City Paper is not for tourists
At approximately 4 a.m. on Dec. 6, 2004, 26 houses went up in flames at the Hunters Brooke subdivision just outside Indian Head, Md. Ten houses were destroyed and 16 damaged, with losses eventually estimated at more than $10 million. In the media coverage that followed, an often-shown image captured owners of the houses—none of the burned houses were occupied—huddled at the entrance to the subdivision, waiting day and night in the cold for the latest updates from law enforcement, distraught victims of a violent displacement.
This image resonated later, when I drove down to Hunters Brooke. As I approached the development, an incredible amount of roadkill appeared. Of the specimens that hadn’t been reduced to smears on the pavement, I saw a raccoon, a possum, a stiffened cat with a crushed skull, and a huge, black-furred mass that appeared to be a mangled gorilla. These, too, were victims of a violent displacement, but of a different sort—the sort that doesn’t make headlines and is not only allowed under the law, but is actively promoted by it.
The route from D.C. to Southern Maryland features all the icons of what James Howard Kunstler termed “the geography of nowhere.” After exiting the Beltway and hitting Route 210, you start to see dozens of cheap cardboard signs popping up on the shoulder, advertising various new housing developments in the area. After traveling about 10 miles south on 210, you enter Accokeek. Clustered on either side of the road are big-box stores and strip malls, visible from the highway but accessible only through a maze of frontage roads and excessively controlled intersections. Farther back are the residential sections, scattered almost as an afterthought. Everything has been engineered around the automobile; there’s not a sidewalk to been seen. On a late Saturday morning, the traffic is already as dense as downtown at rush hour, except it’s going 60 miles an hour.
It hasn’t always been like this. Charles County was a remote, rural area before it established a direct bridge link with Virginia in 1940. From a population of less than 20,000 that year, Charles County now has more than 120,000 citizens; the population has nearly doubled in the past 20 years alone. According to the Charles County Web site, population growth is projected to hold steady at 2 percent a year, bringing the count to around 180,000 residents by the year 2020.
As you pass through Accokeek and approach Indian Head, development thins out and the area takes on the characteristics of a small country town. Houses are set back from the road on spacious lots, and there are frequent expanses of pasture and trees. By the time I turned onto Route 225, on the final approach to Hunters Brooke, I was undeniably in rural Maryland, an almost completely unspoiled countryside. I began to wonder, Where in this picture could a high-density housing development possibly fit in?
As if on cue, the turnoff for Hunters Brooke appeared on the right. After cresting a steep hill, I found myself at the edge of the subdivision. The developer’s plans for Hunters Brooke call for an eventual 319 houses on 191 acres of land, but at the time of the arsons construction had begun on only 74. In late December, the section that had suffered the fires was still off-limits to the general public, but construction had resumed. As I wandered through the unrestricted portion of the development, a steady stream of dump trucks and subcontractor vehicles roared past.
In the open grass and woodland surrounding them, the houses in Hunters Brooke appear to be huddled together, as if for warmth. Their isolation is conspicuous. If you lived here and you wanted a newspaper or a pack of cigarettes, you’d have to get in your car and drive several minutes down the highway for it. The houses themselves are huge, the smallest of them equipped with four bedrooms and a two-car garage, but they sit on tiny lots, about a quarter-acre each. The effect is vaguely comical at first, kind of like morbidly obese people sitting on bar stools, until you realize that there’s going to be a family in every house. The houses are grouped around cul-de-sacs and circle drives with such names as Box Turtle Court, Deer Point Court, and the exquisitely appropriate Fallen Timber Way. The houses have virtually nonexistent back or side yards. This reality is somewhat at odds with the perception of these housing developments as spacious alternatives to cramped city life.
In fact, the present zoning regulations for this area now call for a minimum of 10 acres per house, 40 times larger than the Hunters Brooke lots. In 2001, the area was designated a “deferred development district,” according to Nina Voehl, the public-information officer for the Charles County government, meaning that high-density development is off the table for the near future, until the county does another assessment.
“The county wanted to make sure that the existing infrastructure—things like roads and schools—are able to support new development in the area,” says Voehl. However, Hunters Brooke’s planners first applied for its development permits in 1993, long before the 10-acres-per-house restriction came into effect. “[They] had already invested time and money in plans and so forth, so they were grandfathered in,” says Voehl. “We decided to defer further development because a lot of times, a county ends up providing more in services to new residents than they collect in property taxes.”
