Summary
The Maryland Court of Appeals reviewed Maryland’s issuance of municipal separate storm sewer system (MS4) discharge permits to five Maryland counties and Baltimore City under the Clean Water Act. The court held that the permits were supported by substantial evidence, were not arbitrary or capricious, were legally correct, satisfied federal monitoring requirements, and complied with public participation mandates.
Topics
Practice areas
Questions Presented
- Whether the permits appropriately incorporated publicly available materials by reference and whether the 20 percent impervious-surface restoration requirement was specific, measurable, and enforceable.
- Whether MDE's decision to include the 20 percent restoration requirement and TMDL-related reporting and planning requirements was supported by substantial evidence and was not arbitrary or capricious.
- Whether the permit provisions allowing public review and comment on restoration plans addressing wasteload allocations satisfied public-participation requirements.
- Whether the permits satisfied federal monitoring requirements, including requirements for representative data and monitoring sufficient to assure compliance with permit limitations.
Holdings
- The 20 percent restoration requirement complied with 33 U.S.C. § 1342(p)(3)(B)(iii). The statute imposes a broad and flexible requirement that MS4 permits contain controls to reduce pollutant discharges to the maximum extent practicable; it does not require a specific performance standard or numeric pollutant-reduction limitation. MDE sufficiently linked the requirement to stormwater-management practices and the Water Quality Volume standard in Maryland's Stormwater Design Manual.
- MDE's decision to impose the 20 percent restoration requirement was supported by substantial evidence and was not arbitrary and capricious.
- MDE reasonably selected 2002 as the baseline for calculating impervious surface area not restored to the maximum extent practicable.
- The permits complied with 40 C.F.R. § 122.44(d)(1)(vii)(B). The permits incorporated approved wasteload allocations, required the Counties to submit plans identifying actions and schedules for meeting those allocations, and required reporting, agency review, and adaptive modification when progress was inadequate.
- The permits satisfied applicable federal monitoring requirements.
- The permits' provisions allowing public review and comment on restoration plans satisfied applicable public-participation requirements.
Key quotations
“Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements.” (447 Md. at 102)
“The test is reasonableness, not rightness.” (447 Md. at 106)
“WLAs are not permit limits per se; rather they still require translation into permit limits.” (447 Md. at 130)
“MDE requires reporting, assessment, and adaptation to ensure that the Counties' BMPs will make progress to achieve WLAs.” (447 Md. at 151)
Factual background
MDE issued five-year NPDES municipal separate storm sewer system permits to Anne Arundel County, Baltimore City, Baltimore County, Montgomery County, and Prince George's County. The permits required, among other things, restoration of 20 percent of certain impervious surface areas, development of plans addressing wasteload allocations under EPA-approved total maximum daily loads, monitoring, annual reporting, and public participation. Environmental organizations challenged the permits under federal and Maryland environmental and administrative law.
Procedural history
The Water Groups challenged permits issued to Anne Arundel County, Baltimore City, Baltimore County, Montgomery County, and Prince George's County. The Circuit Court for Montgomery County remanded the Montgomery County permit, and the Court of Special Appeals affirmed. The circuit courts for Anne Arundel, Baltimore, and Prince George's Counties upheld the other permits. The Court of Appeals of Maryland granted review and consolidated the matters, reversing the Court of Special Appeals and affirming the circuit-court judgments.
Remand instructions
The judgment of the Court of Special Appeals concerning the Montgomery County permit was reversed, and the judgments of the circuit courts affirming the permits for Anne Arundel County, Baltimore City, Baltimore County, and Prince George's County were affirmed. The Montgomery County matter was remanded consistent with the Court of Appeals' opinion.