CLA Volunteer Attorney Wins Round in Important Zoning Case

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1 Chesapeake Legal Alliance uses the law to protect and restore the Chesapeake Bay and its watershed. Spring 2014 CLA Volunteer Attorney Wins Round in Important Zoning Case CLA s Chairman and volunteer attorney, Russ Stevenson, has been working since the fall of 2011 on a test case concerning the interpretation of Maryland law governing the extent to which municipal zoning decisions must be consistent with a municipality s comprehensive land use plan. Do these laboriously crafted plans designed to guide a community s growth and preserve its character serve merely as guidance or are they only to be deviated from rarely or is there an approach that falls somewhere in between? This case and others like it in other Maryland counties have the potential to set new precedent on this controversial issue. Russ is representing a number of citizens and community groups in southern Anne Arundel County who believe that a rezoning bill adopted by the County Council in 2011 did not follow closely enough the County s General Development Plan. The Circuit Court dismissed the case a year after it was filed on the grounds that most of the plaintiffs lacked standing and that the court had to defer to the Council s determination as to how closely it had to follow the Plan. The plaintiffs appealed, and on January 31, 2014, the Court of Special Appeals issued an opinion ruling for the plaintiffs on all grounds. The County recently filed a request that the Maryland Court of Appeals consider the case and overrule the Court of Special Appeals decision. If the Court of Appeals takes the case, which seems likely, Russ hopes to convince it to affirm the lower court s decision. If the Court of Appeals decides not to take the case, it will go back to the Circuit Court for trial. In either event, the final outcome will not be known for many months. The wheels of justice grind slowly. In this issue CLA Volunteer Attorney Wins Round in Important Zoning Case...1 Executive Director s Message... 2 A CLA Win in Crownsville Dump Litigation!... 2 Is the Public Trust Doctrine Alive and Well in Maryland?... 3 U.S. Supreme Court Upholds Cross-State Air Pollution Rule... 4 Why are 21 States Attacking the Chesapeake Bay Clean Water Blueprint?... 5 Helping Farms Help the Bay: Agricultural Certainty... 6 New CLA Matters... 7 CLA s 2013 Annual Report Proves Continued Progress... 8

2 Executive Director s Message In February, CLA reached a milestone our fifth year in providing pro bono legal services on behalf of the Chesapeake Bay and its watershed! What started with one concerned attorney and a handful of legal matters has grown into a thriving organization that has served 125 clients with 155 matters throughout the Bay watershed. These numbers continue to grow on a daily basis! Our progress during just the last year is captured in CLA s 2013 Annual Report available on our website here: CLA_2013_Annual_Report_revised_web. pdf. I encourage you to take a few minutes to review the strides CLA staff and volunteers are making towards Chesapeake Bay and Bay watershed protection and restoration. We are very proud of our work and the many hours of volunteer attorney time expended on behalf of so many worthy efforts. We hope that the Annual Report will inspire you to make a contribution towards helping us to continue to connect your community with pro bono legal services. Please spread the work about CLA and its Lawyers for the Bay and encourage your attorney friends and colleagues to get involved. Every challenge, advocacy effort, and restoration project builds toward a safer, cleaner Bay for us all to enjoy and pass on to future generations. All the Best! Jacqueline Sincore Guild Executive Director A CLA Win in Crownsville Dump Litigation! In February, a consent decree was signed in the enforcement action brought by the Maryland Department of the Environment (MDE) against the owners of a former dump and landfill for illegal storage of over 300,000 scrap tires in violation of state scrap tire and water pollution control laws. The Joy-Boehm landfill is located in Crownsville, MD. The South River Federation, supported by CLA volunteer attorney, Larry Liebesman of Holland & Knight, intervened in the enforcement action after urging MDE to reinvestigate and enforce the existing agreement with the Boehms to clean up the site the largest tire dump in Maryland and the location of at least two tire fires. MDE was warned that the tires presented a fire hazard and potential health hazard and could damage ecosystems associated with nearby creeks and streams. The consent decree requires the removal of the tires, restoration of wetlands and other site features impacted by the tires, use restrictions on the landfill areas of the site, and placement in conservation of acres through the Maryland Environmental Trust. Attorney Larry Liebesman was honored by the South River Federation earlier this year for his volunteer work. 2

