Maryland Small MS4 Coalition, et al. v. Maryland Department of the Environment
No. 25, September Term 2021
IN THE COURT OF APPEALS OF MARYLAND
June 1, 2022
Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.
Circuit Court for Queen Anne‘s County, Case No. C-17-CV-18-000162. Argued: December 7, 2021. Per Curiam Opinion. McDonald, Hotten, and Adkins, JJ., concur. Getty, CJ., Watts, and Booth, JJ., concur in the judgment.
Environmental Law – Administrative Law – Clean Water Act – Stormwater Discharge Permits – Stare Decisis. Under the Clean Water Act and a similar State statute, the Maryland Department of the Environment develops and issues permits for regulating stormwater pollution to municipal separate storm sewer systems (“MS4s“) in Maryland. In Maryland Department of the Environment v. Anacostia Riverkeeper, 447 Md. 88 (2016), in response to a challenge by environmental advocates, the Court of Appeals held that permits issued to “large” MS4s satisfied the minimum requirements of the Clean Water Act. In Maryland Department of the Environment v. County Commissioners of Carroll County, 465 Md. 169 (2019), cert. denied, 140 S. Ct. 1265 (2020), in response to a challenge by two counties that operate MS4s, the Court held that permits issued to those “medium” MS4s were lawful under the Clean Water Act even if some permit conditions exceeded the minimum requirements of the Act. In this case, a county operating a “small” MS4 challenges the general permit issued for 35 small MS4s in Maryland on grounds similar to those raised in the Carroll County case and asks the Court to reconsider its decision in that case. The Court holds that, pursuant to the doctrine of stare decisis, its prior holdings govern this case. Accordingly, the Court concludes that the general permit is not unlawful to the extent it may exceed a minimum requirement of the Clean Water Act known as the “MEP standard” to protect water quality standards and that, by including “minimum control measures” required by federal regulations under the Act and referencing areas beyond the MS4 service area, the permit does not unlawfully make the county responsible for discharges by third parties.
Per Curiam Opinion
McDonald, Hotten, and Adkins, JJ., concur.
Getty, CJ., Watts, and Booth, JJ., concur in the judgment.
Filed: June 1, 2022
*Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to Maryland Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this
The goal of the federal Clean Water Act is to make the nation‘s waters fishable and swimmable by eliminating pollutant discharges into those waters.1 To achieve that goal, the Act requires a permit for all effluent discharges into waters of the United States, including discharges into the Chesapeake Bay and its tributaries. Under the Act and the State water pollution control statute, Respondent Maryland Department of the Environment (“the Department“) develops and issues such permits to municipal separate storm sewer systems (“MS4s“) in Maryland, which are classified as “large,” “medium,” or “small.”
Beginning in the 1990s, the Department issued permits for owners and operators of large and medium MS4s. In 2016, in response to a challenge by environmental advocates, this Court held that permits issued by the Department to large MS4s satisfied the minimum requirements of the Clean Water Act. Maryland Department of the Environment v. Anacostia Riverkeeper, 447 Md. 88 (2016) (”Anacostia Riverkeeper“). In 2019, in response to a challenge by two counties that operate medium MS4s, the Court held that permits issued to those MS4s were lawful
In this case, Petitioner Queen Anne‘s County (“the County“), which operates a small MS4, brought this action for judicial review of a general permit that the Department issued for operators of 35 small MS4s in Maryland, including the County. The Circuit Court for Queen Anne‘s County concluded that the decision in Carroll County addressed the issues raised by the County and affirmed the permit. On appeal of that decision, the Court of Special Appeals reached the same conclusion. Before us, the County again raises the grounds that the Court addressed in Carroll County and asks the Court to reconsider its key holdings in that case.
We hold that, pursuant to the doctrine of stare decisis, the holdings of Carroll County apply in this case. We hold that this case is governed by this Court‘s prior case law and presents neither a material difference nor a change in circumstance that would justify reconsideration of this Court‘s Carroll County decision. Accordingly, conditions based on regulations of the Environmental Protection Agency (“EPA“) in the general permit for small MS4s are not unlawful simply because they may exceed the minimum requirements of the Clean Water Act, such as the MEP standard. In addition, an impervious surface restoration requirement in the permit, which is similar to but less onerous than a permit requirement assessed in Carroll County, does not unlawfully make the County responsible for discharges by third parties.2
I
Regulation of Water Pollution under the Clean Water Act
Pollution can enter waterways in many ways, but the Clean Water Act3 sorts all sources of pollution into two categories – point source and nonpoint source pollution. Carroll County, 465 Md. at 184. The Clean Water Act defines “point source” as “any discernible, confined and discrete conveyance,” and thus includes classic conveyances such as an industrial drainage pipe.
A. Point Sources and NPDES Permits
As a starting point, the Clean Water Act prohibits all point source pollutant discharges into the waters of the United States,4 unless a permit allows the discharge.
Congress entrusted administration of the NPDES permit program primarily to the EPA.
B. Effluent Limitations in Point Source Permits
Although the Act distinguishes between point and nonpoint sources of pollution, pollutants do not, and accomplishment of the statutory purpose inevitably involves some interplay in the regulation of the two sources of pollution. Under the Act‘s statutory framework, nonpoint source pollution affects the stringency of a typical NPDES point source permit. Aside from technical limitations on effluent discharges, typical NPDES permits – for example, a permit for an industrial drainage pipe – must
Both point and nonpoint sources impact water quality, but the Act‘s enforcement mechanism is through point source permits. Thus, if there is an excess of nonpoint source pollution impairing a body of water – despite the measures taken to reduce nonpoint source pollution – point source permits must impose a “more stringent limitation” to counterbalance the nonpoint source pollution and protect the water quality. “Water quality standards are retained as a supplementary basis for effluent limitations, however, 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 Res. Control Bd., 426 U.S. 200, 205 n.12 (1976). Thus, water quality standards provide the link for how point source regulation under the Act accounts for nonpoint source pollution. See American Farm Bureau Federation v. EPA, 792 F.3d 281, 299 (3d Cir. 2015); Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 143 (D.C. Cir. 2006).
