DNR Blunders, Guided By Politics Rather than Science

Tuesday's Capital reported that the Department of Natural Resources is poised to remove a "botched" oyster reef in Sillery Bay, in the Magothy River. The truth of the matter is there is nothing "botched" about the recently installed reef at all, aside from the fact that at least three navigationally impaired souls ran their boats aground on it.

Now, at the behest of pitchfork wielding boaters and a misguided Delegate, DNR is going to spend some $40,000 additional dollars to rip the reef out (they spent $150,000 to install it) and get back to the business of building failed oyster reefs "at least 8 feet deep." Somehow, they even managed to get the Magothy River Association on board.

Perhaps those managing the resource and others ostensibly concerned about the success of the oyster fishery Bay-wide will eventually get a clue and look the successful aquaculture operations on the Choptank River, where, believe it or not, they are growing oysters at the surface. And to those who would say, oyster reefs shouldn't be a hazard to navigation, I would direct them to the words of Francis Louis Michel, a Swiss visitor to the Chesapeake in 1701, "The abundance of oysters is incredible. There are whole banks of them so that the ships must avoid them. They surpass those in England by far in size, indeed they are four times as large."

At this juncture, I think we need to ask, "Are we going to manage the fishery for beer addled boaters or for the success of the organism?"

Magothy in Decline

In what appears to be a pretty consistent trend, the health of the Magothy River declined last year, according to the just released State of the Magothy Report Card. Among the worst performing indicators was underwater grasses, which experienced a 165 acre drop from 2006.

State of the Magothy Presentation

It's that time of year when each of the river organizations is releasing its State of the River report. The Magothy is no exception. The announcement is below:

2008 State of the Magothy River Meeting

Do you, family, or friends enjoy spending time on the Magothy River? Would you like to find out how you can help to protect and restore this precious resource? Would you like to hear about all of the great things happening on your river?

The Magothy River Association will hold its sixth annual “State of the Magothy River” presentation on Wednesday, February 20, 2008, starting at 7:00 PM. The meeting will feature the annual Magothy River Index (with a new format this year) and a Captain John Smith Chesapeake National Historic Trail overview.

Scheduled speakers:
1) 2007 Magothy River Index. Prepared by Dr. Peter Bergstrom, NOAA and MRA. (Produced each year since 2003)
2) Captain John Smith Chesapeake National Historic Trail overview - Sarah Bransom, National Park Service
3) MRA Creek Watchers – Carl Treff, MRA Volunteer Coordinator
4) Update on the Magothy River Oyster Plan – Dick Carey, MRA Dive Coordinator/Dive Safety Officer

DISPLAYS:
1. Friends of Dobbins Island
2. Bayland Consultants, Mill & Dividing Creek Study
3. Severna Park Watershed Action Group display on North Cypress Branch
4. Department of Natural Resources-Natural Resources Police – Vessel Management Plan & Boating Safety
5. National Aquarium in Baltimore
6. Magothy River Land Trust – Conservation Easements in the Magothy Watershed
7. MRA Team Diver Poster: “Scientific Divers of the Magothy River for Boating and Diver Safety."
8. MRA – Oyster Reefs in the Magothy River
9. Captain John Smith Chesapeake National Historic Trail

Doors and displays open at 6:30. Program to start at 7:00. Following the presentations, there will be refreshments and time to visit the displays and chat with watershed residents and the experts. Are you interested in clean water, healthy fish, living oyster reefs and limiting suburban effects on the Magothy? Come and see how you can help!

Date: Wednesday February 20, 2008
Place: Anne Arundel Community College, Arnold, West Campus
Cade (Fine Arts) 219 (use Parking Lot F, closest to Ritchie)
directions at: http://www.aacc.cc.md.us/locationsandmaps/maps.cfm
Doors open 6:30 P.M., program 7:00-9:00 PM
Refreshments will be served
For Information call: Paul Spadaro, President of Magothy River Association, 410-647-8772, email: spadaro@cablespeed.com, or visit our web page: www.magothyriver.org
In case of inclement weather, if the college is closed, the program is postponed. College closings are announced on WNAV radio (1430 AM) and on the college web site, http://www.aacc.edu

Fines Increased and Lawsuit Tossed

On Tuesday night, the County Council voted, at Executive Leopold's insistence, to pass a bill which raises the fine for constructing a shed, deck, pier, or entire home without a permit to $500/day. The bill comes largely in response to the ongoing situation at Little Dobbins Island.

In similar news, Judge Paul Goetzke threw out the lawsuit the Magothy River Association (MRA) and five riverfront property owners had filed against the owner of Dobbins Island for erecting a fence on the beach that restricted public access. After the ruling, the attorney for the MRA expressed to the current owner that the Association is interested in purchasing the island. Keep posted for updates.

