CLA’s Legal Documents
AFO Permit Opening Memo – Memorandum In Support of Assateague Coastal Trust’s Petition for Judicial Review – October 27, 2020
Case Summary: Animal Feeding Operation (“AFO”) is a term used to generally describe a facility where up to hundreds of thousands of animals are kept. There are more than 500 AFOs in Maryland. These facilities have been subject to regulation under the federal Clean Water Act (“CWA”) for decades in recognition of their significant impact on our nation’s water quality. A modern AFO can produce more waste than a large city and requires a sophisticated permitting process to properly manage and regulate that magnitude of waste. The poultry industry produces tens of millions of pounds of ammonia (a form of nitrogen) each year, in Maryland alone. To date, this source of nitrogen emissions, and its delivery to state waters and the Chesapeake Bay, have gone unregulated.
Maryland’s definition of “Waters of the State” is substantially broader than the federal definition of “Waters of the United States” and the more expansive state law definitions for key terms like “discharge,” “pollutant,” “waste,” “industrial waste,” and “Waters of the State,” leave no doubt that gaseous emissions of ammonia are a source of water pollution and, therefore, subject to the state’s discharge permitting requirement.
Arguments: (1) Key definitions established in Maryland’s Water Pollution Control (“WPC”) laws cover gaseous substances such as ammonia as a water pollutant subject to regulation; (2) The Maryland Department of the Environment (“MDE”) erred by failing to require effluent limitations for the control of ammonia emissions in the general discharge permit for AFOs; and (3) MDE erred by failing to include water quality-based effluent limitations to protect waters, like the Chesapeake Bay, that are so polluted that they have been designated as “impaired” by MDE.
Legal Theories: (1) Maryland’s WPC laws define a “pollutant” as “[a]ny waste or wastewater that is discharged from … [a]n industrial source; or [a]ny other liquid, gaseous, solid, or other substance that will pollute any waters of this State.” This definition is extraordinarily broad and would include ammonia, a well-recognized water pollutant under state and federal law.
(2) Chicken waste, like other poultry and livestock waste, releases ammonia gas, which is “blown away” through high-powered ventilation fans. Because ammonia, after discharge, deposits on waters and watersheds as a form of the pollutant nitrogen, it has been recognized by the Chesapeake Bay Program as a major contributor of nitrogen pollution to the Bay and Maryland’s extensive list of other nitrogen-impaired waters. Under both state and federal law, the discharge of pollutants into waterways is illegal unless it is permitted. Therefore, MDE’s omission of controls on a well-known pollutant that constitutes one of the largest waste streams generated by an AFO is arbitrary and capricious, and contrary to statutory requirements.
(3) State and federal law require water quality-based effluent limitations where technology-based limits are insufficient. Even the EPA’s Permit Writer’s Manual for AFOs clearly envisions the inclusion of water quality-based effluent limitations for AFO permits. Because the EPA, which administers the less stringent provisions under federal law, directs its permit writers to establish water quality-based effluent limitations for AFOs located in nutrient-impaired watersheds, there is no doubt that MDE must as well.AFO Opening Memo
Comments on Draft General Discharge Permit for Animal Feeding Operations – December 26, 2019
Summary: In late 2019, Maryland Department of the Environment (“MDE”) made its Draft General Discharge Permit for Animal Feeding Operations (“draft permit”) available for public comment. The purpose of the draft permit was to “protect water quality and to comply with federal requirements under Code of Federal Regulations 40 CFR Parts 122, 123, 124, 125, and 412, as well as State requirements under Code of Maryland Regulations (COMAR) 26.08.04.09N.” This comment letter submitted by Chesapeake Legal Alliance on behalf of several organizations urges MDE to adopt specific improvements within the draft permit in order to be consistent with state and federal directives included in the Clean Water Act and Title 9 of the Environment Article of the Annotated Code of Maryland.
Comments: (1) The draft permit is not consistent with the Bay TMDL or the level of effort needed to ensure the state meets WIP commitments; (2) Maintaining existing permit conditions is not sufficient to protect water quality in the face of a changing climate; (3) New language in the draft permit regarding air pollution is inadequate in light of the magnitude of nutrient pollution emitted by AFOs; (4) The draft permit’s use of the term “discharge” is inconsistent and problematic; (5) The vast majority of nutrient pollution attributable to AFOs are land applied in adjacent fields or exported; (6) There needs to be additional criteria for siting new or expanded operations; (7) Other improvements are needed within the permit.NGO Group Comment Letter_AFO GP_12-26-2019
Comment Letter on Tentative Determination Determination for the National Pollutant Discharge Elimination System Municipal Separate Storm Sewer System Discharge Permit for Baltimore County (Permit No. 20-DP-3315, MD0068292) – January 21, 2021
Summary: The Chesapeake Accountability Project (“CAP”) and other stakeholders submitted the following comments on the Maryland Department of the Environment’s (“the Department”) tentative determination to renew the National Pollutant Discharge Elimination System Separate Storm Sewer System Discharge Permit for Baltimore City, Permit No. 20-DP-3315, MD0068292 (“MS4 Permit,” “Permit,” or “Draft Permit”). The Baltimore City MS4 Permit is an important opportunity to create clear, specific, measurable, and enforceable requirements to reduce municipal stormwater runoff, which accounts for a significant portion of pollution entering our local waters and the Chesapeake Bay. The comments and recommendations in this letter were made to ensure that the MS4 Permit complies with applicable state and federal laws and protects and restores water quality.
