A Loss For Abingdon Woods Highlights Opportunities for Permitting Improvements
What Happened in Abingdon Woods?
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.
A Note From the Attorney, Patrick DeArmey
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.