Maryland Department of the Environment v. Anacostia Riverkeeper

NAZARIAN, J. TABLE OF CONTENTS I. BACKGROUND ....................................157 A. Statutory Background............................159 1. The Clean Water Act and federal permit requirements..............................159 2. The role of the States and Maryland’s permit requirements...........................162 B. The Permit.....................................164 C. The Proceedings.................................166 II. DISCUSSION ......................................169 A. Standard of Review..............................170 B. The Permit Is Subject To § 1342, Not § 1311 .......171 C. The Permit Does Not Comply With State Law Regarding The Permitting Process.............................176 1.

The Permit does not give meaningful opportunity for notice and comment, and eludes judicial review.............................177 a. The Environment Article requires that the public have an opportunity for notice and comment.........................177 b. Specific shortcomings of the Permit.........178 i. The public can’t comment about decisions that have yet to be made.................... 178 ¹⁵⁷ ii.

The Permit is not specific enough..........................180 iii. The Permit overrelies on incorporation by reference.........181 iv. The Permit contains no meaningful deadlines or ways to measure compliance..............183 2. The agency decision to issue the Permit was unsupported by substantial evidence with respect to TMDLs and the twenty percent requirement........................185 a.

The twenty percent requirement...........185 b. The TMDL requirement...................188 This case arises out of protracted litigation over the terms of the stormwater management permit (the “Permit”) that the Maryland Department of the Environment (“the Department”) issued to Montgomery County (the “County”) in 2010. The County and Department appeal the decision of the Circuit Court for Montgomery County remanding the Permit to the Department “for further proceedings to allow the agency to comply with Maryland law, the Clean Water Act, and federal regulations consistent with” the court’s interpretation of the governing law and regulations. We agree that the Permit must be revised, and so we affirm the circuit court’s decision to remand.

Importantly, though, we hold that the Department and the County had the law right: the Permit falls short not for failing to hold the County to State water quality standards, as the challengers urge, 1 but because it did not afford an appropriate opportunity for public notice and comment and because it lacks crucial details that would explain the County’s stormwater management obligations. I. BACKGROUND Stormwater is what the word suggests: water from rain — or other storm events that, as it (overflows into streams and ¹⁵⁸ rivers, picks up and carries large quantities of pollutants that evade Mother Nature’s filtration process. The pollutants can include anything from road detritus — trash, road salts, grease, and other materials from cars — to pesticides, to natural materials, such as fecal bacteria from animal waste. The County collects stormwater through a municipal separate storm sewer system (the County’s is big enough to qualify as an “MS4,” a term we will define later) that covers a nearly-500-square-mile area.

After it falls from the sky, stormwater flows, in higher volumes and at higher speeds, through natural outfalls or through the County’s sewer pipes and wastewater treatment facilities, then into the Middle Potomac and Patux-ent River basins. Everyone agrees that this is bad for the rivers: in its comments during the Permit application process, the Department recognized that interested parties saw storm-water as “the ‘... biggest form of pollution affecting the Anacostia River ... ’ carrying trash and accumulated pollutants and causing flooding in low-lying areas of various watersheds throughout the County.... It becomes fairly easy for all organizations, individuals, and government agencies to agree that urban stormwater is a problem that must be addressed.” And just as everything else in life flows downhill, the pollution (and corresponding degradation of water quality) flows downstream into the waters of the District of Columbia and Prince George’s County, and eventually into the Chesapeake Bay. The Clean Water Act (the “Act”), along with its Maryland counterpart and overlapping layers of regulations, 2 regulates and seeks to limit water pollution from stormwater runoff into municipal sewer systems that discharge into rivers.

This case involves a successful challenge to the terms of the stormwater permit the Department issued to the County in 2010. We begin by discussing the statutory requirements, then walk ¹⁵⁹ through the process the County went through with the Department to obtain the Permit, then summarize the proceedings that culminated in this appeal. A. Statutory Background. 1. The Clean Water Act and federal permit requirements.

