Legal appeal filed by watershed protection group Friends of Ten Mile Creek and LSR alleges

BOYDS, MARYLAND - Friends of Ten Mile Creek and Little Seneca Reservoir (FoTMC) has filed a petition seeking legal review of a recent Montgomery County Planning Board decision approving the site plan for a residential development in the Ten Mile Creek watershed in Clarksburg. The Planning Board’s decision unlawfully disregards the Clarksburg Master Plan’s requirements for protecting Ten Mile Creek, which is considered Montgomery County’s “last best creek,” by wholly concentrating development in its two most ecologically sensitive sub-watersheds. The Planning Board’s actions undermine both the Montgomery County Council’s ability to determine environmental and land use policies, and the public’s confidence in the County’s Master Plan process.

The developer, Pulte Homes, filed an application for approval of a residential construction plan called “Creekside at Cabin Branch” (820200160). The Planning Board approved the plan at a hearing on September 9, 2021. The resolution approving the site plan was published on October 14, 2021. FoTMC filed a petition for judicial review on October 12, 2021. Three FoTMC board members who live in the Ten Mile Creek watershed have joined the appeal as petitioners. FoTMC is represented by attorneys David Fischer, Galen Rende, Carly Rolph and Caleb Holland of the Washington DC-based law firm Keller and Heckman LLP.

In order to protect water quality in Ten Mile Creek, the 2014 Clarksburg Master Plan Amendment explicitly recommends “a six percent impervious surface cap for new development in the most sensitive subwatersheds to minimize risk as much as possible.” This recommendation is based on well-established science which shows that water quality begins to degrade significantly with imperviousness levels as low as 5%. Despite this, the Planning Board approved a development plan that will have devastating environmental impacts by increasing the amount of impervious surface in the two affected highly sensitive subwatersheds by as much as 13%.

In the appeal, FoTMC argues that the Planning Board’s approval violates the stated purpose of the 2014 Clarksburg Master Plan Amendment, which is to preserve natural resources critical to the County’s wellbeing. “The Planning Board has not only ignored an explicit recommendation in the Master Plan prescribing a six percent impervious surface cap in these sensitive sub-watersheds, but it has also rendered meaningless the extensive environmental analysis that formed the basis for the Amendment in 2014,” says David Fischer. “Judicial precedent makes clear that, in these situations, Master Plans are elevated to the status of true regulatory devices and cannot be selectively read in this manner.”

Ten Mile Creek is the healthiest tributary of Little Seneca Reservoir (LSR), a back-up drinking water supply during droughts for 4.5 million people in the Washington Metropolitan Area. Development has already increased run-off and sedimentation in the reservoir’s other tributaries, raising drinking-water costs and threatening water quality in the lake. Continuing climate change will only exacerbate these problems.

Contacts:

Sylvia Tognetti 240-462-0090
Miriam Schoenbaum 425-829-1668

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