Para v. 1691 Ltd. Partnership

HOTTEN, J. This appeal involves the issuance of á permit by appellee, the Maryland Department of the Environment (“MDE” or “the Department”), to appellee, 1691 Limited Partnership (“1691”), for the construction of a “big-box” retail center on freshwater nontidal wetlands in Crofton, Anne Arundel Coun ³⁴¹ ty, Maryland. 1 1691 is a Maryland limited partnership, in the business of land development, that owns parcels of land in and around Crofton, Anne Arundel County, Maryland. As discussed in more detail, infra, both federal and State law maintain comprehensive programs for the “conservation, regulation, enhancement, creation, monitoring, and wise use of nontidal wetlands.” Md.Code (1996, 2007 RepLVol.), § 5-903(a) of the Environmental Article. As a consequence, appellants, Drew Para, et al., challenged MDE’s initial recommendation to issue 1691 a construction permit and argued that 1691 had neither presented substantial evidence of public need nor ruled out all other practicable alternative designs and locations for its proposed retail center. Subsequent to MDE’s initial recommendation, a contested case hearing was held before an Administrative Law Judge (“ALJ”) with the Office of Administrative Hearings (“OAH”).

The contested case hearing was held over six days in September and October of 2009. On December 30, 2009, the ALJ issued a detailed Proposed Decision and Order upholding MDE’s issuance of the construction permit, with certain modifications. Appellants filed exceptions to the ALJ’s recommendations and, after a hearing before the Final Decision Maker for MDE (“FDM”), MDE issued its Final Decision and Order on June 29, 2010, denying all of appellants’ exceptions and affirming the ALJ’s proposed decision. Appellants subsequently filed a petition for judicial review before the circuit court, 2 which ³⁴² further denied appellants’ exceptions and affirmed the FDM’s decision to issue a construction permit to appellees.

Appellants noted an appeal to this Court, and presented seven questions for our review. 3 We have consolidated, rephrased, and reordered these questions, to the extent properly before this Court, as follows: 1. Whether the record lacked substantial evidence to support the FDM’s decision that no practicable alternative existed for 1691’s proposed development? 2. Whether the FDM erred in approving 1691’s wetland’s mitigation plan where 1691 traded land to the County rather than donating the land to the county when the wetland’s ³⁴³ mitigation project stated that 1691 would donate the land to the County? 4 For the reasons that follow, we shall affirm the judgment of the circuit court. L STATUTORY BACKGROUND In 1972, the United States Congress enacted the federal Clean Water Act (“CWA”) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 83 U.S.C. § 1251 (a) (2008).

As part of this enactment, Congress noted that nontidal wetlands are a crucial natural resource that assist in the purification of the Nation’s open waters and additionally “provide habitat[s] for many plants and animals.” See Richard H. McNeer, Now,tidal Wetlands Protection Maryland and Virginia, 51 Md. L.Rev. 105, 106. Thus, protection of these wetlands, as important wildlife refuges, is a legitimate purpose for which the CWA was intended, United States v. Akers, 785 F.2d 814 (1986); and, as a consequence, “[t]he federal scheme, laid out in the [CWA], requires a developer to obtain a permit from the United States Army Corps of Engineers before filling wetland areas.” McNeer, supra, 51 Md. L.Rev. at 106 (citing the Federal ³⁴⁴ Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat., 816, as amended by the Clean Water Act of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (codified as amended at 33 U.S.C. §§ 1251-1376 (2008)) (footnote omitted)). In addition, the CWA’s 1977 amendments provide for an environmentally based program that delegates to state governments an option of permitting authority for discharges of dredging or fill material into the navigable waters and wetlands of the United States within that state’s jurisdiction. 33 U.S.C. § 1344 (g). In response, Maryland’s General Assembly enacted the Maryland Nontidal Wetlands Protection Act (“the Act”), Md. Code (1996, 2007 Repl.Vol.), §§ 5-901 through 5-911 of the Environmental Article, “[for] the purpose of establishing a statewide program for the conservation, enhancement, and regulation of nontidal wetlands in [the] State.” S.B. 481, 399th Sess.

(Md.1989). See also Md.Code (1996, 2007 Repl. Vol.), § 5-902(a) of the Environmental Article (noting that nontidal wetlands play an important role in the preservation and protection of the Chesapeake Bay and other waters of the State). Cf Md.Code (1996, 2007 Repl.Vol.), § 16-102 et seq., of the Environmental Article (outlining Maryland’s purpose in protecting wetlands through the State generally).

Since its enactment, the goal of the Act remains to prevent “overall loss in nontidal wetlands acreage and function and to strive for a net resource gain in nontidal wetlands over present conditions.” Md.Code (1996, 2007 RepLVol.), § 5-902(b) of the Environmental Article. 5 The Act requires that persons who wish to conduct certain regulated activities within the nontidal wetlands apply for a MDE permit to lawfully engage in the regulated activity. Md.Code (1996, 2007 RepLVol.), § 5-906(b)(1) of the Environmental Article. Section 5—901(j)(l) of the Environmental Article classifies regulated activities as the following: ³⁴⁵ (i) The removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind; (ii) The changing of existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics; (iii) The disturbance of the water level or water table by drainage, impoundment, or other means; (iv) The dumping, discharging of material, or filling with material, including the driving of piles and placing of obstructions; (v) The grading or removal of material that would alter existing topography; and (vi) The destruction or removal of plant life that would alter the character of a nontidal wetland. Md.Code (1996, 2007 RepLVoL), § 5-901(j)(l) of the Environmental Article.

