Anne Arundel officials should never have issued a grading permit to a Florida developer who wants to build near Shady Side without ensuring the protection of non-tidal wetlands, says a staff planner with the state Chesapeake Bay Critical Area Commission.
Anne Hairston said the mistake apparently was made because the county, after finding wetlands on the West River property, deferred to the judgment of the Army Corps of Engineers, which had ruled no wetlands exist on the site.
Hairston said the 1987 guidelines for identifying non-tidal wetlands, used by the Army, are incompatible with the definition of non-tidal wetlands contained in the state and county law.
Until the corps revises its procedures, programs in Anne Arundel and other countiesshould not rely on that agency's judgment, she said.
BMCN Joint Ventures Inc. received a permit last month to build roads and lay sewer lines for 96 homes in the Back Bay Beach development.
The countyBoard of Appeals rescinded the grading permit Monday after residentsand environmentalists objected that it violated the county's Critical Area law.
"This grading permit is now substantially inconsistentwith with the County Critical Area Program," Hairston said in a Nov.15 letter to the appeals board. "The design or layout does not appear to ameliorate impacts on water quality and wildlife habitat and meet current requirements for basic environmental protection."
If thecounty continues to defer to the Army, state Sen. Gerald Winegrad, D-Annapolis, said he fears Anne Arundel could lose up to 40 percent ofthe non-tidal wetlands inside the Critical Area, a protected 1,000-foot strip along the bay and its tributaries.
Non-tidal wetlands --those not affected by the ebb and flow of the tide -- provide wildlife habitat and a natural filter of pollutants heading toward the bay.
Joseph Elbrich, Anne Arundel's director of environmental planning, said the county has deferred to the corps since the adopting its Critical Area program in 1988, particularly in cases where development plans existed before county regulations.
Back Bay Beach, for instance, was subdivided in 1922, Elbrich said. Because it is "grandfathered," he said the county cannot force the developer to comply with theCritical Area law, particularly if the developer can get corps approval.
However, Hairston said, grandfather status should not exempt the developer from all Critical Area requirements. At the very least,she said, the Back Bay Beach project should be redesigned to protectthe non-tidal wetlands as well as meet storm water management requirements.
Hairston said President Bush's decision this year to have the Army Corps revert to its 1987 guideline, abandoning 1989 guidelines that more closely match the Critical Area law, has added to the confusion. She said county planners should continue using the 1989 guidelines.
The state Critical Areas commission will conduct a previously scheduled review of the county's program this winter.