65 A.3d 221
Md. Ct. Spec. App.2013Background
- 1691 sought a nontidal wetland permit from MDE to build a large box retail center on a 17–20 acre site with wetlands in Crofton, MD.
- 1691 argued the project would fulfill a public need and that alternative designs or sites would cause greater wetland impacts; MDE conducted an iterative review including an ALJ hearing and a Final Decision Maker decision.
- MDE defined the project purpose as constructing a big-box store and related infrastructure, and evaluated practicable alternatives under Md. Environmental Article §5-907 and COMAR doctrine.
- Public notice, a contested case hearing, KLNB market data, and the Crofton Small Area Plan (CSAP) were admitted as evidence of public need, with the CSAP and BRAC-related discussions presented by 1691’s witnesses.
- The ALJ recommended approval with modifications; the FDM affirmed, and the circuit court upheld the FDM, denying appellants’ challenges on substantial evidence grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence of no practicable alternative | 1691 argues alternatives existed with less wetland impact but were rejected for non-purely economic reasons. | MDE properly applied §5-907(b)(2) using the project’s purpose and four sub-factors, finding no practicable alternative. | No error; substantial evidence supported no practicable alternative. |
| Whether the record supports a finding of public need | 1691 contends public need was shown by market data, BRAC impact, CSAP goals, and end-user interest. | MDE properly considered CSAP, KLNB data, and Berkshire’s testimony as relevant to public need. | Substantial evidence supported a finding of public need. |
| Whether the mitigation plan allowing transfer to the County is permissible | 1691 argues land transfer to the County for mitigation should be disallowed as inconsistency with no-net-loss goals. | MDE’s interpretation allows mitigation by preservation/land exchange; transfer to a public agency is acceptable and enforceable. | No error; mitigation plan approved as a permissible form of no-net-loss mitigation. |
Key Cases Cited
- Hovnanian’s Four Seasons at Kent Island, LLC v. Maryland Dept. of the Env't, 425 Md. 482 (Md. 2012) (reaffirmed balancing wetlands protection with development in Maryland)
- Hovnanian at Kent Island, LLC v. Md. Dept. of the Env't (Hovnanian II), 410 Md. 128 (Md. 2009) (discussed statutory framework and deference to agency decisions)
- Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407 (9th Cir. 1989) (analyzed project purpose and reasonable alternatives in Corps context)
- Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir. 2008) (record supported multiple design alternatives; Corps must review feasible options)
- Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156 (10th Cir. 2012) (must show agency took hard look at alternatives; no magic number of options)