In general, however, MDE “may not issue a nontidal wetland permit for a regulated activity unless the Department finds that the applicant has demonstrated that the regulated activity” meets four criteria. Md.Code (1996, 2007 RepLVoL), § 5-907(a) el seq. of the Environmental Article. In order for the regulated activities to be permissible, they must either be “water dependent” or independent of water with no “practicable alternatives.” Id. § 5-907(a)(l). 6 Further, the proposed regulated activity must “minimize alteration or impairment of ³⁴⁶ the nontidal wetland, including existing topography, vegetation, fish and wildlife resources, and hydrological conditions.” Id. § 5-907(a)(2). It must not “cause or contribute to a degradation of groundwaters or surface waters.” Id. § 5-907(a)(3).

Lastly, the proposed regulated activity must be consistent with “any comprehensive management plan that may be developed in accordance” with MDE’s watershed management plans addressing nontidal wetland protection, creation, and restoration. Id. § 5—907(a)(4); Md.Code (1996, 2007 Repl.Vol.), § 5-908 of the Environmental Article. In sum, Subtitle 5 of the Environmental Article demonstrates the legislature’s efforts at balancing two important State interests. First, the General Assembly recognized the importance in protecting the Chesapeake Bay as one of the world’s great estuaries that plentifully supplies blue crabs, clams, and oysters in its waters, in part, through the preservation of Maryland’s nontidal wetlands.

See Md. Bd. Pub. Works v. Hovnanian’s Four Seasons at Kent Island, LLC (“Hovnanian III”), 425 Md. 482, 486 , 42 A.3d 40 (2012); Foley v. Hovnanian at Kent Island, LLC (“Hovnanian II ”), 410 Md. 128, 132 , 978 A.2d 222 (2009). Second, the General Assembly acknowledged the importance of continued land development for regulated industries and population growth.

It is through this lens that we now review the facts of the case at bar.

II

FACTUAL AND PROCEDURAL HISTORY (A) 1691’s Application to MDE. On January 28, 2002, 1691 filed a permit application for construction in freshwater nontidal wetlands on property it ³⁴⁷ owns in the unincorporated area of Crofton, Anne Arundel County, Maryland (hereinafter referenced as “the property”). The property is approximately seventeen to twenty acres and fronts along the west side of Maryland Route 3. The nontidal wetlands within the property are primarily the result of past sand and gravel mining activity.

Notwithstanding the nontidal wetlands on the property, it is zoned C-3 under the Anne Arundel County Code and designated for general commercial development. See Anne Arundel Cnty., Md., Code § 18-2-105 (2005). 7 Among the many permitted uses of a C-3 designated property is the development of business complexes, commercial recreational facilities, conference centers, schools, and department stores. Anne Arundel Cnty., Md., Code § 18-5-102 (2005) (outlining a comprehensive list of all permitted, conditional, special exception, and business complex auxiliary uses for C-3 zoned properties). 1691’s application identified the proposed regulated activity as the development of a “big box” retail store greater than 130,000 square feet “with [an] associated parking lot and drives on the site of a former sand and gravel pit.” According to 1691, the development required the “filling of [nontidal] wetlands[, removing vegetation, and building structures] to bring the site up to a grade height that will accommodate traffic from adjacent [Maryland Route] 3 and provide adequate area for the proposed development.” Moreover, 1691’s application provided an alternative site analysis, explaining that alternative sites were rejected because they had failed to meet the project’s purpose and maintained engineering and design constraints. Further, the application asserted that any alternative site would lead to greater wetlands impact. 1691 additionally explained that several building layouts and designs had been considered and rejected due to site access and safety or because they would have greater impacts on the nontidal wetlands. ³⁴⁸ MDE notified 1691 that the Department required additional information.

Particularly, MDE requested that 1691 provide “a plan view showing the limits of the 100-year floodplain and the areas of the floodplain that w[ould] be impacted by the development of the site,” and an approximate amount of fill that would be placed within that floodplain. In addition, MDE requested that 1691 provide “[a] detailed avoidance and minimization analysis,” and a specific “alternative sites analysis[.]” 1691 complied and provided MDE a site plan illustrating the limits of the 100-year floodplain and its potential impacts. 1691 explained that the proposed development was located and designed to avoid and reduce impacts “as much as reasonably practical.” 1691 additionally noted that the configuration and size of the wetlands did not permit total avoidance if demands of County parking codes and traffic safety were to be satisfied. As a consequence, 1691 provided a series of methods that it used to avoid and minimize impacts to regulated areas: 1. The proposed size of the retail store footprint on the site has been reduced in order to reduce parking requirements, improve traffic flow, and reduce the total amount of impervious surface[.] 2.

The configurations of the wetland and floodplain boundaries allow for more development on this site than is proposed, however, service drives and access areas have been reduced to the minimum that will allow safe and reasonable access to the building[.] 3. Retaining walls and other construction methods have been incorporated into the design of the project in order to avoid and minimize impacts to regulated areas while producing sufficient buildable area[.] 4. The [development] has been swept around the upland side of the floodplain limits rather than closely following the limits, providing a buffer between the floodplain and the edge of the development in many places. 5. Design and placement of stormwater control devices will help minimize hydrological impacts on the on-site (non-swamp) wetlands. ³⁴⁹ 1691 also submitted a copy of the Crofton Small Area Plan (“CSAP”) and argued that the site plan formed with the CSAP.

