MDE ignores bike/ped again

WABA's letter: Richard J. Ayella, Chief Tidal Wetlands Division Maryland Department of the Environment 1800 Washington Boulevard Baltimore, MD 21230 Dear Mr. Ayella: On behalf of the Washington Area Bicyclists Association, I am providing comments on the proposed Living Shoreline Regulations which would implement the Living Shoreline Protection Act of 2008. Our organization has over 7000 members in the Washington area, of which over 2500 reside in Maryland. We are also the largest organization in Maryland representing the interests of those who rely on non-motorized transportation. We agree with the overall intent of the draft regulations, which is to help preserve Maryland’s shoreline environment as climate changes and sea level rises. Without the Living Shoreline Protection Act, important wetlands and beaches would be squeezed between the rising sea and shore protection structures erected to protect waterfront homes and businesses. But although we agree that preserving natural shorelines is important for the terrapin and many species of birds and fish, we are concerned that the draft regulations ignore the fact that people also use natural shores. The draft regulations do not even attempt to ensure that public access along the shore is preserved when MDE issues a shore protection permit. For a regulation with implications for pedestrian access along thousands of miles of shoreline, it is also troubling that MDE has apparently made no effort to engage the state’s official bicycle and pedestrian advisory committee. The Living Shoreline Protection Act was part of an overall legislative package to address climate change. The centerpiece of that package is the state’s commitment to reduce emissions of greenhouse gases. An important part of the state’s strategy is to decrease the reliance on automobiles by increasing the use of bicycles, walking, and the design of walkable communities. Bikepaths and pedestrian pathways are key tools for promoting nonmotorized transit—but acquiring the necessary easements is often expensive or politically infeasible. So once a public easement is obtained, it ought not be given up without careful consideration. Under Maryland law, the public has the right to walk along any shore below the high water mark. Shore protection structures often eliminate the pedestrian access along the shore, because they eliminate the intertidal land. Some states ensure that shore protection does not destroy access along the shore by requiring property owners to provide an alternative access, such as a path immediately inland of a revetment. Although old regulations do not consider public access, the new legislative mandate to preserve natural shores logically implies preserving the public property rights that accompany those shores—as well as the ecosystem functions. Therefore, we think that the final regulations must make preservation of public access one of the objectives. We see several places where preserving access should be included in the revised regulation: A factor in the planned mapping A preference factor for getting a waiver A condition for waivers A factor on the priority ranking system for hard structures Requiring access is particularly important where state or local transportation departments—or an objective assessment of the situation—indicate a significant existing or potential demand for alongshore access. In Prince Georges County, for example, we can foresee a demand to walk or bike from National Harbor to Fort Foote along the shore; so a permit for shore protection structures for the homes that lie between those facilities could deprive the public of an important access way--unless MDE is careful to consider public access in the award of those permits. In closing, we would like to emphasize that we are not suggesting that the Living Shoreline regulations be used to create public access pathways where none exist today. We are merely suggesting that preserving the existing rights to walk along the shore is often just as important as the environmental amenities the regulations already incorporate. The State of Maryland holds the land below mean high water in trust for the people. As trustee, a fundamental duty is to preserve the public’s rights to use those publicly owned lands. Thank you for your time and your consideration of these comments. Sincerely, Eric Gilliland Executive Director

Baltimore Bicycling Club

Richard J. Ayella, Chief

Tidal Wetlands Division

Maryland Department of the Environment

1800 Washington Boulevard

Baltimore, MD 21230

Mr. Ayella,

On behalf of the Baltimore Bicycling Club, I am providing comments on the proposed Living Shoreline Regulations. Our organization has over 1500 members around the Baltimore Metropolitan Area.

Having been involved with easements along the Inner Harbor Waterfront Promenade, the right of bicycle and pedestrian access and public enjoyment of our shore line should not be something that is causally cast away when protecting our shore line. We strongly suggest that the final regulations must make preservation of public access as one of the objectives.

We have concerns that these new regulations could have an negative impact on the Lower Susquehanna Heritage Greenway in violation of § 2-602. Public policy. The General Assembly finds that it is in the public interest for the State to include enhanced transportation facilities for pedestrians and bicycle riders as an essential component of the State's transportation system. It is therefore imperative that the needs of pedestrians and bicyclists be considered when designing hard structures and their related easements along any planed or existing path.

We sincerely appreciate your efforts to preserve Maryland's outdoor benefits and we are looking forward to enjoying the results of your hard work.

