Petition for Writ of Certiorari — County Commissioners of Carroll County, Maryland, Petitioner v. Maryland Department of the Environment

Supreme Court briefNov 4, 2019

Ask Donna

What actually matters in this document.

Text

No. __________

In the

Supreme Court of the United States

COUNTY COMMISSIONERS OF

CARROLL COUNTY, MARYLAND

Petitioner,

MARYLAND DEPARTMENT OF THE

ENVIRONMENT,

Respondent.

ON APPEAL FROM THE

COURT OF APPEALS OF MARYLAND

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

CHRISTOPHER D. POMEROY

COUNSEL OF RECORD

JUSTIN W. CURTIS

LISA M. OCHSENHIRT

AQUALAW PLC

6 S. 5TH STREET

RICHMOND, VIRGINIA 23219

(804) 716-9021

CHRIS@AQUALAW.COM

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

421 East Franklin Street ♦ Suite 230 ♦ Richmond, VA

804-249-7770 ♦

www.gibsonmoore.net

23219

APPENDIX

TABLE OF CONTENTS

Page:

Opinion

Maryland Court of Appeals

entered August 6, 2019 ....................................... 1a

Opinion

Carroll County Circuit Court

entered June 27, 2019 ..................................... 146a

Maryland Department of the Environment

Water Management Administration

Basis for Final Determination to Issue

Carroll County’s National Pollutant

Discharge Elimination System Municipal

Separate Storm Sewer System Permit

entered December 2014................................... 198a

33 U.S.C. § 1342.................................................... 263a

33 U.S.C. § 1362.................................................... 288a

40 C.F.R. § 122.26 ................................................. 296a

Excerpts of

Commissioners of Carrol County’s

Brief of Appellee/Cross-Appellant

Maryland Court of Appeals

filed May 16, 2018 ........................................... 311a

iia

Excerpts of

Maryland Department of the Environment’s

Brief of Appellant

Maryland Court of Appeals

filed April 16, 2018 .......................................... 355a

Excerpts of Carroll County’s

Memorandum in Support of

Petition for Judicial Review

Circuit Court of Carroll County

filed October 17, 2016...................................... 363a

Excerpts of

Maryland Department of the

Environment National Pollutant Discharge

Elimination System Municipal

Separate Storm Sewer System Permit ................ 384a

[FILED AUGUST 6, 2019]

Circuit Court for Carroll County

Case No. 06-C-15-068141

Circuit Court for Frederick County

Case No. 10-C-15-000293

Argued: September 13, 2018

IN THE COURT OF APPEALS

OF MARYLAND

Nos. 5 & 7

September Term 2018

_______________________________

MARYLAND DEPARTMENT OF THE

ENVIRONMENT

COUNTY COMMISSIONERS OF CARROLL

COUNTY, MARYLAND

_________________________________

FREDERICK COUNTY, MARYLAND

MARYLAND DEPARTMENT OF THE

ENVIRONMENT

_________________________________

Barbera, C.J.,

*Greene

*Adkins

McDonald

Watts

Hotten

Getty,

JJ.

______________________________

Opinion by McDonald, Jr.

Watts, Hotten, and Getty, JJ., dissent.

______________________________

Filed: August 6, 2019

*Greene and Adkins, JJ., now retired, participated in

the hearing and conference of this case while active

members of this Court; after being recalled pursuant

to the Maryland Constitution, Article IV Section 3A,

they also participated in the decision and adoption of

this opinion.

In the quest to conserve a vital resource- the nation's

waters -Congress has enlisted the federal, state, and

local governments under the Clean Water Act ("the

Act")1 in a regulatory approach sometimes called

"cooperative federalism." This effort involves a type of

regulation that takes the form of a "permit" issued by a

federal agency (or a state agency with federal oversight)

at specified intervals to the regulated entity. Such

permits authorize discharges of pollution into

waterways, which the Act otherwise prohibits. When

the targeted pollution is in stormwater, the permitteei.e., the regulated entity- is often a local government.

Inevitably, as in any assignment of responsibility for

solving a serious problem, there is disagreement as to

the solution and the allocation of that responsibility.

One way to resolve such disputes is through judicial

review of the permit.

This consolidated appeal concerns judicial review of

the most recent permits issued to Carroll County and

Frederick County ("the Counties") under the Act and a

parallel Maryland regulatory scheme. The permits

regulate the discharge of polluted stormwater into

waterways in the Chesapeake Bay watershed. The

permits were developed and issued by the Maryland

Department of the Environment ("Department") under

the supervision of the United States Environmental

Protection Agency ("EPA"), as part of an EPA-led,

multi- state effort to restore the Chesapeake Bay in

compliance with the Act.

Both Counties raise serious issues concerning the

scope of the permits, the level of effort required of

each County, the classification of the Counties

1 33 U.S.C. §1251 through §1388.

(which affects certain conditions in the permits),

and the absence or inclusion of certain terms in

the permits. Ultimately, we hold that the

Department did not exceed its authority under State

and federal law when it issued the permits, nor did

it act arbitrarily or capriciously in including the

challenged terms in the permits.

Background

A. The Clean

Water Act and Stormwater

Controlsfor the Chesapeake Bay

The Chesapeake Bay lies between the western

and eastern shores of Maryland and Virginia. As a

recent federal court opinion has noted, its name

derives from the Algonquin word for "great shellfish

bay." Norfolk Southern Railway Co. v. City of

Roanoke, 916 F.3d 315,323 (4th Cir. 2019)

(Wilkinson, J., concurring). While the Bay once

hosted a quantity of fish and shellfish described

as "unbelievable, ... indescribable, and ...

incomprehensible," that is no longer the case and

"[i]nstead of fish, we quantify phosphorus,

nitrogen, sediment, and other pollutants" that

threaten the health of the Bay's marine life. Id.

The watershed of the Chesapeake Bay - the

land from which water drains into it - covers

about 64,000 square miles in six states and the

District of Columbia ("the Bay States"), and

extends from Cooperstown, New York, to Norfolk,

Virginia.

Pollution

from

that

region

contaminates the waters that feed the Bay and

ultimately the Bay itself. "Restoring damaged

waters like the Chesapeake Bay requires

sustained effort, entailing cooperation and

coordination among the federal government, state

and local governments, the enterprise of the private

sector, and all the people who make this region their

home." Norfolk Southern, 916 F.3d at 323 (internal

quotation marks and citation omitted).

Federal, state, and local governments have spent

decades devising programs to reduce the pollution

that enters the Bay. This appeal concerns one such

program. In any effort to describe a complex

regulatory regime, overseen by various government

agencies, one inevitably must become familiar with

the concepts, jargon, and acronyms that define that

effort. We begin with an overview of the key

elements pertinent to this appeal.

Where Pollutants Come From -Point and Nonpoint

Sources

An important distinction for purposes of the

Clean Water Act is the difference between "point

sources" and "nonpoint sources" of water

pollution. Point sources are discrete and localized,

like a pipe carrying discharges from a factory or

wastewater treatment plant. 2 Nonpoint source

pollution, by contrast, comes from dispersed areas

like farms or fields where water runs off the land

without being collected or channeled into a point

source.3 This distinction matters for purposes of

2 A "point source" is defined as "any discernible, confined

and discrete conveyance, including but not limited to any

pipe, ditch, channel, [or other types of conveyance], from

which pollutants are or may be discharged." 33 U.S.C.

§1362(14).

3 "Nonpoint source" is not defined in the Act. The EPA

regards a "nonpoint source" as "any source of water pollution

the Act because the federal statute regulates point

sources of water pollution but does not directly

regulate nonpoint sources.

Discharge Permits

The Act generally prohibits "any person" 4 from

discharging pollutants from a point source into a

waterway. 5 33 U.S.C. §13ll(a). Accordingly, the statute

requires a permit for the discharge of pollutants into a

water body from a point source under specified

conditions. The Act establishes the National Pollution

Discharge Elimination System ("NPDES") to govern

such permits. 33 U.S.C. §1342. The EPA is authorized

to issue and enforce these permits. 33 U.S.C. §§1319,

1342(a)(1). The EPA may also delegate that authority

to a state so long as the state's law establishes a

parallel permitting program consistent with the Act. 33

U.S.C. §1342(b). The EPA has delegated such authority

to most states, including Maryland.6

Each discharge permit in Maryland is issued under

the Act and under a parallel State program. See

that does not meet the legal definition of 'point source' in [the

Act]." See EPA, Basic Information about Nonpoint Source

(NPS) Pollution, https://perma.cc/QPW5-LADC.

Under the Act, "person" includes "an individual,

corporation, partnership, association, State, municipality,

commission, or political subdivision of a State, or any interstate

body." 33 U.S.C. §1362(5).

"Discharge of a pollutant" means "any addition of any

pollutant to navigable waters from any point source [or] any

addition of any pollutant to the waters of the contiguous zone or

the ocean from any point source other than a vessel or other

floating craft." 33 U.S.C. §1362(12).

See EPA, NPDES Permits

https://perma.cc/2VF2-C7MK.

Around

the

Nation,

Maryland Code, Environment Article ("EN"), §9-322

et seq.; COMAR 26.08.04.07. Under Maryland law,

the Department is the agency designated to issue and

enforce these permits.

EN §9-253; COMAR

26.08.04.01. Permits are generally issued for fixed

terms of five years or less, subject to renewal. See

33 U.S.C. §1342(b)(1)(B); EN §9-328(b). As a general

rule, the Act prohibits subsequent permits from

containing "less stringent" conditions than the

conditions in the previous permit- sometimes referred

to as the "anti-backsliding prohibition" in the Act. 33

U.S.C. § 1342(o).

The Act does not require permits for nonpoint

sources or otherwise directly regulate them.

Accordingly, the EPA does not regulate those sources

of water pollution. States may do so through their

own regulatory programs, as Maryland has done. 7

The Act authorizes federal grants to assist the states

in such efforts. 33 U.S.C. §1288.

Pollution Controls in Permits - Water Quality

Standards and Effluent Limitations

Under the Act, "water quality standards" are the

benchmark for clean water. For each water body

covered by the Act, states submit water quality

The State relies on a "wide array of nonpoint source

pollution control programs [to combat] these varied pollution

sources." Maryland Department of the Environment, Nonpoint

Source Program (319) Management and Financial Assistance,

https://perma.cc/X6ZV -6T5E. Such programs include septic

system upgrades, erosion and sediment control on farms,

fertilizer application management, and many others. See

Maryland Department of the Environment, Maryland's 20152019 Nonpoint Source Management Plan (updated August 4,

2016), available at https://perma.cc/RR5K-6EMB.

standards to the EPA for review and approval. 88 The

standards are to be based on the water body's

"designated use" (e.g., public water supply, fishing,

recreational use) and include criteria necessary to

support that use (e.g., specific limits on certain

pollutant

concentrations).

See

33 U.S.C.

§1313(c)(2)(A); 40 CFR §§130.3, 131.6; COMAR

26.08.02.01-.03.

To achieve water quality standards, the Act

requires that discharge permits include pollution

controls for point sources. 33 U.S.C. §13ll(b). The Act

calls these controls "effluent limitations " - "effluent"

being the material discharged by a point source. 9

Effluent limitations may be "technology based" or

"water quality based." See EPA, NPDES Permit

Limits,

https://perma.cc/L4G6-24K9;

Natural

Resources Defense Council v. EPA, 808 F.3d 556, 563

(2d Cir. 2015).

Technology based effluent limitations are

generally the first round of controls in the effort to

achieve water quality standards. See 33 U.S.C.

§13ll(b)(l)(A). They "represent the minimum level of

control that must be imposed in a permit[.]" 40 CFR

§125.3(a). But even the most stringent technology

8 If the EPA does not approve a state-authored water quality

standard, the EPA must establish the standard itself. 33 U.S.C.

§1313(c)(4).

9 The term "effluent" is not defined in the Act. However, the

Act defines "effluent limitation" as "any restriction established

by a State or the [EPA] 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." 33 U.S.C. §1362(11).

based effluent limitations have not achieved water

quality standards in thousands of the nation's

waterways.10 Congress anticipated this possibility in

1972 by retaining water quality standards "as a

supplementary basis for effluent limitations ... so

that numerous point sources, despite individual

compliance with effluent limitations, may be further

regulated to prevent water quality from falling below

acceptable levels." EPA v. California ex rel. State

Water Resources Control Board, 426 U.S. 200,205

n.12 (1976). If technology based limitations do not

achieve the water quality standards, permits may

include "any more stringent limitation ...

necessary to meet water quality standards" - i.e.,

"water quality based effluent limitations." 33

U.S.C. §1311(b)(l)(C); 40 CFR §130.7(c). 11 Thus,

regardless of whether a waterway is over-polluted

due to point sources, nonpoint sources, or some

mixture of both, the Act authorizes the imposition of

water quality based controls on point sources, in

addition to the most stringent technology based

controls.12

10 See American Farm Bureau Federation v. EPA, 792 F.3d

281, 289-91 (3d Cir. 2015).

11 Cf COMAR 26.08.03.01C(2)(b) ("Best available technology

shall be required as the minimum for all permitted discharges.

If it is determined that compliance with the established water

quality standards will not be achieved through [best available

technology], additional treatment shall be [required].").

12 A core premise of water quality based effluent limitations

in general is that permitting agencies may require point sources

to go beyond their existing capabilities to achieve further

pollution reductions. See Natural Resources Defense Council v.

EPA, 915 F.2d 1314, 1316-17 (9th Cir. 1990).

10a

These two types of effluent limitations differ in

their reference point and in their strategies for

reducing

pollution.13 For

technology

based

limitations, the reference point is the source, and the

strategy is to deploy pollutant-reducing technology

at that source regardless of its contribution of

pollutants to the waterway. By contrast, for water

quality based effluent limitations, the reference

point is the waterway, and the strategy is for the

point source to implement any additional actions

(beyond the already required technologies) necessary

to achieve the applicable water quality standard. 14

The Point Sources Here- Municipal Separate

Storm Sewer Systems (MS4s)

This appeal concerns permits for a type of point

source known as a "municipal separate storm sewer

system" ("MS4").15

An MS4 is a network of

13 See Michael P. Healy, Still Dirty After Twenty-Five Years:

Water Quality Standard Enforcement and the Availability of

Citizen Suits, 24 Ecology L.Q. 393, 399 (1997) ("Technologybased standards are based on the source's technological capacity

to control pollution, while water quality-based standards are

based on the environmental effect of the discharged pollution.").

See EPA, NPDES Permit Writer's Manual (September

2010) ("EPA Permit Writer's Manual"), available at

https://perma.cc/P8BX-MNUY, at 5-1 (Technology based effluent

limitations "are developed independently of the potential impact

of a discharge on the receiving water, which is addressed

through water quality standards and water quality- based

effluent limitations[.]").

15 Shortly after the passage of the Clean Water Act in the

1970s, the question of whether - and if so, how - to treat

MS4s as point sources under the Act generated regulations

and litigation. The EPA initially adopted regulations

exempting MS4s from the Act's permit requirement. That

exemption was challenged and held invalid in Natural

11a

conveyances (including storm drains, gutters, and

other drainage systems) designed to carry only

stormwater (as opposed to a "combined sewer

system" that conveys both sanitary sewage and

stormwater). 40 CFR §122.26(b)(8).

MS4s differ from typical "end-of-pipe" point

sources m certain respects. A common point source,

such as a pipe that discharges waste from a factory,

usually discharges a known and finite set of

pollutants from a specific location. By contrast,

stormwater picks up various pollutants as it flows

across widely dispersed areas, including paved (or

"impervious") surfaces, on its way to one of the many

conveyances that make up an MS4, and then into a

waterway. The quantity of stormwater that flows

through these conveyances into a waterway can vary

unpredictably depending on the weather, any

development of the land (e.g., whether the land is

paved), and other activities on the land (e.g., litter, use

of lawn fertilizers).

Given these differences between an MS4 and a

typical point source like a factory, a discharge permit

for an MS4 differs from that for a typical point source.

A discharge permit for a typical end-of-pipe point source

usually sets numeric limits as effluent limitations for

the known set of pollutants discharged from that

pipe.16 Using that same approach for an MS4 would

Resources Defense Council v. Costle, 568 F.2d 1369, 1372-73

(D.C. Cir. 1977). Ultimately, Congress enacted the Water

Quality Act of 1987, which explicitly established a discharge

permit requirement for MS4s. See 33 U.S.C. §1342(p).

EPA Permit Writer's Manual , supra note 14, Ch. 5

(explaining in detail a permitting agency's process for developing

technology based effluent limitations); Natural Resources Defense

Council v. EPA, 808 F.3d 556, 567 (2d Cir. 2015) (A discharge permit

12a

entail setting effluent limitations for each conveyance

within the stormwater drainage system, which would

be administratively, technically, and

financially

burdensome.17 Instead, an MS4 permit generally

requires the

permittee to implement flexible

management programs designed to reduce the pollution

introduced into stormwater, thereby limiting the

amount of pollution discharged into the waterway. 18

In the language of the Act, an MS4 permit is to

include "controls to reduce the discharge of pollutants

to the maximum extent practicable, including

management practices, control techniques and

system, design and engineering methods, and such

other provisions as the [EPA] or the State determines

appropriate for the control of such pollutants." 33

U.S.C. §1342(p)(3)(B)(iii).

imposes effluent limitations on a point source "based on how much

technology is able to reduce the amount of a pollutant at issue").