Further, 1691 asserted that it was “striving” to conform with the goals within the CSAP by “dedicating acreage to the [ JCommunity for a ‘passive’ park” to preserve “environmental features” and by constructing a development that “provides for the service and business needs of’ Crofton. 1691 additionally indicated that the minimal acreage designated for commercial zoning by CSAP provided for few alternatives, regardless of tract size. On August 21, 2002, MDE acknowledged that the property’s wetland configurations made it exceptionally difficult to develop without any adverse impact. Nonetheless, MDE requested detailed information regarding alternative designs and reasons why those designs had been rejected. Expressing some doubt, MDE added that although the CSAP indicates the property “is the appropriate area for the expansion of commercial development, it does not require a ‘big box’ retail design.” Therefore, MDE ordered 1691 to examine additional locations “where the projected purpose can be accomplished.” On October 11, 2002, 1691 provided a detailed alternative site and design analysis that ultimately concluded that other designs would lead to greater impact to the wetlands.

As a consequence, 1691 argued that its preferred property remained the only practicable location for the geographic market, Satisfied with 1691’s response regarding avoidance, minimization, mitigation, and stormwater management proposals, MDE notified 1691 that its application was complete. MDE did, however, request clarification regarding the minimum and maximum sizes of a “big box” store and the maximum number of parking spaces required for such a store. In addition, MDE inquired whether the wetlands and buffers on the south side of the property could be preserved with a smaller retail facility. While MDE awaited 1691’s answer, it gave public notice of the application and opportunity to submit written comments or request a public informational hearing.

No comments were ³⁵⁰ filed and no request for a hearing was submitted to MDE based upon the public notice. On January 24, 2003,1691 submitted a memorandum outlining its responses. 1691 indicated that the maximum size of a “big box” facility was in the range of 150,000 to 175,000 square feet. 1691 assured MDE, however, that its three years of research demonstrated that the smallest acceptable facility was approximately 142,000 square feet. 1691 further informed MDE that, after considering both county requirements and the facility’s requirements, that 786 parking spaces were needed. 1691 assured MDE that it had rejected requests for additional parking spaces because it was committed to minimizing environmental impacts to the nontidal wetlands on the property. Regarding MDE’s third question, 1691 insisted that the wetlands’ confirmation did permit for avoidance beyond the proposed plan “given parking, traffic flow, site access, and safety requirements.” Thus, 1691 rejected alternative designs and smaller configurations as a result of demographics in the Crofton area. In light of 1691’s answers to MDE’s questions, and given the lack of comments or requests for a public hearing during the public notice period, MDE approved 1691’s Nontidal Wetlands and Waterways Permit on April 15, 2003.

MDE did note, however, that its decision was subject to authorization from the United States Army Corps of Engineers. (B) The Public Attention and Controversy. Following MDE’s decision, 1691 announced Wal-Mart as the prospective end-user for the development. Suddenly, the degree of public interest increased significantly, prompting MDE to provide an additional comment period in the fall of 2006, staying the permit’s issuance.

In addition, a public hearing was held on November 13, 2006. Based on the comments received, MDE requested that 1691 address five additional questions. First, MDE addressed inconsistencies between the alleged and actual impacts the development would have on the 100-year floodplain. There ³⁵¹ fore, MDE required 1691 to resolve its concerns by submitting an amended floodplain study providing the actual amount of fill required.

Second, MDE required that 1691 submit full-sized stormwater management (“SWM”) plans and to address the discovery of two additional stormwater discharge structures outside the proposed limit of disturbance to the nontidal wetlands. Third, MDE requested that 1691 provide complete sediment and erosion control plans for the property. Fourth, 1691 was asked to provide copies of the wetland delineation sheets and soil borings for the entire property. Lastly, MDE required 1691 to provide additional details regarding 1691’s avoidance and minimization of impacts to the property.

Both Wal-Mart and 1691 responded to MDE’s requests. Wal-Mart alleged that it had made extensive efforts to minimize the impact of the project by reducing the overall footprint of the building by twenty-five percent, reducing the paved area by fifteen percent, and reducing the fill proposed for the property’s floodplain and nontidal wetlands to twenty-five percent. As a result, the footprint of the store would be “only slightly larger” than a two-story design created for an urban environment. Wal-Mart further explained that even if the two-story design reduced the size of the store’s footprint, “a significant parking field would still be required under the requirements of the Anne Arundel County Code.” Therefore, “only negligible reduction in wetlands impact would result.” An identical explanation was offered for the tiered parking.

Wal-Mart also noted that even after reducing the building footprint, traffic flow requirements of the State Highway Administration “restrict! ] any benefits otherwise attributable to the use of a slightly smaller footprint.” Thus, it concluded that any impact reduction would be minimal to non-existent, providing “negligible benefits” at higher costs of construction. 1691 argued that the fill volumes and environmental impacts were recalculated based on the most current SWM and sediment and erosion control plans. These plans, it asserted, were compliant with industry standards. To illustrate the argument, it enclosed a copy of the SWM plans for the entire project. 1691 noted that the increased wetland and floodplain ³⁵² impacts from the outfall designs discharged the stormwater directly into the river. Lastly, 1691 explained that impacts to cranberry on the property were unavoidable.

Following MDE’s review of these materials, MDE issued 1691 its permit on January 28, 2009. Two days later, on January 30, 2009, the Department issued notice of the permit, attaching an explanation of its decision. Within its explanation, MDE noted that the proposed “big box” retail operation satisfied the intent of the CSAP by “allowing Crofton residents to save time, fuel and money, without duplicating existing services or displacing local businesses.” Regarding 1691’s alternative’s analysis, MDE acknowledged that 1691 had considered other properties in the market area too small to accommodate a “big box” store. Additionally, it noted that the other sites had no access to public utility service, were not proximate to existing roads, and were unavailable to purchase.

