No. 19-592
================================================================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------COUNTY COMMISSIONERS OF
CARROLL COUNTY, MARYLAND,
Petitioner,
v.
MARYLAND DEPARTMENT
OF THE ENVIRONMENT,
Respondent.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The Court Of Appeals Of Maryland
-----------------------------------------------------------------BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
-----------------------------------------------------------------BRIAN E. FROSH
Attorney General of Maryland
ADAM D. SNYDER*
KUNLE ADEYEMO
Assistant Attorneys General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
asnyder@oag.state.md.us
(410) 576-6398
Attorneys for Respondent
JANUARY 23, 2020
*Counsel of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTIONS PRESENTED
Under the “cooperative federalism” enshrined in
the Clean Water Act, the states have the “primary”
right and responsibility “to prevent, reduce, and eliminate pollution” within their boundaries and, accordingly, are delegated authority to issue permits under
the Act. Those permits may include state-law conditions that are more stringent than federal law. The
State of Maryland issued a permit to its political subdivision, Carroll County, authorizing stormwater discharges from the County’s municipal separate storm
sewer system. In the permit, the State required the
County to reduce the pollution from its regulated
stormwater discharges by restoring an amount of impervious surfaces equal to 20% of the total such surfaces within the County.
The questions presented are:
1. Where the permit allows the County to carry
out the restoration entirely within the bounds of its
municipal separate storm sewer system, does expressing the amount of restoration as a fraction of the
county-wide total of impervious surface, instead of as
an absolute number, mean that the County is responsible for pollution that occurs outside its permitted system?
2. Did the County receive the judicial review to
which it was entitled when the state court upheld its
designation as a “medium” jurisdiction on the merits,

 ii
QUESTIONS PRESENTED – Continued
by concluding that there was a reasonable basis for
its designation, and on the separate ground that the
County had acquiesced in its status by not previously
objecting, when state law limits judicial review to objections raised before the agency?

 iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..................................

i

TABLE OF AUTHORITIES ...................................

iv

BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI .....................................

1

STATEMENT..........................................................

3

The Clean Water Act ...........................................

3

NPDES Permits ...............................................

3

The Chesapeake Bay TMDL ...........................

5

Maryland Water Pollution-Control Law ............

7

The Carroll County MS4 Permit ........................

8

The State Court Proceedings ..............................

10

REASONS FOR DENYING REVIEW ...................

12

I.

THE 20% RESTORATION REQUIREMENT
IS VALID UNDER FEDERAL AND STATE
LAW .............................................................. 12
A. The 20% Restoration Requirement Does
Not Make the County Legally Responsible for Non-Point-Source Pollution Outside its MS4 System .............................. 12
B. States May Impose Requirements That
Are More Stringent than Federal Law .... 18

II. THE COUNTY’S CLASSIFICATION AS A
MEDIUM PHASE I JURISDICTION HINGES
ON UNIQUE HISTORICAL FACTS AND
PROVISIONS OF MARYLAND LAW ......... 21
CONCLUSION .......................................................

27

 iv
TABLE OF AUTHORITIES
Page
CASES
American Farm Bureau Fed’n v. United States
E.P.A., 792 F.3d 281 (3d Cir. 2015) ................... 17, 24
Bragg v. West Va. Coal Ass’n, 248 F.3d 275 (4th
Cir. 2001) .................................................................18
Defenders of Wildlife v. Browner, 191 F.3d 1159
(9th Cir. 1999)..........................................................18
Heft v. Maryland Racing Comm’n, 323 Md. 257
(1991) .......................................................................25
International Paper Co. v. Ouellette, 479 U.S. 481
(1987) .......................................................................18
Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 (1990) ..........................25
Kent Island Def. League, LLC v. Queen Anne’s
County Bd. of Elections, 145 Md. App. 684 (2002),
cert. denied, 371 Md. 615 (2002) .............................26
Marshall v. Dye, 231 U.S. 250 (1913) ................... 26, 27
Maryland Dep’t of Env’t v. Anacostia Riverkeeper,
447 Md. 88 (2016) .................................. 5, 6, 7, 10, 17
McKart v. United States, 395 U.S. 185 (1969) ............25
Mullaney v. Wilbur, 421 U.S. 684 (1975) ....................19
PUD No. 1 of Jefferson County, 511 U.S. 700
(1994) .......................................................................18
Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, 268 F.3d 255 (4th Cir. 2001) .................3
Rockville v. Randolph, 267 Md. 56 (1972) ..................26

 v
TABLE OF AUTHORITIES—Continued
Page
Smith v. Indiana, 191 U.S. 138 (1903) .......................27
State v. Board of Educ. of Montgomery County,
346 Md. 633 (1997) ..................................................26
Virginia Office for Prot. & Advocacy v. Stewart,
563 U.S. 247 (2011) .................................................26
STATUTES
33 U.S.C. § 1251(b) ......................................................21
33 U.S.C. § 1311(a) ........................................................3
33 U.S.C. § 1313(d)(1)(C) ..............................................5
33 U.S.C. § 1341 ..........................................................18
33 U.S.C. § 1342 ............................................................3
33 U.S.C. § 1342(b) ........................................................3
33 U.S.C. § 1342(p)(2) ...................................................4
33 U.S.C. § 1342(p)(2)(D) ............................................22
33 U.S.C. § 1342(p)(2)(E) ............................................25
33 U.S.C. § 1370(1) ......................................................18
Md. Code Ann., Envir. § 1-601(d)(1) ...........................25
Md. Code Ann., Envir. § 4-103 ....................................20
Md. Code Ann., Envir. § 4-201 (LexisNexis 2007) ........7
Md. Code Ann., Envir. § 4-202 ....................................20
Md. Code Ann., Envir. § 4-201.1(b)...............................7
Md. Code Ann., Envir. § 4-203(b)(1) .............................7
Md. Code Ann., Envir. § 9-253 ....................................19

