Chesapeake Bay Action Plan

Historically, land use decisions have been left up to local governments. While the State has tried to influence these decisions via various policy statements regarding smart growth, local autonomy has rarely been challenged and the laws implementing State policy generally have no “teeth.” Clearly, sprawl development has not been significantly curbed by these policies relying on voluntary compliance and recent legislation has reflected a trend to add at least the threat of a “stick” to the lure of a “carrot.”

SB236, The Sustainable Growth and Agricultural Preservation Act of 2012, encourages development supported by public sewer systems as opposed to sprawl development on septic systems. On the surface, this looked like a “win-win” piece of legislation that limits where septic systems can be used as a way to promote smart growth with a strong Chesapeake Bay cleanup component. The legislative provisions were implemented via “shall” statements to more forcefully push local government toward smart growth policies that concurrently reduce the associated growth costs born by the taxpayers and threats to the environment. However, some counties have revolted against the State’s threat to their autonomy and decided to test the State’s resolve to use the “stick.” Charles County seems poised to join the ranks of Frederick, Cecil and others who don’t have a problem with new development costs being born by the taxpayers and the water being too dirty for their children to play in.

Normally, there is some give and take between smart-growth advocates and the development community during the comprehensive land-use planning process. However, the 2012 Draft Comprehensive Plan for Charles County (The Plan) was essentially written by the development community to the exclusion of smart-growth policies, and without directives and goals based on serving the broader public’s interest. The process was permeated by the insistence of a majority of the Planning Commission (PC) that zoning density is a property right and downzoning is a “taking” of rights – a conclusion that is not supported by legal precedence, court decisions or the history and application of local zoning ordinances throughout this nation.

Therefore, any attempt to limit development anywhere in the County was automatically opposed with no regard for the obvious and well-documented potential environmental, quality-of-life, and fiscal consequences. Ultimately, this “takings” argument has set the course for a new land-use vision that will burden taxpayers with the cost of sprawl, cause further environmental degradation, and destroy resources that have public-health, ecological and economic value.

This Property-rights hysteria has led to clear violations of State policy as implemented in Maryland statutes. The development forces took complete control of the process via their sympathizers on the PC who willingly ignored and even actively conspired to circumvent State laws. The PC majority blindly embraced a tiers map developed in secret by a pro-development lobby made up of realtors, developers and farmers/speculators. Instead of complying with either the spirit or letter of SB236, the developer map ignored clear policy goals and statute text aimed at limiting septics in sensitive areas. In an attempt to circumvent the text of the Bill, the PC voted to change the zoning of over half the County to remove the word “Conservation” from the zoning classifications. There was no planned comprehensive rezoning and no assertion of a mistake or change in neighborhood as required by the Land Use Article in State Statutes. The majority of the PC just “spot-zoned” all the areas where they wanted to increase development on septics in total disregard for the law.

Apparent loop holes in the text of the Bill were exploited to increase the size of all minor subdivisions on septics from five to seven lots and also allow residue parcels to be treated as new subdivisions so some existing minor subdivisions can be expanded to 12 lots. Adequate Public Facilities mitigation is much less of a burden for minor subdivisions than for major subdivisions. Therefore, minor subdivisions are more of a burden to the taxpayers but better for the builders’ bottom lines.

The apparent corruption of sound growth and development concepts has also infected the Board of County Commissioners (BOCC) who didn’t have to endorse the PC’s biased anti-environment agenda. However, recent actions by the BOCC indicate that the development lobby has succeeded in seizing control of at least three of the five Commissioners who are willing to rubber-stamp the irresponsible decisions of the rogue Planning Commission.

Given that the state has established that the public has a right to witness the iterative process of zoning and comprehensive planning, it is critical to note that the public was not privy to details surrounding how this tiers map was developed. It was created by a private company, under the direction of a pro-development faction, and the public did not have access to the decision-making regarding what parameters were used to devise and establish the four tiers.

