Neifert v. Department of the Environment

RAKER, Judge. Eugenia M. Neifert, Melvin D. Krolczyk, and Teresa A. Krolczyk, appellants, own four lots in the Cape Isle of Wight subdivision in Worcester County. Appellants have been denied sewer service and wetland fill permits and therefore are unable to develop their lots. We must decide whether the Maryland Department of the Environment violated appellants’ equal protection rights by denying sewer service and whether the denial of sewer and wetland fill permits constitutes an unconstitutional taking.

We shall hold that the denial of sewer service under the 1992 Policy satisfies rational basis review under equal protection analysis and that appellants did not suffer an unconstitutional taking. I. Appellants own four contiguous lots within the Cape Isle of Wight subdivision in Worcester County. Eugenia M. Neifert owns in fee simple lots 9, 10, and 11 and Melvin D. Krolczyk and Teresa A. Krolczyk own in fee simple Lot 8. Eugenia Neifert acquired her lots by gift from her mother in 1975; her parents acquired title to the lots in 1962.

The Krolczyks purchased their lot in 1974. The deed to each lot contains a restriction requiring that any “[sjeptic tanks, sewage disposal ⁴⁹² systems and drinking water facilities shall conform to all requirements established by the Maryland State Department of Health and the Worcester County Maryland Health authorities.” Each of appellants’ lots also abut Marlowe Road, a dedicated but unimproved 40-foot wide street. The Cape Isle of Wight subdivision was established in the early 1950’s and is comprised of land created by excavating canals in a tidal marsh and sidecasting the excavated material on both sides to cover the marsh and create uplands. Cape Isle of Wight contains 625 lots and, as of 1972, approximately 128 homes existed in the subdivision.

Each of these homes used a septic system that was approved based on percolation tests that could be completed at any time throughout the year. 1 In the mid-1970’s, a sewage disposal problem developed in the West Ocean City area of Worcester County, Maryland. 2 See Department of Environment v. Showell, 316 Md. 259 , 558 A.2d 391 (1989). Approximately half of the septic systems actively used in the area failed. 3 Id. at 260 , 558 A.2d at 391 . Untreated sewage leaked into drinking water supplies and created a public health hazard. Id.

Worcester County responded to the situation by requiring that lots pass a seasonal percolation test conducted during January through April, the wettest months of the year and when the water table was at ⁴⁹³ its highest. 4 As a result, eighty to ninety percent of new applications for septic permits in West Ocean City were denied. Id. In the Cape Isle of Wight subdivision, approximately 150 lot owners requested septic tank permits from 1976-1979 and 148 of those requests were denied because the lots were unable to pass the seasonal percolation testing. Appellants’ lots were among those denied on-site septic system permits in 1979 and they did not appeal this decision. 5 A central sewage collection system was proposed for the West Ocean City area to allow for the development of new homes and businesses.

Each of appellants’ four lots are located in the sewer system district. The considerable expense associated with the project required the County to seek additional funding from the State of Maryland and the U.S. Environmental Protection Agency (EPA). EPA’s 1988 Final Environmental Impact Statement (EIS) concluded that EPA could only provide a construction grant if certain restrictions were met. EPA’s funds were conditioned on the system not providing sewer service to any parcel of land within any wetlands, as defined by the U.S. Fish and Wildlife Service, or to any parcel of land within the 100 year floodplain if it was platted as a building lot after May 31, 1977. 6 EPA also ⁴⁹⁴ required the Worcester County Sanitary Commission (“Sanitary Commission”) to submit maps that clearly delineated all non-service areas.

The Maryland Department of Health and Mental Hygiene (DHMH) and the Sanitary Commission formalized their commitment to these restrictions in a Consent Order on June 28, 1983. 7 The total sewer system cost was funded by the EPA (75%), the State of Maryland (12.5%), and Worcester County (12.5%). The Worcester County Sanitary Commission hired the engineering firm of George, Miles & Buhr to create a set of maps (“1984 Maps”) identifying non-service areas, ie. those parcels that fell within wetlands as defined by the Fish and Wildlife Service or were located in the 100-year floodplain and were platted after 1977. The 1983 EIS maps were not relied upon because lot lines were not visible. Instead, George, Miles & Buhr created the 1984 Maps by enlarging National Wetland Inventory maps developed by the Fish and Wildlife Service from large-scale aerial photography and superimposing them onto a map of the sewer service area.

