Maryland Department of Environment v. Anacostia Riverkeeper

Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., No. 42,

September Term, 2015, Blue Water Baltimore, et al. v. Maryland Department of the

Environment, No. 43, September Term, 2015, Blue Water Baltimore, et al. v. Maryland

Department of the Environment, et al., No. 44, September Term, 2015, Opinion by Adkins, J.

Environmental Law – Administrative Law – Clean Water Act – Permitting Process.

Maryland Department of the Environment’s decision to issue several stormwater discharge

permits to counties in Maryland is supported by substantial evidence, is not arbitrary and

capricious, and is legally correct. Additionally, these permits satisfy federal monitoring

requirements and do not violate public participation mandates.

Maryland Department of the Environment,

et al. v. Anacostia Riverkeeper, et al. IN THE COURT OF APPEALS

Circuit Court for Montgomery County OF MARYLAND

Case No.: 339466

Argued: November 5, 2015

No. 42

Blue Water Baltimore et al. v. Maryland September Term, 2015

Department of the Environment

Circuit Court for Anne Arundel County

Case No.: 02-C-14-186144 MARYLAND DEPARTMENT OF THE

Argued: November 5, 2015

ENVIRONMENT, et al.

Blue Water Baltimore, et al. v. Maryland v.

Department of the Environment, et al. ANACOSTIA RIVERKEEPER, et al.

Circuit Court for Baltimore City

Case No.: 24-C-14-000364

Argued: November 5, 2015 No. 43

September Term, 2015

BLUE WATER BALTIMORE, et al.

v.

MARYLAND DEPARTMENT OF THE

ENVIRONMENT

No. 44

September Term, 2015

BLUE WATER BALTIMORE, et al.

v.

MARYLAND DEPARTMENT OF THE

ENVIRONMENT, et al.

Barbera, C.J.

Battaglia

Greene

Adkins

McDonald

Watts

Harrell, Glenn T., Jr. (Retired,

Specially Assigned),

JJ.

Opinion by Adkins, J.

Filed: March 11, 2016

FACTS AND LEGAL PROCEEDINGS

Maryland Department of the Environment (“MDE”) issued municipal separate

storm sewer system (“MS4”) discharge permits (“the Permits”) to Anne Arundel County,

Baltimore City, Baltimore County, Montgomery County, and Prince George’s County

(“the Counties”). Multiple organizations argue that the Permits do not comply with federal

and state law, and they request that we remand for MDE to correct these legal errors.1

Federal Framework: NPDES Permits and Municipal Stormwater Discharges

Under the Clean Water Act (“CWA”), the discharge of pollutants is illegal. 33 U.S.C.

§ 1311. Through the National Pollution Discharge Elimination System (“NPDES”),2 33 U.S.C.

§ 1342, either the Environmental Protection Agency (“EPA”) or an EPA-approved state, such

as Maryland, may issue permits exempting a discharger from this prohibition. See Piney

Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 265 (4th Cir. 2001).

MDE is the authority in Maryland that administers the NPDES program. Code of Maryland

Regulations (“COMAR”) 26.08.04.07. An NPDES permit, however, does not give a

discharger carte blanche. “Generally speaking, the NPDES requires dischargers to obtain

1

We refer to the various environmental groups and individuals who challenge the

Permits as the Water Groups. They include Anacostia Riverkeeper, Blue Water Baltimore,

Inc., Chesapeake Bay Foundation, Inc., Earthjustice, Friends of the Earth, Gunpowder

Riverkeeper, Inc., Magothy River Association, Inc., Mattawoman Watershed Society,

Natural Resources Defense Council, Patuxent Riverkeeper, Inc., Potomac Riverkeeper

Network, Sierra Club, Waterkeeper Alliance, Waterkeepers Chesapeake, West/Rhode

Riverkeeper, Inc., Mac Thorton and Pat Munoz.

2

Congress established the National Pollution Discharge Elimination System

(“NPDES”) pursuant to 1972 amendments to the Clean Water Act (“CWA”). Natural Res.

Def. Council, Inc. v. Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977).

permits that place limits on the type and quantity of pollutants that can be released into the

Nation’s waters.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102 (2004).

These limits are called effluent limitations. See 33 U.S.C. § 1362(11) (defining an effluent

limitation as “any restriction established by a State or the Administrator on quantities, rates,

and concentrations of chemical, physical, biological, and other constituents which are

discharged from point sources into navigable waters, the waters of the contiguous zone, or

the ocean, including schedules of compliance”). The type of discharge determines the type

of limitations the permit must impose on the discharger.

The Permits before us control stormwater pollutant discharge.3 Stormwater consists

of the rain and snowmelt that filters through the soil and courses over surfaces—collecting

pollutants along the way—before passing through the municipal storm sewer systems4 and

into waterbodies. During the development of the Permits, the Water Groups explained the

3

Notably, in 1973, the EPA exempted “separate storm sewers containing only storm

runoff uncontaminated by any industrial or commercial activity” from the requirements of

33 U.S.C. § 1342. Id. at 1372. The United States Court of Appeals for the D.C. Circuit

invalidated this regulatory action in Natural Resources Defense Council, Inc. v. Costle. Id.

at 1377 (“[T]he EPA Administrator does not have authority to exempt categories of point

sources from the permit requirements of [33 U.S.C. § 1342].”). It was not until 1987 that

Congress acted to regulate municipal separate storm sewer systems (“MS4s”). See Natural

Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1296 (9th Cir. 1992) (explaining that

Congress passed amendments to the CWA in 1987 in recognition of “the environmental

threat posed by storm water runoff and EPA’s problems in implementing regulations”).

4

MS4s are classified based on the population in the jurisdiction. 40 C.F.R. § 122.26

(b)(4), (7), (16). Because the Counties all have more than 250,000 people, the Permits are

large MS4 permits. MDE, Montgomery County NPDES Permit Fact Sheet; MDE, Anne

Arundel County NPDES Permit Fact Sheet; MDE, Baltimore County NPDES Permit Fact

Sheet; MDE, Prince George’s County NPDES Permit Fact Sheet; MDE, Baltimore City

NPDES Permit Fact Sheet.

2

problems that stormwater poses, whether to the surface conditions of Maryland’s waters,

for humans who recreate and subsist on them, and for wildlife who live in them. See Letter

with Comments on Draft MS4 Permit for Baltimore City from Blue Water Baltimore, Inc.

and Earthjustice, to Brian Clevenger, MDE (Sept. 21, 2012). In recognition of extensive

public commentary on the severity of the problems associated with stormwater, MDE

stated: “[i]t becomes fairly easy for all organizations, individuals, and government agencies

to agree that urban stormwater is a problem that must be addressed.” MDE, Response to

Formal Comments for Montgomery County NPDES Permit (2009).

Nevertheless, municipal stormwater discharge is “highly intermittent,” “usually

characterized by very high flows occurring over relatively short time intervals,” and

“depend[s] on the activities occurring on the lands.” See National Pollutant Discharge

Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.

Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. § 122.26). It is also difficult

to discern the amount of pollutant that any one discharger contributes to a waterbody

because municipalities have so many outfalls, or discharge points, leading into the waters.

See MDE, Montgomery County NPDES Permit Fact Sheet (900 outfalls); MDE, Anne

Arundel County NPDES Permit Fact Sheet (nearly 1,000 outfalls); MDE, Baltimore

County NPDES Permit Fact Sheet (nearly 700 outfalls.); MDE, Prince George’s County

NPDES Permit Fact Sheet (more than 4,000 outfalls); MDE, Baltimore City NPDES

3

Permit Fact Sheet (around 350 outfalls.); see also 40 C.F.R. § 122.26(b)(5), (9) (outlining

minimum diameters of pipes in major MS4 outfalls).5

Because of the nature of municipal stormwater discharges, Congress adopted a

flexible approach to the control of pollutants in MS4s. See 55 Fed. Reg. at 48,038 (The

Congressional Record from 1986 stated not only that “an end-of-the-pipe treatment

technology is not appropriate for [the MS4] discharge” but also that “[MS4] controls may

be different in different permits.”).6 Pursuant to 33 U.S.C. § 1342(p)(3)(B)(iii), municipal

stormwater permits “shall require controls to reduce the discharge of pollutants to the

maximum extent practicable, including management practices, control techniques and

system, design and engineering methods . . . .”7

5

A point source is “any discernible, confined and discrete conveyance . . . from

which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Although storm sewers

are point sources, the urban runoff that leads to them had once been considered nonpoint

source pollution. Mark Ryan, The Clean Water Act Handbook 167 (3d ed. 2011)

(“Stormwater runoff in the early days of the NPDES program was treated as a diffuse

source of nonpoint source pollution. This may have seemed logical because most runoff

cannot efficiently be controlled using the strict end-of-pipe effluent limitations that are

effective in regulating traditional industrial and municipal discharges.”); cf. Ecological

Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 508 (9th Cir. 2013) (“Stormwater

runoff is ‘a nonpoint or point source . . . depending on whether it is allowed to run off

naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through

a system of ditches, culverts, channels, and similar conveyances (and is thus a point source

discharge).’”).

6

Congress passed the Water Quality Act of 1987, thereby amending the CWA and

revising the law for municipal stormwater discharge. See Water Quality Act, Pub. L. No.

100-4, 101 Stat. 7, 69 (1987) (codified at 33 U.S.C. § 1342(p)); see also Natural Res. Def.

Council, Inc., 966 F.2d at 1296, 1308.

7

We shall sometimes refer to this provision with the acronym MEP.

4

Best management practices (“BMPs”) have been a long-standing control or effluent

limitation8 in MS4 permits. See 40 C.F.R. § 122.44(k)(2) (BMPs “control or abate the

discharge of pollutants when [a]uthorized under [33 U.S.C. § 1342(p)]”); id. § 122.44(k)(3)

(BMPs are an appropriate control when “[n]umeric effluent limitations are infeasible”); see

also Tualatin Riverkeepers v. Or. Dep’t of Envtl. Quality, 230 P.3d 559, 564 (Or. Ct. App.

2010) (“‘Best management practices,’ such as those incorporated in the permits at issue in

this case, are a type of effluent limitation.”). The EPA defined BMPs to mean “schedules

of activities, prohibitions of practices, maintenance procedures, and other management

practices to prevent or reduce the pollution of ‘waters of the United States.’” 40 C.F.R.

§ 122.2; cf. Natural Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 579 (2d Cir. 2015)

(“But EPA’s narrative WQBEL [water-quality based effluent limitation] does not qualify

as a BMP, as it is neither a practice nor a procedure.”). Examples of the types of BMPs

the Counties might implement pursuant to the Permits are infiltration practices and green

roofs.9

8

Although, as we explain, effluent limitations in MS4 permits are not required to

meet water quality standards, we note that these limitations are often described as water

quality based effluent limitations (“WQBELs”). See 33 U.S.C. § 1312.

9

An infiltration practice “is characterized by a depression to form an infiltration

basin where sediment is trapped and water infiltrates the soil.” EPA, Chesapeake Bay

Phase 5.3 Community Watershed Model § 6.7.5., at 6-51 (2010), available at

http://www.chesapeakebay.net/about/programs/modeling/53/. “A green roof, or rooftop

garden, is a vegetative layer grown on a rooftop.” EPA, Using Green Roofs to Reduce

Heat Islands (last updated Sept. 22, 2015), available at http://www.epa.gov/heat-

islands/using-green-roofs-reduce-heat-islands.

5

Through guidance memos, the EPA has endorsed the use of BMPs in MS4s for

decades but has increasingly recommended that, where feasible, such permits include

numeric effluent limitations. Interim Permitting Approach for Water-Quality Based

Effluent Limitations in Storm Water Permits, 61 Fed. Reg. 43,761 (1996); EPA,

Memorandum on Establishing Total Maximum Daily Load (TMDL) Wasteload

Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on

Those WLAs § 3 (2002) [hereinafter “2002 Memo”]; EPA, Memorandum on Revisions to

the November 22, 2002 Memorandum 4–5 (2010) [hereinafter “2010 Memo”]; EPA,

Memorandum on Revisions to the November 22, 2002 Memorandum at 4 n.5 (2014)

[hereinafter “2014 Memo”]. (A “numeric” effluent limitation “refers to [a] limitation[]

with a quantifiable or measurable parameter related to a pollutant (or pollutants).”).

Total Maximum Daily Loads (“TMDLs”)

The concept of total maximum daily load (“TMDL”) looms large in this case.10 We

begin by setting forth its basic purpose, then unpacking its complex formation.

TMDLs inform. See Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 291 (3d Cir.

2015) (“Our understanding of [TMDLs] as informational tools is supported by every case

and piece of scholarship to consider them as well as the language of the Chesapeake Bay

TMDL itself.”); see also EPA, Chesapeake Bay TMDL § 1.41, at 1-15 (2010) (“TMDLs

10

At the end of 2010, when the EPA issued the Chesapeake Bay TMDL (“Bay

TMDL”), which we will discuss, the EPA explained that there were more than 40,000

completed TMDLs in the United States. EPA, Chesapeake Bay TMDL Executive

Summary, ES-3 (2010) [hereinafter “Bay TMDL ES”], available at

http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-document.

6

are ‘primarily informational tools’ that ‘serve as a link in an implementation chain . . . .’”),

available at http://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-document.

TMDLs arise out of a multi-step process that begins with the establishment of water

quality standards (“WQS”). See Am. Farm Bureau Fed’n, 792 F.3d at 289 (“TMDLs

happen after a state enacts pursuant to its law (but required by the Clean Water Act) ‘water

quality standards.’”). Because the EPA and the states interact throughout this process, it

has been described as one of “cooperative federalism.” Id. at 288; see Anacostia

Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214–17 (D.D.C. 2011).

Water quality standards, as the term itself suggests, protect water quality. 40 C.F.R.

§ 130.2(d); COMAR 26.08.02.01(A). Each state must set water quality standards by

assigning a “use” to a water, such as recreation or fishing, then developing criteria to

protect those uses, as well as ensuring that higher quality waters do not degrade to the

minimally accepted standard (also known as an anti-degradation policy). 33 U.S.C. § 1313;

COMAR 26.08.02.01(B)(1). All water quality standards are subject to EPA review, and

if the EPA does not approve of them, the EPA will set those standards itself. 33 U.S.C.

§ 1313.

By way of example, the EPA approved a TMDL that MDE submitted for fecal

bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County in 2007. See

MDE, Total Maximum Daily Loads of Fecal Bacteria for the Non-tidal Cabin John Creek

Basin in Montgomery County, Maryland (Document version: Oct. 13, 2006) [hereinafter

“John Creek Basin TMDL”]. These bacteria are microscopic organisms in animal waste.

Fecal bacteria in water can raise the risk of illness in humans who recreate there. Id. at

7

§ 1.0, at 1. To develop the WQS, MDE selected “water contact recreation and protection

of aquatic life and public water supply” as the use of the water and 126 MPN11 per 100

milliliters as the criteria. Id. at § 2.3, at 11 (citing COMAR 26.08.02.08O and

26.08.02.03-3). This figure (126) represents a mean density for this pollutant. Id.; see

40 C.F.R. § 130.2(i) (“[M]ass per time, toxicity, or [an]other appropriate measure” may

be used to express TMDLs.).

After setting WQSs, the states establish effluent limitations in permits as the primary

way to meet the WQSs because, as we have explained, effluent limitations restrict the

discharge of pollutants. See 33 U.S.C. § 1362(11). Nevertheless, we note, importantly,

that MS4s are not subject to the requirement of imposing effluent limitations “necessary to

meet water quality standards.” See 33 U.S.C. § 1311(b)(1)(C); see also Defenders of

Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999); cf. 33 U.S.C. § 1342(p)(3)(A)

(Industrial dischargers must comply with 33 U.S.C. § 1311.). 12 This important point

notwithstanding, Congress requires that “[e]ach State shall identify those waters within

its boundaries for which the effluent limitations required by [33 U.S.C. § 1311] are not

stringent enough to implement any water quality standard applicable to such waters.”

33 U.S.C. § 1313(d)(1)(A).

11

MPN refers to Most Probable Number. Code of Maryland Regulations

(“COMAR”) 26.08.02.03-3C.

12

The Water Groups do not challenge the Court of Special Appeals’ holding that

the Montgomery County Permit “is not subject to the technology-based discharge

limitations (“TBDLs”) of § 1311(a), but rather to § 1342(p)(3)(B) . . . .” Md. Dep’t of the

Env’t v. Anacostia Riverkeeper, 222 Md. App. 153, 172, 112 A.3d 979, 990 (2015)

(emphasis in original), cert. granted, 443 Md. 734, 118 A.3d 861.

8

This is where the TMDL comes into play. The TMDL tells a state what is the

threshold amount of a pollutant that a body of water can tolerate before violating the WQS.