It remains to be seen if the political will to protect, preserve or conserve anything exists at the BOCC level.  However, it seems clear that the laws have enough “teeth” to hold Charles County accountable for The Plan and the tiers map, under review by various agencies. That the laws have been violated is not debatable; the violations are obvious and only the capability and commitment to enforce them are in question. It seems likely that Charles County will join the ranks of other counties thumbing their noses at state policies and that enforcing these policies and the laws that are being broken will fall to either the State or to coalitions of private organizations with limited legal assets.

It also seems that this type of behavior on the part of the PC majority should qualify for disciplinary action against them. According to The Land Use Article, the BOCC has the authority to remove Planning Commissioners for malfeasance. Most oaths of office include promises to honor laws and uphold the public trust, neither of which has been done in this case. However, the BOCC has not taken such action and the political will to do the right thing may not be strong enough – especially since their majority seems to mirror the same contempt for state law and the majority of Charles County citizens as does the PC. However, it should not be assumed that the residents of Charles County are unwilling to seek judicial remedies against those officials who ignore our laws and abuse the public trust. The PC-approved tiers map and comprehensive plan both fail Charles County, its citizens, and the Chesapeake Bay.

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Before Henry David Thoreau borrowed an axe and withdrew to the woods at Walden Pond, he spent a great deal of time daydreaming of owning a proper farm. He writes that “at a certain season of our life we are accustomed to consider every spot as the possible site of a house.” Toward this end, he had “surveyed the country on every side within a dozen miles of where I live. In imagination I have bought all the farms in succession.” He imaged how he would transform the land “into orchard, wood-lot, and pasture” and decided “what fine oaks or pines should be left to stand before the door.”

It seems that no one, not even the sage of Walden Pond, can escape from the pull of home ownership. In many ways it is the American Dream—white picket fence, grassy lawn, dog rolling in autumn leaves, every home a castle and every homeowner the king or queen of their castle. Entire television programs—no entire television networks—are based on the premise of buying, building or rebuilding the perfecting home (e.g., “House Hunters,” “Property Virgins,” “Curb Appeal,” and my favorite, “Flipping Out”—who can resist Zoila?).

Being against home building is like being against procreation: It is pointless. But for as long as I can remember, being a member of the Chesapeake Bay environmental community has been synonymous with being against development (against development on Kent Island, against development near the Blackwater Refuge, against development in the critical area, against development in rural areas, against development of the Montgomery County, Md., Inter-County Connector…).

I like a good yurt as much as the next guy, but the fact of the matter is most people, environmentalists included, live in houses. So it cannot be that the environmental community is against homes. A cynic might suggest that they are against other people’s homes, but that too does not ring true. The fact is that the environmental community is not against homes, what they are against is the environmental harms created by antiquated building techniques. Specifically they are against the environmental harms created by adding outdated buildings in areas with rivers that are already severely degraded by years of thoughtless building practices.

The harmful runoff from homes, which poison our rivers and threaten the Bay, is not an unavoidable consequence of home building. Living roofs, storm water catchment areas, pervious surfaces and countless other techniques can dramatically reduce the environmental impact of construction. And using these practices in the built environment to replace or rebuild outdated urban structures can actually produce environmental benefits. That is right, development, if done intelligently can lead to environmental gains. Moreover, this does not require limiting all future development to industrial brownfields. What it mean is implementing environmentally sound building designs into new projects, while at the same time setting side enough resources to correct the misdeeds of the past.

So build new homes, build as many as you want, make them as big and fancy as you want, but make sure they lead to no net pollution gain in our already impaired waterways. And if you cannot make them big, fancy, plentiful and environmentally benign, than just make sure that they are environmentally benign.

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(Posted by Fred Tutman.)

The legend of Robin Hood is about a fabled band of brave outlaws in medieval England who took money from the rich under a repressive monarchy and redistributed it to the poor. Sounds like a good thing right? Take something from somebody who has too much and give it instead to somebody who has not enough. What could be wrong with that? Fast forward into reality on the Chesapeake Bay, the 21st century and the lopsided world of “net environmental impacts” where we can take a perfectly good and functioning wetlands site, turn it into a parking lot and then make up for it by restoring a wetlands half way across the state. Wow. The ultimate ecological shell game. Have we really arrived at a state of affairs where not only are our watersheds competing for scarce resources but also for the spoils of ecologically damaging construction activity in other watersheds?

