Reverberations of the Swains Lock Tree Cutting Violation

Reverberations of the Swains Lock Tree Cutting Violation


To the Editor:

Finally! Finally, we are all saying, the Maryland National Capital Park and Planning Commission (M-NCPPC) has announced its long-awaited settlement of the tree-cutting violation above Swains Lock issued Dec. 28, 2004. Notwithstanding the fact that the settlement has been blasted by everyone who has an ax to grind with the currently beleaguered Montgomery County Planning Board (PB), the decision does have weight and consequence. Under the Forest Conservation Law (FCL), a citation is issued, investigated by staff and taken to a Public Hearing at the Planning Board. The FCL carries no criminal penalties. Recipients of violations are issued monetary fines and some form of restitution, usually reforestation on or off site. It is not unusual for a property owner to waive the public hearing before M-NCPPC and work with the legal department on a settlement. In doing so, the recipient waives his right to appeal and the settlement is legally binding without risk of subsequently being overthrown in court. But a settlement does not have the drama or finality of a public hearing and the monetary fines possible, no matter what the process are absurdly low, usually anywhere from 30 cents to $1.00 per square feet of forest destroyed.

THE MEAT of this particular settlement is a Conservation Easement held by M-NCPPC that is far more extensive in acreage and restrictions than the Conservation Easement held by the National Park Service (NPS). Through the overlay of a stricter covenant of their own, M-NCPPC may have obtained long-term the best protection for the C&O Canal. For the public, frustrated by what can rightfully be seen as their National Park invaded by a private interest, this settlement holds no obvious strong deterrents to future potential violators. Some would argue that $37,000 is a small price to pay for a view of the Potomac River and enormously enhanced property values. The advantage to the public interest is not reflected in money. For the cited violation of cutting forest from 1 and 1/2 acres, the PB has secured from the property owner a total of 8 acres on which nothing can be cut in perpetuity. Five acres of his property now has all existing forest protected (including all understory) and the $37,000 will purchase (from a Forest Bank) another 3 acres with the same restrictions.

WOULDN’T IT have been more satisfying and achieved the same result if the property owner had been brought before the Planning Board in a timely public hearing we could all attend? We will never know and waiting 8 months for a legal settlement has served to compound the impression that M-NCPPC is the White Knight to the rescue since they were the only government entity to even issue a violation. In this case the Planning Board chose the certainty of 8 acres protected over the uncertainty of a public hearing. The forest protection they secured far outweighs the NPS easement which covers less than 1 acre and allows cutting of the understory (6 inches diameter or less at breast height). What has become lost is the fact that it was the National Park Service that both allowed and rationalized their decision to permit the clear cutting in the first place. The greatest responsibility for a failure in process rests with the very agency charged with stewarding the C&O Canal Park. They are now keenly aware of it and willingly proactive in seeking internal changes. They too, have been waiting for the Planning Board settlement to trigger actions of their own. The Department of Interior has already started looking into the possibility of undue influence. It is at the federal level that any criminal penalties would reside.

MEANWHILE, thanks to Congressman Chris Van Hollen, a C&O Canal Stewardship Task Force was created following the Public Forum he held in Potomac on June 1 that drew 200 concerned citizens. Made up of federal, state and county decision makers, representatives of Canal organizations, environmental groups and members of the public, it has met twice and identified several areas to investigate changes that would improve protections for the C&O Canal National Historical Park. Both the state and county Forest Conservation Laws need updating in terms of fines levied and in preserving the critical forest buffer and steep slopes adjacent to the canal. Easements along the Canal are incomplete and poorly overseen. There has been a lack of communication between federal and local agencies that have a hand in protecting the Canal parkland and, within the NPS, a failure to adhere to their own policies, which, I believe caused this tragedy in the first place. The Superintendent of the C&O Canal NHP is initiating an internal process to insure that their actions will adhere to existing federal policies. The Park Service and M-NCPPC are working on a Memorandum of Understanding to facilitate closer coordination in the future.

SO MUCH has been learned from this tragic loss of forest heritage. It has exposed the weaknesses in the current system of easements which we assumed protected the Canal. It has brought to light the holes in our much touted Forest Conservation Laws. It has let us see how understaffed and underfunded is the park we love so well. It has shown what happens when the public is denied input on decisions that effect their own parkland. The result is that first steps are being taken to correct what caused it and prevent it from happening again. Though the public was excluded from a process that created the issue at Swains Lock, it is public concern and pressure that has pushed for solutions.