3 Is the Public Trust Doctrine Alive and Well in Maryland? According to the Public Trust Doctrine, the state of Maryland holds the navigable waterways within its boundaries, and the submerged lands beneath those waterways, in trust for the people of the state. In theory, this means that Maryland has a legal responsibility to ensure that members of the public can access state waters for activities like boating and fishing. As a practical matter, however, there is a dearth of definitive Maryland case law, and a recent decision from the Circuit Court for Anne Arundel County leaves open the question whether the Doctrine has the potential to serve as an effective legal tool for citizens to use in challenging state actions. The case In the Matter of Department of Natural Resources, et al. v. George Tunis, et al., involved the Maryland Department of Natural Resource s (DNR) decision to approve a waterman s application for an oyster aquaculture lease in Chincoteague Bay. A group of adjacent land owners and several commercial fisherman challenged the lease, arguing, among other things, that it violated the Public Trust Doctrine because it would block or severely limit the access of fishing and recreational vessels to the leased area. The case was first heard by an Administrative Law Judge who agreed with the citizen group that the proposed aquaculture lease had to be denied because it violated the Public Trust Doctrine. This argument was rejected on appeal to the Anne Arundel County Circuit Court which upheld DNR s decision to approve the lease. While the Circuit Court judge confirmed that the Doctrine is a common law principle that has long been recognized, he found that the Doctrine does not add any additional criteria that DNR must consider when making aquaculture leasing decisions. He reasoned that, as a common law principle, the Public Trust Doctrine is subject to modification by both state legislative acts and appellate court decisions. He determined that the legislature knowingly incorporated the Public Trust Doctrine into certain provisions but not others of the aquaculture section of the State code. Accordingly, the Judge concluded that the Legislature intended to create a streamlined approach to aquaculture leasing that does not require DNR to consider any Public Trust Doctrine elements so long as the other statutory and regulatory requirements for leasing are met. The Circuit Court s decision may not be the final word on this issue as the citizens group and others may appeal. For the time being, however, it is unclear whether courts will be willing to find that the Doctrine imposes any substantive criteria that the state must consider when making decisions that affect state waters. CLA connected one of the respondents with legal counsel for the appeal to Circuit Court. Read the decision on Chesapeake Legal Alliance s website at: 3

4 U.S. Supreme Court Upholds Cross-State Air Pollution Rule On April 29, the Environmental Protection Agency (EPA) achieved a major victory in its efforts to address air pollution from coalfired power plants when the U. S. Supreme Court upheld EPA s Cross-State Air Pollution Rule ( CSAPR ). In a 6-2 decision in favor of EPA, the Court overturned the prior decision of the United States Court of Appeals for the D.C. Circuit, which had held that CSAPR exceeded EPA s authority under the Federal Clean Air Act. CSAPR, also known as the good neighbor rule, is designed to address one of the more challenging and complex environmental issues, Meet CLA s New Staff Attorney CLA is pleased to announce that Matt Henjum joined CLA in March as its first Staff Attorney. Matt works directly with our network of volunteer attorneys and Bay watershed communities in securing pro bono legal assistance for CLA referred matters, as well as performing legal research and analysis on emerging issues. Prior to joining CLA, Matt spent four and a half years as a Trial Attorney with the U.S. Department of Justice s Environment and Natural Resources Division, having joined DOJ through the Attorney General s Honors Program. Matt is a graduate of Duke University and the University of California-Berkeley School of Law and a dedicated Minnesota Vikings fan. namely air emissions from upwind states traveling across state boundaries and polluting the air in downwind states. This makes it nearly impossible for downwind states to protect their air quality without help from a coordinated federal scheme. In Maryland, as much as 70 percent of the state s ozone pollution comes from upwind states. Under the good neighbor rule, 28 states in the eastern half of the United States are required to reduce the amount of sulfur dioxide and nitrogen oxides emitted by their In Maryland, as coal-fired power much as 70 percent plants by requiring of the state s ozone those plants to install pollution comes advanced scrubber technologies that from upwind states. filter air emissions. Sulfur dioxide and nitrogen oxides react in the atmosphere to form soot and groundlevel ozone, which are linked to asthma, lung disease, heart attacks and premature death. The emission reductions required under the good neighbor rule will also benefit water quality in the Chesapeake Bay by reducing the amount of nitrogen being contributed to the Bay s watershed through atmospheric deposition. EPA estimates that the good neighbor rule will yield $120 to $280 billion in annual health and environmental benefits, including the value of avoiding 13,000 to 34,000 premature deaths. EPA believes that these benefits outweigh dramatically the approximately $2.4 billion that the rule is projected to cost to implement. Read the Court s decision on CLA s website at: 4