 vi
TABLE OF AUTHORITIES—Continued
Page
Md. Code Ann., Envir. § 9-314(c) ................................19
Md. Code Ann., Envir. § 9-322 ................................ 8, 20
Md. Code Ann., Envir. § 9-323 ................................ 8, 20
Md. Code Ann., Envir. § 9-324(a)(1) .............................8
REGULATIONS
40 C.F.R. § 122.26(a)(1).................................................4
40 C.F.R. § 122.26(b)(7)(ii) ..........................................24
40 C.F.R. § 122.44(d)(1)...............................................17
40 C.F.R. § 122.44(d)(1)(vii)(B) .....................................5
40 C.F.R. § 123.1(i) ................................................ 18, 19
40 C.F.R. § 130.2(h) .......................................................5
40 C.F.R. § 130.2(i) ......................................................15
40 C.F.R. Pt. 122 .........................................................24
Code of Md. Reg. 26.08.04.02A(1)(d) ..........................20
27 Md. Reg. 1167 (June 16, 2000) ................................7
27 Md. Reg. 1168 (June 16, 2000) ................................7
OTHER AUTHORITIES
2015 NPDES MS4 Permit Annual Report (Dec. 29,
2015), available at https://www.carrollcountymd.
gov/media/10621/2015-annual-report.pdf ..............14

 1
BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
At its heart, this case is a dispute between two
subdivisions of the State of Maryland over how best
to allocate the burden of cleaning up the Chesapeake
Bay. Petitioner, the governing body of Carroll County,
Maryland, objects to two aspects of the municipal separate storm sewer system (“MS4”) permit issued to
the County by respondent, the Maryland Department
of the Environment. The County contends that these
two features of the permit demand too much of the
County, both legally and financially.
The County’s first objection, to the permit’s 20%
restoration requirement, is based on a mistaken view
of how that requirement operates. Pet. 14. Requiring
the County to restore an amount of impervious surfaces equal to 20% of the impervious surfaces within
the County does not make the County “legally responsible” for pollution that is discharged outside its MS4
system. The 20% figure simply establishes the amount
of pollution reduction that the County must achieve in
order to address the pollution from its system and contribute to the State’s efforts to achieve the ambitious
goals of the “Bay TMDL”—the federally required pollution “diet” for the Chesapeake Bay. The County is free
to achieve that pollution reduction wherever it likes,
whether entirely within the limits of its MS4 system
or, as the County chose to do here, by restoring lands
elsewhere within its jurisdiction. The restoration requirement does not require the County to do anything
outside its MS4 system or otherwise make the County

 2
“legally responsible” for discharges that might occur
there.
The County’s second objection is to its classification as a “medium” jurisdiction and the way in which
the Maryland court resolved that objection, which the
petition portrays as a wholesale failure to provide an
“opportunity for judicial review.” Pet. 20. The County
assures the Court that it is “not necessary to reconstruct history” to resolve this second objection, and understandably so, as that history shows that the County
accepted its status as a medium jurisdiction when it
received its first permit in 1995, accepted it again in
renewals of its medium MS4 permit in 2000 and 2005,
affirmatively conceded its medium status in a 2014
federal consent decree resolving violations of its MS4
permit, and failed to raise the issue in the permit proceeding before the agency below, despite a State law
requirement that it do so to preserve the issue for appeal. The Court of Appeals decided the classification issue in light of that factual history and concluded that
the County had acquiesced in its classification as a medium jurisdiction and, on the merits, that there is a
“reasonable basis” for the classification, based on the
County’s population and on the State’s residual authority to designate jurisdictions as “medium” based on
their contribution to water quality impairment.
Neither of the County’s objections raises a nationwide issue worthy of the Court’s review. The Clean Water Act is an example of cooperative federalism, under
which states are free to enact pollution-control measures
that are more stringent than federal requirements and

 3
tailored to suit their particular needs. How a Maryland
court resolves the questions presented here will have
no bearing on how other state courts resolve them
based on their own state laws and will have no precedential effect even on issues of federal law. That jurisprudential fact, combined with the unique historical
facts that underlie much of the Maryland court’s decision, limit the guidance that this Court’s review could
provide.
------------------------------------------------------------------

STATEMENT
The Clean Water Act
NPDES Permits
The federal Clean Water Act prohibits the discharge
of pollutants without a National Pollutant Discharge
Elimination System or “NPDES” permit. 33 U.S.C.
§§ 1311(a), 1342. Either the EPA, or a state approved
by the EPA, issues the NPDES permit. 33 U.S.C.
§ 1342(b). The Department is authorized to issue
NPDES permits in Maryland.
NPDES permits generally must include “(1) effluent limitations that reflect the pollution reduction
achievable by using technologically practicable controls and (2) any more stringent pollutant release
limitations necessary for the waterway receiving the
pollutant to meet ‘water quality standards.’ ” Piney
Run Pres. Ass’n v. County Comm’rs of Carroll County,
268 F.3d 255, 265 (4th Cir. 2001) (citation omitted).

