After over five years of litigation on behalf of the Gunpowder Riverkeeper and pressure by community groups, the Wetlands and Waterways permit appeal related to the proposed Abingdon Business Park has been closed out and the development of the proposed warehouse logistics center has been shut down. Additionally, the Developers have reached an agreement with the Harford County Government to reforest portions of the site, which has already begun.
Chesapeake Legal Alliance represented Gunpowder Riverkeeper through the entire litigation process, starting back in early 2019. CLA attorneys attended Harford County Development Committee meetings to voice the Riverkeeper’s opposition to the project on the grounds that the deforestation of hundreds of acres of the last significant, intact stand of forest in the Bush River watershed and subsequent impacts to wetlands and waterways on site by the proposed development would cause irreversible damage to the water quality of the the Bush River and Chesapeake Bay.
A 2013 biological integrity study of the Bush River, conducted by the Maryland Department of the Environment (MDE), found that the River’s biodiversity was low and a multitude of species living there were failing to thrive due to high percentages of impervious surfaces in the immediate vicinity resulting in increased polluted stormwater runoff entering the river. Despite the study’s results, in 2020 MDE approved a wetlands and waterways permit for the construction of a 2-million square foot industrial warehouse complex that would require nearly 330 acres of mature forest and wetlands to be cleared, stating that the project would not contribute to degrading water quality in the area. Immediately following this permit approval, CLA filed suit to challenge this decision.
Part of CLA’s challenge focused on a lack of statutorily-required public notice regarding core components of the permit. This procedural failing was immediately challenged by CLA with a first of its kind motion to remand the Permit, which CLA argued and won in Harford County Circuit Court. This was the first-ever motion of its kind filed and won in Maryland Circuit Courts and resulted in the Court remanding the permit back to MDE and requiring an additional public comment period and re-evaluation of the permit. CLA then litigated this appeal through the Harford County Circuit Court and to the Maryland Court of Appeals and after years of pressure by our client and community groups with CLA’s support the developers ultimately decided to pull out of the project and Harford County revoked all permits necessary for the development to continue.
The close out of this project means that over two-million square feet of impervious surface will be prevented from accelerating the damage to the already impaired Bush River watershed. This result was possible largely due to our client and community group’s dedication to years of advocating to state and county officials that this project was not protective of the environment, was not economically viable, and had no community support. CLA is thrilled with this result as it was always our client’s position that this project’s negative environmental impact was not justified by its nominal and speculative economic impacts.
CLA will continue to represent clients seeking to protect Maryland’s precious wetlands and waterways from unnecessary and environmentally unsustainable development projects throughout the state.
Abingdon Woods, which opens up to Otter Point Creek and the tidal Bush River, is the last significant, intact stand of forest in the Bush River watershed, which is highly impaired by pollution associated with rampant and relatively uncontrolled development in the area. The pollution that flows into these waters from local construction includes total suspended solids (i.e. sand, sediment, and large organic particles), chlorides, and sulfates. Additionally, in 2013, the Maryland Department of the Environment (MDE) conducted a biological integrity study of the Bush River and found that its health, based on the richness of species and biodiversity, was low due to high percentages of impervious surfaces that led to increases in polluted stormwater runoff entering the river.
Despite these concerns, in 2022, MDE approved a wetlands and waterways permit for the construction of a 2-million-square-foot industrial warehouse complex that would require the clearing of nearly 330 acres of mature forest and wetlands, after a determination that the project would not cause or even contribute to degrading water quality in the area. Immediately following this permit approval, CLA filed suit challenging the decision on behalf of our client, the Gunpowder Riverkeeper, arguing that a project of this scale would certainly negatively impact local water quality. Part of CLA’s challenge also focused on a lack of statutorily required public notice regarding core components of the permit, which CLA argued and won in Harford County circuit court. This was the first-ever motion of its kind filed and won in Maryland Circuit Courts and resulted in the Court remanding the permit back to MDE and requiring an additional public comment period. However, despite an influx of hundreds of public comments arguing against the project, MDE once again approved the permit.
