Maryland officials expect to ask the Court of Appeals to reconsider a split decision in August that would weaken the regulation of the buffer zone around tidal waters, a key to efforts to improve water quality in the Chesapeake Bay.

The 4-3 ruling by the state’s highest court “has the potential to be the legal equivalent of Tropical Storm Agnes hitting the Chesapeake Bay,” said Martin Madden, chairman of the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays. That storm caused major pollution problems throughout the Bay watershed in the summer of 1972.

“I anticipate that we are going to ask for a reconsideration,” Madden said. “Failing that, then of course we would have time to seek a legislative solution through the General Assembly in the upcoming session.”

The critical areas law, passed in 1984, gives state and local governments authority to regulate development in a 1,000-foot buffer zone around tidal waters.

“This is the most environmentally sensitive area of the Bay,” Madden said.

But in its recent ruling, the state’s highest court imposed new standards that environmentalists say would make it much harder to prevent construction in the buffer zone.

The ruling involved a hunting lodge and five other buildings constructed near a tributary of the Nanticoke River in Wicomico County. The majority opinion reversed a decision of the county’s zoning appeals board denying a permit for the development.

“Obviously, this has huge implications for the critical areas law,” said Denise Stranko, an attorney for the Chesapeake Bay Foundation.

Madden said the decision is a major change in administrative law, shifting the burden of proof from landowners to government officials.

“Normally, the petitioners have to prove that what they are doing is not going to be harmful to the environment” he said.

“You have a buffer area you cannot build on unless you get a variance,” Madden said. “What this decision could be construed to mean is that you have a right to a variance. That changes the precedent considerably.”

Madden said he will consult with the attorney general’s office about asking the court to reconsider its ruling. That would require persuading at least two of the four judges signing the majority opinion to agree to a rehearing and then requiring at least one to change his mind to reverse the decision.

If that failed, the only recourse would be to ask the legislature in January to pass a law overriding the ruling.
The decision was the fourth in a series of rulings weakening government control over critical areas. The legislature passed a law last year to restore much of the authority taken away by earlier court rulings.

Sen. Lowell Stoltzfus, the minority leader in the Maryland Senate, said the state has gone too far in regulating land use. He said he would oppose any efforts next year to try to overturn what he called “a reasonable ruling. “I think the court did the right thing,” he said.

While the case that was decided in August involved the buffer zone around tidal waters, Ren Serey, executive director of the critical areas commission, said the impact could go far beyond environmental law to cover all kinds of licensing and land use laws, “everything we do as a society.”