Tax revenue, though, is the least of the problems facing Hunters Brooke. Even as construction continues and families move into finished houses, there are two pending lawsuits that challenge Hunters Brooke’s very right to exist. Unfolding in both state and federal courts, the suits, brought by the environmental nonprofit group SAMMS (Save Araby, Mattawoman, and Mason Springs) and local citizens, target the Army Corps of Engineers and the Environmental Protection Agency (EPA) for improperly greenlighting the Hunters Brooke site. The plaintiffs contend that the decision-making process that led to the authorization of construction on Hunters Brooke was “an abuse of discretion, [and] otherwise not in accordance with the law.”
If you’re a developer looking to drop a couple of high-density housing developments, you’d be wise to do it far, far away from any wetlands. That’s because wetlands, as endangered and vital habitats, are protected under the National Environmental Policy Act and the Clean Water Act. Any project that affects existing wetlands, directly or indirectly, adversely or innocuously, is subject to a labyrinthine permit process that involves the compiling of an environmental-impact statement by a team of Army Corps of Engineers experts, scrutiny of all building plans, and a mandatory exploration of less invasive alternatives. The gantlet takes months or even years to run, with no guarantee of final approval.
But housing developers have to go where the people are. In the past decade or so, the D.C. metro area has experienced explosive population growth and suburban expansion; by 2030, the population is projected to top 6.1 million, according to the Metropolitan Washington Council of Governments. Depending on whom you talk to, the influx is either transforming the area into a vibrant, 21st-century community or flushing it straight down the crapper.
Runaway development poses a special problem for Maryland. What makes the proliferation of McMansions in Maryland more complicated than in, say, Kansas, is its location in the heart of the Chesapeake basin. Approximately 90 percent of the runoff from Maryland goes into the Chesapeake Bay, which millions depend upon for their livelihoods, and the state is pockmarked by protected wetlands—all of which makes construction a dicey proposition.
Enter the Maryland state programmatic general permit, or MDSPGP-2. Issued by the Army Corps of Engineers and administered jointly by the Corps and the Maryland Department of the Environment, this permit is essentially a time-saving device that pre-authorizes certain types of environmentally insignificant projects without forcing them through the rigmarole and red tape of the individual permit process. The Corps of Engineers is inundated with tens of thousands of individual permit applications annually, and it just doesn’t have the time to investigate every little project. So if, for example, you wanted to repave that riverside bike trail, you wouldn’t have to wait for the overworked and understaffed Corps of Engineers to send a team of experts out to crawl up your sewage line with a microscope. You could just do it. In that sense, the MDSPGP-2 is a developer’s dream come true. As long as the construction affects—“directly, indirectly, temporarily, or permanently”—an acre or less of wetlands, you can fire up the bulldozers. No environmental-impact statement, no “alternatives analysis,” nothing. Just send off a token notification to the Corps—a memo, really—and break ground.
And that’s essentially what happened at Hunters Brooke. On Jan. 28, 2003, the Corps authorized construction under a general permit on the grounds that the development would affect only 13,300 square feet of wetlands and wetland buffer, a figure well short of the 43,560 square feet in an acre. But the 191-acre, 319-unit high-density housing development lies uphill and only 100 feet away from the 6.5-acre Araby Bog and involves the filling of nearly 10,000 square feet of unprotected wetlands. The main part of the federal lawsuit against the Army Corps of Engineers and the EPA addresses the development’s impact on the bog. How is it possible for a development that big to affect its immediate surroundings so little? Is this the world’s first hermetically sealed housing development?
From there, the charges get more serious. The plaintiffs contend that even if you accept the highly questionable assertion that the development affects only a little more than a third of an acre of wetlands, Hunters Brooke is in fact only part of a larger project that also encompasses an adjoining 184-unit, 117-acre subdivision named Falcon Ridge. According to court records, “the permit applicants, agent/engineers, environmental consultants, legal counsel and principal contacts for both sites were identical. Plaintiffs point out, in addition, that the two developments will share roads, utilities, recreational amenities, and a common development theme and design code.” Both subdivisions are being built by Lennar Homes. One of the main roads in Hunters Brooke is named “Falcon Ridge Drive.” Lennar Homes did not return several calls for comment.
The Corps and the developers maintain that Hunters Brooke and Falcon Ridge are separate and independent projects, citing the developments’ “independent utility.” According to the Corps, a project officially has independent utility “if it would be constructed absent the construction of other projects in the project area.”
According to that definition, a developer could just split a problematic development into several smaller subdivisions and sneak them in under the environmental-impact limits. Let’s say you have a huge subdivision that’s going to impact four acres of wetlands. Under the present rules, this development would be subject to a rigorous permit process, complete with a comprehensive environmental-impact statement.