As a consequence, MDE concluded that the alternative site analysis was sufficient and proceeded with an explanation of 1691’s proposed avoidance and minimization of adverse impacts. The Department noted that the wetlands were a byproduct of sand and gravel mining. Further, MDE determined that no rare, threatened, or endangered species existed as “permanent residents on the project site.” The Department acknowledged, however, that native cranberry had been located on the property and was removed subsequently to preserve the species genotype. The removed plants would be used at the Turner Environmental Park and at other restoration sites by Anne Arundel County Public Schools.

As a consequence, MDE determined that preservation of the narrow nontidal wetlands on the property would prohibit adequate use of the property. The department further stated: ... While these wetlands do connect to forested wetlands in the 100-year floodplain of the Little Patuxent River, there is a significant length (500 feet +) between the wetlands to be impacted and the river itself. ³⁵³ ... [0]nce the applicant has a contract purchaser, MDE will require final, engineered construction plans demonstrating that further avoidance and minimization of nontidal wetlands and their 25-foot buffer, and nontidal waterways, including the 100-year nontidal floodplain, are not possible. Therefore, MDE concluded that its findings merited the issuance of the permit.

(C) Appellants’ Challenges to the Permit. On February 13, 2009, appellants, filed a petition for a formal contested hearing regarding MDE’s decision to issue the Nontidal Wetlands and Waterways Permit to 1691. MDE referred appellants’ petition to OAH. Over a period of six days, an ALJ for OAH held a contested case hearing in September and October of 2009.

The parties offered testimony from thirteen witnesses. Nine of the "witnesses were qualified as experts in a variety of areas, including, wetlands ecology, land use and planning, and retail market analysis. The ALJ accepted seventy documents arising out of 1691’s application for a Nontidal Wetlands and Waterways Permit. On December 30, 2009, the ALJ issued a sixty page Proposed Decision and Order, which upheld MDE’s issuance of the construction permit, with certain modifications.

Appellants subsequently filed Exceptions with the OAH. MDE and 1691 filed memoranda in opposition. Thereafter, the parties presented argument to the FDM on June 2, 2010. Following argument, the FDM denied appellants’ exceptions and ordered that the Proposed Decision and Order of the ALJ be affirmed on June 29, 2010.

On July 19, 2010, appellants filed a petition for judicial review of the FDM’s Final Decision with the Circuit Court for Anne Arundel County. Following argument, the circuit court further denied appellants’ exceptions and affirmed the FDM’s decision. Additional facts will be supplied infra as they bear on a discussion of the issues. ³⁵⁴ III. STANDARD OF REVIEW “ ‘On appellate review of a decision of an administrative agency, this Court reviews the agency’s decision, not the circuit court’s decision.’ ” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md.App. 264, 273 , 47 A.3d 1087 (2012) (quoting Halici v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 (2008)).

As with the review of any administrative agency decision, this Court looks to three things: (1) whether the agency’s findings were supported by substantial evidence in the record made before the agency; (2) whether the agency committed any substantial error of procedural or substantive law in the proceeding or in formulating its decision; and (3) whether the agency acted arbitrarily or capriciously in its application of the law to the facts. Hovnanian III, 425 Md. 482, 514 , 42 A.3d 40 (2012). “We review the final decision of the administrative agency in accordance with the well established principles of administrative law.” Neutron Products, Inc. v. Dep’t of Ev’t (“Neutron ”), 166 Md.App. 549, 581-82 , 890 A.2d 858 (2006) (citations omitted). The task of this Court is “not to substitute its judgment for the expertise of those persons who constitute the administrative agency.” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68 , 729 A.2d 376 (1999) (quotation marks omitted). Thus, it is well-settled that the agency may “use its experience, technical competence, and specialized knowledge in the evaluation of evidence.” Md.Code (1984, 2009 Repl.

Vol.), § 10—213(i) of the State Government Article. See Md. Aviation Admin. v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 (2005) (recognizing that we give “considerable weight” to an agency’s “interpretations and applications of statutory regulatory provisions” that are administered by the agency); Oltman v. Md. State Bd. of Physicians, 162 Md.App. 457, 482 , 875 A.2d 200 (2005). “ ‘[I]t is the final order of the administrative agency that is subject to deferential judicial review.’ ” Carriage Hill ³⁵⁵ Cabin John, Inc. v. Md. Health Res. Planning Comm’n, 125 Md.App. 183, 220 , 724 A.2d 745 (1999) (quoting Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 296 , 641 A.2d 899 (1994)) (emphasis added). As a consequence, it is the decision of the FDM that is subject to review before this Court.

Neutron, 166 Md.App. at 582 , 890 A.2d 858 . In that regard, we adhere to this Court’s prior explanation of our review of a final agency decision following the decision of an ALJ: Despite that procedural posture, it remains the agency’s final decision, not the ALJ’s decision, that we review for substantial evidence.... More precisely, this Court’s “ ‘job’ [is] not to assess the ‘rationality’ of or evidentiary basis for the ALJ’s recommendation; it [is] to assess the rationality or evidentiary basis of the agency’s ... final order.” State Comm’n on Human Relations v. Kaydon Ring & Seal, Inc. (“Kaydon ”), 149 Md.App. 666, 692 , 818 A.2d 259 (2003) (citations omitted) (emphasis added), quoted in Neutron, 166 Md.App. at 582 , 890 A.2d 858 . “While the agency itself makes factual findings, and we review the agency’s decision, rather than that of the hearing examiner, the agency is supposed to take into consideration the factual findings made by the ALJ.” Neutron, 166 Md.App. at 582 , 890 A.2d 858 (quoting Kaydon, 149 Md.App. at 693 , 818 A.2d 259 ) (internal quotations omitted). Thus, when the ALJ renders factual findings based on an assessment of credibility, “ ‘the agency should give appropriate deference to the opportunity of the [ALJ] to observe the demeanor of the witnesses,’ and the agency should reject credibility assessments only if it gives ‘strong reasons’ ” Kaydon, 149 Md.App. at 693 , 818 A.2d 259 (citations omitted) (emphasis added).