The Act was passed in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251 (a). The Act presumptively prohibits the discharge of pollutants, id. § 1251(a)(1), and renders any discharge unlawful, id. § 1311(a), unless the discharging party obtains a permit under the “National Pollutant Discharge Elimination System” (“NPDES”). Id. § 1342(a)(1). As initially drafted, § 1311 limited the amount of pollutants that could enter the water from a particular source.

The Act imposes “effluent limitations” on discharges from any “point source” (a term we will get to momentarily) by requiring the source to use “the best practicable control technology [‘BPT’] currently available.” 33 U.S.C. § 1311 (b)(1)(A)(i). When first enacted, the Act required effluent limitations to be in place by July 1, 1977. Id. § 1311(b)(1)(A). Section 1311 also required compliance with any “more stringent limitation, including those necessary to meet water quality standards ... established pursuant to any State law or regulations.” Id. § 1311(b)(1)(C) (emphasis added); see also Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir.1999) (noting too that “although the BPT requirement takes into account issues of practicability,” the EPA nonetheless requires the level of controls necessary to “implement existing water quality standards” (quoting Rybachek v. EPA, 904 F.2d 1276 , 1289 (9th Cir.1990))).

At its inception, the Act directed its efforts primarily at the most obvious “point source” pollution. The term “point source” was defined within the Act in a technical way that aimed to capture a broad universe of potential pollution sources: ¹⁶⁰ The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C.A. § 1362 (14); see also 40 C.F.R. § 122.2 . The parties don’t dispute that a sewage system like the County’s qualifies as a network of point sources, but that point has not been altogether obvious since the Act came about. The Act did not purport initially to regulate stormwater discharge, and in fact exempted stormwater separate from industrial or commercial activity.

See Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 , 1372 n. 5 (D.C.Cir.1977) (citing 40 C.F.R. § 125.4 (1975)); see also Jeffrey G. Miller, The Supreme Court’s Water Pollution Jurisprudence: Is the Court All Wet?, 24 Va. Envtl. L.J. 125 , 131-32 (2005); The Clean Water Act Handbook at 167 (Mark A. Ryan ed. 2011) (“Storm-water runoff in the early days of the NPDES program was treated as a diffuse source of nonpoint source pollution. This may have seemed logical because most runoff cannot efficiently be controlled using the strict end-of-pipe effluent limitations that are effective in regulating traditional industrial and municipal discharges.” (emphasis added)).

But in 1987, Congress amended the Act to bring stormwater discharge specifically within its reach, and since then storm sewer discharge has been treated as a point source and covered by the NPDES permit requirements. Natural Res. Def. Council v. EPA, 966 F.2d 1292 , 1296 & n. 5 (9th Cir.1992). 3 See ■ 33 U.S.C. ¹⁶¹ § 1342(p)(3)(B); see also Browner, 191 F.3d 1159 .

The amendments applied discharge limitations to MS4 systems that serve a population of 100,000 or more, 4 33 U.S.C. § 1342 (p)(2)(C), (D): Permits for discharges from municipal storm sewers ... (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) (emphasis added). The Act also raises standards for permits where the “effluent limitations [imposed by § 1311] are not stringent enough to implement any water quality standard applicable to such waters.” Id. § 1313(d). A state must establish a total maximum daily load (“TMDL”) for those pollutants that keep it from meeting water quality standards; the TMDL “is the sum of pollutants a body of water can absorb from all point and non-point sources, plus a margin of safety, and still meet water quality standards for its designated uses.” Assateague Coastkeeper v. Maryland Dep’t of the Env., 200 Md.App. 665 , 675 n. 8, 28 A.3d 178 (2011).

