MDE issued its final determination to issue a GD Permit for AFOs on January 2, 2009; however, issuance of the GD Permit was delayed by a legal challenge. On May 5, 2009, the Maryland Office of Administrative Hearings issued a Proposed Decision
upholding the permit against this legal challenge, and Petitioners Assateague Coastkeeper, Lower Susquehanna Riverkeeper, C. & B. Schelts, & Waterkeeper Alliance filed exceptions to that ruling. On September 2, 2009, following further briefing and oral argument, MDE issued the Final Decision
, holding that the Petitioners have not placed any material fact in dispute and that the proposed GD Permit conforms to federal and State law. The issuance of this Final Decision allows MDE to issue the GD Permit and to place applicable facilities under the new requirements designed to protect the waters of the State. The Petitioners filed an appeal of the Final Decision in the Circuit Court for Baltimore City on October 2, 2009. In the absence of a court-issued stay of the Final Decision, MDE and MDA agreed that it was in the best interest of Maryland's waterways, facilities subject to Maryland’s AFO requirements, and all Marylanders for MDE to issue the permit, effective December 1, 2009. This allowed existing AFOs and those wishing to construct new AFOs to implement the necessary environmental controls under the clear and consistent guidelines provided by the GD Permit.
The Assateague Coastkeepers, Waterkeeper Alliance and the Lower Susquehanna Riverkeeper argued that the GD Permit was deficient because it was not as stringent as federal law. MDE argued that the GD Permit was at least as stringent as federal law, and in fact, more stringent in that it requires MAFOs to seek permit coverage. The Office of Administrative Hearings, the MDE Final Decision Maker, and the Circuit Court of Baltimore City all held that the GD Permit was valid.
On September 6, 2011, the Court of Special Appeals (CSA) agreed with MDE and the lower decisions and held that the GD Permit was at least as stringent as federal law. The CSA held that certain challenged provisions of the GD Permit were based on substantial evidence considered by the Department from various sources including the EPA, University of Maryland Scientist, the Wye Research and Education Center, and scientists at the Chesapeake Research Consortium. The Court also agreed with MDE that the GD Permit would not cause or contribute to violations of water quality standards because the GD Permit, which regulates a previously unregulated community, will result in a net reduction in pollution.
On January 23, 2012, the Court of Appeals of Maryland denied the Petitioners request for review of the CSA ruling; thereby, making the CSA decision final. Maryland’s General Discharge Permit for Animal Feeding Operations (09AF, MDG01) has been upheld as a valid general permit by the Maryland courts. This removes uncertainty for AFOs that the GD Permit is legally sufficient.