5 Why are 21 States Attacking the Chesapeake Bay Clean Water Blueprint? 21 States Attorney Generals have filed amicus ( friend of the court ) briefs in support of a challenge against the Environmental Protection Agency s plan to clean up the Chesapeake Bay. These states, except for West Virginia, are all outside of the Bay watershed and include states as far away as Alalska and Wyoming! They argue that the cleanup plan raises serious concerns about states rights, and they worry that if the plan is left to stand, EPA could enact similar pollution limits on watersheds such as the Mississippi. Now, some history and clarification. After decades of failed voluntary efforts to restore the Bay, EPA worked with the Bay states to identify the pollution loads to be addressed by each state in order to achieve pollution reduction goals. These goals were set forth in the Bay TMDL (Total Maximum Daily Load) or Chesapeake Bay Cleanup Blueprint, which describes the pollutant loads that Bay water bodies can withstand and remain healthy. The method of reaching these pollution reduction goals was left to the states. The Bay Blue print is considered the Bay s best chance at recovery and was upheld by a Pennsylvania District Court after being challenged by the American Farm Bureau, developers, and other special interest groups. In the face of an extremely thorough and wellreasoned opinion by Judge Sylvia Rambo, the Farm Bureau and its allies in this litigation appealed the decision to the Third Circuit Court of Appeals. Their response came as no surprise, considering agriculture is the largest contributor of nutrient and sediment pollution to the Chesapeake Bay, accounting for 42 percent of EPA s new cleanup plan established a TMDL for how much nitrogen, phosphorus and sediment can enter the Bay each year, potentially cutting pollution by 20 to 25 percent. the nitrogen, 58 percent of the phosphorous and 58 percent of the sediment that entered the Bay in EPA s new cleanup plan established a TMDL for how much nitrogen, phosphorus and sediment can enter the Bay each year, potentially cutting pollution by 20 to 25 percent. Amicus briefs have been filed by many groups in support of the Chesapeake Bay Cleanup Blueprint, including the majority of the Bay states, six major cities, including Baltimore and D.C., parks and conservation groups, and the City of Annapolis. They City of Annapolis brief was prepared by CLA volunteer attorneys Russ Stevenson, Ridge Hall, and Bob Sussman. The 21 opposition states involved are Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. CLA is 5 years old! In commemoration of CLA s 5 years, we celebrated in style with friends and volunteers on a rooftop deck in Annapolis, MD during the US Navy Blue Angels air show. Thanks again for your continued support! 5

6 Helping Farms Help the Bay: Agricultural Certainty Please visit our website here: chesapeakelegal.org/index.php/articles/entry/ helping-farms-help-the-bay-agricultural-certainty for the full article by CLA Vice Chairman and volunteer attorney, Ridge Hall, on how Maryland s Agricultural Certainty program has Congratulations! are in order to two former CLA volunteer attorneys who have recently moved on to important positions in the Bay environmental community. In May, Paul Smail joined the Chesapeake Bay Foundation s legal team as Staff Litigation Attorney. Paul volunteered on seven CLA referred projects during the past three years. In January, Sarah Rispin became General Counsel and is also the Acting President of the Potomac/Shenandoah Riverkeeper as well as the Lower Potomac Riverkeeper. Sarah worked on an extended project with the Anacostia Riverkeeper through CLA and is continuing this collaboration in her new roles. the potential to help address the greatest source of pollution to the Bay agricultural activities. Ridge serves on the Maryland Agricultural Certainty Oversight Committee which has developed draft regulations that the Maryland Department of Agriculture (MDA) will propose for public comment later this year. In a nutshell, under the Maryland law enacted in 2013, farmers who meet certain pollution reduction practices and have submitted a fully compliant Nutrient Management Plan will not be subject to any additional controls for specified pollutants for a period of 10 years. This certainty can serve as a significant benefit to long term planning and management, financing of equipment, and other business activities. MDA is responsible for ensuring that compliance is reviewed by an independent, trained and qualified verifier prior to admission to the program and every three years thereafter. Special thanks to all of our contributors! Between our 2013 Annual Appeal and the Great Give, a 24-hour fundraising event in May, CLA raised $13,993! THANK YOU you help us continue to provide the legal muscle in the fight to save the Bay! Maryland s Agricultural Certainty program has the potential to help address the greatest source of pollution to the Bay agricultural activities. 6