Comments: (1) Maryland’s MS4 permits must require practices that reduce stormwater volume and pollution; (2) The Department should adopt a numeric approach to pollutant loads; (3) The Impervious Surface Restoration (“IRS”) Requirement must remain at least twenty percent to avoid backsliding; (4) The Department should reconsider its reliance on the Maximum Extent Practicable analysis; (5) Nutrient trading should not be allowed in MS4 Permits because it undermines protection of local water quality and is contrary to law; (6) Greater enforceability of the ISR requirement and emphasis on stormwater management are required to make the MS4 Permit consistent with Waste Load Allocations (“WLAs”) or TMDLs; (7) The draft permit must be revised so that it does not rely on permittee self-regulation; (8) The Draft Permit should actually account for growth as it claims to do; (9) The Draft Permit must adequately account for climate change; (10) The Draft Permit must address the disproportionate impacts of stormwater.cap-baltimore-city-ms4-permit-comments-final-012121
Comment Letter on Renewal of the State/NPDES General Permit For Stormwater Associated with Construction Activity – 20CP0000 (20CP) – December 13, 2020
Summary: The Chesapeake Accountability Project (“CAP”) and other stakeholders submitted the following comments on the Maryland Department of the Environment’s (“the Department”) tentative determination to renew the 14GP General Discharge Permit for Stormwater Associated with Construction Activity, as the 20CP (the “Permit”).
The Clean Water Act relies on permits, such as the 20CP, to achieve and maintain water quality standards. To be effective, permits must contain clear, specific, measurable, and enforceable limits and requirements, and must be subject to strict enforcement when terms are violated. The current permit regime fails on each of these measures. Today, permit conditions are not tied to water quality results, and permit holders understand that enforcement is unlikely and compliance deadlines are flexible, sending a strong signal to bad actors and negating any incentive for law-abiding permit holders to invest in environmental compliance. To reverse this trend, CAP demanded greater enforcement and help to keep permit holders accountable.
Comments: (1) MDE’s Industrical Stormwater Permit Division lacks the staff, the time, and the resources to adequately implement the terms of this permit; therefore, MDE must devote more staff and resources to the administration of this Permit; (2) The Permit uses vague language and provisions that are unnecessarily subjective, lacking in specificity or any discernible guiding standards, or are otherwise unenforceable statements; (3) MDE must clarify within the permit what violations would lead MDE to determine that water quality standards have been violated and to remove the discretion for this determination from a Permittee; (4) MDE must remove vague, conclusory, and presumptive statements from the Permit that prevent actual enforcement of these provisions in the Permit, and provide details as to how this permit will protect water quality; (5) MDE must extend the public comment period for applications for coverage under the permit, require relevant permit documents to be available during the comment period, and enhance electronic access to permit documents; (6) MDE must remove discretion by allowing local and state authorities to trigger corrective actions, include a menu of escalating corrective actions for sites with more than one triggering event and require electronic submission and public transparency of corrective actions; (7) MDE must use adaptive management techniques and consider facts regarding climate change present in this comment as well as conduct their own analysis of the impacts and determine how to best update this Permit to adequately control the increases in stormwater runoff attributed to changes in precipitation trends in Maryland; (8) MDE must correct two definitions in the Permit that are inconsistent with state law.cap-construction-permit-comment-letter-122320
Comment Letter on Tentative Determination Renewal of the General Permit for Discharges from Stormwater Associated with Industrial Activities – 20-SW / MDR000 – April 16, 2021
Summary: The Chesapeake Accountability Project (“CAP”) and the 23 other stakeholders listed in the letter submitted these comments on the Maryland Department of Environment’s (the “Department”) tentative determination to renew the General Permit for Discharges from Stormwater Associated with Industrial Activities, Permit No. 20-SW / MDR000 (“Permit”, “Draft Permit”, or “20-SW”).
The CWA and Maryland’s Water Pollution Control statutes and regulations rely on permits to achieve and maintain water quality standards (“WQS”). The 20-SW Permit is an important opportunity to create clear, specific, measurable, and enforceable requirements to reduce polluted industrial stormwater runoff, which can be particularly toxic and hazardous to human health and aquatic biota, and which poses a unique threat to our common goal to promote environmental justice in Maryland. Issuing the Permit as proposed would pose substantial risks to Maryland’s efforts to restore the Chesapeake Bay and to the health of local communities and waterways, and it would violate several laws.
Comments: (1) The Permit lacks adequate consideration of environmental justice and contributes to disproportionate harm to the health of overburdened Marylanders; (2) Permit terms must be enforceable as required by law; (2) The Permit proposes to roll back the Chesapeake Restoration Standard contrary to the Clean Water Act prohibition on backsliding; (4) The Permit does not contain adequate protections for either impaired or healthy waterways and appears to ignore the State’s water quality standards; (5) The Permit fails to adequately account for a rapidly changing climate; (6) The Permit conditions applicable to control measures are not sufficient; (7) The Department must require benchmark monitoring for all permit-holders and throughout the entire permit term; (8) The Department must revise the corrective action section to strengthen AIM triggers, improve enforceability, avoid impermissible self-regulation, and increase clarity; (9) Permit coverage is overly broad and permissive, thus denying adequate attention and protections for large dischargers of pollution; (10) The Permit should be accompanied by greater transparency and accessibility; (11) Permit fees are not sufficient to address substantial resource constraints for implementing the Permit and ensuring compliance.cap-20sw-comment-ltr-final-w-appendices-041621
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- An Updated Maryland Violations Tracker September 20, 2022
- CLA Status Report Webinar with David Reed September 14, 2022