Md. Dep't of the Env't v. Assateague Coastal Trust

484 Md. 399

299 A.3d 619

MARYLAND DEPARTMENT OF THE ENVIRONMENT v. ASSATEAGUE COASTAL TRUST

No. 11 September Term, 2022

Supreme Court of Maryland. *

August 9, 2023

Argued by Matthew Standeven, Asst. Atty. Gen. (Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellant/Cross-Appellee.

Argued by David L. Reed (Evan Isaacson, Chesapeake Legal Alliance, Annapolis, MD), on brief, for Appellee/Cross-Appellant.

Amicus Curiae U.S. Poultry & Egg Association: Peter C. Hershey, Esquire, Jeffrey F. Hershey, Esquire, Timothy R. Henderson, Esquire, Rich & Henderson, P.C., 2661 Riva Road, Bldg. 300 1st Floor, Annapolis, MD 21401.

Amicus Curiae Environmental Integrity Project: Abel Russ, Esquire, Sanghyun Lee, Esquire, Environmental Integrity Project, 1000 Vermont Ave. NW, Suite 1100, Washington, DC 20005.

Amicus Curiae Atlantic Coast Sportsfishing Association, Inc.: Sandra P. Franco, Esquire, Franco Environmental Law LLC, 600 Pennsylvania Avenue, SE, Unit 15577, Washington, DC 20003.

Amici Curiae Delmarva Chicken Association, Maryland Dairy Industry Association, Inc., Maryland Farm Bureau, Inc., Maryland Grain Producers Association, Maryland Pork Producers Association, and Horizon Farm Credit: Anthony G. Gorski, Esquire, The Law Office of Anthony G. Gorski LLC, 2661 Riva Road, Building 300, 1st Floor, Annapolis, MD 21401.

Argued before: Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

Booth, J.

This appeal concerns judicial review of the most recent iteration of a general discharge permit that the Maryland Department of the Environment (the "Department" or "MDE") issued to Animal Feeding Operations ("AFOs") in connection with its authority to issue water pollution control permits under the federal Clean Water Act ¹ and Maryland's water pollution control law. ² The current iteration of this general discharge permit for AFOs was finalized by the Department pursuant to certain statutory requirements under federal and state law, which require that the Department review and issue or reissue water pollution control permits every five years.

After the Department published its Notice of Final Determination to reissue with revisions the general discharge permit for AFOs (the "2019 General Permit"), Assateague Coastal Trust ("Assateague") filed a petition in the Circuit Court for Montgomery County seeking judicial review. After the circuit court vacated the permit and remanded the matter to the Department with instructions to incorporate certain water quality standards into the permit, the Department filed an appeal to the Appellate Court of Maryland. ³ While the case was pending in that court, Assateague filed a petition for writ of certiorari . We granted the petition to consider the following questions, which we have reordered and rephrased as follows: ⁴

1. Whether the Department's Final Determination to issue the 2019 General Permit was reasonable and complied with the water quality standards established under the Clean Water Act and the State's water pollution control law.

2. Whether the Department's permit conditions in the 2019 General Permit that address AFO ammonia emissions were reasonable and complied with the water quality standards established under the State's water pollution control law.

Ultimately, we answer both questions "yes" and uphold the Department's Final Determination.

I.Statutory Background

Before we turn to Assateague's arguments in support of its challenge to the 2019 General Permit that is the subject of this matter, it is useful to provide an overview of the applicable federal and state laws and regulatory framework. We discuss below the Clean Water Act and Maryland's water pollution control law, the general permitting scheme for water pollution discharge permits under both federal and state law, as well as the specific federal and state regulations that govern discharge permits for concentrated animal feeding operations ("CAFOs"), as well as other types of AFOs.

A. The Federal Clean Water Act

1. NPDES Permitting Scheme

Congress enacted the federal Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Among its core provisions, the Clean Water Act prohibits the "discharge of any pollutant" ⁵ to waters of the United States, except as authorized by a permit issued under the National Pollution Discharge Elimination System ("NPDES"). 33 U.S.C. §§ 1251(a)(1), 1311(a), 1342(a)(1). An NPDES permit places limits on the type and quantity of pollutants that can be released into the Nation's waters. These limits are called "effluent limitations." ⁶ The U.S. Environmental Protection Agency ("EPA") is authorized to issue and enforce these permits. 33 U.S.C. §§ 1319, 1342(a)(1).

The Clean Water Act authorizes the EPA to delegate its NPDES permitting authority to a state. 33 U.S.C. § 1342(b). This regulatory approach enables the federal and state water pollution permitting laws to work in tandem with one another.