So, for example, the EPA has issued a TMDL for the Chesapeake Bay that applies expressly to this Permit, in addition to other local TMDLs. As the Chesapeake Bay Foundation explains it, 5 “Maryland’s ability to comply with the Bay TMDL pollution reduction requirements relies heavily on reducing pollutants from urban storm-water,” and “the ability to track and confirm, progress ” on that reduction “through public participation, monitoring, and ¹⁶² setting and using interim benchmarks is of the utmost importance ” (emphasis added). The “maximum extent practicable” language in § 1342 leaves altogether unclear, though, who deems a measure maximally practicable. And although that concept differs from the prior standard, and relieves municipal systems of the burden to meet specific water quality standards (a burden that still applies to private sources), it leaves open whether MS4s also must comply with the “effluent limitations” (and concomitant BPT standard) in § 1311.

Add to this mix the state environmental regulations we discuss next, and the picture (like the water) becomes murkier. 2. The role of the States and Maryland’s permit requirements. The Act recognizes the “responsibilities and rights” of the various states to respond to System requirements, id. § 1251(b), and the EPA has delegated to Maryland the right to issue permits, see Assateague Coastkeeper, 200 Md.App. at 677 -78 n. 10, 28 A.3d 178 a task that it in turn has delegated to the Department. The Environment Article to the Maryland Code declares pollution to be “a menace to public health and welfare,” and declares the State’s policies regarding water pollution and water quality: (1) To improve, conserve, and manage the quality of the waters of this State; (2) To protect, maintain, and improve thé quality of water for public supplies, propagation of wildlife, fish, and aquatic life, and domestic, agricultural, industrial, recreational, and other legitimate beneficial uses; (3) To provide that no waste is discharged into any waters of this State without first receiving necessary treatment or other corrective action to protect the legitimate beneficial uses of the waters of this State; (4) Through innovative and alternative methods of waste and wastewater treatment, to provide and promote preven ¹⁶³ tion, abatement, and control of new or existing water pollution; and (5) To promote and encourage the use of reclaimed water in order to conserve water supplies, facilitate the indirect recharge of groundwater, and develop an alternative to discharging wastewater effluent to surface waters, thus pursuing the goal of the Clean Water Act to end the discharge of pollutants and meet the nutrient reduction goals of the Chesapeake Bay Agreement.

Md.Code (1996, 2007 Repl.Vol.), § 9~302(b) of the Environment Article (“Envir.”). Like the Act, Maryland law prohibits discharges generally (providing that “a person may not discharge any pollutant into the waters of this State,” id. § 9-322), but allows for a discharge permit to issue from the Department, id. § 9-323, and specifies both what a permit must contain and how it must be obtained: (a) Subject to the provisions of this section, the Department may issue a discharge permit if the Department finds that the discharge meets: (1) All applicable State and federal water quality standards and effluent limitations; and (2) All other requirements of this subtitle. (d) The Department shall give public notice of each application for a discharge permit as required by Title 1, Subtitle 6 of this article, and by making available to the public appropriate documents, permit applications, supporting material, plans, and other relevant information. Id. § 9-324 (emphasis added).

The statute also allows the Department to “adopt rules and regulations that set, for the waters of this State, water quality standards and effluent standards”: (a) 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; ¹⁶⁴ (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. (b) The rules and regulations adopted under this section shall include at least the following: (1) Water quality standards that specify the maximum permissible short term and long term concentrations of pollutants in the water, the minimum permissible concentrations of dissolved oxygen and other desirable matter in the water, and the temperature range for the water. (2) Effluent standards that specify the maximum loading or concentrations and the physical, thermal, chemical, biological, and radioactive properties of wastes that may be discharged into 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. Id. § 9-314 (emphasis added).

This background establishes the simple premise that federal and state laws and regulations limit a county or other governmental entity from letting stormwater runoff go unchecked into our waters, and give that entity the flexibility to devise maximally practicable measures to deal with the problem. Turning that seemingly straightforward anti-pollution premise into real-life permits, however, is a challenging task. B. The Permit. In 1996, the Department issued the County its first municipal separate storm sewerage system (“MS4”) permit, for a five-year term.

