The 'lost' tier map law

How did Cecil County get away with flouting state environment law?

Five years ago, then-Gov. Martin O'Malley convinced members of the General Assembly to limit new subdivisions that rely on septic systems. It was seen as an important weapon in the effort to protect the Chesapeake Bay — counties could still authorize new developments, but they'd have to designate them for high-growth "tiers" as part of local comprehensive plans.

From the start, the effort was controversial, but about half of Maryland subdivisions ultimately complied. There was one especially egregious holdout — Cecil County where local officials created and administratively adopted a map that had little, if any, impact on controlling sprawl. Under the law, that should have meant that Cecil County would no longer be able to authorize a major subdivision that relied on septic systems, either individual septic tanks or any shared arrangement.

It hasn't worked out that way. The same Cecil County map that was found not to comply with the law while Mr. O'Malley was governor doesn't appear to be triggering any enforcement action whatsoever under Gov. Larry Hogan, either by the Department of Planning or the Department of the Environment. And Cecil County has responded to this disinterest by formally adopting the map previously regarded as out of compliance with the law.

Such a flagrant disregard of environmental regulations appears to be arousing little but a yawn from the current administration. Instead of threatening to deny any new septic-oriented subdivision in Cecil County, as then-MDE Secretary Robert Summers did several years ago, current Environment Secretary Ben Grumbles allowed the decision-making authority over compliance to be returned to the county's health officer. Asked about that decision, Mr. Grumbles issued a statement saying his agency is "fully committed to clean water progress and meeting Chesapeake Bay goals and requirements." But his agency's move follows actions taken last year to weaken "best available technology" standards for septic systems because of their cost to property owners. A spokesman said the agency is currently rethinking its approach to "septics versus sewers" decisions generally — perhaps finding ways to encourage more communities to switch from failing septics to central sewage systems.

There are a number of problems with this go-soft approach on septic tanks. The biggest is that the state's disinterest hasn't gone unnoticed by other counties that have been less than thrilled with limiting subdivisions with septic systems. Howard County Executive Allan H. Kittleman has already filed legislation, CB16-2017, to loosen tier maps in that county. Carroll, Queen Anne's and Wicomico are expected to follow a similar path.

Septic tanks are a significant source of water pollution, chiefly nitrogen, a nutrient that in excess quantities feeds algal blooms that block sunlight and suck up life-giving oxygen in the water. Along with phosphorus and sediment, nitrogen is regarded as the single greatest source of pollution for the Chesapeake Bay. And homes that depend on septic systems generate four times more of it than those connected to central sewage lines.

The bottom line is that the Chesapeake Bay has little chance of recovery if Maryland isn't willing to protect its open spaces and reduce sprawl. Under the last administration, this was commonly referred to as "smart growth," directing development to areas like towns and cities that can handle it and protecting open fields and forests that can't. There are, however, some individuals who believe that to own a piece of land is to have unlimited opportunities to build on it whatever they like — and that appears to be a prevailing sentiment among elected officials in Cecil County.

But, as the saying goes, the right to swing your arm in any direction ends at another man's nose. The right of Marylanders to have clean water and a healthy Chesapeake Bay needs to be asserted, too. If Governor Hogan and members of his cabinet are unwilling to enforce the tier map requirement, perhaps the General Assembly needs to transfer that authority to Attorney General Brian Frosh, who has long supported the law. The bay cleanup is facing too much uncertainty with the nomination of Scott Pruitt to head the U.S. Environmental Protection Agency to afford such a lax approach out of Annapolis. Mr. Hogan may not be a fan of state involvement in local planning, but without such participation, the consequences are clear — Cecil County will let people build recklessly, millions of taxpayers dollars spent on agriculture easements and other forms of open space preservation will have been wasted, and other counties will follow suit.

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