Chronology of Significant Events Affecting Ten Mile Creek and Little Seneca Reservoir

This chronology provides a more detailed history of events affecting Ten Mile Creek and the Little Seneca Reservoir beginning with water supply studies and the record drought of the 1960s. However, as told by FoTMC Board member Norman Mease, the ford at Old Baltimore Road was known at least as far back as agricultural settlement as a place where there was always water, even in times of serious drought. Friends of Ten Mile Creek, formed in 2014, are proud to carry on a long tradition of citizen efforts to protect this watershed, which is part of our critical natural infrastructure and a lifeline of the lifeline water infrastructure that serves the entire Washington Metropolitan Area.

1963 - US Army Corps of Engineers completes water supply studies for the Washington Metropolitan Area conducted in response to a projection that growth in water demand would exceed the supply. Recommends construction of 16 dams and reservoirs in the Potomac River Basin. (Fosler 2017; Haywood and Schulz, 2017, USACE 1963)

1964 - General Plan on Wedges and Corridors, adopted as a guideline for planning in Montgomery County, shows a corridor through the Ten Mile Creek watershed, and suggests an additional corridor city. Although that General Plan was not supported by zoning, it provided a foundation for subsequent development patterns (Hanson, 2017; MNCPPC 1964).

1966 - Record drought in Northeastern US. Flow in the Potomac River is below projected future demand (USGS, 2022; Haywood and Schulz, 2017)

1968 - Initial Clarksburg Draft Master Plan met with local opposition. Proposes 13,800 dwelling units, 4.3 mill square feet of industrial and commercial space, and assumes a cross-country freeway, western expressway and rapid transit line from DC to Germantown. The Montgomery County Council approved it without any rezoning that would be needed to implement it (Hanson 2017).

1969 - The Wedges and Corridors General Plan is updated and formally adopted by the Montgomery County Council. Clarksburg is designated as a high-density corridor city. (Hanson 2017)

1970-1977 - Washington Metropolitan Area water supply withdrawals exceed the 1966 minimum flow amount on 36 different occasions. (Haywood and Schulz, 2017)

1978 - Potomac River Low Flow Allocation Agreement establishes 100 MGD minimum flow, signed by US Army Corps of Engineers, State of Maryland, the Commonwealth of Virginia, the District of Columbia, the Washington Suburban Sanitary Commission, and the Fairfax County Water Authority, (Haywood and Schulz, 2017)

Sept 29, 1980 - Montgomery County Agricultural Reserve established, initially covering 80,412.4 acres. With additional acreage added in the 1994 Clarksburg Master Plan, the Rustic Roads Master plan, and others, it now covers 93,000 acres, which include a portion of the Ten Mile Creek watershed west of the Creek mainstem.

1982 - Water Supply Coordination Agreement reduces the number of dams and reservoirs needed from 16 to 2 by adopting a cooperative management strategy. The Jennings Randolph Reservoir in West Virginia which has a 13-billion-gallon capacity but a 9-day travel time to the water intakes, would be supplemented by the smaller Little Seneca Reservoir in Montgomery County, which has a 4 billion gallon capacity but a less than one 1 day travel time to water intakes.  The two reservoirs would be jointly owned by the three Washington Metropolitan Area utilities: Fairfax County Water Authority (FCWA), Washington Suburban Sanitary Commission (WSSC) and the US Army Corps of Engineers Washington Aqueduct and operated by the Interstate Commission on the Potomac River Basin (ICPRB) Section for Cooperative Water Supply Operations on the Potomac.  (Haywood and Schulz, 2017; ICPRB CO-OP History)

1984 - Little Seneca Reservoir is completed.

1994 - Clarksburg Master Plan is approved by the Montgomery County Council and includes a provision for staging development to protect Ten Mile Creek. Stage 4 development, in the Ten Mile Creek watershed, could not occur without another decision by the County Council allowing it to proceed, based on a biological evaluation of the impacts of development on Little Seneca Creek in Stages 1-3. The biological evaluation would be triggered by the 2000th building permit in the Town Center and Newcut Road districts. (Amended Master Plan 2014).

