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What’s Going on with MDE Violation Notices at the End of Cross Road in Oyster Harbor

The Maryland Department of Environment (MDE) has issued several Notices of Violation against the Oyster Harbor Citizens Association (OHCA) for placing unauthorized fill in wetlands between Cross Road and Thomas Point Road. After several site inspections in 2021 and 2022, both Anne Arundel County and MDE have found that the landfill is a violation of Maryland’s wetland laws and was performed without proper permitting or legal authorization. MDE is requiring immediate action by OHCA to remove the fill, restore the wetlands to their original condition, and allow the natural flow of water down to Fishing Creek. MDE reserves the right to fine OHCA for each day that violations continue under Maryland Environmental Article Title 5.

According to MDE’s violation notices, OHCA’s past president authorized an OHCA contractor to place large amounts of stone, rubble, mulch and other materials on land belonging to OHCA, a non-resident private landowner (Mr. Stewart Anderson), and the Fishing Creek Farm Homeowners Association (FCFHOA) among others. They did so in order to build up an existing foot path between the west end of Cross Road and Thomas Point Road. In describing the work to OHCA’s board and community members, OHCA’s past president characterized it as improving a “mulch trail” that ran along the right of way owned by OHCA at the end of Cross Road (the Cross-Creek “paper road”) and an empty lot at 1209 Creek Drive owned by the above non-resident private landowner. The raised path acts like a dam which impounds rainwater and results in the intermittent flooding of properties on the upstream side of the trail. According to estimates by Underwood & Associates, the unauthorized fill consists of at least 68 cubic yards of concrete rubble and 119 cubic yards of other debris.

MDE is requiring OHCA—through an MDE-approved professional wetlands remediation firm—to remove the unauthorized fill along the Cross-Creek paper road by April 30, 2023. OHCA received three different bids in response to its RFP and the OHCA Board voted in August 2022 to award the contract to Underwood & Associates, which had the best and lowest bid of up to $42,000 ($26,650 plus regulatory costs up to a total of $42,000, depending on State and County requirements; the other bids were for $64,800 and $119,003).

Under MDE’s violation notices, OHCA is responsible for removing all the unauthorized fill from the wetlands, in land owned by OHCA as well as the private landowner and FCFHOA. MDE originally told OHCA that it had to secure permission from the other two landowners before any remediation plan would be approved. FCFHOA granted OHCA access on October 21 to perform the required wetlands restoration work, but the private landowner declined despite OHCA’s repeated efforts between June and October to contact him by phone and email. MDE modified its requirement in late October after the private landowner told MDE he wanted to go it alone and submitted plans to leave most of the unlawful landfill in place—which MDE rejected. The private landowner’s engineer subsequently noted on October 31 that “private landowners along and adjacent to the unpaved portion of the road have made applications and intend to pave the existing roadway.” After asking for several revisions to the OHCA-Underwood remediation plan between September and November, MDE formally agreed to OHCA’s proposal on November 11, allowing Oyster Harbor to begin remediation work on its own property at the west end of Cross Road independently from the private landowner.

On November 28, 2022, the private landowner appealed MDE’s decision to approve OHCA’s wetlands remediation plan and continued his efforts to go it alone without giving OHCA permission to access his land. OHCA’s Board Attorney received notice of the appeal on December 5 and filed an answer with MDE on December 6 opposing the appeal as an attempt to further delay the remediation efforts being required by the State of Maryland:

“What is involved here is remediation of the violation, and the Violator [OHCA] did not, and does not request, or otherwise agree to, a contested hearing on the remediation plan submitted on its behalf, as that is simply a delay tactic by certain individuals designed to prevent the removal of the unauthorized fill and increase the legal costs of this situation to the Oyster Harbor community.”

As of mid-December 2022, the MDE-approved plan for remediating OHCA and FCFHOA land is under review by senior MDE officials, the State Attorney General, and other attorneys. OHCA’s Board and Officers intend to comply with Maryland state law and remove the unauthorized fill as soon as possible in order to avoid possible fines and to clear OHCA community property of MDE’s violation notices. Hopefully work on restoring OHCA’s wetlands will begin in January 2023.

This is not an issue of OHCA trying to stop development or deprive landowners of their right to pursue permits and variances to build on their private property. Nor is it about creating a stream where none exists–clearly there is intermittent water flow at the intersection of the Cross-Creek paper roads when it rains, and MDE wants anything that blocks that water flow through the wetlands gone. The issue is solely that OHCA is attempting to right the wrongs committed under OHCA’s past president that have resulted in legal action against OHCA by the Maryland Department of Environment and Anne Arundel County.