17 See EPA, National Pollutant Discharge Elimination

System Permit Application Regulations for Storm Water

Discharges, 55 Fed. Reg. 47990, 48037-38 (November 16, 1990)

("EPA Preamble to 1990 Phase I MS4 Rule"). The discussion of

the background of the regulations that appears together with the

notice announcing the EPA 's final adoption of the regulations is

sometimes informally referred to as a "preamble" to the

regulations. However, it is not itself part of the regulations and

does not appear in the Code ofFederal Regulations. See James T.

O'Reilly, Administrative Rulemaking §10:1 (2019 ed.).

18 See EPA Preamble to 1990 Phase I MS4 Rule, 55 Fed. Reg.

at 48037-38; Natural Resources Defense Council v. New York

State Dep't of Envtl. Conservation, 34 N.E.3d 782, 787 (N.Y.

2015).

13a

Implementation of the MS4 Permit RequirementPhase I and Phase II

The Act and related EPA regulations have applied

the permit requirement to MS4s in two phases. The

first phase ("Phase I") took effect during the period

1987-94 and included stormwater systems that were

serving more heavily populated areas - dubbed

"large" and "medium" MS4s - and those that were

contributing to the failure of a water body to meet

water quality standards, irrespective of the size of the

population served. See 33 U.S.C. §1342(p)(2); 40 CFR

§122.26(b). Subsequently, a second phase ("Phase

II") covered "small" MS4s. See 33 U.S.C. §1342(p)(5)(6); 40 CFR §122.34. As a general rule, permits for

MS4s included in Phase I have been subject to an

earlier timetable and more stringent conditions than

permits for MS4s included in Phase II.

Total Maximum Daily Load (TMDL)

An important element in determining the

conditions that appear in a discharge permit is what

is known as the "total maximum daily load" - or

"TMDL." The Clean Water Act does not define this

phrase, but describes it as the "level" of a pollutant

that a water body can tolerate without violating

applicable water quality standards.

33 U.S.C.

§1313(d)(l)(C). In practice, the acronym "TMDL" has

come to refer to more than just a numeric measure

of a pollutant. It has also come to refer to the process

and calculations used to determine that level of a

pollutant and its allocation among sources of the

pollutant. The document in which an agency

calculates the TMDL, in the sense of a numeric

measure of a pollutant, and allocates that level among

various sources of pollution is also sometimes referred

14a

to as a "TMDL." A singularly complex example

pertinent to this case is what is referred to as the

Chesapeake Bay TMDL ("Bay TMDL"),19 which is

discussed in greater detail below.

The EPA has elaborated on the meaning of TMDL

as a numeric measure of pollution in its regulations.

The term "load" refers to a measure of water

pollution. See 40 CFR §130.2(e) (defining "load" as

"[a]n amount of matter or thermal energy that is

introduced into a receiving water"). The phrase "total

maximum daily load" or "TMDL" is defined in

regulation as "the sum of' amounts of the relevant

pollutant emanating from various point and nonpoint

sources together with a "natural background" amount

of the pollutant and a "margin of safety." 40 CFR

§§130.2(i), 130.7(c)(l). A TMDL, in this sense, "can

be expressed in terms of either mass per time,

toxicity, or other appropriate measure ...." 40 CFR

§130.2(i). To understand this definition of TMDL as a

numeric measure requires an understanding of the

TMDL process.

The TMDL process is based on the direction in

the Act that each state identify waterways for which

technology based effluent limitations are not

achieving water quality standards. 20 33 U.S.C.

§1313(d)(l)(A). If water quality standards are not

being met in a waterway due to excess levels of a

EPA, Chesapeake Bay Total Maximum Daily Load for

Nitrogen, Phosphorus and Sediment (December 29, 2010),

available at https://perma.cc/RWM2-Y22N.

As indicated above, when technology based effluent

limitations are inadequate to achieve water quality standards,

discharge permits may include water quality based effluent

limitations.

15a

particular pollutant, the state is to determine the

maximum amount of that pollutant that the

waterway can receive without violating water quality

standards - i.e., the TMDL for that pollutant as to

that waterway.

33 U.S.C. §1313(d)(l )(C). The

resulting TMDL - as a cap on the pollutant- is

sometimes referred to as a "pollution budget" or

"pollution diet." E.g., Norfolk Southern, 916 F.3d at

324; Conservation Law Foundation v. EPA, 964 F.

Supp. 2d 175, 179 (D. Mass. 2013).

The EPA's regulations recognize that, in order for

a state to calculate the maximum level of a pollutant

that a waterway can tolerate without violating water

quality standards, a state agency must conduct a

complex scientific analysis. The state agency must

consider, among other things, the relationship

between the water quality standards and the level of

the pollutant in the waterway, the various sources of

the pollutant, and the extent to which each source

contributes to the violation of water quality standards.

See 40 CFR §130.7(c). As indicated earlier, in

developing the TMDL for that pollutant, the agency

must also factor in "seasonal variations and a margin

of safety which takes into account any lack of

knowledge concerning the relationship between

effluent limitations and water quality." 33 U.S.C.

§1313(d)(1)(C).

Once the agency produces its best estimate of the

maximum pollutant level consistent with water

quality standards - i.e., the TMDL in the sense of a

numeric measure of pollution - it must then

apportion that amount to the relevant sources of that

pollution while allowing for the margin of safety

required by the Act. See 40 CFR §§130.2(i), 130.7(c).

The portion assigned to each relevant point source

16a

is called a "wasteload allocation." 40 CFR §130.2(h). The

portion assigned to each nonpoint source is called a "load

allocation." 40 CFR §130.2(g). In all, therefore, the

TMDL- in the sense of a numeric amount - for a given

pollutant for a particular waterway is the sum of the

wasteload allocations, the load allocations, the natural

background, and the margin of safety. 40 CFR

§§130.2(i), 130.7(c)(1). After a state has determined a

TMDL for a particular pollutant with respect to a

particular waterway, it is to be submitted to the EPA for

approval. 33 U.S.C. §1313(d)(2).

When a state submits a TMDL to the EPA, the state

provides not only the maximum pollutant amount, but

also the various wasteload allocations and load

allocations, together with an explanation of the

calculations that resulted in that maximum amount and

the allocations. EPA, Water Quality Planning and

Management, 50 Fed. Reg. 1774, 1775 (January 11,

1985) ("it is impossible to evaluate whether a TMDL is

technically sound and whether it will be able to achieve

[water quality] standards without evaluating

component [wasteload and load allocations] and how

these loads were calculated"). As indicated earlier, an

example of a document that contains the separate

TMDLs (in the sense of numeric amounts) for relevant

pollutants, explains the reasoning and calculations

underlying those caps, and allocates those totals among

the relevant sources of pollution is the Bay TMDL.

A TMDL such as the Bay TMDL is neither selfimplementing nor directly enforceable. Rather, it serves as

an informational tool that the EPA and the states use in

seeking to achieve the specified pollutant levels - and the

applicable water quality standards -by means of

discharge permits and other regulatory tools. See

American Farm Bureau Federation v. EPA, 984 F.

17a

Supp. 2d 289, 297-98 (M.D. Pa. 2013), aff'd, 792 F.3d

281 (3d Cir. 2015). To enforce the TMDL limits

and corresponding water quality standards, agencies

that issue discharge permits seek to ensure that the

total pollution discharged by point sources does not

exceed the wasteload allocations in the relevant

TMDLs. The combined pollution allotted to all of the

point sources should equal the sum of the wasteload

allocations in a TMDL. Therefore, the discharge

permit for each point source is to contain water

quality based effluent limitations consistent with

the "assumptions and requirements" of the

wasteload allocation for that source in any applicable

TMDL. 40 CFR §122.44(d)(1)(vii)(B).

A discharge permit may incorporate provisions

related to several TMDLs. The permits at issue in

this case incorporate provisions not only from the Bay

TMDL, but also from TMDLs, developed by the

Department and approved by the EPA, for certain

waterways.21 Appendices to the Counties' MS4 permits

list the approved TMDLs applicable to each County.

One example, which will be discussed later in this

opinion, is the TMDL for fecal bacteria in Double Pipe

Creek, whose watershed spans both Counties.

Chesapeake Bay TMDL and Maryland Watershed

Implementation Plan (WIP)

In 2009, after decades of multilateral efforts

aimed at restoring the Chesapeake Bay22 the EPA

began the development of a Chesapeake Bay-wide

21 See Maryland Department of the Environment, Approved

TMDLs, https://perma.cc/99S9-C7Q3.

For a summary of Bay clean-up efforts over the past

several decades, see Farm Bureau, 984 F. Supp. 2d at 298-303.

18a

TMDL. 23 After publishing a draft for a period of

public review, the EPA adopted the Bay TMDL in

late 2010. 24 The Bay TMDL establishes limits for

three pollutants- nitrogen, phosphorus, and sediment

- that threaten marine life by feeding large algae

blooms that block sunlight and reduce oxygen levels

in the water. 25 Bay TMDL at 2-6, 2-7. Specifically,

the Bay TMDL pollutant caps are designed to satisfy

water quality standards involving "aquatic life uses"

The EPA "established the Chesapeake Bay TMDL

pursuant to a number of existing authorities, including the

[Clean Water Act] and its implementing regulations, judicial

consent decrees requiring EPA to address certain [waters in the

Chesapeake Bay watershed that were failing to meet water

quality standards], a settlement agreement resolving litigation

brought by the Chesapeake Bay Foundation, the 2000

Chesapeake Agreement [between certain Bay states], and

Executive Order 13508." See Bay TMDL at 1-16. That Executive

Order directed the EPA to "mak[e] full use of its [Clean Water

Act] authorities to lead a collaborative and effective federal and

state effort to meet the Bay's nutrient and sediment goals." Id.

at 1-17.

24 See EPA, Clean Water Act Section 303(d): Preliminary

Notice ofTotal Maximum Daily Load {TMDL) Development for

the Chesapeake Bay, 74 Fed. Reg. 47792 (September 17, 2009);

EPA, Clean Water Act Section 303(d): Notice for the

Establishment of the Total Maximum Daily Load (TMDL)for the

Chesapeake Bay, 76 Fed. Reg. 549 (January 5, 2011) (stating that

the EPA established the Bay TMDL on December 29, 2010).

25 More precisely, the Bay TMDL divides waterways in

the Chesapeake Bay watershed into 92 "segments," and

establishes individual TMDLs- in the sense of numeric

amounts - for each segment for each of the three

pollutants .Thus, the Bay TMDL is "an assemblage of 276

TMDLs: individual TMDLs for each of the 3 pollutants nitrogen, phosphorus, and sediment- for each of the 92

segments (3 x 92 = 276)." Bay TMDL, at xiii & 2-7.

19a

and criteria such as water clarity and dissolved

oxygen levels. Id. at 3-1, 3-2.

Given the breadth and complexity of the Bay

TMDL, the EPA established a unique accountability

framework to achieve its goals. Bay TMDL at ES8. Although the Act generally does not require an

implementation plan for a TMDL, the EPA directed

each Bay State

to create a

"Watershed

Implementation Plan" ("WIP") to reduce pollution

to the levels set by the Bay TMDL. Each Bay State's

WIP serves two basic purposes- to break down the

EPA's statewide Bay TMDL pollutant allocations

among geographic areas and among point and

nonpoint sources within the state, and to identify

the programs and policies that the state will use to

achieve those pollutant reductions. The Maryland

WIP was developed by the Department together with

the Departments of Planning, Agriculture, and

Natural Resources.

Maryland's Final Phase I

Watershed Implementation Plan (Dec. 3, 2010),

available at https://perma.cc/8CMV-ENCB ("Maryland

WIP"). 26 Like the other Bay State WIPs, the

Maryland WIP functions as a "roadmap" for how and

when the State will reach the pollution reduction

goals set forth in the Bay TMDL. Maryland

26 The EPA anticipated that each state would write its WIP

in three phases. The State has published the first two iterations

of its WIP and a draft version of the third iteration. See

Maryland Department of the Environment, Watershed

Implementation Plans, https://perma.cc/J985- WQ65. Citations

in the text are to the first iteration of the WIP, often referred to

as the Phase I WIP. The "phases" of the WIP should not be

confused with the two phases of the MS4 permitting program,

which will be discussed in some detail in Part II.D. of this

Opinion.

20a

Department of the Environment

Riverkeeper, 447 Md. 88, 109 (2016).

Anacostia

Implementing the Maryland WIP in MS4 Permits

The Maryland WIP listed several requirements to

be included in the then-upcoming round of Phase I

MS4 permits in Maryland. Two of these requirements

correspond to terms in the Counties' permits that are

part of the dispute in this litigation.

First, a commitment in the Maryland WIP

involves restoration of impervious surfaces- i.e.,

areas that have been paved or otherwise developed,

as opposed to natural, undeveloped areas. Natural

areas allow stormwater to soak into the ground,

where pollutants are filtered to some extent.

Impervious surfaces prevent that filtration process.

Instead, stormwater that encounters an impervious

surface rushes over it, collecting pollutants along the

way. To "restore" an impervious surface is to make

it function more like a natural terrain that absorbs

and filters rain water. Doing so accomplishes the

same end as a direct pollutant control, like a filter

or other cleansing mechanism attached to a

conveyance. The less impervious surface that exists,

the less polluted stormwater will run across it and

into the conveyances of the MS4. Thus, as is true in

general for stormwater management programs in

MS4 permits, an impervious surface restoration

requirement serves as a surrogate for direct

pollution controls. See Anacostia Riverkeeper, 447

Md. At 122-23. The Maryland WIP called for

"[c]ompletion of restoration efforts for twenty

percent of the [Phase I MS4] counties' impervious

surface area that is not already restored to the

21a

maximum extent practicable." Maryland WIP at 530.

Second, another provision of the Maryland WIP

refers to many applicable local TMDLs with stormwater

wasteload allocations. For example, for the Counties, the

relevant local TMDLs are compiled, as mentioned above,

in appendices to their MS4 permits. The Maryland WIP

requires the creation of"[s]tormwater watershed

implementation plans for each EPA approved

stormwater wasteload allocation" in the relevant local

TMDLs. Maryland WIP at 5-30. Such local watershed

implementation plans are distinct from the overall

Maryland WIP.

Maryland Stormwater Management Act

In addition to the permitting program, the State

Stormwater Management Act has, since the mid1980s, required local jurisdictions to implement

stormwater management programs "to reduce as

nearly as possible the adverse effects of stormwater

runoff." EN §4-20 1. Each county and municipality is

to adopt ordinances necessary to implement such a

program consistent with State law. EN §4-202. The

Legislature directed the Department to adopt

regulations governing such programs that would,

among other things, indicate that the primary goal is

"to maintain after development, as nearly as

possible, the predevelopment runoff characteristics."

EN §4-203(b)( 1); see also Anacostia River keeper, 447

Md. at 110-13. The statute authorizes jurisdictions to

impose and collect stormwater remediation fees and

other charges to carry out such programs. EN §§4202.1, 4-204; see also 96 Opinions of the Attorney

General 61 (20 11). Such fees provide "important

revenue needed to offset the costs of building and

22a

maintaining

municipal gutters

and

drains,

monitoring pollution levels, policing illegal discharges

of polluted water, and educating the public on proper

environmental practices." Norfolk Southern, 916

F.3d at 325 (referring to similar local stormwater fee

in Virginia).

The Carroll County and Frederick County MS4

Permits

The Department first issued MS4 permits to

Carroll County and Frederick County during the

1990s as part of Phase I of the MS4 permitting

process, and has renewed those permits several times

since then. The permits that are the subject of this

case are Carroll County's fourth and Frederick

County's third round of MS4 permits, which were

both issued in December 2014. In accordance with

State law, the Department first issued draft permits

for public comment. See EN §1-604(a). In each case,

the Department held a public hearing and accepted

comments on the draft permit. After considering

those comments, the Department made a Final

Determination to issue each permit together with a

document entitled "Basis for Final Determination"

that provided an explanation for its action. EN §1604(b).

Pertinent to this case, the Maryland WIP

commitment involving impervious surface restoration

is incorporated into Part IV.E.2.a of each permit.

This provision has two components. First, it requires

each County to submit to the Department an

"impervious surface area assessment" consistent

with guidelines provided by the Department. That

assessment, if approved by the Department, "shall

serve as the baseline for the restoration efforts"

23a

required by the permit. Second, by the end of the

permit term, each County "shall commence and

complete the implementation of restoration efforts

for twenty percent of the County's impervious

surface area consistent with the methodology

described in [a Department guidance document] that

has not already been restored to the" maximum extent

practicable.

Part IV.E.2.b of each permit includes a provision

based on the commitment in the Maryland WIP

concerning local TMDLs. This provision requires

each County to submit to the Department for approval

a plan to implement each stormwater wasteload

allocation in each relevant, EPA-approved local

TMDL. Each plan must include a final date for

"meeting applicable [wasteload allocations] and a

detailed schedule for implementing all [necessary]

structural and nonstructural

water quality

improvement

projects,

enhanced stormwater

management programs, and alternative stormwater

control initiatives."

Upon approval by the

Department, the plans become enforceable conditions

of the permits.

