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VETOES
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S.B. 1005
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Senate Bill 1005 would prohibit the Board of Public Works (Board) from charging
more than $50 for a tidal wetlands license that is issued for riparian structures or
activities that will not increase revenue to a commercial enterprise and for which the
Maryland Department of the Environment did not hold a public hearing. The
Maryland Department of the Environment (MDE) opposed Senate Bill 1005 during
the Senate hearing, and there was not a hearing in the House of Delegates. MDE and
the Board requested a veto of the bill.
Under § 16-205 of the Environment Article, the Board may require monetary
compensation as a condition to the issuance of a wetlands license. As a result,
licensees conducting regulated activities on State tidal wetlands are charged a
nonrecurring, nonrefundable fee according to a schedule established under Code of
Maryland Regulations 23.02.04.22. Typically these activities affect submerged lands
owned by the State and held in trust for the benefit of the general public. Due to the
ambiguous wording of the bill, it is unclear the impact it may have on the Board's
ability to require adequate compensation for activities conducted on State property.
Senate Bill 1005 also negates a recent regulation change that was properly
promulgated by the Board. The new regulations were published in the Maryland
Register on November 12, 2004. The Board approved the proposed regulations at its
January 5, 2005 meeting. Subsequently, a notice of final action on regulations was
published in the Maryland Register on January 21, 2005 with an effective date of
January 31, 2005. This was the first time the Board amended its regulations since
they were originally promulgated in 1994. It is also important to note the Board did
not receive any comments during the promulgation process. The regulations set the
compensation fee for certain regulated activities at $1,000. Senate Bill 1005 reduces
the fee for certain noncommercial riparian structures or activities, which do not
require a public informational hearing during the application review process, to $50,
a 95% reduction in the amount of compensation that may be assessed by the Board.
In addition to altering the fee schedule, the regulations redirected the fees collected
by the Board from the State general fund to the Tidal Wetlands Compensation Fund,
which is administered by MDE for the acquisition and conservation of wetland areas.
Historically, this fund was used exclusively for property acquisition in conjunction
with Program Open Space administered by the Maryland Department of Natural
Resources. During the 1996 legislative session, however, the use of the fund was
broadened to accommodate the conservation of wetland areas, including the
management and control of phragmites. The change in the compensation fee schedule
proposed by Senate Bill 1005 will reduce the amount of special funds available to
MDE. As a result, the bill will reduce the amount of special funds used to acquire
sensitive wetland areas or perform environmental restoration projects that benefit
the Chesapeake and Coastal Bays, as well as the citizens of Maryland.
Senate Bill 1005 may affect the ability of the Board to assess compensation for
activities conducted on State property and the impact on the Tidal Wetlands
Compensation Fund could be disastrous. The Board is concerned it will no longer be
able to force utilities, developers, and businesses to pay the fair market value for the
use of State land. This concern is concisely articulated by Sheila McDonald, the
Executive Secretary of the Board of Public Works, in her April 26, 2005 letter to
Kenneth Masters, my Chief Legislative Officer. MDE concurs with Ms. McDonald's
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