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Bay protection eroded, bit by bit

The Baltimore Sun

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."

The commission has been in court frequently in recent years, and lawmakers have been asked to patch up the program after rulings favoring landowners.

The law also grandfathered in many lots, so it is not uncommon for homeowners to tear down a cottage and build a larger home.

Another common problem was the counties' willingness to grant variances to shoreline homeowners. A Chesapeake Bay Foundation analysis conducted last summer of four coastal counties, including Anne Arundel, showed that they granted variances at least 75 percent of the time.

"This is a law being implemented by 64 jurisdictions, with very limited or basically no state oversight. It's a recipe for bad standards, bad enforcement and bad implementation," said Jennifer Bevan-Dengel, executive director of the Patuxent Riverkeeper group.

The critical area sprawls along 5,200 miles of shoreline, covering more than 1,000 square miles. The commission says it has never tracked the number of homes built or subdivisions approved; neither has it tallied the violations.

Frustrated by the lack of information, the state's riverkeepers, nonprofit environmental watchdogs affiliated with a national group, asked the University of Maryland law clinic to study the Critical Area Law and determine how often it was violated.

The riverkeepers made their request in response to some high-profile violators. Among them was Daryl Wagner, a developer who built a large house on an island in the Magothy River - complete with a lighthouse, gazebo, driveway and swimming pools - without permits.

Another major violation occurred in Wicomico County, when wealthy sportsman Edwin Lewis tore down trees and destroyed vegetation to build a hunting camp on a Nanticoke River island. Lewis did not have permits.

A third attention-getting case was Blackwater Resort, a 3,200-home development planned near the Blackwater National Wildlife Refuge outside Cambridge. That was one of the few projects that the Critical Area Commission could halt, because Cambridge officials were seeking a zoning change. The commission voted not to allow the rezoning, and eventually the state bought much of the property to preserve as open space.

The law school study found that, while violations like Wagner's popped up every few years, the much more common affronts to the law involved small incursions. The study concluded that enforcement varied widely and that it was hard to determine the cumulative harm to the bay.

Anne Arundel County Executive John R. Leopold acknowledges that his county has granted "an inordinate amount of variances" and that the Wagner case has been "a black eye." After he was elected in 2006, Leopold said, he hired more inspectors despite an overall hiring freeze, bringing the total to seven.

"This county has been overbuilt and underplanned for decades, and violations of the Critical Area Law were far too frequent," Leopold said.

Koslow said Leopold is doing a better job than his predecessors. But he said the county can't really enforce the law when it lacks a key piece of equipment.

"They don't even have a boat for their inspectors," Koslow said, "which is absurd."

rona.kobell@baltsun.com tim.wheeler@baltsun.com

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