The 1984 Maps provided approximate wetland delineations and were used as general guidance in granting sewer service. 8 According to the 1984 Maps, lots 8, 9, and 10 and much of the portions of Marlowe Road adjacent to the lots contained wetlands. 9 Appellants applied to Dr. Donald Harting, the Health Officer of Worcester County, for sewer connections in 1985 and their request was denied. 10 Dr. Harting’s September ⁴⁹⁵ 10, 1985 letter denied sewer system access because “the southerly portion of Marlowe Road and lots 8, 9, 10, and 11 were classified as wetlands ... [A]ll lots which are classified as wetlands are prohibited from connecting to the sewerage system.” Appellants requested a review of Dr. Harting’s decision by Richard B. Sellars, Jr., Director of the Water Management Administration at DHMH. Director Sellars affirmed Dr. Harting’s decision to deny service because the Consent Order prohibited service for any lots within wetlands as defined by the Fish and Wildlife Service. Appellants appealed to the DHMH’s Office of Hearings. On December 23, 1986, Arthur E. Cohen, a DHMH hearing examiner, affirmed Dr. Harting’s decision to deny sewer service to Lots 9 and 10, but reversed the decision with regard to Lots 8 and 11.

The Final Decision Maker, Timmerman T. Daugherty, issued a Final Decision and Order on July 16, 1990 affirming Dr. Harting’s denial of sewer service to all of appellants’ lots. 11 Appellants sought judicial review in the Circuit Court for Worcester County. On July 16, 1991, the Circuit Court held that it was not error to base a wetland determination upon additional evidence which conflicts with the 1984 Maps as the maps were not binding and held that Dr. Harting’s decision to deny sewer service to appellants was not supported by substantial evidence. The Circuit Court remanded the case for the County to re-consider whether appellants’ lots qualified as wetlands. Appellants held the sewer service appeal in abeyance while they pursued wetland permits and did not readdress the sewer service proceedings until 1998.

By 1986, the Sanitary Commission was concerned that the 1984 Maps did not accurately show nontidal wetlands. At a ⁴⁹⁶ meeting on February 7, 1986, representatives from the Worcester County Sanitary District, the Department of Natural Resources and the U.S. Army Corps of Engineers (“Corps of Engineers”) met to identify lots, not then mapped as wetlands, that needed on-site investigations to determine accurate wetland delineations for a set of revised maps (“1986 Maps”). 12 Appellants’ lots were included in the list for on-site investigation. Appellants’ lots had also been inspected in April of 1985 by individuals from the Corps of Engineers, the Department of Natural Resources, and the Worcester County Health Department. 13 As a result of these visits and investigations, appellants’ lots on the 1986 Maps were reclassified as containing 60-100% mapped wetlands. 14 The County continued to use the 1986 Maps as guidance, but sewer service was denied to any property mapped as a wetland or any property defined as a wetland under the applicable Fish and Wildlife Service delineation. Thus, up until 1992, any property within wetlands was denied sewer service, whether mapped or not. 15 ⁴⁹⁷ In 1991, the Maryland Department of the Environment (“Department”) became aware that many lot owners who had invested in the purchase of lots in reliance on the wetland guidance maps felt that their investment-backed expectations were frustrated by the application of new wetland delineation methodologies. 16 As a result, the Department requested that EPA reconsider the Consent Order’s prohibition of sewer service for lots within wetlands in light of the recent implementation of the Corps of Engineers’ “Federal Manual for Identifying and Delineating Jurisdictional Wetlands” (“1989 Federal Manual”).

Interior lots were classified as wetlands even though they were identified on the guidance maps as entirely non-wetland as a result of the application of the 1989 Federal Manual in West Ocean City. 17 In response, the Department, after consulting with the Worcester County Sanitary Commission, proposed a change in how the Consent Order would be implemented. The Department wrote EPA on November 20, 1991, seeking its concurrence with the ⁴⁹⁸ proposed policy change. In its letter, the Department summarized the difficulties the 1989 Federal Manual had caused as follows: “Cases have arisen of late where lot owners relied on the maps of record and determined that sewer service was available. They then arranged financing, only to find that they were precluded from proceeding with construction due to the discovery of wetlands on the property.