Two other aspects of the permits are at issue

here. The first is Part VI.B of each permit, which

requires the Counties to cooperate with other State

agencies in the development of elements of the

Counties' comprehensive growth plans that involve

stormwater management. The second contested

aspect of the permits is the absence of an

authorization for "water quality trading."27 As

relevant here, such trading would allow the Counties

"Water quality trading" is sometimes referred to as

"nutrient trading."

24a

to earn credit for pollution reduction by paying others

(whether point or nonpoint sources) to take pollutionreducing actions. A County might consider water

quality trading in situations where paying another

party to achieve a pollution reduction costs less than

the County's own efforts to achieve a similar

reduction.

Procedural History

In January 2015, Carroll County sought judicial

review of its 2014 MS4 permit in the Circuit Court

for Carroll County. At the request of the parties, the

matter was stayed for more than a year while the

parties pursued settlement and while challenges to

similar permits by environmental advocates were

being litigated.28 After the stay expired, the Circuit

Court issued an opinion dated June 26, 2017, agreeing

with the County on some of its claims and with the

Department on others. The court remanded the

County's permit to the Department. The Department

appealed that ruling and the County filed a crossappeal.

In January 2015, Frederick County sought judicial

review of its 2014 permit in the Circuit Court for

Frederick County. As in the Carroll County case, the

matter was stayed pending settlement discussions

and other litigation. After the stay expired, the

Circuit Court issued an opinion dated July 14, 2017,

that largely rejected the County's arguments, but

remanded the permit to the Department to address

what the court believed were ambiguities and

28 This Court resolved that litigation in Maryland Department

of the Environment v. Anacostia Riverkeeper, 4471V,Id. 88 (2016).

25a

inconsistencies in the permit's wording. Frederick

County appealed that ruling.

The Court of Special Appeals consolidated the two

appeals for argument. Prior to argument and

decision in the Court of Special Appeals, the Counties

asked this Court to grant a writ of certiorari in their

respective cases. The Department agreed that the

Counties' petitions should be granted. This Court

granted the two petitions and consolidated the cases

for argument.

Discussion

Both Counties challenge conditions set forth in

their most recent MS4 permits, although some of

the bases for their challenges differ.

Two of the alleged flaws in the permits concern

the impervious surface restoration requirement.

First, Frederick County argues that the

Department exceeded its authority under the

Clean Water Act by failing to consider

"practicability" when it included the impervious

surface restoration requirement in its permit.

Frederick County bases this argument on a

provision of the Act that requires MS4 permits to

include controls to reduce pollution discharges "to

the maximum extent practicable" - what is

sometimes called the MEP standard. Frederick

County further argues that, even if the Act allows

to set the restoration

the Department

requirement without regard to the MEP

standard, the Department arbitrarily and

capriciously failed to consider the County's

26a

contention that compliance with the degree of

restoration required by the permit is impossible.

Second, both

Counties assert that the

Department exceeded its authority under the Act by

including in the permit an impervious surface

restoration requirement in which the baseline for

measuring compliance with the requirement relates

to the unrestored impervious surface throughout the

entire County, rather than only the area served by

the County's MS4.

Both Counties argue that the Department has

unlawfully treated them as Phase I jurisdictions

for purposes of their MS4 permits- thereby

subjecting them to more stringent permit terms

required of Phase I jurisdictions than those later

required of Phase II jurisdictions - because it

incorrectly classified them in the early 1990s as

"medium" jurisdictions based on population.

Carroll County also argues that its inclusion in

Phase I of the MS4 permitting program was

arbitrary and capricious.

Both Counties argue that the Department

arbitrarily and capriciously failed to include water

quality trading as a compliance mechanism in their

permits.

Finally, Carroll County argues that a provision in

its permit that requires the County to cooperate with

other State agencies in the development of

stormwater-related

aspects of the County's

comprehensive growth plan unlawfully imposes new

obligations on the County.

27a

We first discuss the standards that govern our

consideration of these arguments. We then consider

the substantive issues raised by the Counties.

A. What and How We Review

The General Assembly has provided for judicial

review of permits issued by the Department, such

as the MS4 permits issued to the Counties. EN §1601(a)(3), (c). Such review is based on an

administrative record that includes the various

items set forth in EN §1-606(c).29 Judicial review

begins in the circuit court pursuant to the

Maryland Rules. See Maryland Rule 7-201 et seq.

(goveming judicial review of administrative actions

when a statute provides for judicial review).

In an appeal of the circuit court's review of an

agency action, an appellate court reviews the

agency's action itself rather than the decision of

the circuit court. Hollingsworth v. Severstal Sparrows

Point, LLC, 448 Md. 648, 654 (2016). Thus, while the

circuit court decisions here set the stage for our

review and determined who would be appellant and

appellee in our Court, we are not assessing the merits

of those court decisions. Rather, we directly review the

permits in light of the issues raised by the Counties.

29 Among other things, the record may include the permit

application and any accompanying data, documents contained in

the supporting file for the draft permit, comments submitted to

the Department from the public, responses to those comments,

the tape or transcript of any public hearings, and the

Department's statement of the basis for its determinations with

respect to the permit.

28a

1. Standards for Review of Discharge Permits

a. General Standards for Review o(Agency Action

The standards for judicial review of a discharge

permit - and their corresponding levels of deference

to the agency - vary depending on whether the court

is reviewing an agency's fact findings, discretionary

decisions, or legal conclusions. See Anacostia

Riverkeeper, 447 Md. at 118-21.

Review of Fact Findings

For fact findings, a reviewing court applies the

"substantial evidence" standard, under which the

court defers to the facts found and inferences drawn

by the agency when the record supports those

findings and inferences. Anacostia Riverkeeper, 447

Md. at 120. In particular, with respect to factual

issues that involve scientific matters within an

agency's area of technical expertise, the agency is

entitled to "great deference." !d.

Review of Matters Committed to the Agency's

Discretion

With respect to matters committed to agency

discretion, a reviewing court applies the "arbitrary

and capricious" standard of review, which is

"extremely deferential" to the agency. Harvey v.

Marshall, 389 Md. 243, 296-99 (2005); Spencer v.

Md. State Bd. of Pharmacy, 380 Md. 515, 529 (2004).

This standard is highly contextual, but generally the

question is whether the agency exercised its discretion

"unreasonably or without a rational basis." Harvey,

389 Md. at 297; Arnold Rochvarg, Maryland

Administrative Law, §4.38 at 128 (2011).

For guidance, a reviewing court may look to case

law applying the similar standard in federal

29a

administrative law. See Anacostia River keeper, 447

Md. at 120-21; Office of People's Counsel v. Public

Service Commission, 461 Md. 380, 399 (2018). 30

Under this standard, a reviewing court is not to

substitute its own judgment for that of the agency and

should affirm decisions of "less than ideal clarity" so

long as the court can reasonably discern the agency's

reasoning. Bowman Transp., Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281, 285-86 (1974).

Review of the Agency's Legal Conclusions

With respect to an agency's legal conclusions, a

reviewing court accords the agency less deference

than with respect to fact findings or discretionary

decisions. Anacostia Riverkeeper, 447 Md. at 122. In

particular, a court will not uphold an agency action

that is based on an erroneous legal conclusion. !d.

However, in construing a law that the agency has

been charged to administer, the reviewing court is

to give careful consideration to the agency's

interpretation.

In construing a statute, a reviewing court applies

the oft-stated approach to statutory construction.

That is, the court seeks to ascertain legislative

intent - whether that of the General Assembly or

Under the federal standard, the reviewing court may

consider whether: (1) the agency's choice was rationally

connected to the facts found; (2) the agency considered the

relevant factors; (3) the agency made a clear error of judgment;

(4) the agency relied on factors the legislature did not intend for

it to consider; (5) the agency failed to consider an important

aspect of the problem; (6) an explanation for the decision runs

counter to the evidence; and (7) the decision is so implausible

that it could not be ascribed to a difference in view or the product

of agency expertise. Office of People 's Counsel, 461 Md. at 399

n.16.

30a

of Congress. That endeavor begins with the plain

meaning of the text, keeping in mind that the

plainest language is controlled by the context in

which it appears. Kaczorowski v. Mayor & City

Council of Baltimore, 309 Md. 505, 514 (1987). The

legislative history of the statute may then be

reviewed to understand the purpose of the

legislation, resolve ambiguities, and confirm the

apparent meaning of the text. Past case law

construing a provision is, of course, also helpful.

Throughout, the court must be mindful that the

purpose is not to discern "purely judicial notions of

public policy," but rather legislative intent. BAA,

PLC v. Acacia Mutual Life Ins. Co., 400 Md. 136,

157 (2007).

When a party

challenges the agency's

interpretation of the statute the agency administers,

the court must assess how much weight to accord

that interpretation, keeping in mind that it is "always

within [the court's] prerogative to determine whether

an agency's conclusions of law are correct." Schwartz

v. Md. Dep't of Nat. Res., 385 Md. 534, 554 (2005).

The weight given an agency's interpretation of a

statute it administers depends on several factors.

Baltimore Gas & Electric Co. v. Public Service

Commission, 305 Md. 145, 161 (1986). More weight is

appropriate when the interpretation resulted from a

process of "reasoned elaboration" by the agency,

when the agency has applied that interpretation

consistently over time, or when the interpretation is

the product of contested adversarial proceedings or

formal rule making. Id. at 161-62.

31a

b. Effoct of the Clean Water Act's Scheme of

Cooperat ive Federalism

In our consideration

of the Department's

interpretation and application of the Clean Water Act,

we must take into account the extent to which the

EPA's administrative interpretation and federal case

law set parameters for the Department's actions. The

shared implementation of a federal policy or program

by federal and state agencies is sometimes referred to

as "cooperative federalism." See Anacostia Riverkeeper,

447 Md. at 101. It can affect how a state court reviews

that implementation when the state agency's actions

are limited by federal policies. In general, a state

agency that is delegated the administration of the

discharge permitting program under the Act is "bound

to follow EPA's interpretation of the [Act]." Natural

Resources Defense Council v. New York State Dep't of

Envtl. Conservation, 34 N.E.3d 782, 794 n.l6 (N.Y.

2015) (declining to entertain a challenge to an EPA

regulation interpreting the Act and state agency's

compliance with that interpretation). 31

31 See also BellSouth Telecommunications, Inc. v. Sanford, 494

F.3d 439, 449 (4th Cir. 2007) (state's authority over

telecommunications issue is part of deliberately constructed model

of "cooperative federalism" under which state agency applies

expertise and experience "subject to the boundaries set by Congress

and federal regulators"); Perry v. Dowling, 95 F.3d 231, 236-37 (2d

Cir. 1996) (a state agency's interpretation of the federal

Medicaid statute "warrants deference" when "the state has

received prior federal- agency approval to implement its plan,

the federal agency expressly concurs in the state's interpretation

of the statute, and the interpretation is a permissible

construction of the statute"); Aaron Saiger, Chevron and

Deference in State Administrative Law, 83 Fordham L. Rev. 555,

581 (2014) ("State officials who deal with the environment,

education, or antiterrorism are enmeshed in a system of

32a

Under the Act's cooperative federalism scheme, the

EPA has delegated the administration of the Act's

discharge permitting program in Maryland to the

Department. Nonetheless, the EPA reviews and has

the right to object to the Department's draft discharge

permits. 40 CFR §123.44 ("EPA review of and

objections to State permits"); see also Memorandum of

Agreement between EPA and Department (May 18,

1989), available at https://perma.cc/3UNE-4CLN

(explaining that the EPA will review all Stateprepared permits and may object to them). In addition,

the EPA has overseen Maryland's efforts (as well as

those of the other Bay States) to achieve the goals of

the Bay TMDL- i.e., efforts to develop and carry out

the WIPs. See Farm Bureau, 984 F. Supp. 2d at 32324.

c. Deference Owed to the EPA's Construction of

the Clean Water Act

In assessing the weight to be accorded the EPA's

construction of the Act, we look to the deference that

would be accorded such interpretations under

federal case law. In general, when an agency

exercises authority to "make rules carrying the force

of law" - i.e., rulemaking, adjudications, or other

actions involving similarly extensive administrative

procedures- the agency's interpretation warrants

deference under Chevron US.A. v. Natural Resources

Defense Council, 467 U.S. 837 (1984). Less formal

agency action may also merit Chevron deference

depending on "the interstitial nature of the legal

question, the related expertise of the Agency, the

importance of the question to administration of the

regulatory federalism that often very substantially deprives

them of freedom of action.").

33a

statute, the complexity of that administration, and

the careful consideration the Agency has given the

question over a long period of time." Barnhart v.

Walton, 535 U.S. 212, 222 (2002).

Under Chevron, a federal court first determines

"whether Congress has directly spoken to the

precise question at issue" in the pertinent statute in this case, the Clean Water Act. 467 U.S. at 842.

If the Congressional intent is clear, the court "must

give effect to [that] unambiguously expressed

intent." Id. at 842-43. But "if the statute is silent

or ambiguous with respect to the specific issue," the

court must decide "whether the [EPA's] answer is

based on a permissible [or reasonable] construction

of the statute." Id. at 843- 44.

Even if the particular agency interpretation does

not meet the criteria for Chevron deference, a

reviewing court may defer to that interpretation

based on the persuasiveness of the agency

interpretation, considering factors such as "the

thoroughness evident in its consideration, the validity

of its reasomng, its consistency with earlier and later

pronouncements, and all those factors which give it

power to persuade, if lacking power to control."

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

(Jackson, J.).32

If those factors sound familiar, perhaps it is because

Skidmore is a direct ancestor of the leading case of this Court

concerning the degree of judicial deference accorded to state

agency actions . See Baltimore Gas & Electric Co. v. Public

Service Commission, 305 Md. 145, 161-62 (1986), citing and

relying on Comptroller v. John C. Louis Co., 285 Md. 527, 544

(1978), which cites and relies upon Skidmore.

34a

This Court has assessed the validity of State agency

actions consistent with a federal agency's regulations or

interpretations of a federal statute in light of these

principles. See Anacostia Riverkeeper , 447 Md. at 142

& n.61 (citing federal administrative deference case law

and finding an EPA policy memorandum "instructive"

on interpretation of federal regulation under the Clean

Water Act); Sugarloaf Citizens ' Ass 'n v. Department

of the Environment, 344 Md. 271, 313 (1996) (affirming

Department action based in part on EPA interpretation

of the federal Clean Air Act, which was entitled to

deference under Chevron); Koons Ford of Baltimore,

Inc. v. Lobach, 398 Md. 38, 54 (2007) (applying Chevron

and adopting the FTC's interpretation of a federal

statute that the FTC administers); Montgomery Cty. v.

Glenmont Hills Associates Privacy World at Glenmont

Metro Ctr., 402 Md. 250,271-72 (2007) (citing Chevron

in adopting HUD's interpretation that a federal statute

did not preempt local agency action that the Court

affirmed).

2. Reviewability of Permit Terms Derived from

TMDLs and WIP

Incorporation of TMDLs and the Maryland WIP in

the Counties' MS4 Permits

The MS4 permits at issue in this appeal incorporate

or reference elements of the Bay TMDL, the Maryland

WIP, and certain local TMDLs. That raises the

question whether this litigation is the appropriate

forum for what amounts to a challenge to those prior

administrative actions.

35a

The Appropriate Forum for Challenging Permit

Provisions Derived from a TMDL

Carroll County argues that provisions of a TMDL

that are implemented in a permit must be reviewable

in the context of judicial review of that permit - i.e.,

in an action like this one. The County reasons that,

because Maryland statutory law does not provide for

judicial review of State-authored TMDLs and because

the TMDLs themselves are not self - executing, the

only viable mode of judicial review is a challenge to a

permit.

The County is correct that the Maryland Code does

not provide for judicial review of a TMDL. The County

is also correct that a TMDL is not self-executing. Farm

Bureau, 792 F.3d at 291 n.4. However, the absence of a

statutory mechanism for review of a TMDL in State

court does not mean it is not reviewable in any court.

The EPA's approval of a state-submitted TMDL "is an

act taken pursuant to the [Clean Water Act] and

thus is subject to challenge [in federal court] under

the [federal Administrative Procedure Act.]" Anacostia

Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 222

(D.D.C. 2011). For example, the major case challenging

the validity of the Bay TMDL was held to be ripe for

judicial review in federal court because the "parties

present[ ed] a purely legal dispute on a well-developed

record about the EPA's process of promulgating a

TMDL." Farm Bureau, 792 F.3d at 293-94. Similarly,

parties challenging other state-prepared, EPAapproved TMDLs have obtained judicial review of the

EPA's approval of those TMDLs in federal court. See,

e.g., Friends of Earth, Inc. v. EPA, 446 F.3d 140

(D.C. Cir. 2006); Natural Resources Defense Council

v. Muszynski, 268 F.3d 91 (2d Cir. 2001); City of

Kennett v. EPA, 887 F.3d 424 (8th Cir. 2018).

36a

To the extent that the Counties are challenging

decisions previously made or actions taken in adopting

an EPA-approved TMDL, judicial review of those

decisions or actions was available in federal court.

