A. H. Smith Sand & Gravel Co. v. Department of Water Resources, 102

• Decision Date: 04 January 1974
• Docket Number: No. 102,102
• Citation: 270 Md. 652,313 A.2d 820
• Parties: A. H. SMITH SAND & GRAVEL CO. v. DEPARTMENT OF WATER RESOURCES.
• Court: Maryland Court of Appeals

Page 652

270 Md. 652

313 A.2d 820

A. H. SMITH SAND & GRAVEL CO. v. DEPARTMENT OF WATER RESOURCES.

No. 102.

Court of Appeals of Maryland.

Jan. 4, 1974.

C. Edward Hartman, II, Annapolis (Hartman & Crain, Annapolis, on the brief), for appellant.

Institute for Public Interest Representation; Robert Jacques, Rockville, Victor H. Kramer, Richard B. Wolf and Andrew Hecht, Georgetown University Law Center, Washington, D. C., amicus curiae, on the brief.

Warren K. Rich, Sp. Asst. Atty. Gen. (John B. Griffith, Sp. Asst. Atty. Gen., Annapolis, and Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH and LEVINE, JJ.

SMITH, Judge.

Appellant and cross-appellee, A. H. Smith Sand & Gravel Co. (Smith), here claims error because a trial judge (Taylor, J.) approved that portion of an order of the Department of Water Resources (the Department), appellee and cross-appellant, which required that 'no filling operations shall take place within the 50-year floodplain boundaries (on Smith's land) without obtaining a permit from the Department for such activities.' (Emphasis in the order.) The Department claims the trial judge erred when he modified its order by changing the boundaries of the floodplain as determined by the Department. We find no error in either instance.

The area in controversy here is at Branchville in Prince George's County, south of the Capital Beltway, east of the Baltimore and Ohio Railroad, and north of Greenbelt Road. Smith has carried on a sand and gravel operation at this location for about 50 years. As Mr. Alfred H. Smith, its principal, put it, when he bought some of the land at the site in 1926, in one part 'there was a cornfield with a small, little brook running through it.' Indian Creek, a branch of the Anacostia River, is the stream here in controversy. In 1926 the 'little, small brook . . . was probably six to eight inches deep and probably eight feet wide. It ran the length of the property on down to the bridge, what was known as the old Branchville Road. There it widened out a little bit, because the horses and teams used to go through the water, to probably 20 feet wide there and about six or seven inches deep. From there it came in again and went on down to Berwyn, Lakeland, into College Park and Northwest Branch.' Much has changed since then. Part of the change consists of the lakes dug by Smith in the process of extracting sand and gravel. The most important change, however, is the vast increase in population of the area, accompanied by much greater concern on the part of citizens generally relative to matters affecting the environment in which they live.

Sand and gravel are washed in their processing. Many years ago this brought Smith's operation to the attention of the Department's predecessor, the Maryland Water Pollution Control Commission. It instituted a suit in the Circuit Court for Prince George's County 'for the purpose of controlling what the Commission conceive(d) to be a serious pollution by (Smith) of the water of Indian Creek.' Chief Judge John B. Gray, Jr., signed a decree in that case in 1950 requiring Smith to take steps calculated to eliminate the pollution then existing. The court retained jurisdiction for the purpose of enforcing the decree and of determining whether or not the alternate method adopted by Smith effectually controlled the settleable solids in the wash water or effluent flowing from its operations into Indian Creek so that such settleable solids in wash water or effluent conformed to the tolerances permitted by the regulations of the commission.

Smith's operation has been inspected many times since then. In fact, Mr. Smith said that personnel from the Department and its predecessors have inspected this operation 'every two or three weeks right along' over the intervening 20 years.

Smith was served with a series of letters of complaint which specified alleged violations occurring in August and September, 1970. It was as a result of the departmental hearing relative to those alleged violations that this matter reached the courts.