C. MS4s
MS4s are a subset of point sources of pollution discharges. They are ubiquitous in the daily life of those who live in an urban or suburban area. They consist of drains along roads and other conveyances for the collection and transport of rainwater and snowmelt – and everything else washed in with the water. Unlike a combined sewer system, an MS4 does not mix run off with sanitary sewer water; rather, it collects, transports, and deposits untreated stormwater into local waterways. In 1987, Congress amended the Clean Water Act to include specific permitting standards for MS4s, which have been elaborated in the EPA‘s regulations.8 See
The fundamental issues in this case are whether the Department, as the NPDES permitting authority for Maryland, may mitigate nonpoint source pollution to protect water quality standards when issuing permits for point sources, such as MS4s, and, if so, whether the scope of such regulation may extend in certain ways beyond the MS4‘s system. The Court has already answered these questions in the affirmative – once with large MS4s and once with
II
Permitting of MS4s – Standards and Process
A. New Statutory Standard with a Phased Approach
The Clean Water Act provides for a phased, flexible approach to the permitting of MS4s. In particular, the Act states:
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
- (iii) 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 Administrator or the State determines appropriate for the control of such pollutants.
33 U.S.C. §1342(p)(3)(B) .
The phased approach to MS4 permitting was adopted to allow additional time for the development of those permits. The time was needed because the standard end-of-the-pipe treatment technology used for typical NPDES point sources would not be effective and permitting authorities would have to develop new types of permits that would be more comprehensive than the typical NPDES permit. A key legislative advocate of the 1987 MS4 amendments stated during the floor debate that the MS4 permits would “go far beyond the normal permits” and be “in effect ... programs for stormwater management....” Remarks of Senator Robert R. Stafford (R. Vt.), Chairman of the Senate Committee on Environment and Public Works, presenting the Conference Report on Water Quality Act of 1986, 132 Cong. Rec. at 32381 (October 16, 1986).9
The EPA has implemented the MS4 permitting program in two phases. Phase I involved permitting those systems with the greatest potential to pollute waterways, generally as defined by population – denominated “large” or “medium” MS4s – or as specially designated by the permitting authority. Carroll County, 465 Md. 243-45. In Maryland, the Department began issuing those permits during the 1990s. Some challenged the permits as too stringent (Carroll County); others challenged the permits as not stringent enough (Anacostia Riverkeeper). In both instances, this Court held that the permits were lawful under the EPA‘s regulations and the Clean Water Act. See Part III of this opinion.
Phase II included “small” MS4s – generally MS4s serving an area that has a population of less than 100,000 and either includes an urbanized area or is specially designated by the permitting authority. See
B. EPA Standards for Small MS4 Permits
1. Terms and Conditions
The EPA regulations for small MS4 permits set forth standard permit conditions, a few of which are particularly pertinent to this case. First, any small MS4 permit “must include permit terms and conditions to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.”
Second, a small MS4 permit must include six specific minimum control measures: (1) Public education and outreach on storm water impacts; (2) Public involvement/participation; (3) Illicit discharge detection and elimination; (4) Construction site storm water runoff control; (5) Post-construction storm water management in new development and redevelopment; and (6) Pollution prevention/good housekeeping for municipal operations.
Finally, as appropriate, the permit is to include “[m]ore stringent terms and conditions, including permit requirements that modify, or are in addition to, the minimum control measures based on an approved total maximum daily load (TMDL) or equivalent analysis, or where the [permitting authority] determines such terms and conditions are needed to protect water
2. Impervious Surfaces, Urbanization, and Small MS4s
Impervious surfaces that do not absorb rainwater have long been recognized as a key cause of water pollution and the resulting impairment of water quality, particularly in urban areas. EPA 1999 Small MS4 Permit Regulations, 64 Fed. Reg. at 68,725. Typically, stormwater drains into the natural vegetation and soil, which act as a natural filter for many pollutants.
When the EPA initially adopted the small MS4 regulations, it noted that this phenomenon is especially true for the Chesapeake Bay region. EPA 1999 Small MS4 Permit Regulations, 64 Fed. Reg. at 68,725. It pointed to a modeling system developed for the Chesapeake Bay that demonstrated that contamination of the Bay and its tributaries from runoff is comparable to, if not greater than, contamination from industrial and sewage sources.
3. Choice of General Permit or Individual Permit
The regulations for permitting small MS4s provide some administrative flexibility for small MS4 permittees. In contrast to federal regulations governing large and medium MS4s, the regulations for small MS4s strongly encourage the use of general permits applicable to multiple MS4s to reduce administrative costs and burden. See
C. MS4 Permitting Process in Maryland
In Maryland, discharge permits are issued under both the Clean Water Act and a parallel State program. Carroll County, 465 Md. at 185. The process by which the Department issues such permits is set forth in
A final determination of the Department is subject to judicial review by a party that meets threshold standing requirements and that participated in the public comment process.
Judicial review begins in the relevant circuit court14 pursuant to the procedures set forth in
III
Prior Maryland Decisions Concerning MS4 Permits
As noted earlier, this Court has previously reviewed challenges to MS4 permits issued by the Department in two cases. One case involved permits issued to five jurisdictions that operated systems designated as “large” MS4s; the other case concerned permits issued to two counties that operated systems designated as “medium” MS4s. Each of the permits involved similar terms and conditions. In the first
A. The Anacostia Riverkeeper Case
Anacostia Riverkeeper involved large MS4 permits that the Department had issued to five counties at various times between 2010 and late 2014. 447 Md. at 113. Each permit required the permittee to complete restoration efforts with respect to 20 percent of its jurisdiction‘s total impervious surface not already restored to the MEP standard. Id. at 123. In 2014, the Anacostia Riverkeeper and other environmental groups challenged the permits as not stringent enough. They argued, among other things, that the requirement that the permittees restore 20 percent of impervious surface in its jurisdiction was “too opaque” because the permit left permissible mitigation practices undefined and thus allowed the permittees to choose their own stormwater management practices.
This Court disagreed. The Court described the role of TMDLs in setting water quality standards for discharge permits. Anacostia Riverkeeper, 447 Md. at 100-04. The Court emphasized that, unlike a typical NPDES permit, a permit for an MS4 need not require the numerical specificity that might be found in a typical NPDES permit. Id. at 126. Rather, the Clean Water Act affords the Department significant flexibility in establishing controls for MS4 permits – which is necessary, given the challenges in regulating what goes in and comes out of a storm sewer system. Id. at 127. Thus, the Court held that the 20 percent impervious surface restoration requirement satisfied both the State stormwater permitting standards and the MEP standard in the Clean Water Act. Id. at 126, 128-29.
B. The Carroll County Case
Three years later, conditions in Maryland MS4 permits were challenged from the opposite perspective. In that case, two counties that operated medium MS4s argued, among other things, that conditions similar to those at issue in Anacostia Riverkeeper required too much of the counties and exceeded the requirements of the Clean Water Act. Carroll County, 465 Md. at 199-200. A few key holdings from that case are particularly pertinent to this appeal.
