Md. Small MS4 Coal. v. Md. Dep't of the Env't

250 Md.App. 388

250 A.3d 346

MARYLAND SMALL MS4 COALITION, et al.

v.MARYLAND DEPARTMENT OF the ENVIRONMENT

No. 1865, Sept. Term, 2019

Court of Special Appeals of Maryland.

April 29, 2021

Argued by: Lisa M. Ochsenhirt (Christopher D. Pomeroy, AquaLaw PLC, Richmond, VA, Patrick E. Thompson, County Atty. for Queen Anne's County, Stevensville, MD), all on the brief, for Appellant.

Argued by: Matthew P. Clagett (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Beachley, Wells, Glenn T. Harrell, Jr., Senior Judge, Specially Assigned, JJ.^*

Harrell, J.

"Letting the days go by, let the water hold me down Letting the days go by, water flowing underground Into the blue again, into the silent water Under the rocks and stones, there is water underground."

Lyrics from "Once in a Lifetime" from the album "Remain In Light" by The Talking Heads (Sire Records, 1981).

This appeal flows from a petition, filed in the Circuit Court for Queen Anne's County, requesting judicial review of a final determination of the Maryland Department of the Environment ("Department"), appellee, to issue a conditional general stormwater discharge permit to a number of operators of "small" municipal separate storm sewer systems (MS4s) (we shall do a deeper dive explaining this term shortly), including Queen Anne's County ("the County"), appellant. The circuit court affirmed the Department's final determination.

The County noted an appeal from the decision of the circuit court, presenting the following questions for our consideration:

1. Has [the Department] acted unlawfully by designating geographic areas outside of the urbanized area for regulation under the General Permit?

2. Has [the Department] unlawfully made the County responsible for discharges from independent third parties and nonpoint source runoff that does not flow into or discharge from the County's MS4?

3. Has [the Department] unlawfully imposed requirements beyond the maximum extent practicable in the General Permit?

For the following reasons, we shall vacate, in part, the judgment of the circuit court and remand to that court with instructions to remand the matter to the Department for further proceedings consistent with this opinion. We shall affirm otherwise the judgment.

BACKGROUND

A. Statutory and Regulatory Scheme

The permit here was issued by the Department pursuant to authorization under the federal Clean Water Act, 33 U.S.C. § 1251 through § 1388 ("CWA"). Congress enacted the CWA in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). One of the core provisions of the CWA is § 1311(a), which "generally prohibits ‘any person’ from discharging pollutants from a point source into a waterway."¹ Maryland Department of the Environment v. County Commissioners of Carroll County , 465 Md. 169, 184, 214 A.3d 61 (2019) (quoting 33 U.S.C. § 1311(a) ) (footnotes omitted), cert. denied sub nom . County Commissioners of Carroll County, Maryland v. Maryland Dep't of the Env't , ––– U.S. ––––, 140 S. Ct. 1265, 206 L.Ed.2d 255 (2020).

"Through the National Pollution Discharge Elimination System ("NPDES"), 33 U.S.C. § 1342, either the Environmental Protection Agency ("EPA") or an EPA-approved state, such as Maryland, may issue permits exempting a discharger from this prohibition." Maryland Department of the Environment v. Anacostia Riverkeeper , 447 Md. 88, 96, 134 A.3d 892 (2016) (footnote omitted). The Department is authorized by the EPA to administer the NPDES program in Maryland. Id. (citing Code of Maryland Regulations ("COMAR") 26.08.04.07 ).

Maryland's NPDES permit program must be consistent with the CWA and with EPA guidelines. 33 U.S.C. § 1342(c)(2). "To achieve water quality standards, the [CWA] requires that discharge permits include pollution controls for point sources." Carroll County , 465 Md. at 186, 214 A.3d 61 (citing 33 U.S.C. § 1311(b) ).

" ‘Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters.’ " Anacostia Riverkeeper , 447 Md. at 96, 134 A.3d 892 (quoting S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) ). "These limits are called effluent limitations."² Id.

At issue in this appeal is a permit for a type of "point source" discharge known as a municipal separate storm sewer system, commonly referred to as an MS4. "An MS4 is a network of 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)." Carroll County , 465 Md. at 188, 214 A.3d 61 (citing 40 C.F.R. § 122.26(b)(8) ). "Stormwater" is the "rain and snowmelt that filters through the soil and courses over surfaces – collecting pollutants along the way – before passing through the municipal storm sewer systems and into waterbodies." Anacostia Riverkeeper , 447 Md. at 97, 134 A.3d 892 (footnote omitted).

