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State Treasurer Nancy K. Kopp, Comptroller Peter V.R. Franchot, Gov. Martin O’Malley and Franchot’s chief of staff, Len Foxwell, at Wednesday’s Board of Public Works meeting. (The Daily Record/Bryan P. Sears)

Wetlands decision preordained by court ruling

News Analysis

A squabble between the executive and judicial branches of state government and the failure of a bill this year in the General Assembly may have ultimately guaranteed approval of the wetlands permit for a temporary pier for the proposed Cove Point liquid natural gas export facility.

The Board of Public Works Wednesday unanimously approved a permit for a temporary pier important to the completion of the proposed Cove Point liquid natural gas export facility in Lusby, Calvert County.

But to members of the Board of Appeals, the die was cast for this week’s decision in a Court of Appeals ruling made nearly two years ago.

“We are guided by recent Court of Appeals decisions that tell us what criteria we are to use in granting a wetlands permit,” O’Malley said. “We’ve been kind of hemmed in by that.”

It was in 2007 that the Board of Public Works, under O’Malley, unanimously denied a wetlands permit that would have allowed for construction of more than 1,000 homes along the Chester River in Kent Island. The reason for the denial was based not on how the particular wetlands would be affected by the project. Instead, the three members looked at how the Chesapeake Bay as a whole would be affected.

Five years later, the Court of Appeals struck down the denial as an over-reach and remanded the entire issue back to the board.

The Four Seasons project was tabled again by the board last summer and remains in limbo. The board is under a court order requiring a decision be made by October 6.

O’Malley and Treasurer Nancy K. Kopp made it clear to those in attendance Wednesday that they were mindful of the court ruling. While they were giving opponents and proponents alike wide latitude to say their piece, they made it clear that issues of public safety and effects on the environment related specifically to the plant — rather than the pier — would likely carry no weight in a decision.

It was a boundary that irritated Tracey Eno, a Lusby resident and opponent of the export facility.

“I believe they should have ignored the rulings of the Court of Appeals and voted their conscience,” Eno said.

But voting one’s conscience was not part of the 2012 Court of Appeals decision.

And barring a change by the General Assembly, it’s a decision that a majority of the Board of Public Works — O’Malley and Kopp — have accepted.

“Often times here at the Board of Public Works, especially around these wetlands permit issues, people conflate issues and bring together many issues that are beyond the four corners of the question we’re asked to approve today,” O’Malley said during the Wednesday hearing.

Another real effect is that it allowed O’Malley, who has presidential aspirations, to award a permit to a project that will provide jobs to union workers while not running the risk of offending environmentalists.

Last summer, O’Malley vowed to fight the Court of Appeals decision in the General Assembly with a bill that would restore what he and others say was legislative intent 40 years ago to give the Board of Public Works wide latitude in deciding wetlands permits issues.

“If that wasn’t the intent of the legislature, why would they task it to the Board of Public Works if all they had to do was approve a recommendation made by state agencies,” said Andrew Friedson, a spokesman for Comptroller Peter V.R. Franchot.

Whatever the intent of legislature intent was four decades ago, the bill requested by O’Malley earlier this year failed to garner support in the House Environmental Matters Committee.

“The bill was so flawed,” said Anthony J. O’Donnell, R-Calvert County and a member of the committee. “It looked like a power grab to a lot of legislators,” said O’Donnell, who represents Lusby.

O’Malley ultimately withdrew the legislation.

Meanwhile the squabble between the executive and judicial branch remains with both sides believing each has overstepped its authority.

And the results of the 2012 decision, if left unchanged by the legislature, will continue to affect future wetlands permits decisions, Kopp, the state treasurer told legislators in February.

“This issue will not disappear,” she said.