See In re City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *4 (EAB July 27,

2001) (“A TMDL is a measure of the total amount of a pollutant from point sources,

nonpoint sources and natural background, that a water quality limited segment can tolerate

without violating the applicable water quality standards.”); EPA, Chesapeake Bay TMDL

§ 1.1, at 1-2 (“A TMDL specifies the maximum amount of a pollutant that a waterbody can

receive and still meet applicable WQS.”).13

States must establish TMDLs “at a level necessary to implement the applicable

water quality standards,” 33 U.S.C. § 1313(d)(1)(C), when they identify those waters for

which effluent limitations cannot implement the WQSs, 33 U.S.C. § 1313(d)(1)(A).14 As

with water quality standards, the states have the obligation of setting TMDLs and

submitting them to the EPA for approval. See supra MDE, John Creek Basin TMDL (The

EPA approved of MDE’s TMDL in March 2007.). If the EPA disapproves of the TMDLs,

the EPA will set them itself. 33 U.S.C. § 1313(d)(2).

13

The EPA has defined the TMDL as “[t]he sum of the individual WLAs for point

sources and LAs for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i)

(emphasis added). In this case, we focus on wasteload allocations (“WLAs”), which we

will soon discuss. The other major component of the TMDL equation—load allocations

(“LAs”)—deals with nonpoint sources of pollution, 40 C.F.R. § 130.2(g), and is irrelevant

to this case because we are concerned with the discharge of pollutants from point sources.

See Natural Res. Defense Council, 966 F.2d at 1295–96 & n.5 (discussing the legislative

and regulatory history leading up to the regulation of stormwater as a point source).

14

To be clear, Maryland, as all other states, must comply with 33 U.S.C. § 1313(d)

and establish TMDLs even though MS4s are not subject to effluent limitations “necessary

to meet water quality standards.” See 33 U.S.C. § 1311(b)(1)(C).

9

For this case, wasteload allocations (“WLAs”) are the most critical part of the

TMDL equation. See 40 C.F.R. § 130.2(i) (A TMDL is “[t]he sum of the individual WLAs

for point sources and LAs [load allocations] for nonpoint sources and natural

background.”). The WLA represents a water’s “loading capacity” assigned to its “point

sources of pollution.” Id. § 130.2(h). Continuing with our example, MDE set the TMDL

for fecal bacteria at 176.36 billion MPN/day, the LA at 68.17 billion MPN/day, and the

WLA at 108.19 billion MPN/day. MDE, John Creek Basin TMDL.15

Although TMDLs are informational tools, of which WLAs are a part, WLAs are

more akin to restrictions. See Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289, 328

(M.D. Pa. 2013) (“WLAs are not permit limits per se; rather they still require translation

into permit limits . . . .”) (citation omitted) (internal quotation marks omitted) (emphasis in

original), aff’d, 792 F.3d 281 (3d Cir. 2015). Under 40 C.F.R. § 122.44(d)(1)(vii)(B),

15

MDE documented WLAs for two sources of fecal bacteria for the Cabin John

Creek TMDL—domestic pets and wildlife—but the final WLA represents “one combined

load for the entire land area of the county.” MDE, Total Maximum Daily Loads of Fecal

Bacteria for the Non-tidal Cabin John Creek Basin in Montgomery County, Maryland

§ 4.8, at 32 (Document version: Oct. 13, 2006) [hereinafter “John Creek Basin TMDL”].

MDE was acting according to the EPA’s 2002 guidance memo: “available data and

information usually are not detailed enough to determine WLAs for NPDES-regulated

stormwater discharges on an outfall-specific basis.” See EPA, Memorandum on

Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for

Storm Water Sources and NPDES Permit Requirements Based on Those WLAs 4 (2002)

[hereinafter “2002 Memo”]. Since then, the EPA continues to express that it “does not

expect states to assign WLAs to individual MS4 outfalls.” EPA, Memorandum on

Revisions to the November 22, 2002 Memorandum at 7 (2014) [hereinafter “2014 Memo”].

10

permitting authorities must ensure that effluent limitations “are consistent with the

assumptions and requirements” of any approved WLA.16

We conclude our introduction of TMDLs by noting that MS4s are subject to the

MEP standard under 33 U.S.C. § 1342. MS4s are not, however, required to impose effluent

limitations necessary to meet water quality standards. The CWA still requires Maryland

to set water quality standards and TMDLs—subject to the EPA’s approval. Flowing from

this obligation is the requirement that MS4s are subject to effluent limitations that are

consistent with WLAs of EPA-approved TMDLs.

The Chesapeake Bay TMDL

As we will discuss in more detail, the Permits require the Counties to take actions

to make progress in meeting the WLAs of many EPA-approved TMDLs.17 By far, though,

the most critical TMDL in this case is the Chesapeake Bay TMDL (“Bay TMDL”).

Regarded as a national treasure,18 the Chesapeake Bay is the largest estuary in the

United States, a product of flooding from the Susquehanna River over thousands of years.

16

Thus, MDE has incorporated this requirement into the Permits at Part IV.E.

17

See Part IV.E.4. The Fact Sheet for Montgomery County’s Permit shows that,

less than two years before that Permit became effective, the EPA had approved seven

TMDLs (and consequently seven WLAs), that five TMDLs were pending the EPA’s

approval or soon to be subject to the EPA’s review, and that MDE would later address 21

TMDLs. At the time the other Permits were issued, the EPA had approved 34 WLAs for

Anne Arundel County, 33 WLAs for Baltimore County, 63 WLAs for Prince George’s

County, and 18 WLAs for Baltimore City.

18

On May 12, 2009, President Barack Obama issued Executive Order 13508,

Chesapeake Bay Protection and Restoration, and called the Chesapeake Bay a “national

treasure.” The White House Office of the Press Secretary, Executive Order 13508—

Chesapeake Bay Protection and Restoration (May 12, 2009), available at

11

Alice Jane Lippson, The Chesapeake Bay in Maryland: An Atlas of Natural Resources 2

(Johns Hopkins University Press 1973). Over 2,000 species of animals and plants reside

in the Chesapeake Bay. Alice Jane Lippson & Robert L. Lippson, Life in the Chesapeake

Bay viii (Johns Hopkins University Press 1984). These include phytoplankton, the blue

crab, and striped bass, among many, many others. Lippson, The Chesapeake Bay in

Maryland, supra at 14, 26, 36. In addition to housing much wildlife, the Chesapeake Bay

is a shipping and commerce hub and a source of recreation. Chesapeake Bay Program,

Chesapeake Bay: Introduction to an Ecosystem 2 (2004).

Human activity, however, threatens this complex ecosystem. “Excess sediment and

nutrients endanger the Bay’s water quality.” Id. at 3–4. Such threats include: depriving

species of oxygen; delivering chemicals which collect in animal tissue; and even destroying

habitats because sunlight cannot reach critical underwater grasses where species reside. Id.

There is, then, no underestimating the importance of the restoration of the

Chesapeake Bay in Maryland. See Am. Farm Bureau, 984 F. Supp. 2d at 298 (“[The Bay]

has been described as one of the most biologically productive ecosystems in the world,”

and, along with its watersheds, “add[s] ecological, economic, recreational, historic, and

cultural value to the region.”).

How to restore the Bay, however, has been a prolonged, frustrated process. See id.

(The Bay TMDL “is not a new or recent idea,” and thus, “it would be improper to view the

Final TMDL in a vacuum as a single, isolated effort to restore water quality to the

https://www.whitehouse.gov/the-press-office/executive-order-chesapeake-bay-protection-

and-restoration.

12

Chesapeake Bay.”). Some of these restoration efforts include the Chesapeake Bay

Agreement in 1980, another agreement in 1987, amendments to the agreement in 1992,

and the Chesapeake 2000 Agreement. Department of Legislative Services, Office of Policy

Analysis, Chesapeake Bay Restoration and the Tributary Strategy: An Analysis of

Maryland’s Efforts to Meet the Nutrient and Sediment Reduction Goals of the Chesapeake

2000 Agreement 3–4 (2007).

The EPA established the Bay TMDL in December 2010. See Am. Farm Bureau

Fed’n, 792 F.3d at 290 (“As noted, for the Chesapeake Bay the relevant states and the EPA

agreed that the EPA would draft the TMDL in the first instance.”). It has survived legal

challenges before the U.S. District Court for the Middle District of Pennsylvania as well

as the Third Circuit.19 See Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 294; Am. Farm

Bureau Fed’n, 792 F.3d at 287. These courts have noted that the efforts to restore the

Chesapeake Bay extend back decades, and that the development of the Bay TMDL itself

has been a decade-long process. Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 299; Am.

Farm Bureau Fed’n, 792 F.3d at 291.

19

On February 29, 2016, the United States Supreme Court denied American Farm

Bureau Federation’s Petition for Writ of Certiorari for review of the Third Circuit’s

decision to uphold the EPA’s exercise of its authority in developing the Bay TMDL. See

Supreme Court of the United States (March 10, 2016), available at

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-599.htm.

13

The Bay TMDL provides information pertaining to pollution reduction for nitrogen,

phosphorus and sediment in the Chesapeake Bay and applies to the District of Columbia

and the six “Bay” states, including Maryland. EPA, Chesapeake Bay TMDL at ES-1.20

Modeling

Before delving into Maryland’s role in the formation of the Bay TMDL, we must

discuss the “critical and valuable” role that modeling played in the Bay TMDL’s

development. EPA, Chesapeake Bay TMDL at ES-5.21 “Modeling is an approach that

uses observed and simulated data to replicate what is occurring in the environment to make

future predictions.” Id. “A model ‘is an abstraction from and simplification of the real

world.’” Am. Farm Bureau, 984 F. Supp. 2d at 340 (citation omitted). Models are essential

when one seeks to study “ecosystems that are too large or complex for real-world

monitoring,” such as the Chesapeake Bay and its watersheds. Chesapeake Bay Program,

About the Bay Program: Modeling, available at http://www.chesapeakebay.net/

about/programs/modeling (last visited Feb. 9, 2016) [hereinafter CBP: Modeling].

20

A multi-year congressional study revealed in 1983 that nitrogen and phosphorus

were major sources contributing to the Bay’s degradation. Ben Franklin, Chesapeake Bay

Study Citing Pollution Threats, N.Y. Times (Sept. 27, 1983) (“The reports said the steady

inflow of nitrogen and phosphorus . . . had caused large, offensive, blue-green ‘blooms’ of

algae on the bay’s surface. The algae growth consumes oxygen in the water and reduces

the penetration of sunlight, killing aquatic life in large areas of the bay.”). Former

Maryland Senator Charles Mathias was a chief supporter of this study. Id.

21

To be clear, the EPA did not rely exclusively on modeling to develop this TMDL

but also used monitoring and environmental research. EPA, Chesapeake Bay TMDL, at

5-19.

14

A prominent component in the modeling of the Bay TMDL was the Phase 5.3

Chesapeake Bay Watershed Model [“Phase 5.3 Model”]. EPA, Chesapeake Bay TMDL,

at 5-19.22 “The Phase 5.3 Model is the most recent of a series of increasingly refined

versions of the Chesapeake Bay Watershed Model.” EPA, Chesapeake Bay Phase 5.3

Community Watershed Model § 1.2.1, at 1-13 (2010), available at

http://www.chesapeakebay.net/about/programs/modeling/53/.23 The Phase 5.3 Model

simulates the “loading and transport of nitrogen, phosphorus, and sediment from pollutant

sources throughout the Bay watershed.” EPA, Chesapeake Bay TMDL, at 5-20.

Additionally, this model provides “estimates of watershed nitrogen, phosphorus, and

sediment loads resulting from various management scenarios.” Id.

Because models are not “perfect forecasts,” however, modeling is “part of a broader

toolkit,” including monitoring, “to gain the highest possible level of accuracy.” CBP:

Modeling. As the EPA explained: “The Bay modeling framework takes advantage of

decades of atmospheric deposition, streamflow, precipitation, water quality, biological

resource, and land cover monitoring data” as well as “tracking and reporting of the

22

The EPA has explained that “[t]he primary reason, and benefit, for applying a

watershed model for TMDL development typically is the ability to predict pollutant

generation from varying land uses and from multiple subwatersheds.” EPA, Handbook for

Developing Watershed TMDLs: Draft 58 (2008). As opposed to single-segment TMDLs,

watershed TMDLs involve the “simultaneous development of multiple TMDLs for

hydrologically linked impaired segments.” Id. at 3.

23

The District Court for the Middle District of Pennsylvania rejected American

Farm Bureau Federation’s challenge to the Phase 5.3 Model “as being insufficient for

allocations established at the sub-watershed level.” Am. Farm Bureau Fed’n, 984 F. Supp.

2d at 341–42. The American Farm Bureau Federation did not appeal this issue to the Third

Circuit. Am. Farm Bureau Fed’n, 792 F.3d at 294.

15

implementation of pollution load reduction best management practices.” EPA, Chesapeake

Bay TMDL, at § 5.1, 5-1–5-2. These resources allowed the EPA to calibrate its models.

Id.

Because the Bay TMDL exists in significant part as a result of modeling, and

because of how prevalent modeling is in TMDL formulation, MDE incorporated modeling

into the Permits.

MDE incorporated by reference a document the agency published, called

Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated,

Guidance for National Pollutant Discharge Elimination System Stormwater Permits (“the

Guidance”).24 As the name suggests, the document serves dual purposes: the Counties can

assess progress in achieving WLAs and also assess restoration of impervious surface areas

through a credits-to-acres approach.25 In the Guidance, MDE sets forth acceptable models

that the Counties can use, including, Maryland’s Assessment and Scenario Tool

(“MAST”).26 MDE, Guidance at 2. The Guidance includes the pollutant rates for the Bay

TMDLs—Total Nitrogen (“TN”), Total Phosphorus (“TP”), and Total Suspended

Sediment (“TSS”)—and requires that the Counties use these pollutant rates together with

land use data to calculate baseline stormwater loads. Id. at 2–3. As the document explains,

24

Although MDE did not incorporate the Guidance into the Montgomery County

Permit, we set forth in our discussion why the Guidance is nevertheless available to the

County in carrying out Permit requirements. See infra Discussion at pp. 42, 54 n.60.

25

We discuss the credits-to-acres approach in depth in the Discussion.

26

This model is accessible at www.mastonline.org.

16

“[t]hese pollutant loads are specific to the [] Bay TMDL.” Id. at 2. But the Counties may

use the principles and methods in the Guidance “for any EPA approved TMDL.” Id. at 1.

Maryland’s Watershed Implementation Plan (“WIP”)

The EPA developed the Bay TMDL to ensure that the Bay jurisdictions would put

in place “all pollution control measures needed to fully restore the Bay and its tidal rivers”

by 2025. EPA, Chesapeake Bay TMDL at ES-1. The EPA approved the Bay TMDL “only

after” determining that each jurisdiction provided “reasonable assurance” that it would

meet established pollutant reductions. Am. Farm Bureau Fed’n, 792 F.3d at 291. The Bay

jurisdictions set forth their strategies for meeting pollutant reductions in Watershed

Implementation Plans (“WIPs”). Id.

WIPs are “roadmaps” setting forth a plan for how and when a jurisdiction will reach

the pollution reduction goals in the Bay TMDL. EPA, Chesapeake Bay TMDL, at ES-8.

The EPA described these roadmaps as the “cornerstone” that ensured the States were

accountable in achieving pollution reductions. Id. Notably, the EPA expressed no

concerns about Maryland’s Final WIP,27 whereas the EPA had to implement backstop

allocations and adjustments in other Bay jurisdictions so that the EPA had reasonable

assurance that all jurisdictions would achieve necessary reductions. See EPA, Chesapeake

27

The EPA highlighted Maryland’s pursuit of legislation to fund urban stormwater

management programs as a specific improvement between the draft and final versions of

Maryland’s Watershed Implementation Plan (“WIP”). EPA, Bay TMDL ES-10; see H.B.

987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012); see also Maryland Code (1982, 2007 Repl.

Vol.), § 4-202.1(a)(1) of the Environment Article (“EN”).

17

Bay TMDL Executive Summary, ES-10–ES-13 (Dec. 29, 2010) [hereinafter “Bay TMDL

ES”].28

Maryland’s WIP lists restoration of “twenty percent of the counties’ impervious

surface area that is not already restored to the maximum extent practicable (MEP)” in the

“key elements” supporting the reasonable assurance of the implementation of the WIP.

Phase I WIP at 5-30. The elements also include the adaptive management approach

whereby additional or alternative practices are implemented if existing programs are not

meeting target reductions. Id.29

Maryland’s Stormwater Management History

In addition to an explication of the federal permitting system, NPDES, and the

complex components arising out of it, such as TMDLs, we also set forth Maryland’s

stormwater management program, which has evolved since its inception in the 1980s, and

which is informative for purposes of analyzing the Permits.