1. Going Beyond the MEP Standard to Protect Water Quality
As in Anacostia Riverkeeper, a key aspect of the permits at issue in Carroll County was a 20 percent restoration requirement for untreated impervious surfaces. 465 Md. at 199. The purpose of that permit condition was to reduce stormwater pollution discharged into the Chesapeake Bay to protect water
One of the counties argued that the impervious surface restoration requirement exceeded the statutory MEP standard of the Clean Water Act and was therefore unlawful. The county and the Department appeared to agree that this permit condition went beyond the MEP standard. Id. at 213. Thus, one of the issues in Carroll County was whether the terms of an MS4 permit could go beyond the MEP standard in order to satisfy water quality standards.
In its opinion in that case, this Court noted that, in a typical NPDES permit, there would be no question that the Department is to consider water quality standards in designing a permit – in fact, such consideration is required by the Act. Typical point source permits must impose technology-based limitations on discharges as well as “any more stringent limitation ... necessary to meet water quality standards.” Carroll County, 465 Md. at 187 (quoting
The Court also observed that an MS4 permit is not a typical NPDES permit; MS4s differ from “end-of-pipe” point sources and have a different permit standard. Carroll County, 465 Md. at 188-89. Although MS4s are classified as point sources and the EPA chose to regulate MS4s within the framework of the NPDES program, NPDES permits for MS4s are more flexible and implement pollution mitigation programs that serve as surrogates for typical NPDES requirements. Id. at 234-37. Thus, the question in Carroll County was whether this more flexible approach for MS4 permits likewise allowed consideration of water quality standards to set conditions that went beyond the MEP standard.
To answer that question, the Court looked to the text of the statute, the EPA‘s regulations, and prior case law considering the issue. The Court concluded that a permit could include conditions beyond the MEP standard to satisfy the water quality standards established for the Chesapeake Bay and its tributaries.
The Court first turned to the text of the statute. Under the Clean Water Act, MS4 permits “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.” Carroll County, 465 Md. at 215, quoting
include permit conditions in addition to the MEP baseline in order to satisfy water quality standards. Id. at 217.15
Observing
The Court concluded that the Department, in developing the permits at issue in Carroll County, had “acted consistently with the EPA‘s interpretation of [the Act] — that is, that the Act authorizes permitting agencies to include water quality based effluent limitations in MS4 permits without reference to the MEP standard.” Carroll County, 465 Md. at 224. The Court further reasoned that the EPA‘s interpretation was a reasonable construction and deserved deference. Id. Accordingly, the Court held “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.” Id.16 The Court also rejected the county‘s argument that, even if permissible under the Act, the impervious surface restoration requirement was arbitrary and capricious. Id. at 224-27.
2. The Geographic Scope of an MS4 Permit Condition
Another key issue in Carroll County involved the geographic scope of an MS4 permit. Both counties argued that, regardless of whether a permit could implement requirements based on water quality, the scope of the regulatory conditions in a permit was necessarily limited to the specific discharges authorized by the permit. Carroll County, 465 Md. at 229. In their view, reference to a county-wide baseline of untreated impervious surface area for calculation of the 20 percent restoration requirement “effectively ma[de] the Counties responsible for pollutants carried by stormwater that does not flow into their MS4s.” Id.
Moreover, the Court found that nothing in the text of the Clean Water Act explicitly mandated that these “best practices” occur within the geographic area of the MS4 system. Rather, the Act allowed permits to be issued on a “system-wide” or “jurisdiction-wide” basis.
Nevertheless, the counties argued that the Department‘s use of a county‘s total impervious surface area as a baseline for the 20 percent restoration requirement exceeded the agency‘s authority under the Clean Water Act. Carroll County, 465 Md. at 231. According to the counties, an MS4 permit condition could only use a baseline that related directly to discharges of pollutants from the MS4 itself. Id. at 232-33.
The Court found that such an argument undermined the permitting agency‘s authority to protect water quality. MS4 permits, like typical NPDES permits, may account for nonpoint source pollution via protection of water quality standards. While a typical NPDES permit accounts for nonpoint source pollution by increasing the stringency of effluent limitations, no such effluent limitation is possible for MS4 discharges. Carroll County, 465 Md. at 234, 236 n.66. Instead, the Court noted, MS4 permits impose pollution mitigation programs, such as an impervious surface restoration requirement, as a proxy for a more stringent effluent limitation. Id. at 234.
3. Summary
In sum, pertinent to this case, the Court held: (1) an MS4 permit may include conditions that go beyond the MEP standard in order to satisfy water quality standards, and (2) such permit conditions may reference areas beyond the boundaries of the MS4 system.17
IV
The Present Case
This case involves a challenge by Queen Anne‘s County to the terms of the general
A. The Department Adopts a General Permit for Small MS4s in Maryland
1. Process for Adoption of the General Permit
After the EPA had adopted the initial version of its Phase II regulations for MS4 permits, the Department issued its first general permit for Phase II MS4s, including small MS4s, in 2003. Among other things, that general permit required implementation of the six minimum control measures specified in the EPA regulations. See Maryland Department of the Environment, Fact Sheet (December 2016). Although that general permit had a five-year term, it was administratively extended beyond 2008 by the Department while the EPA Phase II regulations were litigated and ultimately remanded to the EPA for revision. See Part II.B and footnote 10 of this opinion. In 2016, the EPA issued its revised regulations for small MS4s, and the Department moved forward to develop a new general permit for small MS4s.
During mid-2016, the Department consulted with the EPA concerning its draft general permit for small MS4s in light of the EPA‘s amended regulations and revised the draft in response to the EPA‘s comments. In December 2016, the Department notified the operators of 35 small MS4s in Maryland — six counties and 29 municipalities — of its tentative determination to issue a new general permit for certain small MS4s. Among those MS4 operators was Queen Anne‘s County.18 Relevant to this appeal, the proposed general permit included a condition that an operator of an MS4 had to restore 20 percent of the total untreated impervious surface area within the urbanized area of the MS4 jurisdiction.
The Department held a public hearing on the tentative determination on February 6, 2017, at which the County‘s Director of Public Works testified. In addition, the County submitted written comments by the March 30, 2017 deadline set by the Department, and also joined in comments made by the Maryland Association of Counties and other organizations. Pertinent to this appeal, the County argued that calculation of the 20 percent impervious surface restoration requirement should be based only on acreage in the urbanized area served by the MS4, but that “mitigation efforts . . . throughout the County . . . be considered toward meeting the goals of the permit.” The County also joined similar comments made by organizations representing counties and municipalities, arguing that “permittees should be given the flexibility to conduct [impervious surface] restoration anywhere in their geographic area” to limit costs without sacrificing clean water benefits. See Joint Comments of Maryland Association of Counties, Maryland Municipal League, and Maryland Stormwater Association (March 30, 2017) at 6.
