Illegal Discharge of Sewage – In a case of first impression, Maryland’s Court of Special Appeals overturned criminal convictions based on the “continuing violation” theory in the case of a man convicted of illegal sewage disposal. Tony Gorski and Peter Hershey handled the successful post-conviction appeal after the man was denied post-conviction relief by the trial court. The CSA’s April 26, 2018 decision agreed that the jury instructions provided by the Environmental Crimes Unit prosecutor at the underlying trial conflicted with the plain language of the environmental regulations on which the charges were based. The opinion establishes that in water pollution cases in Maryland, the State must prove an actual discharge on each date charged in order to obtain a conviction for an illegal discharge. The State relied upon the continuing presence of the alleged sewage on the ground surface as evidence of a continuing violation. The Court reversed the convictions based on the continuing violation theory and remanded the case for resentencing. Shortall v. State, __Md. App. __(Case No. 0170, September Term, 2017).
Partner Anthony G. Gorski successfully challenged the Maryland Department of the Environment’s decision to deny an after-the-fact Tidal Wetlands License application. The landowners installed a replacement bulkhead landward of an existing bulkhead on their waterfront property along Fishing Creek in Woolford, MD. The original bulkhead was installed by a prior owner in a boat basin excavated landward on the property and had been damaged by flooding during Tropical Storm Isabel in 2003. MDE alleged that the installation was illegal and ordered the landowners to remove the replacement bulkhead, but agreed to first consider an after-the-fact application for a Tidal Wetlands License. In reviewing the application, MDE maintained that the original bulkhead failed the “Functionality Test” used to determine if it will allow an existing bulkhead to be replaced with another bulkhead, or require the landowner to use alternative “soft” erosion control features. MDE decided that the original bulkhead could not be replaced in kind and denied the Tidal Wetlands License application. In overturning MDE’s denial, the Court agreed with the landowners that the record provided no basis for MDE’s Functionality Test decision. The Court questioned the agency’s ability to apply the Functionality Test in any application because there are no statutory or regulatory provisions describing or quantifying the test or addressing how the agency is to make a decision concerning whether, and to what degree, a bulkhead is “functioning.” The Court also agreed with the landowners that the excavated boat basin where the replacement bulkhead was installed is a private wetland and, as such, the law does not authorize the agency to apply the Functionality Test. The Court remanded the matter to MDE to re-evaluate, based on its decision, whether a Tidal Wetland License was even required. (In The Matter Of Roy Harrison, et al.; Circuit Court for Dorchester County, Case No.: 09-C-14-021224).
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