A new report from the University of Maryland Environmental Law Clinic confirms what many Bay advocates in Maryland have concluded from years of personal observation: The two-decade-old Critical Area Act, one of the first major pieces of legislation to protect the Bay, isn’t working very well.
The report concluded that “There are problems with both the way the law is written, as well as the way it is enforced.”
Passed in 1984, the Critical Area Act is supposed to protect all shoreline areas within 1,000 feet of tidal waters in Maryland from the cumulative effects of unlimited development, while conserving habitat for fish, plants and wildlife.
The power to enforce the act, and to approve projects that don’t follow the letter of the law, rests in the hands of 61 local governments. Kerry Rodgers, visiting associate professor of law, worked with four student attorneys at University of Maryland Law Clinic to explore the outcome.
The legal team found that local procedures and criteria vary widely, resulting in a law that is weakly and unevenly enforced. They concluded that a lack of resources and a variety of legal interpretations lead to practices that favor development and impose few, if any, penalties for violations.
“Routine, small-scale violations threaten the bay with death by a thousand cuts, but the much less frequently occurring, large-scale violations set terrible precedent and have a larger individual impact,” Rodgers wrote in the report.
Of the local governments surveyed for the report, most were understaffed and none had a boat from which to make shoreline inspections.
“Local enforcement is almost entirely responsive, instead of proactive, allowing many Critical Area violations to go unnoticed,” Rodgers wrote. “Local officials rely heavily on individual complaints to notify them that a site inspection is needed and that a Critical Area violation may have occurred.”
West/Rhode Riverkeeper Bob Gallagher requested the study on behalf of the nine Maryland Riverkeepers, who serve as watchdogs for local waterways. Gallagher said that the findings validate a widely held public perception that the Critical Area Act isn’t achieving its goals.
“Lots of people are doing projects in the buffer without permits or variances,” he said. “If they do have permits, they are often doing work that exceeded those permits. When we report those situations to county officials, they are rarely sanctioned in any way. They just apply for retroactive permits or variances, and they get them.”
In part, local governments avoid issuing fines because defending them in court is costly. Many jurisdictions instead require landowners to compensate for offenses by minimizing paved surfaces, installing rain barrels or planting trees.
Flexible interpretations of the law lead to approvals for many variances. For example, new homes can still be built on “grandfathered lots”—that is, property zoned for homes before the Critical Area Act was passed. But some counties extend the allowance to existing older homes, approving most new additions, decks and outbuildings.
The replanting requirements for clearing forests in the critical area also vary by county. An Anne Arundel County landowner who clears one acre of forest typically must plant an acre of land with at least 400 trees. But a St. Mary’s County landowner who clears one acre of forest will need to replant 109 trees, while in Queen Anne’s County the landowner will need to plant only 70 trees. Such discrepancies are reflective of political will rather than poor enforcement, the report said.
“Jurisdictions that have more political will to protect the Critical Area write and interpret regulations with stricter requirements, and those with less political will to protect the Critical Area write looser regulations or interpret regulations more flexibly,” Rodger wrote. “Although both are legal, they result in differing levels of protection for the Critical Area.”
Gallagher said the report shows that “enforcement officials have a lot of discretion under the statute, and they’ve chosen to tip the balance in favor of development.”
The report also noted that site plans, permits and variances are reviewed on a case-by-case basis, without examining their cumulative impact on the Bay.
“Most people I talk to are aware of the problem,” Gallagher said. “I’m more interested in getting the message through to regulators and legislators. Will something be done about it? That’s what’s important.”
Martin Madden, chairman of the Maryland Critical Area Commission, a state agency that oversees local enforcement of the law, said that the commission wants to help address the challenges facing the Critical Area Act. During the 2004 and 2006 legislative sessions, the commission sought and won legislation to increase enforcement powers, increasing the maximum level for fines and giving local jurisdictions authority to seek help from the commission on enforcement issues.
Madden said that the law clinic did an excellent job of capturing the complexities and the challenges of working in the critical area. “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,” he said.
The Associated Press contributed to this report.