2. Terms and Conditions of the General Permit
Parts I and II of the Small MS4 General Permit describe the scope of the permit and certain procedural requirements for an MS4 owner or operator to obtain coverage under the permit. Small MS4 General Permit at 1-2.
Part III of the permit states generally that owners and operators of MS4s covered by the permit must implement programs for controlling stormwater discharges in compliance with the Clean Water Act and related regulations. Small MS4 General Permit at 3.
The bulk of the permit‘s substantive requirements appear in Part IV and Part V of the permit. The permit provides that compliance with these two Parts satisfies the EPA‘s MS4 permit standard, i.e., reduction of the discharge of pollutants to the maximum extent practicable and protection of water quality standards. Small MS4 General Permit at 3.
Part IV provides details concerning implementation of the six minimum control measures, as developed and required by the EPA in its regulations. Small MS4 General Permit at 3-11.
Part V sets out the obligations of a permittee as to impervious surfaces. That Part states that the impervious surface restoration requirement is intended to make progress toward achieving pollutant reductions specified in Maryland‘s Watershed Implementation Plan (“WIP“). Small MS4 General Permit at 11. In contrast to a similar requirement in permits for medium and large MS4s, Part V of the permit requires small MS4 permittees to identify untreated impervious surfaces only within the urbanized area, not the entire jurisdiction. Id. at B-10; see also Basis for Final Determination at 14 (explaining that the Department tailored the baseline calculation to urbanized areas in response to comments received during the comment period). Of those surfaces, the permittee identifies those that have little or no existing stormwater management (e.g., street sweeping, storm drain cleaning, land cover conversion). See Maryland Department of the Environment, Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated (August 2014) (“Accounting Guidance“) at 4. Of this untreated impervious surface area, a county must develop and implement stormwater management for 20 percent of those untreated
Part VI of the permit details recordkeeping and reporting requirements for purposes of assessing compliance with the permit conditions. Small MS4 General Permit at 15-16. Part VII of the permit contains miscellaneous standard permit conditions and sets forth, among other things, the potential penalties for violation of the permit under the Clean Water Act, as well as under various provisions of the Environment Article of the Maryland Code. Id. at 16-20.
B. The County Seeks Judicial Review of the General Permit
On May 25, 2018, pursuant to
The County pursued an appeal of that decision in the Court of Special Appeals. In a reported opinion authored by Judge Glenn T. Harrell, Jr., the Court of Special Appeals largely affirmed the decision of the Circuit Court. Maryland Small MS4 Coalition v. Maryland Department of the Environment, 250 Md. App. 388, 434 (2021). However, the intermediate appellate court remanded the case to the Department to allow the County to provide additional comments with respect to certain aspects of the Department‘s tentative determination.20 Id.
The County filed a timely petition for a writ of certiorari, which we granted. The County raises two issues:
(1) Whether the impervious surface restoration requirement in the permit unlawfully makes the County responsible for discharges by third parties and nonpoint source runoff;
(2) Whether the minimum control measures included in the permit unlawfully impose
With respect to both issues, the County argues that this Court should reconsider its holdings in Carroll County.
V
Standard of Review
A. Judicial Review of Administrative Action
As with other instances of judicial review of a final action of an administrative agency, this Court reviews directly the final determination made by the Department on the permit, not the intervening decisions of the Circuit Court and Court of Special Appeals. Carroll County, 465 Md. at 201. However, “[t]hat does not necessarily mean that we need cast aside the work of our colleagues on the intermediate appellate court.” Sturdivant v. DHMH, 436 Md. 584, 587-88 (2014).
In this context, the standard of review applied by a court to the Department‘s determination, and the corresponding level of deference to the Department, varies depending on whether the court is reviewing fact findings, discretionary decisions, or legal conclusions.
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; Carroll County, 465 Md. at 201-02.
Matters Committed to Agency 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. This standard is highly contextual, but generally the question is whether the agency exercised its discretion “unreasonably or without a rational basis.” Carroll County, 465 Md. at 202 (citations omitted). 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. Id.
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. Id. 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. Carroll County, 465 Md. at 202-06.
B. The Doctrine of Stare Decisis
The issues presented for decision in this case are closely related to those decided in the Anacostia Riverkeeper and Carroll County cases. The doctrine of stare decisis — a Latin phrase meaning “to stand by things decided” — is inevitably an important consideration in our decision. That doctrine “encourages the consistent development of legal principles, public reliance on our judicial decisions, and the perceived integrity of the courts.” State v. Stachowski, 440 Md. 504, 520 (2014). Aside from two “extremely narrow” exceptions, the Court does not disturb the holdings of prior decisions. DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 63 (2010). Those exceptions are when a prior
Although the doctrine of stare decisis is not absolute, the Court is particularly “reluctant to depart from the principle of stare decisis” in those “areas of the law [where] people do plan and arrange their affairs for the future in reliance upon this Court‘s prior rulings.” Austin v. City of Baltimore, 286 Md. 51, 68 (1979) (Eldridge, J., concurring). Decisions concerning a complex administrative scheme fall into this category. See People v. Mendoza, 23 Cal. 4th 896, 924 (2000) (“A key consideration in determining the role of stare decisis is whether the decision being reconsidered has become a basic part of a complex and comprehensive statutory scheme, or is simply a specific, narrow ruling that may be overruled without affecting such a statutory scheme.“); see generally Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 Geo. L.J. 2225, 2244 (1997).
VI
Discussion
The County presents the same questions, slightly rephrased, that were previously answered in the Carroll County decision. The County‘s arguments boil down to two fundamental issues: (1) whether a permit condition may reference an area beyond the scope of the permittee‘s MS4 system, and (2) whether permit conditions may exceed the MEP standard. Both of those questions were answered in Carroll County and application of the holdings in that case to this one is relatively straightforward. Unsurprisingly, the County requests that the Carroll County decision be revisited.
We address first whether there is a basis for deviating from the doctrine of stare decisis. Concluding that there is not, we then apply the holdings of that case to the questions before us.
A. Application of the Doctrine of Stare Decisis
As indicated above, the Court generally will overrule a prior decision only when that decision was “clearly wrong” or when there has been a “significant change in the law or facts” since the prior decision was issued.
1. Whether Carroll County was “Clearly Wrong”
The holdings in Carroll County that the Department may include permit conditions beyond the MEP standard and allocate nonpoint source pollution to MS4 permits to protect water quality were not “clearly wrong.” As the decision in Carroll County elaborated, those conclusions are supported by the plain text of the statute, by the EPA‘s formally articulated interpretation of the Act as well as regulations adopted under the Act, and by the extant federal case law. Carroll County, 465 Md. at 210-24. With all of these sources supporting the Department‘s view that it may consider water quality standards in devising conditions for an MS4 permit, one cannot say that Carroll County was “clearly wrong.”