 4
Point sources like factories and wastewater treatment plants typically discharge wastewater through
a discrete number of pipes or outfalls that are subject
to end-of-the-pipe, numeric permit limitations on the
pollutants discharged during the facility’s operation.
Municipal stormwater systems, by contrast, encompass hundreds or thousands of storm drains, gutters,
roadside ditches, and other conveyances, each of which
discharges intermittently, typically during rain events.
Pet. App. 10a-11a. Those systems—referred to as Municipal Separate Storm Sewer Systems or “MS4s”—
were not required to obtain permits until after 1987
and, even then, only on a phased-in schedule. Pet. App.
82a-83a.
Under Phase I of the program, a municipal-stormwater system was required to obtain an MS4 permit by
October 1, 1994, if it “serv[ed] a population of 100,000
or more,” “contribute[d] to a violation of a water quality standard,” or was a “significant contributor of pollutants” to waters of the United States. 33 U.S.C.
§ 1342(p)(2); 40 C.F.R. § 122.26(a)(1). Although jurisdictions that fall into this category are further differentiated as “large” (i.e., population over 250,000) and
“medium” (i.e., population between 100,000 and 250,000),
they are all considered “Phase I” jurisdictions and subject to nearly identical permit requirements. “Phase II”
of the program required MS4 permits for smaller jurisdictions that were not required to obtain permits under Phase I of the program.

 5
The Chesapeake Bay TMDL
In addition to its permitting requirements, the
Clean Water Act requires states to identify all waters
within their jurisdiction for which technology-based effluent limitations have proved insufficient to meet water quality standards. For each “impaired” waterbody,
a state must establish—with EPA approval—a total
maximum daily load, or “TMDL,” for each pollutant
that fails to meet its corresponding water quality standard. 33 U.S.C. § 1313(d)(1)(C). A TMDL is the maximum amount, or “load,” of a pollutant that the water
body can receive and still meet applicable water quality standards. Id.; Pet. App. 15a.
The portion of a receiving water’s pollutant load
attributable to point sources of pollution is known as a
“wasteload allocation.” 40 C.F.R. § 130.2(h). Wasteload
allocations “are the most critical part of the TMDL
equation,” because the effluent limitations included in
stormwater permits must be “ ‘consistent with the assumptions and requirements’ ” of approved wasteload
allocations. Maryland Dep’t of Env’t v. Anacostia Riverkeeper, 447 Md. 88, 103-04 (2016) (quoting 40 C.F.R.
§ 122.44(d)(1)(vii)(B)). In this way, TMDLs underlie all
NPDES permits, including the MS4 permit at issue in
this case.
Although Maryland has issued, and EPA approved,
many waterway-specific TMDLs, the TMDL most relevant here is the one that governs the entire Chesapeake Bay watershed. Because the Bay’s watershed

 6
spans several jurisdictions,1 EPA took the lead in developing and issuing the “Bay TMDL” in December
2010. Pet. App. 18a; Anacostia Riverkeeper, 447 Md. at
104-07. The Bay TMDL calls for Maryland and the
other Bay jurisdictions to reduce, by 2025, their discharges of nitrogen, phosphorus, and sediment—the
three pollutants for which the Bay violates water quality standards.
To ensure achievement of these goals, EPA required each Bay jurisdiction to submit watershedimplementation plans, or “WIPs,” which serve as
“ ‘roadmaps’ setting forth a plan for how and when a
jurisdiction will reach the pollution reduction goals in
the Bay TMDL.” Anacostia Riverkeeper, 447 Md. at 109
(quoting Bay TMDL); see also Pet. App. 19a. In its watershed-implementation plan, Maryland stated that it
would achieve pollution-reduction goals by including
within Phase I MS4 permits conditions that would “require nutrient and sediment reductions equivalent to
urban stormwater treatment on 30 percent of the impervious surface that does not have adequate urban
stormwater controls.” Md. Ct. App., No. 5, Sept. Term,
2018, Appendix to Appellant’s Br. (“Appellant’s App’x”)
18. Phase II MS4 permits would also require restoration of impervious surfaces, but only at 20% of a
smaller jurisdiction’s total, instead of the 30% required
of the larger jurisdictions. Pet. App. 82a n.74. EPA

1

The Chesapeake Bay watershed covers parts of Delaware,
Maryland, New York, Pennsylvania, Virginia, West Virginia, and
the District of Columbia.

 7
evaluated Maryland’s plan and incorporated it into the
Bay TMDL. Anacostia Riverkeeper, 447 Md. at 109-10.
Maryland Water Pollution-Control Law
In addition to the requirements of federal law, Maryland has enacted its own state-law water pollutioncontrol requirements. Since 1982, Maryland has required
its counties and municipalities to implement stormwater-management programs to “ ‘reduce as nearly as
possible the adverse effects of stormwater runoff.’ ” Anacostia Riverkeeper, 447 Md. at 111 (quoting Md. Code
Ann., Envir. § 4-201 (LexisNexis 2007)). To assist the
counties in developing their programs, state regulations
established design criteria intended to “ ‘maintain after development, as nearly as possible, the predevelopment runoff characteristics’ of the land.” Anacostia
Riverkeeper, 447 Md. at 111 (quoting Md. Code Ann.,
Envir. § 4-203(b)(1) (brackets omitted)). In 2000, the
Department amended the regulations to provide, among
other things, “ ‘water quality treatment of up to 90 percent of the average annual rainfall throughout the
State.’ ” Id. (quoting 27 Md. Reg. 1167, 1168 (June 16,
2000)). Then, in 2007, the General Assembly enacted
legislation requiring the use of “environmental site design” on new development projects. Id. at 112; see also
id. at 131-32. Environmental site design includes the
use of management practices and techniques such as
green roofs and other measures that “ ‘mimic natural
hydrologic runoff characteristics and minimize the impact of land development on water resources.’ ” Id. at
112 (quoting Md. Code Ann., Envir. § 4-201.1(b)).

