Bay protection eroded, bit by bit

Drew Koslow, riverkeeper for South River, says he has noted numerous violations of the law that is designed to protect the bay and its tributaries. (Sun photo by Jed Kirschbaum / January 15, 2008)

Drew Koslow steers his skiff under the Route 2 bridge near Annapolis and heads up the choppy South River, past the Spanish villas and faux-Victorian mansions that have replaced the cottages that once sat along its banks. Fifteen minutes into the trip, he has already noted a half-dozen violations of the state's pioneering Critical Area Law - or at least of the legislation's intent.

On one lot, a property owner knocked down a small house and bulldozed a meadow of native grasses to put up two larger homes closer to the water. Another newcomer removed the marsh grass and fertilized his lawn to the water's edge, all without a permit. And in front of another house, someone has filled a wetland with sand, creating a beach but destroying a habitat for birds and aquatic species.

Nearly 25 years after the General Assembly passed a groundbreaking law to protect Maryland's coastline - and the health of the Chesapeake Bay - the land closest to the water is more developed than environmental advocates ever thought possible. Many say the law is dying the death of a thousand cuts, as hundreds of property owners violate it outright or are given permission by local governments to build driveways and decks or cut down trees to enhance their views.

The law was designed to prevent such incursions into what is often considered the bay's last line of defense. Cutting down shoreline trees causes erosion, and the wetlands and marsh grasses that might look like weeds actually filter out pollution and provide nesting areas for turtles, birds and other wildlife.

Violators are rarely fined, and the amounts are so small that the penalties have little deterrent effect. In the rare cases in which a homeowner is asked to mitigate the damage, the harm to habitat has already been done. Local governments can make a homeowner tear down an offending structure but rarely do so.

"The law's got to have some teeth," said Koslow, a South River Federation "riverkeeper," echoing the view of other environmentalists and the O'Malley administration.

The administration is expected to propose legislation this week to change the Critical Area Law to further restrict development. Activists hope the measure will give the state greater authority to enforce environmental protections. They also want to impose stricter criteria for exceptions and stiffer penalties for violations.

Gov. Martin O'Malley became a vocal critic of the current law last year when he learned that the Chesapeake Bay Critical Area Commission had approved the 1,350-home Four Seasons development on Kent Island. The project had been approved by local officials even though it was almost entirely in the critical area.

Any effort to change the law is likely to face opposition from some Republican legislators, homebuilders, local officials and waterfront homeowners.

"My general impression is the law is working as it is," said Sen. J. Lowell Stoltzfus, a Republican representing the lower Eastern Shore. Though he supported a measure to increase the penalties for violating the law a few years ago, Stoltzfus says regulators need to be "a bit more flexible when the environmental impact isn't as great."

Those who shepherded the Critical Area Law through the General Assembly never expected to see views like the one from Koslow's boat.

"There's probably been more development in the critical area than any of us would have expected back when the law was passed in 1984," said Thomas Deming, a former assistant attorney general who helped write the legislation.

The Critical Area Law was the centerpiece of Gov. Harry R. Hughes' Chesapeake Bay Initiative, a package of laws to protect the estuary. It aimed to restrict development within 1,000 feet of the shoreline and largely prohibit it in the 100-foot buffer between land and water.

Hughes knew that Maryland's tradition of local control would make it impossible to pass a law giving the state authority over building permits or zoning. So the law established a Critical Area Commission to advise local governments on how to enforce the law.

The counties and towns would need state permission to rezone parts of the critical area from low-density to high-density, but local boards retained much authority. They could grant variances if a homeowner wanted to build a new house or add to an existing one; they were responsible for meting out fines or requiring mitigation.

"It was really highly unusual that we got the Critical Area Law passed," Hughes said, "and so we got the best law we could get."

It wasn't long before its flaws became apparent. Each of the 64 jurisdictions that enforce the Critical Area Law was required to draw maps of their shoreline. Those maps are now more than two decades old, and sea level rise and erosion have rendered many inaccurate.

Local governments lack the staff and equipment to police the shoreline, often relying on private citizens to tell on their neighbors. Inspectors often learn of violations only after they occur. With fines often less than $1,000, many homeowners find it easier to ask forgiveness than to ask permission.

The never-ending pressure to build close to the bay and its tributaries has made the 29-member commission's job more difficult over the years.

"Everybody has a lawyer or two," said commission director Ren Serey, "and everybody wants to go to court."

Related topic galleries: Martin O'Malley, Government, Chesapeake Bay, Local Authority, Executive Branch, Chesapeake Bay Foundation, Environmental Politics

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