Assateague Coastkeeper v. Maryland Department of the Environment
28 A.3d 178
Md. Ct. Spec. App.2011Background
- MDDE regulates Animal Feeding Operations (AFOs) via a General Discharge Permit (GP) addressing manure management and land application to protect water quality.
- GP creates two categories: CAFOs (discharge to surface water; regulated under federal NPDES) and MAFOs (no surface discharge; regulated by state permit).
- MAFOs may store dry poultry litter in the field up to 90 days; CAFOs are limited to 14 days unless sealed with liner/cover.
- GP includes a three-year phase-in for MAFO storage up to 90 days, with a potential reduction to 30 days based on scientific findings.
- Appellants allege GP is not stringent enough and violates federal law by improperly classifying MAFOs and by allowing uncovered storage.
- Circuit court upheld GP as consistent with state and federal law; MDDE granted summary decision; Appellants sought judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GP is arbitrary, capricious, or not supported by substantial evidence. | Appellants contend the 3-year, 90/30 day phase-in lacks evidentiary support. | MDDE had substantial evidence, including expert affidavits and scientific input, supporting the storage Limits. | GP supported by substantial evidence; not arbitrary or capricious. |
| Whether GP complies with federal water quality standards and regulatory interpretations. | Appellants allege GP violates § 122.4(i) and fails RPA/WQBEL synthesis. | GP uses site-specific CNMP/NMP reviews; offsets and net load reductions can satisfy § 122.4(i) and 40 C.F.R. § 122.44(d). | GP complies; offsets/net reductions permissible; site-specific review ensures protection. |
| Whether GP is less stringent than federal law by regulating MAFOs not discharging as CAFOs. | Appellants claim GP exempts some CAFOs from federal treatment by classifying as MAFOs. | GP is broader than federal law; MAFOs are regulated to address groundwater; CNMP/NMP requirements are at least as stringent. | GP is not less stringent; it is broader and includes MAFOs under state permit with robust requirements. |
| Whether the 90-day uncovered storage provision misleads AFOs about need for federal permits. | 90-day open storage could imply no surface discharge obligation and evade CAFO obligations. | Open stockpiling is regulated; MAFOs convert to CAFOs if discharging to surface water; the regime ensures protection. | Not misleading; stockpiling rules integrated with future CAFO status and TMDL framework. |
Key Cases Cited
- Najafi v. Motor Vehicle Admin., 418 Md. 164 (2011) (court defers to agency expertise on regulatory interpretation)
- Northwest Land Corp. v. Md. Dep't of the Env't., 104 Md. App. 471 (1995) (narrow judicial review of agency factual findings)
- Wal-Mart Stores, Inc. v. Holmes, 416 Md. 346 (2010) (administrative deference in statutory interpretation)
- In the Matter of the Cities of Annandale and Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007) (offsets in interpreting 'cause or contribute' under § 122.4(i))
- Arkansas v. Oklahoma, 503 U.S. 91 (1992) (rejects absolute prohibition interpretation of 'cause or contribute')
- Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007) (offset concept rejected by Ninth Circuit for 'cause or contribute')
- National Pork Producers Council v. EPA, 635 F.3d 738 (2d Cir. 2011) (EPA authority tied to discharges; post-Waterkeeper decisions)
- Annandale and Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d 502 (Minn. 2007) (state agency discretion in net load considerations)