The County, however, contends that the holding in Carroll County concerning the role of the MEP standard was “contrary to plain language of the statute,” citing a dissent in Carroll County. While we respectfully acknowledge there often can be multiple interpretations of a statutory text, we do not disturb this Court‘s original
Aside from pointing to the dissent in Carroll County, the County asserts that the decision in that case was inconsistent with the decision in Anacostia Riverkeeper. However, in Carroll County, the Court explained how this argument mischaracterizes the Anacostia Riverkeeper decision:
[T]he holding in Anacostia Riverkeeper 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 Riverkeeper did — that the permit term is valid and authorized by the Act.
465 Md. at 213 n.41; see also Part III of this opinion.
The two decisions are thus quite consistent. In response to challenges from environmental groups, the Anacostia Riverkeeper decision concluded that the permit conditions in question satisfied the baseline MEP standard. In response to a converse challenge from permittees, the Carroll County decision concluded that the Act authorizes permit conditions beyond the MEP standard for the purpose of satisfying water quality standards. Together, the two decisions stand for the proposition that MS4 permit conditions must meet the MEP standard, but may do more to protect the water quality of a waterway. These two holdings are not in conflict with one another.
2. Whether There has been a “Significant Change” of Circumstances
The County argues that, subsequent to the Carroll County decision, “significant actions by the EPA and the Department” amount to a change in the law or facts that counsel against application of the principle of stare decisis.
With respect to the EPA, the County points to settlement agreements that the EPA entered into with two states in December 2020 that resolved ongoing litigation and resulted in permit modifications. An agency and a regulated party may decide to settle a case for a variety of reasons — saving the time and resources that would be devoted to litigation, obtaining an expeditious result, and avoiding the risk of an adverse precedent. It would be inappropriate to infer a significant change in the EPA‘s interpretation of the Clean Water Act simply from its decision to settle two cases shortly before a change in federal administrations.
In any event, whatever potential change in a policy that may be gleaned from the tea leaves of a settlement agreement,21
Finally, the County argues that the Department “appears to have embraced the MEP standard” in the Phase III Watershed Implementation Plan. However, according to the Department, the County “mistakenly draws that conclusion” and ignores the Department‘s actions “making clear that restoration to the MEP standard is not the hard regulatory ‘cap’ that the County makes it out to be.” Contrary to what the County suggests, the Department has not changed its interpretation of the Act to deviate from that of the EPA in a way that amounts to a change in the law or facts since the Carroll County decision was issued.
We next turn to the two issues raised by the County and the application of the decision in Carroll County to those issues.
B. The Geographic Scope of an MS4 Permit Condition
The County asserts that the impervious surface restoration condition and the “good housekeeping” provision — one of the “minimum control measures” required by the EPA regulations — of the Maryland Small MS4 General Permit have “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.” This argument is essentially the same as that made by the counties in Carroll County.
While the County concedes that this case involves “an ostensibly similar question [to that] in Carroll County,” it nonetheless argues that the baseline for the restoration area (the urbanized area) impermissibly extends beyond the MS4 watershed and, as a result, assigns pollution from nonpoint sources and third parties to the County.22 The County thus objects to the assignment of nonpoint source pollutant reductions to point sources to satisfy water quality standards. This reprises an argument made by the counties in Carroll County. But, as explained in Carroll County, “nonpoint source pollution reduction may be assigned to point sources” to protect water quality standards. Carroll County, 465 Md. at 235-37. Just as “[t]he Department did not exceed its authority under the Clean Water Act when it directed calculation of the impervious surface using a county-wide baseline,” id. at 238, it did not do so here in using a more limited baseline — the urbanized area of the County.
As with the medium MS4 permits in Carroll County, nothing in the Small MS4
As a matter of both principle and practice, the County apparently does not oppose a permit condition that credits a permittee for measures taken outside the geographic bounds of the MS4. In its comments to the Department concerning the draft general permit, the County noted that “[m]itigation and restoration practices throughout the County will result in improved water quality in the Bay and tributaries” and urged that mitigation efforts “throughout the County” be counted toward meeting the 20 percent restoration requirement. Moreover, it urged that the Department allow “nutrient trading,” also known as “water quality trading” — a process by which a permittee may receive credit for pollution reductions made by others23 — as part of the County‘s compliance with permit conditions. The Department adopted both of these recommendations in the final version of the Small MS4 General Permit. Under the permit, the County will receive credit for the restoration efforts undertaken anywhere within the County. See Basis for Final Determination at 13-14. The permit also allows for water quality trading pursuant to regulations adopted by the Department. Id. at 18, 25; Small MS4 General Permit at 11;
In practice, it appears that the County has already taken advantage of the flexibility afforded by the permit condition and has reported that it is well on its way to satisfying the impervious surface restoration requirement. It has calculated the 20 percent restoration condition applicable to the County to be 190 acres (0.30 square miles).24 See Queen Anne‘s County, MS4 Comments at 3 (March 30, 2017) (“Queen Anne‘s County Comments“). Thus, to satisfy the impervious surface restoration condition under Part V of the Small MS4 General Permit, the County must implement restoration management practices equivalent to 0.30 square miles of impervious surface restoration, which may include practices such as mechanical street sweeping, reforestation, impervious surface replacement, storm drain vacuuming, septic pumping, and more. See Accounting Guidance at 4. Under the permit, the location of the resulting restoration efforts is within the County‘s discretion and may occur anywhere within the County. The County has reported that it has a project underway
The County also argues that its small MS4 was not assigned any wasteload allocation for nonpoint source pollution in the Chesapeake Bay TMDL, and thus it cannot now take on responsibility for additional pollution to protect water quality. First, the County‘s argument mischaracterizes the 2010 Chesapeake Bay TMDL. None of the Bay TMDL allocations was specific to a jurisdiction; instead, each is assigned to a segment of
impaired waters.26 When preparing the Phase I WIP that the EPA relied on in developing the Bay TMDL, the Department organized each segment‘s pollution loads by county and by source sector, including urban stormwater runoff in Queen Anne‘s County.27 The Department further divided the loads into regulated and non-regulated sources, the latter of which included the County‘s stormwater, as it was not yet an MS4 permittee. The Phase I WIP thus assigned load allocations to the County, because the County had stormwater-related impairments but was not yet an MS4 permittee. It is simply incorrect to say that the County was not included in the pollution allocation planning process under the Bay TMDL.Moreover, the fundamental question is not whether the permit conditions are necessary to achieve the TMDL, but rather whether they are necessary to protect the water quality of the Chesapeake Bay. The former is merely a tool to achieve the latter. The ultimate question is whether conditions included in permits for point sources may take account of nonpoint source pollution when necessary to achieve water quality standards. The short answer is given in the EPA‘s regulations, which require all MS4 permits to include “[m]ore stringent terms and conditions ... based on an approved total maximum daily load (TMDL) or equivalent analysis, or where the Director determines such terms and conditions are needed to protect water quality.”