Board of Appeals Appeal

Last week, former Board of Appeals member, Ray Jicka, had the following letter to the editor in the Capital defending his decision to grant a variance to Daryl Wagner's island home on the Magothy:

The Board of Appeals Decision on Little Dobbins Island had absolutely nothing to do with the legality of the structure on the property.

The Board did not grant permission to keep the house. What it did is to recognize the owner’s legal right to construct a dwelling on a grandfathered legal building lot.

In the Board’s Memorandum of Opinion, the first sentence of Chairman Anthony Lamartina’s denial of the variance: “The case before the Board is not whether a variance can and should be granted because the simple answer is yes.”

The variance granted is not about the house, but the environmental impact of impervious surfaces in the critical area. Whether or not the property is buffer exempt or not, the owner must have a variance to construct anything.

Legally, the owner has the right to apply for such a variance as long as he meets a number of extremely strict requirements. The most demanding is that the variance is “the minimum necessary for relief.”

In this case the amount of impervious surface that existed before the current construction was 3,005 square feet. Four of the five members of the Board voted to allow an extra 320 square feet for a boat ramp. The decision would require that the appellant remove everything in excess of this maximum.

This would include the demolition of the pool, patio, sidewalks, the “boat house,” and every other structure on the island. That leaves the appellant a whole 200 square feet of impervious surface to do with as he pleases.

The problem concerning Little Dobbins Island is not the legality of a granted variance. It’s the blatant and egregious disregard of County Code requirements for permits and the accompanying inspections to obtain a certificate of occupancy.

Having read it in the print edition, I didn't feel a particular need to comment on it here, and then I received an e-mail from Mr. Jicka, bringing it to my attention again. He insisted it was "the answer to the hysterical tree huggers." At that point, I expressed to him my disappoint in the Board's decision in no uncertain terms:

[What is recounted below was originally intended as a private email correspondence, until Mr. Jicka asked that it be published here]

You and several other members of the Board let down the public in your role on the Appeals Board. Granting 70%-80% of the variance requests that came before the Board was, frankly, a shameful display. Ms. Vitale [who had originally appointed Mr. Jicka, and did not re-appoint him] certainly [i]sn't a "hysterical tree hugger", and neither are the vast majority of County residents, most of whom saw that, rather than acting an entity to protect our collective resources, the last Board of Appeals acted as a rubber stamp on irresponsible development projects. If your decision haunts you, perhaps it should. Let's hope the new appointees exercise considerably more scrutiny than the outgoing members did.

He replied that I was not "a rational fair minded entity, [but one] that follows his emotions rather that his intellect and understands the law as it is written by the County Council."

I then replied:

What about the fact that granting a retroactive variance for such a blatantly inappropriate project in the critical area violates (§ 3-1-207. Standards for granting variance., subsection c, item 2v): "A variance may not be granted under subsection (a) or (b) unless the Board finds that the granting of the variance will not be detrimental to the public welfare."?

Don't you think the dimunition of trust in Anne Arundel County government that has resulted in allowing such an egregious project to stand has been a "detriment to the public welfare?" That's to say nothing of the other environmentally damaging ways that this project has been "detrimental to the public welfare."

Merely because you, and several of your colleagues chose to take the most favorable interpretation of that statement on behalf of the developer, as you so often did, does not mean that others could not have taken a broader, more community-minded approach.

His response:

"A variance may not be..." Come on, the code approved by your County Council - did not say shall not be... If you don't like the law, lobby to change it. The Board followed the law as it is written.

My response:

The Board interpreted the law in the most liberal manner possible. The Board would have been on solid legal footing rejecting the variance.

There's no question, this whole matter should not be laid at the foot of the Board, as you say, the Council played an important role. But, it is my assessment that the Board felt [sic] short of its responsibility to county residents.

His reply:

Indeed! There's no question, this whole matter should not be laid at the foot of the Board, as you say, the Council played an important role. Why then, have you and the other "tree huggers" so excoriated the Board in this matter. We were, I repeat, following the law as it is written. If you don't like the law, lobby to change it. Do not make the Board the total villain in this unfortunate circumstance.

So, in closing, I think that Mr. Jicka and I are in agreement on the point that both the County Council and Board of Appeals share blame for the ridiculously poor way in which the Little Dobbins Island home case has been handled.

State of the Magothy - 2007

This evening, Dr. Peter Bergstrom will present the annual State of the Magothy report at Anne Arundel Community College. According to an initial release, the dark false mussels that had been thriving in the River for the past several years have died off. This has lead to cloudier water in the River and a decline in the coverage of sub-aquatic vegetation, from 310 acres last year to the current 250 acres.

