understanding of the

amendments gives meaning both to the Legislature’s decision to

Gen. 3] 33

delete certain provisions of the original bill and its decision to add

the documentation provision in EN § 9-206(j).18 In other words,

the compromise struck by the O’Malley Administration appears to

have been that MDE and MDP lost the direct power to veto local

subdivision decisions (which had been of great concern to the local

jurisdictions), but MDE gained the more limited review authority

granted by the documentation provision. Thus, although the

legislative history raises questions about the extent of MDE’s

power to use the subdivision approval process to enforce the Act,

the General Assembly more likely intended that MDE (or its

designee) would have at least some power to reject plat

applications based on a local jurisdiction’s failure to comply with

the Act’s criteria.

Given that you asked whether the State “must” enforce the

Act, the question then becomes the extent to which MDE is

required to examine the “documentation” submitted to it to

determine whether a local jurisdiction has complied with the Act.

Although MDE might not always have the expertise to determine

for itself whether the locality’s tier map complies with the Act, the

Department of Planning may comment on proposed tier maps prior

to their adoption. See LU §§ 1-505, 1-507. MDP thus might flag

for MDE the accuracy of a local jurisdiction’s tier-mapping.

Although we cannot generalize about the level of scrutiny that

MDE must apply to a locality’s “documentation” in every case, if

MDE is aware that a local jurisdiction may have violated the Act,

we think MDE or its designee must at least consider that factor in

reviewing the plat application. See, e.g., Anacostia Riverkeeper,

447 Md. at 121 (“‘We must be satisfied from the record that the

agency . . . examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action[.]’” (quoting Natural Res.

18

Our understanding of the amendments could even be read as

consistent with Senator Middleton’s comments that local jurisdictions

would be the “ultimate decider[s]” about their maps, Senate Proceedings

No. 50A (March 23, 2012, Session No. 2), and that the tier maps might

not always be “what the State would like them to be at the end of the

day,” Senate Proceedings No. 50 (March 23, 2012, Session No. 1). In

other words, where the definitions in the Act give the localities leeway

to make choices about how to apply the tier-mapping criteria, the

localities can make those decisions, even if MDE and MDP might have

preferred them to apply those criteria differently. But the local

jurisdictions cannot ignore the criteria entirely where the Act does not

leave them flexibility about how to apply those criteria, at least if they

wish to authorize major residential subdivisions outside of Tier I areas.

34 [104 Op. Att’y

Def. Council v. United States Envt’l Prot. Agency, 808 F.3d 556,

569 (2nd Cir. 2015)) (additional quotation marks and citation

omitted)); cf. Ergon-W. Virginia, Inc. v. United States Envtl. Prot.

Agency, 896 F.3d 600, 612 (4th Cir. 2018) (agency “may not turn

a blind eye to errors and omissions apparent on the face of the

[submissions]”).19

In sum, when the documentation requirement is read in light

of the legislative purpose, we think that MDE (or its designee) may

enforce the Act’s criteria through the subdivision plat approval

process and may not simply disregard a local jurisdiction’s failure

to comply with the Act’s criteria. The level of scrutiny that MDE

must apply to the applicant’s “documentation” in a particular case

will turn on the facts of that case. However, given the ambiguity

in the statute and in the legislative history, the General Assembly

might wish to clarify the extent to which MDE must enforce the

Act through the subdivision approval process.

b. Sewerage Disposal Permits

Regardless of whether the documentation provision added by

the Act allows MDE to consider the accuracy of a local

jurisdiction’s tier map as part of its subdivision approval process,

nothing in the Act or its legislative history indicates that the

General Assembly intended to diminish any of MDE’s existing

authority over sewerage matters. One of those powers that existed

before the Act is that, in addition to subdivision plat approval,

MDE must approve the installation of a developer’s sewage

disposal system before the developer may build a subdivision

served by septics. See EN § 9-252(b)(4); see also COMAR

26.04.02.03J (“The permits required by this regulation are in

addition to any approval to subdivide land pursuant to COMAR

26.04.03.”). As with subdivision plats, MDE typically delegates

this responsibility to county health officers, but the ultimate

regulatory authority belongs to MDE.