In 1982, the General Assembly enacted laws “to reduce as nearly as possible the

adverse effects of stormwater runoff.” Maryland Code (1982, 2007 Repl. Vol.), § 4-201

28

For example, in Pennsylvania, the EPA transferred half of the stormwater load

not subject to permit restriction to the wasteload allocation (and thus bringing the load

within the scope of a permit’s restrictions) to increase the reasonable assurance the state

would achieve pollutant allocations for urban stormwater discharge. EPA, Bay TMDL

ES-11.

29

Maryland allocated pollutant loads by sector. Thus, although its strategy to reduce

impervious surface area will help the State comply with the pollutant load requirements for

stormwater, Maryland will nevertheless have to implement other strategies to target other

sectors, such as agriculture, air, and wastewater. Department of Legislative Services,

Office of Policy Analysis, Achieving the Chesapeake Bay Restoration Mandate in

Maryland 3–4 (2012).

18

of the Environment Article (“EN”); see H.B. 1091, 1982 Gen. Assemb. Reg. Sess. (Md.

1982). As a result, each county and municipality in Maryland was required for the first

time to “adopt ordinances necessary to implement a stormwater management program” by

July 1, 1984. See EN § 4-202. Then authorized by the General Assembly, the Department

of Natural Resources issued regulations setting forth minimum control requirements and

design criteria for the counties and municipalities. See 10 Md. Reg. 881, 884–85 (May 13,

1983) (to be codified at COMAR 08.05.05).30 The regulations fostered the “primary goal”

of “maintain[ing] after development, as nearly as possible, the predevelopment runoff

characteristics” of the land. See EN § 4-203(b)(1); see also EN § 4-204(a) (Development

of land is prohibited without submitting a stormwater management plan and obtaining the

municipality’s or county’s approval of the plan.)

Maryland entered a new phase of stormwater management in the early 2000s.

Pursuant to EN § 4-203(b), MDE adopted regulations to “rectify the[] programmatic

shortcomings” of then-existing regulations that had provided “sparse guidance” on “water

quality enhancement.” 27 Md. Reg. 1167, 1168 (June 16, 2000) (to be codified at COMAR

26.07.02). Amending the stormwater regulations, MDE intended to “provide water quality

treatment of up to 90 percent of the average annual rainfall throughout the State, establish

ground water recharge standards, and outline a channel erosion control strategy,” as well

as “promote environmentally friendly site design.” Id. To fulfill this purpose, MDE

incorporated by reference the 2000 Maryland Stormwater Design Manual (“the Manual”).

30

MDE subsequently assumed the Department of Natural Resources’ position to

issue such regulations in 1987. S.B. 671, 1987 Gen. Assemb. Reg. Sess. (Md. 1987).

19

Id. at 1167, 1169.31 MDE required the counties and municipalities to revise their

ordinances to incorporate the Manual’s policies and practices by July 1, 2001. Id. at 1170.

The Manual “provide[d] designers a general overview on how to size, design, select

and locate BMPs at a new development site to comply with State stormwater performance

standards.” Center for Watershed Protection (“CWP”) & MDE, Manual, § 1.3, at 1.16.

There are 14 performance standards, including the water quality volume standard (“WQv”).

Id. § 1.2, at 1.13.

Another stormwater management phase began when the General Assembly required

MDE to mandate the use of environmental site design (“ESD”) in 2007. H.B. 786, Gen.

Assemb. Reg. Sess. (Md. 2007). ESD is best understood as those practices, such as “small-

scale stormwater management practices, nonstructural techniques, and better site

planning,” that “mimic natural hydrologic runoff characteristics and minimize the impact

of land development on water resources.” EN § 4-201.1(b); see, e.g., note 9 (green roofs).

MDE implemented regulations to this effect and explained that “[t]he goal of the

regulations is to maintain after development as nearly as possible, the predevelopment

runoff characteristics of the site being developed using ESD to the MEP.” 35 Md. Reg.

2191 (Dec. 5, 2008) (to be codified at COMAR 26.17.02).

31

The Center for Watershed Protection (“CWP”) produced a draft of the Manual in

1997 for the Water Management Administration pursuant to an agreement between MDE

and the Department of Natural Resources and a grant from the National Oceanic and

Atmospheric Administration. The Water Management Administration administers the

stormwater program for MDE. MDE, Water Management Permits (last visited Feb. 8,

2016) http://www.mde.maryland.gov/programs/permits/watermanagementpermits/pages/

permits/watermanagementpermits/index.aspx.

20

The Permits

MDE issued several series of MS4 permits to the Counties that preceded the Permits

before us today. See MDE, NPDES MS4 Permit Montgomery County Fact Sheet (2008)

(The first two permits were issued in 1996 and 2001.); MDE, Basis for Final Determination

to Issue Prince George’s County’s NPDES MS4 Permit (2013) (The first three permits

were issued in 1993, 1999, and 2004.); MDE, Basis for Final Determination to Issue

Baltimore County’s NPDES MS4 Permit (2013) (The first three permits were issued in

1994, 2000, and 2005.); MDE, Basis for Final Determination to Issue Anne Arundel

County’s NPDES MS4 Permit (2013) (The first three permits were issued in 1993, 1999,

and 2004.); MDE, Basis for Final Determination to Issue Baltimore City’s NPDES MS4

Permit (2013) (The first three permits were issued in 1993, 1999, and 2005.).32

At issue here are five-year term Permits MDE most recently issued: to Montgomery

County in February 2010, to Baltimore County in December 2014, to Baltimore City in

December 2013, to Prince George’s County in January 2014, and to Anne Arundel County

in February 2014.

The Water Groups challenge the Permits in several respects, namely, (1) the

requirement to restore impervious surface area, (2) the requirement to submit plans for

TMDLs, (3) the monitoring requirements, and (4) the public’s ability to participate in the

development of the Permits.

32

We shall sometimes refer to this agency document in the record as the Basis for

Final Determination.

21

Some of these provisions are new and therefore represent an increase in

responsibility on the Counties to maintain and improve the quality of their waters. See,

e.g., MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4

Permit (2013) (“These meetings resulted in the addition of more stringent conditions to

Anne Arundel County’s stormwater permit, in large part due to a regional and growing

focus on restoring Chesapeake Bay.”); id. (“New requirements in the permit will

include . . . developing restoration plans to meet stormwater WLAs for impaired waters.”);

MDE, NPDES Montgomery County Stormwater Permit Response to Formal Comments at

2 (2009) (“MDE believes that this current municipal stormwater permit will force

Montgomery County to make major strides toward controlling urban runoff better than

ever before. New conditions such as trash abatement jurisdiction-wide and requiring an

additional 20% of the County’s impervious area to be restored are major additions.”);33

MDE, Maryland’s 2006 TMDL Implementation Guidance for Local Governments i (2006)

(“Until recently, Maryland has focused primarily on TMDL development, which

establishes limits on pollutant loads. Now the State is moving into the implementation

phase . . . .”).

33

Cf. Montgomery County Department of Environmental Protection, Annual Report

NPDES MS4 Permit Montgomery County, Maryland III-56 (2003) (“The Permit requires

the County to track progress and evaluate effectiveness of implementing programs and

projects to restore a drainage area ‘equaling ten percent of Montgomery County’s

impervious area that has not been treated to the maximum extent practicable’ (10%

goal).”).

22

Before discussing these Permit provisions, we note additional Permit requirements

that illustrate the breadth of the Counties’ obligations. The Counties must implement

management programs “to control stormwater discharges to the maximum extent

practicable.” These programs include a stormwater management program (“SWMP”) and

an erosion and sediment control program in accordance with state law; an “illicit discharge

detection and elimination” program; requirements to reduce trash; obligations on the

Counties to reduce pollutants associated with maintenance activities and on municipal

facilities to submit pollution prevention plans; as well as a requirement to engage in public

outreach activities to reduce stormwater pollution.

The Permits also require the Counties to engage in thorough analyses of the water

quality of their watersheds. Among other things, the watershed assessments oblige the

Counties to identify and prioritize water quality improvement projects.

MDE has also ensured that the Counties cannot use lack of adequate funding as a

defense for failure to comply with Permit terms. The Permits explain that “[l]ack of

funding does not constitute a justification for noncompliance with the terms of this

permit.”34 To this end, the General Assembly enacted EN § 4-202.1 in 2012, requiring the

Counties “to adopt local laws or ordinances necessary to establish an annual stormwater

remediation fee and a local watershed protection and restoration fund to provide financial

assistance for the implementation of local stormwater management plans.” H.B. 987, 2012

Gen. Assemb. Reg. Sess. (Md. 2012); see also EN § 4-202.1(a)(1) (This “section applies

See Montgomery County Permit Part III.I.2 (“Adequate program funding to

34

comply with all conditions of this permit shall be maintained.”).

23

to a county or municipality that is subject to a [NPDES Phase I MS4 permit].”).35 MDE

had investigated the costs of meeting the Bay TMDL and commissioned a study that

revealed that “stormwater BMPs likely represent the largest costs to local governments in

implementing the TMDL.” H.B. 987, 2012 Gen. Assemb. Reg. Sess. (Md. 2012).

The Permits also contain annual reporting requirements for: (1) the components of

the stormwater management programs, and (2) data pertinent to the assessment of progress

in implementing the Permit requirements, such as impervious surfaces and pollutant load

reductions. MDE will review the Counties’ reports to assess “progress toward meeting

WLAs developed under EPA approved TMDLs” and the effectiveness of the programs in

“reducing the discharge of pollutants to the MEP to protect water quality.” MDE will

require BMP and program modifications if the Counties fail to comply with the Permit or

show progress.

The Permits also contain provisions setting forth sanctions for the violation of

Permit conditions, including civil and criminal penalties. See, e.g., Montgomery County

NPDES Permit Part VI.C (“Failure to comply with a permit provision constitutes a

violation of the CWA and is grounds for enforcement action; permit termination,

revocation, or modification; or denial of a permit renewal application.”).

35

The General Assembly amended EN § 4-202.1 in 2015 by repealing the mandate

that the relevant counties collect a stormwater remediation fee and instead “authoriz[ing]

such jurisdictions to do so.” S.B. 863, 2015 Gen. Assemb. Reg. Sess. (Md. 2015)

(emphasis in original).

24

Circuit Court and Court of Special Appeals Opinions

EN § 1-601 provides for judicial review of MDE’s final determination to issue a

permit.36 The Water Groups37 challenged the Permits in the various counties where MDE

issued them.

The Circuit Court for Montgomery County remanded for MDE to revise the Permit

in accordance with its opinion and order. In a reported opinion, the Court of Special

Appeals affirmed. Md. Dep’t of the Env’t v. Anacostia Riverkeeper, 222 Md. App. 153,

157, 112 A.3d 979, 981 (2015), cert. granted, 443 Md. 734, 118 A.3d 861. MDE filed a

petition for writ of certiorari, which we granted.

The Circuit Court for Baltimore County, the Circuit Court for Anne Arundel

County, and the Circuit Court for Prince George’s County affirmed MDE’s decision to

issue those Permits. The Water Groups filed notices of appeal to the Court of Special

Appeals and, upon MDE’s motion, the Court of Special Appeals consolidated these three

cases. MDE then filed a petition for writ of certiorari to this Court with questions nearly

identical to those MDE submitted in its petition for writ of certiorari with respect to the

Montgomery County Permit.

36

The statutory requirements for judicial review, which include standing, are not in

dispute. See EN § 1-601. The Court of Special Appeals determined that Anacostia

Riverkeeper and other environmental groups had standing to challenge the Montgomery

County Permit in Case No. 42. We reach the same conclusion with respect to all parties in

the four other challenges in the circuit courts.

37

Although we refer to the Water Groups collectively, we recognize that different

coalitions within the Water Groups challenged the Permits in each County rather than each

environmental group participating in the challenge before the circuit court in each County.

25

Finally, the Circuit Court for Baltimore City also affirmed MDE’s decision to issue

the Baltimore City Permit. The Water Groups filed a notice of appeal, and the Mayor &

City Council of Baltimore (“Baltimore City”) filed a petition for writ of certiorari with a

request that we consider this petition in conjunction with MDE’s petitions. We granted the

City’s petition.

As the Water Groups state in their brief, “the underlying Permits are substantively

identical” and “are affected by the same legal defects.” We agree that the Permits are so

substantively similar that we will analyze the agreed upon questions brought before the

Court with respect to all the challenged Permits. We have slightly rephrased the questions:

1. Did the MS4 permits issued by MDE for the counties’

municipal storm sewer system appropriately incorporate by

reference publicly available materials and was the

requirement for restoration of 20% of pre-2002 developed

impervious surfaces specific, measurable, and enforceable?

2. Was MDE’s final decision to issue the permits with a 20%

restoration requirement based upon the State’s Chesapeake

Bay TMDL strategies, and a reporting requirement to

establish strategies to address wasteload allocations,

supported by substantial evidence?

3. Do the provisions of the MS4 permits that require that the

public have an opportunity to review and comment on

restoration plans intended to meet the wasteload allocations

established for the permittees under applicable total

maximum daily loads satisfy public participation

requirements?

4. Do the provisions of the MS4 permits satisfy federal

monitoring requirements?

We uphold MDE’s decision to issue the Permits on all grounds. Thus, we reverse

the judgment of the Court of Special Appeals, which did not uphold the Montgomery

26

County Permit, and we affirm the judgments of the circuit courts, which upheld the Permits

in Anne Arundel County, Baltimore City, Baltimore County, and Prince George’s County.

STANDARD OF REVIEW

Before 2009, challenges to the issuance or denial of a discharge permit were subject

to a contested case hearing. Md. Code (1984, 2014 Repl. Vol.), § 10-222 of the State

Government Article (“SG”), which is part of Maryland’s Administrative Procedure Act,

delineates the grounds upon which a court can reverse an agency decision in a contested

case. Specifically, SG § 10-222 provides that a court can reverse an agency decision in a

contested case that “is unsupported by competent, material, and substantial evidence in

light of the entire record as submitted” or that “is arbitrary or capricious.”

In 2009, the General Assembly changed the procedures for challenging a discharge

permit. EN § 1–601 now permits direct judicial review of agency permitting decisions

without a contested case hearing. Although this statute does not set forth a standard of

review, the substantial evidence and arbitrary and capricious standards apply where an

“organic statute” authorizes judicial review without a contested case hearing and does not

set forth a standard of review. See Supervisor of Assessments of Carroll Cnty. v. Peter &

John Radio Fellowship, Inc., 274 Md. 353, 355, 335 A.2d 93, 94 (1975) (“Our cases have

held that where no scope of review is thus provided, decisions of an administrative body

will not be disturbed on appeal unless they are not supported by substantial evidence or are

arbitrary, capricious or unreasonable.”) (citations omitted); Med. Waste Assocs., Inc. v. Md.

Waste Coal., Inc., 327 Md. 596, 621, 612 A.2d 241, 253 (1992) (“In an action for judicial

review of an administrative decision granting a permit, however, the court determines not

27

only whether the agency’s decision to issue the permit was in accordance with law, but

also whether the particular administrative decision was arbitrary, capricious or unsupported

by substantial evidence in light of the record as a whole.”). Thus, even though all

challenges going to the merits of the Permits in these consolidated cases originated in the

Circuit Courts,38 we will review MDE’s decision to issue the Permits under the substantial

evidence and arbitrary and capricious standards of review.

Applying the substantial evidence standard of review to a case where no contested

case hearing took place may seem anomalous because there is no formal record that was

presented before an administrative law judge. EN § 1-606, however, expressly details

the documents that can be included in a record. EN § 1-606(c)(1)-(9).39 For example,

38

The Water Groups initiated a challenge to the Montgomery County Permit before

the General Assembly amended the Environmental Article and thus, the dispute over this

Permit was the subject of a contested case hearing. The administrative law judge (“ALJ”)

concluded that the Water Groups lacked standing to challenge the Permit, but this was

appealed. The Court of Special Appeals eventually held that the Water Groups did in fact

have standing and remanded for consideration of the underlying substantive issues. The

General Assembly, however, changed the procedures for challenging a discharge permit

during this time. As a result, it was the circuit court that first held a hearing on the merits

of the issuance of the Montgomery County Permit. Thus, no issues involving the merits of

this Permit were addressed in a contested case hearing.

39

EN § 1-606(c) provides:

Any judicial review of a determination provided for in accordance with § 1-601

of this subtitle or § 5-204 or § 16-204 of this article shall be limited to a record compiled

by the Department or Board, consisting of:

(1) Any permit or license application and any data submitted to the

Department or Board in support of the application;

(2) Any draft permit or license issued by the Department or Board;

(3) Any notice of intent from the Department or Board to deny the

application or to terminate the permit or license;

28

EN § 1-606 stipulates that any draft permit, comments submitted to MDE during the public

comment period, transcripts of public hearings on the permit application, and responses to

submitted comments constitute part of the administrative record. Thus, we are essentially

reviewing the same record that we would have examined, excluding the administrative law

judge’s decision, had the merits of this case been subject to a contested case proceeding.