 8
In addition to stormwater-specific measures, Maryland law prohibits the discharge of any pollutant to waters of the State unless authorized by a permit issued
under § 9-323 of the Environment Article. Md. Code
Ann., Envir. § 9-322. The Department is authorized to
issue a permit if it finds the discharge will comply with
applicable state and federal water quality standards
and effluent limitations. Md. Code Ann., Envir. § 9324(a)(1).
The Carroll County MS4 Permit
The Department notified Carroll County in 1990
that, because its population exceeded 100,000, it would
be required to obtain a Phase I MS4 permit. The County
objected that some of its population resided within incorporated municipalities and thus should not be
counted toward the 100,000-person threshold for designation as a Phase I MS4 jurisdiction under EPA regulations. Pet. App. 91a-92a. The County asked the
Department to omit them from Phase I or “at least
delay the application of the Phase I requirements” to
the County. Pet. App. 92a. In response, the Department
agreed to delay Carroll County’s designation as a
Phase I jurisdiction until 1994, by which time all
agreed that the population of the County outside incorporated areas would surpass 100,000 people. Pet. App.
92a; Appellant’s App’x 20-27 (1990s correspondence).
The Department issued Carroll County its first
MS4 permit, effective in 1995, and issued permit renewals in 2000 and 2005. Pet. App. 81a. The reissued

 9
permits required the County to evaluate water quality,
prioritize watersheds for restoring impervious surfaces to more natural conditions, and begin those restoration efforts. In September 2009, Carroll County
applied for its fourth MS4 permit, which is the one at
issue here. Md. Ct. App., No. 5, Sept. Term, 2018, Record Extract (“R.E.”) 102.
After extensive discussions with interested parties, the Department, in 2012, sent a revised draft of
the Carroll County permit to EPA for its review. EPA
objected to the draft permit and requested that the Department add more specific language requiring the
County to restore, within the permit term, 20% of the
previously developed impervious land that had little or
no stormwater controls. Pet. App. 75a. After incorporation of the new language, EPA lifted its objection to the
draft permit. Id.
With EPA approval in place, the Department completed its processing of the application and, in June
2014, published its tentative determination to issue
the permit. Pet. App. 198a. The County participated in
the subsequent public hearing and submitted written
comments but did not object to its Phase I status. Pet.
App. 81a. The Department issued notice of its final determination on Carroll County’s permit in December
2014. Pet. App. 22a.
The County’s MS4 permit requires it to continue
its various stormwater management programs, including erosion and sediment control, identification and
elimination of illicit discharges, and management and

 10
maintenance of county-owned property. R.E. 50-54. Additionally, the permit requires the County to submit
an impervious area assessment and “commence and
complete the implementation of restoration efforts for
twenty percent of the County’s impervious surface
area . . . that has not already been restored to [the
maximum extent practicable].” Pet. App. 390a.
The State Court Proceedings
Carroll County filed a petition for judicial review
of the final permit in the Circuit Court for Carroll
County, which stayed the case at the request of the parties, in part to await the outcome of the Anacostia
Riverkeeper litigation. In Anacostia Riverkeeper, environmental organizations challenged the substantively
identical MS4 permits issued to Maryland’s “large”
MS4 jurisdictions and contended that they were insufficiently protective of the environment. The Court of
Appeals upheld the permit, upon concluding that the
20% requirement was consistent with the Bay TMDL,
was not arbitrary and capricious, and was supported
by substantial evidence in the record. Anacostia Riverkeeper, 447 Md. at 129-30.
Thereafter, proceedings in Carroll County’s case
resumed before the circuit court, which upheld certain
aspects of the permit but ruled that the Department
had erred by (a) requiring the County to restore 20%
of all of the impervious areas within the County, as opposed to only those areas that were within the regulated MS4 systems themselves and (b) by regulating

 11
the County as a “medium” jurisdiction instead of a
“small” jurisdiction required to obtain only a Phase II
permit. Each party appealed the portions of the circuit
court’s decision adverse to it, and the County petitioned the Court of Appeals of Maryland for a writ of
certiorari to review the circuit court’s decision, together with another circuit court’s decision in a similar
case involving Frederick County’s MS4 permit.
The Court of Appeals granted certiorari, consolidated the two counties’ appeals, and upheld the permits. As to Carroll County’s first argument here, the
court concluded that the 20% restoration requirement
plainly “does not require the County to undertake impervious surface restoration outside the geographic
area that drains into the MS4,” Pet. App. 65a; it is instead “a numeric water quality based effluent limitation” designed to reduce the effect of the County’s MS4
discharges to levels “necessary to achieve applicable
water quality standards for the Bay.” Pet. App. 75a. As
for the County’s objection to its classification as a “medium” jurisdiction, the court concluded that it was
“clear” from the record that “the Department has authority to classify the Count[y] as [a] phase I jurisdiction[ ],” that “the agencies charged with administering
the Clean Water Act have consistently regarded the
Count[y] as [a] Phase I MS4[ ],” and that “there was a
reasonable basis for doing so.” Pet. App. 99a-100a. Because the County had never challenged its status, “the
Department did not exercise its designation authority
more formally” than it might have, Pet. App. 100a, but

 12
there was evidence in the record that it had done so.
Pet. App. 93a, 99a.
The County’s MS4 permit expired in December
2019. Although the County continues to operate its
MS4 system under the terms of the expired permit, the
County has submitted a final compliance report indicating that it has already fulfilled the permit’s 20%
restoration requirement. The Department is currently
processing the County’s application for a new permit.
------------------------------------------------------------------

REASONS FOR DENYING REVIEW
I.

THE 20% RESTORATION REQUIREMENT
IS VALID UNDER FEDERAL AND STATE
LAW.
A. The 20% Restoration Requirement Does
Not Make the County Legally Responsible for Non-Point-Source Pollution Outside its MS4 System.