The Plan also adds 1900 acres to the Ag Reserve, consistent with a directive in the 1980 Ag & Rural Open Space Master Plan. This acreage includes the over 1000 acres of the Ten Mile Creek watershed west of the mainstem, between Slidell and Shiloh Church roads. This acreage constitutes approximately one-third of the Ten Mile Creek watershed in the LSTM 201, 203 and 204 sub-watersheds.

1998 - Maryland Piedmont Sole Source Aquifer designation is extended by EPA to include the Poolesville area and lower western Montgomery County as a sole source aquifer where contamination would create a significant hazard to public health (Montgomery Countryside Alliance 2016).

Summer 1999 - Drought. First releases are made from the two reservoirs (Ahmed et al, 2020)

Summer 2002 - Drought. Second releases made from the two reservoirs (Ahmed et al, 2020)

2004-2006 - Pulte purchased or contracted to purchase land in the Ten Mile Creek watershed totaling 540 acres. (US Court of Appeals opinion 2018)

2007 - Clarksburg Master Plan staging triggers are met for biological evaluation of the impacts of development in stages 1-3. (Chronology, 2014)

May 2009 - Montgomery County annual report on Special Protection Area monitoring for the year 2007 documented deteriorating stream conditions in the Clarksburg SPA and concluded that new development in the Town Center District, west of MD 121 and east of MD 355, as well as ongoing construction activity at the correctional facility, had resulted in a decline of Ten Mile Creek’s stream conditions from good to fair between 1998 and 2007. Conditions in the Little Seneca watershed portion of the SPA also declined during the period, from good/excellent to fair.” (Ten Mile Creek Amended Master Plan 2014)

“Pulte & King Water and Sewer Category Change application returned in part due to Council’s decision to establish Stage 4 ad hoc working group” and “the Ad Hoc Water Quality Working Group” (Chronology, 2014)

July 2009 – “County Interagency Workgroup expresses concern about potential for impact on Ten Mile Creek and Planning Board reports to [Council] Joint T&E and PHED Committees that an amendment to the Master Plan is necessary. (Chronology, 2014)

October 2009 - “Council established Ad Hoc Water Quality Working Group to… advise the Council on steps necessary to preserve water quality in Stage 4.” (Chronology, 2014)

July 2010 - “Ad Hoc Water Quality Working Group report results in split opinion where the majority (environmental, civic and agency representatives) recommended an examination of the land use options in a master plan amendment and the property interests and industry groups recommended moving ahead with development.” No action is taken by Joint PHED and T&E Committee.” (Chronology, 2014)

Fall 2010 Drought. Third release from the two reservoirs (Ahmed et al, 2020)

2011 - Audubon Naturalist Society (ANS) and the Montgomery Countryside Alliance (MCA) begin advocating for a Limited Master Plan Amendment for Ten Mile Creek-Clarksburg Stage 4. They collect 1000 signatures on a petition and begin leading tours of Ten Mile Creek (Cameron 2014).

Oct 2012 - Council directs Planning Board to prepare an amendment to the 1994 Clarksburg Master Plan by October 11, 2013 and “authorizes funds for environmental, transportation and economic studies” (Chronology, 2014).

November 7, 2012 - Pulte submits Natural Resources Inventory (NRI)/Forest Stand Delineation (FSD) for the Pulte & King properties (DAIC).

December 2012 – Pulte submits a conceptual development plan for the Pulte/King Property. (DAIC)

2012 - Save Ten Mile Creek Campaign launched in response to development plans/proposals, under the leadership of ANS and MCA, and championed in the County Council by then Councilmember Marc Elrich.

March 14, 2013 - A Public Forum is held at Clarksburg High School with M-NCPPC Chief of Environmental Planning, Mary Dolan to brief the public about the preliminary results of environmental analyses performed by M-NCPPC consultants Biohabitats et al. John Parrish attends the meeting and speaks out about harm to Ten Mile Creek if gravity sewers are built. 