Accordingly, our review of the issuance of the Permits fits within the substantial evidence

standard of review contemplated by SG § 10-222.

In a review for substantial evidence, we ask “whether a reasoning mind reasonably

could have reached the factual conclusion the agency reached.” Najafi v. Motor Vehicle

Admin., 418 Md. 164, 173, 12 A.3d 1255, 1261 (2011). We should accord deference “‘to

the agency’s fact-finding and drawing of inferences’” when the record supports them. Id.

(citation omitted); see Mayor & Aldermen of City of Annapolis v. Annapolis Waterfront

Co., 284 Md. 383, 399, 396 A.2d 1080, 1089 (1979) (“The court may not substitute its

judgment on the question whether the inference drawn is the right one or whether a

(4) A statement or fact sheet explaining the basis for the determination

by the Department or Board;

(5) All documents referenced in the statement or fact sheet explaining

the basis for the determination by the Department or Board;

(6) All documents, except documents for which disclosure is

precluded by law or that are subject to privilege, contained in the supporting

file for any draft permit or license;

(7) All comments submitted to the Department or Board during the

public comment period, including comments made on the draft application;

(8) Any tape or transcript of any public hearings held on the

application; and

(9) Any response to any comments submitted to the Department or

Board.

29

different inference would be better supported. The test is reasonableness, not rightness.”)

(citation and internal quotation marks omitted). Moreover, we shall review the agency’s

decision “‘in the light most favorable to it.’” Najafi, 418 Md. at 173, 12 A.3d at 1261.

Finally, we must accord an agency great deference regarding factual questions involving

scientific matters in its area of technical expertise. Bd. of Physician Quality Assurance v.

Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999) (“[T]he expertise of the agency in its

own field should be respected.”).

We have characterized the arbitrary and capricious standard of review as one that is

“extremely deferential.” Harvey v. Marshall, 389 Md. 243, 299, 884 A.2d 1171, 1205

(2005). In reviewing the issuance of an NPDES permit, the U.S. Court of Appeals for the

Second Circuit quoted language derived from Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)—the United States Supreme Court’s leading

case on the arbitrary and capricious standard:

To determine whether the agency’s actions were “arbitrary and

capricious,” we consider whether the agency ‘relied on factors

which Congress has not intended it to consider, entirely failed

to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be

ascribed to a difference in view or the product of agency

expertise.’

Natural Res. Def. Council, 808 F.3d at 569 (citations and quotation marks omitted). The

court also elaborated that “[w]e must be ‘satisfied from the record that the agency . . .

examine[d] the relevant data and articulate[d] a satisfactory explanation for its action’” and

that it “afford[ed] the agency’s decision greater deference regarding factual questions

30

involving scientific matters in its area of technical expertise.” Id. (quoting State Farm, 463

U.S. at 43) (citations and internal quotation marks omitted). The Second Circuit’s

articulation of the arbitrary and capricious standard is in accord with Maryland’s treatment

of this standard as one that is highly deferential. See Harvey, 389 Md. at 299, 884 A.2d at

1205. We are therefore mindful of the Second Circuit’s explanation of the principles

underlying the arbitrary and capricious standard when applying that standard to this case.40

In addition, we will review an agency decision for an error of law. When our review

concerns a legal question, we apply less deference to the agency’s conclusions. HNS Dev.,

LLC v. People’s Counsel for Balt. Cnty., 425 Md. 436, 449, 42 A.3d 12, 20 (2012). We

refuse to uphold an agency decision “premised solely upon an erroneous conclusion of

law.” Id. (citation omitted) (internal quotation marks omitted). Otherwise, we ordinarily

should give “considerable weight” to an agency’s “interpretation and application of the

statute which [it] administers.” W.R. Grace & Co. v. Swedo, 439 Md. 441, 453, 96 A.3d

210, 217 (2014); John A. v. Bd. of Educ. for Howard Cnty., 400 Md. 363, 381–82, 929

A.2d 136, 147 (2007) (“In reviewing an agency’s legal conclusions, it is a fundamental

40

Case law from the U.S. Court of Appeals for the D.C. Circuit, the preeminent

federal appellate court for review of administrative action, is also helpful in understanding

the degree of deference accorded under the arbitrary and capricious standard. In

Weyerhaeuser Co. v. Costle, the court noted that in light of the structure and aims of the

Clean Water Act, “and the breadth of authority delegated by it to the EPA to identify highly

sophisticated control technology in an area fraught with scientific uncertainty,” its review

of the agency’s action “encounter[ed] significant limitations in the substantive aspect

where the given statutory standards are ‘arbitrary,’ ‘capricious,’ or ‘abuse of discretion.’”

590 F.2d 1011, 1025 (D.C. Cir. 1978). The court highlighted that “an expansive concept

and exercise of the review power [by numerous courts] charged with that function could

easily impede accomplishment of the [Clean Water] Act’s ambitious pollution-ending

aspiration as well as its goal of industry-by-industry uniformity.” Id.

31

principle of administrative law that a reviewing court should not substitute its judgment for

the expertise of those persons who constitute the administrative agency.”).

DISCUSSION

Part I: The 20% Restoration Requirement

The Permits require, by the end of the five-year term, that the Counties restore 20%

of the impervious surface areas in their watersheds that have not been restored to the MEP.

This requirement “uses percent impervious cover in a watershed as a surrogate TMDL

target.” ENSR, Pilot TMDL Applications Using the Impervious Cover Method § 1.0, at

1-1 (2005). Like so much of this case, we must unpack the science before we analyze the

parties’ arguments.

As we develop on land, science has shown us that we profoundly impact our waters.

Consider, for example, when “[t]rees, meadow grasses, and agricultural crops that had

intercepted and absorbed rainfall are removed . . . .” CWP & MDE, Manual, § 1.1, at 1.3.

Problematically, “[c]leared and graded sites erode, are often severely compacted, and can

no longer prevent rainfall from being rapidly converted into stormwater runoff.” Id.

These kinds of sites are known as impervious surfaces, surfaces “that do[] not allow

stormwater to infiltrate into the ground,” such as “rooftops, driveways, sidewalks, or

pavement.” EN § 4-201.1(d). “Impervious surfaces accumulate pollutants deposited

from the atmosphere,” pollutants which are “rapidly delivered to downstream waters”

during storms. CWP & MDE, Manual, § 1.1.1, at 1.5. The purpose of the 20% restoration

requirement, then, is to use stormwater management practices to restore the natural,

32

beneficial processes in our environment that we have changed by developing impervious

surfaces.

In other words, the 20% restoration requirement is a surrogate because the

requirement does not control pollution reduction directly. See ENSR, Pilot TMDL

Applications Using the Impervious Cover Method § 1.0, at 1-1. Rather, it is through

restoring impervious surfaces with management practices that the Counties will reduce

pollution. See, e.g., CWP & MDE, Manual, § 1.2, at 1.13 (“[Management practices] shall

be designed to remove 80% of the average annual post development total suspended solids

load (TSS) and 40% of the average annual post development total phosphorus load (TP).”).

A. Maximum Extent Practicable

The Water Groups argue that the 20% restoration requirement is too opaque to

comply with 33 U.S.C. § 1342(p)(3)(B)(iii), the MEP standard. They so argue because,

they contend, MDE “failed to provide a specific performance standard for restoration

activities” or a “numeric limitation . . . for what pollution reductions must be accomplished

by the permittees’ twenty-percent restoration efforts.” They also argue that MDE failed to

explain what impervious surface is “not restored to the MEP.”

We disagree because (1) the applicable law does not impose a specific performance

standard on MS4s and (2) MDE did actually select a performance standard for the Counties

to adhere to. 33 U.S.C. § 1342(p)(3)(B)(iii) states:

Permits for discharges from municipal storm sewers shall

require controls to reduce the discharge of pollutants to the

maximum extent practicable, including management practices,

control techniques and system, design and engineering

33

methods, and such other provisions as the Administrator or the

State determines appropriate for the control of such pollutants.

From the text, we discern that Congress established a broad requirement for MS4s. The

list of required controls is not exclusive. See 55 Fed. Reg. at 48,038 (“[MS4] controls may

be different in different permits.”). And the purpose of the controls—reducing the

discharge of pollutants—exists alongside the flexible, undefined standard “to the

maximum extent practicable.” See City of Abilene v. EPA, 325 F.3d 657, 659–60 (5th Cir.

2003); Natural Res. Def. Council, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 25

N.Y.3d 373, 406 (N.Y. 2015) (Rivera, J., dissenting in part) (“The CWA does not define

the maximum extent practicable standard. However, it appears to provide broad authority

to agencies to control stormwater pollution.”); 55 Fed. Reg. at 48,038 (“In enacting section

405 of the WQA [Water Quality Act], Congress recognized that permit requirements for

[MS4s] should be developed in a flexible manner to allow site-specific permit conditions

to reflect the wide range of impacts that can be associated with these discharges.”).

33 U.S.C. § 1342(p)(3)(B)(iii) imposes no minimum standard or requirement on

MDE other than to establish controls for MS4s to reduce the discharge of pollutants. See

Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1308 (9th Cir. 1992) (“Congress

did not mandate [in § 1342(p)(3)(B)(iii)] a minimum standards approach or specify that

EPA develop minimal performance requirements. . . . . Congress could have written a

statute requiring stricter standards, and it did not.”). Thus, we reject the Water Groups’

34

argument that MDE committed legal error by “fail[ing] to provide a specific performance

standard for restoration activities.”41

Moreover, MDE tethered restoration to the practices in the Manual, which MDE

incorporates into the Permits by reference. See Part III.E (“These management programs

are designed to control stormwater discharges to the maximum extent practicable . . . .”);

Part III.E.1 (“At a minimum, the County shall . . . [i]mplement the stormwater management

. . . practices found in the [Manual] . . . .”). The Manual explains that the list of acceptable

stormwater management practices is tied to the WQv. “The Water Quality Volume

(denoted as the WQv) is the storage needed to capture and treat the runoff from 90% of the

average annual rainfall.” CWP & MDE, Manual, § 2.1, at 2.2. 42 The Manual further

explains that the “WQv is directly related to the amount of impervious cover created at a

41

A review of the EPA’s guidance on MS4s shows that the restoration requirement

does have a numeric limitation—20%, which denotes the minimum percentage of

impervious surface with respect to which the Counties must implement stormwater

management practices from the Manual in order to fulfill this Permit requirement. See

EPA, 2014 Memo at 4 n.5. (A numeric effluent limitation has “a quantifiable or measurable

parameter related to a pollutant . . . . Numeric WQBELs may include . . . limits on pollutant

discharges by specifying parameters such as . . . percentage or amount of effective

impervious cover . . . .”). In other words, the EPA’s guidance shows that numeric limits

need not be limits on pollution reduction to be acceptable. The limits can, alternatively,

specify parameters such as percentage of impervious cover.

42

By connecting restoration practices to the water quality volume (“WQv”)

standard, MDE acted in accordance with the EPA’s then most recent guidance on the

development of BMPs. See EPA, Revisions to the November 22, 2002 Memorandum

“Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for

Storm Water Sources and NPDES Permit Requirements Based on Those WLAs” 3 (Nov.

12, 2010) (“Where WQBELs in permits for stormwater discharges from MS4s . . . . are

expressed in the form of BMPs, the permit should contain objective and measurable

elements (e.g., schedule for BMP installation or level of BMP performance).”) [hereinafter

“2010 Memo”].

35

site.” Id. In other words, MDE chose a standard that relates to the very problem the 20%

restoration requirement serves to abate: the increase in stormwater runoff and the discharge

of pollutants because of the increase in impervious surfaces. See CWP & MDE, Manual,

§ 1.1., at 1.4 (“As can be seen, the volume of stormwater runoff increases sharply with

impervious cover.”). Thus, the record reflects that MDE has established a performance

standard, WQv, that defines as acceptable those practices the Counties may choose from to

fulfill the 20% restoration requirement. See id. § 2.7 (Acceptable Urban BMP Options).

Moreover, our discussion of restoration is instructive as to why, despite the Water

Groups’ contention, the “impervious surface area that is not restored to the MEP” is

sufficiently clear and measurable. (Emphasis added.) The area that is not restored to the

MEP is the area without the restoration controls described in the Manual. Moreover, the

Manual explains that impervious area refers to an area “that does not have vegetative or

permeable cover.” CWP & MDE, Manual, § 2.1, at 2.4. Put together, the “impervious

surface area that is not restored to the MEP” refers to a defined type of area (impervious

surface) lacking a type of stormwater management control (the BMPs in the Manual). By

way of example, previous MS4 reports delineate these criteria so that MDE can evaluate

whether Montgomery County (in this example) installed the required controls. See

Montgomery County Department of Environmental Protection, Annual Report for 2006

NPDES MS4 Permit F2, at III-64; see also 33 U.S.C. § 1342(p)(3)(B)(iii) (MS4 permits

“shall require controls” such as management practices.).

Because 33 U.S.C. § 1342(p)(3)(B)(iii) does not require a specific performance

standard, and because the concepts of restoration and impervious surface “not restored

36

to the MEP” are sufficiently clear as to the controls that the Counties must install, the

20% restoration requirement in the Permits complies with the MEP standard. See 33

U.S.C. § 1342(p)(3)(B)(iii).

B. Substantial Evidence and Arbitrary and Capricious

The Water Groups also argue that MDE has not explained why it selected 20% as

the restoration goal or how this Permit provision will promote necessary pollution

reduction. The Water Groups contend that MDE ineffectively justifies its choice based on

the Bay TMDL because the Permits do not assure that the Counties will achieve the Bay

TMDL’s objectives or reductions. Even accepting a connection between the 20%

restoration requirement and the Bay TMDL, the Water Groups argue that MDE still failed

to take into account numerous other TMDLs related to the Counties’ waters.

We disagree with the Water Groups’ position because (1) the applicable law affords

permitting authorities flexibility in establishing controls for MS4s and (2) MDE has

justified its decision based on a well-developed and vetted strategy. Natural Res. Def.

Council, 808 F.3d at 569 (citation and internal quotation marks omitted). (“We must be

‘satisfied from the record that the agency . . . examine[d] the relevant data and articulate[d]

a satisfactory explanation for its action.’”).

Congress established a flexible framework in 33 U.S.C. § 1342(p)(3)(B)(iii). As

the text states, MS4s shall require controls “and such other provisions as the

Administrator or the State determines appropriate for the control of such pollutants.”

33 U.S.C. § 1342(p)(3)(B)(iii) (emphasis added). MDE has determined that the 20%

restoration requirement is a key strategy in restoring the Chesapeake Bay. See Part VI.A

37

(Chesapeake Bay Restoration by 2025.). The Permits in particular state that the Counties

will carry out the 20% restoration requirement in order to comply with the Bay TMDL. Id.

A review of Maryland’s Watershed Implementation Plan (“WIP”) is instructive as

to why the 20% restoration requirement will help to restore the Chesapeake Bay. MDE,

Basis for Final Determination. As we have discussed, WIPs are “roadmaps” setting forth

a plan for how and when a jurisdiction will reach the pollution reduction goals in the Bay

TMDL. EPA, Bay TMDL ES at ES-8. The EPA developed the Bay TMDL “in reliance

on” the WIPs that each affected jurisdiction submitted to the EPA. Am. Farm Bureau

Fed’n, 792 F.3d at 291 (emphasis added). Moreover, the EPA approved the Bay TMDL

“only after” determining that each jurisdiction provided “reasonable assurance” that it

would meet the pollutant reductions in its WIP. Id. (emphasis added); see EPA, Bay TMDL

ES at ES-8 (The WIPs are the “cornerstone” that ensures accountability to achieve

pollution reductions).43

Importantly, the strategies in Maryland’s WIP for urban stormwater include, among

other things, the reduction of impervious surface area by 20% over a five-year period, just

as the Permits do. Compare Maryland Phase I Watershed Implementation Plan: Executive

Summary ES-15 (Dec. 3, 2010) [hereinafter Phase I WIP ES], with Part III.G.2. In fact,

restoration of “twenty percent of the counties’ impervious surface area that is not already

restored to the maximum extent practicable (MEP)” is listed in the “key elements” that

43

Notably, the EPA expressed no concerns about Maryland’s WIP, whereas the

EPA had to implement backstop allocations and adjustments in other Bay jurisdictions so

that the EPA had reasonable assurance that all jurisdictions would achieve necessary

reductions. See EPA, Bay TMDL ES at ES-10–13.

38

provide reasonable assurance of the implementation of Maryland’s WIP. Maryland Phase

I Watershed Implementation Plan: § 5.2.2, at 5-30 (Dec. 3, 2010).

