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Read story on Environmental Law Clinic Critical Area Act study for Maryland Waterkeepers

Waterkeepers' study to probe Critical Area enforcement

Originally published in The Capital
November 8, 2005
Reprinted with permission

By E.B. FURGURSON III, Staff Writer

Maryland's Waterkeepers announced today they have commissioned a study to determine whether the state's Critical Area act is being enforced effectively.

The University of Maryland Environmental Law Center's effort, was prompted by Waterkeepers' frustrations with jurisdictions not holding up the law, designed to protect the most environmentally sensitive land within 1,000 feet of the Chesapeake Bay and its tributaries by limiting development, grading, tree cutting and other disturbances.

"We have seen so many instances of insufficient inspections, inadequate penalties and inappropriate variances that we decided it is time to ask independent experts to look into the situation," said Bob Gallagher, an attorney and the Riverkeeper for the West and Rhode rivers south of Annapolis. He led the push to convince the law center to take on the task.

Waterkeepers patrol their waters to identify, eliminate and prevent sources of illegal pollution. They also try to protect water quality through advocacy, education and watershed restoration. There are five Riverkeepers in Anne Arundel. The 13 in the Chesapeake Bay region comprise more than 12 percent of the 106 Waterkeepers nationwide.

Most of the information the Waterkeepers have is anecdotal; the study will be designed to methodically gather enforcement data.

"The objective is to look at the institutions charged with making the law work," he said. "If the Critical Area law is not being enforced, we want to know what is not being enforced."

Sixty-three different jurisdictions, counties and cities are supposed to enforce the law, he said.

Law students from the Environmental Law Center will send surveys out to those jurisdictions beginning this month.

Kerry Rodgers, a visiting professor at the University of Maryland Environmental Law Clinic, confirmed the study but would not discuss details of it. She did say the study should be completed next spring.

It will not make specific recommendations to cure what ails enforcement of the Critical Area act.

"It will serve as a tool to educate Maryland citizens and public officials," a Waterkeepers statement said. "It is the purview of the legislature to fix the problem, assuming there is one."

Anne Arundel County spokesman Pam Jordan said the county "welcomes an objective evaluation of Critical Areas enforcement."

"For those who knowingly or unknowingly violate the Critical Area laws, enforcement penalties in Anne Arundel County have never been stronger," she said.

The county's responsibility under the Critical Area act begins during planning and review for construction permits and continues through final inspections on the nearly 50,000 acres.

She said since new tougher penalties went into effect last year, the county, in cooperation with the Maryland attorney general, has assessed fines of up to $10,000, and secured criminal convictions for violators.

Since Jan. 1 the county has issued 107 $1,000 civil citations and secured two criminal convictions with $10,000 fines. Another 12 criminal cases have been referred to the county office of law for further action, Ms. Jordan said.

"We believe we have a tremendous opportunity to set an example for the rest of the state and continue to make strides in that direction," Ms. Jordan said.

But the tougher rules came about, in part, after the Critical Areas Commission scolded the county in 2002 for its checkered record of slow response, enforcement of buffer violations, and how the county defined what lots can and can't be developed.

Severn Riverkeeper Fred Kelly says the county still has a way to go, noting it approved a variance to allow a developer to discharge stormwater into Saltworks Creek, the last yellow perch spawning area on the Severn River.

"The variance is in direct violation of county code and the Critical Area law," he said. "They are not supposed to grant variances with adverse impacts on fisheries."

Mr. Gallagher, of Shady Side, said variances granted to property owners allow disturbance of Critical Area land outside the intent of the law. The study will take up that issue.

"Buffer variances are only supposed to be granted in hardship cases," he said. "But they are granted in some places at an 80 percent rate. Some jurisdictions are near 100 percent."

A University of Virginia Environmental Law Journal study found Anne Arundel approved 86 percent of the variances applied for in the Critical Area in 2003.

The Virginia study said zoning rules are "quite strict in the county ..., but exceptions are easily attained."

The Maryland study will address two other major areas:

Whether people are getting permits before they do work in the Critical Area on their property. And once they have permits, are county inspectors finding they are complying.

What the county is doing to penalize people who disturb the Critical Area without a permit or are in violation of a permit.

Critical Areas Commission Executive Director Ren Serey was not privy to details of the study.

"It's a good idea. The more information about the extent of the problem (the better)," he said.


Published November 08, 2005, The Capital, Annapolis, Md. Copyright %A9 2005 The Capital, Annapolis, Md.
Reprinted with permission.

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