Therefore, judicial review of the agency’s findings of fact is highly deferential. Id. “In this context, ‘ “[substantial evidence,” as the test for reviewing factual findings of administrative agencies, has been defined as “such ³⁵⁶ relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]” ’ ” Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978)). When an agency’s conclusion of law is based on a legal interpretation of a statute it administers or of its own regulations, the agency is entitled to some deference from the reviewing court. Charles Cnty.

Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 295-96 , 855 A.2d 313 (2004). Nevertheless, in this Court’s determination of legal error, our review of the agency’s legal conclusions are less deferential. Hovnanian III, 425 Md. at 514 , 42 A.3d 40 . “[Previewing courts are under no constraint to affirm an agency decision premised solely upon an erroneous conclusion of law.” Ins.

Comm’r v. Engelman, 345 Md. 402, 411 , 692 A.2d 474 (1997), quoted in Loveman, 349 Md. at 569 , 709 A.2d 749 . See also Spencer v. Board of Pharmacy, 380 Md. 515 , 846 A.2d 341 (2004); Bayly Crossing v. Consumer Protection, 417 Md. 128 , 9 A.3d 4 (2010). Thus, we may reverse an agency’s decision supported by erroneous legal conclusions. Loveman, 349 Md. at 569 , 709 A.2d 749 .

Other agency decisions, however, are mixed questions of law and fact. Thus, “[w]hen the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test, that is, the same standard of review it would apply to an agency factual finding.” Vann, 382 Md. at 296 , 855 A.2d 313 (citations omitted). If substantial evidence exists, “the matter is considered to be fairly debatable and the courts may not substitute their judgment for that of the [agency] which is presumed to exercise a degree of expertise” in reaching conclusions on the matters presented before it. Boehm v. Anne Arundel Cnty., 54 Md.App. 497, 514 , 459 A.2d 590 (1983) (quoting Neuman v. City of Baltimore, 23 Md.App. 13, 14 , 325 A.2d 146 (1974)). ³⁵⁷ IV.

DISCUSSION (A) The FDM’s Decision that No Practicable Alternative Existed. Appellants contend that the FDM erred in conducting the requisite practicable alternative analysis pursuant to Md.Code (1996, 2007 Repl.VoL), § 5-907(b) of the Environmental Article 8 and that the administrative record lacked substantial evidence that no practicable alternative existed for the proposed project for two reasons. First, appellants argue that the FDM erred in ruling that COMAR’s definition of “practicable” authorized 1691 to exclude an alternative design for its project because it would cost more to construct. Thus, appellants insist that “[t]he FDM erred because she interpreted that law to allow 1691 to rule out an alternative [design] solely on the basis of cost.” (emphasis in appellants’ brief).

Second, appellants assert that the record lacked substantial evidence supporting the FDM’s and ALJ’s decisions that a public need existed for the development. As observed briefly in Part I, swpra, Section 5-903 of the Maryland Environmental Article authorizes MDE to enforce a statewide program for “conservation, regulation, enhancement, creation, monitoring, and wise use of nontidal wetlands.” Md. Code (1996, 2007 RepLVol.), § 5-903(a) of the Environmental Article. One such duty delegated to MDE in order to enforce the statewide program is to “[e]valuate proposed activities on nontidal wetlands and grant or deny permits or other approvals of proposed activities.” Id. § 5-903(b)(4). In that regard, MDE’s decision to issue a permit is based on enumerated preconditions provided within Section 5-907 of the Maryland Environmental Article.

Specifically, the statute provides: (a) In general.—The Department may not issue a nontidal wetland permit for a regulated activity unless the Depart ³⁵⁸ ment finds that the applicant has demonstrated that the regulated activity: (1) (i) Is water dependent and requires access to the nontidal wetland as a central element of its basic function; or (ii) Is not water dependent and has no practicable alternative; (2) Will minimize alteration or impairment of the nontidal wetland, including existing topography, vegetation, fish and wildlife resources, and hydrological conditions; (3) Will not cause or contribute to a degradation of groundwaters or surface waters; and (4) Is consistent with any comprehensive management plan that may be developed in accordance with § 5-908 of this subtitle. (b) Practicable alternatives.—The applicant shall demonstrate to the satisfaction of the Department that practicable alternatives have been analyzed and that the regulated activity has no practicable alternative. In evaluating whether the proposed regulated activity has a practicable alternative, the Department shall consider: (1) Whether the basic project purpose cannot be reasonably accomplished utilizing one or more other sites in the same general area that would avoid or result in less adverse impact on nontidal wetlands; (2) Whether a reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs that would result in less adverse impact on the nontidal wetland would not accomplish the basic purpose of the project; (3) In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure, or parcel size, whether the applicant has made reasonable attempts to remove or accommodate these constraints; and (4) The economic value of the proposed regulated activity in meeting a demonstrated public need in the area ³⁵⁹ and the ecological and economic value associated with the nontidal wetland. McLCode (1996, 2007 RepLVol.), § 5-907 of the Environmental Article (emphasis added).