Leopold Vows to Continue Case Against Island Home

One of John Leopold's first acts as County Executive suggests he possesses the nerve to proceed where his predecessor feared to tread. Throughout the election season, both Leopold and George Johnson heard continuously about the Little Dobbins Island house, and what an embarassment it had become. So, it comes as little surprise that Leopold declared that the County will continue its lawsuit against Mr. Wagner and went on the record with the Sun yesterday, saying "[the situation] has been a black eye for the county. It's my intent to do everything in my power to ensure that this does not reoccur."

While Leopold has remained tight-lipped about the Board of Appeals decision, the Board continues to expose its ineptness in defending the Bay. Board Member Vance Remillard offered that it was not the Board's place to punish Mr. Wagner.

No, of course not. Why would we expect this regulatory board, appointed by representatives of the citizenry to "punish" a man who constructed an island home in the critical area of Magothy River without permits? Unfortunately, the two members who understand their role on the board, Billy Moulden ("There is no entitlement to a variance") and Anthony V. Lamartina are outnumbered by rubes who see their job as rubber-stamping variance requests.

The light at the end of this tunnel though, is that, according to the litigation director for the Chesapeake Bay Foundation, "There's plenty of room there for an appeal." Let's hope that CBF, the Magothy River Association, and the County will keep pursuing this effort to seek justice.

More Unrest on the Magothy

Today's Washington Post tells the story of Dobbins Island and the efforts by its new owner to cordon it off to the public. Unlike the owner of Little Dobbins Island, David Clickner, the owner of Dobbins Island, seems committed to following the proper laws before building his home. Nonetheless, it's a shame to lose one of the last "wild" places on the river.

Paul and Goliath

Today's Post runs a profile of Paul Spadaro, president of the Magothy River Association, who is leading the effort to bring the illegal builder of the Little Dobbins Island home to justice.

State of the Magothy Report

The condition of the Magothy River is improving, as measured by submerged aquatic vegetation, false mussel, and nutrient levels.

Mill Creek Sewage Spill Follow-Up

There is a meeting at Anne Arundel Community College with the Health Department, Public Works and political representatives on Thursday, Feb. 9 at 7pm for the public to express their concerns about the Mill Creek sewage spill in December. Mill Creek is a tributary of the Magothy River.

If you would like to learn more about the causes of the pipe rupture, or ask questions of County officials, you are encouraged to attend.

The meeting will be at AACC, 101 College Pkwy, Florestano Building, Room 101 from 7-9pm.

Sewage Leak in Severna Park

A crack in a sewer pipe feeding the Mill Creek Pumping Station, located at Jones Station Road and College Parkway, collapsed yesterday, dumping 100,000 gallons of raw sewage into Mill Creek, which feeds into the Magothy River. Authorities are asking that residents in Arnold, Severna Park, and Millersville limit their use of public water until noon today, so as to avoid added strain on the system.

[UPDATE: Turns out the spill was 3 million gallons]

Critic of Illegal Island Home Targeted for Harassment

Paul Spadaro, president of the Magothy River Association, has been an outspoken critic of the county's mild response to Daryl Wagner's illegally built home on Little Dobbins Island. For good reason, as the person charged with heading the organization dedicated to conserving the river, the home, and the way it was built are an affront to all of the people living in the watershed who took the appropriate legal steps to built their own dwellings.

Mr. Wagner's mockery of the law, an the ineptitude of those who are supposed to be enforcing it has left it in the hands of citizen volunteers to keep the fight for a just outcome alive.

Now, someone has taken it upon him or herself to wage a campaign of harassment against Mr. Spadaro and his family. Two anonymously filed complaints accuse Mr. Spadaro of running an illegal "commercial boat tour business" from his residence. County inspectors have checked the home from the road and "haven't been able to establish any clear evidence of a zoning or permit violation."

In addition, Spadaro has had his property vandalized a number of times in the past month or so. Let's hope they catch the culprit. But, until they do, stand strong Mr. Spadaro, you're doing the community and the river a huge service by dedicating yourself to this cause.

CAC Smackdown

You've got to love the Critical Area Commission (CAC). Here you've got one State body that actually seems to have no qualms standing up for the environment and protecting our shared resources. They, as one of the final lines of defense, didn't hesitate to tell Janet Owens and Jack Keene to take their unwanted and inappropriate schemes for Franklin Point Park back to the drawing board, and now they're standing up to Stephen "Rubber Stamp" LeGendre, in the case of the home/lighthouse/pool on Little Dobbins Island.

