County attorney: Frederick County can have its own Monocacy River plan

The back and forth between Frederick and Carroll counties over how the Monocacy River should be managed took a turn when a legal opinion for Frederick County determined that each county could have its own plan.


That would differentiate it from current standing, which says that both counties must agree to one plan. People from both counties have been debating for more than two years over how that singular plan should look.


Frederick County Attorney John Mathias issued an opinion to County Council members, County Executive Jan Gardner and other county officials Friday afternoon, stating that “the County has ample legal authority to undertake any study or plan that might ‘aid in maintaining the peace, good government, health, and welfare of the county.’ ... Using this state law authority, the County may have its own River Plan.”


Mathias also stated in his opinion that the county has already satisfied the Maryland Wild and Scenic Rivers Act, with its adoption of the 1990 plan.


“The way that particular law is worded, it doesn’t specify who is to take certain actions,” Mathias said in an interview Monday about how each county or legislative body is supposed to adopt future river plans. “A lot of the things in it are phrased in passive voice, so the actor or the person who is supposed to do it isn’t specified.”


If Frederick County decided to pursue its own plan, that document “could serve as a guide for future County actions, but would not be binding or require any mandatory action,” according to Mathias’ opinion.


Earl Bell, however, disagreed with Mathias’ opinion, arguing that state law says that since the river travels through two counties, one plan should be adopted for both. Bell is the current chairman of the Monocacy Scenic River Citizens Advisory Board, which drafted the 2018 River Plan, and adopted it in October 2018.


Bell, a Carroll County member, referenced the Carroll County Board of Commissioners meeting where that body passed the 2018 plan in late November. At that meeting, Carroll County Attorney Tim Burke told commissioners that both counties needed to adopt one plan, The Frederick News-Post previously reported.


“He answered that for the plan to be valid, both counties would have to sign off on it,” Bell said Monday. “Before that could be valid, that would have to happen.”


Stan Mordensky, a Frederick County member of the river board — and someone who has criticized the 2018 plan in several meetings — said Monday he was open to separate plans for each county.


He’s waiting, however, to see how the Frederick County Council wants to proceed.


“I think County Council needs to have their discussion, I don’t know what their plans are and I’m going to be there like everyone else,” Mordensky said.


He was referencing part of the Frederick County Council agenda for Tuesday night, which states the council will take action on the 2018 plan.

That action could be:

  • The council deciding to pursue its own plan for Frederick County.

  • The council attempting to work with Carroll County officials even though they have passed a plan.

  • Keeping the 1990 River Plan, the one currently being enforced.

Frederick County Council leadership said Monday they were waiting to discuss those options before forming an ultimate opinion.


Council President M.C. Keegan-Ayer (D) said she requested an opinion from Mathias in order to give council members some more information for discussion Tuesday night, and help them decide how to proceed.

She declined to state, however, whether she would prefer one plan for Frederick County.


“I am not going to say because I’m waiting to see where the council wants to go tomorrow,” Keegan-Ayer said Monday of whether she prefers one or two plans. “All the members of the council know how involved I’ve been in this. ... They might be inclined to let my opinion influence their decision.”


Council Vice President Michael Blue (R) said Monday he still prefers one plan for both counties, but respects Mathias’ opinion and was looking forward to council discussion Tuesday.


“I just think it would be better just for continuity’s sake to have one scenic river that has one plan, that is supported by adjacent counties that share that natural resource,” he said. “It just doesn’t seem right to have two separate plans for the same river.”


The council is scheduled to discuss and take action on the 2018 River Plan on Tuesday night, in its last order of business before a public hearing at 7 p.m.


The plan is meant to be a shared vision between Carroll and Frederick counties, and makes recommendations for recreation, agriculture and natural resource management along the Monocacy River.


No matter how the council acts, Councilman Phil Dacey (R) believes council members should vote the current proposal up or down on Tuesday.


“I think there’s been enough work that’s been put in. The [river] board members have put in good work, so we owe it to the volunteer board members and the general public,” Dacey said.



Frederick County attorney's opinion

Here is the full opinion issued Friday by Frederick County Attorney John Mathias to council members, County Executive Jan Gardner and other county officials:


Frederick County Council Members,


The County Council has asked whether Frederick County could have its own River Plan, separate from Carroll County. The short answer is yes, Frederick County may have its own Monocacy River Plan.  Careful thought should be given to the purpose and use of such a plan.


In 1990, the Frederick County Commissioners and the Carroll County Commissioners voted to support the Monocacy River Study and Management Plan. The Frederick County governing body has not revised or amended this plan since 1990.


The state law on Scenic and Wild Rivers is not a model of legislative clarity and is subject to differing interpretations (MD Code, Natural Resources Article, Sections 8-401 through 8-411). To the extent Frederick County is required to adopt any Monocacy Scenic River Plan, the existing plan (from 1990) satisfies this requirement. The state law does not require the County to update this plan. The County has satisfied any requirements of the Maryland Wild and Scenic Rivers law when the County voted to support the 1990 Plan. (I also note that the state law does not require the County to use any River Plan in any way.)


The County has ample legal authority to undertake any study or plan that might "aid in maintaining the peace, good government, health, and welfare of the county." (Md. Code, Local Government Article, Section 10-206 (a)(2)) Using this state law authority, the County may have its own River Plan. This plan could serve as a guide for future County actions, but would not be binding or require any mandatory action. The purpose and use of any plan should be carefully identified and stated.



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