The permit reissued in 2001 and at least once after. 6 In 2009, after the renewal application process for the ¹⁶⁵ most recent permit was underway, the Department recognized the need for strict monitoring of stormwater discharge. In its response to comments to the proposed permit, the Department stated that the new Permit would require the County to intensify its efforts, that it would force [the County] to make major strides toward controlling urban runoff better than ever before. New conditions such as ... requiring an additional twenty percent of the County’s impervious area to be restored are major additions. Additionally, a firm commitment for TMDL implementation according to the plan that the County is required to develop within one year of permit issuance is the strongest evidence yet of what MDE believes will move these programs forward toward the ultimate goal of meeting water quality standards.

This response came after public comment on a “tentative determination to issue permit” that the Department had issued in September 2008. The appellees filed timely comments on December 1, 2008, and complained (among other arguments) that the draft permit did not include enforceable language or deadlines, did not link in a meaningful way to water quality standards or TMDLs, did not allow for meaningful public participation or review of the County Stormwater Management Program, and lacked adequate monitoring and reporting requirements. After receiving additional comments from other interested parties, the Department issued a notice of final determination to issue the Permit (the “Notice”) on March 4, 2009 without substantial changes, and it issued the Permit itself on February 16, 2010, for a five-year period that expired on February 15, 2015. 7 ¹⁶⁶ The final Permit specifically required the County to “implement or install best management practices on twenty percent of the impervious surfaces within the County in an effort to restore the pollution reduction functions performed by undeveloped land,” which in turn required the County to submit “a long-term schedule for the completion of detailed assessments of each watershed in the County.” (This requirement comes into play below, we will refer to it from here as the “twenty percent requirement”). The Permit calls for pollution controls that include implementation of “management programs ... designed to control stormwater discharges to the maximum extent practicable.” And the stormwater management program requires that the County, at a minimum, “[cjonduct preventative maintenance” by inspecting “all stormwater management facilities at least on a triennial basis”; “[implement the stormwater management design policies, principles, methods, and practices found in the 2000 Maryland Stormwater Design Manual ” (the “Manual”); and “[m]aintain programmatic and implementation information according to the requirements established as part of [the Department’s] triennial stormwater program review.” C. The Proceedings.

This case began not with the current appeal, but an earlier one. After the Department filed the Notice, Anacostia requested a contested case hearing on March 18, 2009. (At the time, Envir. § l-605(a) allowed for a contested case proceeding.) An administrative law judge (“ALJ”) concluded that Anacostia lacked standing to challenge the Permit because it ¹⁶⁷ had no special interest to protect beyond that of the general public. Anacostia sought judicial review in July 2009 in the Circuit Court for Baltimore County, which later transferred the case to the Circuit Court for Montgomery County.

That court upheld the AL J’s decision, but we reversed, holding that Anacostia did in fact have standing, and we remanded for consideration of the underlying substantive issues. Anacostia Riverkeeper v. Md. Dep’t of the Envir., Sept. Term 2011, No. 2107 (filed January 7, 2013) (“Anacostia I”), slip op. at 22. Round Two took a slightly different path because in 2009, the General Assembly changed the procedures for challenging a permit. Section 1-601 of the Environment Article now allows direct judicial review of agency permitting decisions.

(It also broadens the class of people who can bring such a challenge, and formed part of our basis for reversing the ALJ’s decision in Anacostia I. See Anacostia J, slip op. at 20.) So once we remanded Anacostia I, the circuit court took the case directly and held a hearing on the merits on November 20, 2013 (the “Hearing”). Anacostia argued there that the Permit failed to require compliance with Maryland’s water quality standards or applicable TMDLs, and that by allowing for the specific development of so many implementation plans outside the four corners of the Permit, the Department allowed the Permit to escape meaningful public participation or judicial review. The Department responded that the Permit contained all that it needed in requiring the County “to install best management practices” to restore twenty percent of impervious surfaces and meet certain wasteload allocations. It also argued that the policies and provisions of the Manual and the Maryland Stormwater Management Act of 2007 were properly referenced in the Permit.

