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More burden on the bay

A WEALTHY businessman bought a remote, marshy, nearly pristine island on the Nanticoke River in 1999 where he planned to hunt and fish.

Clearing and developing the land were strictly prohibited by a variety of state, county and federal laws intended to protect the delicate shoreline of the Chesapeake Bay. But he proceeded anyway, without permits and in secret, to construct a six-building camp -- even digging an illegal well for kitchen and toilet facilities.

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Most anyone who has ever struggled to follow the rules of living near the bay -- the farmers, the watermen, the developers, the homeowners -- would expect such a flagrant scofflaw to have the book thrown at him. Most anyone who saw reports last week of fish and crabs literally choked to death in vast sections of the bay because of pollutants -- coming in significant measure from overdevelopment near sensitive shorelines -- would be especially eager to see bay protections enforced.

That's what should have happened, but didn't. In fact, quite the contrary.

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Overturning two lower court decisions, Maryland's Court of Appeals ruled recently that Wicomico County officials failed to document the specific harm that Edwin H. Lewis' hunting compound would cause the environment, and effectively directed the county zoning board to grant him the necessary permits after the fact.

Ramifications of this decision, rendered by a 4-3 majority of the state's highest court, extend far beyond the fate of little Phillips Island. The ruling not only signals that there's no penalty for unlawful behavior, it shifts the burden to the government to prove in each case why laws intended to protect the general public should be enforced.

In so doing, the court gutted the 1984 Critical Area law that restricts development in buffer zones along the shores of the bay and its tributaries. It is based on the General Assembly's finding that the "the cumulative impact" of such development damages water quality and wildlife habitat.

"In its inexplicable effort to allow property owners such as (Mr.) Lewis to do whatever they wish on environmentally sensitive property, without regard to legal constraints or public policy, the court throws established principles of administrative law to the wind," wrote Judge Alan M. Wilner in his dissent. "It is not only wrong in this case, but sets a most unfortunate precedent."

Martin G. Madden, chairman of the Critical Areas Commission, is so alarmed he plans to ask the court to reconsider the decision, or at least narrow its scope.

If the court refuses, the General Assembly, which just two years ago reaffirmed its intent to curb development in the critical areas, will have to act again, perhaps with provisions that apply retroactively.

The bay watershed desperately needs more protection, not less. And if relief doesn't come fast, Mr. Lewis won't find anything left to fish or hunt.


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