From the 2006 News Archive
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Environmental Law Clinic Report Faulting Bay Protection Featured in Baltimore Sun

Lax enforcement of bay law alleged
UM report focuses on measure designed to guard environmentally critical areas


By Tom Pelton
Sun reporter

(reprinted by permission)

May 4, 2006

The University of Maryland Environmental Law Clinic issued a report yesterday saying local governments often fail to enforce a landmark state law designed to protect environmentally critical areas near the Chesapeake Bay.

County officials responsible for enforcing the 1984 Critical Areas Law - which is supposed to limit development within 1,000 feet of bay tributaries
- rarely fine law-breakers, don't employ enough inspectors, and generally try to minimize pain to waterfront landowners instead of more vigorously protecting the environment, the report said.

"Local enforcement is almost entirely responsive, instead of proactive, allowing many Critical Area violations to go unnoticed," wrote Kerry E. Rodgers, visiting associate professor of law, and four co-authors. "Routine, small-scale violations threaten the bay with death by a thousand cuts."

Former Gov. Harry R. Hughes, who helped pass the law, said the Chesapeake Bay deserves stronger enforcement. "The Critical Areas Law was a very significant part of our Chesapeake Bay program that we created years ago, and to see the lax enforcement is very disturbing," Hughes said.

But Martin G. Madden, chairman of the Maryland Critical Areas Commission, said penalties against violators usually don't make sense because they are challenged in court and often thrown out. More useful, he said, are the steps to reduce runoff that local governments often require, including planting trees.

"We will look at the findings contained in this report and work with the communities concerned to look at where we need to take further action to address the enforcement issue," Madden said.

At the request of the Waterkeeper Alliance, an advocacy group, the law clinic studied records from 2003 through 2005 on file at the Critical Areas Commission, a state agency that oversees local enforcement of the law.

The researchers focused primarily on waterfront construction in Anne Arundel, Queen Anne's and St. Mary's counties, saying they chose these communities because they represent a diversity of size and location.

The review found that none of the counties has a boat or enough inspectors to allow local governments to find violations in waterfront areas.

St. Mary's and Queen Anne's counties, among several others around the state, had issued no penalties for violations of critical areas laws over the three years that were studied. Anne Arundel County had been more aggressive, issuing 69 civil penalties and two criminal penalties in 2005, the report said.

The counties almost always approved variances that allowed landowners to construct buildings closer to the water than normally allowed. And the Critical Areas Commission, most of whose members are appointed by the governor, rarely challenged these local decisions, the study said.

Anne Arundel County approved 77 percent of the 169 variances requested in 2005. Queen Anne's County approved 91 percent of the 11 requests for variances that year. And St. Mary's County approved 85 percent of the 41 requests, according to the report.

Ninety percent of the 29 subdivision proposals near waterways reviewed by the commission in Queen Anne's County in 2005 received endorsements. Eighty percent of the 10 subdivisions reviewed in Anne Arundel and 69 percent of the 26 plans in St. Mary's also receive positive reviews by the state commission, according to the report.


Copyright 2006, The Baltimore Sun


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