Unsurprisingly, as this Court has previously indicated,

an action for judicial review of a discharge permit in

State court is not the forum for raising belated

challenges to a TMDL that the challenger could

have raised elsewhere.See Anacostia Riverkeeper, 447

Md. at 129 n.46. 33 Thus, in an action by a permittee

33 In Anacostia Riverkeeper, this Court cited In re City of

Moscow, Idaho, 10 E.A.D. 135, 2001 WL 988721 (EAB July 27,

2001) to illustrate this principle. Moscow was an opinion of the

Environmental Appeals Board ("Board"), the EPA's final

decisionmaker of administrative appeals under the statutes that

the EPA administers. In Moscow, a municipality pursued an

administrative appeal of a discharge permit for its sewage

treatment plant issued by the EPA. The municipality

challenged, among other things, a term in the permit that was

derived from a state-prepared TMDL for the water body into

which the plant discharged pollutants. 2001 WL 988721 at *1,

*16. The permit term established a "seasonal constraint" on

phosphorus discharges (between May and October, the "normal

growing season months" of algae blooms, which are fed in part

by phosphorus). Id. at *16 n.53.

The municipality argued, among other things, that the

EPA's decision to adopt the TMDL's seasonal growth period as

part of the permit was arbitrary and capricious, but the Board

disagreed. The Board observed that the TMDL clearly specified

the growth period and that federal regulations required that the

municipality's permit be consistent with the "assumptions and

requirements" of the treatment plant's wasteload allocation

established by the TMDL. 2001 WL 988721 at *16.

The municipality also claimed that the TMDL's seasonal

growth period was inaccurate. The Board also rejected that

argument, holding that the administrative appeal of the permit

terms was not the appropriate forum for raising that claim. 2001

WL 988721 at * 17. The Board reasoned that it was authorized

to review "contested permit conditions" but not the validity of

37a

under EN §1-601 challenging a permit term derived

from a TMDL, the permittee may not base that

challenge on a decision that was previously made in

the development of the TMDL. 34

"prior, predicate regulatory decisions that are reviewable in

other fora," and that the TMDL was a prior predicate regulatory

decision reviewable in a federal district court under the federal

Administrative Procedure Act. Id. at * 18.

The Board

concluded that the municipality's claim was essentially a

belated challenge to determinations previously made in the

TMDL and the EPA's earlier decision to approve the TMDL which were reviewable elsewhere.

As this Court indicated in Anacostia Riverkeeper, that

reasoning applies in actions to review discharge permits in

Maryland courts. In Maryland, State courts are authorized to

review a discharge permit issued by the Department, but not a

TMDL on which parts of the permit may be predicated.

Specifically, although the General Assembly has provided for

judicial review of discharge permits in EN §1-601(c), it has not

authorized judicial review of State-prepared TMDLs (which are

not final until they receive EPA approval). Instead, as noted in

the text, the EPA's approval of such a TMDL- necessary for it to

be effective -may be challenged in federal court.

34 Of

course, just because something is mentioned in a

TMDL does not mean that it would be ripe for a challenge in

federal court. For example, when an environmental group

challenged an alleged "authorization" of water quality

trading in the Bay TMDL in federal court, the court held that

the claim was not ripe because the Bay TMDL only "expected"

or "encouraged" trading without making a final decision

about it - let alone "authorizing" it in a permit. See Food &

Water Watch v. EPA, 5 F. Supp. 3d 62, 73-86 (D.D.C. 2013).

In other words, the challenger failed to identify a final,

concrete decision in the TMDL that was suitable for judicial

review. That case illustrates that the principle identified in

Anacostia Riverkeeper applies only to provisions of a TMDL

that reflect a reviewable final action taken in the TMDL.

38a

Consistent

with

the

principle

recognized

inAnacostia Riverkeeper, we conclude that claims

concerning a discharge permit that are essentially

challenges to a governing TMDL and that could have

been raised in an action for judicial review of the EPA's

approval of that TMDL cannot be raised in a judicial

review action under EN §1-601.35 Accordingly, as

explained further below, we will not entertain some of

the Counties' arguments that are essentially challenges

to provisions in EPA-approved TMDLs.36

B. Whether the Impervious Surface Restoration

Permit Term Unlawfully Exceeds the MEP

Standard or is Arbitrary and Capricious

The Clean Water Act, in describing provisions

to be included in an MS4 permit, refers to a

35 We need not, and do not, address whether a State court

would have authority to directly review a TMDL prepared by

the Department pursuant to an administrative mandamus

action, Maryland Rule 7-401 et seq., or otherwise.

Carroll County argues that the Department is

"estopped" from arguing that the County may not challenge a

provision of a TMDL incorporated in its permit. The County's

basis for this argument is that, in a 2003 case, the Department

successfully argued that a discharger cannot claim to have

been aggrieved by a TMDL until the Department proposes to

issue a discharge permit that includes effluent limitations

based on the TMDL. See In re Wicomico River TMDL, No. 22C-01-000623 (Wicomico Cty. Cir. Ct. June 13, 2003). The

County's argument is not without some force as the

Department's position here appears to contradict its argument

in Wicomico River. However, the reviewability of a permit term

is a legal question, not subject to an estoppel argument. For

the reasons set forth in the text, it is our view that permit

terms that directly implement a decision made in an EPAapproved TMDL are not subject to review in an action in State

court challenging the permit.

39a

standard of "maximum extent practicable" - often

denominated by the acronym "MEP." 33 U.S.C.

§1342(p)(3)(B)(iii). Whether the MEP standard

governs all provisions in an MS4 permit, or only

certain provisions, is a matter of debate - a debate

that we shall wade into presently. Frederick

County's flagship argument in its appeal is that

the Department unlawfully disregarded the MEP

standard and therefore exceeded its authority when

it included the impervious surface restoration

requirement in the County's permit. The County

further argues that, even if the Act allows the

Department to include provisions in the permit without

reference to the MEP standard, the impervious surface

restoration requirement is impossible to achieve and

that the Department acted arbitrarily and capriciously

in including it in the permit. Carroll County does not

join either of these arguments, although its permit

includes an identical impervious surface restoration

requirement.

1. The MEP Standard

Congress did not define the MEP standard in the

Act and the EPA has explicitly declined to define it

as well. 37 The phrase "maximum extent practicable"

suggests a standard that is, or is close to, the most

stringent standard in a hierarchy of possible

standards under the Act. However, in the context

The EPA has explained that it "intentionally [has] not

provided a precise [regulatory] definition of MEP to allow

maximum flexibility in MS4 permitting." EPA, National

Pollutant Discharge Elimination System - Regulations for

Revision of Water Pollution Control Program Addressing

Storm Water Discharges, 64 Fed. Reg. 68722, 68754 (December

8, 1999).

40a

of the Act's standards for pollution controls, that is

not the case.38 To understand why, it is helpful to

review the dichotomy between technology based and

water quality based effluent limitations for point

sources and then consider how the MEP standard

relates to those limitations.

The Clean Water Act's Hierarchy of Pollution

Controls

In principle, the most that a regulatory agency

can require of a point source is to do what is

necessary to reduce pollutants to a level such that

the waterway satisfies water quality standards.

Thus, the most stringent level of control- for any

point source- is strict compliance with water

quality standards for the pertinent waterway.

Given the difficulty of calculating and enforcing

such standards, Congress in the Act chose not to

"make the perfect the enemy of the good" and

authorized the use of technology based effluent

limitations for typical, end-of-pipe point sources.

33 U.S.C. §13ll(b)(l)(A). Such controls achieve

some pollution reduction, although often not

enough to achieve water quality standards for the

pertinent

waterway. As

explained

above,

technology based effluent limitations are designed

from the perspective of the discharger while

38 See Jones Creek Investors, LLC v. Columbia County, Ga.,

98 F. Supp.3d 1279, 1300 n.4 (S.D. Ga. 20 15) (In the MS4

context, "[t]he phrase 'maximum extent practicable' is a term

of art, and should not be attributed the ordinary meaning

usually applied to those words."); National Research Council,

Urban Stormwater Management in the United States (The

National Academies Press 2009) at 60 ("[T]he [MEP] standard

for MS4s ... [is] a floor, not a ceiling, for permit requirements

when receiving waters are impaired.").

41a

controls based on water quality standards - water

quality based effluent limitations - are designed

from the perspective of the waterway.

MEP Standard

Standard

versus Water

Quality

Based

The MEP standard is analogous to a technology

based effluent limitation in that its reference point

is the MS4 operator rather than the waterway. 39 A

water quality based effluent limitation is more

stringent than an MEP-level control just as such a

limitation is more stringent than a technology based

control. Despite this analogy, water quality based

effluent limitations operate differently in end-of-pipe

point source permits than they do in MS4 permits.

With an end-of-pipe point source, a technology based

effluent limitation is typically a numeric level of

pollution and the point source must install technology

to ensure that the amount of pollution emitted from

the pipe is below the specified level. A water quality

based effluent limitation may simply ratchet down

that numeric level, requiring the point source to come

up with ways to reduce pollution further.

With MS4s, however, there generally is no

corresponding numeric cap on the amount of pollution

discharged by each conveyance within an MS4. 40

39 National Research Council, supra note 38, at 60 (grouping

the MEP standard with "other technology-based requirements"

for stormwater permittees); see also Jones Creek Investors, 98

F. Supp.3d at 1300 n.4 (MEP standard defined in the pertinent

MS4 permits as "the technology-based discharge standards and

controls necessary for the reduction of pollutants discharged

from [an MS4]").

See Upper Missouri Waterkeeper v. Montana Dep't of

Envtl. Quality, 438 P.3d 792,799 (Mont. 2019) (noting that MS4

permits generally have included best management practices

42a

Instead, the MS4 operator must implement the various

MEP-level management programs required by its

permit. In that context, a water quality based control

is a program in addition to the MEP- level programs.

To say that water quality based controls are "more

stringent" than or "beyond" MEP-level controls simply

means that the MS4 operator must comply with the

water quality based control in addition to the MEPlevel controls. For example, Frederick County's permit

lists six management programs under the MEP

standard. See Frederick County Phase I MS4 Permit

MD0068357, Part IV.D.l-6. In addition to those

programs, and under a separate section of the permit,

the County is to comply with the impervious surface

restoration requirement. Id., Part IV.E.2.a.

The County and the Department appear to agree

that the impervious surface restoration requirement in

the County's permit is a water quality based control

that is in addition to those provisions included under

the MEP standard. However, the County asserts that

the Department may not include such a term in the

permit if it "goes beyond" the MEP standard.

2. Whether an MS4 Permit Term May "Go

Beyond" the MEP Standard

At first blush, this Court's decision in Anacostia

Riverkeeper seems to resolve this issue in the

Department's favor.41 In a background section of that

opinion, the Court stated:

rather than numeric limits).

41 The

Dissenting Opinion of Judge Watts contends that

the Court's holding in Anacostia Riverkeeper is an "obstacle"

to the Department's position in this case and that the permit

term in question is "incompatible" with Anacostia Riverkeeper.

43a

MS4s are subject to the MEP standard[.]

[They] are not, however, required to [achieve]

effluent limitations necessary to meet water

quality standards. [But the Act] 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 [wasteload

allocations] ofEPA-approved TMDLs.

447 Md. at 104. In other words, an MS4 permit may

include, as needed, effluent limitations consistent

with TMDL wasteload allocations, in compliance

with the EPA regulation that requires a discharge

permit for a point source to contain such effluent

limitations. See 40 CFR §122.44(d)(l)(vii)(B). Given

that

the

impervious

surface

restoration

requirement is such an effluent limitation,

Watts Dissenting slip op. at 4-5. The Dissenting Opinion appears

to have the mistaken belief that Anacostia Riverkeeper somehow

supports Frederick County's challenge to this permit term.

In fact, in that case, the Court considered a permit term that

appears in Phase I MS4 permits of five other jurisdictions and

that is identical to the permit term that Frederick County

challenges here. The Court held that the term was valid and

authorized by the Clean Water Act. 447 Md. at 122-26. If we

were simply to recite the holding of Anacostia Riverkeeper and

stop, Frederick County loses. But, in fairness to Frederick

County and as indicated in the text, the holding in Anacostia

River keeper was in response to a challenge from a different

perspective. Environmental groups argued that the permit

term was inadequate to comply with the MEP standard. Here,

Frederick County argues, from the opposite perspective, that

the permit term unlawfully exceeds that standard. However, for

the reasons explicated in the text, we disagree and reach the

same outcome that Anacostia River keeper did - that the permit

term is valid and authorized by the Act.

44a

Anacostia Riverkeeper seems to answer the question

raised by Frederick County - i.e., that the 20 percent

impervious surface restoration requirement in the

permit is valid and authorized by the Clean Water

Act. However, in Anacostia Riverkeeper, the Court

was addressing a question somewhat distinct from

the one posed in this case. In that case, the question

was whether the impervious surface restoration

requirement satisfied the MEP standard whereas in

this case the question is whether it unlawfully

exceeds it. The resolution of this question requires

statutory construction of the provision in which the

MEP standard appears- 33 U.S.C. §1342(p)(3)(B)(iii)which we shall refer to as clause (B)(iii) for ease of

reference.

Construing Clause (B)(iii) - Statutory Language

The Clean Water Act specifically addresses

municipal and industrial stormwater discharges in 33

U.S.C. §1342(p), which consists of six paragraphs.

Paragraph 3 of that subsection sets forth "permit

requirements."42 That paragraph reads as follows:

(3) Permit requirements

(A)Industrial discharges

Permits for discharges associated with

industrial activity shall meet all applicable

Paragraphs 1 and 2 concern the timing of the

requirement to obtain certain stormwater discharge permits.

Paragraph 4 concerns the application requirements for those

permits. Paragraph 5 authorizes the EPA to conduct a study on

other stormwater discharges not covered by those permits.

Paragraph 6 authorizes the EPA to adopt regulations based on

the study required by paragraph 5. 33 U.S.C. §1342(p)(l)-(2), (4)(6).

45a

provisions of [section 1342] and section 1311 of

this title.

(B) Municipal discharge

Permits for discharges from municipal

storm sewers-

(i) may be issued on a system - or

jurisdiction-wide basis;

(ii) shall include a requirement to effectively

prohibit non-stormwater discharges into the

storm sewers; and

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, and such

other provisions as the [EPA] Administrator

or the State determines appropriate for the

control of such pollutants.

(iii)

33 U.S.C. §1342(p)(3). Subparagraph (A) relates to

permit requirements for discharges by industrial

sources such as factories, landfills, construction sites,

and power plants that have operations exposed to rain

water or snow melt. Subparagraph A does not directly

relate to the requirements in MS4 discharge

permits.43

Our focus is on Subparagraph (B) concerning the

requirements for MS4 permits. The first two clauses

See 40 CFR §122.26(b)(l4) ("Storm water discharge

associated with industrial activity means the discharge from any

conveyance that is used for collecting and conveying storm water

and that is directly related to manufacturing, processing or

raw materials storage areas at an industrial plant.").

46a

concern the geographic scope of an MS4 permit

(clause (B)(i)) and the separation of stormwater

discharges from other discharges (clause (B)(ii)), but

do not include a reference to the MEP standard.

Clause (B)(iii) concerns the controls and

provisions required to reduce the discharge of

pollutants from MS4s. As is evident, the MEP

standard appears in this clause. The Department

and the County disagree as to the role that the MEP

standard plays in clause (B)(iii).

To construe clause (B)(iii) we begin, of course,

with the plain language of the statute. As this case

illustrates, however, statutory language is not

always "plain" in the sense that it may take on

different meanings, depending on how one parses a

series of words or clauses. The Department and

Frederick County tabulate clause (B)(iii) in slightly

different

ways

support their

contrary

interpretations. We apply an editorial pen below to

illustrate these different interpretations.

Frederick County's favored construction of clause

(B)(iii) can be illustrated as follows:

Permits for discharges from municipal storm

sewers (iii) shall require controls to reduce the

discharge of pollutants to the maximum

extent practicable, including (1) management

practices, (2) control techniques and system

(3) design and engineering methods, and (4)

such other provisions

as the [EPA]

Administrator

or the State determines

appropriate for the control of such pollutants.

47a

Under the County's construction, the "controls"

subject to the MEP standard are listed in a series

following the word "including" - a series of four

categories that includes (1) management practices,

(2) control techniques and systems, (3) design and

engineering methods, and (4) such other provisions

as the permitting agency deems appropriate. In that

view, there are four categories of pollution controls

that might be required by an MS4 permit, including

a final catchall category, and all four fall under the

MEP umbrella. As indicated above, to support its

preferred tabulation and avoid a phrase in the

middle of the series of clauses ("system methods")

that the County claims is nonsensical, the County

asserts that the word "system" is the result of a

"typographical error" in the statute that needs to be

corrected to "systems."44

In contrast, the Department's construction opts

for a different tabulation, but does not require

revision of the language of the statute. That

interpretation can be illustrated as follows:

Permits for discharges from municipal storm

sewers (iii) shall require (1) controls to reduce the

discharge of pollutants to the maximum

extent practicable, including (a) management

practices, (b) control techniques and .(c)

system, design and engineering methods, and

(2) such other provisions as the [EPA]

44 In support of its contention that the statute contains a

typographical error, the County notes that the word "systems"

appears in various documents related to stormwater discharge

permits, including two statements made while the legislation

was debated in Congress.

48a

Administrator or the State determines

appropriate for the control of such pollutants.

Under this construction of the statute, the three

categories of controls enumerated in the initial

series- i.e., certain "practices," "techniques," and

"methods"- are subject to the MEP standard while

"other provisions" that the permitting agency deems

appropriate under the final clause are not limited

by the MEP standard. The Department's

construction does not require revision of the text

itself, and groups items that could comfortably fit

within the category of "controls" separately from

the final clause's vaguer and seemingly broader

reference to "appropriate ... provisions."

