Bay Journal

Lake Bonnie pollution saga back in court - for now

Judge to rule if former Maryland campground owner can pursue lawsuit against state, Shore town over unchecked septic contamination

  • By Rona Kobell on July 24, 2017
Once the central attraction of an Eastern Shore family campground, Lake Bonnie was ordered closed to swimming in 1996. The Caroline County health officer declared it contaminated with unsafe levels of fecal bacteria from failing septic systems in the nearby town of Goldsboro. (Litz family) A brochure for 'Lake Bonnie campsites' promotes fishing, boating and swimming. Business fell off after the Caroline County health department declared the lake contaminated by septic pollution. A state order to clean it up went unenforced for decades. (Litz family)

A former Maryland woman who sued the state and the Eastern Shore town of Goldsboro, blaming them for the loss of her family campground from unchecked septic pollution, will find out soon if she’ll finally get her day in court.

Last week, in the latest twist of Gail Litz’s seven-year legal quest, a Caroline County Circuit Court judge heard arguments from attorneys for all sides on whether to set a trial date for the lawsuit – or dismiss the case.

The litigation centers around Lake Bonnie, a 28-acre impoundment on more than 100 acres of land that Litz’s family owned for several decades and operated as a campground. In 1996, the Caroline County Health Department closed the campground’s lake to swimming, citing unsafe fecal coliform levels in the water, which were traced to failing septic systems in nearby Goldsboro.

That same year, the town signed a consent order with the Maryland Department of the Environment acknowledging that residents’ septic systems were failing. The order outlined a schedule for the town to install a public sewer system and said Goldsboro would be fined $100 a day if it did not comply.

But the town never undertook a wholesale fix of its system, and the state didn’t enforce the order. In 2010, Litz lost her property to foreclosure and filed a lawsuit, alleging the town and county’s negligence cost her the property.  She asked for $7 million in compensation.

Over the next seven years, in various courtrooms, Goldsboro’s attorneys said that the town had no money to fix the problem, and that Litz had waited too long under Maryland law to file suit.  The state also argued that it was not legally obligated to enforce the consent order.  Lawyers for MDE contended that they could not force Goldsboro to pay.

Those arguments prevailed in lower court hearings, but in February 2016, Maryland’s highest court said that the state’s failure to enforce the consent order could be viewed as “inverse condemnation” if Litz could prove it was the septic pollution that caused her loss. The case was sent back to Caroline County Circuit Court for a trial.

Since then, Phil Hoon of Chestertown, one of Litz's attorneys, said he and co-counsel G. Macy Nelson of Towson have attempted to settle the case, and even brought Litz up from Florida — where she now lives — because they thought they were close. But Hoon said the state offered only $20,000. MDE attorneys Matthew Zimmerman and Patrick Smith declined to talk about the case, but MDE secretary Ben Grumbles said that he would like to settle it.

“We need to agree to the facts,” Grumbles said. “I want to move forward. I want to bring closure to this.”

But the state is now raising new arguments. After years of not disputing Litz’s claim that Goldsboro’s failing septic systems contaminated Lake Bonnie, MDE’s attorneys at the July 20 hearing questioned how much of the lake’s problem could be laid on the town – and, by extension, on the state’s failure to enforce its consent order.

The MDE attorneys pointed to other possible sources of pollution, including a small llama herd and a chicken farm, which they argued could have contaminated the lake. In motions filed before the hearing, they also contended that Litz lost her property because of poor business decisions — such as taking out a loan against the campground to make improvements to her home — and not because of contamination.

“The state denies that Goldsboro was the proximate cause. The data simply isn’t there,” Smith said.

Nelson, Litz’s lawyer, was incredulous, pointing out that the state’s consent order had blamed the pollution on Goldsboro’s septic tanks, as had the 1996 warning from the Caroline County health officer, who said that the town desperately needed a fix for its sewage problems.

“From the very first pleading in this case, the state admitted that the septic systems were a cause. They admitted it. Now they are reaching back into the past. You can’t walk that back,” Nelson argued.

Joseph B. Wolf, the town’s lawyer, said that the municipal government of the small community of 400 or so homes was “not obligated” to fix residents’ septic tanks. That obligation rested with the affected individuals, he said, and the county health department.

Judge Sidney Campen questioned how that was supposed to work. Wasn‘t the town responsible for its residents’ systems? Did Wolf’s reasoning mean that “Lake Bonnie was used as a sewage lagoon for the town,” the judge asked, and the town was fine with that outcome?

Litz’s attorney responded and said yes. He recalled that in 1985, and again in 1988, Goldsboro residents voted against building a sewage plant that would have raised their rates. The plant would have cost several million dollars, but the federal government was willing to fund 90 percent of it.

“They could have solved this problem for 39 cents a day, or if they wanted to be big spenders, 62 cents a day,” Nelson said. “They chose not to.”

Judge Campen told the attorneys he would take the arguments under advisement and reach a decision in a few weeks. At the end, he asked both parties about setting a trial date. A trial date was the very thing Litz wanted, but Hoon and Nelson said they take nothing for granted.

After the bank foreclosed on Litz’s property, it sold the campground and lake for $400,000 to a family that now maintains it as a private residence. And three decades after the county health department declared that Goldsboro desperately needed a wastewater treatment system, the state and federal government finally came together to fund a solution. In 2015, the county broke ground on a $19 million wastewater plant in Greensboro that will connect to the 100 or so homes in Goldsboro, about 10 miles away, next year. The state hopes eventually to extend the system to other nearby Caroline County towns with failing residential septic systems.

Litz waits in Florida for the judge’s ruling; after losing her Maryland property, she moved in with her children and grandchildren. She relives the memories of her campground through a Lake Bonnie Facebook page, where she posts updates on the case.

“I have been trying for over 20 years to get the pollution, human waste, stopped from being discharged into the stream feeding my former property,” she wrote recently. “I am still not a patient person. I am frankly mad that it was allowed to happen.”

(As originally posted, this article incorrectly attributed comments about the settlement discussions to both of Litz's attorneys. The Bay Journal regrets the error.)

About Rona Kobell

Rona Kobell is a former writer for the Baltimore Sun. .(JavaScript must be enabled to view this email address).

Read more articles by Rona Kobell

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Evan on July 26, 2017:

The Lake Bonnie saga exemplifies the state's entire strategy for addressing wastewater pollution: rather than enforce the law against counties and municipalities, the state will just pick up the tab after a lot of delay. Don't get me wrong, the Bay Restoration Fund should be a model for the rest of the country to follow and we would not be even close to restoring the Bay if not for that one piece of legislation. However, the state has chosen many times - as it did in the Lake Bonnie case - to not enforce the Clean Water Act or state water laws and to simply wait around until money materializes to fix the problem with taxpayer dollars. Many consent decrees and permits have been violated around the state over the last decade, often with little or no penalty, simply because MDE believes (perhaps not unreasonably) that the General Assembly has spoken on the subject and prefers a strategy of delaying action and waiting around for BRF subsidized wastewater upgrades over taking immediate action. It is indeed a sticky situation, but one has to wonder if a better situation couldn't be found by utilizing both subsidies AND enforcement to bring about quicker action that would prevent and avoid millions of pounds of pollution. Sometimes, as in the case of Lake Bonnie, it takes a whole lot less pollution than that to cause major issues and major injustice.


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