The requirement that the County restore 20% of
its total impervious surface area is the “most significant[ ]” issue that the County raises, Pet. 5, and the
only issue that the amici address, and yet both misconstrue how the restoration requirement operates in
Maryland. The restoration requirement does not, as
the County claims, make it “legally responsible” for nonpoint source pollution that flows from impervious surfaces outside its MS4 system. Pet. 14. As the Court of
Appeals found, the 20% restoration provision “does not
require the County to undertake impervious surface

 13
restoration outside the geographic area that drains to
the MS4, as it does not dictate where such restoration
must take place.” Pet. App. 65a. The County remains
free to carry out its restoration obligations entirely
within the limits of its MS4 system, or elsewhere in the
County, if restoring lands in the more rural areas of the
County proves to be less expensive.2
As the Court of Appeals observed, the County does
not “contend that the inclusion of an impervious surface restoration requirement itself is beyond the scope
of an MS4 permit.” Pet. App. 66a. Instead, the County
objects to the use of “a county-wide measure of impervious surface as the baseline” for calculating the restoration requirement. Id. But using 20% of a county-wide
baseline just sets the amount of the restoration that is
required. That amount—which came to approximately
1,600 acres—could have been set just as easily at a specific number of acres or as a larger percentage of the
impervious surfaces within a smaller geographical
area. In fact, the County presumably would not object
2

To support its argument to the contrary, the County quotes
at length from the Department’s brief below to suggest that the
Department’s position has been that all the permit’s conditions,
including the 20% restoration requirement, apply “throughout the
County’s jurisdiction.” Pet. 7. The County, however, omits from
its quotation the list of programs that the Department was addressing in its brief—the County’s “stormwater management program,” its “erosion and sediment control program,” and its “public
education and outreach program,” Pet. App. 362a—which clearly
apply jurisdiction-wide. The 20% restoration requirement also
applies jurisdiction-wide in the sense that the County has the
flexibility to carry out restoration anywhere it chooses within its
jurisdiction, but nothing more than that.

 14
to a requirement that it restore 100% of the impervious
surfaces within the limits of its “MS4 service area,” see
Pet. App. 69a, even though that amount would far exceed the amount imposed in its current permit.3
In other parts of the petition, the County seems to
acknowledge that the permit does not require it to restore lands outside its service area, Pet. 19, but objects
that the restoration requirement violates the Clean
Water Act by regulating nonpoint source pollution, id.
at 14-17, and by assigning to the County “the legal responsibility and expense” for other operators’ discharges,
id. at 18-19. Neither assertion withstands scrutiny.
First, the permit plainly does not regulate nonpoint
source pollution. By its terms, it “covers all stormwater
discharges from the municipal separate storm sewer
system (MS4) owned or operated by Carroll County,
Maryland.” Pet. App. 384a (§ I.B). Nothing in the permit supports the notion that uncontrolled nonpoint
source discharges from areas outside the County’s
MS4 can give rise to liability under its permit. Instead,
the purpose of the 20% restoration requirement is to
set an effluent limit on the discharge of point-source
pollution from the County’s MS4.
3

The baseline for the County’s restoration requirement came
to approximately 8,000 acres of untreated impervious surfaces.
Md. Ct. App., No. 5, Sept. Term, 2018, Appellant’s Br. 23. Of that
amount, the County has indicated, 7,092 acres represent the
County’s “MS4 impervious acres,” while 943 acres “do not discharge through the County/municipal MS4.” See 2015 NPDES
MS4 Permit Annual Report at 43 (Dec. 29, 2015), available at https://
www.carrollcountymd.gov/media/10621/2015-annual-report.pdf.

 15
Second, the County argues that the Court of Appeals erred in arriving at the “novel rationale” that the
Department, in its TMDL watershed-implementation
plan, properly “assigned” a “nonpoint source pollution
reduction” to the County’s MS4. Pet. 16. But the
County’s argument ignores an important feature of the
regulatory scheme: the TMDL process allows states to
address the pollutant load from nonpoint sources,
which are more difficult to control, by imposing limits
on point sources. See 40 C.F.R. § 130.2(i) (“[T]he TMDL
process provides for nonpoint source control tradeoffs.”);
see also Pet. App. 72a (collecting EPA guidance and
other authorities establishing that states may assign
nonpoint source contributions to point source permits
to achieve TMDL limits).
The County’s amici, for their part, acknowledge
the State’s ability to make tradeoffs between point
sources and nonpoint sources, but suggest that any
such tradeoffs must be accomplished through reductions in the “ ‘flows of contaminants from [the] point
source[ ].’ ” Br. of Amici Curiae Nat’l Ass’n of Clean Water Agencies, et al., at 12 (citation omitted). Two problems confront the amici at this point. First, as the
County acknowledges, it is difficult to regulate directly
the flow of contaminants from the “hundreds or thousands” of storm drains, gutters, and other outfalls that
make up an MS4 system. Pet. 11. The need to contend
with that regulatory challenge is what distinguishes
MS4 permits from those applicable to industrial facilities, see Pet. 11-12, and it is why the permit achieves
pollution reductions by improving the quality of the

 16
stormwater that flows into the MS4 system, instead
of through end-of-the-pipe controls. That is, the permit
seeks to reduce municipal stormwater pollution
through measures designed to reduce the litter, oil, and
other contaminants that are deposited on the ground,
R.E. 51-54, and by requiring the County to restore the
land’s natural pollution-control capacity by diverting
stormwater runoff from impervious surfaces into vegetative swales, stormwater retention ponds, and other
best management practices. This use of a “surrogate or
proxy” for direct end-of-pipe controls, Pet. App. 70a, is
consistent with the Clean Water Act and the “unique”
and “flexible” approach it allows for permitting MS4
systems. See Pet. 12.
If, on the other hand, the amici’s concern is that
the amount of pollution reduction achieved through
the restoration requirement exceeds the MS4 system’s
total pollution discharge, the facts are otherwise. Although “an MS4’s contribution to instream water quality is difficult to ascertain and to regulate precisely,”
Pet. 11, the County has indicated that the amount of
impervious surface within its MS4 system (7,092 acres)
far exceeds the approximately 1,600 acres that it was
required to restore. See supra n.3. Using that impervious area as a surrogate for pollution load demonstrates
that the County’s MS4 will continue to be a net discharger of pollutants even after fulfilling the 20% restoration.
Moreover, EPA has determined that the amount of
pollution control achieved by the 20% restoration requirement is necessary to meet the water quality