But if you split it into five different subdivisions, each one affecting less than an acre, then those same houses can be authorized under general permits as separate projects. You just have to be able to make the case that the existence of one isn’t directly contingent on the existence of the others. Even if they’re being built, designed, and planned by the same parties, they’ll be treated as separate entities under the law.
Lisa Goldman, former attorney for the plaintiffs, agrees that the ambiguity of “independent utility” can work in favor of developers. “Under the ‘independent utility’ test,” says Goldman, “it can be very difficult to show that two developments are a single and complete project, even if, by all indications, they were conceived and planned together by the same parties.”
If you add the affected-wetlands figures given by the developers for each subdivision, Hunters Brooke and Falcon Ridge, they total 61,500 square feet—well over the 1-acre mark. That means the project(s), if taken as a unified whole, should have been subject to the more rigorous individual permit process—not the general permit—complete with environmental-impact statement and an investigation of possible less invasive alternatives.
The Army Corps of Engineers declined to comment on any of this, citing the ongoing litigation.
Though the Corps and the developers claim that they’ve taken all the necessary precautions to minimize any environmentally harmful side effects, the plaintiffs maintain that Hunters Brooke will result in the poisoning and death of Araby Bog, a magnolia bog that lies just a stone’s throw from the edge of the development. Magnolia bogs occur only in a small coastal area from Virginia to New Jersey. According to the Maryland Native Plant Society, Araby is the most pristine magnolia bog in the area—and, thus, the world. Characterized by its abundance of blooming magnolia trees, found only sporadically in the rest of the region, Araby is home to dozens of unique species of plant and animal life. Of those species, eight have been designated as rare by the state of Maryland, with one, Smilax pseudochina, the halberd-leaved greenbrier, designated as endangered. Plaintiffs contend that Araby will be severely disturbed and degraded by the nearby development.
The developers, for their part, say that the bog will not be affected by runoff from Hunters Brooke. One of the conditions of the Corps’ authorization of the project was that the developers had to include a 100-foot buffer between Hunters Brooke and Araby Bog, which they contend will insulate the bog from any negative consequences of development.
Joy B. Zedler, a professor of botany at the University of Wisconsin in Madison, is a widely acknowledged expert on wetlands. She insists that a 100-foot buffer is never adequate to protect a bog or other fragile ecosystem. “Typically, in a case like this, I would recommend much greater buffers. I would say a hundred yards, minimum, which is 300 feet,” says Zedler.
So what happens to Araby if the buffer proves to be inadequate?
“Runoff from development contains sediment and all kinds of contaminants—heavy metals from car tires, nutrients from lawn fertilizers, dog feces,” says Zedler. “The water collects all this as it flows over hardscape—impervious paved surfaces—and deposits it into the wetlands.”
Obviously, that’s not good for the bog. The contamination alone would probably doom Araby. But Araby’s health also depends on maintaining precise levels of water acidity and saturation. Ten thousand gallons of water flow through Araby every day. With massive, prehistoric-looking cinnamon ferns and a carpet of hairlike sphagnum moss, the bog is a self-contained environment. The plants and animals of the bog have been precisely calibrated by millions of years of evolution to prosper in the conditions of Araby Bog—if the bog becomes wetter or drier, the water more or less acidic, species there will be unable to survive. It’s not just that pollution will damage Araby Bog—change will damage Araby Bog. A barrel of Evian would be just as harmful, on a basic level, as a barrel of mercury.
The loss of wetlands such as Araby Bog is the main reason that the Chesapeake Bay has become severely degraded. According to the Chesapeake Bay Foundation, “wetlands function as the Bay watershed’s kidneys to absorb and cleanse polluting runoff.” As wetlands have fallen victim to the accelerating suburban and exurban development in the D.C. area, the Chesapeake Bay has been inundated by nitrogen- and phosphorus-laden runoff. Combined with agricultural and lawn chemicals, these pollutants promote explosive blooms of algae that, upon decomposing, create massive “dead zones” in the Bay, hundreds of square miles of water where the oxygen level is too low to sustain marine life. It’s become common for fishermen to pull up crab pots and nets to find that the crabs and fish have literally drowned in dead water. The sediment from runoff has also hurt water clarity, preventing sunlight from penetrating to the depths necessary to sustain underwater grasses, another valuable natural filtration system.
For every family that gets a two-car garage in outer suburbia, there’s a fisherman on the Bay who can’t buy groceries or health insurance because wetlands loss and development runoff is turning the Chesapeake Bay into a big, lifeless toilet.
“The water is getting murkier every year,” says Chesapeake Bay fisherman John Wilkinson. “Last summer, it was unusually dirty. The runoff is not helping things. It would be nice to see it corrected.”