Admittedly, the statute, supra, and its accompanying regulations express a strong preference for wetland protection. See also Md.Code (1996, 2007 Repl.Vol.), § 5-903 of the Environmental Article (“.... The goal of the program shall be to attain no net overall loss in nontidal wetland acreage and function and strive for a net resource gain in nontidal wetlands over present conditions.”); COMAR 26.23.02.01.A (“A person may not conduct a regulated activity in a nontidal wetland, or within a buffer or expanded buffer, unless the Department has issued a permittor letter of exemption.”). “It would hardly be putting the case too strongly to say that the Clean Water Act[, Maryland Nontidal Wetlands Protection Act,] and the applicable regulations do not contemplate that wetlands will be destroyed simply because it is more convenient than not to do so.” Buttrey v. United States, 690 F.2d 1170, 1180 (5th Cir.1982), quoted in Nat’l Wildlife Fed’n v. LTC Whistler, 27 F.3d 1341, 1344 (8th Cir.1994). Therefore, “[f]urther degradation and loses of nontidal wetlands due to human activity [should] be prevented wherever possible[.]” Md.Code (1996, 2007 Repl.Vol.), § 5-902(b)(2) of the Environmental Article.

As a consequence, applicants seeking to conduct regulated activities that are not water dependent must demonstrate that the proposed project within the nontidal wetlands “has no practicable alternative.” Md.Code (1996, 2007 RepLVol.), § 5-907(a)(ii) of the Environmental Article. MDE defines a “practicable” alternative as an alternative that is “available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes.” COMAR 26.23.01.01.B(69). This definition is synonymous with the United States Army Corps of Engineers’ (“Corps”) definition for “practicable alternative.” Compare COMAR 26.23.01.01.B(69) with 40 C.F.R. § 230.10 (a)(2). See also Hillsdale Envtl.

Loss Prevention, Inc. v. U.S. Army ³⁶⁰ Corps of Eng’r, 702 F.3d 1156, 1165 (10th Cir.2012) (quoting the Corps’ definition provided in C.F.R. § 230.10(a)(2)); Sierra Club v. Van Antwerp, 661 F.3d 1147, 1150 (D.C.Cir.2011) (observing the Corps’ definition of practicable alternative); Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’r, 524 F.3d 938, 947 (9th Cir.2008) (noting the Corps’ definition); Sylvester v. U.S. Army Corps of Eng’r, 882 F.2d 407 , 408 (9th Cir.1989); La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044,1047 (5th Cir.1985). The practical alternatives analysis is comprised of two steps.

First, MDE must define the “project[’s] purpose,” or, rather, the “principal reason for conducting all regulated activities and other activities on the project site.” COMAR 26.23.01.01.-B(72). Second, the Department must then consider four sub-factors: (1) whether “the basic project purpose cannot be reasonably accomplished utilizing one or more other sites in the same general area that would avoid or result in less adverse impact on nontidal wetlands[;]” (2) whether “a reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs that would result in less adverse impact on the nontidal wetland would not accomplish the basic purpose of the project[;]” (3) “[i]n cases where the applicant has rejected alternatives to the project as proposed due to the constraints such as inadequate zoning, infrastructure, or parcel size, whether the applicant has made reasonable attempts to remove or accommodate these constraints; and (4) [t]he economic value of the proposed regulated activity in meeting a demonstrated public need in the area and the ecological and economic value associated with the nontidal wetland.” Md.Code (1996, 2007 RepLVol.), § 5-907(b) of the Environmental Article. In the instant case, because appellants are contesting only the design of 1691’s proposed project and whether there was a demonstrated public need for the project, we are under no obligation to further consider Sections 5-907(b)(l) and (3) of the Environmental Article, provided supra. We shall, therefore, address both of appellants’ arguments regarding the ³⁶¹ FDM’s application of Sections 5-907(b)(2) and (4) respectively and conclude that both arguments are without merit. 9 (1) The FDM’s Finding That No Alternative Designs Would Result In Less Adverse Impact On The Nontidal Wetlands While Accomplishing The Project’s Basic Purpose.

A practicable alternative exists when the alternative is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” COMAR 26.23.01.01.B(69). See also 40 C.F.R. § 230.10 (a)(2) (providing the same definition for a harmonious analysis under the CWA). To be sure, where the projected purpose associated with a regulated activity as provided within Section o—901(j)(l) of the Environmental Article is located on nontidal wetlands but does not require access or proximity to water (i.e. is not “water dependent”), practicable alternatives that do not involve nontidal wetlands are presumed to be available unless clearly demonstrated otherwise. See Md.Code (1996, 2007 RepLVoL), §§ 5—907(a)(1)(ii), (2), (3), & 4.

See also 40 C.F.R. § 230.10 (a)(3); York, supra, 761 F.2d at 1047 ; Sylvester, supra, 882 F.2d at 409 (citing La. ³⁶² Wildlife Fed’n, Inc. v. York, 603 F.Supp. 518, 527 (W.D.La.1984), aff 'd in part and vacated in part, 761 F.2d 1044 (5th Cir.1985)). 10 Therefore, the first step in this practicable alternatives analysis is to define the “project purpose,” or, rather, “the principal reason for conducting all regulated activities and other activities on a project site.” COMAR 26.23.01.01.-B(72). Only after the “project purpose” is defined can one objectively determine whether the project is, in fact, water dependent or independent of water. In the instant case, the project purpose, as proposed by the applicant and as additionally accepted by MDE, is the “construction of a ‘big box’ store and its required infrastructure.” Appellants fault the Department for accepting 1691’s definition of “project purpose,” which they contend illegitimately restricted MDE’s ability to require further reductions in wetland impacts. Indeed, had MDE rejected 1691’s proposed project purpose and alternatively defined the purpose more generally as only a non-descriptive, commercial development, as opposed to a “big box store” or “warehouse-type store” for a single tenant, an alternative design may have been built on the site and that may have impacted the wetlands to a lesser degree.