MDE incorporated another important element from the WIP to bolster compliance

with the 20% restoration requirement. The EPA explained that the WIPs were to include

“mechanisms to track and report implementation activities” and “provide alternative

approaches.” EPA, Chesapeake Bay TMDL ES at ES-8–ES-9. Maryland’s WIP thus

includes what we refer to as the adaptive management approach, whereby additional or

alternative practices are implemented if existing programs are not meeting target reductions.

Phase I WIP at 5-30.44 MDE incorporated this approach from the WIP into the Permits as

part of the agency’s review of the Counties’ annual reports: “BMP and program

modifications shall be made” if the Counties fail to comply with the Permits or fail to show

progress in meeting WLAs of EPA-approved TMDLs.45 We are satisfied from the record

that MDE “examine[d] the relevant data and articulate[d] a satisfactory explanation for its

action.” Natural Res. Def. Council, 808 F.3d at 569 (citations and internal quotation marks

omitted). We conclude, then, that MDE’s decision to include the 20% restoration

44

We also sometimes refer to this as the “iterative” process, a phrase MDE uses to

refer to the same sequence of events in the Permits.

45

We will explore the relationship between TMDLs and WLAs in more detail in

our discussion of the Water Groups’ challenge to the TMDL planning requirement in the

Permits.

39

requirement in the Permits was supported by substantial evidence and is not arbitrary and

capricious.46

Although we recognize that MDE issued the Montgomery County Permit before

Maryland’s WIP and the Bay TMDL were prepared, the Bay TMDL was not an isolated

event. See Am. Farm Bureau, 984 F. Supp. 2d at 298 (The Bay TMDL “is not a new or

recent idea,” and thus, “it would be improper to view the Final TMDL in a vacuum as a

single, isolated effort to restore water quality to the Chesapeake Bay.”). As we have

discussed, an important prior effort to restore the Chesapeake Bay was the Chesapeake

2000 Agreement. To achieve the restoration goals of that agreement, the Governor of

Maryland’s Chesapeake Bay Cabinet prepared a draft of the State’s plan. Department of

Legislative Services, Office of Policy Analysis, Chesapeake Bay Restoration and the

Tributary Strategy: An Analysis of Maryland’s Efforts to Meet the Nutrient and Sediment

Reduction Goals of the Chesapeake 2000 Agreement iii (2007). The strategy for

stormwater included restoration of impervious surface in Montgomery County, the first

County to successfully implement this program. Id. at 13. The State conceived of this

46

To the extent that the Water Groups seek to challenge the soundness of a past

action, i.e., Maryland’s WIP, this is not the proper forum for such a challenge. See In re

City of Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721, at *17 (EAB July 27, 2001)

(“[W]e find that this is not the appropriate forum for raising this issue [of a time period

incorporated into a TMDL]. We agree with the Region (Ten of the EPA) that Petitioner’s

allegations are in essence challenges to,” among other things, “the Region’s decision to

approve the Paradise Creek TMDL.” Petitioner “should have” raised that challenge

earlier.). As to the soundness of Maryland’s WIP, for example, the Water Groups should

have raised that challenge in the litigation over the EPA’s decision to promulgate the Bay

TMDL. See Brief for Water Groups at 40, Blue Water Balt. v. Md. Dep’t of the Env’t (No.

44) (“Nor does Appendix A to the Phase II WIP . . . explain how the twenty-percent

restoration requirement relates to the need to reduce the discharge of pollutants . . . .”).

40

strategy as an effective state-wide method of improving the Chesapeake Bay. See

Maryland’s Chesapeake Bay Tributary Strategy Statewide Implementation Plan 16 (2008)

(stormwater strategy). Thus, MDE’s decision to include the 20% restoration requirement

in the Montgomery County Permit was also supported by substantial evidence and was not

arbitrary and capricious.

We further disagree with the Water Groups’ position that the 20% restoration

requirement is insufficient because it does not relate to other TMDLs. Indeed, the Permits

incorporate a requirement to submit plans regarding WLAs for all EPA-approved TMDLs.

That requirement ensures the Permits address all applicable TMDLs.47

C. The Methodology in the Guidance

Finally, with respect to the 20% restoration requirement, the Water Groups object

to MDE’s method of calculating impervious surface area not restored to the MEP. They

assert that the Guidance, which MDE incorporated into these Permits by reference, is

flawed because MDE arbitrarily selected 2002 as the baseline for measuring impervious

surface area. For example, the Water Groups allege that MDE has ignored the current

definition for MEP in the agency’s own regulations.

47

We also find unpersuasive the Water Groups’ reliance on the EPA’s discussion

of the MEP standard when the EPA promulgated rules for MS4 permitting. See NPDES—

Regulations for Revision of the Water Pollution Control Program Addressing Storm Water

Discharges, 64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999). Although the Water Groups stress

that “specific local concerns” are a factor for MS4s to consider in selecting controls to

reduce pollutant discharges, that factor is one of many from a non-exclusive list. The more

enlightening aspect of the EPA’s commentary is that the agency “intentionally [did] not

provide[] a precise definition of MEP to allow maximum flexibility in MS4 permitting.”

Id.

41

We disagree with the Water Groups because MDE reasonably justifies its decision

based on the accurate determination that 2002 marked a significant milestone in the State’s

treatment of water quality. See Najafi, 418 Md. at 173, 12 A.3d at 1261 (discussing the

substantial evidence test); Natural Res. Def. Council, 808 F.3d at 569 (discussing the

arbitrary and capricious test).

MDE explained its selection of 2002 in the Guidance: “Maryland regulations and

local ordinances began requiring BMPs [around this time] to address a specific suite of

volumes [recharge (Rev), water quality (WQv), and channel protection (Cpv)] and it can

therefore be justified that water quality treatment has been provided to the MEP.” MDE,

Guidance at 4. In proposing new regulations for stormwater management in 2000, MDE

explained: “The resulting program will provide water quality treatment of up to 90 percent

of the average annual rainfall throughout the State, establish ground water recharge

standards, and outline a channel erosion control strategy.” 27 Md. Reg. at 1168.

Additionally, MDE explained that prior regulations had provided “sparse guidance” on

“water quality enhancement.” Id. To bolster MDE’s focus on water quality, the agency

incorporated the Manual by reference into the 2000 regulations. See id. at 1170; see also

CWP & MDE, Manual § 2.1, at 2.2 (“The WQv is directly related to the amount of

impervious cover created at a site.”).

The Water Groups reject MDE’s decision by arguing that Maryland’s regulations

currently define “maximum extent practicable” based on a different requirement the State

imposed after 2002. That is, COMAR 26.17.02.02B(22) defines MEP as the design of

“stormwater management systems so that all reasonable opportunities for using ESD

42

planning techniques and treatment practices are exhausted and, only where absolutely

necessary, a structural BMP is implemented.” (Emphasis added.)

MDE has explained, however, that pursuant to the Stormwater Management Act of

2007, which precipitated the regulatory change the Water Groups refer to,48 the

performance requirement ESD pertains to “future development,” not to restoration. MDE,

Basis for Final Determination. As set forth in EN § 4-203(b)(1), “[t]he rules and

regulations shall [i]ndicate that the primary goal of the State and local programs will be to

maintain after development, as nearly as possible, the predevelopment runoff

characteristics.”) (emphasis added). See also COMAR 26.17.02.01B (“These regulations

for stormwater management apply to the development or redevelopment of land . . . .”).

MDE has reached a correct legal conclusion, and one regarding the law in which the agency

has expertise. See John A., 400 Md. at 381–82, 929 A.2d at 147 (“In reviewing an agency’s

legal conclusions, it is a fundamental principle of administrative law that a reviewing court

should not substitute its judgment for the expertise of those persons who constitute the

administrative agency.”). We find no error here.

Although the agency selected ESD as the MEP via regulation in 2009,49 MDE chose

2002 because that year marked the beginning of the stormwater management era when

BMPs were subjected to performance standards to better treat water quality. 27 Md. Reg.

at 1168. WQv is one such standard. CWP & MDE, Manual § 1.2, at 1.13. The Manual

48

See Fiscal and Policy Note, H.B. 786, 2007 Sess. (2007).

49

See 36 Md. Reg. 652, 652 (April 24, 2009) (to be codified at COMAR

26.17.02.02B(22)).

43

shows a direct relationship between the amount of impervious surface and WQv. Id. § 2.1,

at 2.3 (Figure 2.2). Thus, beginning in 2002, Maryland connected stormwater management

practices to the restoration of impervious surface area, which is the Permit requirement at

issue. MDE’s conclusion that the Counties should calculate impervious surface area using

2002 as a baseline as part of the 20% restoration requirement was supported by substantial

evidence and was not arbitrary and capricious. See Banks, 354 Md. at 69, 729 A.2d at 381

(“[T]he expertise of the agency in its own field should be respected.”).50

Because we uphold the Guidance as a component the Counties may legally use to

achieve the 20% restoration requirement, we must address whether Montgomery County

can use this methodology, too. We recognize that MDE issued the Montgomery County

Permit before MDE prepared the Guidance. Compare Montgomery County Permit: Part

I: C (Effective Date: February 16, 2010), with MDE, Basis for Final Determination at 10

(MDE held meetings with the Counties about the Guidance from August 2010 to February

2011 before completing it in June 2011.). As we have discussed, MDE limited the practices

the County could implement by connecting restoration to the Manual. But, importantly,

MDE did not limit the manner in which Montgomery County could show its compliance

with the 20% restoration requirement. See, e.g., Montgomery County Permit: Part G.2

50

Moreover, MDE explained that it designed the Permit to incentivize use of ESD

even though it did not tailor the 20% restoration requirement to this concept. MDE, Basis

for Final Determination (“[T]he Guidance clearly shows that ESD practices will be given

greater pollutant load reductions than other acceptable water quality treatment practices.”);

see MDE, Accounting for Stormwater Wasteload Allocations and Impervious Acres

Treated, Guidance for National Pollutant Discharge Elimination System Stormwater

Permits at 10, Table 4: Structural BMP Retrofit Matrix (2011) [hereinafter “the

Guidance”].

44

(Watershed Restoration), Part IV.A (Annual Reporting). Because the Permit does not

restrict how the County must show its progress in achieving the 20% restoration

requirement and because of the important links we have already analyzed between the

Guidance and the Manual (i.e., the WQv standard), we conclude that Montgomery County

can rely on the Guidance in showing its compliance with this requirement.

Part II: TMDL Plans

As we discussed at the outset of this opinion, TMDLs are informational tools, of

which WLAs—wasteload allocations—are critical. As the District Court for the Middle

District of Pennsylvania aptly noted, “WLAs are not permit limits per se; rather they still

require translation into permit limits . . . .” Am. Farm Bureau Fed’n, 984 F. Supp. 2d at

328 (citation and internal quotation marks omitted) (emphasis in original). The EPA

requires such translation pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B), which the Water

Groups argue MDE failed to comply with.51

Pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B), MDE included a provision that

requires the Counties to submit plans for all EPA-approved TMDLs one year after the

issuance of the Permits (or alternatively, one year after the EPA approves the TMDL).52

51

After analyzing this challenge, we will return to discuss the TMDL planning

requirement in the final section of this opinion, which concerns the Water Groups’

argument that all the Permits fail to comply with federal and state public participation laws.

52

We shall sometimes refer to this Permit requirement as the TMDL implementation

plans or the restoration plans. We stress that this requirement is distinct from the 20%

restoration requirement. The operative word here is plan whereas the operative phrase with

respect to the 20% restoration requirement is restoration of 20% of impervious surface

area. In other words, MDE is assessing the former by looking for the submission of a

45

In creating these restoration plans, the Counties must select actions (including cost

estimates) and set forth a schedule (including deadlines and pollution reduction

benchmarks) to meet WLAs. Because MDE foresaw the process of meeting WLAs as

“iterative,” the Counties must also describe what actions they will take when they fail to

make progress in meeting WLAs.53

Effluent Limitations Must Be Consistent with WLAs

40 C.F.R. § 122.44(d)(1)(vii)(B) requires MDE to establish effluent limitations that

take into account WLAs:

When developing water quality-based effluent limits under this

paragraph the permitting authority shall ensure

that[] . . . [e]ffluent limits developed to protect a narrative

water quality criterion, a numeric water quality criterion, or

both, are consistent with the assumptions and requirements

of any available wasteload allocation for the discharge

prepared by the State and approved by EPA pursuant to 40

CFR 130.7.

(emphasis added).

The Water Groups construe the contents of the TMDL implementation plans, that

is, the actions and deadlines discussed supra, as effluent limitations. As they put it, nothing

else in the Permits is “remotely capable of . . . impos[ing] effluent limitations that are

consistent with the assumptions and requirements of TMDLs.” Thus, the Permits can only

be in compliance with 40 C.F.R. § 122.44(d)(1)(vii)(B) when MDE has reviewed the

planning document and analyzing the latter by reviewing the amount of impervious surface

area the Counties have restored.

53

As we mentioned earlier, we sometimes refer to this process as the adaptive

management approach to the Counties’ implementation of BMPs.

46

contents of the TMDL implementation plans. The problem for MDE, then, is one of timing.

Because MDE will review the contents one year after issuing the Permits, the Water

Groups conclude that MDE cannot know whether the effluent limitations in the Permits

are consistent with the WLAs.

We disagree with the Water Groups because (1) 40 C.F.R. § 122.44(d)(1)(vii)(B) is,

like the MEP standard, flexible as to how a permitting authority complies with this

regulation and (2) MDE has complied with the regulation by incorporating the WLAs (the

most critical element of the regulation) into the Permits and by using an “iterative” process

of agency review and program change to ensure progress in meeting the WLAs.

Before we analyze MDE’s “iterative” process, we must take issue with the Water

Groups’ position that the contents of the restoration plans are effluent limits. We

understand the effluent limits to be best management practices (“BMPs”).54 But,

importantly, the Permits do not incorporate these effluent limits in the restoration plans but

in another section of the Permits—Part III.E. That is, the Counties must implement a

stormwater management program (“SWMP”), including the “practices found in the 2000

Maryland Stormwater Design Manual.”55 Importantly, the Permits instruct that “these

54

The EPA provided guidance that, at the time MDE was designing the Permits,

endorsed this approach. See EPA, 2002 Memo at 4 (Effluent limits “should be expressed

as best management practices (BMPs) or other similar requirements, rather than as numeric

effluent limits.”); EPA, 2010 Memo at 3 (“Where WQBELs in permits for stormwater

discharges from MS4s . . . are expressed in the form of BMPs, the permit should contain

objective and measurable elements (e.g., . . . level of BMP performance.).”). The level of

BMP performance, as we have discussed, is the WQv standard.

55

These practices are best management practices. See, e.g., CWP & MDE, Manual

§ 1.3 (“[Chapter 2] also briefly outlines the six groups of acceptable BMPs that can be used

47

[management] programs shall be integrated with other permit requirements to promote a

comprehensive adaptive approach toward solving water quality problems.” In this light,

we understand the TMDL implementation plans as roadmaps because they describe a plan

for achieving a goal (using BMPs to meet WLAs). See, e.g., Montgomery County Permit

Part III.J (In the TMDL implementation plans, the County must “describe those actions

necessary to meet the storm drain system’s share of WLAs in EPA approved TMDLs.”).

The requirement to implement BMPs, however, exists independent of the requirement to

submit the TMDL implementation plans.

Having clarified this matter, we turn to the regulation to better understand MDE’s

obligation with respect to effluent limits and WLAs. We note that the plain text imposes a

duty on the permitting authority to ensure that effluent limits are consistent with WLA

assumptions and requirements. See In re City of Moscow, Idaho, 2001 WL 988721, at *9

(“[T]he governing regulations require consistency . . . .”) (emphasis in original). But the

text does not instruct the permitting authority as to how it must ensure this consistency.

See id. at 8 (noting the lack of detail in the regulation). Instead, the EPA set a minimal,

flexible requirement in which the permitting authority is to design a scheme where effluent

limits are compatible or in agreement with WLAs. See National Pollution Discharge

Elimination System, 54 Fed. Reg. 23,868, 23,870, 23,879 (June 2, 1989) (codified at 40

C.F.R. § 122.44) (“Subparagraph (vii) does not prescribe detailed procedures for

to meet recharge and water quality volume sizing criteria.”); see also COMAR

26.17.02.02A, B(5) (defining BMP as it relates to the Manual and the stormwater

management chapter of COMAR).

48

developing water quality-based effluent limits. Rather, the regulation prescribes minimum

requirements for developing water quality-based effluent limits, and at the same time, gives

the permitting authority the flexibility to determine the appropriate procedures for

developing water quality-based effluent limits.”); The American Heritage Dictionary of the

English Language 392 (4th ed. 2006) (Consistent means in agreement or compatible.)56;

cf. Am. Farm Bureau Fed’n, 984 F. Supp. 2d at 328 (“Accordingly, in some circumstances,

a state may write a NPDES permit limit that is different from the WLA, provided that it is

consistent with the operative assumptions underlying the WLA.”).

