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Volume 14, Issue 8 ~ February 23 - March 1, 2006

Sen. Roy Dyson on Why Our
Critical Areas Law Doesn’t Work

with Sandra Olivetti Martin

Chesapeake Bay’s 1,750 miles of shoreline is the long frontline where environment and development grapple. Our state’s Critical Areas Protection Program is charged with holding that line at 1,000 feet inland of all waters that rise and fall with Bay tides. Enacted in 1984, Critical Areas is a landmark in our quarter-century-long effort to restore the great estuary that defines our region.

Yet wherever you look or live, you’ll see monuments to development’s victories: high-rise condos, McMansion communities, piers reaching out from armored shores, wetlands paved over and castles rising on islands.

Decisions as small as a homeowner’s right to cut a tree and as large as the development of a new golf course community of more than 3,000 homes between Blackwater National Wildlife Refuge and the Dorchester County town of Cambridge fall to the Critical Areas Commission.

The 29-member Commission set — and now applies — criteria to “minimize the adverse effects of human activities on water quality and natural habitats and … foster consistent, uniform and more sensitive development within the Critical Area.”

Has Critical Areas aged into a toothless watchdog?

That’s the question we posed to state Sen. Roy Dyson, who is the Senate chairman of the Joint Legislative Committee that writes the laws protecting both the Chesapeake and the Atlantic Coastal Bays Critical Areas. Dyson, who’s represented Maryland as a delegate and congressman as well as state senator, is a native son of St. Mary’s County whose roots in Chesapeake Country are three centuries deep.

Bay Weekly What’s your personal connection with Chesapeake Bay?

Dyson I grew up in the Bay area. Great Mills is my home and my family home for four generations that we know of. The Dysons are English Catholics who came to St. Mary’s in 1685.

Bay Weekly How do you explain our inefficiency at restoring this great Bay that drew us here?

Dyson It’s a question of will. There’s not the will on the parts of the governments and the government — that’s the local governments and state government — to make the decision to curb the growth.

It’s very, very clear that if we don’t start doing something about growth, we’re not going to lessen the impact [of our presence] on the Bay.

Bay Weekly Are you saying shut the door to development?

Dyson Not shut the door. But if we want to clean up the Bay, that’s our biggest challenge. All you have to do is look where growth is. Growth is moving outside Smart Growth areas into the most sensitive areas of the state.

I’m saying if you want to clean up the Bay, this is not the way. Maybe we don’t want to clean it up.

Bay Weekly So the problem is the appeal of the water …

Dyson When I was a little boy, there was no appeal to living on the water unless you worked on the water. Today, people are paying a quarter- and a half-million dollars for a site plus a footprint [of an old house] so they can build their McMansion — they’re truly mansions — on the water. The first thing they want to do is try to find a way to clear-cut the entire area around their new home for a view. Of course in so doing, they’re cutting all the vegetation that holds back runoff that contains fertilizer from well-manicured yards and golf courses.

It seems there’s no end. Look at Anne Arundel right now. These people build their mansions and say take me to court. We’ve tried to change it over the years, raise the fine levels counties can impose. But most of these homes are so costly, that [owners] are willing to pay a small fine for clearing as part of their construction costs.

Going to and from work in Annapolis every day, I travel across the South River Bridge and I look down at development right to edge of the water, with, riprap to protect the development right to the edge of a manicured lawn. When you see that up and down every tributary and around the Bay itself, you realize we’re not making much progress.

Bay Weekly Isn’t that the kind of development we have the Critical Areas law to prevent?

Dyson The Critical Areas law basically draws a 1,000-foot line around the Bay and the tributaries and says You cannot develop in that area because we believe if you do, you’ll harm the Bay. Everyone loves the idea — in concept.

Bay Weekly Are you trying to toughen our Critical Areas law this session?

Dyson What we’re really doing is trying to regain the ground that was established in 1984 when the Critical Areas bill first passed.

What we’ve been doing [ever since] is reacting to court suits. When we’re constantly doing that, we can’t look at the greater question of how to slow growth in the most sensitive areas.

Bay Weekly If we’ve got the law on our side, how have we lost that ground?

Dyson Over the years, we’ve spent our time fighting lawsuits by these wealthy landowners in the Circuit Courts, the Court of Appeals, the Court of Special Appeals, which is Maryland’s Supreme Court.

Here’s how it happens. Years ago, a developer built a hunting camp on the edge of the water without going through his county’s planning and zoning. The county took him to Circuit Court, and the Circuit Court agreed. But when it went to the Court of Appeals, they said the owner has the right to do it.

I put in a bill the following year, and Gov. [Henry] Hughes, who started us on protecting the Bay, came up and said That’s not what we intended. We intended to protect the Critical Area within a certain distance. You can’t construct without having an impact on the water.

We’re fighting that battle over and over throughout the state. So we’re not moving into any new areas.

Bay Weekly Given what we’re seeing in terms of development near the shoreline, isn’t it your job — as the Senate chairman of the Joint Legislative Committee on the Chesapeake and Atlantic Coastal Bays Critical Areas — to fight for a stronger law?

Dyson Oh yes. Co-chair Del. Barbara Frush and I have put legislation in every year, and sometimes it gets passed. Then [the defense] starts all over.

I think we’re going to get ammunition from the Environmental Law department of the University of Maryland School of Law. They’re in the process of doing a study, looking at all of the critical area violations. We met last fall and I said Go ahead. Come back and tell us where it’s falling down.

They’re reviewing every county and looking in depth into three counties, including Anne Arundel and St. Mary’s, to find out what’s happening.

Lawmaking is not as complicated as enforcement, and that’s the thrust of this study.

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