That potentially smaller commercial project, however, would not, as required by Section 5-907(b)(2), accomplish the “basic purpose” of the project as provided by 1691 in its application to the Department. Defining the term “project purpose” begins with the applicant’s purpose. While there is no Maryland case law on point, the United States Courts of Appeal have explicitly observed that, pursuant to the analogous federal wetlands permitting program administered by the Corps, it is not only “permissible for the Corps to consider the applicant’s objective; the Corps has a duty to take into account the objectives of the applicant’s project.” York, 761 F.2d at 1048 . See also Hillsdale Envtl. ³⁶³ Loss Prevention, Inc. v. U.S. Army Corps of Eng'r (“Hills-dale ”), 702 F.3d 1156, 1170 (10th Cir.2012) (citing Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C.Cir.2011)); Butte Envtl.

Council v. U.S. Army Corps of Eng’r, 620 F.3d 936, 946 (9th Cir.2010) (“But ‘the Corps has a duty to consider the applicant’s purpose,’ where, as here, that purpose is ‘genuine and legitimate.’ ”) (quoting Sylvester, supra,, 882 F.2d at 409). Thus, by analogy, “it would be bizarre if the [Department] were to ignore the purpose for which ... [1691 sought] a permit and ... substituted] a purpose it deemed more suitable.” York, 761 F.2d at 1048 (relying, generally, on Hough v. Marsh, 557 F.Supp. 74 (D.Mass.1982)). “Obviously, an applicant cannot define a project in order to preclude the existence of any alternative sites and[,] thus[,] make what is practicable appear impracticable.” Sylvester, 882 F.2d at 409. Rather, “the applicant’s purpose must be ‘legitimate.’” Id. (citing Friends of the Earth v. Hintz, 800 F.2d 822, 833-34 (9th Cir.1986)).

See also Van Antwerp, 661 F.3d at 1153 (“There appears to be little judicial interpretation of th[is] process, but it has yielded one constraint that seems logically necessary: ‘[A]n applicant cannot define a project in order to preclude the existence of any alternative sites.’ ”). “Yet, in determining whether an alternative site [or design] is practicable, the [Department] is not entitled to reject [1691’s] genuine and legitimate conclusion that the type of [design] it wishes to construct is economically advantageous[,]” in compliance with current county planning and zoning, and allows Crofton residents to save time, fuel and money, without duplicating existing services or displacing local businesses. See Sylvester, 882 F.2d at 409. Nonetheless, an alternative site or design does not have to accommodate components of a project that are merely “incidental” to the applicant’s basic purpose. See, e.g., Shoreline Assocs. v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983), aff'd without decision, 725 F.2d 677 (4th Cir.1984).

For example, in Shoreline, the Corps refused to issue a permit to a developer for building a number of waterfront town houses together ³⁶⁴ with a boat storage and launching facility. 555 F.Supp. at 171 . There, the developer contended before the United States District Court for the District of Maryland that, because its project was designed to maintain a park-like atmosphere of the upland areas and because the project is dependent on construction of the boat storage and launch area, the Corps’ proposed alternative site for the town houses was “untenable.” Id. at 179 . The district court upheld the Corps’ denial of the permit, observing that the boat facilities were merely “incidental” to the town house development. Id.

Specifically, the court reasoned: ____ The primary aspect of the proposed project is the construction of a townhouse community, not the construction of a boat storage facility and launch which are incident to it. Shoreline has failed to show, in compliance with the regulations, why it is necessary for the townhouses to be located on the wetlands rather than the uplands, except for its preference to build on the wetlands. Shoreline, 555 F.Supp. at 179 (footnote omitted). As a consequence, the court further concluded that [i]f Shoreline firmly believed that the boat facilities were of primary importance, it could have sought a permit for this activity alone[,] which, presumably, would have required a much reduced impact on the wetlands. [Shoreline’s attached appendices] ... clearly show[ ] that the vast bulk of the filling of 8.2 acres was necessitated by the housing development itself [and not the boat facilities and launch area].

Id. at 179 n. 40. But the facts of Shoreline are inapposite to the case at bar. The record before this Court supports MDE’s conclusion that a “big box” store is a “legitimate” business proposition, See, e.g., Sylvester, 882 F.2d at 409, 11 and not “a pretense for excluding other alternatives or artificially constraining [MDE’s] alternatives analysis.” Great Rivers ³⁶⁵ Habitat Alliance v. U.S. Army Corps of Eng’r, 437 F.Supp.2d 1019,1027 (E.D.Mo.2006). Indeed, MDE had initially demonstrated some skepticism regarding 1691’s design and requested detailed information regarding alternative designs for the property and the reasons why 1691 had rejected those designs.

In that regard, MDE added that “[w]hile the [CSAP] states that the west side of [Maryland Route 3] is the appropriate area for the expansion of commercial development, it does not require a ‘big box’ retail design.” 1691 replied to MDE’s request, providing a detailed alternative site and design analysis, which concluded that other designs and sites would result in more impact to the nontidal wetlands. At the contested case hearing, 1691 presented ample testimony that “big box” stores occupy a specific niche in the retail market and employ a uniform design strategy across the country. Further, 1691 noted that it had made extensive efforts to minimize the impact of the project by reducing the overall footprint of the building by twenty-five percent, reducing the paved area by fifteen percent, and reducing the fill proposed for the property’s floodplain and nontidal wetlands to twenty-five percent. Therefore, the record clearly reflects that MDE did not summarily accept 1691’s proposed basic purpose, but, in fact, engaged in an independent analysis to determine that the project’s purpose was supported by substantial evidence.