In re City of Moscow, Idaho is illustrative of the flexibility the regulation affords

MDE. There, the Environmental Appeals Board rejected the City of Moscow’s petition

for review of an EPA-issued NPDES permit. 2001 WL 988721, at *1. In pertinent part,

the Board concluded that the EPA (Region X) did not err in creating permit limits although

the EPA did not incorporate the design flow rate of an applicable TMDL. Id. at *8–9.

After reviewing 40 C.F.R. § 122.44(d)(1)(vii)(B) and the regulatory history, see 54 Fed.

Reg. 23,868, 23,879, the Board explained that there was no law or rule prescribing how the

EPA was to select a flow rate to create effluent limits, In re City of Moscow, Idaho, 2001

WL 988721, at *8. The Board concluded that the agency acted “well within the discretion

accorded [it] under the applicable regulatory scheme.” Id. at *9.

56

“When conducting a ‘plain meaning analysis,’ dictionary definitions ‘provide a

useful starting point for discerning what the legislature could have meant in using a

particular term.’” Preston v. State, 444 Md. 67, 84, 118 A.3d 902, 912 (2015) (internal

quotation marks omitted) (citations omitted).

49

So too here. No law or regulation specifies how or burdens MDE in undertaking

the process of complying with 40 C.F.R. § 122.44(d)(1)(vii)(B). In fact, as we have

discussed, the overarching federal law for MS4s—33 U.S.C. § 1342(p)(3)(B)(iii)—is broad

and flexible, too. See Natural Res. Def. Council, 966 F.2d at 1308.

Under the Permits, the Counties must include in the TMDL implementation plans

the actions needed to meet “WLAs in EPA approved TMDLs.” Part III.J.1. Thus, the

Permit ties the activities to WLAs, not to some other benchmark that could be inconsistent

with the WLA. As the Permits make clear, “[a]ll EPA approved TMDL’s that establish

WLA’s applicable to the County’s storm drain system are incorporated by reference into

this permit.” Id.

The Counties must also submit “documentation of progress toward meeting

applicable WLAs developed under EPA approved TMDLs.” Reporting on WLA progress

is reinforced through watershed assessment and restoration requirements. See Part III.F

(“[W]atershed assessments shall [s]pecify how restoration efforts will increase progress

toward meeting any applicable WLAs included in EPA approved TMDLs.”); Part III.G

(The Counties shall annually report on progress toward meeting WLAs.).

Moreover, “MDE will review program implementation, annual reports, and periodic

data submittal on an annual basis.” The Permit requires “BMP and program modifications”

if this report fails to “show progress toward meeting WLAs.” The modifications are a

product of the “iterative approach” the Counties must follow if they do not make progress

in achieving WLAs. That is, the Counties must propose “additional or alternate stormwater

controls” to meet WLAs, which MDE will review and approve, if adequate.

50

Environmental Defense Center, Inc. v. United States Environmental Protection

Agency (“EDC”) is instructive on the importance of permittee reporting and agency review

to ensure compliance with the law. 344 F.3d 832, 858 (9th Cir. 2003). In EDC, the Ninth

Circuit vacated a portion of an EPA rule that permitted small MS4s to discharge under a

general permitting scheme, and remanded for the EPA to revise the rule to comply with the

CWA. Id. at 858.57 The Ninth Circuit stated that the rule did not require the permitting

authority to review the MS4 operator’s stormwater management program “to ensure” that

the operator’s program would “in fact” comply with the relevant law. Id. at 855 (emphasis

in original). Thus, the Ninth Circuit concluded that “nothing prevents the operator of a

small MS4 from misunderstanding or misrepresenting its own stormwater situation.” Id.

The scheme the Ninth Circuit rejected in EDC is materially different from the

scheme in the Permits here. MDE requires reporting, assessment, and adaptation to ensure

that the Counties’ BMPs will make progress to achieve WLAs. We find the effluent limits

under this scheme to be consistent with approved WLAs. See id. at 856 (“However,

stormwater management programs that are designed by regulated parties must, in every

instance, be subject to meaningful review by an appropriate regulating entity . . . .”). Thus,

the Permits comply with 40 C.F.R. § 122.44(d)(1)(vii)(B).

57

In a general permitting scheme, a general permit is established with set limits and

requirements. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003). Then,

a discharger may file a notice of intent (“NOI”), through which the discharger agrees to

discharge under the terms of the general permit. Id. “[T]he NOI represents no more than

a formal acceptance of terms elaborated elsewhere.” Id.

51

Part III: Monitoring

Here, the Water Groups raise two arguments: the Permits do not include federally

mandated monitoring to (1) produce representative data in the MS4 jurisdictions and (2)

assure compliance with Permit requirements. They contend that MDE elected not to

comply with federal regulations that impose the above requirements and that the record

does not otherwise show that MDE complied with these laws. MDE responds by defending

its monitoring scheme as sufficient to comply with the applicable federal regulations.

Moreover, MDE argues that some of the federal provisions are inapposite because they

only pertained to the initial application for MS4 permits in the 1990s.

A. The Permit’s Monitoring Requirements

We begin by noting what the Permits require. Under Part III.F, each County must

conduct chemical, biological, and physical monitoring at one outfall and an associated in-

stream station.58 The Permits set forth the number of required monitoring events, sampling

methods, pollutants, and locations.59 The Counties must also conduct monitoring of stream

58

The designated locations in Anne Arundel County are the Parole Plaza outfall and

Church Creek in-stream station in the South River watershed. The watershed in Baltimore

County is the Scotts Level Branch watershed. The watershed in Prince George’s County

is the Bear Branch watershed. Baltimore City’s location is the Moores Run. Although

Montgomery County’s Permit states that the watershed is the Lower Paint Branch

watershed, Part III.H.1, the location was changed to the Sligo Creek Watershed after it was

determined that the prior location was no longer effective for monitoring purposes. See

Montgomery County Department of Environmental Protection, Annual Report for 2010

NPDES MS4 Permit, at III-26.

59

For chemical monitoring, the Counties must monitor 12 storm events each year,

use automated or manual sampling methods, submit three representative samples for

laboratory analysis under EPA approved methods, and record continuous flow

measurements. Part IV.F.1. The Counties must obtain pollutant samples for biochemical

52

channel protection.60 These two levels of monitoring occur at different locations. Compare

note 58, with note 60.

B. Applicable Law

We now consider what federal monitoring regulations apply to the Permits. Under

40 C.F.R. § 122.48(b), “[a]ll permits shall specify [r]equired monitoring including type,

intervals, and frequency sufficient to yield data which are representative of the monitored

activity including, when appropriate, continuous monitoring.” (Emphasis added.)

Moreover, monitoring requirements must “assure compliance with permit limitations.”

40 C.F.R. § 122.44(i)(1); see also In re Gov’t of the D.C. Mun. Separate Storm Sewer Sys.,

10 E.A.D. 323, 2002 WL 257698, at *20 (Feb. 20, 2002) (“First, both section 122.48(b)

and section 122.44(i) would appear to require that certain monitoring conditions be

included in all permits.”). The Clean Water Act makes plain the EPA’s broad authority to

oxygen demand, total Kjeldahl nitrogen, nitrate plus nitrite, total suspended solids, total

petroleum hydrocarbons, e. coli or enterococcus, total lead, total copper, total zinc, total

phosphorus, and hardness. Id. The Counties must also record continuous flow

measurements and use the data to estimate pollutant load reductions. Id. And the Counties

must report such estimates for EPA approved TMDLs. Id.

For biological monitoring, the Counties must annually gather benthic

macroinvertebrate samples through approved methods. For physical monitoring, they must

conduct a geomorphologic stream assessment, a stream habitat assessment, and use a

hydrologic and/or hydraulic model to analyze the effects of rainfall, discharge rates, stage,

and if necessary, continuous flow on channel geometry. Id. Benthic pertains to species

living on the floor of a waterbody. Chesapeake Bay Program, Chesapeake Bay:

Introduction to an Ecosystem at 3.

60

In Anne Arundel County, the designated location is the Picture Spring Branch in

the Severn River watershed. In Baltimore County, it is the Windlass Run watershed. In

Prince George’s County, it is the Black Branch watershed. In Baltimore City, it is the

Stony Run Watershed. And in Montgomery County, it is the Clarksburg Special Protection

Area.

53

set these requirements. 33 U.S.C. § 1318(a); Natural Res. Def. Council, Inc. v. EPA, 863

F.2d 1420, 1434 (9th Cir. 1988) (The EPA “has wide discretion and authority to determine

monitoring requirements in NPDES permits . . . .”). These requirements apply to state

programs. 40 C.F.R. § 123.25(15), (19).

The Water Groups point us to an additional regulation as part of their argument that

the Permits are not capable of producing representative data. Specifically, pursuant to 40

C.F.R. § 122.26(d)(2)(iii)(D), applicants for large MS4s must submit a “proposed

monitoring program for representative data collection for the term of the permit that

describes the location of outfalls or field screening points to be sampled (or the location of

instream stations),” and, among other things, “why the location is representative.” But

MDE disputes whether this regulation is even applicable to our analysis of the agency’s

decision to issue the Permits when the regulation, in its view, pertains to applicants (i.e.,

permittees). MDE argues that we should read 40 C.F.R. § 122.26(d)(2)(iii)(D) as relevant

only to a permit application—not a permit—and, moreover, only to the first cycle of permit

applications for MS4s (i.e., the early 1990s). In MDE’s view, the agency had “the

flexibility to establish requirements [it] deem[ed] appropriate” in subsequent MS4 permits.

Recognizing that 40 C.F.R. § 122.26(d) concerns “[a]pplication requirements,” we

nevertheless agree with the Water Groups that the regulation is relevant to our review of

MDE’s decision to issue the Permits. Although state and federal permitting laws are

unhelpful, an EPA Policy Memorandum interpreting 40 C.F.R. § 122.26(d) (“the Policy

54

Memo”)61 is instructive. In the Policy Memo, the EPA instructs that “reapplications should

focus on maintenance and improvement of [MS4 storm water management] programs” that

were required in the initial applications. EPA, Interpretive Policy Memorandum on

Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,

41,698 (Aug. 9, 1996) [hereinafter Policy Memo].62 According to the Policy Memo, MDE

can make changes to the MS4 monitoring program during the reapplication period, but

such changes must be “appropriate and useful.” Id. at 41,699. In other words, when a

permittee reapplies for a discharge permit, and if the permitting authority reissues the

permit, it is the permitting authority’s responsibility to ensure that the reissued permit

contains programs that are adequate in light of the initial application requirements in 40

61

The parties do not dispute that we should accord considerable deference to the

Policy Memo. Courts have turned to agency interpretations of their own regulations, if

ambiguous, to discern how to understand them. See Coeur Alaska, Inc. v. Se. Alaska

Conservation Council, 557 U.S. 261, 283 (2009) (“The regulations do not give a definitive

answer to the question whether § 306 [of the CWA] applies to discharges regulated by the

Corps under § 404 [of the CWA], but we do find that agency interpretation [in a

memorandum from and to EPA officers] and agency application of the regulations are

instructive and to the point.”) (emphasis added).

62

MDE’s Bases for Final Determination explain that the Counties submitted their

applications as part of their fourth annual reports. MDE followed the method the EPA

suggested in the Policy Memorandum. See EPA, Interpretive Policy Memorandum on

Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,

41,699 (Aug. 9, 1996) [hereinafter Policy Memo] (“MS4s may use the fourth year annual

report . . . as the MS4 permit reapplication.”). Regulating authorities in other jurisdictions

have used the submission of an annual report as part of the permit reapplication process.

See Natural Res. Def. Council, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 34 N.E.3d

782, 790 (N.Y. 2015) (“The vast majority of New York’s 500 plus small MS4s achieved

initial authorization to discharge stormwater prior to the effective date of the 2010 General

Permit; they were able to maintain coverage under the 2010 General Permit by submitting

their 2009 annual reports.”) (citation omitted).

55

C.F.R. § 122.26(d). We rely, then, on 40 C.F.R. § 122.26(d) as a baseline to review the

monitoring program in the Permits to ensure that MDE only made program changes that

were “appropriate and useful.” Id. at 41,699.

C. The EPA Policy Memo

The EPA published the Policy Memo to “respond[] to requests from municipalities

and NPDES permit writers for clarification about regulations which do not appear to

address reapplication requirements, i.e., permit reissuance.” 61 Fed. Reg. at 41,698.

In the Policy Memo, the EPA first explains that it does not require an applicant to

repeat in full the process in 40 C.F.R. § 122.26(d)(1)-(2). Id. The EPA explained that it

would be redundant to “request the same information again [including characterization of

data at § 122.26(d)(2)(iii)], where it has already been provided and has not changed.” Id.

But an applicant “should identify any proposed changes or improvements” to “monitoring

activities.” Id.

If MS4 applicants and permit writers wish to change programs in future permits, the

EPA explains, they may not only “de-emphasize” but also propose to eliminate a program

component. Id. at 41,699; see id. at 41,698 (“MS4 permit applicants and NPDES permit

writers have considerable discretion to customize appropriate and streamlined

reapplication requirements on a case-by-case basis.”). De-emphasis may be justified based

on the discharger’s experience during the first permit term. Id. By way of example, the

EPA stated that “new information on the relative magnitude of a problem” and “new data

on water quality impacts of storm water discharges” could justify program changes. Id.

Moreover, elimination could be justified “when a different water quality program would

56

serve the same goals.” Id. We construe the phrase “same goals” as referring to the

CWA’s objective in Chapter 26 of Title 33 of “restor[ing] and maintain[ing] the chemical,

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see 33

U.S.C. § 1318(a)(1)(A)(i) (“Whenever required to carry out the objective of this chapter

[26: Water Pollution Prevention and Control], . . . . the Administrator shall require the

owner or operator of any point source to establish and maintain such records . . . [and use

such monitoring methods] . . . as he may reasonably require.”) (emphasis added).

If MS4 applicants and permit writers wish to change monitoring programs, the EPA

encouraged them “to determine if storm water monitoring efforts are appropriate and

useful.” 61 Fed. Reg. 41,699. The EPA then suggested alternative techniques:

“municipalities may wish to consider using monitoring techniques other than end-of-the

pipe chemical-specific monitoring, including habitat assessments, bioassessments, and/or

other biological methods.” Id. (emphasis added).

D. Representative Monitoring

MDE argues, somewhat correctly, that the Policy Memo grants it “the flexibility to

establish requirements [it] deem[s] appropriate.” The Water Groups only repeat the

language of the Policy Memo, arguing that MDE can change programs to make them “more

appropriate and useful.” They argue that MDE’s decision was not supported by substantial

evidence. Although the Policy Memo does grant NPDES permit writers, like MDE, the

flexibility to modify program components, including monitoring, 61 Fed. Reg. at 41,699,

the EPA does not allow permit writers to reissue permits and abdicate their responsibility

in “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the

57

Nation’s waters.” 33 U.S.C. § 1251(a). 40 C.F.R. 122.26(d) required, among other things,

a “proposed monitoring program for representative data collection for the term of the

permit that describes the location of outfalls or field screening points to be sampled (or the

location of instream stations),” and, among other things, “why the location is

representative.” And as we also discussed earlier, the Permits must include monitoring

“sufficient to yield data which are representative of the monitored activity.” 40 C.F.R. §

122.48(b).

We conclude that MDE’s monitoring program in the Permits will produce

representative data because MDE has (1) ensured that the Counties monitor stormwater

discharges at monitoring locations that represent an adequate range of land uses statewide,

and (2) increased the frequency of monitoring to yield more representative information at

the County level.

MDE revised the MS4 monitoring program in the late 1990s to implement a

monitoring approach called the “three legged stool,” so named because it incorporated not

only “[c]hemical testing” but also “biological criteria” and “physical assessments.” MDE,

Maryland’s NPDES Municipal Stormwater Monitoring at § 4.2 (1997); see also MDE,

Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4 Permit. The

agency articulated this approach as being “more aligned with the CWA’s goal to ‘restore

and maintain the chemical, physical, and biological integrity of the nation’s waters.’”

MDE, Maryland’s NPDES Municipal Stormwater Monitoring at § 4.2 (emphasis added);

see also MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES

MS4 Permit. MDE also increased the frequency of monitoring so that the Counties needed

58

to monitor twelve storm events instead of three. MDE, Maryland’s NPDES Municipal

Stormwater Monitoring at § 4.0. Finally, in light of the increase in monitoring type, MDE

decreased the number of monitoring sites to one outfall and one associated in-stream station

in a watershed. Id. at § 4.3.