As Judge Harrell aptly summarized this issue for the Court of Special Appeals:
[T]he impervious surface restoration requirement in the general permit, like that in Carroll County, is an authorized water quality based effluent limitation that represents a valid reallocation of pollutant loads from nonpoint sources to point sources and that implements a stormwater wasteload allocation in the Bay TMDL. Accordingly, ... the Department did not exceed its authority under the Clean Water Act when it directed calculation of the impervious surface to be restored based on the total impervious surface within the urbanized area of the County that has little or no stormwater management.
250 Md. App. at 425-26 (footnote omitted).
The County also takes issue with the “good housekeeping” provision of the permit — one of the six minimum control measures required by the EPA‘s regulations — which requires the County to provide training to its employees on how to mitigate and report spills of pollutants on County-owned property that contribute to the nonpoint source pollution of the Chesapeake Bay. Small MS4 General Permit at 9-10. The County argues that this provision is unlawful because it requires the County to take preventative measures beyond the MS4‘s service area. As the Court held in Carroll County, “nonpoint source pollution reduction may be assigned to point sources” to protect water quality standards. Carroll County, 465 Md. at 235-37. Requiring the County‘s employees to be trained on how to avoid pollutant spills throughout the County is a proxy for allocating nonpoint source pollution to the MS4 point source. This “good housekeeping” provision is required by EPA regulations that refer to “municipal operations” broadly, without any restriction to operations solely within an MS4 service area. See
Finally, the County argues that the Small MS4 General Permit allocates pollution of other point sources to the County, whereas Carroll County only stood for the proposition that nonpoint source pollution may be allocated to the County through the MS4 permit. This is simply not the case. When the Small MS4 General Permit refers to impervious surfaces not on property owned by the County, it is only for the purposes of calculating a baseline measurement for computing the 20 percent restoration condition. It does not somehow make the County liable for third-party point source discharges. As indicated above, the County has discretion where and how to accomplish the required restoration. The Court upheld the use of such a method as a rational metric for a permit condition in Carroll County. 465 Md. at 235. As noted above, the impervious surface restoration requirement imposes less of an obligation on the County in this case than it did in Carroll County. Any legal responsibility for third-party point source discharges remains with the third-party, not the County.28
Nor do the minimum control measure conditions in the permit make the County responsible for third-party point source discharges. The “good housekeeping” provision requires training of the County‘s employees to mitigate and prevent pollutant spills and discharges on County property that would eventually be washed away and add to nonpoint source pollution entering the Bay.
In a variation on the general argument that the MEP standard should be regarded as a cap on conditions in an MS4 permit, the County asserts that minimum control measures set forth in Part IV of the Small MS4 General Permit unlawfully exceed the MEP standard. These minimum control measures — such as mapmaking, annual screening, and “good housekeeping” — are required by the EPA‘s regulations and exist to satisfy the MEP standard.29
These minimum control measures do not exceed MEP, but rather satisfy it. In reviewing the Small MS4 General Permit, the Court of Special Appeals analyzed in detail the minimum control measures in the permit, as well as the public comments concerning the measures and the Department‘s responses to those comments, and concluded that the administrative record supported the conclusion that those measures did not exceed the MEP standard. 250 Md. App. at 427-34.30 We adopt that analysis as our own.
The County has not provided an example of how, if at all, the General Permit‘s minimum control measures might exceed the federal regulatory minimum. In any event, to the extent those measures could be said to exceed the MEP standard, that would be permissible under the Act and EPA regulations to protect water quality standards. See
VII
Conclusion
It is a privilege to live near the Chesapeake Bay. As State law acknowledges in many ways,31 there is in turn a responsibility to protect it. We have no doubt that the County, no less than the Department and the EPA, hopes to protect a body of water that lies at the heart of our State, our culture, and our economy. Fifty years ago, Congress sought to make the waters of the United States, including the Bay, fishable and swimmable, and established the NPDES permitting program under the Act to further that fundamental goal. That program assigns a key role to MS4 permittees like the County and permitting agencies like the Department under a scheme of cooperative federalism. We hold that, consistent with this Court‘s decision in Carroll County, the Department‘s Small MS4 General Permit is a lawful effort to implement the program created by the Clean Water Act.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONERS.
Circuit Court for Queen Anne‘s County
Case No. C-17-CV-18-000162
Argued: December 7, 2021
IN THE COURT OF APPEALS OF MARYLAND
No. 25
September Term, 2021
MARYLAND SMALL MS4 COALITION, ET AL.
v.
MARYLAND DEPARTMENT OF THE ENVIRONMENT
*Getty, C.J.,
*McDonald
Watts
Hotten
Booth
Biran
Adkins, Sally D. (Senior Judge, Specially Assigned),
JJ.
Concurring Opinion by McDonald, J., which Hotten and Adkins, JJ., join
Filed: June 1, 2022
*Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to
I agree with the result and rationale of the Majority Opinion. I write separately to acknowledge the elephant in the room. The Small MS4 General Permit bears two numbers, one State and one federal, in recognition of the fact that the Department issued it pursuant to the substantive permitting authority that Maryland law grants to the Department — an authority quite apart from the Department‘s designation as a permitting authority under the federal Clean Water Act. The language and legislative history of the Clean Water Act are clear that Congress intended that statute both to set a minimum standard and to preserve the States’ authority to do more. And the language and legislative history of the Maryland statutes are equally clear that the General Assembly likewise regarded the federal law as the minimum
The issue of the Department‘s permitting authority with respect to MS4s is before this Court for the third time in the last six years and may appear again in the future.1 A consideration of how the County‘s arguments fare under State law is perhaps overdue and may be useful for the future.
I
Stormwater Control and Federalism
Prior to 1972, water pollution control was left primarily to the states. See S. Rep. No. 92-414 (1971) at 1 (“Federal legislation in the field of water pollution control has been keyed primarily to an important principle of public policy: The States shall lead the national effort to prevent, control and abate water pollution.“).