April 8, 2013 – The Legacy Open Space (LOS) Master Plan Advisory Group votes in favor to designate several hundred acres of forest and open space in the Ten Mile Creek watershed as a LOS Natural Resource Site to protect water quality. LOS Advisory Group members Ginny Barnes and John Parrish voted in support of the LOS designation. The designation encompasses the large, forested portions of the Pulte and King Properties, as well as County owned forest land.

May 23, 2013 - Planning Board approved the Park Analysis and Recommendations for the TMC Amendment including the LOSAG designation.

May 2013 - Save Ten Mile Creek Coalition formed, ultimately joined by 31 environmental and civic organizations. Initial members in addition to ANS and Montgomery Countryside Alliance were: Clean Water Action, Conservation Montgomery, Muddy Branch Alliance, Seneca Watershed Partners, Sierra Club, Stormwater Partners Network, and Sugarloaf Citizens Association.

June 2013 – January 2014 – Save Ten Mile Creek Coalition holds a total of four rallies, drawing hundreds of residents out to demand full protection of Ten Mile Creek and Little Seneca Reservoir.

July 25, 2013 - Planning staff recommends 8% impervious cap on Pulte and King Properties (Chronology, 2014)

July 3, 2013 – The TMC Environmental Analysis by Biohabitats et al. is completed. It lays out the scientific basis for preserving forest cover and capping impervious cover at five percent in the most sensitive sub-watersheds to maintain water quality.

October 25, 2013 - Planning Board submits draft plan to the County Executive and County Council recommending 10% impervious cap on Pulte and King Properties. (Chronology, 2014)

November-December, 2013 – The Montgomery County Council holds two nights of public hearings on the proposed Ten Mile Creek Limited Master Plan Amendment.  Eighty people gave testimony, almost all of them in favor of protecting Ten Mile Creek through strict science-based limits on new development in the two most sensitive areas of Ten Mile Creek – the King Spring and Shiloh Branch.

Dec. 13, 2013 – Pulte issues a notice of intent to sue to Montgomery County and M-NCPPC.  

April 1 2014 - Montgomery County Council voted unanimously to approve the 10 Mile Creek Area Limited Amendment, Clarksburg Master Plan and Hyattstown Special Study Area, which recommended a science-based cap of 6% on the amount of impervious surface (roads, houses, parking lots, etc.) allowed in the most sensitive subwatersheds (LSTM 110 & LSTM 111), and as close as possible to 6% overall in the watershed west of I-270. The amendment also recommended a 200 foot buffer areas around the creek’s perennial and intermittent streams, springs, and seeps, expanded to include erodible soils, wetlands, ephemeral streams, and slopes 15% or greater that begin within the above buffers. East of I-270 in already developed areas of the Town Center district, the plan allows up to 15% impervious cover for new development. (Council Resolution 17-1048; Ten Mile Creek Limited Amendment to Clarksburg Master Plan, 2014 and Washington Post 2014a)

May 15 2014 - Ten Mile Creek Victory Celebration hosted by ANS.

July 15 2014 – The Ten Mile Creek Limited Master Plan Amendment is corrected and officially adopted by the Montgomery County Council. (Council Resolution 17-1167)

Summer 2014 - Friends of Ten Mile Creek established under fiscal sponsorship of the Montgomery Countryside Alliance.

November 2014 - Pulte files $86 million lawsuit against Montgomery County and MNCPPC alleging that the County Council and planners illegally limited construction on its property in the LMPA. Contends that “Defendants’ actions violated its due process and equal protection rights and amounted to a taking of private property requiring just compensation.”  (Pulte Home Corporation and Shiloh Farm Investments LLC v. Montgomery County, Maryland and Maryland-National Capital Park and Planning Commission. Complaint filed in Montgomery County Circuit Court, Maryland, November 14, 2014.  See also: Washington Post 2014b) 

December 18 2014 - County removed Pulte lawsuit to United States District Court. Pulte files motion to remand to state Court.