33 U.S.C. § 1342(b). State law must be at least as stringent as the provisions of the Clean Water Act; however, a state has the ability to impose more stringent pollution control laws as it desires. 40 C.F.R. §§ 122.44(d), 123.25(a).

State permits must be fixed for terms not exceeding five years and are subject to EPA review. 33 U.S.C. § 1342(b)(1) ; 40 C.F.R. § 123.44. After a state submits a permit for review, the EPA may make objections or recommendations to the proposed permits. 40 C.F.R. § 123.44. States must take action to eliminate the EPA's objections. 40 C.F.R. § 123.44. Maryland is among the states authorized to issue NPDES permits. ⁷ The Department administers both the federal and state water pollution permitting programs. ⁸

Under both federal and state laws, water pollution discharge permits can take one of two forms. The first type is an "individual discharge permit," which is written to reflect site-specific conditions of an applicant discharging to a designated body of water. The permit terms, conditions, and limitations are based upon extensive information submitted in the application and are unique to that discharger. See 40 C.F.R. § 122.21 ; COMAR 26.08.04.02 – .07. An individual discharge permit allows specific effluent limitations based on many factors, including the type of industry or operation, the technology available, pollutant constituents, and the characteristics of the receiving body of water. Id.

The second type of discharge permit—which is the type at issue here—is a "general discharge permit," which may be issued for a particular industry or category of discharges when they are susceptible to regulation under common terms and conditions. See 40 C.F.R. §§ 122.28(a), 123.25 ; COMAR 26.08.04.08.– .09. General discharge permits include conditions and other eligibility requirements that all facilities must meet to obtain coverage under the general permit. Id. Prior to discharging, the operator must file a notice of its intent to discharge in compliance with the general permit. 40 C.F.R. § 122.28(b)(2) ; COMAR 26.08.04.09N(3)(a). The specific classes or categories of discharges authorized by a general permit are determined at the regulatory agency's discretion. 40 C.F.R. § 122.28(a)(2)(ii)(E) ; COMAR 26.08.04.08A(4). As we will discuss in more detail herein, the EPA and MDE have both chosen to regulate CAFOs under general discharge permits. 40 C.F.R. § 122.23 ; COMAR 26.08.04.09N.

2. Pollution Controls in Permits

Under the Clean Water Act, "water quality standards" are the benchmark for clean water. 33 U.S.C. § 1313(b) ; Maryland Dep't of the Env't v. County Comm'rs of Carroll County , 465 Md. 169, 186, 214 A.3d 61 (2019). These standards are established under the Act as follows. First, states assess the surface waters within their jurisdiction to determine the known or desired uses for each water body's "designated use" ( e.g ., public water supply, fishing, recreational use). 33 U.S.C. § 1313(c)(2)(A) ; 40 C.F.R. §§ 130.3, 131.6 ; COMAR 26.08.02.01.– .03. The states then establish a water quality standard for any pollutants of concern to reflect the ambient water quality needed to support the known or desired uses. Id. All water quality standards proposed by the states are subject to EPA review, and if the EPA does not approve them, the EPA will set the standards itself. 33 U.S.C. § 1313.

To achieve water quality standards, the Act requires that discharge permits include pollution controls for point sources. 33 U.S.C. § 1311(b). "The Act calls these controls ‘effluent limitations’—‘effluent’ being the material discharged by a point source." Carroll County , 465 Md. at 186, 214 A.3d 61. "Effluent limitations may be ‘technology based’ or ‘water quality based.’ " Id. We describe the differences between these two types of effluent limitations below.

a. Technology Based Effluent Limitations.

"Technology based effluent limitations are generally the first round of controls in the effort to achieve water quality standards." Id. (citing 33 U.S.C. § 1311(b)(1)(A) ). They "represent the minimum level of control that must be imposed in a permit[.]" 40 C.F.R. § 125.3(a). The Clean Water Act directs the EPA to issue nationally applicable effluent limitations or guidelines for classes or categories of point sources. 33 U.S.C. § 1314(b). These guidelines—often referred to as "ELGs"—consist of industry-specific, technology based effluent limitations, which require the use of "best practicable control technology currently available" that will result in reasonable progress toward the national goal of eliminating the discharge of all pollutants. See 33 U.S.C. §§ 1311(b)(1), 1314(b)(1). If technology based effluent limitations are not sufficient for a particular water body to meet or exceed the water quality standard, the Department is required to impose more stringent controls—"water quality based effluent limitations," often referred to as "WQBELs"—for those receiving...