7 New CLA Matters Bruce Berger of Hollingsworth LLP is assisting the Friends of the National Arboretum on a matter to address sanitary sewer line leaks to a stream on the grounds of the National Arboretum in Southeast D.C. Greer Goldman, Esq. is assisting the Smarter Growth Alliance for Charles County, composed of 22 groups led by 1000 Friends of Maryland, with minimizing impacts of a roadway located adjacent to Mattawoman Creek a major bass spawning and habitat area in Charles County, MD. William Anderson, Esq. is assisting the Environmental Integrity Project on litigation to address repeated discharge permit violations at a wastewater treatment facility in Montgomery County, Maryland. Summer Interns have arrived! We are excited to welcome CLA s fourth class of summer interns to the office. They will be assisting us with projects, working with clients, and attending events on behalf of CLA. Kristin Buterbaugh is a third year student at the University of Maryland Francis King Carey School of Law. Julia Carbonetti is a second year student at the University of Maryland Francis King Carey School of Law. Elizabeth Beutel is a second year student at Georgetown University Law Center. Russell Stevenson, Esq., Ridge Hall, Esq. and Robert Sussman, Esq. filed an amicus brief on behalf of the City of Annapolis in support of EPA in the Chesapeake Bay TMDL litigation, which is currently pending in the Third Circuit Court of Appeals. Russell Stevenson, Esq. presented as a panelist as part of a speaker event organized by 1000 Friends of Maryland that addressed local planning and zoning issues in the wake of the Terrapin Run case and the subsequent state legislation that overturned the court s decision. Dan Dozier and Cecilia Jones of Press & Dozier, LLC are assisting a citizen group in Cecil County, MD with incorporating as a non-profit group focused on methods to meet county pollution reduction goals pursuant to the Bay TMDL. Jill Grant and Bethany Fisher of Jill Grant & Associates provided counsel concerning Maryland procurement law in support of work being performed under Maryland s 2013 Pesticide Reporting & Information Act. Ben Wechsler of Linowes and Blocher LLP is assisting the Sassafras River Association in analyzing issues relating to the requirements of meeting Maryland s Watershed Implementation Plan, under the Bay TMDL, through stream restoration projects. Randy Fisher of the Fisher Law Office and Dirk Schwenk of Baylaw LLC are assisting the Alliance for the Chesapeake Bay in developing workshop presentations concerning the use of intergenerational land transfers in estate planning as a tool to protect forests. Sean Akins of Latham & Watkins is assisting Annapolis Green with preparation of a not for profit status application. 7

8 CLA s 2013 Annual Report proves continued progress We are pleased to provide you with our progress and successes in our 2013 Annual Report. Check it out online at: documents/cla_2013_annual_report_revised_ web.pdf. In 2013, CLA: n placed 72 new matters with volunteer attorneys a 64% increase over 2012 placements; n and provided $1,535, in volunteer attorney services to clients who would not otherwise have been able to afford legal representation. n n worked with 60 new clients; added 70 new individual attorneys/law firms to our volunteer network; Pro Bono Assistance 67 Franklin Street Annapolis, MD (410) office (410) fax Hours = Value = $1,535, Executive Director: Jacqueline Sincore Guild jguild@chesapeakelegal.org Staff Attorney: Matthew B. Henjum mhenjum@chesapeakelegal.org Outreach Coordinator: Heather Ballew hballew@chesapeakelegal.org Follow Us! Chesapeake Legal Alliance is on Facebook and Twitter. For an interactive version of the Bay Brief Quarterly, please visit 8