December 2014 - WSSC announces options for providing sewer service for allowable development in the Ten Mile Creek Watershed, all of which involved putting sewer infrastructure alongside the Creek, its tributaries and wetlands that the amended master plan was intended to protect. Three FoTMC board members were selected to serve on the CAC Ten Mile Creek Sewer Study. FoTMC worked to identify potential alternative technologies and routing of sewer pipes. Working together with WSSC, County staff, other Committee members, and outside sewer experts over many months, five additional sewer alternatives were developed. The final two alternatives represent significant progress in terms of protecting the creek and move all sewer infrastructure out of Ten Mile Creek’s buffer areas.

Nov 17, 2015 - FoTMC obtains independent status as a non- profit 501(c)(3) organization

July 17, 2015 - Pulte motion to remand case to State Court is denied.

June 2016 - As part of the discovery, Pulte issues subpoenas to 17 individuals and groups involved in the effort to Save Ten Mile Creek (including Friends of Ten Mile Creek) seeking all documents or communications pertaining to the Ten Mile Creek Watershed going back to 2003 (Subpoena served to Friends of Ten Mile Creek, June 13, 2016). In a motion to quash the subpoenas, Attorney Don Mitchell wrote: “The subpoenas in question seek access to the core of these individual’s and citizens’ groups’ First Amendment-protected activities and communications. Their enforcement would violate the First Amendment.” (Cameron 2018)

Summer 2016 - after more than a year and a half of public meetings and determined advocacy by the Friends of Ten Mile Creek and its partners, WSSC ultimately recommended – and the County Council adopted – a sewer plan for the Ten Mile Creek watershed that keeps sewer infrastructure away from the stream and its buffers. The chosen plan (Alternative 12) also makes use of environmentally sensitive pressure sewers in the most fragile parts of the watershed. As Board Member Cathy Wiss stated in her testimony to the County Council in June 2016, FoTMC supported Alternative 12 because it “has no gravity sewers or force mains in the creek and its buffers, has fewer pumping stations located outside of the buffers; calls for stream crossings only in the rights of way of existing roads; and would cost less to construct.”

September 2016 - The WSSC Sewer Facility Plan is finalized.

August 15, 2016 - Pulte files motion to compel production of documents from those served with subpoenas.

August 30, 2017 - A Federal judge in Maryland District Court rules against Pulte concerning subpoena to Citizen Groups to produce documents. Finds that Citizen Groups possess a qualified First Amendment Privilege. In response to modified subpoena requests, the document request is limited to communications between Citizen Groups and the Defendants, and scientific sampling data for Ten Mile Creek that they have produced.  (US Circuit Court for the District of Maryland 2017)

November 29, 2018 - US Court of Appeals for the 4th Circuit affirms dismissal of Pulte lawsuit against Montgomery County, concluding that “Pulte had no constitutional property interest in developing its land as it had contemplated, and the local authorities had a plausible, rational basis for their actions”.

June 2019 - Planning Board updates the definition of ephemeral streams in the Guidelines for Environmental Management and Development in Montgomery County in order to implement standards for new development in the Ten Mile Creek watershed that were adopted by the Council in the Ten Mile Creek LMPA. These required a 50-foot buffer for protection of ephemeral streams. (FoTMC 2019 Press Release)

August 22, 2019 - A public meeting is held in Clarksburg by Pulte to present a conceptual development plan for the Creekside at Cabin Branch development. John Parrish attends the meeting and learns from Steve Collins that Pulte and the King family had severed their joint development relationship.

Oct. 31, 2019 - Pulte submits the Creekside at Cabin Branch Preliminary Plan which would concentrate development in the most sensitive subwatersheds of Ten Mile Creek where it would be up to double the 6% impervious cap, and which were singled out for extraordinary protection in the Ten Mile Creek Amended Master Plan.