MS4s differ from other "point sources" of water pollution, such as a discharge pipe from a factory, in that the quantity and quality of stormwater that is conveyed by an MS4 into a waterway varies, depending on weather and land use practices. Carroll County , 465 Md. at 188-89, 214 A.3d 61. In addition, it is "difficult to discern the amount of pollutant that any one [MS4] discharger contributes to a waterbody because municipalities have so many outfalls, or discharge points, leading into the waters." Anacostia Riverkeeper , 447 Md. at 98, 134 A.3d 892. Accordingly, instead of numerical effluent limitations, "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." Carroll County , 465 Md. at 189, 214 A.3d 61 (footnote omitted). Under the CWA, municipal stormwater permits must require "controls" that will "reduce the discharge of pollutants to the maximum extent practicable[.]" 33 U.S.C. § 1342(p)(3)(B)(iii). The required "controls" include "management practices, control techniques and system, design and engineering methods," as well as "such other provisions as the [EPA] or the State determines appropriate for the control of such pollutants." Id.

"Best management practices," or, as they are commonly referred to, "BMPs," "have been a long-standing control or effluent limitation in MS4 permits." Anacostia Riverkeeper , 447 Md. at 99, 134 A.3d 892 (citing 40 C.F.R. §§ 122.44(k)(2) and (3) ). EPA regulations define BMPs as "[m]ethods, measures or practices selected by an agency to meet its nonpoint source control needs." 40 C.F.R. § 130.2(m). "BMPs include but are not limited to structural and nonstructural controls and operation and maintenance procedures." Id. The EPA has defined BMPs more specifically, stating that "BMPs can be either nonstructural (good housekeeping practices, pollution prevention, contour plowing, cover crops) or structural (wet or dry detention ponds), and can include treatment requirements, operating procedures, and practices to control site runoff, spillage, or leaks."³

The NPDES discharge permit program for MS4s has been put into operation in two phases, beginning with systems serving larger and denser populations. Phase I included "large" MS4s, which serve populations of 250,000 or more, and "medium" MS4s, which serve populations of 100,000 to 249,999. Carroll County , 465 Md. at 243-44, 214 A.3d 61.⁴ Phase II extended the permit requirement to "small" MS4s, such as those operated by the County, which serve fewer than 100,000 people. Id. at 245, 214 A.3d 61. The permit at issue here is a Phase II general permit issued to a group of small MS4 operators.⁵

Significantly, not all small MS4s are subject to regulation under the NPDES program. Operators of small MS4s, including, but not limited to, systems operated by federal, state and local governments, require a permit to discharge stormwater only if: (1) the small MS4 is located within an "urbanized area,"⁶ 40 C.F.R. § 122.32(a)(1) ; (2) the Department determines that storm water discharge from the small MS4 "results in or has the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts" 40 C.F.R. 123.35(b)(1) ; or (3) the Department determines that stormwater discharge from the small MS4 "contributes substantially to the pollutant loadings of a physically interconnected municipal separate storm water sewer that is regulated by the NPDES storm water program." 40 C.F.R. 123.35(b)(4). Only the first two conditions are relevant here.

To determine whether small MS4s that are located outside of an urbanized area should be subject to regulation, the Department must first "[d]evelop criteria to evaluate whether a storm water discharge results in or has the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water impacts, including habitat and biological impacts." 40 C.F.R. § 123.35(b)(1)(i). The permitting authority then must apply that criteria to small MS4s located outside of an urbanized area.⁷ 40 C.F.R. § 123.35(b)(2). Any small MS4 that meets the criteria must be designated for regulation and issued a discharge permit. 40 C.F.R. § 123.35(b)(3), (d).

Under certain conditions, the Department may waive or phase-in the requirements applicable to regulated small MS4s. 40 C.F.R. § 122.32(d) and (e) ; § 123.35(d). Where a general permit is issued, an owner or operator of a small MS4 may request to be excluded from the coverage of the general permit by applying for an individual permit. 40 C.F.R. § 122.28(b)(3)(iii).⁸

The procedure the Department must follow in issuing a permit is set forth in the...