In fall 2022, CLA argued in court on the merits of this permit approval, all while the developer had begun actively clearing acres of mature forest, and in August 2023, the court issued its decision that MDE had not acted arbitrarily or capriciously in its decision to approve the permit. Despite the court loss, CLA will continue to monitor the development, since pollution is still being actively discharged into local waterways from the site. Our work in Abingdon Woods is important because Maryland wetlands and water resources are diminishing daily as a result of state and local governments making uninformed, irrational, and shortsighted decisions that sacrifice our environment for projects with speculative economic benefits and short-term gains for out-of-state developers. It is also important because MDE’s decisions rarely meet the lofty goals and intentions spelled out clearly in state statutes and because destroying and altering wetlands, streams, floodplains, and their buffers in the name of speculative economic development simply do not make sense and do not meet the state’s vocal goals as conservation and climate leaders.
Our client’s position has not changed, that the conversion of 330 acres of intact forest in the Bush River watershed into an over 2 million square foot industrial warehouse complex would have immediate and existing negative impacts on water quality. CLA told this to the Harford County Council and to the MDE at a public hearing along with dozens of other parties echoing our concern. We expressed these concerns in written comments and argued this to the Harford County Circuit Court via two memorandums and in oral arguments.
This is not some hair-brained or unfounded claim, it is an argument backed up by years of experience in the watershed by the Gunpowder Riverkeeper and by scientists and researchers who submitted comments to MDE. Our argument is even supported by MDE’s own study of the Bush River Watershed.
In August 2023, the Harford County Circuit Court finally handed down a decision on the wetlands permit appeal. Unfortunately, the Court ruled against CLA and upheld the permit. This decision solidifies how broad the discretion granted to MDE actually is, where an agency can ignore its own science and data, can attempt to circumvent public participation, and has a permit writer that predetermined the approval of the permit before the comment period closed.
This case also highlights deficiencies in legal challenges to permits issued by MDE. Maryland state law is explicit that a challenge to a permit does not stay the permit (in legal terms, a “stay” freezes or puts a judicial or governmental action on hold), nor does it stop a developer that was granted a permit from taking actions authorized by that permit. This means that in a case like Abingdon Woods, despite the fact that our client, the Gunpowder Riverkeeper, had rightfully challenged the developer’s permit in state circuit court (and other required permits for the developer were being challenged in the same court), the Permittee was still allowed to begin clearing the forest and negatively impacting local water resources, all while multiple permit challenges were pending in the state court system.
Another deficiency in the law of permit challenges is that these legal challenges are based on a court’s review of the “record.” The record contains all information presented before MDE, including public comments and letters, and closes at the time MDE makes its decision, meaning no additional information can be added to the record once a permit is approved or denied by MDE. It is only in exceptional circumstances that additional evidence can be added to the record and can be considered by the court. In the case of Abingdon Woods, this standard of judicial review has played out in a horrific fashion. One of CLA’s main contentions before the Court was that for a project of this magnitude and nature, it is inevitable that the development will cause negative impacts to water quality stemming from under-designed and poorly designed stormwater control practices that are certain to result in sedimented runoff flowing from the site and into neighboring waterbodies. MDE conducted no actual analysis of the potential water quality impacts and ignored its own studies and data on the impacted watershed. One study even included a sampling point (an identifier the state assigns to the point where samples of water are taken to determine water quality in raw or treated water) within Abingdon Woods. This does not sound like rational decision-making to us. And to add icing on the cake, the exact fear my client and hundreds of other public commenters warned MDE about has happened: sedimented runoff is constantly flowing from the site and entering downstream waterways. This has been documented by the community on the ground and by MDE inspectors, from the air with drone and plane footage, and on the ground by those fighting to preserve this patch of green space.
If this is a rational decision by MDE then how can the public have any faith that the State will meet its lofty wetlands goals of no net loss and wise use of nontidal wetlands? Allowing any wetlands and waterways diminishment for a project like this is not wise use and will certainly not result in a net resource gain in Maryland’s nontidal wetlands. CLA is committed to addressing these deficiencies through any means necessary because it is time that MDE and counties hold developers accountable for their sediment pollution.
