Hirsch v. Maryland Dept. of Natural Resources, Water Resources Administration, 59

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; ELDRIDGE
Citation288 Md. 95,416 A.2d 10
PartiesJohn J. HIRSCH et al. v. MARYLAND DEPARTMENT OF NATURAL RESOURCES, WATER RESOURCES ADMINISTRATION.
Docket NumberNo. 59,59
Decision Date24 June 1980

Page 95

288 Md. 95
416 A.2d 10
John J. HIRSCH et al.
v.
MARYLAND DEPARTMENT OF NATURAL RESOURCES, WATER RESOURCES
ADMINISTRATION.
No. 59.
Court of Appeals of Maryland.
June 24, 1980.

[416 A.2d 11]

Page 97

John J. Hirsch, Baltimore, for appellants.

Richard E. Rice, Asst. Atty. Gen., Annapolis (Stephen H. Sachs, Atty. Gen., Baltimore, and Thomas A. Deming, Asst. Atty. Gen., Annapolis, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, * COLE and DAVIDSON, JJ.

ELDRIDGE, Judge.

By Chapter 241 of the Acts of 1970, presently codified as Maryland Code (1974), § 9-101 et seq. of the Natural Resources Article, 1 the General Assembly enacted the Wetlands Act of 1970, which substantially changed the statutory and common law privileges and responsibilities of owners of real property contiguous to bodies of tidal water in this state. Finding that the despoliation or destruction of

Page 98

wetland areas by certain unregulated activities had adversely affected important ecological, economic, recreational and aesthetic interests (§ 9-102), the Legislature established a comprehensive plan providing for the restriction and regulation of various activities affecting wetlands in order to preserve and protect them. The Wetlands Act directed the Secretary of Natural Resources to determine the landward boundaries of any wetlands and to promulgate rules and regulations governing certain activities which might alter or affect any wetlands located on private property. The petitioners in this case, John, William and Robert Hirsch and their respective wives Mary, Elizabeth and Glenda Hirsch (all of whom shall hereafter collectively be referred to as Hirsch), owned five waterfront lots in Anne Arundel County. [416 A.2d 12] After commencing to place fill dirt on these lots, Hirsch was told by agents of the Department of Natural Resources that the fill may have been placed in wetland areas in violation of the Wetlands Act of 1970 and certain rules and regulations adopted by the Secretary. The principal issue in this case is whether these purported rules and regulations adopted by the Secretary are invalid because of the Secretary's alleged failure to comply with the Act's provisions governing their promulgation.

Before dealing with the facts and issue of this case, a brief summary of the Wetlands Act of 1970, and some of the changes which it made in the pre-existing law, may be helpful. 2 Under common law principles, title to the bed of navigable waters, defined as the land beneath the mean high tide mark of these waters, rests in the state for the benefit

Page 99

of its citizens, by virtue of the state's succession to the rights and title of the Lord Proprietor who had received the land by grant from the Crown of England, unless title to the land beneath such waters had been expressly granted to a private person. See Harbor Island Marina v. Calvert Co., 286 Md. 303, 314, 407 A.2d 738 (1979); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 35, 277 A.2d 427 (1971); Van Ruymbeke v. Patapsco Ind. Park., 261 Md. 470, 475-476, 276 A.2d 61 (1971); Browne, et al. v. Kennedy, 5 H. & J. 195 (1821); Maryland Declaration of Rights, Art. 5; 50 Opinions of the Attorney General 452, 454 (1965). Navigable water has traditionally been defined in Maryland as water subject to the ebb and flow of the tide. Van Ruymbeke v. Patapsco Ind. Park, supra, 261 Md. at 475, 276 A.2d 61. 3

Correspondingly, absent an express grant of the title to the land beneath navigable water, an owner of land bordering on navigable water was deemed to own the land only to the mean high tide mark. Id. at 475, 276 A.2d 61. In addition, the owner of land bordering navigable water was accorded certain other rights by statutory and case law. Thus, he was entitled to any gain or increase in his land that was naturally caused, such as by the recession of the adjacent water or by the depositing of soil on his land by tidal action. Moreover, he was also permitted to use the adjacent waters for artificial improvements to his property, such as by building wharves, bulkheads, piers, or under some circumstances placing fill in the waters, as long as the improvements did not interfere with the public's rights of navigation and fishing. See Harbor Island Marina v. Calvert Co., supra, 286 Md. at 315-318, 407 A.2d 738; Bd. of Pub. Works v. Larmar Corp., supra, 262 Md. at 36-44, 277 A.2d 427; Code (1957, 1968 Repl.Vol.), Art. 54, §§ 45-46, which was replaced by the Wetlands Act of 1970.

