(The following was written by John Flannery and is posted here with permission. -P13)
Dear friends and political activists,
We have an opportunity right in our own backyard, close to home, somewhat removed from the Gulf disaster, and important for each of us – if we truly care about the environment – even though it is not as obvious a disaster, as it’s moving slower than the oils crept to landfall in Louisiana.
It’s not the Gulf spill but it is a species of the same enviro challenge – reckless or wilful neglect of our treasured resources.
We are putting at risk the water arteries that run through our county where we live.
It is an issue pending before the Board of Supervisors.
We can put our e-mail talk to the test and do something and it’s really not so onerous although time is of the essence.
All we have to do is let our elected representatives know that we have to do something to create 100 foot buffers by these year round waterways — or risk losing them entirely and compromise not only the county’s water, but also the Potomac river, and the Chesapeake Bay.
Some of you may think this just came upon us – at least the discussion about how to redress and repair the damage to our streams.
But responsible members of our community have been fighting for basic reforms for years (more than five years) – and, in the meantime, our water resources have degraded.
Indeed, there are marvelous power point presentations 5 years ago stating what needed to be done, and the proposed reforms, all worthy of your consideration, have been reduced to one digestible emphasis – RIPARIAN BUFFERS. See http://www.loudounwatershedwatch.org/subitem6_4.html.
The Chamber of Commerce and Dulles realtors say strange things about these reforms including: we don’t need any reform, we don’t want to spend the money, they ask why do you want water to be so pure anyhow, and they refuse to do anything.
But they protest at the outset of these declarations, at every turn, that they are supporters of the environment.
They just don’t explain how refusing to protect our environment is environmental.But I grow tedious.
Consider this picture of one stream site.
Is the Chamber or the realtors going to encourage their members, families, or children to step into any stream like this, much less to drink from the stream?
It should bother these folk that we can’t drink or swim in these waters.
Some of you may remember when Congressman Joe Fisher came out to canoe in our streams and vowed to protect these waters.
But that was 1980. And a lot has happened since.
I wish that this was the only such picture of our streams.
Unfortunately, it is not. Yhere are too many across our once glorious county.
Don’t get me wrong.
We have beautiful water streams that are habitable.
Our concern is, however, not about those. It’s about this spread of stressed streams that were once healthy.
We have too many streams in our county that are severely stressed, and they’ve been multiplying over the years – as our population has grown.
You can take a look at the streams near you on this watershed map – http://www.loudounwatershedwatch.org/maps/ – see if you have a red dot near your home (signifying terrible conditions), and how habitable is that stream?
See pictures like the one above, and read EPA reports on how your stream is doing – or not doing.
One near the eastern end of Middleburg had a note about how bad it smelled; another west of Middleburg was idyllic.
That’s what this is all about.
Holly and I looked at the map to review the streams near us – and we know something of our geography because we walk and hack our horses on the roads and fields near our home.
We have some challenges in our own area.
This exercise is not about throwing up your hands and giving up, but rolling up your sleeves and repairing the damage that’s been done – that we ourselves have done, or that we have allowed to occur.
If we can tell our children to clean up their rooms, we can tell ourselves to clean up our streams, or tell our neighbors they must, as we are all in this together.
What’s really scary is that an active minority of our friends and neighbors don’t believe it – despite the evidence.
If you judged by their enthusiasm, you would guess they would adamantly refuse to do anything even as the fouled waters became lifeless and stung their eyes.
I wrote a column in the recent edition of the Purcellville Gazette that i believe is a fair summary of the debate (included below).
As political types, we should all appreciate there’s more to be done – and quickly – and I believe it is to let the board of supervisors know that they should hold the course, insist on these buffers, to save our rivers that are severely stressed and at risk, and not pass the buck to anyone else.
More precisely, this is what we must think about.
After the public hearing on the 24th, there was discussion on the Board with the following two courses suggested –
1. Send it back to the Planning Commission (to start over again – huh?), or
2. Keep it under the BOS control and discuss next steps (of course).
The latter alternative favors a public dialogue to do what local government is challenged to accomplish in every community, the protection of our basic resources when individuals would otherwise despoil it.
The BOS has voted to discuss and decide what to do in a Committee of the Whole meeting on June 15th., either going forward or backward.
In preparation for this upcoming meeting, we need action on 2 fronts in the next week or so:
1. Inform key BOS members that we know what’s at stake here, and we want them to act, starting with a recommendation for action by the Board on the 15th,,and that they handle the issue themselves.
I am told that the following members are uncertain how to proceed, meaning, whether the Board should take this issue by the horns and continue to work the problem at the Board level until it’s resolved – namely – Scott York, Susan Buckley, Andrea McGimsey & Kelly Burk.
I think we have to tell them we support them going forward, indeed this challenge to our streams doesn’t allow of any alternative approach.
