# Maryland Department of Environment v. Anacostia Riverkeeper > Court of Appeals of Maryland · March 11, 2016 · 447 Md. 88 URL: https://www.frixlaw.com/law-library/cases/3184650 ## Case - **Full name:** MARYLAND DEPARTMENT OF the ENVIRONMENT, Et Al. v. ANACOSTIA RIVERKEEPER, Et Al.; Blue Water Baltimore, Et Al. v. Maryland Department of the Environment; Blue Water Baltimore, Et Al. v. Maryland Department of the Environment, Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** March 11, 2016 - **Citations:** 447 Md. 88; 134 A.3d 892 - **Precedential status:** Published - **Opinion:** Opinion by Adkins - **Judges:** Adkins, Barbera, Battaglia, Greene, McDonald - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3184650 ## How later opinions describe it (automated extraction) - stating that courts are to accord an agency “great deference regarding factual questions involving scientific matters in its area of technical expertise[]” - explaining that EPA approved Maryland’s plans “in reliance on” its representations (internal quotation marks and emphasis omitted) - recognizing that deference under federal standard is comparable - explaining the role of modeling in the implementation of the Bay TMDL ## Opinion text 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 ht [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3184650. Public record. Not legal advice.