The discovery would come as a result of the later use of a more stringent definition of the term wetlands. At that point the lot owner would attempt to work with the proper wetlands regulatory authorities to gain approval to construct the proposed building. The problem is, however, that if the lot owner was successful in securing a permit from the Corps of Engineers to construct a building, sewer service to that building would be denied under the premise that service to a structure in a wetland, no matter how or when that wetland came to be defined, is prohibited under the terms of the Consent Order.” While field verifications of the guidance maps in 1985 and 1986 adjusted the wetland boundaries of lots already reflected on the 1984 maps as containing wetlands, implementation of the 1989 Federal Manual resulted in large blocks of interior lots— those not close to mapped wetland lines — being defined as wetlands. The Department realized that individuals who had purchased lots in reliance on the maps found that they were no longer able to build on their lots because, based on the delineation methods in the 1989 Federal Manual, their lots were now categorized as wetlands.

As more lots became ineligible for sewer service, the Department also became concerned about the County’s ability to retire the debt it had assumed in order to finance its share of the project. The Department proposed what it believed to be a “reasonable solution” to the problem that would not “contravene] the purpose or intent of the consent order or grant ⁴⁹⁹ condition.” 18 The Department explained as follows: “Our proposal is to allow the wetlands delineation procedures that existed at the time of the signing of the Consent Order to be utilized for the purpose of determining a lot’s ability to receive sewer service. If post-Consent Order wetland delineations are conducted using current delineation procedures, which presumably result in a larger expanse of land defined as wetlands, then the matter falls outside of the scope of the Consent Order. Resolution of the matter would lie between the lot owner and the Corps of Engineers.

If the final outcome is the issuance of a wetlands construction permit and construction does not infringe upon the wetland areas defined under the procedures that existed as of 1983, then sewer service would be allowed.” In 1992, EPA responded to the Department by expressing its adoption of the Department’s proposal in two separate letters, one to the Corps of Engineers and one to the Department. EPA stated in its letter to the Corps of Engineers as follows: “Specifically, we have interpreted the implication of wetland delineation methodology changes since 1983 and the impact of these changes on sewer hook up eligibility ... “[W]e interpret the restrictions of the 1983 EIS to apply to only those wetland areas originally identified in the 1983 EIS. Those areas outside of the 1983 delineation but within current jurisdictional wetland boundaries will be eligible for hook up provided they receive a Section 404 permit, a 401 Water Quality Certification, a State Non-Tidal Wetlands permit or other authorization and all other required State and local permits.” Under this 1992 Policy, parcels lacking mapped wetlands on the 1986 maps were granted sewer service if they obtained all ⁵⁰⁰ necessary wetland fill permits. 19 At least 26 lots have obtained the proper fill permits and were granted sewer service under the 1992 Policy; each of these lots contained “unmapped” wetlands (“List of 26”). 20 Conversely, lots with mapped wetlands were ineligible for sewer service according to the 1992 Policy unless all buildings and ancillary structures could be located on uplands, i.e. meet the structures test. No sewer service has been granted to a mapped wetland lot.

Appellants’ lots contain mapped wetlands under the delineation methodology in place as of 1983. 21 In 1992, appellants filed a joint application with the Department of Natural Resources to fill the nontidal wetlands delineated on their four lots and the adjacent Marlowe Road. 22 The Department of Natural Resources denied appellants’ applications in February 1993, finding that the economic benefits did not outweigh the ecological costs and that appellants had not demonstrated that the project was necessary to meet a demonstrated public need. 23 ⁵⁰¹ Appellants sought administrative and judicial review. Appellants filed for a contested case hearing with the independent Maryland Office of Administrative Hearings. Administrative Law Judge Joan C. Ross held a hearing and issued a Recommended Decision on August 15, 1994 that affirmed the Department of Natural Resources’s denial of the permit application. On April 21, 1995, Robert D. Miller, the Director of the Department of Natural Resources’s Water Resources Administration, filed a Final Decision and Order also affirming the denial.

Appellants sought judicial review in the Circuit Court for Worcester County. In April 1997, the Circuit Court for Worcester County held that the denial of a fill permit was not supported by substantial evidence and was arbitrary, capricious and erroneous as a matter of law because the Department of Natural Resources had not properly evaluated the economic and ecological value of the nontidal wetlands. The Court remanded the case to the Department of the Environment for a new hearing. In August 1997, appellants filed additional wetland permits with the Department of the Environment.

Following a public hearing on the permit applications, the Department denied this second request for permits on October 13, 1998 because of the high value of the wetland functions and the lack of a demonstrated public need for their proposed project. Appellants filed for a contested case hearing with the Office of Administrative Hearings. Administrative Law Judge Geraldine A. Klauber filed a Recommended Order on January 6, 2000 affirming the Department’s denial of the permit because the record reflected that the Department performed its statutory duty in reviewing the wetland fill permit applications. The Department’s Final Decision Maker, A. Katherine Hart, filed a Final Decision and Order on May 9, 2001 affirming the ⁵⁰² decision to deny appellants’ fill permits.