I also believe we should be talking and writing to all the board members.
My wife holly already wrote to BOS members and received the response by Supervisor Stevens Miller, and also a favorable response by Jim Burton. She hasn’t heard from the others yet.
Stevens had some terribly useful observations, and he is holding public meetings he’s already scheduled; we’ve arbitrarily included Stevens’ response but Jim’s remarks were quite constructive and helpful.
If you did no more than what Holly did, and implicitly gave support to members who want to get this right, you would be doing something worthwhile.
To combat the misinformation and disinformation that has been circulated about this issue, I am hopeful that the County staff will prepare a presentation, as they did at the last BOS appearance, that separates the facts from that kind of do-nothing fiction and junk science that has become the coin of the political realm of late.
We cannot expect there to be a reasonable discussion of the issues as long as people can keep stating untruths as truth.
We need the BOS to take charge of this issue and to hold district community meetings between now and September to stomp down these scary fictions, in other words, to clarify the issues and to clear up the misconceptions, as well as to identify the issues that need to be addressed by the BOS so they can implement this much-needed reform to save our streams.
As a citizen, my view is that we want the BOS to convene in September, reconvene the Committee of the Whole, to assess results and approve a work plan to address, and to resolve the issues and move forward.
2. Speak to the BOS publickly at its next hearing. You should consider speaking at the public input session on the 14th – if that’s at all possible and it’s something you feel comfortable doing – to clarify why it is so important to take this step as part of a larger strategy to protect water quality in Loudoun and the region.
If the Gulf disaster upsets you, then you should consider doing something about this important enviro- challenge a lot closer to home – while it’s still manageable – if you care to make a difference and change that report about the stream near you house that is now severely stressed.
Thanks for considering my observations.
Warmest regards,
John
John P. Flannery II
Campbell Flannery PC
19 East Market St., Leesburg, VA 20176
(This is a response from John Flannery, who could not post it himself.)
Dear Barbara and friends,
With all due respect to the opinion expressed by another experienced counsel who follows these matters, what happened in the Marble Technologies case out of the City of Hampton that you mentioned has nothing to do with what’s proposed in the Loudoun County ordinance.
First, we should begin by considering what the Dillon rule means – as it is often invoked by diverse parties when any locality wants to do something – and it’s mentioned in the Marble Technologies case.
The Dillon rule is invoked because it is a rule of limitation – what localities may not do.
It’s a rule, simply put, that says a locality can’t do anything they have not been empowered to do by the General Assembly.
Despite cries of home rule for the localities, this rule persists in the Commonwealth today.
Second, we must therefore ask if the Dillon rule has been violated in any way by the proposed Loudoun County ordinance.
The answer is no, it hasn’t been violated.
The General Assembly expressly granted to Loudoun (and other localities) the right to protect clean water, and they did so in the Chesapeake Bay Act.
Third, we can fairly respond that the City of Hampton was cut short for what it did because it went beyond the power granted by the Chesapeake Bay Act, whereas Loudoun has not.
The City of Hampton thought that they could invoke the federal Coastal Barriers Act as part of their ordinance.
The problem with that was the Coastal Barriers Act was not one of the categories authorized by the Chesapeake Bay Act, and the Coastal Barriers Act, as a creature of Congress, and federal agencies, would change from time to time.
In the end, the Virginia Supreme Court did not hold that a locality could not implement the Chesapeake Bay Act.
The Supreme Court held, the “city [of Hampton] lacked express or implied authority to consider the federal act when designating areas under state preservation act.”
Fourth, the Marble Technology case therefore has no bearing whatsoever on what Loudoun County is presently proposing because Loudoun is relying on the Chesapeake Bay Act in and of itself, and is not trying to invoke any unrelated federal act, certainly not the coastal barriers act, but not anything else either.
Fifth, there is some misunderstanding how this Act makes sense for us, and the answer is simple.
The Act’s purpose is “to protect and improve the water quality of the Chesapeake Bay, its tributaries, and other state waters.” Our streams are “state waters” and these “waters” and our “tributaries” feed into the Potomac and the Chesapeake Bay. Because of increased population and severely stressed streams, the invocation of this authority granted by the General Assembly is most appropriate to protect our County’s legacy, and meet our State’s obligation to the Potomac and the Chesapeake Bay.
Sixth, some question whether the past public participation in this ordinance has been sufficient. I’ve been reassured of the sufficiency of public announcements to date. But we also cannot ignore that the process is a work in progress. I trust and expect that if the Board goes forward with this proposal, that there will be more community meetings, input sessions, and board hearings and thus plenty of additonal opportunities to suggest broad and subtle changes to the ordinance – as it should be.
I hope that fairly and “substantially” responds to the various concerns that have been mentioned, particularly about the Marble Technologies case.