The agency explained that it adopted the “three legged stool” approach after an

analysis of the MS4s’ concerns in implementing the first permits: “local governments

argued that in many instances, biological and physical monitoring results are better

indicators of small stream health.” Maryland’s NPDES Municipal Stormwater Monitoring

§ 4.1; MDE, Basis for Final Determination to Issue Anne Arundel County’s NPDES MS4

Permit (2013) (emphasis added). MDE acknowledged the local jurisdictions’ concern that

“water chemistry data are of little value” in discerning the effects of stormwater in local

streams when there is no assessment of stormwater as to “physical stream habitat and

biological health.” MDE, Maryland’s NPDES Municipal Stormwater Monitoring at § 4.1.

Nevertheless, MDE explained in its analysis that “[t]here is still a need to continue water

chemistry work for the far field objectives of nutrient reduction in the Bay and accurate

loading estimates for NPDES.” Id. at § 4.2.

In explaining its decision to increase the number of monitored storm events, MDE

stated that “more frequent sampling” would “improve pollutant load estimates.” MDE,

Maryland’s NPDES Municipal Stormwater Monitoring at § 4.0.

Moreover, in explaining why it pared the number of chemical monitoring sites,

MDE stated that the addition of biological and physical monitoring required the agency to

reapportion resources. Id. at § 4.3. To compensate for the reduced number of sites, MDE

59

explained that: (1) “[a] major goal for future monitoring will be to integrate water

chemistry, biology, and physical assessments in one suitable watershed” to ensure “all

three techniques [are] analyzed holistically”; and that (2) “site selection will be

orchestrated at the state level” to “maintain an adequate number of residential, commercial,

and industrial sites for State water chemistry needs.” MDE, Maryland’s NPDES Municipal

Stormwater Monitoring at § 4.3.63

MDE’s decision-making illustrates that, as the Policy Memo stated, the permitting

authority and permittees worked together to “determine if storm water monitoring efforts

[were] appropriate and useful.” 61 Fed. Reg. at 41,699. MDE did not rubber stamp the

jurisdictions’ proposal but affirmed that “[t]here is still a need to continue water chemistry

work for the far field objectives of nutrient reduction in the Bay and accurate loading

estimates for NPDES.” MDE, Maryland’s NPDES Municipal Stormwater Monitoring at

§ 4.2.64

63

As the initial permit application requirements indicate, the appropriate land uses

that a permittee was to monitor were commercial, residential, and industrial. See 40 C.F.R.

§ 122.26(d)(2)(iii)(A).

64

MDE also took into consideration the financial burden on local jurisdictions in

revising the monitoring program: “The cost for establishing four monitoring sites with

either automated equipment or staff and having numerous storm events sampled and

analyzed [as required of NPDES MS4 permits] makes this one of the more expensive

undertakings for local jurisdictions.” MDE, Maryland’s NPDES Municipal Stormwater

Monitoring § 4.1 (1997). Although the Policy Memo does not explicitly include cost as a

factor in making program changes, it does state that “[c]hanges to the stormwater

management program may be justified due to the availability of new information on the

relative magnitude of a problem.” EPA, Interpretive Policy Memorandum on

Reapplication Requirements for Municipal Separate Sewer Systems, 61 Fed. Reg. 41,698,

41,699 (Aug. 9, 1996) (emphasis added) [hereinafter Policy Memo]. Research on the cost

60

Moreover, biological and physical monitoring are within the scope of the EPA’s

suggestions for alternative techniques, that is, “monitoring techniques other than end-of-

the pipe chemical-specific monitoring, including habitat assessments, bioassessments,

and/or other biological methods.” 61 Fed. Reg. at 41,699 (emphasis added).

By increasing the number of monitored storm events,65 MDE intended for the

Counties to acquire more representative data about pollutant loads. Compare 61 Fed. Reg.

at 41,699 (The EPA encouraged permit writers “to determine if storm water monitoring

efforts are appropriate and useful.”), with 40 C.F.R. § 122.62(d)(2)(iii)(D) (The initial

application called for “[a] proposed monitoring program for representative data

collection.”).66

to undertake certain monitoring requirements strikes us as information relevant in

considering programmatic changes.

Moreover, we cannot view MDE’s decision in a vacuum. In light of MDE’s addition

of biological and physical monitoring, MDE stated that “[t]o be fair, current chemical

requirements, at least in terms of monitoring sites, need to be pared with a commensurate

reapportionment of resources to accommodate the two additional stool legs.” MDE,

Maryland’s NPDES Municipal Stormwater Monitoring at § 4.3. We believe it was

reasonable for MDE to reallocate resources for its revised program to further the objective

of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a).

65

MDE has amassed a wealth of data from monitoring stormwater throughout the

State: “Since the inception of the NPDES stormwater program, Maryland’s MS4

jurisdictions have monitored more than 2,745 storm events along with an additional 1,605

sampling activities during baseflow conditions.” MDE, Basis for Final Determination to

Issue Anne Arundel County’s NPDES MS4 Permit.

66

The Water Groups argue: “[T]he monitoring location for Baltimore City – Moores

Run – is located on the eastern edge of the City near the border with Baltimore County,

and is located within the Back River watershed which is just one of four major watersheds

that receives discharges from the City’s MS4.” MDE’s approach illustrates that

61

The Water Groups insist on interpreting representative in terms of the boundaries

of the political subdivisions. In its analysis of the Counties’ initial monitoring experiences,

MDE explained that site selection was a challenging undertaking, and one that it had to

interpret flexibly so that the Counties could reasonably carry out their monitoring duties.

That is, “monitoring only five sites did not allow any single jurisdiction to monitor all

possible land uses.” Maryland’s NPDES Municipal Stormwater Monitoring at § 2.3. From

MDE’s perspective, however, the state-wide program to improve water quality was

maintained by, “in the aggregate,” monitoring “the continuum from low density residential

to heavy industrial sites.” Id. (emphasis added). The watersheds MDE has approved

extend from low-density residential land use to commercial use and light industrial use.67

representative does not only reflect the boundaries of the political subdivisions. Increasing

the frequency of monitoring at a location is a way to yield more representative data.

To the extent that the Water Groups insist on interpreting representative only with

respect to the boundaries of the political subdivisions, we note that the Permits require

“detailed” watershed assessments “for the entire County.” Part IV.E.1 (emphasis added).

The assessment shall include the following activities: “[d]etermin[ing] current water

quality problems”; “[i]nclud[ing] the results of a visual watershed inspection”; and

“[i]dentify[ing] and rank[ing] water quality problems.” Id. This Permit requirement

facilitates comprehensive data collection in each jurisdiction.

67

For a comparison of land uses, see Anne Arundel County Department of Public

Works, 2013 Annual Report (NPDES MS4 Permit) § III-73, available at

http://www.aacounty.org/departments/public-works/wprp/npdes-ms4-permit/; Baltimore

County Government, 2014 NPDES Annual Report § 10-4, available at

http://www.baltimorecountymd.gov/Agencies/environment/npdes/index.html; City of

Baltimore Department of Public Works et al., 2011 Annual Report (NPDES MS4

Permit); MDE, Review of Prince George’s County’s 2009 Annual Report (NPDES MS4

Permit), available at http://www.mde.state.md.us/programs/Water/Stormwater

ManagementProgram/SedimentandStormwaterHome/Documents/Prince%20George%20

3-6%20Annual%20Report%20Review.pdf; Montgomery County Department of

Environmental Protection, Breewood Tributary Restoration, available at

62

Thus, we conclude MDE has approved of monitoring locations that adequately represent a

continuum of land uses for the agency and the Counties to collect data. See MDE,

Maryland’s NPDES Municipal Stormwater Monitoring at § 4.3 (“[S]ite selection will be

orchestrated at the state level” to “maintain an adequate number of residential, commercial,

and industrial sites for State water chemistry needs.”) (emphasis added).

MDE amended the program with the CWA’s objective at the forefront of its mind:

“restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the

Nation’s waters.” Id.; see 33 U.S.C. § 1251(a). In accordance with the Policy Memo, the

agency’s changes and reasoning strike us as thorough efforts to make the monitoring

program “appropriate and useful.” 61 Fed. Reg. at 41,699. We conclude that MDE acted

within the discretion the EPA accorded it in the Policy Memo. Thus, we also conclude that

MDE has committed no legal errors pertaining to 40 C.F.R. § 122.26(d)(2)(iii)(D).

For many of the same reasons, we believe that the Permits contain monitoring

“sufficient to yield data which are representative of the monitored activity.” 40 C.F.R.

§ 122.48(b). The Permits require monitoring of many pollutants. Part IV.F.1.a-d.68

http://www.montgomerycountymd.gov/DEP/Restoration/breewood.html (last visited Feb.

11, 2016).

68

Part IV.F.1. The Counties must obtain samples representative of a dozen storm

events for biochemical oxygen demand, total Kjeldahl nitrogen, nitrate plus nitrite, total

suspended solids, total petroleum hydrocarbons, e. coli or enterococcus, total lead, total

copper, total zinc, total phosphorus, and hardness. Id. Consequently, “the resulting data

will accurately portray the most common conditions for each site.” EPA, NPDES Storm

Water Sampling Guidance Document § 2.7.1, at 18 (1992). The Counties must also ensure

that a laboratory analysis of these samples is conducted under EPA approved methods.

Part IV.F.1.a.

63

Following the Counties’ first experience implementing MS4 permits, MDE increased the

frequency of monitoring to “improve pollutant load estimates.” MDE, Maryland’s NPDES

Municipal Stormwater Monitoring § 4.0. The agency also decided to orchestrate site

selection at the state level to “maintain an adequate number of residential, commercial, and

industrial sites for State water chemistry needs.” Id. § 4.3. By taking control of the

selection of monitored sites, MDE could better ensure monitoring of a continuum of

activities (industrial, residential, and commercial). Additionally, the Counties will have to

explain their monitoring process to ensure that the agency can evaluate whether they have

complied with MDE’s requirements. Part V.A.1.b. (The Counties shall submit annual

reports and include “[a] narrative summary describing the results and analyses of data,

including monitoring data that is accumulated throughout the reporting year.”). 69

69

When the EPA issued the initial permit application requirements for MS4s, the EPA

set criteria to make storm events and sampling representative. 40 C.F.R. § 122.26(d)(2)(iii)

(citing 40 C.F.R. § 122.21(g)(7)); see EPA, NPDES Storm Water Sampling Guidance

Document § 2.7.1, at 18 (1992) (“These criteria were established to: (1) ensure that adequate

flow would be discharged; (2) allow some build-up of pollutants during the dry weather

intervals, and (3) ensure that the storm would be ‘representative,’ (i.e., typical for the area

in terms of intensity, depth, and duration).”). To wit, a storm event must be “greater than

0.1 inch,” “at least 72 hours” after the “previously measured storm event,” and the sample

must be for a “flow-weighted composite sample” taken for “either the entire discharge or

for the first three hours of the discharge.” 40 C.F.R. § 122.21(g)(7).

As we discussed, it is ambiguous whether this regulation (40 C.F.R. § 122.26(d)(2))

pertains to subsequent permit applications and, thus, to this case. Thus, we turn again to

the EPA Policy Memo which clarifies reapplication requirements. EPA, Interpretive

Policy Memorandum on Reapplication Requirements for Municipal Separate Sewer

Systems, 61 Fed. Reg. 41,698, 41,698 (Aug. 9, 1996) [hereinafter “Policy Memo”]. The

EPA encouraged “permitting authorities to work with permittees to determine if storm

water monitoring efforts are appropriate and useful,” and to “propose changes to make the

program more appropriate and useful.” Id. at 41,699. Because MDE did not propose any

changes to the EPA’s sampling criteria, see MDE, Maryland’s NPDES Municipal

Stormwater Monitoring, at §§ 4.0–4.3; App’x. 5, we conclude that these criteria should

64

MDE also requires the Counties to assess WLAs, which represent pollutant loads.

Part IV.E.2.b.iii. The Counties must record continuous flow measurements to obtain data

to estimate pollutant reductions. Part IV.F.1.a.iv. Because the Counties are to achieve

WLAs over time through restoration activities, MDE requires the Counties to conduct such

monitoring “where the cumulative effects of watershed restoration activities can be

assessed.” Part IV.F.1 (emphasis added).

MDE thus structured the Permits and imposed requirements on the Counties to

ensure that they will monitor the discharge of pollutants to yield representative data. We

conclude that the Permits comply with 40 C.F.R. § 122.48(b).

E. Permit Limitations

40 C.F.R. § 122.44(i) requires monitoring “to assure compliance with permit

limitations.” We begin by noting the two applicable limitations: (1) controls to reduce the

discharge of pollutants70 and (2) the restoration of 20% of impervious surface area not

restored to the MEP. See Part III.D; Part III.E.2.71

inform MDE’s assessment of the Counties’ chemical monitoring summary and,

specifically, whether the Counties obtained representative samples of pollutants.

70

33 U.S.C. § 1342(p)(3)(B)(iii); 40 C.F.R. § 122.44(d)(1)(vii)(B). To be clear,

the phrase “reduce the discharge of pollutants” does not appear in the text of 40 C.F.R.

§ 122.44(d)(1)(vii)(B). But the effect of the regulation is the same. When a permitting

authority ensures that effluent limits will be consistent with WLAs, permittees are

subject to discharge requirements that in accordance with “the portion of a receiving

water’s loading capacity that is allocated to one of its existing or future point sources

of pollution.” 40 C.F.R. § 130.2(h).

71

Under 33 U.S.C. § 1342(p)(3)(B)(iii), MS4s shall require “such other provisions”

as “the State determines appropriate for the control of such pollutants.” MDE (acting on

behalf of the State) required the Counties to achieve the 20% restoration requirement.

65

1. Reduction of Pollutant Discharge

The Permits include two important components that inform our analysis of whether

MDE’s monitoring program ensures reductions in the discharge of pollutants: (a) the

monitoring and modeling scheme and (b) adaptive management. As we explain, our initial

discussion of monitoring and modeling is not sufficient to measure MDE’s compliance

with 40 C.F.R. § 122.44(i). Rather, it is a necessary component of what we consider a two-

part scheme MDE designed to ensure the Counties would implement controls to reduce

stormwater discharges.

a. Monitoring and Modeling

MDE requires the Counties to implement a stormwater management program

(“SWMP”), which consists of BMPs. Part IV.D.1.a. The Counties must integrate SWMPs

with other permit requirements. Part IV.D. Aside from their role in the 20% restoration

requirement, BMPs are most critical in the restoration plans that the Counties must

implement to achieve progress in meeting WLAs. Part IV.E.2, 4; see supra note 17 (The

WLAs are derived from the EPA approved TMDLs for each Permit.).

To achieve progress in meeting WLAs, the Counties must first set a baseline for

stormwater pollutant loads. MDE, Guidance, at 3.72 To set this baseline, the Counties must

apply TMDL pollutant loading rates to urban land use data. Id. An MDE-approved model,

72

As we have previously discussed with respect to the Montgomery County Permit,

the Permit language is broad enough such that Montgomery County can rely on the

Guidance in establishing pollutant loads. Montgomery County Permit Part III.J (“In order

to accomplish these goals, this permit requires in Part III.J.2 below, that the County develop

TMDL implementation plans that include estimates of pollutant loading reductions . . . .”).

66

such as MAST, will automatically calculate the cost and load estimates for Counties to

inform their decision-making. See About MAST, Maryland Assessment Scenario Tool,

available at http://www.mastonline.org/About.aspx. The Counties can compare different

scenarios to determine what BMPs they can implement to reduce pollution. Id.; see also

MDE, Guidance, at 1 (“Local governments can weigh the cost associated with

implementing different practices and choose the most efficient option for meeting pollutant

load reductions.”). The Counties select and begin implementing BMPs in accordance with

their restoration plans. Part IV.E.2. Then they can monitor the effectiveness of the

activities, Part IV.F.1.a.iv, and use the monitoring information to determine if the activities

have helped make progress in achieving WLAs, Part IV.E.2, 4.

But the efficiencies for BMPs that the Counties select are based in part on estimates.

See, e.g., MDE, Guidance, at 10 (Table 4).73 As our discussion of modeling illustrates, a

73

MDE developed efficiencies in part based on the Maryland stormwater

management eras in which approved BMPs were introduced. MDE, Guidance, at 6. BMPs

have become increasingly sophisticated over time. See MDE, Guidance, at 10 (Table 4).

MDE also derived efficiencies from the Chesapeake Bay Program (“CBP”), see id., which

explained inherent limitations in such efficiencies:

It must also be recognized that the BMP efficiencies are being

developed using an adaptive management approach that

recognizes that our knowledge is incomplete. Adaptive

management proposes a science-based and conservative

approach to efficiencies. It allows a BMP efficiency review

and updating at recurring intervals on the basis of new

research, monitoring, and experience.

Chesapeake Bay Program, Phase 5.3 Community Watershed Model, § 6, at 6-9, available

at http://www.chesapeakebay.net/about/programs/modeling/53/.