The core rationale to this warped and misguided practice is that we are in some way assuring that there is no “net” loss of wetlands. But of course artificially created wetlands do not at all compensate for naturally occurring ones, and besides what about the local impacts such losses create? Local impacts are usually poorly aligned with “net” impacts. My dealings with planning boards and engineers in my seven Patuxent Counties suggests that the relative value of these everyday mitigation trade-offs are incomprehensible. You swap a good thing for a bad thing and in the end the only commonality between the components in the transaction is that it all involves “things” almost impossible to fairly quantify. It encourages one to just fiddle with the numbers on paper and receive instant government sanction for bad practices. Like the wampum we used to give Native Americans for their land, most of these swaps are dreadful bargains. What is given is usually a poor substitute for what was taken. The transactions appear as a lifeline to those who want to feel a little less guilty about wrecking an ecosystem in one place, as long as something gets fixed elsewhere. Usually these “deals” are measured in acres, or dollars or some other benchmark that does not fairly represent the true value held by those who have been dispossessed of it. The standard operating procedure is that most will take a funded off-site mitigation project any day of the week in exchange for a quid pro quo that helps an applicant obtain a permit to do exactly what he was inclined to do all along. Want to redirect a stream? Sure no problem, go fix another one somewhere else halfway across the state.

The idea that there is something just or fair in this sort ecosystem haggling is mind boggling to anybody on the receiving end of a lousy construction project with “mitigation” attached to it. Let’s be clear about what a lousy one is. It’s one that gives rise to unfair, wanted and unnecessary impacts. One that confers the burden of bad practice arbitrarily onto others with no choice over the impacts or outcomes. It is the relative injustice of helping some business interest make a profit while impoverishing the next few generations of downstream stakeholders. But it is okay because we said mea culpa in some other county that-a-way? Please tell me most people don’t think this is okay.

The builders typically think the purpose of environmental regulations is to protect their property rights. Environmental moderates think it is about “balancing” or compromising the equities to make sure everybody walks away with something. Granted, hardliners like me have always assumed the purpose of the laws was simply to protect the environment and the public interest embodied in clean air, water and land. All sides of the equation have entirely different expectations for the outcome of the process. But in the end, there is something incompatible in what they all want. It is impossible to balance these competing interests, one must simply choose what is wanted most. Frankly, there is no property right that allows you to ruin the property interests of those downstream or next door, there is no way to balance or compromise over the gold standard of pure clean water. If laws are to protect the environment, we need to enforce them, not balance them.

So back to legendary Robin Hood. He was as legend tells us, a patriot operating in under a cruel regime where he needed to become an outlaw in order to obtain justice for those without access to power. But when it comes to robbing the environment in broad daylight with the full weight of the government and big investment money behind you, and where the wealth being appropriated is environmental wealth (the “commons”), then how come not nearly as many people see this for what it really is? It is legalized highway robbery under a different name. Regulatory agencies more terrified of being sued by business interests than they are of dirty water are genuinely a poor substitute for the idealism of a Robin Hood.

Some reading this will plainly think I am against environmental mitigation. I’m not. I’m against bad mitigation. I’m against mitigation that masquerades as honest remediation. I’m against swapping the environmental wealth like fisheries, clean water, and healthy benthic life from one community or habitat and then giving the rewards or reinvestment to another community, sometimes in an entirely different watershed or even in a different County or State. I am against mitigation being the first resort instead of being the last option thrown on the table. And I am against environmentalism that regards mitigation as an option that is just as attractive as preservation.