 17
standards set forth in the Chesapeake Bay TMDL. The
20% restoration requirement was included as a “key
element” of the Bay TMDL, Anacostia Riverkeeper, 447
Md. at 110, 128, and EPA approved the TMDL based
on the restoration requirement and other commitments that the states had made, id. at 127; see also
American Farm Bureau Fed’n v. United States E.P.A.,
792 F.3d 281, 291 (3d Cir. 2015) (stating that EPA approved the TMDL “only after” determining that each
jurisdiction had provided “reasonable assurance” that
it would meet the pollutant reductions). As the County
acknowledges, Pet. 16, federal law requires that effluent limits, including the 20% restoration requirement,
must be “consistent with the assumptions and requirements” of the Bay TMDL,4 see 40 C.F.R. § 122.44(d)(1)),
so it cannot be that Maryland’s decision to implement
those “assumptions and requirements” in the County’s
MS4 permit violates the Clean Water Act.5
4

For this reason, the County’s MS4 permit must be consistent with other TMDLs as well, which explains why the permit
includes a requirement that the County formulate watershed
assessments for Double Pipe Creek and the other impaired watersheds in the County. That planning requirement does not,
however, require the County to carry out restoration in addition
to the 20% restoration requirement discussed in text. Pet. App.
388a-390a (¶E.2.a).
5
To the extent that the County objects to the inclusion of the
20% restoration requirement within the Bay TMDL and the associated implementation plans, its recourse was to challenge EPA’s
establishment of the TMDL, Pet. App. 35a (citing federal cases)—
a conclusion of the Court of Appeals that the County does not dispute here. See also American Farm Bureau Fed’n, 792 F.3d at 292
(noting, in case involving challenge to Bay TMDL, that “TMDLs
have long been the subject of litigation”).

 18
B. States May Impose Requirements That
Are More Stringent than Federal Law.
Even if the County were correct that the 20% restoration requirement went beyond the limits of federal
law, Maryland could still impose the restoration requirement under State law. As the County itself recognizes, Pet. 15 n.8, the Clean Water Act expressly allows
states to set more stringent permit conditions under
state law. See 33 U.S.C. § 1370(1) (stating that the Act
does not “preclude or deny the right of any State” to
adopt its own pollution-control standard, so long as it
is not “less stringent than” the corresponding federal
standard); see also 40 C.F.R. § 123.1(i) (“Nothing in this
part precludes a State from . . . [a]dopting or enforcing
requirements which are more stringent or more extensive than those required under this part.”).
Federal courts have long held that states are free
to regulate water pollution independently of the Clean
Water Act. See, e.g., Bragg v. West Va. Coal Ass’n, 248
F.3d 275, 294 (4th Cir. 2001) (citations omitted); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163
(9th Cir. 1999); International Paper Co. v. Ouellette,
479 U.S. 481, 490 (1987) (noting that “the source State
may require discharge limitations more stringent than
those required by the Federal Government”); cf. PUD
No. 1 of Jefferson County, 511 U.S. 700, 712 (1994)
(holding that states may include within water quality
certifications required under 33 U.S.C. § 1341 conditions necessary to ensure compliance “with any other
appropriate requirement of State law”). This power to
regulate pollution in a way that is “more stringent or

 19
more extensive” than federal law requires, 40 C.F.R.
§ 123.1(i), has been exercised by Maryland’s General
Assembly, through legislation authorizing the Department to set pollution-control standards that are “at
least as stringent as those specified by the National
Pollutant Discharge Elimination System,” Md. Code
Ann., Envir. § 9-314(c) (emphasis added).6
Because the Court of Appeals concluded that the
restoration requirement was authorized under federal
law, it had no need to address the more stringent provisions of Maryland state law. See Pet. App. 57a n.53,
76a n.68. But any proceedings on remand would inevitably require consideration of those more stringent
provisions, which counsels against this Court’s certiorari review in at least three ways.

6

The County concedes that “[t]he Clean Water Act authorizes States to regulate water quality more stringently than is required by the Clean Water Act,” Pet. 15 n.8, but suggests that
Maryland does not actually do so, because under Maryland law
the Department only has “ ‘[all] powers necessary to comply with
and represent this State under the [Clean Water Act],’ ” Pet. 16
n.8 (quoting Md. Code Ann., Envir. § 9-253 but omitting the word
“all”). Aside from somehow reading (and revising) Environment
§ 9-253’s broad grant of authority as if it were a limitation, the
County ignores § 9-314(c) and its “at least” language, which establish the federal NPDES requirements as the floor, not the ceiling, for the Department’s standards. Moreover, the County’s
pinched reading of the pertinent Maryland statutes cannot be
squared with the construction of Maryland law given by the Court
of Appeals, which is “the ultimate expositor[ ] of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); see Pet. App. 7a (describing state-law programs that “directly regulate” nonpoint
sources where the Clean Water Act does not).