Confronted with similar competing grammatical

arguments concerning the application of the MEP

standard in clause (B)(iii), a state appellate court

in California concluded that "[a]lthough it is not the

clearest way of articulating the concept,

the

language of [clause (B)(iii)] does communicate the

basic principle that the EPA [or an authorized

state] retains the discretion to impose 'appropriate'

water pollution controls in addition to those that

come within the definition of [MEP]." Bldg. Indus.

Assn. of San Diego Cty. v. State Water Res. Control

Bd., 124 Cal. App. 4th 866, 882-83 (2004) ("BIA

case"). 45 That court upheld requirements in an MS4

permit based on water quality standards in the face

45 See also John H. Minan, Municipal Separate Storm Sewer

System (MS4) Regulation Under the Federal Clean Water Act:

The Role of Water Quality Standards?, 42 San Diego L. Rev.

1215, 1241-42 (2005) (discussion of grammatical argument

inBIA case by law professor who served on the permitting

agency in that case).

49a

of a contention, similar to that of Frederick County

in this case, that those provisions unlawfully

exceeded the MEP standard.

Thus, the statement in Anacostia Riverkeeper in a

somewhat different context and the assessment of the

BIA court in a similar context both favor the

Department's construction of clause (B)(iii). We also

consider what legislative history exists and the

administrative construction of this federal statute by

the federal agency charged with administering it -the

EPA.

Legislative History of Clause (B)(iii)

When Congress was considering the legislation

that added the MS4 permit requirements to the Act,

legislators often spoke in general terms about

achieving water quality

standards

without

elaborating on the MEP standard or addressing

whether that standard should apply to every

pollutant control in an MS4 permit. Some

statements suggested that water quality based

standards- i.e., standards other than MEP- would be

part of MS4 permits. For example, one senator stated

that MS4 permit pollution control "requirements are

to contain control technology or other techniques to

control these discharges and should conform to water

quality requirements ." 133 Cong. Rec. S733-02, 1987

WL 928615 (January 14, 1987) (statement of Senator

Chafee). On the other hand, another senator

paraphrased clause (B)(iii) in language that mirrors

the County's interpretation, including substituting

the plural "systems" for "system." ld. (statement of

Senator Durenberger). Yet another member of

Congress both alluded to the goal of controlling

stormwater discharges "to protect the quality of the

50a

Nation's waters" and in paraphrasing the legislation,

used the word "systems." 133 Cong. Rec. H168-03,

1987 WL 928356 (January 8, 1987) (statement of

Representative Roe). In the end, what legislative

history exists is "not especially illuminating" on the

role of the MEP standard. 46

EPA's Administrative

(B)(iii)

Construction of Clause

The EPA's position for many years was that an

MS4 permit, like any discharge permit, must achieve

compliance with water quality standards. 47 Indeed,

when it adopted regulations for Phase I MS4

permits, the agency described the controls that

would be required by such permits as follows:

"[MS4] permits are to establish controls to the

maximum extent practicable[,] effectively prohibit

non-storm water discharges to the [MS4] and, where

necessary, contain applicable water quality-based

controls." EPA, National Pollutant Discharge

Elimination System Permit Application Regulations

46 Minan, supra, note 45, at 1243-44.

EPA, Interim Permitting Approach for Water QualityBased Effluent Limitations in Storm Water Permits, 61 Fed.

Reg. 43761 (August 26, 1996); EPA, Questions and Answers

Regarding Implementation of an Interim Permitting Approach for

Water Quality- Based Effluent Limitations in Storm Water

Permits, 61 Fed. Reg. 57425 (November 6, 1996); EPA,

Memorandum from E. Donald Elliott, Assistant Administrator

and General Counsel, EPA, re: Compliance with Water Quality

Standards in NPDES Permits Issued to Municipal Separate

Storm Sewer Systems (January 9, 1991) at 1;see also Oliver A.

Houck, TMDLs III: A New Framework for the Clean Water Act's

Ambient Standards Program, 28 Envtl. L. Rep. 10415, 10428

(1998) (discussing the EPA's interpretation); Minan, supra,

note 45, at 1245-46 (same).

51a

for Storm Water Discharges- Final Rule, 55 Fed. Reg.

47990, 47995 (November 16, 1990) ("EPA Preamble

to 1990 Phase I MS4 Rule") (emphasis added).

The EPA partially backed away from this view

after the United States Court of Appeals for the

Ninth Circuit held that MS4 permits need not include

water quality based effluent limitations. See EPA,

National Pollutant Discharge Elimination System Regulations for the Water Pollution Control Program

Addressing Storm Water Discharges -Final Rule, 64

Fed. Reg. 68722, 68753 (December 8, 1999) ("EPA

Preamble to 1999 Phase II MS4 Rule") (recognizing

that a Ninth Circuit decision "disagree[d) with EPA's

interpretation of the relationship between" §1311

and §1342(p)). Specifically, in Defenders of Wildlife

v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999), the

Ninth Circuit held that §1342(p)(3) "unambiguously

demonstrates that Congress did not require [MS4s] to

comply strictly with" §131l(b)(1)(C), which requires

that discharge permits contain water quality based

effluent limitations as needed. 48 On the other hand,

the court also stated that the final provision of clause

(B)(iii) gives the EPA (and thus a state permitting

agency) the discretion to "determine that ensuring

strict compliance with state water-quality standards

is necessary to control pollutants [or] to require less

than strict compliance with state water quality

48 As noted

earlier, while clause (A) of§1342(p)(3) requires

industrial stormwater dischargers to comply with all of§1311

(i.e., with both technology based and water quality based effluent

limitations), clause (B) lays out different requirements for

MS4s without mentioning §1311. The Ninth Circuit reasoned

that, for MS4 permits, clause (B)(iii) "replaces" both the

technology and water quality based effluent limitation

requirements in §1311. 191F.3dat1165.

52a

standards." 191 F.3d at 1166.49 Thus, while the

Ninth Circuit did not agree with the EPA's existing

construction, it nevertheless recognized that a

permitting agency had discretion to include permit

terms based on water quality standards. 50

In any event, after the Defenders of Wildlife

decision, the EPA modified its administrative

interpretation of clause (B)(iii). Whereas the agency

had taken the view that MS4 permits, like all

discharge permits, must contain water quality based

effluent limitations as needed, after the Ninth Circuit

decision the EPA viewed such limitations as

49 A related question - which is not raised here and which,

therefore, we do not address - is whether MS4 permits may

require strict compliance with water quality standards. That

question is at issue in two cases in the United States Court of

Appeals for the District of Columbia Circuit that are currently

Center for

Regulatory

in settlement proceedings.

Reasonableness v. EPA, Case Nos. 17-1060 & 16-1246 (D.C.

Cir.). The challengers in those cases argue that certain Phase

II MS4 general permits issued by the EPA violate clause

(B)(iii) by requiring compliance with water quality standards.

The situation here is different in that no party claims that

the Counties' permits expressly require compliance with water

quality standards.

Other courts have pointed to Defenders of Wildlife as

setting forth the discretion that the EPA (and state permitting

agencies) have in drafting MS4 permit terms to require pollution

controls that satisfy the MEP standard or a more demanding

water quality based standard. See Natural Resources Defense

Council v. New York State Dep't Envtl Conservation, 994 N.Y.S.

2d 125, 135 (N.Y. App. 2014), aff'd, 34 N.E.3d 782 (N.Y. 2015);

Conservation Law Foundation, Inc. v. Boston Water and Sewer

Commission, 2010 WL 5349854 at *5-6 (D. Mass. 2010);

Tualatin Riverkeepers v. Oregon Dep't Envtl Quality, 230 P.3d

559, 563-64 & n.10 (Ore. App. 2010); City of Arcadia v. State

Water Resources Control Board, 135 Cal. App. 4th 1392, 1429

(2006).

53a

permissible, but not mandatory, in MS4 permits. It

cited Defenders of Wildlife as support for the

proposition that clause (B)(iii) "specifically preserves

the authority for EPA or [authorized states] to

include other provisions determined appropriate to

reduce pollutants in order to protect water quality."

EPA Preamble to 1999 Phase II MS4 Rule, 64 Fed.

Reg. at 68788. Accordingly, the Phase II regulation

provides that "[a]s appropriate, the permit [for a

small MS4] will include [m]ore stringent terms and

conditions, including permit requirements ... based

on an approved [TMDL] or equivalent analysis, or

where the [EPA or state] determines such terms and

conditions are needed to protect water quality." 40

CFR §122.34(c)(l). Although the 1999 preamble and

rule concern Phase II MS4 permits, the EPA's views

on water quality based limitations generally apply

to all MS4 permits. For example, the Defenders of

Wildlife decision upheld Phase I MS4 permits issued

by the EPA that included water quality based

limitations. 51

The EPA has maintained that position through at

least the time period relevant for this litigation. In

other words, since 1990, the EPA has held the view

that the Act at least authorizes water quality based

effluent limitations in MS4 permits. 52 For example,

See In re: Arizona Municipal Storm Water NPDES

Permits for City ofTucson, Pima County, City of Phoenix, City of

Mesa, and City of Tempe, 1998 WL 284966, at *2 n.1 (EAB May

21, 1998) (stating, in the administrative decision that was

reviewed in Defenders of Wildlife, that the permittees were

properly classified as operators of MS4s requiring Phase I

permits).

52 In its critique of the impervious surface restoration term

of the Frederick County MS4 permit, the Dissenting Opinion of

54a

in a letter to the Department concerning Frederick

County's permit that appears in the administrative

record, the EPA made clear that permitting agencies

may include water quality based effluent limitations

in MS4 permits: "Where the [permitting] authority

determines that MS4 discharges have the reasonable

potential to cause or contribute to a water quality

standard excursion as [the Department] has done in

this case, EPA recommends that the ... permitting

authority exercise its discretion to include

appropriate narrative and/or numeric water qualitybased effluent limitations ... as necessary to meet

water quality standards." EPA Letter to Maryland

Department of the Environment re Supplemental

Comments on Frederick County Phase I MS4

Permit (September 23, 2014). The EPA also stated

that the requirement of consistency between

TMDLs and permits applies to MS4s as it does to

all point sources: "Pursuant to 40 CFR

122.44(d)(l)(vii)(B), where there is an applicable

[TMDL] approved or established by EPA, a

[discharge] permit

must include effluent

limitations that are consistent with the wasteload

allocation ...in the TMDL. This includes MS4

permits." Id.

Judge Watts discounts the EPA's interpretation of the Clean

Water Act which, as indicated in the text, follows the

interpretation of the Act by the Ninth Circuit in Defenders of

Wildlife. See Watts Dissenting slip op. at 11-12 & n.7. Given

the ambiguity in clause (B)(iii), the EPA's interpretationwhich is consistent with the construction of the statute by the

federal courts - is entitled to deference under Chevron (and

even if the Chevron did not apply, under Skidmore).

55a

Harmonizing MS4 Permit Terms with the TMDL

Process

Clause (B)(iii) is to be read harmoniously with

the Act as a whole, including the TMDL process.

See King v. St. Vincent's Hospital, 502 U.S. 215, 221

n.10 (1991) (when construing statute, court should

read statute as a whole and harmonize its

provisions); Condon v. State of Maryland-Univ. of

Maryland, 332 Md. 481,491 (1993) (same). In our

view, the EPA's and Department's interpretation of

clause (B)(iii) is more consistent with the Act as a

whole than the alternative proposed by Frederick

County.

The EPA's regulations require that a water

quality based effluent limitation be derived from

the applicable water quality standard, without

referring to a practicability test. Permitting

agencies "shall ensure that [t]he level of water

quality to be achieved by [water quality based

effluent limitations] on point sources ... is derived

from, and complies with, all applicable water

quality standards." 40 CFR §122.44(d)(l)(vii)(A).

The EPA's rationale is that"[d]eriving water

quality-based effluent limits from water quality

standards is the only reliable method for

developing water quality-based effluent limits that

protect aquatic life and human health." EPA,

National Pollutant Discharge Elimination System;

Surface Water Taxies Control Program- Final Rule,

54 Fed. Reg. 23868, 23879 (June 2, 1989) (preamble

to publication of the EPA's rule that, in part, adopted

40 CFR §122.44(d)(l)(vii)). Importantly, this

rationale does not distinguish between types of

point sources, i.e., whether the discharger is a

factory, a wastewater treatment plant, an MS4, or

56a

any other kind of point source. The process of

implementing TMDLs via discharge permits

"results in effluent limits that protect aquatic life

and human health because the limits are derived

from water quality standards." Id. In other words,

when translating TMDL wasteload allocations to

effluent limitations in a permit, the pertinent water

quality standard remains the touchstone. Thus,

when an entity discharges to a waterway subject to a

TMDL, its permit

must

contain

effluent

limitations consistent with the "assumptions and

requirements" of the corresponding wasteload

allocation in the TMDL.40 CFR §122.44(d)(l)(vii)(B).

When the final provision of clause (B)(iii) is read

to encompass water quality based effluent

limitations, MS4 permits are treated like any other

discharge permit for purposes of implementing

TMDLs. This interpretation harmonizes clause

(B)(iii) with the TMDL provisions insofar as the

latter likewise do not distinguish between types of

point sources. By contrast, if permitting agencies

must constrain all TMDL based effluent limitations

in MS4 permits by some sort of practicability

analysis, there would be tension with the basic tenet

that water quality based effluent limitations must

derive from water quality standards.

Summary

In including the impervious surface restoration

requirement in Frederick County's permit, the

Department acted consistently with the EPA's

interpretation of clause (B)(iii) -that is, that the Act

authorizes permitting agencies to include water

quality based effluent limitations in MS4 permits

without reference to the MEP standard. As

57a

explained earlier, clause (B)(iii) is ambiguous. A

federal court reviewing the EPA's interpretation

of an ambiguous federal statutory provision under

Chevron would defer to the agency's reasonable

construction of that language. In our view, the

EPA's interpretation of clause (B)(iii) is a

reasonable construction that is consistent with the

rest of the Act and accords with the Ninth Circuit

decision in Defenders of Wildlife and other

applicable court decisions. Even under the less

deferential Skidmore standard of review, a federal

court would likely defer to the agency's

interpretation in light of its consistent view that

MS4 permits are subject to standards emanating

from TMDLs. Moreover, the Department was

"bound to follow EPA's interpretation" in light

of the Clean Water Act's scheme of cooperative

federalism. Natural Resources Defense Council v.

New York State Dep' t of Envtl Conservation, supra.

Accordingly, we hold that the Department did not

act unlawfully in including a water quality based

effluent limitation (the impervious surface

restoration requirement) not subject to the MEP

standard in the County's permit. 53

Because we hold that the Act authorizes the

impervious surface restoration requirement in the County's

permit, we need not address the Department's alternative

argument that Maryland law allows such a condition as

consistent with the federal Act's provision allowing for more

stringent state-set permit conditions. See 33 U.S.C. §1370.

58a

3. Whether the Inclusion of the Impervious

Surface Restoration Requirement in Frederick

County's

Permit

was

Arbitrary

and

Capricious

Frederick County also argues that, regardless of

whether the Act authorizes the Department to

include

impervious

surface

restoration

requirement in MS4 permits without reference to the

MEP standard, the Department acted arbitrarily

and capriciously when it included such a provision

in the County's permit. The County notes that,

during the comment period on the draft permit, it

submitted to the Department a report that

purportedly demonstrated that compliance with the

permit's requirements within five years was

financially and logistically impossible. 54

As noted earlier, when agency action is

challenged as arbitrary and capricious, the question

is whether there was a rational basis for that action.

See Part II.A. of this Opinion. In answering that

question, a reviewing court is to be "extremely

deferential" to the agency and not to substitute its

own judgment for that of the agency. To assess

whether the Department acted arbitrarily and

capriciously in its consideration of Frederick

County's objection to the permit term, we review

54 As

described above, the General Assembly authorized

counties to charge a stormwater remediation fee to help finance

stormwater management and restoration required by MS4

permits. See EN §4-202.1. Frederick County adopted a fee of

1¢; at oral argument before this Court, the County explained

that it had elected to use general funds to finance its

obligations under the Clean Water Act.

59a

both the procedure that the Department followed

and the substance of its action.

Procedure

Consistent with EN §1-604(a), the Department

first issued a "tentative determination" together

with the draft permit on June 28, 2014. A public

comment period followed, during which the

Department received many comments on the draft

permit. After consideration of those comments, the

Department published a "final determination" on

December 10, 2014, along with the final permit,

consistent with EN §1-604(b). See Basis for Final

Determination to Issue Frederick County's NPDES

MS4 Permit MD0068357 (December 2014) ("Basis for

Final Determination- Frederick County").

In general, the Environment Article gives the

Department broad discretion in replying to

comments when the agency takes final action on a

proposed permit. The Department is not obliged to

respond to all public comments, but rather may "pick

and choose" the comments it addresses. Kor-Ko Ltd.

v. Maryland Dep't of the Env't,451 Md. 401, 422 n.18

(20 17). The fact that an agency does not change a

proposed action or regulation in light of comments

requesting a change does not mean that the process

lacked a meaningful opportunity for comment or

that the agency failed to consider those comments.

See Fogle v. H & G Rest., Inc., 337 Md. 441, 463

(1995).