Another letter of support: Dear Mr. Ayella: As chairman of the Bicycle Pedestrian Advisory Group (BPAG) of the Baltimore Regional Transportation Board (BRTB), I would like to offer input on the Living Shoreline Protection Act of 2008. BPAG represents the interests of bicyclists and pedestrian throughout the Baltimore Metropolitan area and works to incorporate “active transportation” into the existing and future transportation system of Maryland. As such, the Living Shoreline Protection Act greatly affects the bicycle and pedestrian interests along the Chesapeake waterfront. In principle, BPAG agrees with the LSPA: preservation of Maryland’s shoreline. Wetlands are the natural buffer between land and sea that filter pollutants, protect waterfront properties and provide habitat for indigenous and migratory wildlife. As Maryland begins the 21st century, her waterfront changes for the better. Along with state and federal legislation in place to protect wetlands from destruction, economics have transformed the shoreline from industrial to recreational and residential uses. Access to the Chesapeake shoreline is now more economical for local citizens as industry abandons port access. In addition to increased property values, Marylanders are rediscovering the aesthetic value of the Chesapeake through fishing, walking and biking. The Waterfront Promenade is a walkway that traces Baltimore’s harbor shoreline providing an urban oasis blocks from the bustling city center. While the Promenade currently extends from Canton to the Inner Harbor, plans are in place to extend the promenade along other sections of the Harbor. Throughout Anne Arundel, Baltimore and Harford Counties, the active transportation system of trails, bikeways and walkways is beginning to expand. The Hawthorne Trail capitalizes on its waterfront location to provide citizens scenic views of Middle River. Future plans for both the Hawthorne Trail and Waterfront Promenade will be jeopardized by aspects of the Living Shoreline Protection Act by limiting bicycle & pedestrian access. BPAG recommends a waiver process that favors public access, especially when environmentally considerate uses are proposed; such as non-motorized access that does not affect wetlands and minimally impacts the surrounding landscape. The Bicycle Pedestrian Advisory Committee stands with the Maryland Department of Environment to reduce climate change and improve air quality through active transportation. BPAG also supports the Living Shorelines Protection Act, but access to the waterfront for bicyclists and pedestrian is crucial to Maryland’s economic and environmental future as it has been in the past. Thank you for your time and consideration for this amendment. Sincerely, Nate Evans Chairman, Bicycle & Pedestrian Advisory Committee Bicycle & Pedestrian Planner, City of Baltimore

Another opportunity to push for bike-ped access along the shores will be in the implementation of the Chesapeke Bay Executive Order, which says, in part:

"Sec. 701. (a) Agencies participating in the Committee shall assist the Secretary of the Interior in development of the report addressing expanded public access to the waters of the Chesapeake Bay and conservation of landscapes and ecosystems required in subsection 202(e) of this order by providing to the Secretary."

June 26, 2009

Richard J. Ayella, Chief
Tidal Wetlands Division
Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, MD 21230

Dear Rick:

Congratulations on all the progress over the last decade in reducing the adverse environmental impacts of estuarine shore protection. Thanks to the efforts by MDE, DNR, scientists, NGOs, policy makers, and engaged property owners, Maryland is now at the forefront of the movement toward more environmentally sustainable shore protection. Ten years ago, hard shore protection was the preferred option and it was almost impossible for an ordinary property owner to get a permit for beach nourishment or a cobble beach. With these regulations, the nonstructural approach will truly become the preferred alternative—and at least in some areas, permits for revetments will be hard to obtain.

I am writing to provide technical comments on the draft Living Shoreline regulations, having been forwarded the letter you sent to various people who have studied different aspects of the problem. These technical comments do not represent the views of my employer, the U.S. Environmental Protection Agency, nor should they be viewed as a policy recommendation. Rather they should be viewed as representing the implications of various sea level rise impact studies, especially an article published in the Maryland Law Review and several chapters in the recent report on sea level rise published by the US Global Change Research Program).

The only serious omission I see is that the proposed regulations do not address the impact of shore protection on public access. The public has the right to walk along the shore below mean high water, but when MDE authorizes a bulkhead or revetment, the intertidal area is eliminated. Though you may consider the Tidal Wetlands Division to be in the business of preserving habitat and evaluating engineering options, the nature of shore protection means that you cannot avoid either being in the business of preserving public access or destroying it. Under the previous set of regulations, MDE policies have destroyed public access along most shores with bulkheads or revetments. As MDE turns the page on past practices that eliminated natural shores, now would be a good time to consider whether the program should also stop eliminating public access. Yet that question involves issues that are within the purview of other agencies (such as MDOT and DNR) and concerns stakeholders that may not normally follow tidal wetlands issues (such as cyclists, pedestrian advocates, shoreline fishermen, and owners of very small boats such as kayaks, canoes, and windsurfers). MDE should probably consult with the state’s bicycle and pedestrian advisory committee, some experts on the public trust doctrine, as well as MDOT’s director for bicycle and pedestrian affairs and DNR’s public trust doctrine experts. Meanwhile, I shall provide a few of my thoughts on the issue. In the attachment file Living_Shoreline_Regulations_Titus_edits.doc I have marked up the proposed regulation with language that would enable the regulations to address access