 20
First, it underscores that the Court’s guidance on
the proper construction of the Clean Water Act’s MS4
provisions necessarily will be of limited effect. A Maryland court’s decision on the Clean Water Act has no
precedential effect in other states, so the impact of
the Court’s review would be limited to begin with. But
more importantly, states will always be able to impose
more stringent provisions under their own state laws,
the substance of which this Court’s guidance could not
anticipate or address.
Second, the Court’s review will likely have limited
effect, even in this very case, because Maryland pollution-control law is more stringent than the Clean Water Act. Maryland law prohibits the discharge of any
pollutant to waters of the State unless authorized by a
state-law permit, see Md. Code Ann., Envir. §§ 9-322,
9-323, and any discharge permit must contain provisions that comply with “State law or regulation.” Code
of Md. Reg. 26.08.04.02A(1)(d). As the Court of Appeals
observed, Maryland law, in contrast to federal law, “directly regulate[s]” nonpoint source pollution “through
[its] own regulatory programs.” Pet. App. 7a. Maryland
law also requires counties to have in place erosion and
sediment control programs and stormwater management programs that directly regulate the stormwater
discharges that are at issue here. See Md. Code Ann.,
Envir. §§ 4-103, 4-202. Thus, even if it were true that
the Clean Water Act did not allow an MS4 permit to be
used to address the effect of nonpoint sources of stormwater pollutants, Pet. 2, Maryland, like other states, is
free to impose that same requirement under state law.

 21
Finally, that Maryland and the 46 other states authorized by EPA to issue NPDES permits might adopt
“widely disparate interpretations” of MS4 responsibilities, Pet. 2, is neither surprising nor a reason for exercising certiorari review. Differences from state to state
are not surprising because, as discussed above, the
Clean Water Act allows each state to structure its MS4
program more broadly to reflect its more stringent
state laws. The resulting “patchwork” of MS4 outcomes
is not a problem to be rectified by this Court’s review,
as the County suggests, Pet. 9, but is instead an intended feature of a system of cooperative federalism
that “recognize[s], preserve[s], and protect[s] the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution” and “to plan the development and use (including restoration, preservation,
and enhancement) of land and water resources.” 33
U.S.C. § 1251(b).
II.

THE COUNTY’S CLASSIFICATION AS A
MEDIUM PHASE I JURISDICTION HINGES
ON UNIQUE HISTORICAL FACTS AND
PROVISIONS OF MARYLAND LAW.

The County’s second objection—to its classification as a “medium” jurisdiction—similarly does not
merit this Court’s review, for two principal reasons.7
First, the County’s classification hinges on a 25-year
historical record, which establishes that the County
has repeatedly conceded that it qualifies as a medium
7

The County’s amici do not support this aspect of the Petition.

 22
jurisdiction. That history begins in the early 1990s,
when the County accepted the demographic reality
that, by the mid-1990s, its MS4 system would qualify
as a medium jurisdiction under the statutory definition because it “serv[ed] a population of 100,000 or
more.” 33 U.S.C. § 1342(p)(2)(D).8 Although it may well
be true that, “[a]s a practical matter,” the County’s classification as a medium jurisdiction “was not of great
importance” to it at the time, Pet. 3, that presumably
would have changed “as the program evolve[d] and permits become more burdensome,” id. Yet the County
continued to accept its status as a medium MS4 jurisdiction in each successive renewal of its permit, including the 2005 permit, which first imposed a restoration
requirement, Pet. App. 64a, and the 2014 permit that
imposed the 20% restoration requirement and gave
rise to the appeal below.9 Not only did the County
8

The County does not discuss, cite to, or even acknowledge
33 U.S.C. § 1342(p)(2)(D), which is “the statutory definition of a
medium Phase I MS4,” Pet. App. 96a & 96a n.96 (emphasis
added); see also Pet. App. 84a. Instead, the County chooses to rely
solely on EPA regulations and their Appendix I. Pet. 21-22. Indeed, the principal textual basis of the County’s classification argument in the court below—the use of the term “urbanized”—
appears not in any statute or regulation but only in the title to
Appendix I. Pet. App. 86a. That is, the County’s claim of misclassification rests not on the pertinent statute, nor even a provision
of a regulation, but on a title, of a chart, which appears in an appendix, to a regulation. Evidently, the County seeks to have this
Court find significance in the label EPA gave that chart but give
no deference to EPA’s repeated determination that the County
qualifies as a medium jurisdiction.
9
The County is wrong to suggest in its petition that it challenged its classification “in the permit action preceding this appeal.” Pet. 22. As the Court of Appeals recognized below, the

 23
continue to accept its medium status as the terms of
its permit became “more burdensome,” it conceded its
status when EPA sought to enforce those terms
against it, at which point the County admitted the accuracy of EPA’s findings that the County’s “ ‘MS4
serves a population of at least 100,000,’ which is verbatim the language of the Clean Water Act defining
medium Phase I jurisdictions.” Pet. App. 96a n.96
(quoting portions of the Consent Agreement and Final
Order appearing at R.E. 344 (¶15)).
The County assures the Court that it is “not necessary to reconstruct history” to resolve the County’s
objection to its classification, Pet. 24, but that history
drove the state court’s conclusion that the County had
“agreed to, or at least acquiesced in, [its] treatment as
[a] medium MS4[ ].” Pet. App. 97a; see also id. at 99a.
The County’s acceptance of its status as a medium jurisdiction was subsequently incorporated into the Bay
TMDL and its implementation plans, which specifically required the restoration that the County now
finds objectionable. Yet, even then the County did not
challenge the requirement, as was its right. See Pet.
County “did not question its status as a Phase I jurisdiction during the administrative process for its most recent permit,” and
only did so for the first time “when it sought judicial review of that
permit.” Pet. App. 81a n.73. The page of the administrative record
that the County now cites for the contrary proposition refers to a
comment made by another county in its Phase I MS4 permit proceeding. Because the MS4 permits issued to the medium Phase I
jurisdictions were nearly identical, the Department included the
same response-to-comments document in the administrative records for each permit decision, but that does not mean that the
County raised the issue in the “permit action” before the agency.