LeGendre is the County Hearing Officer who racked up an 86 percent approval rate for variance requests in 2003, and who determined that developer Daryl Wagner's illegally built home on the Magothy could remain (but that the pool, gazebo, and lighthouse had to go). The Critical Area Commission believes that the variance standards weren't met, and is appealing the County's decision to let the house stand.

So, not only did Wagner not get the permits to build his house, he violated State Critical Area laws as well. And, he's a builder who should know better. Mr. Wagner's lawyer, Robert Fuoco, presumably beginning to feel the heat of several State agencies breathing down his neck, is apparently searching for a settlement, "It appears as if this case will take several years, and with a lot of resources involved, unless everyone is willing to sit down and figure out a reasonable accommodation."

Ideal response from the powers-that-be: "Not unless that "accomodation" involves razing your client's home and accompanying kitsch paradise, reforesting the island, and going back to the proper agencies, hat in hand to plead that Mr. Wagner doesn't deserve the maximum penalties allowed by the law."

As West/Rhode Riverkeeper Bob Gallagher said, "Failure of government to enforce the law doesn't give anyone the incentive to follow it," particularly those without a well defined sense of right and wrong.


Crimes Against the Magothy: Exhibit A

Bombing the Bay

Pasadena, MD - 4/1/05 - After receiving reams of negative feedback about resuming bombing runs on Bloodsworth Island in the Chesapeake Bay, the Navy has decided to take a different tack. Navy Secretary Gordon England yesterday met with Anne Arundel County Executive Janet Owens to discuss the possibility of selecting a location within County limits to substitute for Bloodsworth Island.

Preliminary reports suggest that the two parties may have reached an initial agreement to allow the Navy to use Little Dobbins Island in the Magothy River for its manuevers. Anne Arundel County spokesman Matt Diehl said, "it's really too early for us to comment on the matter, but there's no question, this scenario would be a win-win situation for the County and the Navy. [The Navy has] ordnance they need to test, and pilots to train, and we have a house built on an isolated island with almost none of the proper permit documents.... Oh, alright, we're going to level the place. We may even work with the Navy to see if we can pull the whole thing off on the 4th of July. Wouldn't that be something?"

The owner of the house in question, Daryl Wagner, could not be reached for comment as of press time, but nearby Pasadena neighbor Janet Weir said she would just as soon see the misplaced mansion go. "The island used to be home to all sorts of wonderful wildlife: ospreys, falcons, even a nesting bald eagle pair from time to time. Now all we get is loud music at all hours traveling right across the water, and Daryl [Wagner] kicking up wake, eroding shoreline, in his fancy hovercraft."

Magothy River Association President, Peter Sandler, mused, "I'd certainly rather the Navy didn't have to blow up any portion of the Chesapeake habitat, but at least by peppering this illegally constructed house with gatling gun rounds and dummy 50-lb bombs, we're sure to reduce its impervious surface. There's no way a roof, even one built to code, could sustain that sort of firepower."

This is satire. Any resemblance contained herein to individuals living or deceased is purely coincidental.

Musseling Back from the Brink

Time for some good news for a change. The Magothy River has been showing dramatic improvements in visibility over the course of the past several years, and it's been doing it the old-fashioned way, with native bivalves. Dark false mussels and native oysters (which have been supplemented by the Magothy River Federation (MRF) and others) have filtered the River to such an extent that it is registering record-low levels of suspended solids in the water. According to MRF president, Paul Spadaro, in places where visibility was once 6 inches, he can now see down 5 to 10 feet at times. The increased water clarity is all the more surprising given that years with big rainfall, like we've had recently, generally contribute more sediment and particulates to the water.

Let's hear it for the native mussels, and those like the Magothy River Federation, who are doing their respective parts to clean up the River and improve the health of our environment.

Castles on Sand

For the past several months, the County has wrestled with the proper way to proceed in case of Daryl Wagner. Mr. Wagner built his home on Little Dobbins Island in the Magothy River without the proper building permits. "How could such a thing happen," one might ask. How could someone build a 6,000 square foot house without the County noticing? Turns out that, according to County spokesperson, Pam Jordan, land-use officials rely on complaints from the public to nab would-be builders who don't get proper permits. Well, that's reassuring. What other responsibilities of government are being foisted off on the public because of a lack of resources or effort on the part of the County? It's a well known fact, to anyone whose paid attention, that the County is sorely lacking inspectors to keep tabs on existing construction projects. Perhaps if we were a little more generous funding our land-use inspection agencies, we'd catch these violations before they were so ridiculously out of hand.

As for Mr. Wagner's mansion, if, after the full investigation is complete, it turns out that he did flaunt the law, and bypass an array of permits, as well as the certificate of occupancy, I don't see that the County really has any other option than to raze the mansion, and send a message to other would-be lawbreakers that Anne Arundel County stands by the rule of law.