Substance

In its comments on the draft permit, Frederick

County voiced its concerns about the feasibility of

compliance with the impervious surface restoration

60a

requirement. The Department addressed Frederick

County's concerns about cost and feasibility, as well

as a number of other issues in the Basis for Final

Determination that the Department published with

the final version of the permit. 55 Basis for Final

Determination- Frederick County at 18. The

Department noted that the County believed that the

20 percent restoration requirement "exceeds an MEP

level of effort and that compliance would be financially

and operationally infeasible." Id. at 22. The

Department responded to those concerns by explaining

that the restoration requirement was necessary for

consistency with the Bay TMDL and the Maryland

WIP. !d. The Department also stated that the EPA had

reviewed the permit for such consistency and was

"satisfied" that the permit achieved it based, in part,

on the impervious surface restoration requirement. !d.

Although the Department's response may not have

amounted to a point-by-point refutation of every detail

of the County's comments, it did address the significant

issues raised by the County. We cannot say that the

Department failed to respond in a reasoned manner.

In particular, the Department had a rational

basis for saying that the restoration requirement is

necessary for consistency with the Bay TMDL and the

Maryland WIP. As this Court recognized in

Anacostia Riverkeeper, the EPA relied on the

Maryland WIP, which included the impervious

surface restoration requirement, when developing the

Bay TMDL and the restoration requirement was a

In the same document, the Department also addressed

similar cost and feasibility "estimates" submitted by Charles

County and Harford County. Basis for Final DeterminationFrederick County at 18.

61a

"key element" in securing EPA's endorsement of the

Maryland WIP. 447 Md. at 128.

It was reasonable for the Department to respond

to the County's claim of impossibility by explaining

that the restoration requirement derives from the Bay

TMDL and the Maryland WIP. The Bay TMDL and

Maryland WIP were the result of significant

deliberation among various stakeholders together with

the EPA and the Department. For example, the record

shows that Frederick County and the Department had

been discussing practicability and feasibility since at

least 2012.

In our view, the Department was not arbitrary

or capncious m including the impervious surface

restoration requirement in Frederick County's MS4

permit.

C. Whether

the

Permits

Exceed

the

Appropriate Geographic Scope of an MS4

Permit

Both Counties assert that their permits exceed

the appropriate scope of an MS4 permit. The

Counties focus on Part IV.E. of their permits.

That section of the permit requires the County to

(1) conduct a detailed watershed assessment for the

entire County; (2) complete restoration of 20

percent of the impervious surface area in the

County; (3) develop and implement restoration plans

for meeting applicable stormwater wasteload

allocations in EPA-approved TMDLs; (4) conduct

public outreach and encourage public participation

in the watershed assessments, restoration plans,

and achievement of the TMDL limits and water

quality standards; and (5) evaluate and document

62a

its progress in meeting stormwater

allocations in EPA-approved TMDLs.

wasteload

The Counties argue that the Department

exceeded its authority under the Clean Water Act

in its specification of the impervious surface

restoration condition and in requiring compliance

with stormwater wasteload

allocations in

applicable EPA-approved TMDLs. To some extent,

these arguments are based on making a distinction

between the permittee - in these cases, Frederick

and Carroll Counties - and the activity that is

authorized by the permits - the discharge of

pollutants by the MS4s operated in each County.

1. Jurisdiction- Wide versus System-Wide

Permits

The Clean Water Act provides that "[p]ermits

for discharges from municipal storm sewers may be

issued on a system - or jurisdiction-wide basis." 33

U.S.C. §1342(p)(3)(B)(i). The EPA's regulations

reiterate that a permitting authority such as the EPA

or the Department may issue permits for Phase I

MS4s on a system-wide or jurisdiction-wide basis.

See 40 CFR §122.26(a)(l)(v) (in exercising residual

designation authority to require Phase I permit, state

or EPA may make designation on system-wide or

jurisdiction-wide basis), 40 CFR §122.26(a)(3)(ii)

(permit for a large or medium MS4 may be issued on

system-wide basis or on a number of other bases,

including with reference to the ''jurisdiction").

Neither the statute nor the regulations elaborate on

what it means for an MS4 permit to be issued on a

''jurisdiction-wide" basis- as opposed to a "system-

63a

wide" basis. 56 The explanation offered by the EPA

at the time it adopted these regulations indicates

that it was concerned with ensuring that permitting

authorities had the necessary flexibility to adapt

permits to local conditions such as existing

administrative systems, police powers, and land use

authority. EPA Preamble to 1990 Phase I MS4 Rule,

55 Fed. Reg. at 48043.

The permits that are the subject of this appeal

are each issued to a County - a jurisdiction- in its

capacity as the operator of an MS4- a system.57

But the challenges raised by the Counties cannot

be resolved by the descriptive label attached to

their MS4 permits. The Counties contend that,

regardless of whether a permit is issued on a

system- wide or jurisdiction-wide basis, the scope

of the regulatory conditions in the permit must

relate to the discharges authorized by the permit.

They argue that the baseline calculation for the

impervious surface

restoration requirement

effectively makes the Counties responsible for

pollutants carried by stormwater that does not flow

56 The EPA regulations suggest that -at least with respect

to a Phase I MS4 that is classified as "large" or "medium" - a

"jurisdiction-wide" permit may cover only a portion of the

corresponding system. See 40 CFR §122.26(a)(3)(ii)

(authorizing the issuance of either a system-wide permit

"covering all discharges from [the MS4]" or "distinct permits for

appropriate categories of discharges within [the MS4]

including, but not limited to ... discharges located within the

samejurisdiction ...") (emphasis added). This provision does not

concern residually designated Phase I MS4s.

The Carroll County permit also includes, as copermittees, all of the incorporated municipalities in the County

and thus pertains to several jurisdictions and several systems.

See 40 CFR §122.26(a)(3), (b)(l).

64a

into their MS4s. The Counties further argue that

permit provisions related to stormwater wasteload

allocations in local TMDLs also do so.

2. The

Impervious

Requirement

Surface

Restoration

Impervious surface restoration requirements

have been part of MS4 permits issued by the

Department since at least 1999. Maryland WIP at

2-26. The previous generation of each County's

permit included an impervious surface restoration

requirement of 10 percent of each County's

unrestored impervious surface.58

The Impervious Surface Restoration Condition in the

Current Permit

With respect to impervious surface restoration, the

current permit provides:

Within one year of permit issuance, [the] County

shall submit an impervious surface area

assessment consistent with the

methods

described in the [Department] document

"Accounting for Stormwater Wasteload

Allocations and Impervious Acres Treated,

Guidance for National Pollutant Discharge

Elimination System Stormwater Permits"

(MDE, June 2011 or subsequent versions).

Upon approval by [the Department], this

impervious surface area assessment shall serve

58 The general permit

applicable to Phase II small MS4s

also includes an impervious surface restoration term, although

it differs from the one included in the permits of Phase I MS4s

like the Counties. The current Phase II general permit

requires restoration of 20 percent of the unrestored impervious

surface in each permittee's urbanized area by 2025.

65a

as the baseline for the restoration efforts

required in this permit.

By the end of this permit term, [the] County

shall

commence

and

complete

the

implementation of restoration efforts for twenty

percent of the County's impervious surface area

consistent with the methodology described in

the [Department] document cited in [this section]

that has not already been restored to the MEP.

Equivalent acres restored of impervious

surfaces, through new retrofits or the retrofit of

pre-2002

structural

[best

management

practices], shall be based upon the treatment of

the WQv criteria and associated list of practices

defined in the 2000 Maryland Stormwater

Design Manual. For alternate [best management

practices], the basis for calculation of equivalent

impervious acres restored is based upon the

pollutant loads from forested cover.

Carroll County Phase I MS4 Permit MD0068331, Part

IV.E.2.a; Frederick County Phase I MS4 Permit

MD0068357, Part IV.E.2.a.

On its face, this provision does not require the

County to undertake impervious surface restoration

outside the geographic area that drains to the MS4, as

it does not dictate where such restoration must take

place. 59 But the permit provision uses unrestored

Some permit terms specify actions within the MS4

service area. For example, Part IV.D. of the permit requires the

County to implement certain management programs in "areas

served by [the] County's MS4." Some required programs

involve actions that are necessarily conducted on a county-wide

basis, including outside the service area of the MS4- e.g., an

"acceptable stormwater management program" under EN §4201 et seq., an "acceptable erosion and sediment control

66a

impervious surface throughout the entire County not just within the MS4 service area - as a starting

point, or baseline, for calculating the required

restoration. 60 (In the case of both Counties, the

County's MS4 serves only a portion of the County's

geographic area).

The Counties do not contend that the inclusion of

an impervious surface restoration requirement itself

is beyond the scope of an MS4 permit. Rather, they

argue that the reference to a county-wide measure

of impervious surface as the baseline for the

requirement in the permit exceeds the Department's

authority. They assert that the reference to that

baseline in a permit has the effect of making the

County responsible for pollutants that never enter

the County's MS4.

Anacostia Riverkeeper

This Court considered the

impervious surface restoration

validity of an

requirement in

program" under EN §4-101 et seq. and a "public education and

outreach program to reduce stormwater pollutants." MS4

Permits, Part IV.D. 1, 2, 6. If the permits are modified (as

sought by the Counties) to allow water quality trading as a

compliance method, the pollution reductions for which a County

would receive credit would not necessarily occur within the

County, much less within its MS4 service area. See Part II.E.

of this Opinion.

60 In

particular, the permit term refers to restoration of

20 percent of the County's impervious surface area consistent

with the methodology in the Department's guidance document.

That methodology involves a calculation of the impervious

surface area throughout the entire County (after excluding

certain areas that are not directly at issue here). See

Accounting for Stormwater Wasteload Allocations and

Impervious Acres Treated (August 2014) at 1, 6-10.

67a

Anacostia River keeper. In that case, the Phase I

MS4 permits in question included an identical term

requiring the permittee counties to restore 20

percent of the unrestored impervious surface over the

five-year period covered by their permits. The

challenged by environmental

requirement was

advocacy groups as "too opaque" to satisfy the Act's

direction that MS4 permits include provisions to

reduce pollutants that satisfy the MEP standard. 61

They also argued that the Department had failed to

adequately explain its use of the 20 percent restoration

condition or how that level of restoration would

achieve the Bay TMDL.

This Court concluded that impervious surface

restoration, as carried out in accordance with the

Department's

Stormwater

Design

Manual

(incorporated by reference in the permit term), is a

stormwater management practice that functions as a

"surrogate" for direct reduction of pollutants in

stormwater and that satisfies the MEP standard. 447

Md. at 122-23. Noting that the 20 percent restoration

requirement was consistent with the Maryland WIP,

the Court further held that the Department's decision

to include that requirement in the permits under

review was supported by substantial evidence and

was not arbitrary and capricious. !d. at 128-29. The

Court also upheld the temporal baseline selected by

the Department for measuring compliance with the 20

percent requirement. In particular, it held that the

Department had not erred in using the measure of

unrestored impervious surface in the counties in 2002

as the baseline. Id. at 132.

The MEP standard is discussed in Part II.B. of this

Opinion.

68a

In this case, the Counties also challenge the

baseline used for the impervious surface restoration

requirement. However, in contrast to Anacostia

Riverkeeper, the basis of that challenge is geographic

rather than temporal. 62 It is rooted in the notion

that MS4 permits under the Act regulate

discharges of pollutants only from an MS4 itself.

See 33 U.S.C. §1342(p)(3) (setting forth permit

requirements for "permits for discharges from

[MS4s]"). In the Counties' view, use of a county-wide

baseline violates that principle because some of the

impervious surface included in that baseline is

associated with pollution that never enters the

MS4. 63 According to the Counties, to be consistent

The Counties point out that the use of 2002 as the

baseline year for assessment of the County's impervious

surface- instead of 1985, the baseline year in the Maryland

WIP -would effectively increase the target amount of

restoration. Use of 2002 as the baseline year would increase

the baseline amount of impervious surface by including

development between 1985 and 2002.

(In Anacostia

Riverkeeper, environmental groups had argued that a baseline

year later than 2002 should have been used- i.e., that use of

the 2002 baseline was too lenient). However, in arguing that

they are being held responsible for pollutant discharges that

do not emanate from their MS4s, the Counties focus on the

geographical element of the baseline calculation.

63 This is based on the following reasoning.

Obviously, rain

can fall anywhere in a jurisdiction, such as a county, that

operates an MS4. The rain will carry some pollutants into

conveyances within the county's MS4 and, from there,

into waterways. Other pollutants, however, may never

encounter the MS4. Instead, they will run into waterways

directly from fields, farms, parking lots, or other land uses

in the county that are out of reach of the MS4. Under the

Act, the pollutants carried through the MS4 constitute a form

of point source pollution, and the pollutants not carried

through the system are a form of nonpoint source pollution

69a

with the Clean Water Act, an impervious surface

restoration requirement must reference a baseline

that includes only the MS4 service area.64

(often called "stormwater runoff'). Since MS4 permits under

the Act authorize only discharges from point sources, such

a permit may only include conditions related to stormwater

and the accompanying pollutants that enter (and are

discharged from) the MS4, not stormwater that never

encounters the MS4. See Envtl Def Ctr., Inc. v. EPA, 344 F.3d

832, 841 n.8 (9th Cir. 2003).

64 Carroll County also invokes the doctrine of offensive

non-mutual collateral estoppel to argue that the Department

is barred from using a county-wide baseline for impervious

surface. In particular, the County cites a 2003 administrative

decision by the Department's final decisionmaker, which

struck certain provisions of wastewater discharge permits

issued to three poultry processors. Tyson Foods, Inc., et al. v.

MDE, OAH Case No. MDE-WMA-063-200200001 (June 12,

2003). The final decisionmaker concluded that, under State

law, the permits could not include conditions that required the

processors to undertake certain activities relating to chicken

manure at the farms of those who raised chickens that were

sold or otherwise provided to the processors, particularly

when the growers were not co-permittees.

The Tyson Foods administrative decision did not involve an

MS4 permit, much less an issue identical to the one in this

case, and did not discuss the Clean Water Act, EPA

regulations, or any other federal law, for that matter. Under

those circumstances, the doctrine of offensive non-mutual

collateral estoppel does not apply to determine the outcome of

this case. See Garrity v. Maryland State Board of Plumbing, 447

Md. 359,369 (20 16) (among other things, issue decided in prior

adjudication must be identical for collateral estoppel to apply).

The reasoning of the administrative decision in Tyson Foods

may be analogous in some respects to the argument advanced

by the Counties in this case, but it is not dispositive.

70a

Origin of the 20 Percent Restoration Requirement

There is no question that the pollutant discharges

that the permit authorizes are those from each

County's MS4. As this Court noted in Anacostia

Riverkeeper and as discussed in the previous section

of this Opinion, the impervious surface restoration

term is a water quality based effluent limitation

authorized by 33 U.S.C. §1342(p)(3)(B)(iii). In

particular, such a permit term is a numeric water

quality based effluent limitation, as recognized by

the EPA. 65

Importantly, the amount of impervious surface to

be restored is simply a surrogate or proxy for an

amount of pollution to be reduced. The Department's

guidance document incorporated in the permit term

explains how to calculate loads of pollution reduced,

given a certain kind and quantity of impervious surface

restoration activity. Thus, when the Department is

determining how a county should calculate the number

of impervious surface acres to be restored, the

Department is effectively determining a measure of

pollution reduction.

65 See

EPA, Post-Construction Performance Standards &

Water Quality-Based Requirements: A Compendium of

Permitting Approaches

(June 2014) at 19 (including

impervious surface restoration terms in Maryland MS4

permits in a list of examples of numeric water quality based

effluent limitations); 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 WLAs" (November

26, 2014) at 10 (identifying an identical20% restoration term

in the Prince George's County MS4 permit as a numeric water

quality based effluent limitation).

71a

As explained earlier, the EPA's regulations

require that a water quality based effluent

limitation be derived from applicable water quality

standards, without reference to a practicability test.

See 40 CFR §122.44(d)(1)(vii)(A). This is because

"[d]eriving water quality-based effluent limits from

water quality standards is the only reliable method

for developing water quality-based effluent limits

that protect aquatic life and human health." EPA,

National Pollution Discharge Elimination System:

Surface Water Toxics Control Program - Final Rule,

54 Fed. Reg. 23868, 23879 (June 2, 1989); see also

Natural Resources Defense Council v. Fox, 909 F.

Supp. 153, 156 (S.D.N.Y. 1995).

With respect to the baseline for the impervious

surface restoration requirement, those regulations

require a permitting agency to craft the numeric

component of a water quality based effluent

limitation by reference to "all applicable water

quality standards." 40 CFR §122.44(d)(1)(vii)(A).

Thus, when establishing how each County is to

calculate the number of impervious surface acres to

be restored- i.e., the proxy for an amount of pollution

to be reduced - the Act and EPA regulations direct

the Department to focus on what is necessary to

achieve water quality standards in the Bay and the

waters that feed it.

In our view, the Department's use of a countywide baseline as a reference point for calculating the

impervious surface restoration condition does not

exceed the Department's authority under the Act

because the impervious surface restoration condition

implements a stormwater wasteload allocation in a

TMDL (specifically, the Bay TMDL) designed to

achieve water quality standards. Since at least 1991

72a

the EPA has determined in various contexts,

including regulation, that permitting authorities

may make trade-offs between pollutant allocations

for point and nonpoint sources. The EPA's definition

of TMDL contemplates such trade-offs. See 40 CFR

§130.2(i) ("If ... nonpoint source pollution controls

make more stringent load allocations practicable,

then wasteload allocations can be made less

stringent. Thus, the TMDL process provides for

nonpoint source control tradeoffs.").