The Need to Address Public Access

Under Maryland’s public trust doctrine—like the common law of most states--the public has the right to walk along any shore below the high water mark. Bulkheads eliminate the intertidal zone, so public along the shore is eliminated. Revetments obstruct access because there are large boulders on top of the intertidal beach. The boulders are a challenge for people walking along the shore and make it impossible to beach a small craft without serious risk of hull damage. The law is not completely settled on whether revetments eliminate public access along the shore—the revetment is private property, but that does not necessarily mean that the public has no right to walk along the shore. Under the public trust doctrines of Virginia, for example, the land above mean low water is privately owned, but the public still has a right to walk on it for purposes of hunting, fishing, and navigation. But the structures make access along the intertidal land impractical for most people unless there is a beach fronting the structure, which is usually not the case. By contrast, breakwaters, beach nourishment and cobble beaches (adding gravel to the shore) keep access essentially the same. Marsh creation can increase or decrease access, depending on whether the marsh is above mean high water and the pre-existing type of shoreline. Thus, the type of shore protection that MDE permits has a tremendous impact on public access.

A regulatory agency can mitigate the impact of a hard structure on public access by providing for a public path immediately inland of the revetment or bulkhead. If such a pathway is dedicated to the public trust, then the property owner has no additional liability. Although some property owners may initially fear a sudden invasion of pedestrians from such a pathway, people already have the right to walk along the shore, so there is little reason to expect more foot traffic than property owners would otherwise experience in most areas. Still, with increasing development, there will be a natural increase in foot traffic along shores, and property owners might hope to thwart that increase with a shore protection structure. MDE need not facilitate the hopes of some property owners that the public be excluded in the future from land that the public owns today—but that is what the regulations have done in the past.

Without an explicit expression by the legislature on the question of public access, the reasonable expectation under the public trust doctrine is that MDE would be neutral, by ensuring that shore protection neither increases nor decreases public access on average. That may mean that in some cases, access is reduced or eliminated, while in other cases access is enhanced. The failure to address access in the regulations, however, is not neutral. Rather, omission of access in the regulations allows access to be eliminated in most urban areas (and wherever the mapping allows hard structures), keeps access about the same in the less developed areas where there is less demand for access, and does not require access to be increased anywhere.

The practical importance of preserving public access varies. Along areas with brackish water and sandy beaches, residents often walk along the beach as the most expeditious way to visit a neighbor or—in some cases—a nearby store or park. Visitors use these shores for beaching a boat, fishing, or generally experiencing the coastal environment. All it takes is a single revetment to obstruct the ability to travel along the shore—unless a provision is made for alternative lateral access.

In the more developed areas—along both sandy and muddy shores--new paradigms for waterfront development are emerging which include enhanced public access to the waterfront. Here the value of preserving public access along the intertidal shore may be that it increases the feasibility of enhancing the waterfront access. If the public already has access to the intertidal beach, for example, property owners may be more amenable to a beach nourishment project that both protects their homes and allows for access along the newly created dry beach. If the public is excluded from the shore, conversion of a private shore to a public beach is more likely to be opposed by property owners. Similarly, if occasional fishermen are already walking along a muddy shore in an urban environment, the owner of a nearby office building or planned townhouse development is more likely to agree to a publicly funded bulkhead with a public promenade than would be the case if the public is excluded from the shore. Finally, local governments have acquired easement for bike trails along the shore in some areas—but actually building the trails can be difficult if the perception is that trail users are going to invade a private enclave. If the public has access along the shore anyway, then cyclists are simply joining the people that already are found along the shore.

MDE may reasonably view these concerns as beyond the responsibility of MDE. The problem is that MDE is—in effect—taking responsibility and harming all of these existing and potential initiatives if the shore protection regulations ignore the lost access from shore protection. The most effective way for MDE to allow the appropriate agencies to weigh in on access issues is for the regulations to account for access in the mapping, waiver, and design guidelines—and then listen to the agencies with expertise on those issues. Such an approach would be more consistent with the way the state manages other activities. Imagine MDE’s reaction if MDOT were to build a highway without considering the environmental implications, on the grounds that its expertise is transportation, not the environment. Is it any more reasonable for MDE to manage the environment without considering the implications for transportation?