Appellants did not seek judicial review. In 1998, appellants reinitiated their application for sewer service under the 1992 Policy. Richard L. Wells, the Worcester County Environmental Programs Administrator, denied sewer service to appellants in November 1998. Appellants filed for a contested case hearing.

At the hearing, appellants argued that the Department was interpreting EPA’s 1992 Policy improperly and arbitrarily and that the Department’s interpretation denied them due process. Administrative Law Judge Louis N. Hurwitz concluded that the Department did not act in an arbitrary and capricious manner in applying the 1992 Policy to appellants’ lots and affirmed the denial of service on February 10, 2000. The Department’s Final Decision Maker, A. Katherine Hart, affirmed the denial of sewer service on November 16, 2001. Appellants did not seek judicial review.

Appellants filed the present suit in the Circuit Court of Worcester County on April 3, 2003. Appellants sought damages and attorneys fees from the Department and, pursuant to 42 U.S.C. § 1983 , from the officials responsible for the permit denials claiming the denial of equal protection and an unconstitutional taking under both the United States and Maryland Constitutions. The parties filed cross-motions for summary judgment and the Department filed a motion in limine, arguing that appellants were precluded from re-litigating the issue of whether their four lots were similarly situated with other wetland lots that had obtained sewer service under the 1992 Policy because they had litigated the same issue in the earlier contested case hearing. The Circuit Court held a hearing on the motions on April 18, 2005 and granted summary judgment in the Department’s favor on all counts, ruling that the denial of wetland fill permits and sewer hookups did not constitute a taking or violate appellants’ equal protection rights.

Appellants noted a timely appeal to the Court of Special Appeals. We granted certiorari on our own initiative prior to ⁵⁰³ decision by that court. Neifert v. Department of Environment, 393 Md. 160 , 900 A.2d 206 (2006). 11. Before this court, appellants argue that the Department’s denial of sewer service under the 1992 Policy denies them equal protection of the law under the Equal Protection Clause of the United States Constitution and Article 24 of the Maryland Declaration of Rights because there is no rational basis for providing service to non-mapped wetlands lots and denying service to mapped wetlands lots. 24 Appellants assert also that the denial of sewer service and wetland fill permits has rendered their lots undevelopable and constitutes an unconstitutional taking of property without just compensation under the Fifth Amendment of the U.S. Constitution and Article III, § 40 of the Maryland Constitution.

The Department of the Environment responds that appellants’ equal protection claim fails because their mapped wetland lots are not similarly situated to the non-mapped wetland lots that were provided sewer service, an issue appellants are collaterally estopped from contesting, and that the 1992 Policy is rationally related to the Department’s concerns about fairness, fiscal integrity, and ecological soundness. The Department asserts that appellants’ lots were undevelopable as of 1979 and that appellants have no constitutionally protected right to sewer access. Consequently, the Department contends, there was no unconstitutional taking associated with the denial of sewer service.

III

The standards for review of a trial court’s grant of summary judgment are well-established. We review de novo the Circuit Court’s grant of summary judgment. Livesay v. ⁵⁰⁴ Baltimore, 384 Md. 1, 9 , 862 A.2d 33, 38 (2004). In reviewing a grant of summary judgment, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.

Id. at 9-10 , 862 A.2d at 38 . We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Id. at 10 , 862 A.2d at 38 . In the present case, both parties filed motions for summary judgment, there is no dispute of material fact, and the only questions before us relate to the application of equal protection and takings law.

IV

We address first whether the Department of the Environment violated appellants’ equal protection rights by denying sewer service under the 1992 Policy. Appellants contend that the 1992 Policy, as applied, violates the Equal Protection Clause of the United States Constitution and Article 24 of the Maryland Declaration of Rights. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” and directs that all persons similarly situated be treated alike. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394 , 72 L.Ed.2d 786 (1982).

Article 24 of the Maryland Declaration of Rights states “[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Although Article 24 does not contain an express equal protection clause, this Court has held that the concept of equal protection is embodied within the Article. Frankel v. Bd. of Regents, 361 Md. 298, 312-13 , 761 A.2d 324, 332 (2000) (quoting Renko v. McLean, 346 Md. 464, 482 , 697 A.2d 468, 477 (1997)). United States Supreme Court cases applying the Equal Protection Clause of the Fourteenth Amendment are binding on this Court when ⁵⁰⁵ applying that clause and are persuasive when applying Article 24 of the Declaration of Rights. Id.