Under MDE’s regulations governing this permitting process,

the Department or its designee “may issue a permit for an on-site

19

We note that the burden of establishing the adequacy of

“documentation” in support of a subdivision plat application likely falls

on the applicant, as the party that is asking MDE or its designee to change

the status quo. See, e.g., Grasslands Plantation, Inc. v. Frizz-King

Enterprises, LLC, 410 Md. 191, 216-17 (2009) (explaining that the

subdivision applicant, as the party seeking to change the status quo by

developing the site, bore the burden of proof).

Gen. 3] 35

sewage disposal system” only “if it determines that the site and

proposed design can safely dispose of sewage and conform with

applicable laws and regulations.” COMAR 26.04.02.03B

(emphasis added). In our view, the “applicable laws and

regulations” with which the proposed site for a septic system must

conform include the Act’s provisions prohibiting major

subdivisions on septics under certain circumstances, such as when

the local jurisdiction declines to adopt a tier map, its tier map was

not adopted “in accordance with” the Act, or the subdivision is not

located in a tier eligible for that use. In other words, a proposal to

develop a major residential subdivision on septics in an area that is

ineligible for that use under the Act would not “conform with

applicable laws and regulations.” Thus, under MDE’s regulations,

it appears that the agency must at least consider compliance with

the Act as part of the disposal-permit process and would have little,

if any, discretion to overlook a noncompliant tier map when

reviewing a permit application to build a septic system for a major

residential subdivision.

c. County Water and Sewer Plans

We next examine the extent to which MDE may enforce the

Act’s requirements through its role in approving county water and

sewer plans. Under Maryland law, each county must adopt a water

and sewer plan, and each plan (or plan amendment) is subject to

MDE’s approval. EN § 9-503. Among other things, a plan must

project population growth, indicate the “quantity and quality of

waste to be discharged into the waters of this State,” “[d]escribe . . .

each area in the county where . . . [a]n individual sewerage system

may be installed,” and describe areas planned for multiuse or

community sewerage systems. EN § 9-505(a)(12)(iii), (13)(v-vi,

viii); see also Bethel World Outreach Church v. Montgomery

County, 184 Md. App. 572, 578 (2009) (explaining the process).

Further, as is particularly important here, each county’s water and

sewer plan must be “consistent with all county and local

comprehensive plans,” as well as “with the laws of this State that

relate to . . . water pollution, and land use[.]” EN § 9-505(a)(1),

(5); see also COMAR 26.03.01.02(A) (requiring that water and

sewer plans “develop . . . sewerage systems in a way consistent

with county comprehensive planning”).

Because a county’s water and sewer plan must be consistent

with both the county’s comprehensive plan (which includes the

county’s tier map) and the State’s land use laws (which include the

Act’s tier-mapping requirements), the water and sewer plan must

36 [104 Op. Att’y

necessarily comply with the requirements of the Act. Thus, MDE

may not approve a plan that conflicts either with the county’s tier

map or with the tier-mapping criteria in the Act. Of course, the

extent to which a particular water and sewer plan might conflict

with the Act will depend on the content of that particular plan, and

it is not possible to provide comprehensive guidance here about

every circumstance under which there might be a conflict. But, at

the very least, MDE should take steps to ensure that a county’s

water and sewer plan is consistent with the Act.

The question again becomes the extent of MDE’s obligation to

examine whether a county’s plan complies with its tier map or

whether the tier map complies with the Act’s criteria. Recognizing

that MDE might not have the knowledge or expertise to evaluate a

county’s water and sewer plan for compliance with laws

administered by other agencies, the General Assembly included in

the statute a requirement that MDE seek input from those other

agencies. For instance, before approving a proposed water and

sewer plan or plan amendment, MDE must submit the plan to “the

Department of Planning for advice on the consistency of the

proposal with the local master plan and other appropriate matters.”