Page 100

The Wetlands Act of 1970 modified these relationships between the state and the landowner with respect to the activities permitted on certain types of land and its adjacent waters. Stating that the dredging, filling and other similar activities had despoiled or destroyed some of the wetlands in this State, and that these activities threatened the existence of the remaining wetlands, the Act declares that it is the [416 A.2d 13] "public policy of the state . . . to preserve the wetlands and prevent their despoliation and destruction." Code (1974), § 9-102 of the Natural Resources Article. 4 Therefore, the Act provides a comprehensive plan for regulating the dredging and filling of the state-owned land beneath navigable waters, and, for the first time, the Act undertakes to regulate activities affecting privately owned wetlands.

The Wetlands Act establishes a bipartite scheme depending on whether the wetlands are state or private. "State wetlands" are defined as

"any land under the navigable waters of the state below the mean high tide, affected by the regular rise and fall of the tide. Wetlands of this category which have been transferred by the state by valid grant, lease, patent or grant confirmed by Article 5 of the Declaration of Rights of the Constitution shall be considered 'private wetland' to the extent of the interest transferred." (§ 9-101(m), emphasis supplied.)

With respect to these wetlands, the Act broadly states: "(a) person may not dredge or fill on state wetlands, without a license." § 9-202(a). The Act describes the procedures for obtaining a license from the Board of Public Works and for judicial review of the Board's decision (§§ 9-201 9-203).

The regulatory plan for private wetlands is more elaborate, containing many conditions with regard to the

Page 101

prohibitions set forth and the actions of the state officials involved. Private wetlands are defined as

"any land not considered 'state wetland' bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth. This includes wetlands, transferred by the state by a valid grant, lease, patent, or grant confirmed by Article 5 of the Declaration of Rights of the Constitution, to the extent of the interest transferred." (§ 9-101(j), emphasis supplied.)

Section 9-101(k) defines "regular or periodic tidal action" as "the rise and fall of the sea produced by the attraction of the sun and moon uninfluenced by wind or any other circumstance." Thus, as one commentator has observed, a private wetland does not have to be under the navigable water of the state or below mean high tide; instead, it may be located above mean high tide, and, therefore, on private land, as long as it borders on tidal water, is subject to some tidal action, and supports aquatic growth. Salsbury, Maryland's Wetlands: The Legal Quagmire, 30 Md.L.Rev. 240, 252 (1970).

The Act assigns the regulation of private wetlands to the Department of Natural Resources rather than to the Board of Public Works. By § 9-301(a), the Secretary of Natural Resources is directed to inventory and delineate the location of the landward boundaries of all wetlands and to prepare maps showing the boundaries. The Secretary is also directed to promulgate "rules and regulations governing dredging, filling, removing, or otherwise altering or polluting private wetlands. The rules and regulations may vary as to specific tracts of wetlands, because of the character of the wetlands." § 9-302(a).

After completing the wetland boundary maps and formulating the proposed rules and regulations governing private wetlands in a county, the Secretary is instructed to hold a public hearing in that county. He is further required to give notice of this hearing not only by publishing a notice in a newspaper generally circulated in the county, but also

Page 102

by mailing a copy of the notice and a copy of the proposed private wetlands rules and regulations to each owner, as shown on the tax records, of land designated on the map(s) as a wetland (§ 9-301(b)). After directing the Secretary to consider any testimony or other facts presented at the hearing, "the rights of every affected property owner, and the purposes" of the Act, the statute provides that

[416 A.2d 14] "the Secretary shall establish by order the landward bounds of each wetland and the rules and regulations applicable to it. A copy of the order, together with a copy of the map depicting the boundary lines, shall be filed among the land records in every county affected after final appeal has been completed. The Secretary shall give notice of the order to each owner of record of any land designated as wetlands by mailing a copy of the order to the owner by registered or certified mail. . . ." (§ 9-301(c), emphasis supplied.)

Section 9-304 permits any person with a recorded interest in land affected by the private wetlands regulations to seek further administrative review of the rules and regulations and the designation of his land(s) as wetland(s). If dissatisfied with this decision, that person may seek judicial review to determine whether the rules and regulations are so restrictive as to deprive him of so much of the practical use of the land that it is an "unreasonable exercise of the police power so as to constitute a taking of property without compensation." § 9-305(a).

Section 9-306(a) provides that any person intending to...

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