In July, U.S. District Court Judge Peter Messitte dismissed the plaintiffs’ request to stop construction at Hunters Brooke. Whether the construction was proper or not was not really the question at hand, anyway. What was at issue was whether or not the Army Corps of Engineers had made an arbitrary decision when it authorized sewer lines and utilities under a general permit. If the Corps could prove that it had come to that decision through some kind of traceable process—no matter how flawed or badly reasoned—the decision would stand. The court had to defer to the expertise of the agency.
To make its case, the Corps submitted a 4,500-plus-page, unorganized record of all correspondence concerning its consideration of Hunters Brooke. Messitte, in vaguely irritated prose, ruled that the Corps had failed to produce a clear paper trail or single unifying document that illuminated its logic. The documents cited by the Corps as particularly explanatory were either after-the-fact notification letters from the Corps to various interested parties or memos of questionable authorship and relevance. But instead of issuing an injunction that would have halted construction, Messitte merely put the case on remand, ordering the Corps to give a clearer explanation for its decision; the court issued no deadline for this action.
Even if it turns out that the permits were wrongly granted, there’s no real course of action available to the court at this point. As an attorney close to the case says, ruling that Hunters Brooke was improperly approved would create all kinds of other problems. There are 16 families living in Hunters Brooke right now. No judge in the land is going to put Ward, June, and the Beav out on the street to save the halberd-leaved greenbrier. And who would pay for bulldozing all those fine $400,000 houses? From whose pocket would Lennar Homes’ nine-figure refund check come? There is very specific language in the Corps letter authorizing construction that rules out any federal liability in the case of “future damage claims associated with any future…revocation of any specific MDSPGP-2 verification.” Liability would presumably fall to Charles County—which, barring an oil strike in Waldorf, probably wouldn’t have a couple hundred million lying around.
Litigating over environmental protections is a useless exercise anyhow. The law is rife with such terms as “significant” and “minimal” and “appropriate” and “adverse.” These terms are meaningless without context—and only serve to help people looking to bulldoze lots. Consider, for example, eating a bowl of soup containing a “minimal” amount of salt, as opposed to a bowl of soup containing a “minimal” amount of piss. Even the most precise, well-articulated legal brief is going to teem with loopholes just waiting to be discovered by some shyster with a Jaguar and a photographic memory.
Our system of checks, balances, appeals, and so forth should theoretically overcome the difficulties of environmental litigation. But, again, it’s the Corps that stands guard over our most precious ecosystems. Even though the United States has lost over 50 percent of its wetlands, the Corps rejects a minuscule 3 percent of all permit applications. Zedler, the wetlands expert, has published a study of the Corps and its treatment of wetlands, Compensating for Wetlands Losses Under the Clean Water Act. “I’ve found that they generally have excellent personnel, but they don’t have enough time to do a good job,” Zedler says. “There’s also a tremendous push from the highest levels of management to grant the permits.”
Not to mention the tremendous pull of development dollars: Asked if he has a problem with all the development, Danny Seman, a plumber who has lived in nearby Waldorf his entire 25 years, says he doesn’t, at first. But offered the possibility of a magic button that could stop all the development, he thinks for a moment.
“I guess if I was the one making the money, I’d let the development go on,” Seman says. “If I wasn’t, I’d push the button. I’d stop it.”
Immediately after the arsons, the media buzzed with speculation that the job was an act of ecoterrorism. All of the elements seemed to be in place: a huge corporate development, disputed ecologically sensitive location, unsuccessful litigation by environmental groups. But as the investigation went on, evidence surfaced, bit by bit, that seemed to point in other directions.
On Dec. 16, after only 10 days of investigation, police arrested Aaron Speed, a Waldorf native and security guard at the development, and charged him with setting the fires. In the following days, they arrested and charged a half-dozen accomplices: all locals, none of them associated with or professing allegiance to the radical environmentalist movement. Instead, a strange narrative of bored cross-dressing teenagers and disgruntled employees took shape. The motive for the arsons was reported to be a desire to raise the profile of their drag-racing club, the Unseen Cavaliers.
The eco-terror angle was ultimately a dead end, yes, but that it gained so much credibility in the beginning is telling. Implicitly, it was an acknowledgment by the powers that be that there’s something rotten happening in Charles County, something rotten enough to attract the attention of an international criminal underground. That the arsons ultimately turned out to be the work of bored, pyromaniacal Chevy enthusiasts with no environmental or ideological agenda belongs to the highest order of irony.CP
Art accompanying story in the printed newspaper is not available in this archive: Darrow Montgomery.