And these considerations including the clarification in Marble Technologies are among the reasons why I think we should endorse this ordinance – rather than pass up this opportunity.
John P. Flannery
Thank you, Paradox.
I think the mapping is where several questions will turn, and I believe the Chesapeake Bay Resource Protection Area Map will NOT be complete before passgae, at least if things go on as originally planned.
Staff referenced a $3-4M cost for mapping the county for RPA, and it has not been done according to staff reports.
That is the purpose of the screening tool–to flag properties that should DO mapping before proceeding with activities.
The county is relying on citizen applications to complete the mapping.
In addition, if protection and/or management areas are to be specifically defined, using the placeholder of making the entire county a management area may not fly.
Thank you for forwarding the question to Mr. Flannery.
The constitutional/Dillon Rule question on these buffers is, indeed, an important and interesting one. I’m not sure if John is aware of your reply, so I’ll let him know by direct mail.
In my own opinion, however, I think Loudoun’s proposed rules would pass muster as ones in Alexandria haven’t been overturned. As to the mapping question on which your point turns, I believe the County is doing a lot of work in that area even now, so while the mapping may not be done right now (and I’m not sure that’s not, I take your word on that), it seems logical that it would be done before any ruling is actually handed down.
But I could be wrong, I often am.
Thanks for your participation and opinion, Barbara!
Lady and gents, a friend who is retired from the practice of law, but keeps current, asked that I post the following for consideration:
“Here is the recent 2010 Virginia Supreme Court case, where the Court threw out the City of Hampton’s Chesapeake Bay Ordinance in its entirety, because its RPA delineation was too broad- under the Dillon Rule. The local jurisdictions implementing the CBA must do so as exactly directed under state regs, and cannot willy nilly with no justification designate something RPA or even RMA under the Act, unless they meet the specific geographic qualifications:
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MARBLE TECHNOLOGIES, INC., ET AL.
OPINION BY
v. Record No. 090043 JUSTICE CYNTHIA D. KINSER
FEBRUARY 25, 2010 CITY OF HAMPTON, ET AL.
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http://www.courts.state.va.us/…
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The Court said:
.
“Only the State Board can “promulgate regulations which establish criteria for
use by local governments to determine the ecological and
geographic extent of Chesapeake Bay Preservation Areas,” that
is, the “area delineated by a local government in accordance
with [the Board’s] criteria” and thereby made subject to the
Act’s restrictions. Code § 10.1-2101; see also 9 VAC § 10-20-
40. A Chesapeake Bay Preservation Area consists “of a Resource
Protection Area [RPA] and a Resource Management Area.” 9 VAC
§§ 10-20-40 and 10-20-70.2
…..
The General Assembly expressly authorized counties, cities, and
towns “to exercise their police and zoning powers to protect the
quality of state waters consistent with the provisions” of the
Act. Code § 10.1-2108. That authority, however, is limited to
using the criteria created by the Board. The provisions of Code
§ 10.1-2100(A)(ii) direct localities to “define and protect”
Chesapeake Bay Preservation Areas “in accordance with criteria
established by the Commonwealth.”
Thus, the City ordinance, which makes inclusion in the
Coastal Barrier Resources System a criterion for designating
lands part of an RPA, violates the General Assembly’s express
mandate that a locality “use the criteria developed by the Board
to determine the extent of the Chesapeake Bay Preservation Area
within [its] jurisdiction[].”14 Code § 10.1-2109(A). See
Countryside, 258 Va. at 504-05, 522 S.E.2d at 613-14.
Accordingly, the City’s 2008 zoning amendments challenged in
this appeal are void.
Purpose statement for the Chesapeake Bay Act, in state law: SUBSTANTIAL DAMAGE to Bay required in order to regulate our land.
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9VAC10-20-30. Purpose of chapter.
A. The purpose of this chapter is to protect and improve the water quality of the Chesapeake
Bay, its tributaries, and other state waters by minimizing the effects of human activity upon
these waters and implementing the Act, which provides for the definition and protection of
certain lands called Chesapeake Bay Preservation Areas, which if improperly used or
developed may result in substantial damage to the water quality of the Chesapeake Bay and
its tributaries.”
Given that RSCOD was voided along with other provisions of the 2001 revision of the Comp Plan because of inadeqaute advertisment (including failure to adequately map that land to which some of the revisions would apply), and given that we are proceeding with the Bay ordinances in the absence of any complete mapping, is this legally wise in light of the opinion of the court on the case referenced?
While I may not often agree with Mr. Flannery’s positions, he is a respected attorney of note.
He is capable of an argument of more substance than seeming to revert to the position that anyone who opposes the ordinance must favor substandard water.
Thoughts on the court’s decision?
Thank you again for the opprtunity to post.