The trial judge expressed frustration with the Department’s position at the Hearing, both as to the vagueness of the term “best management practices” and the Permit’s references to so many outside sources. The court ultimately held, both in a ruling from the bench and in a written order two weeks later, ¹⁶⁸ that the Permit had to comply with sections 1311 and 1342 of the Act, along with state law requirements under Envir. § 9-324, and that the Permit fell short of these standards (we omit the paragraph numbering): After reviewing the permit and the administrative record, the Court is unable to understand why [the Department] adopted the terms in the permit, or how those terms meet the requirements of the law. The permit does not state with clarity what the permittees will do, how they are to do it, what standards apply, or how one will measure compliance or noncompliance. The permit lacks ascertainable metrics for meeting water quality standards that can either be met or not met.

The Court finds that it is not sufficient for the permit to require that permittees engage in best management practices and file annual reports on their activities. Manuals and policies that exist outside of the permit change frequently, and do not inform the public or the Court of what the permit specifically requires. While it is allowable for the permit to require best management practices, specific requirements for meeting water quality standards must be stated in the permit. The Court finds that the permit’s requirement to restore 20% of impervious surface is simply too general to show how the permittees will meet water quality standards.

It does not explain what the permittee is to do or how its performance is to be measured. Federal regulations require that the permit include a monitoring program for representative data collection for the term of the permit, including a program to monitor and control pollutants in storm water discharges from sites that are contributing a substantial pollutant loading. 40 C.F.R. § 122.26 (d). The permit requires monitoring in one tributary, and requires the permittees to submit an annual report to MDE regarding all activities under the permit. ¹⁶⁹ The Court finds that these requirements are not sufficient to meet the applicable requirements for monitoring. This timely appeal followed.

II

DISCUSSION This appeal presents one overarching question with numerous sub-questions that make it more complex: is the Permit legal? To answer the broader question, we analyze the Permit’s near-twenty-year history against the statutory and regulatory lattice. And perhaps counterintuitively, we find that the Department’s expertise (which on review of agency decisions so often gives us reason to defer to an agency) and intimacy with the process and available technology may well be the Permit’s undoing. There may be rational reasons for requiring the County to prepare plans after approval and incorporate outside materials into the Permit by reference.

But those reasons are difficult to discern for anyone who did not live deeply in the weeds of negotiating and preparing it, and because many of the Permit’s terms are structured as obligations to develop plans, they are insulated from effective review. We hold first that Congress, by adding § 1342 the 1987 amendments to the Act, intended to treat MS4s differently and regulate them separately from, or in conjunction with, the existing requirements of § 1311. Second, we analyze what exactly the § 1342 “maximum extent practicable” and “best management practices” language requires of a state attempting to enforce environmental laws, and how state environmental regulations pick up on that language. That hardly ends the story, though: although we agree with the Department that Congress relieved it of the more stringent requirement of § 1311, we conclude third that this Permit effectively cuts off public commentary on important components by glossing important requirements and deadlines and incorporating outside sources in a manner that leaves the Permit’s operative terms too difficult to find and know. ¹⁷⁰ A. Standard of Review.

Our review of an agency decision is highly deferential. We look through the decision of the circuit court and use the same standard of review that the circuit court did. Kim v. Maryland State Bd. of Physicians, 423 Md. 523 , 32 A.3d 30 (2011) (citing People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007)). In a case like this, we review the agency decision at two levels: first, to determine whether the record contains substantial evidence to support the agency decision and second, to determine whether the decision is legally correct.

Najafi v. Motor Vehicle Admin., 418 Md. 164, 173 , 12 A.3d 1255 (2011) (citation omitted). For reasons we will explain in Part II.B, we start with the second step — whether the Department was legally correct in its decision to issue the Permit. We are “under no constraints in reversing an administrative decision which is premised solely on an erroneous conclusion of law.” People’s Counsel for Baltimore Cnty. v. Maryland Marine Mfg. Co., 316 Md. 491, 497 , 560 A.2d 32 (1989); see also HNS Dev., LLC v. People’s Counsel for Baltimore Cnty., 425 Md. 436, 449 , 42 A.3d 12 (2012).