MDE has authority to address access in these regulations

MDE has the authority to address access for several reasons, even though the Living Shorelines Protection Act does not mention public access. The reduction in public access from the existing and proposed regulations does not result from legislative directive to privatize the shore, or even a policy by a previous administration to do so. Rather it appears to be an unintentional consequence of regulations designed to address the type of shore protection appropriate for a given location. It has always been within the power of MDE to fix unintended problems with its regulations, but the administrative costs of doing so can be a barrier. But once the regulations are being fundamentally revised in response to a new statute, there is no obligation to retain the flaws of the previous regulations simply because the legislature did not order them to be fixed. The new preference for living shorelines required a change in the statute, which previously gave property owners a right to build revetments in most situations. By contrast, the public trust doctrine provides authority—and possibly obliges—the state to preserve public rights to the shore when regulating lands in the intertidal zone.

Besides the public trust doctrine, enhancing shoreline access is more consistent with existing legislative mandates than eliminating access. The Living Shoreline Protection Act was part of an overall legislative package to address climate change. The centerpiece of that package is the state’s commitment to reduce emissions of greenhouse gases. An important part of the state’s strategy is to decrease the reliance on automobiles by increasing the use of bicycles, walking, and the design of walkable communities. Many other state policies promote walking and biking. Bikepaths and pedestrian pathways are key tools for promoting nonmotorized transit—but acquiring the necessary easements is often expensive or politically infeasible. So once a public easement is obtained, even without the public trust doctrine the state’s transportation policy would not favor giving up an easement without careful consideration.

Finally, because access is an inherent part of regulating shore protection, it must be within the authority of MDE to consider it within the regulations, which already consider several factors that were not specifically mentioned by the statute.

This is not to say that MDE has the authority to facilitate every possible instance of public access along the shore—any more than MDE can regulate every instance of adverse impacts on wetlands.

The attachment provides language for including public access as an objective of the regulations, in the following ways

• A factor in the planned mapping 26.24.04.01 (E)(1):
• A factor in criteria for getting a waiver 26.24.04.01 (F)(4):
• A condition for hard structures built pursuant to a waiver 26.24.04.01 (H)
• A factor on the priority ranking system for hard structures 26.24.04.01 (G)(1)
• Including requirement to assess and mitigate loss of access in a buffer management plan (definition of buffer management plan):
• Including the impact on and (if applicable) mitigation of access as part of the information submitted with an application, 26.24.04.01 (A) and 26.24.04.01 (B)(4)
• Including the mitigation of adverse effects on access in the design guidelines that already require mitigation of adverse effects on navigation 26.24.04.01 (C)(3)(d) and 26.24.04.01 (H)
• Making revetments lower on the priority list than breakwaters and groins, unless access is mitigated 26.24.04.01 (C)(5)

In each case, the regulation would simply be directing MDE permit writers to consider the option that had the least deleterious effect, not requiring them to follow a specific path. The statute requires the mapping to focus on whether or not a hard structure is appropriate. If a hard structure generally eliminates public access, then a hard structure along an urban shore where access is important would be less appropriate than a beach nourishment project that kept the access—so it would be reasonable to map urban areas where access is important as not appropriate for hard structures. If a waiver application provided public access, then the hard structure could be appropriate.

Other Issues

Finally, in the attachment I also comment on a few issues unrelated to public access. My overall concern is that the regulations may unnecessarily limit beach nourishment and cobble beaches.

1. Suggest beach nourishment needs a definition. Perhaps gravel below a certain size should be included.
2. The definition of what is not fill should include material placed above mean high water.
3. The definition of living shoreline should not be so narrow as to require marsh planting. There are other types of wetland vegetation that ought to be included—and as climate warms they may dominate more. Cypress trees are an example.
4. The definition of nonstructural protection should not include a requirement for vegetation. It seems to exclude beach nourishment—but later use of the term seems to include beach nourishment.
5. 26.24.04 (A)(1). This requirement is very confusing. Why does one have to show that relocating the structure will not eliminate the need for shore protection? Do you really mean to imply that I have to show that even if I moved my house across the street, I would still protect the shore?
6. In “[(5) Erosion control measures requiring a tidal wetlands permit or license shall be considered in the following order of preference:…” the regulations talk about revetments protecting a nonstructural project. That seems very strange. How can it be a nonstructural project if there is a revetment protecting it? More generally, why are revetments ranking about breakwaters and groins, when revetments eliminate the intertidal zone—and public access—while breakwaters do not. You seem to be ranking breakwaters above nonstructural living shore.

Best regards:

James G. Titus
Climate Change Division:
US EPA