Paid for by Citizens for Colburn Committee. Authority John W. Phillips, Jr., Treasurer

Guest Comment by St. Sen. Richard F. Colburn
Blackwater project gets lots of hearing time in Annapolis committee
By SEN. RICHARD F. COLBURN
Guest Comment - Star Democrat
February 21, 2006

On Dec. 13, 2005, the Senate Environmental Affairs Committee listened to four hours of debate concerning the Blackwater Resort Community, a proposed development adjacent to the City of Cambridge and about 3r miles north of the Blackwater National Wildlife Refuge. Then on Tuesday, Feb. 14, our committee held a 4r-hour hearing on Senate Bill 257. Our committee has spent 8r hours on this matter.

We have spent an exorbitant number of hours on Senate Bill 257 (Critical Areas Program–Resource Conservation Areas-National Wildlife Refuges). No other bill we’ve heard this year rivals the time we have devoted to this legislation.

Senate Bill 257 would prohibit the use of growth allocation for developing property designated as a resource conservation area and is located adjacent to or within 1,000 feet of the waters of a major tidal tributary of a national wildlife refuge. This legislation would have a substantial statewide impact, but it is specifically aimed at the proposed development project next to Cambridge.

The Maryland General Assembly should not have any major role to play in the approval or disapproval of the Blackwater Resorts project. All approvals, such as critical area allocations and planning and zoning, can come only from the City of Cambridge and Dorchester County, not from Annapolis.

Final approval will come from the Critical Areas Commission, an independent state agency. We don’t need a super zoning board here in Annapolis to give final approval to local projects.

I vehemently oppose Senate Bill 257 for several reasons. This bill is flawed and poorly drafted. Two sections of the bill are particularly controversial. Section D. (1) states: Any property that is designated as a resource conservation area and that is located adjacent to, or within 1,000 feet of the waters of a major tidal tributary of a national wildlife refuge, as designated in USC title 16, chapter 5A, subchapter III, section 668DD, may not be developed, for any reason, using growth allocation. Another part of the bill, Section D (1), is at best very confusing: This subsection applies to all developments that meet the criteria of paragraph (1) of this subsection, including those developments proposed before January 1, 2006.

And this relates to the most relevant testimony which occurred almost four hours into the bill hearing and was missed by most of the media. That was the testimony of former Sen. Marty Madden, who now chairs Maryland’s Critical Areas Commission along with Marianne Mason, assistant attorney general for the Critical Areas Commission.

Madden said by singling out five national wildlife refuges for special consideration, a two-tier system would be created. National Wildlife Refuges are indeed a precious resource, but there are many other state resources equally as valuable. An example of this is Fishing Bay (29,000 acres), located east and directly adjacent to Blackwater Refuge (26,000 acres).

The same is true across the state. There are 65 public lands and 38 wildlife management areas throughout Maryland. Because this bill supposedly protects only national wildlife areas, does that mean that state and county parks don’t deserve the same protection? Are they not as important?

Once you set up a two-tier system, unintended, unfavorable consequences develop.

An example of this is with Senate Bill 257, which would put off limits up to 19,000 of the 28,000 acres in Kent County’s Rural Conservation Area (RCA) for any type of considered growth. In the future, Kent County would be forced to look at its remaining 9,000 acres to channel 1,326 acres of growth allocation.

There are also huge concerns with definitions in the bill. The words “developments,” terms such as “major tidal tributary,” even words like “proposed,” are not defined in the bill or in the Maryland Code. The word “proposed” is vague. Would it apply to a previously approved development that hadn’t been built or undeveloped lots?

Maryland’s judicial branch would have to interpret exactly which projects would be prohibited.

There also are legal concerns regarding retroactivity. Critical Areas Commission said passing this bill would create a signigicant departure from the agreement reached in 1984 and ratified in 1986.

The Critical Areas Act was a compromise between the state and environmentalists. A deal is a deal. You can’t change the rules of a baseball game in the ninth inning.

The Baltimore and Washington metropolitan areas have used much of their 1986 allocation; Anne Arundel County has used 87 percent. Dorchester County has been far more conservative with its growth allocation, using only about half.

Could this bill undo all the growth allocations of the 1984 Critical Areas Act? Could this bill be considered a taking of one’s land without just compensation? Could this undo all projects prior to Jan. 1, 2006?

Maryland law states that the Critical Areas Act of 1984 must be administered in a uniform, consistent manner in every county. You cannot implement this law for just one county. You cannot come before the General Assembly to make a critical areas rule change on a project that is well under way. SB 257 is, in legislative terms, a “carve out.” In my opinion, it is illegal.

Obviously, groups like Chesapeake Bay Foundation and their followers oppose all growth.

They have recently deluged legislators’ offices with a form letter urging support of SB 257. Despite what the form letter states, you can’t go through a three-year (29 public hearing/approval) meetings process and have what CBF calls “unbridled” development.

Contrary to statements made in CBF’s form letter, the Blackwater Resorts project meets the criteria of Smart Growth and Priority Places.

In true CBF fashion we find out what the Chesapeake Bay Foundation really wants is to impose a moratorium, rather than a prohibition, on all approvals of RCA growth allocations on tidal tributaries draining to refuges.

Sen. Colburn, a Republican, represents District 37, the Mid-Shore. He lives in Cambridge.