April 2, 2020 - Planning Board sends a proposed Zoning Text Amendment (ZTA) to the Montgomery County Council that would expand existing exemptions from the cap on impervious surfaces by exempting “any master-planned bikeway” from the imperviousness limit in the Clarksburg East and West Overlay Zones (EOZs). (EOZs are the implementing regulations for the Ten Mile Creek Amended Master Plan)

June 22, 2020 - FoTMC requests the Montgomery County Council President and Members to reject the proposed ZTA and any other proposals that would weaken Ten Mile Creek protections. Council declines to pursue proposed ZTA. (FOTMC memo to Council President Sydney Katz and Councilmembers, June 22, 2020)

December 3, 2020 - Planning Board hearing and vote to approve Preliminary Plan for Creekside at Cabin Branch, submitted by Pulte Homes. (Resolution published January 14 2021).

January 21, 2021 - FoTMC files Petition to Reconsider Approval of Creekside at Cabin Branch Preliminary Plan No. 120200050 alleging the decision is in violation of the Master Plan because it would exceed the 6% imperviousness cap in the most sensitive subwatersheds, violates the master plan’s water quality principles and strategies, and failed to account for highly erodible soils.  which was denied. (FOTMC 2021)

September 7, 2021 - County Executive Marc Elrich sends memo to Members of the Montgomery County Planning Board concerning Creekside at Cabin Branch Site Review, alleging that the actions of the Planning Board “seriously undermine the County Council’s ability to adopt master plans and zoning regulations capable of withstanding misinterpretation.”’ (Elrich, 2021)

September 9, 2021 - Planning Board hearing and vote to approve Site Plan submitted by Pulte Homes. (Resolution published October 14 2021). (FoTMC testimonies available here)

October 12 2021 - FoTMC files petition for judicial review of Planning Board approval of Site Plan.

June 1, 2022 - Originally scheduled/postponed hearing date for judicial review of Planning Board decision in the Montgomery County Circuit Court.

August 1 2022 - Montgomery County Circuit Court Judge upheld the Montgomery Planning Commission's approval of the Pulte development plan in Ten Mile Creek's two most sensitive sub-areas. (See press release here)

August 30 2022 - Friends of Ten Mile Creek filed an appeal of the Circuit Court decision.

References

Ahmed, S.N., Moltz, H.L.N., Schultz, C.L., and Seck, A. (2020) 2020 Washington Metropolitan Area Water Supply Study: Demand and Resource Availability Forecast for the Year 2050. ICPRB Report No. 20-3. 

Cameron, Diane. 2014. Victory for Ten Mile Creek Audubon Naturalist Quarterly, Summer 2014.

Cameron, Diane. 2018. Montgomery County and Water Protectors Prevail in Ruling Against Pulte. Conservation Montgomery, December Community Updates (email, 12/2/2018)

DAIC: Montgomery Planning Department, Development Activity Information Center

Fosler, Scott (2017) Safe and Affordable Water for the Washington Region. Presentation to the Water Forum: “Where Does Your Water Come From?”. Hosted by the Maryland Sierra Club in partnership with Montgomery Countryside Alliance, Friends of Ten Mile Creek, Seneca Creek Watershed Partners, Conservation Montgomery, the Muddy Branch Alliance, the Watts Branch Alliance, Potomac Conservancy, and the Audubon Naturalist Society.

Fosler, Scott (2020) Draft Testimony on Creekside at Cabin Branch Preliminary Plan No. 120200050

Friends of Ten Mile Creek & Little Seneca Reservoir (2019) Press release: Ten Mile Creek Relies on Ephemeral Streams. June 12, 2019.

Friends of Ten Mile Creek & Little Seneca Reservoir (2020) Memorandum to Council President Sidney Katz and Councilmembers. “Reject Proposed ZTA, and any other proposals that weaken Ten Mile Creek Protections.”