67

model predicts the reductions a BMP can achieve.74 But it does not tell the Counties

exactly what the BMP will do in terms of pollution reduction. Indeed, many variables

impact this process.75 See Chesapeake Bay Program, Phase 5.3 Community Watershed

Model, § 6.1.2, at 6-4 (“Uncertainty in estimates of BMP effectiveness is due to factors

including (1) variability in precipitation, hydrology, soils, and geology; (2) variable

performance of land management practices; [and] (3) lag time between implementing a

practice and full performance and observed water quality benefits . . . .”); see also id. at

§ 6.2.2, at 6-8 (“Virtually all research data are generated under controlled management

conditions” that, among other things, are designed to minimize hazards; thus, “the

research estimates are more representative of a best-case scenario.”).

But this should not raise a red flag about the legal correctness of the Permits. Indeed,

the inherent shortcoming in estimating BMP effectiveness explains MDE’s decision to

require the Counties to adapt their practices based on improved knowledge over time. See

74

The modeling, which in many cases yields the WLAs the Counties are trying to

meet, is itself a process of estimation and prediction. EPA, Bay TMDL § 5.3, at 5-19 (“The

models produce estimates, not perfect forecasts. Hence, they reduce, but do not eliminate,

uncertainty in environmental decision making.”); see also EPA, Bay TMDL ES at ES-5

(“The TMDL is informed by a series of models . . . .”).

75

Research on BMP effectiveness suggests that it would be challenging to monitor

practices through comparing data at multiple sites because of variables likely beyond the

Counties’ control. See id. at § 6.2.1, at 6-4 (Because “pollutant transport occurs through a

variety of environmental pathways,” transport time “varies substantially . . . . Surface

runoff to a stream can take minutes to days, whereas leaching to groundwater followed by

discharge to a stream can take months to decades.”); cf. Natural Res. Def. Council, Inc., 34

N.E.3d at 783 (“[A]lthough municipalities operate sewer systems, stormwater

contamination results from the often unforeseen or unpredictable choices of individual

residents and businesses (for examples, to let litter pile up or to use certain lawn

fertilizers) . . . .”).

68

infra Discussion: Adaptive Management. Rather, because the Counties must implement

BMPs to make progress in achieving WLAs, estimation and prediction are necessary evils

in this context. Thus, high quality assessments of BMPs are particularly important in the

Permits so that MDE and the Counties can understand which practices are most effective

to meet the many WLAs incorporated into the Permits. See infra note 17.

As we have discussed, MDE requires the Counties to assess BMPs through a

focused monitoring approach. Part IV.F.1.a.iv. In the Basis for Final Determination, MDE

explained that pollution reduction research supported the use of focused monitoring to

better understand and, thus, improve BMPs. MDE, Basis for Final Determination to Issue

Anne Arundel County’s NPDES MS4 Permit (2013).76 The research includes an analysis

of how states, including Maryland, were “tracking nutrient and sediment control practices”

to restore the Chesapeake Bay. See Committee on the Evaluation of Chesapeake Bay

Program Implementation for Nutrient Reduction to Improve Water Quality, Achieving

Nutrient and Sediment Reduction Goals in the Chesapeake Bay vii (National Academies

Press 2011) [hereinafter Achieving Nutrient and Sediment Reduction Goals in the Bay].

The National Research Council (“NRC”)77 established a “multidisciplinary committee of

76

In 2009, the EPA contacted the National Research Council (“NRC”) about

evaluating the Chesapeake Bay Program (“CBP”). Committee on the Evaluation of

Chesapeake Bay Program Implementation for Nutrient Reduction to Improve Water

Quality, Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay viii

(National Academies Press 2011) [hereinafter Achieving Nutrient and Sediment Reduction

Goals in the Bay]. The CBP is a partnership to restore the Chesapeake Bay that began in

the 1980s between the EPA and several jurisdictions including Maryland. Id. at viii.

77

The NRC, established by the National Academy of Sciences, is “the principal

operating agency of both the National Academy of Sciences and the National Academy of

69

experts to provide advice to the EPA, the six states in the Chesapeake Bay watershed,” and

“other interested parties.” Achieving Nutrient and Sediment Reduction Goals in the Bay

at viii.

Importantly, “[t]he EPA specifically directed the NRC to evaluate the tracking of

best management practice implementation . . . .” Id. The NRC’s appointed committee

stated that “[t]argeted monitoring programs . . . would provide valuable data to refine BMP

efficiency estimates . . . .” Id. at 5.78

Consistent with the NRC committee report, MDE’s approach to monitoring requires

the Counties to assess the effectiveness of BMPs. Part IV.F.1 (“Monitoring activities shall

occur where the cumulative effects of watershed restoration activities can be assessed.”).

Indeed, MDE designed the second component of the monitoring program with the same

purpose in mind: monitoring “for determining the effectiveness of stormwater management

practices for stream channel protection.” Part IV.F.2.

MDE then uses the monitoring data to calibrate its models. Part IV.F.1.a.iv (“Data

collected shall be used to estimate annual and seasonal pollutant loads and reductions, and

for the calibration of watershed assessment models.”). That is, MDE’s approach yields

Engineering in providing services to the government, the public, and the scientific

engineering communities.” Id. at iii.

78

The Water Groups contend that the NRC’s opinion “cannot override legally

promulgated regulations.” We do not disagree. Rather, as we have explained, MDE relies

on this publication in support of its program of focused monitoring, which improves the

quality of pollutant data during BMP implementation. See 40 C.F.R. § 122.48(b)

(Monitoring must be “sufficient to yield data which are representative of the monitored

activity.”).

70

more accurate data on the efficacy of BMPs, which increases certainty for all interested

parties in understanding what effects restoration activities will have on the State’s waters.

MDE, Guidance, at 1 (“The data gathered may be used to update and improve Maryland’s

stormwater management matrix of options for achieving water quality.”). Our review of

the first component in the Permits—the monitoring and modeling scheme—illustrates that

it is necessary to ensure the Counties are implementing BMPs to the maximum extent

practicable.

b. Adaptive Management

In their annual report, the Counties must submit the pollutant load reductions

determined through monitoring. Part V.A.2.g; see also Attachment A: Annual Report

Databases (G).

The required measurement is pounds per year, which is consistent with the federal

requirement that a discharger monitors “mass (or other measurement specified in the

permit) for each pollutant” or “volume of effluent discharged from each outfall.” 40 C.F.R.

§ 122.44(i)(1)(i)-(ii). As discussed above, these reductions pertain to the pollutants which

the Counties must monitor. Part IV.1.a.iv; see Attachment A: Annual Report Databases

(G) (The pollutants arise from the Bay TMDL and local TMDLs.).

MDE will review the annual reports, Part V.B, and will require program

modifications “according to needed program improvements identified as a result of

[MDE’s] periodic evaluations,” Part IV.D.79 “Failure to comply with a [P]ermit

See also Part V.A.3 (“Because this permit uses an iterative approach to

79

implementation, the County must evaluate the effectiveness of its programs in each annual

71

provision,” such as the stormwater management or reporting requirements, “constitutes a

violation of the CWA and is grounds for enforcement action; permit termination,

revocation, or modification; or denial of a permit renewal application.” Part VII.C.

As we have discussed,80 MDE has flexibility in setting controls in MS4s: “Congress

did not mandate [in 33 U.S.C. § 1342(p)(3)(B)(iii)] a minimum standards approach or

specify that the EPA develop minimal performance requirements.” Natural Res. Def.

Council, Inc., 966 F.2d at 1308; see also 54 Fed. Reg. at 23,870, 23,879 (codified at 40

C.F.R. § 122.44) (“Subparagraph (vii) does not prescribe detailed procedures for

developing water quality-based effluent limits. Rather, the regulation prescribes minimum

requirements for developing water quality-based effluent limits, and at the same time, gives

the permitting authority the flexibility to determine the appropriate procedures for

developing water quality-based effluent limits.”). We discern that the law requires a

regulating authority such as MDE to review the entity’s actions (or non-action, as the case

may be) to ensure accountability in implementing stormwater controls: “stormwater

management programs that are designed by regulated parties must, in every instance, be

subject to meaningful review by an appropriate regulating entity to ensure that each such

report. BMP and program modifications shall be made within 12 months if the County’s

annual report does not demonstrate compliance with this permit . . . .”).

80

See supra Part I.A: Maximum Extent Practicable.

72

program reduces the discharge of pollutants to the maximum extent practicable.” EDC,

344 F.3d at 856.81

MDE’s adaptive management approach includes a requirement to impose program

changes based on annual report data obtained from monitoring. Where, for example, the

Counties’ current strategy is not reducing discharges, the Permits allow MDE to force the

Counties to implement BMPs that will, or at least are an improvement. Because the

Counties will implement controls to reduce discharges under MDE’s oversight, the

monitoring provisions comply with 40 C.F.R. § 122.44(i).82 See Natural Res. Def. Council,

Inc. v. Cnty. of L.A., 673 F.3d 880, 897 (9th Cir. 2011) (“As opposed to absolving

noncompliance or exclusively adopting the MEP standard, the iterative process ensures

81

The Ninth Circuit in EDC concluded that the EPA had implemented a rule that

failed to comply with 33 U.S.C. § 1342(p). See 344 F.3d at 855 (“Nothing in the Phase II

regulations requires that NPDES permitting authorities review these Minimum Measures

to ensure that the measures that any given operator of a small MS4 has decided to undertake

will in fact reduce discharges to the maximum extent practicable.”) (emphasis in original).

82

The New York State Department of Environmental Conservation (“DEC”)

designed a similar approach in its MS4 general permits, which the Court of Appeals of

New York upheld in 2015:

DEC’s review of annual reports allows the Department to keep

tabs on small MS4s and to require any necessary refinement of

best management practices. DEC refers to these contemplated

successive rounds of reviewing and, as necessary, fine-tuning

and refocusing best management practices as the “iterative

process” that is the hallmark of the flexible “maximum extent

practicable” standard, which Congress deliberately chose as

best suited for regulating small municipalities’ stormwater

discharges.

Natural Res. Def. Council, Inc., 34 N.E.3d at 790.

73

that if water quality exceedances ‘persist,’ despite prior abatement efforts, a process will

commence whereby a responsible Permittee amends its [stormwater quality management

program].”), rev’d on other grounds sub nom. L.A. Cnty. Flood Control Dist. v. Natural

Res. Def. Council, Inc., 133 S. Ct. 710, 713 (2013); cf. Port of Seattle v. Pollution Control

Hearings Bd., 90 P.3d 659, 679 (Wash. 2004) (en banc) (“Monitoring and adaptive

management provide a mechanism through which [the Washington State Department of

Ecology] can mitigate [an] inherent uncertainty” in the question of whether there was a

reasonable assurance that an airport runway project would not violate applicable water

quality standards.); University of Maryland/Mid-Atlantic Water Program, BMP

Assessment Final Report 25–26 (2009) (“Utilizing an adaptive management approach

recognizes uncertainty and limitations in science, but does not impede implementation of

management actions.”).83

2. 20% Restoration Requirement

As to the second limitation, it is true that the Permits do not require monitoring of

impervious surfaces in the section entitled “Assessment of Controls,” which contains the

focused monitoring requirements. See Part IV.F. But, as we explain, because (1) 40 C.F.R.

§ 122.44(i) contemplates a flexible approach to monitoring and (2) MDE incorporated a

clear evaluation tool into the Permits to assess restoration of impervious surfaces, MDE

has assured compliance with the 20% restoration requirement under 40 C.F.R. § 122.44(i).

83

“The Mid-Atlantic Water Program (MAWP) housed at the University of

Maryland (UMD) led a project to develop the components or subcategories of select BMPs

and a corresponding definition(s) and effectiveness estimates.” University of

Maryland/Mid-Atlantic Water Program, BMP Assessment Final Report 5 (2009).

74

Under the restoration provision, MDE’s approach requires the Counties first to

submit an assessment of their impervious surface area within a year of the issuance of the

Permits. Part IV.E.2.a. This Permit part incorporates by reference the Guidance, which

contains the methodology we discuss herein. In the assessment, the Counties must

delineate those portions in their jurisdictions “that are either treated to the [MEP], partially

treated, or untreated and available for retrofit.”84 MDE, Guidance at III.4, at 4.

To ensure that the Counties implement satisfactory BMPs on their untreated

surfaces, MDE requires the Counties to translate the activities into credits. Id. at IV, at 8.

This credit system is tethered to the performance standard through which MDE determined

which BMPs are satisfactory: the WQv. Id. “An acre for acre impervious credit will be

given when a structural BMP is specifically designed to provide treatment for the full WQv

(one inch), or [a] proportional acreage of credit will be given when less than the WQ v is

provided.” Id. Moreover, for BMPs that “provide greater than one inch of volume

control,” the activities “receive additional credit.” Id.85

84

We have already discussed and approved of MDE’s decision to require the

Counties to use 2002 as the baseline for determining those impervious surfaces controlled

to the MEP. See supra Part I.C: The Methodology in the Guidance.

85

As MDE explained in the Basis for Final Determination, “the Guidance clearly

shows that ESD practices will be given greater pollutant load reductions than other

acceptable water quality treatment practices.” See MDE, Basis for Final Determination to

Issue Anne Arundel County NPDES Permit. By way of example, the pollution reduction

rate for total suspended sediment (TSS) for the WQv standard is 80%. MDE established

the pollution reduction rate for TSS for a rain garden at 90% and established the rate for

the same pollutant for a dry detention pond at 10%. MDE, Guidance, at 10 (Table 4).

75

Because the Counties must adhere to the credit system, MDE can evaluate the

jurisdictions’ performances uniformly. The Guidance “standardizes procedures for the

reporting of traditional, new, and alternative [BMPs] and the impervious area they control.”

MDE, Guidance at 1; id. (“By developing a comprehensive matrix of practices and

consistent accounting measures, [MDE] brings greater certainty to the local planning and

budgeting process.”). This accounting system is also flexible enough to accommodate

more non-traditional activities for which restoration credits are still available. See MDE,

Guidance at V, at 11 (“This section presents alternative BMPs that will give jurisdictions

greater flexibility toward meeting stormwater permit requirements.”).

Moreover, the Counties must report annually on their progress in achieving the 20%

restoration requirement. Part V.A.1.a.ix.86 Failure to comply with these requirements—

submission of the impervious surface area assessment; implementation of restoration

practices on impervious surfaces not controlled to the MEP; and submission of reports on

the Counties’ activities according to the credit system—is a violation of the CWA and

grounds for agency action. Part VII.C.

We find instructive the Second Circuit’s reasoning in upholding, in part, the EPA’s

monitoring provisions in permits to regulate the discharge of ballast water from ships.

Natural Res. Def. Council, Inc., 808 F.3d at 562.87 As to certain effluent limitations in

86

The Counties must submit annual databases for BMP locations and impervious

surface area to document progress toward the 20% restoration requirement. Part IV.A.2.b-

c; Attachment A: Annual Report Databases.

87

“A ship takes on and discharges ballast water to compensate for changes in its

weight caused by activities such as loading and unloading cargo or consuming fuel or

76

these permits,88 the EPA required the monitoring of “functionality” of a vessel’s ballast

water treatment system, and of the concentrations of two specific bacteria. Id. at 581.89

The EPA did not, however, require vessel owners “to take any measurement of pollutants

or significant categories of living organisms in ballast water being discharged.” Id.

Although environmental organizations argued that the EPA should have required

monitoring of the concentrations of living organisms, the Second Circuit concluded that

the EPA’s provisions complied with 40 C.F.R. § 122.44(i). Id. at 582–83. Because the

regulation sanctioned the monitoring of some “other measurement specified in the permit,”

the functionality and indicator organism monitoring “qualif[ied] as such ‘other

measurement.’” Id. at 582. Although the environmental organizations had advocated for

the alternative of “direct monitoring,” the Second Circuit reasoned that dischargers did not

have the capacity to quantify living organisms of certain size classes. Id. Moreover, the

current technology would require an analysis that was “prohibitively expensive and

supplies.” Natural Res. Def. Council, Inc. v. EPA, 808 F.3d 556, 561 (2d Cir. 2015).

During this process, a ship can collect organisms, then discharge them somewhere else,

thereby “enabling these organisms to establish new, non-native populations. As a result,

ships have become one of the primary ways that invasive species are spread from one

waterbody to another.” Id.

88

The specific limitations to which the relevant monitoring provisions in NRDC

were applicable restricted the discharges of organisms and of pathogen and pathogen

indicators. Id. at 567.

89

Functionality monitoring required a ship owner to measure something to assess

system functionality, “such as how much chlorine the system is using each month.” Id. at

581. Indicator organism monitoring required the owner to analyze samples of ballast

discharge to determine whether the sample contained “significant levels” of the bacteria.

Id.

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impractical.” Id. There was, in essence, no “feasible” alternative the EPA could have

established under these permits. Id. at 582–83. Thus, the Second Circuit deferred t

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