By Chapter 243 of the Acts of 1970, codified as Code (1973 Cum.Supp.) Art. 96A, §§ 23-29D inclusive, the former subtitle on pollution abatement was repealed and a new subtitle enacted. By § 24(e) the definition of '(w)aters of the State' includes 'the floodplain of free-flowing waters on the basis of a fifty (50) year flood frequency . . ..' Section 2 of Art. 96A sets forth the definitions for the entire article 'unless the context clearly provides otherwise.' The term '(w)aters of the State' is defined in § 2(e) as including '(t)he flood plain of free-flowing waters as determined by the Department on the basis of the 50-year flood frequency . . ..' A 'pollutant' is defined in § 24(b) as 'any wastes or wastewaters discharged from any . . . industrial source and all other liquid, gaseous, solid or other substances which will pollute any waters of the State.' 'Pollution' is defined in § 24(a) as 'such contamination or other alteration of the physical, chemical or biological properties, of any waters of the State, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge or deposit of any organic matter, harmful organisms, liquid, gaseous, solid, radioactive, or other substance into any waters of the State as will render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.' By § 27(a) the Department is granted the right to 'set water quality and effluent standards to be applicable to the waters of this State or portions thereof.' By § 27(b) it is granted the right to 'adopt, amend, or repeal procedural rules necessary to accomplish the purposes of (that) subtitle.'

Regulations adopted by the Department prohibit the placement of 'buildings or other structures . . . within the lines showing the floodplain of any stream or body of water included within the nontidal waters of the State' and forbid 'floodplain encroachment by land filling' except, in both instances, 'as provided in Section 8.05.03.05D(3).' That section provides:

'(3) The Department may establish floodplain encroachment limit lines in cooperation with appropriate county agencies when such encroachment has been determined to be in the public interest. Such encroachments shall be planned based upon a complete hydrologic study of the watershed. Encroachments shall be structures of permanent construction or of compacted earth fill and shall conform to planned dimensions.'

On appeal, the Circuit Court for Prince George's County found pollution by Smith, upheld the provision relative to permits, and redelineated the floodplain upon the basis of testimony concerning the level of water as a result of hurricane 'Agnes,' a storm producing flood conditions thought to occur less frequently than once in 50 years.

Smith says in its brief:

'However, the 'corrective' action regarding 'pollution' sought by the Department and promptly implemented by Smith, have essentially resolved any pollution issue. Consequently, no appeal is taken from the adverse finding of the Court below respecting pollution. Appellant may thereby concentrate on the important issue of taking without compensation brought about by the Department appropriating Smith's land for downstream flood control.'

Smith sees the points of this case as being:

'1. Does the pollution abatement subtitle (article 96A, sections 23 through 29) give authority to the Department of Water Resources to appropriate fifty year floodplain land for flood control purposes?

'2. Do the water resources orders of December 17, 1970, February 5, 1971 and August 24, 1971 as affirmed by the Circuit Court for Prince George's County constitute an unreasonable restriction upon appellant's property for a public purpose so as to constitute an unlawful taking?

'3. Does the existence of a possibility of reverter to appellant (i. e. the possibility that the Department might grant a permit after the possibility that it might conduct a study) render the otherwise unlawful taking lawful?'

Smith points out that in one of the Department's orders it was specified, after definition of the floodplain, that pursuant to the Department's regulations Smith would 'be required to obtain a permit from the Department of Water Resources for any further fill operations, involving concrete, earth, or any other matter which is placed or dumped or allowed to accumulate within the above defined floodplain.' It further points to one of the conclusions of the hearing officer:

'Mr. Smith has alleged that regulations by the State of his operations in the 50 year flood plain of Indian Creek would amount to an unconstitutional taking of his property without compensation, and would force him to close his operations within 6 to 8 months. Mr. Smith did not, however, support this allegation with any evidence, and the hearing officer thus concludes that, since Mr. Smith's property extends beyond the limits of the flood plain, regulation by the State of the activities of the A. H. Smith Sand and Gravel Company in the flood plain of Indian Creek will not in fact prohibit the operations which Mr. Smith has conducted there for many years.'

It is from all of this that Smith reaches the conclusion that it is being denied use of its property and that its property is being appropriated without compensation. We disagree.

It is contended by Smith that because flood control and land use control are dealt with in other sections of Art. 96A, e. g., §§ 50-53A (co-operative efforts with other governmental bodies and provision for acquisition of certain property rights), § 65 (contained within the Susquehanna River Basin Compact), and §§ 108-110 (contained within the sediment control...