 24
App. 35a (citing federal cases); see also American Farm
Bureau Fed’n., 792 F.3d at 292 (deciding challenge to
Bay TMDL). Any guidance that this Court would be
able to provide on this issue would unavoidably consider that long history of concession and reliance and,
thus, limit its effect and usefulness to the unique circumstance presented by this case.
In an effort to look past this decades-long factual
record, the County suggests that its challenge to its
classification raised legal issues that the Court of Appeals did not address on the merits, thus depriving the
County of the “opportunity for judicial review” that
states must provide as a condition of federal delegation
under the Clean Water Act. Pet. 24. But the Court of
Appeals did address the County’s classification on the
merits and found it “clear” that “the Department had
authority to classify the Counties as Phase I jurisdictions” and that EPA had determined that the Department had done so. Pet. App. 99a-100a. In reaching
those conclusions, the Court of Appeals rejected as
“without merit” the County’s argument that the list of
medium jurisdictions set forth in “Appendix I” to the
EPA regulations is “exclusive.” Pet. App. 94a; see also
40 C.F.R. § 122.26(b)(7)(ii); 40 C.F.R. Pt. 122, App. I;
Pet. 21.
The Court of Appeals also found, on the merits,
that there was evidence in the record showing that the
Department had “appropriately designated” the County
as a medium jurisdiction under its separate, “residual”
authority to make such designations based on the jurisdiction’s impact to water quality. Pet. App. 97a; see

 25
33 U.S.C. § 1342(p)(2)(E) (authorizing designation
where an MS4 system “contributes to a violation of a
water quality standard or is a significant contributor
of pollutants to waters of the United States”). The court
acknowledged that the evidence was “limited,” Pet.
App. 99a, but it appropriately recognized that the
County’s long acquiescence in its medium status “may
have foreclosed any need” for the Department to invoke its residual designation authority “more formally,” Pet. App. 97a, 100a.10 Still, there remained “no
question that the agencies charged with administering
the Clean Water Act have consistently regarded the

10

For this very reason, Maryland law requires that judicial
review of water pollution permits must “be on the administrative
record before the Department and limited to objections raised
during the public comment period.” Md. Code Ann., Envir. § 1601(d)(1). This statutory provision reflects the broader principle
of administrative law that “a person may not obtain judicial review of a matter when he or she failed to properly raise the matter
before the administrative agency,” Heft v. Maryland Racing Comm’n,
323 Md. 257, 273-74 (1991); see also McKart v. United States, 395
U.S. 185, 194-95 (1969) (exhaustion requirement serves to prevent judicial review from being “ hindered by the failure of the
litigant to allow the agency to make a factual record, or to exercise
its discretion or apply its expertise”). Because the County did not
raise the classification issue in the permit proceeding before the
agency, it is foreclosed from raising it here on appeal. See Jimmy
Swaggart Ministries v. Board of Equalization of Cal., 493 U.S.
378, 398 (1990) (declining to review issue that had not been raised
in state administrative proceeding because “unambiguous application of state procedural law makes it unnecessary for [this
Court] to review the asserted claim”). As the Court of Appeals
made clear, it reached the merits of the classification argument
only because Frederick County—which did not seek this Court’s
review—had preserved it. Pet. App. 81a-82a n.73.

 26
Count[y] as [a] Phase I MS4[ ] and that there is a reasonable basis for doing so.” Pet. App. 99a-100a.
*

*

*

The County objects to what the State has determined is the best way to accomplish the ambitious and
important goal of Bay restoration, but these types of
uniquely governmental issues, involving uniquely governmental permits, are necessarily limited by each
state’s fiscal arrangements, environmental needs, and
state laws. Maryland’s highest court has long distinguished such intrastate governmental disputes from
all others, because “a State agency or instrumentality,
with respect to claims against or disputes with the
State, is in a vastly different position from an individual or a private entity.” State v. Board of Educ. of Montgomery County, 346 Md. 633, 644 (1997). Indeed, counties
and municipalities “are but local divisions of the State,”
Rockville v. Randolph, 267 Md. 56, 62 (1972), and they
possess only the powers that have been granted to
them by the State, either through the Maryland Constitution or by statute. See Kent Island Def. League,
LLC v. Queen Anne’s County Bd. of Elections, 145 Md.
App. 684, 689 (2002), cert. denied, 371 Md. 615 (2002).
This material difference of circumstances is also
reflected in the experience of this Court, which has observed “that federal courts have not often encountered”
litigation pitting a State government litigant against
another agency of the same State. Virginia Office for
Prot. & Advocacy v. Stewart, 563 U.S. 247, 260 (2011);
see also Marshall v. Dye, 231 U.S. 250, 257 (1913)

 27
(limiting the right to obtain certiorari review of the
judgment of the highest court of a state to those who
have “a personal, as distinguished from an official,
interest in the relief sought and in the Federal right
alleged” (citing Smith v. Indiana, 191 U.S. 138 (1903)).
These considerations confirm that intramural disagreements like this one—between a state and its political subdivision over uniquely governmental issues
—are appropriately resolved by each state’s highest
court.
------------------------------------------------------------------

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
BRIAN E. FROSH
Attorney General of Maryland
ADAM D. SNYDER*
KUNLE ADEYEMO
Assistant Attorney General
200 Saint Paul Place,
20th Floor
Baltimore, Maryland 21202
asnyder@oag.state.md.us
(410) 576-6398
Attorneys for Respondent
*Counsel of Record