Attorney general opinion: ‘Significant possibility’ Baltimore County bill would violate Maryland environmental rules

Published on: August 24, 2022 at 6:00 am EDT

Updated on: August 24, 2022 at 5:12 pm EDT

The Maryland attorney general’s office says it “seems clear” a Baltimore County councilwoman’s proposal to exempt waterfront business owners from some environmental protection requirements would violate state law, but that the final decision would be up to a state commission.

The bill, which Democratic Councilwoman Cathy Bevins proposed, would exempt waterfront hospitality businesses that want to build or expand from certain state restrictions.

Assistant Attorney General Kathryn Rowe wrote in an Aug. 18 letter that there is a “significant possibility that implementation of the proposed legislation would be found to conflict” with Maryland environmental laws, specifically the Critical Area Act designed to protect the Chesapeake Bay.

But Rowe wrote it’s impossible to say for certain because the state’s Critical Area Commission is the authority on proposals like Bevins’ — the governor-appointed body offers suggestions on and ultimately decides whether certain development projects or a jurisdiction’s proposed policy changes comply with Chesapeake Bay preservation laws.

The proposal would upend current regulations that, under state law, typically limit building within a 100-foot buffer of the shoreline of the country’s largest estuary and its waterways — and is full of red flags, said Del. Dana Stein, a Baltimore County representative and House chair of the Joint Committee on the Chesapeake and Atlantic Coastal Bays Critical Area. Stein requested the opinion from the attorney general’s office after constituents who oppose the bill contacted him.

Maryland counties and Baltimore City can modify buffers, with the commission’s signoff, as long as changes don’t heavily deviate from state regulations governing the Chesapeake Bay critical area, which encompasses land within 1,000 feet of the state’s shoreline and tidal wetlands.

The critical area was established after the General Assembly passed sweeping legislation in 1984 meant to prevent runoff and other pollutants from flowing into the nation’s largest estuary. The bay’s water quality and marine habitats and wildlife had diminished over decades, but have more recently shown signs of improvement.

The proposed Baltimore County legislation “would require significant changes to” current requirements, Rowe wrote.

The bill introduced by Bevins, who represents Middle River and much of the county’s waterfront, would quash setback requirements by allowing developers to build “up to the edge of the water” without having to mitigate the environmental effects that come with removing natural vegetation and creating more impervious surfaces that worsen stormwater runoff.

Regulations prohibit municipalities from approving development within 100 feet of tidal wetlands and tributary streams’ edge unless the applicant meets strict standards to get a variance from critical area requirements. Under current law, property owners who are granted the exception must offset the negative effect of new construction, or else pay a fee in lieu of mitigation.

Experts say mitigation requirements and preserving vegetation within the 100-foot buffer are cornerstones of the Chesapeake Bay Critical Area Protection Program.

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The bill would compel the county’s Department of Environmental Protection and Sustainability director to approve all permits for new construction, as well as additions at marinas and restaurants that serve alcohol and operate along the coast of bay waters.

“It would gut important parts of the critical area laws,” Stein said, and “clearly conflict with current state law.”

Another clause in the proposed legislation said the amendments would supersede “any other regulation or law” should they conflict with the proposed changes.

That provision “makes it sound like if this bill were to pass, it preempts everything else,” including possibly state law, Stein said. “That’s just not the way things work.”

Tom Horton, an educator and former journalist who covered Maryland environmental policy for decades and has authored books on the bay’s health, said the state has “learned a lot about protecting shoreline” and the Critical Area Act requirements are part of that.

“Things like wood and debris — that’s just amazing habitat for everything from blue crabs to fish. That means leaving the shoreline natural rather than putting up a rock wall,” he said.

Stein and Horton said they’re not aware of any other local proposals that sought to unilaterally exempt landowners from environmental regulations.

If the bill makes it through the council and Critical Area Commission, “my guess is every other county on the water would take a look and say, ‘How ‘bout us?’” Horton said.

“That’s why that would be such a slippery slope,” he added.

Bevins, who was first elected in 2010 and isn’t running again, didn’t return a request for comment.

The draft doesn’t seem to have support among elected officials.

Dori Henry, communications director for County Executive Johnny Olszewski Jr. — who has made environmental sustainability a cornerstone of his first term — has said waterfront businesses should be supported “without significant environmental impact.”

Republican Councilman David Marks, a member of the Critical Area Commission who’s running to represent parts of Bevins’ reshaped district, previously said that efforts to support waterfront businesses shouldn’t wear the shoreline’s integrity.

If the council passes the bill, it can’t be implemented without the approval of the Critical Area Commission, which may also suggest amendments.

Kate Charbonneau, the commission’s executive director, has declined to comment on the proposal since the commission hasn’t formally reviewed it, but said that mitigation requirements are a significant factor the commission considers when reviewing matters involving critical area laws.

“Are there changes that could be made to make [the bill] palatable?” Stein said. “Yeah, but it would basically require a complete rewrite of the bill.”

“In my opinion, I can’t see how the commission would approve this,” he said.

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