Friends of Ten Mile Creek & Little Seneca Reservoir (2021) Petition to Reconsider Approval of Creekside at Cabin Branch Preliminary Plan No. 120200050

Haywood, Carlton and Cherie Schulz (2017) A timeline of significant events before and after the signing of the Potomac River Low Flow Allocation Agreement. Interstate Commission on the Potomac River Basin, November 21, 2017

ICPRB CO-OP History: https://www.potomacriver.org/focus-areas/water-resources-and-drinking-water/cooperative-water-supply-operations-on-the-potomac/co-op-history/  (Accessed 2-27-2022)

MNCPPC 1964 On Wedges and Corridors A general plan for the Maryland-Washington Regional District in Montgomery and Prince George's counties

Montgomery County Planning Board of the MNCPPC 1969 On Wedges and Corridors - Updated General Plan for the Maryland-Washington Regional District in Montgomery County Maryland

Montgomery County Planning Board (1994) Clarksburg Master Plan & Hyattstown Special Study Area 1994

Montgomery Countryside Alliance (2016) Understanding and Protecting Ag Reserve Groundwater.

Montgomery County Planning Board (2014) Ten Mile Creek Area Limited Amendment to the Clarksburg Master Plan

Montgomery County Planning Board (2020) MCPB No. 20-129, Preliminary Plan No. 120200050, Creekside at Cabin Branch. Date of Hearing: December 3, 2020. Resolution – published January 14, 2021.

Montgomery County Planning Board (2021) MCPB No. 21-097, Site Plan No. 820200160, Creekside at Cabin Branch. Date of Hearing: September 9, 2021. Resolution – published October 14, 2021.

Montgomery County Planning Department (2014) Chronology of Actions Related to the Ten Mile Creek in Clarksburg Prepared by Planning Department Staff 1/9/14. In Master Plan Limited Amendment, Appendix 9, Materials prepared for County Council

Turque, Bill. 2014. Montgomery council brings official end to battle over Clarksburg’s Ten Mile Creek. Washington Post, April 2, 2014

Turque, Bill (2014) Clarksburg builders file suit, charging that MoCo improperly limited home construction. Washington Post Nov 14, 2014.

USACE 1963 "Vol. 1 - Report". Potomac River Basin Report. U.S. Army Corps of Engineers. February 1963. pp. 92–94

USGS National Water Information System 2022 USGS 01646500 POTOMAC RIVER NEAR WASH, DC LITTLE FALLS PUMP STA   accessed 2-27-2022

Wiss, Cathy (2016) Testimony of Cathy Wiss for the Friends of Ten Mile Creek & Little Seneca Reservoir. WSSC Ten Mile Creek Area Sewer Facility Study, Montgomery County Council. June 28, 2016.

Documents from lawsuit, Pulte v Montgomery County:

Pulte Home Corporation and Shiloh Farm Investments LLC v. Montgomery County, Maryland and Maryland-National Capital Park and Planning Commission. Complaint filed in Montgomery County Circuit Court, Maryland, November 14, 2014.

Pulte Home Corporation, et al., v. Montgomery County, Maryland, et al. Civil Action No. 8:14-cv-03955-GJH Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action. To: Friends of Ten Mile Creek and Little Seneca Reservoir, Inc.

United States District Court for the District of Maryland, Southern Division. Pulte Home Corporation, et al., v. Montgomery County, Maryland, et al. Case No.: GJH-14-3955. Memorandum Opinion. Pulte motion to remand to State Court is denied, and Commissions motion to dismiss is denied. July 15, 2015 

United States District Court for the District of Maryland, Southern Division. Pulte Home Corporation, et al., v. Montgomery County, Maryland, et al. Case No.: GJH-14-3955. Memorandum Opinion. Concerning subpoena to Citizen Groups to produce documents. Finds that Citizen Groups possess a qualified First Amendment Privilege. In response to modified subpoena requests, the document request is limited to communications between Citizen Groups and the Defendants, and scientific sampling data for Ten Mile Creek that they have produced.  March 24, 2017

United States Court of Appeals for the Fourth Circuit. No. 17-2112. Pulte Home Corporation: Shiloh Farm Investments LLC, v. Montgomery County, Maryland; Maryland-National Capital Park and Planning Commission. Decided November 29, 2018