Are 330 acres of forested wetlands and streams in the Bush River watershed more important than a 2 million square foot industrial warehouse complex? This was the question before the Maryland Department of the Environment (MDE) and Harford County when they granted various permits, plans, and other approvals “paving the way” for the destruction of hundreds of acres of forested wetlands and streams within Abingdon Woods in order to construct yet another massive industrial warehouse complex.
Abingdon Woods, which opens up to Otter Point Creek and the tidal Bush River, is the last significant, intact stand of forest in the Bush River watershed, which is highly impaired by pollution associated with rampant and relatively uncontrolled development in the area. MDE established this fact with the publication of numerous “pollution diets” or total maximum daily loads (“TMDLs”) for the Bush River, all of them a result of development within the watershed, with impairments caused by Total Suspended Solids, Chlorides, Sulfates, Habitat Alterations/Channelization, and lack of riparian buffers. Additionally, in 2013, MDE conducted a biological integrity study of the Bush River and found that its health, based on the richness of species and biodiversity, was low and that the entire watershed was impacted by what is termed “urban stream syndrome” which is common in watersheds like the Bush, where high percentages of impervious surfaces lead to polluted stormwater runoff negatively impacting water quality. Yet, despite all of this information established by MDE, the agency still approved the wetlands and waterways permit and determined that the project would not cause or even contribute to degrading water quality. If you think that this decision lacks common sense and goes against smart growth ideals and established ecological and scientific principles, you’re not alone.
CLA has represented the Gunpowder Riverkeeper for over three years in opposition to this project, our basic and most fundamental argument being that a project of this nature and scale will surely result in some negative impacts on the water quality of those streams affected within the Bush River watershed. CLA has assisted our client in advocating on both the county and state level in opposition to this project: we provided public comments and information to Harford County and MDE decision-makers; submitted extensive technical comments to MDE regarding the project’s wetlands and waterways permits; and assisted local community groups in drafting and submitting public comments in opposition, resulting in over one hundred comments to MDE opposing the permit and project. When the permit was approved by MDE, we filed suit on behalf of the Gunpowder Riverkeeper, and when it was determined that the permit had been approved without allowing the statutorily-required public notice and comment on core components of the permit, CLA filed, argued, and won a motion in Harford County circuit court, resulting in the Court remanding the permit back to MDE and requiring an additional public comment period. This was the first-ever motion of its kind filed and won in the Maryland Circuit Courts and it resulted in our client being able to submit additional public comments along with over 70 other comments from concerned members of the public, all in opposition to the project. And yet again, ignoring the science and public sentiment, MDE approved the permit. Consequently, we have continued our legal challenge of the permit, filing written memoranda and preparing for a hearing on the merits of the permit approval in Fall 2022.
Our work in Abingdon Woods is important because Maryland wetlands and water resources are diminishing daily as a result of state and local governments making uninformed, irrational, and shortsighted decisions that sacrifice our environment for projects with speculative economic benefits and short-term gains for out-of-state developers. It is also important because MDE’s decisions rarely meet the lofty goals and intentions spelled out clearly in state statutes and because destroying and altering wetlands, streams, floodplains, and their buffers in the name of economic development simply do not make sense and do not meet the state’s vocal goals as conservation and climate leaders. Finally, this work is important because developers don’t care about lawsuits or permit challenges, as evidenced in this matter. While our client’s case was pending and while others had challenged separate permitting aspects of the project, the developer commenced clearing the forest which in turn affected onsite water resources. Citizens and environmental groups have very limited and difficult avenues to stop these unscrupulous actions. By taking these cases, we demonstrate to the public and the legislature just how much our statutes and MDE have failed to protect the environment, which is further evidenced by the fact that nothing we nor anyone else did, despite the time and money invested, stopped the clearing of the forest before concerned groups and individuals with legal rights had their day to be heard in court.
Your donation today will help CLA continue this fight to protect what is left of Abingdon Woods and to ensure that projects of this nature and with these impacts that fail to protect Maryland’s valuable natural resources never get permitted.