A reviewing court should respect “the expertise of an agency in its own field,” Board of Phys. Quality Assur. v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999) (citations omitted), and the Department correctly points out that an agency’s authority “may include a broad power to promulgate legislative-type rules or regulations” to assist in implementing applicable statutes. Christ v. Dep’t of Natural Res., 335 Md. 427, 445 , 644 A.2d 34 (1994). Agencies “ ‘are created in order to perform activities which the Legislature deems desirable and necessary to further the public health, safety, welfare, and morals,’ ” and “ ‘[t]he powers vested in the courts, by statute or inherence, to review administrative decisions does not carry with it the right to substitute its fact-finding process for that of an agency.’ ” Northwest Land Corp. v. Maryland Dep’t of Env., 104 Md.App. 471, 488 , 656 A.2d 804 (1995) (quoting Sec’y of Health & Mental Hygiene v. Crowder, 43 Md.App. 276, 281 , 405 A.2d 279 (1979)). ¹⁷¹ As to the substantial evidence component of our review, Najafi directs a generous level of deference: In applying the substantial evidence test, a reviewing court decides “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record.

A reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence” and to draw inferences from that evidence. Id. at 173 , 12 A.3d 1255 (quoting Maryland Aviation Admin, v. Noland,, 386 Md. 556, 571-72 , 873 A.2d 1145 (2005)). And where an agency is acting within its discretion, we will overturn its decision only where we find that its action is arbitrary and capricious. Md. Board of Phys. v. Elliott, 170 Md.App. 369, 406 , 907 A.2d 321 (2006); see also Md.Code (1984, 2009 Repl.Vol.), § 10-222(h)(3)(vi) of the State Government Article (“S.G.”).

But we owe no deference to an agency whose conclusions have gone unsupported “by competent and substantial evidence, or where the agency draws impermissible or unreasonable inferences and conclusions from undisputed evidence.” Stansbury v. Jones, 372 Md. 172, 184 , 812 A.2d 312 (2002); see also Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395 , 396 A.2d 1080 (1979) (“When reviewing an administrative decision for arbitrariness or capriciousness, a court must first determine whether the question before the agency was fairly debatable,” and if not it is not arbitrary and capricious.). For an issue to be “fairly debatable,” “ ‘the administrative agency overseeing the ... decision must have “substantial evidence” on the record supporting its decision.’ ” Mills v. Godlove, 200 Md. App. 213, 224 , 26 A.3d 1034 (2011) (quoting White v. North, 356 Md. 31, 44 , 736 A.2d 1072 (1999)). B. The Permit Is Subject To § 1342, Not § 1311. At the threshold, the parties dispute which of the various federal and state laws drive the requirements the ¹⁷² Permit must fulfill.

The Department argues that the Act does not require an MS4 to comply with the water quality standards articulated in § 1311 because the 1987 amendments replaced those standards “with the maximum-extent-practicable standard, and replaced numerical effluent limitations with ‘management practices,’ ‘control techniques,’ ‘systems, design and engineering methods,’ and other provisions that the State ‘determines appropriate.’ ” Anacostia argues that the Permit continues to be subject to the technology-based limitations of § 1311 in addition to “any more stringent limitation necessary to assure compliance with water quality standards for the receiving waters.” We disagree, and hold that the Permit is not subject to the technology-based discharge limitations (“TBDLs”) of § 1311(a), but rather to § 1342(p)(3)(B), which in turn requires the County to adhere to the TMDL limits imposed by state law via § 1313(d)(1)(c). When first passed in 1972, the Act regulated big municipal stormwater systems. With the benefit of hindsight, it appears that that approach was not practical for MS4s. We agree with the Department that the 1987 amendments, and § 1342 in particular, imposed different and alternative standards on MS4s, standards that state broader principles rather than prescriptive requirements.

