Court sides with DNR, Garrett County, in Swallow Falls bridge case

Apr. 26—OAKLAND — The Maryland Department of Natural Resources "had the discretion" to grant Garrett County's request for an exception to regulations that protect the state's only Wild river, a judge has ruled.

DNR Secretary Josh Kurtz in August granted a conditional exception for Garrett County and the Maryland Department of Transportation State Highway Administration to construct a new bridge on Swallow Falls Road in the state-designated Youghiogheny Scenic and Wild River Corridor.

The county needed the exception to sidestep environmental protections aimed to prevent development of the area.

The county wants to keep the bridge open while a new bridge and road are built nearby.

Opponents say that plan will destroy centuries-old trees, threaten a fragile ecosystem and violate laws written to protect the Wild Yough, and want the new bridge to be built in the existing span's footprint, which would require the road closed during construction.

In September, The Old Growth Forest Network, Yough Farms, LLC and Steve Storck asked Garrett County Circuit Court to make Kurtz withdraw his exception for the county.

They argued Kurtz's decision for the exception, which contradicted a recommendation from the Youghiogheny River Advisory Board for the new bridge to follow the same alignment as the current span, would require "significant clearing, grading and loss of trees and habitat immediately adjacent to and on both sides of the Youghiogheny River."

Judge's decision

Garrett County Circuit Court visiting Judge W. Timothy Finan on Thursday said DNR had "sufficient justification" to conclude "the exception was consistent with the Scenic and Wild Rivers Act and not injurious to the river."

Strict application of the regulations "would cause unnecessary hardship — particularly to the health, safety and welfare of those having to detour while a repair closed the existing bridge," Finan ruled.

DNR "was acting within the scope of its authority and this court cannot substitute its judgment when the agency decision is made by experts within the agency and is consistent with the law," he said.

On Friday, Greg Bortz, DNR's media relations manager, said the department's approval of the exception "was based on the compelling concerns raised by first responders and emergency management experts" about public safety risks.

"Moving forward, we remain committed to working with the county, their contractor and the community to minimize environmental impacts at the site," he said. "The current design plans demonstrate that commitment and future on-the-ground efforts will continually strive for minimal impact to the forest and river."

Garrett County officials did not immediately respond to a Cumberland Times-News request for comment Friday.

'Critical questions'

The attorney for the petitioners, J. Dirk Schwenk of Annapolis-based Baylaw, LLC, said he and his clients were disappointed with Finan's opinion.

The court could have sent the issue back to DNR to answer "critical questions," including how can clear cutting old growth forest be mitigated by a replanting plan, whether a new road and bridge meet DNR's obligation to protect and preserve the Wild Yough corridor and "how can an Irreplaceable Natural Area be clear cut by the DNR?" Schwenk said.

"We continue to believe, as the highway engineers initially proposed, that the bridge should be replaced in its current footprint," he said. "A two-month traffic detour does not justify clear cutting the banks of the Yough Wild and Scenic River Corridor. The DNR has failed the public and the court has failed to hold it to account."

Storck said the judge's ruling that the DNR secretary, provided he follows motions of a review, has "full discretion to apply environmental protection laws as he sees fit" regardless of DNR staff expert opinion "and 100 years of policy to protect this resource ... is preposterous."

Claims in the ruling that the county proved "unnecessary hardship" regarding the detour are unsubstantiated, he said.

Storck plans to "pursue stopping the needed right of way and the full (National Environmental Policy Act) review with hopes the (state) Board of Public Works, the National Park Service and Federal Highway Administration value resource protection more than DNR or the County."

Citizens 'ignored'

John Bambacus, former state senator and mayor of Frostburg, and member of the Garrett County Forestry Board said he was disappointed in the decision, but understood it had to be made in the process of judicial review.

"I am more concerned about DNR leadership and the Garrett County Commissioners implementing the notion of an 'exception' to the long-held statutory and regulatory enactments over the past 50 years," he said.

"Their actions ignored the work, dedication, and service of those community members and staff whose science-based local and state advocacy reflected the actual Scenic and Wild River law enacted by the General Assembly not bureaucrats," Bambacus said. "The passion and heartfelt feelings of citizens were ignored by policy makers who were more interested in developing a pristine Wild River."

Former state Scenic and Wild Rivers Coordinator John Wilson said he is "extremely disappointed" by the court's ruling.

"It is simply a parody of (DNR's) argument which had no merit," he said. "The facts of the case are that the alternative alignment will be injurious to both the Youghiogheny River and the Irreplaceable Natural Areas."

DNR "did not meet the criteria" of the Youghiogheny Wild River regulations in order to grant the county an exception, Wilson said.

The judge's ruling did not include evidence that criteria was met for DNR to grant the county an exception to the Youghiogheny Wild River regulations, he said.

"The agency that is responsible for protecting Maryland's only Wild river has failed in its stewardship as have the courts and the county," Wilson said. "Future generations will pay the price for this failure."

Powerful message

Garrett County resident Ann Bristow said Finan referred to Garrett County as wanting to construct a replacement bridge at a "slightly different" location.

"This characterization minimizes the irreplaceable resources that the replacement bridge will destroy and for generations to come," she said.

"Unexamined in this ruling is that DNR did not independently investigate whether, in fact, these hardships would be visited upon county residents, and others have argued that this would not be the case," Bristow said.

"It is important that those who care about protecting the natural resources of Maryland's only Wild-designated river and the surrounding Irreplaceable Natural Areas ... petition the (state) Board of Public Works to deny a right-of-way on state land for a new bridge location and require the county to construct the bridge it the existing right-of-way," she said.

Friendsville resident, former 20-year councilman and whitewater kayak expert Jess Whittemore is the town's Youghiogheny River liaison.

On Friday, he was on a Chincoteague, Virginia, beach fishing for black drum, a marine ray-finned species.

He said he was disappointed but not surprised in Finan's decision, and talked of fishing in the area of the Swallow Falls bridge.

"The beauty and cleanliness of the river is off the charts," Whittemore said. "It is the best trout fishing anywhere."

Although he disagrees with the judge's decision, Whittemore said the court case generated a powerful message for government bodies.

"People are watching," he said. "I am very proud of Steve Storck and his lawyer ... for all that energy and effort."

Teresa McMinn is a reporter for the Cumberland Times-News. She can be reached at 304-639-2371 or tmcminn@times-news.com.