As a consequence, we can hardly say that MDE’s determination of the project’s basic purpose was arbitrary aucL capricious. See Sylvester, 882 F.2d at 409-10. Nonetheless, appellants maintain their contention that MDE rendered its final decision in contravention of alleged practicably alternative designs. Specifically, appellants argue that MDE erred by failing to appropriately consider whether “alternative designs [existed] that would result in less adverse impact on the nontidal wetlands [and whether such alternative designs] would ... accomplish the basic purpose of the project,]” see id. § 5—907(b)(2), arguing that the FDM based her decision solely on the cost of alternative designs without considering other important factors in the alternative design ³⁶⁶ calculus.

We conclude, however, that the FDM committed no error in rendering her decision that no practicable alternative design existed. As observed swpra, when addressing whether a practicable alternative exists, MDE must consider “[w]hether a reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs that would result in less adverse impact on the nontidal wetland[s] would not accomplish the basic purpose of the project[.]” Md.Code (1996, 2007 Repl.Vol.), § 5-907(b)(2) of the Environmental Article. Similar to the definition of “basic purpose,” there is no Maryland case law on point that addresses the circumstances under which this Court may confidently observe that MDE reasonably considered and dismissed alternative designs. Therefore, because Maryland’s Nontidal Wetlands Protection Act and accompanying regulations are harmonious—and in some instances mirror—the CWA and its accompanying federal regulations, 12 we turn our attention to the reasoning of the United States Circuit Courts of Appeal to determine whether MDE properly found that no practicable alternative existed for 1691’s proposed project.

In 2008, the United States Court of Appeals for the Ninth Circuit considered whether the Corps adequately considered practicable alternatives to a proposed project’s design in Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’r (“BSC”), 524 F.3d 938, 947 (9th Cir.2008). There, the Alaska Gold Company (“AGC”) had applied for a permit with the Corps for a major gold-mining project near Nome, Alaska, formally known as the Rock Creek Mining Project. Id. at 943 .

Ultimately, AGC’s proposed project would be approved by the Corps through the issuance of a permit. Id. AGC’s proposed project would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering gold ore. BSC, 524 F.3d at 943 .

Once the proposed project was approved and mining ³⁶⁷ would commence, about 15,592,411 cubic yards of fill from the mine would be placed in wetlands totally 346.5 acres. Id. In an effort to prevent the AGC’s potentially damaging effect on Alaskan wetlands, Bering Strait Citizens for Responsible Resource Development with other concerned parties (collectively referenced as “BSC”) sought a temporary restraining order and preliminary injunction before the United States District Court for the District of Alaska, alleging that the Corps had violated the CWA and National Environmental Policy Act (“NEPA”) 13 by granting a permit for the Rock Creek Mine Project. Id.

The District Court ultimately denied BSC’s motion for injunctive relief and dismissal of its suit on summary judgment. Id. On appeal before the Ninth Circuit, BSC argued that the Corps had failed to adequately consider practicable alternative designs and locations AGC’s Rock Creek Mining Project. BSC, 524 F.3d at 947-48 .

Specifically, BSC, in part, asserted “that the Corps failed to consider the option of relocating only the North waste dump at the Rock Creek Mine/Mill site to an upland site.” Id. at 948 . “In support of [BSC’s] claim, [it] cite[d] to the ... rejection of an alternative design that would [have] placed all facilities in uplands and claims that the Corps failed to consider the relocation of some, but not all, of the facilities.” Id. The Ninth Circuit rejected BSC’s contentions and observed that although “[t]he Corps considered and rejected the ‘all uplands’ alternative [design] ... contrary to BSC’s assertion, that was not the only alternative design considered.” Id. Indeed, the appellate court noted that the record reflected that the “Corps considered] ... 24 different design altema ³⁶⁸ tives.” Id. Thus, the court found that “ ‘[w]hile an argument can be made that one of these sites was suitable, it would not be appropriate for [the Court] to overturn the Corps’ contrary finding.’ ” BSC, 524 F.3d at 948 (quoting Hintz, 800 F.2d at 834 ) (addition provided in BSC).

Therefore, the court concluded that the Corps “reasonably reviewed the feasible options and reasonably concluded that the proposed design was the best design alternative.” Id. Much like the Ninth Circuit in BSC, supra, the United States Court of Appeals for the Tenth Circuit more recently addressed similar contentions regarding the Corps consideration of alternate designs in Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’r (“Hillsdale ”), 702 F.3d 1156 (10th Cir.2012). There, several environmental groups (“Hills-dale”) raised concerns regarding the construction of a Burlington Northern Santa Fe rail/truck terminal outside Kansas City, Kansas.

Id. at 1162 . Because the applicant’s preferred site contained streams and wetlands protected under the federal law, the Hillsdale challenged the permitted dredging and filling permits issued by the Corps under the CWA. Id. On appeal before the Tenth Circuit, Hillsdale requested that the court set aside the Corps’ decision to grant the permit “because the Corps inadequately considered alternatives to the selected site under the [CWA]----” Id.

Specifically, Hills- dale argued that the Corps and applicant failed to provide “‘detailed, clear and convincing’ information establishing the eliminated alternatives were not practicable.” Id. at 1168 (quoting Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1186 (10th Cir.2002)). Rejecting Hillsdale’s argument that the Corps had not adequately considered alternative designs and locations by clear and convincing evidence, the appellate court noted that the practicable alternatives analysis “does not require a specific level of detail to rebut the presumption, but only record evidence the agency took a hard look at the proposals and reached a meaningful conclusion based on the evidence.” Hillsdale, 702 F.3d at 1168 (discussing 40 C.F.R. § 230.10 (a)(3)). The court additionally noted that although ³⁶⁹ the Corp’s environmental assessment had not