EN § 9-507(b). The advice MDE receives from MDP (and from

other agencies) may help to identify conflicts with the Act. In fact,

MDP will likely already have evaluated a local jurisdictions’ tier

mapping during the comment process under the Act. See LU §§ 1-

505, 1-507. Thus, if MDP has advised MDE that a county has

adopted mis-mapped tiers, and if those mis-mapped tiers call into

question the accuracy of the county’s proposed water and sewer

plan, we think that MDE must at least consider that fact when

reviewing the proposed plan. See, e.g., Anacostia Riverkeeper, 447

Md. at 121; cf. Ergon-W. Virginia, Inc., 896 F.3d at 612.20

Additionally, under MDE’s regulations governing the water-and-

20

sewer-plan process, “[c]onsideration shall be given to . . . all

governmental, industrial, and other plans for privately owned facilities

regarding water and sewerage at any level.” COMAR

26.03.01.02(A)(3); see also EN § 9-510(b) (granting MDE broad

authority to adopt regulations to “carry out the provisions of [the subtitle

pertaining to water and sewer plans]”); Showell, 316 Md. at 270-71

(explaining that MDE’s duties with regard to water pollution require it

to “cooperate with agencies of other states and the federal

government”). Thus, in reviewing a proposed plan, MDE must give

“consideration” to the Bay TMDL and its own WIPs to determine

whether the planned methods of waste water disposal are consistent with

its obligations under those plans. Given that MDE has presented the tier

designations to EPA as a method of minimizing the adverse effects of

Gen. 3] 37

2. MDE’s Discretionary Enforcement Powers

The second way in which the State may be able to ensure

compliance with the Act is through MDE’s discretionary authority

to enforce certain violations of the Environment Article. The

Department is authorized to use “the provisions of [EN] §§ 9-334

through 9-344 . . . to enforce violations of” Title 9, Subtitle 2 of the

Environment Article. EN § 9-268. Title 9, Subtitle 2 of the

Environment Article, in turn, includes EN § 9-206(f), which

generally prohibits a local jurisdiction from “authoriz[ing] a

residential major subdivision served by on-site sewage disposal

systems, community sewerage systems, or shared systems until the

local jurisdiction adopts the growth tiers in accordance with” Title

1, Subtitle 5 of the Land Use Article. See Part II.A, supra. Thus,

if a local jurisdiction approves a major residential subdivision—

other than a major subdivision served by public sewer in Tier I—

without adopting tiers that comply with the Act (or, for that matter,

if the local jurisdiction violates any other provision of EN § 9-206),

MDE may use EN §§ 9-334 through 9-344 to enforce EN § 9-206’s

requirements.

Under EN §§ 9-334 through 9-344, the Department “shall

issue a written complaint if the Department has reasonable grounds

to believe that the person to whom the complaint is directed has

violated” either “(1) This subtitle; (2) Any rule or regulation

adopted under this subtitle; or (3) Any order or permit issued under

this subtitle.” EN § 9-334(a).21 Although that provision only

septics on the Bay, and EPA has approved the tier-based restrictions as

a method of reducing discharges, MDE might have to disapprove a water

and sewer plan that conflicts with the Act in order to comply with its

promises under the Bay TMDL.

21

Even though EN § 9-334 provides that MDE “shall” issue a

complaint if MDE “has reasonable grounds to believe” that a violation

occurred, MDE is not required to find “reasonable grounds” for a

violation, and the agency is thus not required to issue an order or seek

injunctive relief. Instead, MDE’s enforcement power under EN §§ 9-

334 through 9-344 is discretionary. See, e.g., Falls Rd. Cmty. Ass’n, Inc.

v. Baltimore County, 437 Md. 115, 142 (2014) (explaining that even

where a government agency is “charged generally with the responsibility

to enforce” certain requirements, it cannot possibly pursue enforcement

of every arguable violation. Rather, “[t]here are a myriad of

discretionary decisions made in determining how to employ limited

resources,” and “[i]t is well within the discretion of . . . officials to pick

38 [104 Op. Att’y

mentions violations of subtitle 3, those same rules apply to

violations of subtitle 2 by operation of EN § 9-268. After serving

a complaint, MDE may issue an order, which is final unless the

person served with the order requests a hearing. See EN §§ 9-335

to -338. Alternatively, MDE “may bring an action for injunctive

relief against any person who violates any provision of this subtitle

[or subtitle 2] or any rule, regulation, order, or permit adopted or

issued by [MDE] under this subtitle [or subtitle 2].” EN § 9-339;

see also EN § 9-268. The term “person” in those provisions

explicitly includes “any county, municipal corporation, or other

political subdivision of this State.” EN § 9-301. Thus, MDE may

take enforcement action against a county for authorizing a major

subdivision in violation of EN § 9-206.

