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Volume 16, Issue 10 - March 6 - 12, 2008


A March Must:
Fixing Maryland’s Broken Critical Area Law

Updating Maryland’s Critical Area Law for the 21st century ought to be a slam dunk. Not only is it the last line of defense for an ailing Chesapeake Bay. It’s also got a full-team press of power players on its side.

A bald eagle soared above the Chesapeake Bay Foundation waterfront press conference introducing the 2008 revisions in the 24-year-old law, adding its authority to the all-star team of Gov. Martin O’Malley; former governor Harry Hughes, who presided over the original law in 1984; the Foundation’s Maryland director, Kim Coble; Environment Maryland’s director Brad Heavner; and an assortment of Maryland riverkeepers, including Bob Gallagher and Drew Koslow.

The old law, they agreed, was visionary for its time but not adequate for ours.

To control development in the critical 1,000 feet up to the edge of tidal waters and wetlands, including the Chesapeake and coastal bays, Senate Bill 844 and House Bill 1253 make five big changes:

1. Restore the Critical Area Commission’s regulatory authority over critical areas.

Under current law, regulations are made by the 64 local jurisdictions, including 16 counties and 48 municipalities.

2. Strengthen enforcement.

The new law would require builders and home-improvement contractors to comply with the Critical Area law or, O’Malley said, lose their licenses. Additionally, anyone who builds an illegal structure in the Critical Area would have to move it.

3. Strengthen protection of water quality and habitat for wildlife, like the eagle whose appearance seemed to bless the new law.

4. Establish new procedures for processing variances, the loopholes of the old law. A Chesapeake Bay Foundation study of four counties found that 67 percent of variances were approved.

5. Update the Critical Area boundary, which has not been adjusted since 1972.

To prevent houses from being built near the water, the new law will, for example, require a 300-foot setback for all new subdivisions in the undeveloped Resource Conservation Area of the Critical Area.

The Maryland Association of Counties has responded with predictable concerns over losing local control, using words like “usurpation” and “intrusion” in testimony last week. That is the same sort of turf-protecting that made Maryland’s Smart Growth law a toothless tiger. The state lacked authority to step in and manage growth wisely in sensitive areas, which is how counties wanted it.

The association said it would support the legislation if amended, but most of the amendments it seeks would gut the bill.

But the counties made a legitimate point in objecting to costs of the legislation’s enforcement provisions. Noting that county governments absorbed a $375 million loss in budget reductions in the 2007 special session, the association said that some of the costs of the legislation would amount to an unfair burden, which localities like to call an unfunded mandate.

The General Assembly should reimburse counties for the costs. But members should not give in to pressure to maintain a regulatory system that is broken when protecting Maryland’s fragile shorelines help us fix the Bay.

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