The Ehrlich administration is considering a policy to lease or sell water on and under state lands - a move sought by towns thirsty for water to serve new homes but that critics say could pave the way for intense development on the borders of state parks.
Officials with the Maryland Department of Natural Resources say they have received about a dozen requests from towns that want either to tap into deep groundwater aquifers under state property or to use surface water flowing through state parks to accommodate new homes and businesses. The state currently has no procedures for considering such requests.
"We want to have a policy that says what the conditions are to say yes or no, so that we can defend the position either way," said Kristin Saunders Evans, an assistant secretary of natural resources. "We're trying to be responsible and proactive, and avoid a problem down the road."
The department is in the early stages of preparing the policy. In one draft, officials suggested that they would be looking at such issues as whether towns' proposals to tap state water benefited state government and whether the use was "reasonable" before granting permission. The agency says it has not decided how much it would charge local governments or developers who wanted to use state water.
Among the towns interested in state water are Boonsboro in Washington County, which is seeking the rights to groundwater in South Mountain State Park, and Middletown in Frederick County, which has asked about water in Gambrill State Park. Developers of Terrapin Run, a 4,300-home community proposed for Allegany County, inquired about tapping into Green Ridge State Forest to build their project but say they have since made other arrangements.
For at least five years, the state has been providing water to a Western Maryland ski resort and to a complex of buildings in Carroll County. But some critics say that establishing a policy would inevitably lead to more such deals and would encourage development around environmentally sensitive state lands.
Such a policy "will lead to a development-driven atmosphere," said Victoria Woodward, executive director of Safe Waterways in Maryland, a conservation group. "Communities will begin to change their comprehensive plans and push development toward state parks in the hope that they'll get to use those waters."
"It shows you a mind-set that is antithetical to conservation and to good stewardship," said Frosh, a Montgomery County Democrat, who learned of the proposal last week from reporters.
Two years ago, preservationists were infuriated when Ehrlich administration officials began negotiating an agreement to sell 836 acres of forest in St. Mary's County to Willard Hackerman, the politically influential CEO of the Whiting-Turner Contracting Co. The proposal drew sharp criticism, and the transaction never took place.
But when lawmakers discovered that the DNR had compiled a list of 3,000 acres of land in and around state parks that could potentially be sold, Frosh helped push legislation through the General Assembly prohibiting state agencies from selling or leasing such property without Assembly approval. In addition, lawmakers approved a second measure to make those restrictions part of the Maryland Constitution. The amendment is subject to approval by state voters and will be on the November ballot.
"You would think that DNR would have gotten the message, but apparently not," Frosh said.
The department doesn't appear to need permission from the General Assembly to enact a policy. In at least two cases - both negotiated during Democratic administrations - the DNR is already selling or giving away state water.
In the late 1990s, the agency granted Carroll County permission to drill a well on land it leases in Patapsco Valley State Park. The county pays nothing for the 50,000 gallons a day it gets from the well, which serves a state police training facility and other tenants on the grounds of the former Springfield State Hospital.
And since at least 2001, the state has been providing water from Deep Creek Lake to the Wisp ski resort for what DNR officials describe as a nominal fee. Wisp has permission to take up to 189 million gallons a year.
When Wisp recently asked for more water, DNR officials took a closer look at the deal and realized that it was lopsided in favor of the resort, according to Assistant Secretary Mike Slattery.
"If we're going to make available this state asset, we need a better-structured deal," he said. DNR officials said they could not immediately provide a copy of the Wisp agreement.
Department officials have pointed to Baltimore City's sale of water to Carroll County as a potential example of a better, market-rate deal. The city charges about 37 cents per 1,000 gallons for water from the Liberty Reservoir.
On the surface, Maryland appears an unlikely place for a water shortage. It has the Chesapeake Bay, many streams and rivers, and usually plenty of rain. The Potomac River supplies the growing Washington area, and Baltimore City uses three reservoirs for its water needs.
But the difficulties are in the Piedmont region, where much drinking water comes from underground and can be hard to retrieve because of the geology. The aquifers, which are replenished by rainfall soaking into the ground, also furnish water to nearby streams.
The Maryland Department of the Environment issues permits that allow towns, businesses or developers to sink wells on private or locally owned land. The MDE allows users to take only groundwater that can be replenished, said Robert Summers, the agency's water management director. If it let towns or businesses take more, the aquifer could go dry and so could the nearby streams. To guarantee that that won't happen, the MDE requires roughly 1 acre of undeveloped land be available to replenish the groundwater used by every household that would be hooked up to the well.
The state's policy has curtailed large-scale, dense housing in and around communities dependent on groundwater - which municipal officials complain conflicts with Maryland's Smart Growth policy to direct development to existing towns and cities.
Forced to find land to replenish the additional water they want to pump, towns and developers have increasingly been looking to fallow land - farms, parks and even golf courses - to use as recharge areas in the MDE's calculations.
Middletown's town administrator, Andrew J. Bowen, who plans to put in a formal request for water from the Gambrill park once the state has a policy, said allowing towns to tap into state parks is something the DNR should consider.
Two years ago, state environmental officials took the extreme step of halting all construction in the Frederick County town because it had ignored repeated warnings that growth was using up the community's water supply. The town acquired a new well last year that lifted the ban, but Middletown still has to get state approval each time it wants to issue more building permits.
"If the state's goal is to accommodate the new people that are moving into the state of Maryland, it's going to take thinking like that to solve the problem," he said.
Members of the State Water Quality Advisory Committee, a panel of citizens that reviews water issues for the state, learned last month that the DNR was drafting the policy. Several members complained that the agency didn't have the right to lease or sell water that belong to the public. Committee members, who are appointed by the secretaries of the DNR and the MDE, requested a special meeting to further discuss the policy.
The meeting is scheduled for Friday at the MDE's Montgomery Park office.
Safe Waterways' Woodward, who also sits on the water quality committee, said that when DNR officials presented the policy, they seemed more concerned with setting price and use criteria than with figuring out a legal justification to deny requests.
Neighboring states allow water withdrawal from public lands only in isolated cases. Pennsylvania has allowed wells to be drilled in one state forest to supply some existing rural communities. West Virginia furnishes water to the town of Berkeley Springs from a state park because the land was donated to the state under those conditions.
M. Gordon "Reds" Wolman, a Johns Hopkins University geography professor who chairs a state committee charged with protecting and managing water resources, has told DNR officials to stand firm and not give in to developers.
"Fundamentally, the water associated with [state] lands is really water to serve the citizens of Maryland as a whole," he said, "and, presumably, for a very long time."