But although § 1342(p)(3)(B) imposed new requirements for MS4s that differed from the technology-based requirements of § 1311, the amendments did not state whether MS4 permits also had to comply with water quality standards under § 1311(b)(1)(C). In 1991, the EPA’s General Counsel interpreted the “MEP” standard to modify the technology-based requirements of § 1311, but he did not believe that the MEP language displaced the general water quality standards imposed by § 1311. See Memorandum from E. Donald Elliott, Ass’t Admin’or & General Counsel, EPA, to Nancy Marvel, Regional Counsel, January 9, 1991, “Compliance with Water Quality Standards in NPDES Permits Issued to Municipal Separate Storm Sewer Systems,” 1991 WL 326640 (the “Elliott Memorandum”) at ². 8 Then, in 1996, the EPA issued a ¹⁷³ Notice outlining an “Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits,” 61 Fed.Reg. 43761-01 (Aug. 26, 1996), in which it likewise approved use of BMPs while leaving room for improvement: The interim permitting approach uses best management practices (BMPs) in first-round storm water permits, and expanded or better-tailored BMPs in subsequent permits, where necessary, to provide for the attainment of water quality standards. In cases where adequate information exists to develop more specific conditions or limitations to meet water quality standards, these conditions or limitations are to be incorporated into storm water permits, as necessary and appropriate.

This interim permitting approach is not intended to affect those storm water permits that already include appropriately derived numeric water quality-based effluent limitations. Id. (emphasis added). Several years later, the United States Court of Appeals for the Ninth Circuit held in Browner that Congress intended § 1342(p)(3)(B) to treat MS4s differently — no longer to require strict compliance with state water-quality standards (as industrial discharges had to comply with under § 1311), but instead to impose the maximum-extent-practicable standard. 191 F.3d at 1165 .

After reviewing the legislative history that culminated in the 1987 amendments, the Ninth Circuit held that § 1342(p)(3) specifically treats industrial discharges differently from municipal discharges, and held the former to the more stringent § 1311 requirements. 191 F.3d at 1165 (“[I]n-dustrial discharges must comply strictly with state water quality standards.”). Municipal discharges, on the other hand, ¹⁷⁴ lacked any such requirement, and Congress instead imposed the MEP requirement in § 1342(p)(3)(B)(iii). As such, the Ninth Circuit held, Congress intended in § 1342 to not require municipal stormwater discharges to comply with § 1311. 191 F.3d at 1165 (“ ‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” (quoting Russello v. United States, 464 U.S. 16, 23 , 104 S.Ct. 296 , 78 L.Ed.2d 17 (1983) (citation and internal quotation marks omitted))). The Court also noted that interpreting § 1342 to include the requirements of § 1311 would render § 1342 superfluous: because the latter is less strict, reading it to include § 1311’s requirements would really just fold it into § 1311, “a result that we prefer to avoid so as to give effect to all provisions that Congress has enacted.” 191 F.3d at 1165 ; see also Koste v. Town of Oxford, 431 Md. 14, 25-26 , 63 A.3d 582 (2013) (“The primary goal of statutory construction is ‘to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision[.]’ In so doing, we look first to the ‘normal, plain meaning of the language of the statute,’ read as a whole so that ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory [.] ” (citations omitted) (emphasis added)).

Other courts have followed suit. See, e.g., Divers’ Env’tal Cons. Org. v. State Water Resources Central Bd., 145 Cal.App.4th 246 , 51 Cal. Rptr.3d 497, 504 (2006) (“In regulating storm water permits the EPA has repeatedly expressed a preference for doing so by way of BMPs, rather than by way of imposing either technology-based or water quality-based numeric limitations” 9 ); NRDC v. New York State Dep’t of Env’tal Cons., 120 A.D.3d 1235 , 994 N.Y.S.2d 125 (2d App.Div.2014) (assessing MEP standard as the appropriate one for municipal discharg ¹⁷⁵ es); Tualatin Riverkeepers v. Oregon Dep’t of Env’tal Quality, 235 Or.App. 132 , 230 P.3d 559 , 564 n. 10 (2010) (citing Defenders of Wildlife with approval and noting the lesser MEP standard in § 1342 that applies to