When Congress enacted the Clean Water Act in 1972, it established a cooperative federal-state division of enforcement authority, assigning primary regulation of point sources to the Environmental Protection Agency (“EPA“), or the designated permitting authorities, and leaving regulation of nonpoint sources primarily to the states. In that Act, “Congress primarily focused its regulation ... on point sources, which tended to be more notorious and more easily targeted, in part because nonpoint sources were far more numerous and more technologically difficult to regulate.” Oregon Natural Desert Ass‘n v. U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir. 2008) (citing S. Rep. No. 92-414 (1971) at 39). Congress was careful to preserve the authority of the states, especially as to nonpoint sources.
Federal law still leaves to the states the primary responsibility of regulating nonpoint source pollution. The Supreme Court has recognized that as to “nonpoint source pollution, Congress intended to leave substantial responsibility and autonomy to the States.” County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1471 (2020). The Court explained, “Over many decades, and with federal encouragement, the States have developed methods of regulating nonpoint source pollution through water quality standards, and otherwise.” Id. (citing nonpoint source reports from California,
This federal-state balance remains true in the MS4 permitting context.2 The only relevant limit imposed by the Clean Water Act on state law is that states “may not adopt or enforce” a standard that is “less stringent” than the Clean Water Act.
In a number of cases, the Supreme Court has debated the outer boundaries of a federal regulator‘s authority under the Clean Water Act. In those opinions, federalism concerns run strong. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng‘rs, 531 U.S. 159, 174 (2001) (rejecting the federal agency‘s interpretation of the Act‘s phrase “navigable waters” so as “to avoid the significant constitutional and federalism questions“); Rapanos v. United States, 547 U.S. 715, 737 (2006) (plurality opinion) (suggesting that federal agency‘s expansive interpretation of “navigable waters” would bring “virtually all ‘plan[ning of] the development and use of land and water resources’ by the States under federal control“); County of Maui, 140 S. Ct. at 1471 (2020) (doubting “Congress intended to give EPA the authority to apply the word ‘from’ in the Act in a way that could interfere as seriously with states’ traditional regulatory authority — authority the Act preserves and promotes — as the Ninth Circuit‘s ‘fairly traceable’ test would.“).
The concern in these Clean Water Act cases was whether a federal agency had tread too far on traditional state authority. But the present case is not just about the authority of a federal agency; it is also about the authority of a State agency under Maryland law.
II
Maryland Law Authorizing Small MS4 Permits
As the Majority Per Curiam Opinion indicates, State law authorizes the Department to regulate the State‘s waters and to execute its duties as the designated NPDES permitting authority for Maryland.
(a) The Department may adopt rules and regulations that set, for the waters of this State, water quality standards and effluent standards. These standards shall be designed to protect:
(1) The public health, safety, and welfare;
(2) Present and future use of the waters of this State for public water supply;
(3) The propagation of aquatic life and wildlife;
(4) Recreational use of the waters of this State; and
(5) Agricultural, industrial, and other legitimate uses of the waters of this State.* * *
(c) Effluent standards set under this section shall be at least as stringent as those specified by the National Pollutant Discharge Elimination System.
The [Water Resources] Administration [of the Department of Natural Resources] may set water quality and effluent standards. — The Administration may set water quality and effluent standards applicable to the waters of the State or portions of it. The standards shall protect public health, safety, and welfare and the present and future use of the waters for public water supply, the propagation of fish and other aquatic life and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses. All standards may be amended from time to time by the administration and shall include but not be limited to:
. . .
(2) Effluent standards specifying the maximum loading or concentrations and the physical, thermal, chemical, biological, and radioactive properties of wastes which may be discharged into the waters; standards shall be at least as stringent as those specified by the national pollutant discharge elimination system;
Other provisions in Title 9 of the Environment Article reinforce the Department‘s authority to enact more stringent permit standards. See
The County argues that the State statute should not be construed according to its plain meaning — a meaning also contemplated by Congress in the Clean Water Act — because, in its view, the Department would then have “boundless” authority and the “sky [is] the limit.” However, this view ignores the context of the statute and the constraints on the Department‘s actions under it.
First, the statutory scheme requires that, when the Department adopts regulations concerning the control of water pollution, it shall consider, among other things, “[t]he technical feasibility of measuring or reducing the particular type of water pollution.”
Second, the Department‘s actions are bound by rules of administrative procedure and standards of judicial review. The Department must follow the steps set forth in
Finally, the Clean Water Act and Title 9 of the Environment Article are not the Department‘s only source of authority to regulate stormwater. The State has long regulated stormwater. See, e.g., Chapter 682, Laws of Maryland 1982, enacting stormwater management law now codified at
III
Conclusion
In sum, as is apparent on the face of the permit, the Department issued the Small MS4 General Permit under the authority delegated to the Department under two separate and distinct laws: the Clean Water Act and Maryland‘s more stringent stormwater permitting law. Maryland law expressly allows the Department to include permit conditions more stringent than the minimum federal standards, and the Clean Water Act explicitly recognizes the State‘s authority to do so. The question of whether federal law also allows the Department to include permit conditions that are “beyond the MEP standard” — as the EPA believes and has incorporated in its regulations — may well be an academic one in the context of a permit issued by the Department under Maryland law.
Judge Hotten and Judge Adkins advise that they join this opinion.
Circuit Court for Queen Anne‘s County
Case No. C-17-CV-18-000162
Argued: December 7, 2021
IN THE COURT OF APPEALS OF MARYLAND
No. 25
September Term, 2021
MARYLAND SMALL MS4 COALITION, ET AL.
v.
MARYLAND DEPARTMENT OF THE ENVIRONMENT
*Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Adkins, Sally D. (Senior Judge, Specially Assigned),
JJ.
Concurring Opinion by Watts, J., which Getty, C.J., and Booth, J., join.
Filed: June 1, 2022
*Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to
Respectfully, I do not join the per curiam opinion in this case and write separately to set forth my reasons for concurring in the judgment of this Court, affirming the decision of the Court of Special Appeals.
Less than three years ago, in Md. Dep‘t of the Env‘t v. Cty. Commissioners of Carroll Cty., 465 Md. 169, 224, 214 A.3d 61, 94 (2019), cert. denied, ___ U.S. ___, 140 S. Ct. 1265 (2020), this Court held that, under the Clean Water Act, the Maryland Department of the Environment (“the MDE“) could include requirements in a discharge permit for a municipal separate storm sewer system (“MS4“) without referring to the “maximum extent practicable” standard set forth in
The dissent concluded that the EPA‘s interpretation of
This case involves two issues—namely, whether, in a discharge permit for an MS4, the MDE unlawfully imposed requirements that exceeded the “maximum extent practicable” standard and whether, in the discharge permit, the MDE made Queen Anne‘s County (“the County“) responsible for discharges from third parties and nonpoint source pollution. If we were writing on a blank slate, I would agree with the County, adopt the conclusions set forth above from my dissent in Carroll County, and hold that it was unlawful for the MDE to impose requirements that exceeded the “maximum extent practicable” standard and made the County responsible for discharges from third parties and nonpoint source pollution.
