The article is not a substitute for legal advice.

In 2014, the Maryland Department of the Environment (MDE) issued a new general discharge permit for concentrated animal feeding operations (CAFOs) in Maryland. The 2014 permit was to replace a 2009 permit that was set to expire. This 2014 permit required no effluent monitoring only implementation of best management practices to prevent discharge into waters covered by state law and the Clean Water Act (CWA). The 2014 permit is a zero discharge permit. Food & Water Watch and the Assateague Coastal Trust challenged the permit for not requiring enough monitoring to ensure compliance with the CWA. The Maryland Court of Special Appeals recently upheld the 2014 permit based on substantial evidence to demonstrate MDE had complied with the CWA requirements.

Background

In early 2014, MDE began to prepare for the expiration of the 2009 CAFO permit by developing the 2014 permit to take effect when the 2009 permit expired. MDE was in communication with the Environmental Protection Agency (EPA) informally during the development process and dealt with EPA’s comments. At no point during this informal review process, EPA never mentioned that the 2014 permit would need effluent monitoring. EPA approved the proposed 2014 General Discharge Permit, and MDE began the required public comment period.

During the public comment period, Food & Water Watch and Assateague Coastal Trust filed comments highlighting that the CWA requires NPDES permits to include conditions on collecting data and information. In the view of these two groups, MDE should require more than annually analyzing manure for phosphorous and nitrogen content and every three years collecting soil samples to analyze phosphorous and pH from land application fields. The two groups proposed that MDE should require more regular testing of water for nitrogen, phosphorous, and fecal coliform where wastewater flowed off the CAFO via drain ditches and other locations identified by the nutrient management planner.

In issuing the final permit, MDE rejected these arguments and highlighted its discretion. The CWA provides MDE with the discretion to require monitoring when MDE reasonably determines that monitoring equipment would help carry out the objectives of the CWA.   MDE also maintains authority in the 2014 permit to require additional best management practices when MDE determines additional practices are needed.

Food & Water Watch along with the Assateague Coastal Trust filed a suit against MDE claiming that the 2014 General Discharge Permit for CAFOs did not include chemical, biological, and physical monitoring requirements or effluent monitoring requirements. The circuit court affirmed MDE’s 2014 permit and the two groups filed an appeal with the Court of Special Appeals of Maryland.

Court’s Reasoning

Since this is an appeal involving an administrative agency’s decision, the court will typically defer to the agency’s decision if the agency supported the record with competent and substantial evidence. If the agency did not support a decision with competent and substantial evidence or where the agency draws impermissible or unreasonable inferences and conclusions from the evidence, then a court will remand to the agency for further development.

On appeal, the court rejects the first case Assateague Coastal Trust and Food & Water Watch relies on. In Maryland Dep’t of Env’t v. Anacostia Riverkeeper, the Court of Appeals of Maryland found the stormwater management permit included sufficient biological and physical monitoring. The two groups argue that the 2014 permit failed to included any monitoring of locations where pollutants from CAFOs could be entering bodies of water. This prior decision is focused on stormwater discharges and not a zero discharge permit. For this reason, not being on point, the court rejects this argument and moves on to two federal court decisions involving including monitoring in CWA permits.

Looking at the other decisions the two groups rely on, MDE had approved a zero discharge permit with the 2014 CAFO permit. The first decision, Natural Resource Defense Council, Inc. v. Cnty of Los Angles, the two groups argued stood for the idea that the NPDES permit must require effectively monitored discharges to show permit compliance to be lawful. MDE’s 2014 permit involved no discharges, and if a discharge does happen, the CAFO operator must have implemented the required nutrient management plan and other plans or violate the permit.

The next case, Natural Resource Defense Council, Inc. v. U.S. EPA, the groups argued demonstrated that MDE’s reporting requirements and usage of best management practices were inadequate under the terms of the CWA. The court disagreed with the two groups. This case cited by the two groups demonstrated that best management practices could be used in certain situations to comply with the CWA. The prior case cited CAFOs as one area where best management practices would be appropriate.

When it came to requiring monitoring of discharges by the CAFO operator, the court agreed with the arguments made by MDE. To the court, the 2014 permit was a zero discharge permit and monitoring was not necessary and that implementing best management practices helps ensure zero discharge of waste. When making land applications of manure, the CAFO operator must include the land application in a log book that must be maintained for five years and be made available to MDE for inspection.

The court concludes that based on the administrative record there is substantial evidence to support that MDE’s 2014 permit complied with EPA’s regulations and upheld the circuit court’s ruling.

Why Care?

The 2009 general permit for CAFOs issued by MDE was also upheld by the Court of

Special Appeals of Maryland with many of the same groups challenging that permit as challenged the 2014 permit. The 2014 permit will expire at the end of November 2019. MDE will work on the guidelines for issuing a new general CAFO permit to replace the 2014 permit once it expires.

This recent decision, along with the decision in the 2009 permit challenge, highlights that as long as MDE has substantial evidence to document why MDE made the choices it did with the permit, a court will typically uphold the permit. From this case, MDE worked informally with EPA to develop the 2014 permit to ensure that the permit met requirements in the CWA. Hypothetically, if the 2019 permit is challenged (after developing and issuing), then we might expect a similar outcome if MDE continues to work informally with EPA to ensure the next general CAFO permit meets the CWA requirements.

References

Food & Water Watch v. M.D. Dep’t of Envtl., No. 2602, 2018 WL 2203175 (Md. Ct. Spec. App. May 14, 2018).