Although MDE is not required by the Environment Article to

use these provisions to enforce the Act’s requirements, the

Department might—depending on the severity of the violation—

need to take action to ensure that Maryland complies with its own

obligations under the Clean Water Act, the Chesapeake Bay Plan,

and the Bay TMDL. As explained above, Maryland must provide

EPA with “reasonable assurance” that Maryland can achieve the

load reductions assigned to it under the Bay TMDL. See Farm

Bureau, 792 F.3d at 291-92 (explaining the role of reasonable

assurances in TMDLs); see also Anacostia Riverkeeper, 447 Md.

at 109-10 (describing EPA’s “reasonable assurance” findings

regarding Maryland’s Phase I WIP). To do that, Maryland had to

demonstrate how it will offset any unplanned growth in a particular

sector by further reducing discharges from other sectors. See Phase

III Interim Letter. Maryland then expressly relied on the Act to

show EPA how it would satisfy that requirement. See EPA

Evaluation of Phase II WIP at 1, 3. A local jurisdiction’s disregard

of the requirements of the Act could cast doubt on whether

Maryland has given “reasonable assurance” that the State is

complying with the Bay TMDL. In turn, if EPA determines that

the State is out of compliance, EPA can take any number of “back-

stop actions” that could lead to a loss of federal funding and the

loss of State control over certain aspects of Clean Water Act

enforcement. See footnote 3, supra.22

and choose among the categories of violations, or to prioritize certain

types or areas of enforcement.”).

22

Even if MDE chooses not to enforce the Act under EN §§ 9-334

through 9-344, a local jurisdiction that is out of compliance with the Act

may face the prospect of private suits by individuals or organizations that

Gen. 3] 39

III

Conclusion

In answer to your first question, a local jurisdiction that has

failed to adopt a tier map that complies with the criteria in the Act

is not authorized to approve major residential subdivisions other

than those served by public sewer and located in a Tier I area.

There may, however, be circumstances under which errors in a

local jurisdiction’s map are so minor that a court would deem the

map to substantially comply with the Act.

Regarding your second question, the Act does not require the

State to bring a direct enforcement action against a local

jurisdiction to compel the locality to change its tier map. However,

MDE is at least required to consider compliance with the Act in

reviewing subdivision plat applications, sewerage disposal permits,

and water and sewer plans. In addition, MDE has discretionary

authority to bring an action to enforce EN § 9-206, including the

subsection prohibiting a local jurisdiction from authorizing certain

major residential subdivisions until it has adopted a tier map in

accordance with the Act. Although that enforcement power is

discretionary, a failure on Maryland’s part to implement the

measures that the State has promised to take under the Clean Water

Act could make the State vulnerable to “back-stop” measures

threatened by EPA, including a loss of federal funding and

increased federal oversight. The threat of those consequences may,

as a practical matter, compel the State to enforce its law. Still,

given that MDE’s enforcement obligations are not entirely clear,

the General Assembly may wish to clarify the State’s role in

enforcing the Act.

Brian E. Frosh

Attorney General of Maryland

object to the local jurisdiction’s approval of a major subdivision in

violation of the Act. Given the risks of both State and private

enforcement, one consequence of a local jurisdiction’s failure to comply

with the Act might be that potential developers of major subdivisions

will be reluctant to undertake such projects in local jurisdictions whose

authority to approve those projects is uncertain. See, e.g., Cleanwater

Linganore, Inc. v. Frederick County, 231 Md. App. 373, 392 (2016)

(“Where a developer assumed that its project could be thwarted by a last-

minute or mid-stream change to any of these non-zoning laws, it would

be less likely to undertake a substantial development at all in a

jurisdiction.”).

40 [104 Op. Att’y

Ann MacNeille

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice

*Paul J. Cucuzzella, Assistant Attorney General, contributed

significantly to the preparation of this Opinion.