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(Posted by Gerald Winegrad). The recent deluges leading to massive stormwater runoff into the Chesapeake Bay may cause great damage to an already seriously impaired system. We previously have discussed in this spot the huge flows of Bay-choking nutrients and sediment from farms each time it rains. Now, we will devote discussions to the pollution flowing from developed lands including huge amounts of nutrients, sediment, and toxic chemicals.

Bay Watershed Forest Cover, Chesapeake Bay Program

Our Senior Scientists and Policy Makers for the Bay group has concluded that we must change the way we do business as population in the Chesapeake’s watershed continues to grow&emdash;and continues to sprawl. The population more than doubled from 8.1 million in 1950 to 17 million today. There are 3.8 million more people since the Bay Program began in 1983. Demographers expect 3 million more by 2030.

We also consume more land per capita. The average household size decreased during the last 30 years, but the average lot size increased 60 percent. And we harden more land per capita. From 1990 to 2000, the population grew by 8 percent, while impervious surfaces–paving and roofs grew by a whopping 41 percent. At this rate, in ten years an area more than twice the size of Shenandoah National Park will no longer soak up rain, nutrients, and sediment because of impervious surfaces such as roads, shopping centers, houses, and parking lots.

Policies to channel growth into existing towns and cities and put an end to sprawling development aren’t working. Instead of growing where schools, transportation, and utilities exist, we are growing into forest and fields. In Maryland, the much-touted Smart Growth approach is an abject failure. Thirteen years after its enactment, this non-regulatory approach has had no discernible impact on curbing sprawling development, fostering better land use, or protecting open spaces. Even the Rural Legacy program under Smart Growth has not led to better protection of designated open space areas of fields and forests.

The State of Maryland’s own data details the failure: 78 percent of the land on which new homes were built from 1999-2008 was outside the Priority Funding Areas designated for growth. This compares to 75.6 percent from 1990-1998 before the law went into effect. More single family residential housing was developed outside Smart Growth areas than before the law was enacted. Further, the average amount of land used by each home built inside growth zones has crept upward.

The cost to the Bay states of this failure to rein in sprawl is daunting as such land-abusing development cripples the state financially, socially, and environmentally. Many urban areas, such as Baltimore City, continue to lose population. Of Maryland’s 157 municipalities, 40 lost population from 2000 to 2009 and 61 others had a population increase of less than 100 while the state’s population grew by 7.6 percent. While we close schools, fire houses, libraries, and churches in Baltimore City, we must pay to build similar facilities in surrounding counties.

This sprawl and spread of impervious surfaces is bad for the Bay. Stormwater runoff flushes pollutants to streams and changes their natural flow. It is the only source of water pollution that had been increasing until the economic slowdown. Existing stormwater management laws do not prevent this increasing pollution from development.

The dilemma is that while we have failed to address sprawl development and increasing stormwater flows from new development, existing developed areas present expensive challenges in that stormwater retrofits are generally very expensive. So, as we allow increases in stormwater pollution from new development, the Bay is already overwhelmed from existing runoff from farms and developed lands. The development juggernaut, coupled with the failure to systematically address existing impervious surface pollution, may undo all efforts to revive the Chesapeake.

So what can we do? Our Senior Bay Group has made strong recommendations to solve the problem: Strong state land use controls can eliminate sprawl and stringent stormwater management requirements with impervious surface limits can eliminate any increases in pollutants from runoff from new development. We have recommended that state legislatures and local governments establish a no net loss of forest policy with protection and replanting of forested stream buffers a must. The loss of forests must be ended.

Requirements for and significant funding to clean up runoff from existing urban areas also is needed. Stormwater utilities must be established by all local governments. The states need to develop dedicated funding sources for stormwater retrofits and the establishment of an impervious surface fee on all impervious surfaces (like the Flush Fee) is the most logical source.

We have recommended that all new development have stringent stormwater runoff controls so as to achieve no net increase in pollutants or stormwater flows to the Bay with offsets possible. Scientists have documented even a 3 percent impervious surface cover in a watershed can cause damage to water quality.