This Court is not, however, writing on a blank slate. As a result, the majority opinion in Carroll County is entitled to be upheld under the doctrine of stare decisis. Under the doctrine of stare decisis, case law of this Court may be overruled under only two circumstances—namely, where an opinion was clearly wrong and contrary to established principles, or where the opinion has been superseded by significant changes in the law or the facts. See State v. Frazier, 469 Md. 627, 652, 231 A.3d 482, 497 (2020).
Neither of these circumstances exists in this instance. The County proposes that this Court overrule Carroll County and issue a new holding consistent with the views expressed in the dissents. In making the request, the County relies on the circumstance that the EPA and the MDE
In my view, the information relied on by the County—the existence of the EPA settlements and the MDE‘s alleged change of position—is not sufficient to support a determination that the majority opinion in Carroll County is not entitled to be upheld under the principle of stare decisis. Contending that a dissent was correct is not a sufficient ground for overruling a majority opinion of this Court. See DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 69, 5 A.3d 45, 59 (2010). From my perspective, the actions attributed to the EPA and the MDE do not demonstrate that significant changes in the facts or law have superseded our reasoning in Carroll County. Nor do the agencies’ alleged actions demonstrate that the majority opinion was clearly wrong or contrary to established principles. The settlements in the EPA cases represent, at most, perhaps a change in the policy of the agency. The agency‘s policy may just as easily be changed back to the way it was when we issued the majority opinion in Carroll County. There does not appear to be any post-Carroll County reported opinion from any court that has reached a result at odds with this Court‘s holding in the case. In the less-than-three-year period since we issued the majority opinion in Carroll County, no new case law indicating that the decision was clearly wrong has arisen. In my view, to satisfy an exception to the doctrine of stare decisis and overrule the Court‘s holding in Carroll County, more is needed than a purported change of policy by the EPA in administering the Clean Water Act, particularly where if such a change has occurred, it may be only temporary and the MDE denies that such a change has happened.
To be sure, I continue to disagree with the substance of the majority opinion in Carroll County. The notion that our State law supplies an independent basis for upholding the General Permit, separate from its validity under the Clean Water Act, is a hypothesis with no real basis in fact. On brief in this case, as to State law, the MDE argued, without reference or citation to any COMAR regulation, that Maryland law authorizes it to “set pollution-control standards that are at least as stringent as those specified by the National Pollutant Discharge Elimination System.” (Citing
The County pointed out that the MDE “fails to mention that the Code section that gives the Secretary of the Environment the authority to issue CWA permits does not include the power to exceed federal requirements[.]” The County stated that
This Court‘s holding in Carroll County was based on an interpretation of the Clean Water Act and perhaps for the reasons discussed in the dissenting opinions, there will come a point in the future that the opinion will be overruled. At this juncture, though, as expressed in my concurring opinion in Leidig, “I think that we should adhere to the principle of stare decisis in determining whether to make such a change and not sacrifice the integrity of our caselaw that the principle of stare decisis fosters.” Leidig v. State, 475 Md. 181, 260, 256 A.3d 870, 918-19 (2021) (Watts, J., concurring). In this case, for the reasons expressed herein, I am compelled to agree with the affirmance of the judgment of the Court of Special Appeals.
Chief Judge Getty and Judge Booth have authorized me to state that they join in this opinion.
Respectfully, I do not join the per curiam opinion and write separately to express my reasons for concurring in the judgment only. I agree with the per curiam opinion that the holdings in this Court‘s decision in Maryland Department of the Environment v. County Commissions of Carroll County, 465 Md. 169 (2019), cert. denied, 140 S. Ct. 1265 (2020) (”Carroll County“) govern this case. For this reason, I agree that the judgment of the Court of Special Appeals must be affirmed.
As more fully discussed in the per curiam opinion, stare decisis means “to stand by the thing decided and is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Meyer v. State, 445 Md. 648, 669 (2015) (quoting State v. Waine, 444 Md. 692, 699-700 (2015)) (internal quotations omitted). In State v. Stachowski, 440 Md. 504, 520 (2014), we reiterated that “[t]he crux of the doctrine of stare decisis is that courts should reaffirm, follow, and apply ordinarily the published decisional holdings of our appellate courts even though, if afforded a blank slate, the court might decide the matter differently.” (Citations omitted).
We depart from precedent only in two instances. First, where the decision is “clearly wrong and contrary to established principles,” and second, when “there is a showing that the precedent has been superseded by significant changes in the law or facts.” DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 64 (2010). While I may agree with the legal analysis expressed by the dissent in Carroll County, a mere disagreement with the majority is not a sufficient reason to overrule precedent. In other words, although I may feel that the Carroll County decision was wrong, I cannot say that it was clearly wrong and contrary to established principles—a high standard for any litigant to satisfy to convince us to overturn precedent. Nor has the decision been superseded by significant changes in the law. Adherence to this Latin phrase is not some outmoded vestige of the common law that has lost its relevance—stare decisis remains a bedrock of the American judicial system. The public must have confidence that our precedent will not be overturned based upon the individual views of any one judge, or that our jurisprudence will be decided in a ping-pong fashion as the composition of the Court changes.
Judge McDonald‘s concurring opinion raises an interesting issue concerning the State‘s authority to adopt rules and regulations that are more stringent than the regulations promulgated by the Environmental Protection Agency (“EPA“). That issue received little discussion or briefing before this Court. Indeed, in its brief, the State devoted but a single sentence to the notion that Maryland law authorizes the Department to set pollution control standards that are “at least as stringent as those specified by the National Pollutant Discharge System.” (Citing
Chief Judge Getty and Judge Watts have authorized me to state that they join this opinion.
Notes
250 Md. App. at 433-34.[T]he Department‘s response to concerns that the good housekeeping provisions were beyond MEP addressed satisfactorily those concerns. The County does not argue otherwise, nor does it assert any other reason why the provisions are beyond MEP. Moreover, the requirements in the general permit appear to be consistent with the guidance provided in the regulation regarding the activities, schedules, and procedures that permit conditions should address. Accordingly, ... the Department did not act unreasonably or without a rational basis in exercising its discretionary authority, pursuant to [federal regulations] to identify the minimum elements of a pollution prevention and good housekeeping program for property owned or operated by permittees.