Given that the possibility of such trade-offs is

inherent in the definition of TMDL, it is perhaps not

surprising that the EPA has reiterated that concept

when discussing how states are to develop TMDLs.

See EPA, Surface Water Toxics Control Program and

Water Quality Planning and Management Program,

57 Fed. Reg. 33040, 33048 (July 24, 1992) ("States

have the flexibility to consider the relative costs of

point and nonpoint source controls when preparing

TMDLs, along with such other factors as reliability,

relative effectiveness, and degree of assurance that

nonpoint

source controls will actually be

implemented and maintained."); EPA, Guidance for

Water Quality-based Decisions: The TMDL Process

(1991) at 15 ("Under the [Act], the only federally

enforceable controls are those for point sources

through the NPDES permitting process. In order to

allocate loads among both nonpoint and point

sources, there must be reasonable assurances that

nonpoint source reduction will in fact be achieved.

Where there are not reasonable assurances, under the

[Act], the entire load reduction must be assigned to

point sources.").

This long-established EPA policy is a reasonable

interpretation of the Act and is entitled to deference

73a

under Chevron. Even if the EPA policy were not

entitled to Chevron deference under federal law, we

would defer to the agency under Skidmore and our

own standards of review. As explained at the outset

of this opinion, the Act requires the establishment

of TMDLs when an existing regime of point source

pollution controls is inadequate to achieve water

quality standards. TMDLs reflect pollutant levels

necessary to achieve those standards in compliance

with the Act. The EPA has reasonably concluded that

permitting authorities must have the discretion to

allocate pollutant loads between point and nonpoint

sources as needed to achieve the TMDL limits,

including potentially ratcheting up the requirements

on point sources when necessary. See Farm Bureau,

984 Supp.2d at 326 (in a case concerning the Bay

TMDL, describing how a permit writer may

apportion pollutant amounts - "loads" - among

point and nonpoint sources m accordance with EPA

guidance). 66

In practice, the broad discretion to allocate TMDLestablished pollutant amounts between point and nonpoint

sources means that permitting agencies may impose a level of

pollution reduction on point sources in part to help offset

nonpoint source pollution. See Michael M. Wenig, How "Total"

Are "Total Maximum Daily Loads"? -Legal Issues Regarding

the Scope of Watershed-Based Pollution Control Under the

Clean Water Act, 12 Tul. Envtl. L.J. 87, 117 & n.131

(1998)(recognizing that TMDL allocations can require point

sources to "bear the brunt of pollution reductions necessary to

achieve" TMDLs); Oliver A. Houck, TMDLs III: A New

Framework for the Clean Water Act's Ambient Standards

Program, 28 ELR 10415, 10420 (August 1998) (recognizing

permitting agencies' option of "ratcheting down further on

point sources" when setting wasteload allocations).

74a

Thus, nonpoint source pollution reduction may

be assigned to point sources- i.e., through wasteload

allocations in the development of TMDLs. At bottom,

it is this assignment of pollutant reductions to their

wasteload allocations that is the essence of the

Counties' objection to the impervious surface

restoration requirement in their permits. 67 The

Department's use of a county-wide baseline for the

impervious surface restoration condition is thus

related to the broad discretion of the states and

the EPA, in drafting a TMDL, to assign an amount

of nonpoint source pollution reduction to point

sources.

Moreover, federal regulations require that point

source

permits contain effluent limitations

consistent with the "assumptions and requirements"

in wasteload allocations in applicable TMDLs. See

40 CFR §122.44(d)(l )(vii)(B). As this Court noted in

Anacostia Riverkeeper, this standard is flexible. 447

Md. at 135. In this case, the impervious surface

restoration term in the Counties' permits is

consistent with the underlying premise of the Bay

TMDL (by way of the Maryland WIP) that

Maryland's Phase I MS4 permits will include a

corresponding

impervious

surface restoration

requirement.

That

provision

underwent

significant

development before reaching its final form in the

permits. For example, in accordance with the EPA

67 The Maryland WIP states that the impervious surface

restoration "strategy" (i.e., 30% cumulative restoration for

Phase I MS4s) is associated with a particular "load

reduction," i.e., a certain quantity of pollution reduction.

Maryland WIP at 5-30.

75a

regulations governing discharge permits and a

related memorandum of understanding with the

Department, the EPA formally objected to the

Counties' draft permits because, among other things,

the impervious surface restoration requirement was

"not adequately expressed" and did not achieve

compliance with the Bay TMDL. See EPA, Specific

Objection to Carroll County Phase I MS4 Permit

MD0068331 (September 20, 2012); EPA, Specific

Objection to Frederick County Phase I MS4 Permit

MD0068357 (September 20, 2012). In response to

such objections and to comply with the requirement

of consistency between TMDLs and discharge

permits, the Department adjusted the impervious

surface term in the Counties' permits to a form

acceptable to the EPA. The EPA found the

consistency requirement to be satisfied in the final

version of the permits and withdrew its objection.

EPA, Supplemental Comments on Carroll County

Phase I MS4 Permit (September 23, 2014); EPA,

Supplemental Comments on Frederick County Phase

I MS4 Permit (September 23, 2014).

Summary

The impervious surface restoration term in the

Counties' MS4 permits is a numeric water quality

based effluent limitation corresponding to Maryland's

stormwater wasteload allocation within the Bay

TMDL. As such, when crafting that limitation, the

Department was authorized to focus on what would

be necessary to achieve water quality standards, and

the Department determined that the baseline

calculation method it chose was necessary to achieve

applicable water quality standards for the Bay. The

Department did not exceed its authority under the

76a

Clean Water Act when it directed calculation of the

impervious surface using a county-wide baseline. 68

3. Restoration Requirement Related to Local

TMDLs

Both Counties point to certain permit conditions

that require the Counties to adopt restoration plans

and provide reports concerning compliance with

stormwater wasteload allocations set forth in EPAapproved TMDLs for waterways in the Counties.

They argue that these provisions unlawfully make

the Counties responsible for discharges of third

parties. These provisions appear in Part IV.E. of each

County's permit and read as follows:

2. Restoration Plans

b. Within one year of permit issuance, [the]

County shall submit to [the Department]

for approval a restoration plan for each

stormwater

[wasteload

allocation]

approved by EPA prior to the effective date

of the permit. The County shall submit

restoration plans for subsequent TMDL

[wasteload allocations] within one year

[the

ofEPA approval. Upon approval by

Department], these restoration plans

shall be enforceable under this permit. As

part of the restoration plans, [the] County

shall:

68 Given

this conclusion, we need not address whether

the impervious surface restoration requirement is permissible

as a State-determined effluent limitation that is "more

stringent" than what the Act requires.

77a

i. Include the final date for meeting

applicable [wasteload allocations] and a

detailed schedule for implementing all

structural and nonstructural water quality

improvement

projects,

enhanced

stormwater management programs, and

alternative stormwater control initiatives

necessary for meeting applicable [wasteload

allocations];

ii. Provide detailed cost estimates for

individual projects, programs, controls, and

plan implementation;

iii. Evaluate and track the implementation of

restoration plans through monitoring or

modeling to document the progress toward

meeting established benchmarks, deadlines,

and stormwater [wasteload allocations]; and

iv. Develop an ongoing, iterative process that

continuously implements structural and

nonstructural

restoration

projects,

enhancements,

new

and

program

additional programs, and alternative [best

management

practices]

where

EPA

approved TMDL stormwater [wasteload

allocations] are not being met according to

the benchmarks and deadlines established

as part of the County's watershed

assessments.

4. TMDL Compliance

[The] County shall evaluate and document

its progress toward meeting all applicable

stormwater

[wasteload

allocations]

78a

included in EPA approved TMDLs. An

annual TMDL assessment report with

tables shall be submitted to [the

Department]. This assessment shall

include complete descriptions of the

analytical methodology used to evaluate

the effectiveness of the County's restoration

plans and how these plans are working

toward achieving compliance with EPA

approved TMDLs. [The] County shall

further provide:

a. Estimated net change in pollutant load

reductions

from

all

completed

structural and nonstructural water

quality

improvement

projects,

enhanced stormwater

management

programs, and alternative stormwater

control initiatives;

b. A comparison of the net change in

pollutant load reductions detailed above

with the established benchmarks,

deadlines, and applicable stormwater

[wasteload allocations];

c. Itemized costs for completed projects,

programs, and initiatives to meet

established

pollutant

reduction

benchmarks and deadlines;

d. Cost

estimates for completing all

projects, programs, and alternatives

necessary for meeting

applicable

stormwater [wasteload allocations]; and

79a

e. A description of a plan for implementing

additional watershed restoration actions

that can be enforced when benchmarks,

deadlines, and applicable stormwater

[wasteload allocations] are not being met

or when projected funding is inadequate.

Carroll County Phase I MS4 Permit MD0068331, Part

IV.E.2.b, IV.E.4; Frederick County Phase I MS4

Permit MD0068357, Part IV.E.2.b, IV.E.4.

The Counties assert that these permit terms are

overbroad because some EPA- approved local TMDLs

assign nonpoint source pollution to the Counties'

MS4s, which are point sources. Carroll County

specifically cites the fecal bacteria TMDL for Double

Pipe Creek- one of the EPA-approved local TMDLs

incorporated by reference in Attachment B to the

Carroll County permit. 69

The Double Pipe Creek TMDL assigns certain

nonpoint source pollution- namely, "contributions [of

fecal bacteria] from domestic animal and [septic

system] sources"- to a stormwater wasteload

allocation, which includes pollution budgeted to

Carroll County's MS4. 70 Because the permit requires

the County to develop "restoration plans" to achieve

the stormwater wasteload allocations of relevant local

TMDLs, the County argues that the permit makes the

County responsible for addressing nonpoint pollution

from third parties that never enters the County's

69 The Double Pipe Creek watershed

includes parts of both

Counties and is also incorporated in Frederick County's permit.

The Double Pipe Creek TMDL distributes this nonpoint

source pollution between Carroll County's and Frederick

County's MS4s.

80a

MS4. The County uses the Double Pipe Creek TMDL

as an example, but this argument would apply to

any EPA-approved local TMDL that assigns

nonpoint source pollution to stormwater waste load

allocations. 71

This dispute concerns not so much the

incorporation ofEPA-approved local TMDLs in the

permit, as the decisions that were made in the

development of those TMDLs. In the case ofthe

Double Pipe Creek TMDL, Carroll County is

questioning a decision made when the EPA

approved the Double Pipe Creek TMDL namely, the decision to allocate pollution from

nonpoint sources to the Counties' MS4s by way of a

stormwater wasteload allocation in the TMDL.

Frederick County argues that, like the impervious

surface restoration term, the restoration planning

requirement "unlawfully regulates stormwater

beyond the scope" of the Department's authority.

The County bases this argument on the assertion

that the local TMDLs "cover[] areas that do not drain

to the County's MS4." The County provides little

explanation for this argument, but as far as we can

tell, it derives from the same concern raised by

Carroll County- i.e., the decision made by the

Department at the local TMDL development stage to

include nonpoint source pollution within the

stormwater wasteload allocation.

71 This issue is somewhat distinct from the issue discussed

in the previous section of this Opinion concerning impervious

surface restoration in that the allocations at issue there

derived from the EPA's reliance on the Maryland WIP in

devising the Bay TMDL, rather than directly from the EPAapproved TMDL itself.

81a

For the reasons outlined earlier in this Opinion, 72

the Counties should have raised these arguments in a

challenge to the EPA's approval of the Double Pipe

Creek TMDL and other, similar local TMDLs. See, e.g.,

City of Kennett v. EPA, 887 F.3d 424 (8th Cir. 20 18)

(municipal challenge to EPA-approved TMDL that

would affect municipality's wastewater permit).

Therefore, we will not entertain these arguments here.

See Anacostia Riverkeeper, 447 Md. at 129 n.46.

D. Whether the Counties are Appropriately

Classified as Phase I Jurisdictions

Frederick County first received an MS4 permit as

a Phase I jurisdiction in 1994. It subsequently

applied for and received a Phase I permit in 2002. In

2006, it applied for the Phase I permit at issue in this

appeal. It first contested its status as a Phase I

jurisdiction during the public comment period

following the Department's publication of its draft

permit in 2014 and reiterated those arguments when

it sought judicial review of the final 2014 permit.

Carroll County first received an MS4 permit as a

Phase I jurisdiction in 1995. It subsequently applied

for and received Phase I permits in 2000 and 2005.

Unlike Frederick County, it did not question its status

as a Phase I jurisdiction during the administrative

process for its most recent permit, which was issued

in 2014, but first contested its status as a Phase I

jurisdiction when it sought judicial review of that

permit.73

72 See Part II.A.2 of this Opinion.

73 The Department argues that

Carroll County may not now

challenge its Phase I classification because , unlike Frederick

County, it failed to raise the issue during the public comment

82a

Both Counties argue that the Department has

unlawfully treated them as Phase I jurisdictions because it

has incorrectly classified them as "medium" (and therefore

Phase I)- as opposed to "small" (and therefore Phase II)MS4 jurisdictions since the time when they first applied for

and received their first MS4 permits in the early 1990s.

This distinction matters because, as indicated earlier,

Phase I jurisdictions have generally been subject to earlier

and more stringent permit requirements than Phase II

jurisdictions. In particular, the Counties point to the

impervious surface restoration requirement in their Phase

I permits.74 As relief, both Counties seek to be re-classified

as Phase II jurisdictions with their permit terms conformed

to those that apply to Phase II MS4s.

1. Application of the MS4 Permit Requirement in

Phases

Phase I MS4 Permits

In 1987, when Congress added the permit

requirement for MS4s to the Clean Water Act, it did not

require permits for all MS4 discharges immediately.

Instead, it adopted a staggered approach.75 This

period on its draft 2014 permit. However, given that Frederick

during the

County did challenge the classification

administrative process for its permit and that the issue is

essentially the same for both Counties, we will not avoid the

issue on the basis of lack of preservation.

74 The impervious surface restoration requirement

is more

stringent in Phase I MS4 permits than a similar term in Phase II

MS4 permits, in three ways: larger baseline (county wide vs.

urbanized areas), earlier deadline (20 19 vs. 2025), and higher

percentage of area to be restored (30% vs. 20%).

75 Congress created this

staggered approach in the Water

Quality Act of 1987 by explicitly recognizing that all MS4

discharges were subject to the Act's permit requirement,

establishing a moratorium on that requirement until 1994, and

83a

approach started with applying the permit

requirement first to discharges from systems with the

greatest potential to pollute waterways, which was

referred to as Phase I. These MS4s included those

serving larger populations, because areas with larger

and denser populations tend to have more developed

land with impervious surface and, as a result, generate

more stormwater pollution. 76 Also included in the first

round were MS4s determined by the EPA or a state to

be significant contributors of pollutants, regardless of

the size of the population served by those MS4s. This

statutory authority to issue permits based on water

quality impact (as opposed to the proxy of population

served) is often referred to as the "residual designation

authority" of the EPA and the states.

For our purposes, the relevant Phase I categories

77 are the following:

then exempting certain discharges from that moratorium at

various intervals. See 33 U.S.C. §1342(p)(1)- (2). As a result, the

permit requirement was imposed on MS4s in stages.

76 Population served as a proxy for the amount of pollution

in stormwater because "discharges from [MS4s] serving larger

populations are thought to present a higher potential for

contributing to adverse water quality impacts.... [P]ollutant loads

from urban runoff strongly depend on the total area and

imperviousness of developed land, which in tum is related to

population." EPA Preamble to 1990 Phase I MS4 Rule, 55 Fed.

Reg. at 48038.

77 In all, Phase I covered five categories of MS4 stormwater

discharges. See 33 U.S.C. §1342(p)(1)-(2). The other two Phase

I categories are discharges for which a permit had been issued

before 1987 and discharges associated with industrial activity neither of which is at issue in this appeal. 33 U.S.C.

§1342(p)(2)(A)-(B).

84a

(1) Large MS4. A discharge from an MS4 serving a

population of 250,000 or more, referred to in the

statute as a "large MS4." 33 U.S.C. §1342(p)(2)(C),

(p)(4)(A).

(2) Medium MS4. A discharge from an MS4 serving a

population of 100,000 or more but less than

250,000, referred to in the EPA's regulations as a

"medium MS4." 33 U.S.C. §1342(p)(2)(D); 40 CFR

§122.26(a)(1)(iv).

(3) Residually Designated MS4. A discharge for

which the EPA or a state "determines that the

stormwater discharge contributes to a violation of

a water quality standard or is a significant

contributor of pollutants to waters of the United

States." 33 U.S.C. §1342(p)(2)(E).

The EPA adopted regulations in 1990 setting forth the

permit requirements for Phase I jurisdictions. EPA,

National Pollutant Discharge Elimination System

Permit Application Regulations for Storm Water

Discharges- Final Rule, 55 Fed. Reg. 47990 (November

16, 1990), codified in 40 CFR §122. Other than

establishing different deadlines for the submission of

permit

applications

large and

medium

jurisdictions,

the regulations generally did not

distinguish among these three categories of Phase I

MS4s. See 40 CFR §122.26(d).