All of those concerned with Bay restoration know that losing forests substantially increases the amount of pollutants reaching the Bay. A 2006 report found that from 1982–1997, development destroyed 140 acres of forest a day in the watershed, a total of 750,000 acres. This trend is pre-dicted to accelerate, producing catastrophic results for our rivers and the Bay. Net wetland acreage from a regulatory standpoint appears to have been stopped, but many wetlands still are filled for development and others are impaired by development activities.

However, state legislatures and local governments have not acted to establish a no net loss of forest policy with protection and replanting of forested stream buffers a must. This loss of fo-rests must be ended. Governor O’Malley’s 2007 transition team recommended that this no net loss of forest policy be established but this has not been done. The Chesapeake Bay Agreement called for 10,000 miles of riparian forest buffers by 2010. We’ve planted only a little more than half, and experts say that goal is too modest with at least 30,000 more miles needed to meet restoration goals. Controlling development will help achieve another vital goal – preserving forest land.

Unless we are prepared to accept a continuously declining Chesapeake Bay and the loss of our natural heritage, these difficult measures must be adopted — and soon.

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(Posted by Erik Michelsen.)

According to the Chesapeake Bay Program’s estimates, pollution from urban and suburban stormwater runoff is the only sector where nutrient loads are currently growing in the bay watershed. On much of the western shore of the Chesapeake, including the Baltimore-Washington metro counties, agriculture is an increasingly rare land use, shifting daily to the eastern shore or Midwest. And in Maryland, the Bay Restoration Fund (aka “Flush Tax”) is being used to upgrade wastewater treatment plants to the best available technology. Yet, these areas consistently suffer from some of the worst water quality in the Chesapeake region (see EcoCheck Chesapeake Bay Report Cards).

In the face of Total Maximum Daily Load (TMDL) limits, a sputtering economy, and cash-strapped governments, if we are going to improve water quality in our local rivers and the bay, we’re going to have to get creative. The development of Phase II Watershed Implementation Plans (WIPs) by local governments throughout the bay watershed has made it more apparent than ever that in order to have any chance of reversing the damage caused by urban and suburban runoff in our lifetime, each local government needs to create a dedicated source of funds for the maintenance and retrofit of stormwater practices. Funding these efforts from the general fund or through inadequate fees on new development has been an abject failure, and without a serious approach, modeled upon the way that municipal drinking water and wastewater infrastructure is maintained and expanded, we shouldn’t expect any improvement in this arena. During the upcoming legislative session, a number of organizations will continue to push for Maryland to adopt a state requirement that local governments put these dedicated funds in place as well as create revenue streams to fill them.

Dedicated funding to tackle the existing backlog of stormwater work is a huge piece of the clean-up puzzle, but what about the fact that as new development comes into the watershed, or existing sources of pollution (e.g., wastewater treatment plants) grow, additional pollution will be added to already heavily impaired waterways? With the promulgation of the bay TMDL by EPA in late 2010, pollution reduction targets are in place, and new pollutant loads, whether they be from stormwater, wastewater, or another source, must be “offset” so as not to worsen the condition of either the bay or the local tributary into which the site discharges. The exact form that this offset or “trading” program will take is still under development, but a well-devised plan can not only foster truly “smart” growth in the bay watershed, but also enlist it as a powerful tool in the improvement of water quality.

I recognize that this will be difficult for many to believe or accept—after all, we’ve been bombarded with the mantra that “development is killing the bay” for decades – but what if, as a condition of new development, local governments required developers to upgrade existing septic systems, restore broken streams and wetlands, and convert farm fields into forests? In certain respects, the change is no different than current “adequacy of public facilities” laws that are on the books, and that pertain to school or sewer capacity. Our waterways are the ultimate “public facilities”, and their current condition is, with very few exceptions, completely inadequate.

The notion of “trading pollution” is distasteful to some and has surely been manipulated by others, but it’s important to recognize that even in the absence of any new growth, our rivers and the bay will remain badly broken, but that by harnessing the inevitable growth that will come to the bay watershed as a partner in improving water quality, we add another important tool to the toolbox of bay recovery.

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