Thus, in the early 1990s, an MS4 operated by a

local government, like those of the Counties, would be

required to obtain a Phase I permit if: ( 1) the MS4

served 100,000 or more people based on census

figures, or (2) the EPA or the state had classified the

MS4 as a Phase I jurisdiction under the residual

designation authority.

85a

Phase II MS4 Permits

The Phase II round of MS4 permits covered

stormwater discharges other than the Phase I

categories. 33 U.S.C. §1342(p)(6). Included in Phase

II are MS4s serving fewer than 100,000 people,

referred to as "small" MS4s. In 1999, the EPA

setting

forth

permit

adopted

regulations

requirements for small MS4s. See EPA Preamble to

1999 Phase II MS4 Rule; see also 40 CFR §122.34.78

Those regulations provided deadlines for initial

Phase II permit applications at various intervals

during the early 2000s.

2. Population Classification for Purposes of

Phase I

As noted above, the Clean Water Act classifies

MS4s according to the population served by the MS4.

The statute does not define what it means for an

MS4 to "serve" a population of a given size. In

carrying out its statutory charge to adopt regulations

on MS4 permit requirements,79 the EPA defined

"medium" MS4s as falling into one of four

subcategories. The most relevant here included

systems comprising storm sewers that are:

(i) Located in an incorporated place with a

population of 100,000 or more but less than

For reasons not relevant here, the 1999 small MS4

regulations were remanded and reissued in 2016. See Envtl.

Def Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) (remanding

the 1999 regulations); EPA, National Pollutant Discharge

Elimination System (NPDES) Municipal Separate Storm Sewer

System General Permit Remand Rule, 81 Fed. Reg. 89320

(December 9, 2016).

79 33 U.S.C. §1342(p)(4).

86a

250,000, as determined by the latest

Decennial Census by the Bureau of the Census

(appendix G); or

(ii) Located in the counties listed in appendix

I, except municipal separate storm sewers

that are located in the incorporated places,

townships or towns within such counties;

40 CFR §122.26(b)(7)(i)-(ii) (as adopted in 1990). Like

the statute, the regulations on their face appear to use

as a reference point the total population of the

particular jurisdiction without attempting to refine

that number according to the portion of the

population that lives or works within the area

"served" by the MS4.

Appendix I, referenced in the second subcategory

of the regulation, listed 32 counties and was entitled

"Counties With Unincorporated Urbanized Areas

Greater Than 100,000, But Less Than 250,000

According to the Latest Decennial Census by the

Bureau of the Census" (emphasis added). As is

evident, the title of Appendix I refers not only to

"unincorporated" areas, but also to "urbanized" areas

- a term that does not appear in the statute or

otherwise in the EPA's regulations.

In explanatory material that accompanied the

1990 publication of the Phase I regulations - what

is sometimes referred to informally as a

"preamble" to such a publication80 -the agency

elaborated on its conception of the second

subcategory. It stated that the second subcategory

was meant to capture MS4s in "counties having

areas that are designated as urbanized areas by the

80 See note 17 above.

87a

latest decennial Bureau of Census estimates and

where the population of such areas exceeds 100,000

[but is less than 250,000], after the population in the

incorporated places, townships or towns within

such counties is excluded." EPA Preamble to 1990

Phase I MS4 Rule, 55 Fed. Reg. at 48039. 81 As

defined by the Census Bureau, the term "urbanized"

generally refers to "high density development." Id. at

48041 n.5.

In its initial iteration in connection with the

regulations adopted in 1990, Appendix I listed

jurisdictions in the second subcategory based on

figures from the 1980 census - at that time "the

latest decennial census"- as did Appendix G with

respect to jurisdictions in the first subcategory. In

1999, at the same time that the EPA adopted

regulations governing Phase II MS4 permits, the

agency also updated Appendix I (as well as

Appendix G) based on the 1990 census - which was

then "the latest decennial census." But the EPA

also amended the regulation concerning "medium"

population jurisdictions to refer specifically to the

1990 census and deleted the reference to the

"latest" census. The agency stated that it would not

continue to update those appendices based on later

decennial censuses. In the preamble to the

publication of those regulations and amendments,

81 An EPA guidance document issued shortly after adoption

of the Phase I regulations similarly stated the "medium" MS4

category included "Counties with census designated urbanized

areas that have a population greater than [or] equal to 100,000

but less than 250,000 after incorporated areas, towns, and

townships within such counties are excluded." EPA, Guidance

Manual for the Preparation of Part 1 of MS4 Permit

Applications (April 1991) at 9 (emphasis added).

88a

the EPA explained that it was "freezing" the

regulatory definition and listing based on the 1990

census because all the covered MS4s had already

applied for permits and "the deadlines from the

existing regulations have lapsed."82 EPA Preamble

to 1999 Phase II MS4 Rule, 64 Fed. Reg. at 68838,

68848-49. The EPA further explained that MS4s

that later met the definition of a "medium"

jurisdiction could be made subject to the Phase I

requirements by the permitting agency, alluding to

the agency's residual designation authority under

the Act. !d. at 68749 ("the permitting authority can

always require more from operators ofMS4s serving

'newly over 100,000' populations'); see also EPA,

National Pollutant Discharge Elimination System

- Proposed Regulations for Revision of the Water

Pollution Control Program Addressing Storm Water

Discharges, 63 Fed. Reg. 1536-01, 1567 (January 9,

1998).

3. Residual Designation Authority

Factors for Designation and Procedural Requirements

As indicated above, the Act authorizes the EPA,

or the pertinent state agency, to require that an MS4

obtain a Phase I permit if the agency "determines

that the [MS4] contributes to a violation of a water

quality standard or is a significant contributor of

pollutants ...." 33 U.S.C. §1342(p)(2)(E). In

its

Phase I permit regulations, the EPA identified the

following factors that could affect such a

82 As

noted earlier, at that time, Carroll and Frederick

Counties were among those operators of MS4s that, at the

behest of the Department, had already applied for, and

received, Phase I permits, although they were not listed in

Appendix I.

89a

determination: the location of the discharge, the size

of the discharge, the nature and quality of the

pollutants, and "other relevant factors." 40 CFR

§122.26(a)(1)(v).

Those regulations also specified

certain procedures that would be followed by the

EPA when the EPA itself made such a

determination (as well as other types of case-bycase determinations). See 40 CFR §124.52.83 No

particular procedure was required of a state

agency that made such a determination.84 The

parties have not presented - and we have not been

able to identify - any further procedural or other

requirements that a state must follow when

designating an MS4 as a Phase I permittee. 85

83 In the context of a citizen petition to the EPA to exercise

its residual designation authority, the EPA may issue a formal

document concerning the water quality impacts by a stormwater

discharger. See Conservation Law Foundation, Inc. v. Pruitt,

881 F .3d 24, 32 (1st Cir. 2018). However, the EPA's practice in

that context does not establish any particular requirement for

state agencies.

84 The regulation requires the EPA Regional Administrator

to send written notice of a designation by the Regional

Administrator to the MS4, accompanied by an application form

for a Phase I permit. The regulations further provide that

the propriety of the designation remains open for consideration

during the notice and comment period relating to the permit.

85 As

was the case with clause (B)(iii) concerning the

application of the MEP standard, see Part II.B. of this Opinion

above, the legislative history of §1342(p)(2)(E), which

established the residual designation authority, is not particularly

illuminating.

Prior to adoption of those regulations, a memorandum of the

EPA's Office of Water Enforcement and Permits had appeared

to indicate that state agencies would be expected to follow the

same procedure. Memorandum of the Director of the EPA Office

of Water Enforcement and Permits to Water Management

90a

Use of Residual Designation Authority to Expand

the Phase I Universe

The vast majority of the MS4s subject to the Phase

I permit requirements have been brought into Phase

I under the residual designation authority, rather

than on the basis of population. In a 2000 report to

Congress, the EPA stated that, of the 1,017 MS4s that

were part of the Phase I program at that time

(including Carroll and Frederick Counties), only 216

had been listed in the appendices to the 1990 and 1999

regulations, while 670 were co- permittees with a

larger MS4 or had been designated separately for

inclusion in the program. See EPA, Report to

Congress on the Phase I Stormwater Regulations

(2000), at 3-5, available at https://perma.cc/BJG3TPWP. Thus, despite the fact that the listing of large

and medium MS4s required to obtain Phase I permits

in the appendices to the Phase I regulations was

"frozen" based on the 1990 census, that universe has

been significantly expanded under the statutory

designation authority. See id. at 3-2 n.7. 86

Division Directors, et al. concerning Designation of Storm

Water Discharges for Immediate Permitting (August 8, 1990),

available at https://perma.cc/4NFA-NCXL, at 11. (Of note,

that memorandum also suggested that discharges from the area

around Chesapeake Bay would be appropriate for such a

designation. Id. at 8-9). However, the regulations as adopted by

the EPA set forth procedures solely for a designation by the EPA

itself.

See also EPA, Stormwater Phase II Final Rule: Who's

Covered? Designation and Waivers of Regulated Small MS4s

(revised June 2012), at 2, available at https://perma.cc/7WFAVTYG ("Phase I MS4s were automatically designated nationwide

as medium MS4s ... or as large MS4s [based on population.]

Many MS4s in areas below 100,000 in population, however, have

been individually brought into the Phase I program [by]

91a

4. Classification of Frederick County and Carroll

County in the 1990s

Neither Frederick County nor Carroll County was

included in the listing of jurisdictions deemed

"medium" based on population in Appendix I to the

EPA regulations either in the initial version of that

listing based on the 1980 census or in the amended

version based on the 1990 census. Rather, the

Department asked the Counties to apply for Phase I

MS4 permits in the early 1990s, and the Counties did

so. It is inevitably difficult to reconstruct events from

the vantage point of30 years later, but the parties

have provided some correspondence from that era

that suggests how the Department and the Counties

came to accept the Counties' status as Phase I

jurisdictions.87

After Congress added the MS4 permit

requirement to the Act and the EPA first adopted

the Phase I regulations in 1990, the Department

began corresponding with the Counties about

whether they had to apply for a permit. At first, the

Department told the Counties it was "unclear"

whether they would need to do so. Each County

responded that its unincorporated population was

permitting authorities.") (emphasis added)

This correspondence appears in appendices to the

parties' briefs. There is no documentation in the administrative

record of these permits as to how either County came to be

treated as a Phase I jurisdiction in the 1990s. In the

explanatory document that the Department issued with the

final version of the most recent Frederick County permit, it

indicated that it had not needed to exercise its residual

designation authority to classify the County as a Phase I

jurisdiction in the 1990s because the County had agreed to apply

for a Phase I MS4 permit.

92a

below the statutory threshold of 100,000. Carroll

County also emphasized its "primarily rural

character." 88 Both Counties apparently asked the

Department to refrain from including them in Phase I,

or at least to delay the application of the Phase I

requirements. The Department acceded to the latter

request and postponed the deadlines for both

Counties to submit a Phase I permit application.

Both Counties eventually submitted applications for

Phase I permits, apparently without further protest.

As best we can tell from the available

correspondence, neither the Department nor the

Counties focused on urbanized population in their

correspondence when they discussed the relevant

population in the early 1990s. This is perhaps

unsurprising because neither the federal statutory

nor regulatory text refers to "urbanized" areas.89

Instead, in their correspondence, both the Counties

and the Department discussed only total population

and the population in unincorporated areas with

respect to whether the Counties were "medium" MS4

jurisdictions that should apply for a Phase I permit.

In the correspondence available to us, the

Department did not explicitly invoke the statutory

The fact that a county may have a large rural area does

not necessarily affect whether it should be classified as a Phase

I MS4 jurisdiction. See EPA Preamble to 1990 Phase I MS4

Rule, 55 Fed. Reg. at 48041 ("some of the counties addressed by

[the Phase I regulations] have, in addition to areas with high

unincorporated urbanized populations, areas that are

essentially rural or uninhabited and may not be the subject

of planned development").

As explained above, that criterion was explained in the

preamble to the publication of the 1990 Phase I regulations,

but did not appear in the actual text of the regulations.

93a

residual designation authority with respect to either

County. However, the EPA has at least twice

included Carroll County and Frederick County in

lists of permittees as residually designated

jurisdictions.

EPA, Final National Pollutant

Discharge Elimination System Storm Water MultiSector General Permit for Industrial Activities, 60

Fed. Reg. 50804, 51272 (September 29, 1995); EPA,

Storm Water Discharges Potentially Addressed By

Phase II of National Pollutant Discharge Elimination

System Storm Water Program: Report to Congress

(March 1995) at A-14; see also EPA, Report to

Congress on the Phase I Storm Water Regulations

(February 2000), at Apx. A (including Carroll

County and Frederick County in Table A-2 listing

"Additional MS4s Participating in Phase I MS4

Program"- i.e., "additional" to Table A-l listing the

Phase I MS4 permittees named in the populationbased appendices to the regulations).90 There are

also other indications, outlined below, that the

Counties were regarded as residually designated

Phase I jurisdictions in the 1990s.

5. Analysis

The Counties assert that they are not properly

classified as Phase I MS4s because they are not

"medium" jurisdictions and were not otherwise

designated as Phase I jurisdictions by the Department

in the early 1990s. They contend that they should not

be considered "medium" jurisdictions. In their view, the

list of jurisdictions in Appendix I to the Phase I

Similarly, the version of the Maryland WIP issued in

2010 stated that Carroll County had been designated by the

Department as a Phase I MS4 under the residual designation

authority in the early 1990s. See Maryland WIP at 2-30.

94a

regulations is the exclusive list of medium MS4 counties

and neither County appears on that list. Moreover, the

Counties assert that their unincorporated, urbanized

populations never reached 100,000, either in the 1990s or

recently.91 They argue the Department did not exercise its

residual designation authority in the 1990s, and Carroll

County argues it is unlikely the Department even could

have done so. In addition, Carroll County argues that the

decision to include it as a Phase I jurisdiction was arbitrary

and capricious.

So far as we can tell, the Counties' challenge to their

MS4 classification as Phase I jurisdictions raises novel

issues for this or any court. We have not found- nor have

the parties cited- any case that involves a county's

challenge to its classification as a Phase I MS4.

Whether it is Unlawfulfor the Department to Treat

the Counties as Phase I MS4s

If the Counties had raised the question of their

classification as Phase I jurisdictions in the early 1990s, we

might well have agreed that they should not have been

brought into Phase I as "medium" jurisdictions. However,

the argument that Appendix I to the Phase I regulations is

the exclusive list of "medium" Phase I jurisdictions is

without merit, as the EPA itself has recognized that

jurisdictions not listed could later quality.92 However, given

Carroll County also claims that the Clean Water Act

did not authorize the Department's use of population

projections in the 1990s. We do not consider this argument

separately because we do not see it as materially distinct from

the County's other population-based arguments.

As discussed above, the EPA "froze" the list in Appendix I

in 1999 based on the 1990 census because the deadlines set for

Phase I permit applications had expired and the pertinent

jurisdictions had already applied (as had Carroll and Frederick

95a

the EPA's interpretation of its own regulations expressed

in the preamble to the publication of the Phase I

regulations in 1990, neither County likely met the

EPA's contemporaneous interpretation of the medium

category. In retrospect, it appears that neither County

had a population at that time above 100,000 in

unincorporated, urbanized areas.93

But we are not addressing this question in 1991.94

We decline to hold that today, after nearly three

decades as part of the Phase I permitting program,

the Counties should instead be relegated to a Phase II

general permit with less stringent pollutant controls.

We reach this conclusion for several reasons:

• The approach taken by the Department in

calculating the relevant population of the

Counties in the early 1990s was arguably

consistent with the statutory text and the

text of the regulations, although it deviated

from the EPA's interpretation of those

Counties). The agency recognized that jurisdictions that later

qualified as medium jurisdictions could be brought into the

Phase I program through the residual designation authority. In

any event, the agency could not, by regulation, negate a

legislative determination that MS4s serving populations of a

certain size were subject to the permit requirement.

In 1990, Frederick County's "urbanized area" population

was 58,393, and its total "urban" population was 86,686; for

Carroll County, the numbers were 0 and 38,418, respectively.

There is no need not explore the difference between "total

urban" and "urbanized area," at least for 1990, since both

figures were under 100,000 with respect to each County.

Even if we could purport to be examining this issue from

the perspective of the early 1990s, it is not entirely clear that we

have a complete record from that period.

96a

regulations, as articulated in the preamble to

the publication of the regulations. 95

• When the Counties were originally treated

as Phase I jurisdictions in 1991, neither

County (nor apparently anyone else)

questioned the method that the Department

used to assess the relevant population.

• Both Counties stipulated, as recently as

2014, that they satisfy the statutory

definition of a medium Phase I MS4 in

consent orders that they entered into with

the EPA concerning violations of earlier

MS4 permits.96

• In the case of the Carroll County permit,

all of the incorporated municipalities in

The Dissenting Opinion of Judge Getty suggests that we

have deferred excessively to the EPA's and the Department's

application of the Phase I classification, in contravention of the

"plain language" of the Clean Water Act and the EPA's

regulations concerning the classification of MS4s. Getty

Dissenting slip op. at 8. However, neither the statutory nor

regulatory text concerning Phase I jurisdictions refers to

"urbanized" populations- the key language on which the

Dissenti

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.