Appellants are not members of a suspect class and a fundamental right is not at issue; therefore, our standard of review is the traditional and deferential rational basis analysis. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985) (reiterating that any classification by race, alienage, or national origin is suspect and must be evaluated under a strict scrutiny standard); Broadwater v. State, 306 Md. 597, 603 , 510 A.2d 583, 586 (1986) (stating that general rule of sustaining a statutory classification if it is rationally related to a legitimate state interest gives way when a statute classifies by race, alienage or national origin (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 )); see Attorney General of Maryland v. Waldron, 289 Md. 683, 706 , 426 A.2d 929, 942 (1981) (documenting fundamental rights or interests guaranteed by the federal constitution). Under rational basis review, a legislative classification is sustained if the classification is rationally related to a legitimate state interest. 25 See City of Cleburne, 473 U.S. at 440 , 105 S.Ct. at 3254 ; Ehrlich v. Perez ex rel. Perez, 394 Md. 691, 715 , 908 A.2d 1220, 1234 (2006).

There is a strong presumption of constitutional validity when social or economic legislation is at issue. See City of Cleburne, 473 U.S. at 440 , 105 S.Ct. at 3254 ; Lamers Dairy, Inc. v. U.S. Dept. of Agric., 379 F.3d 466, 473 (7th Cir.2004) (applying deference to agency established classi ⁵⁰⁶ fication); Piscatelli v. Board of Liquor License Comm’rs, 378 Md. 623, 643 , 837 A.2d 931, 943 (2003). In reviewing legislation, we have stated as follows: “[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ........

This standard of review is a paradigm of judicial restraint.” Maryland Aggregates Ass’n v. State, 337 Md. 658, 673 , 655 A.2d 886, 893 (1995) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 , 113 S.Ct. 2096, 2101 , 124 L.Ed.2d 211 (1993)). The rational basis test requires appellants to prove that (1) the government treated them differently than it treated others similarly situated, and (2) the disparate treatment did not bear a rational relationship to a legitimate interest. Lawrence v. Texas, 539 U.S. 558, 579 , 123 S.Ct. 2472, 2484 , 156 L.Ed.2d 508 (2003) (O’Connor, J., concurring) (noting that the Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike” (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985))); Village of Willowbrook v. Olech, 528 U.S. 562, 564 , 120 S.Ct. 1073, 1074 , 145 L.Ed.2d 1060 (2000); Broadwater, 306 Md. at 602 , 510 A.2d at 585 (1986) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985)). V. We turn to appellees’ argument that appellants are collaterally estopped from re-litigating the finding in the earlier contested case that their lots are similarly situated to the non-mapped wetlands lots in the West Ocean City area that ⁵⁰⁷ obtained sewer service.

The Circuit Court held that appellants are not collaterally estopped from arguing that their lots are similarly situated. We agree. An administrative agency’s decision is given preclusive effect based on three factors: (1) whether the agency was acting in a quasi-judicial capacity, (2) whether the issue presented to the circuit court was actually litigated before the agency, and (3) whether resolution of the issue was necessary to the agency’s decision. Batson v. Shiflett, 325 Md. 684, 701 , 602 A.2d 1191, 1200 (1992).

The Department’s final decision maker acted in a quasi-judicial capacity when she issued a Final Decision and Order on November 16, 2001 that affirmed Administrative Law Judge (ALJ) Hurwitz’s recommendation to deny sewer service to Lots 8, 9, 10, and 11. The similarly situated issue was addressed in each parties’ briefs in connection with appellants’ due process claim. Resolution of the issue, however, was not necessary to the agency’s decision. The ALJ and the Department’s final decision-maker could have denied appellants’ due process claims without addressing the similarly situated issue because appellants were given full procedural due process and did not have a valid substantive due process claim.

La Chance v. Erickson, 522 U.S. 262, 266 , 118 S.Ct. 753, 756 , 139 L.Ed.2d 695 (1998) (“The core of due process is the right to notice and a meaningful opportunity to be heard.”); Front Royal and Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 286-87 (4th Cir.1998) (affirming that access to government provided sewer service is not a constitutionally protected right under Virginia law); Blue Cross v. Franklin Sq. Hosp., 277 Md. 93, 101 , 352 A.2d 798, 804 (1976) (“Generally, due process requires that a party to a proceeding is entitled to both notice and an opportunity to be heard on the issues to be decided in a case.). Moreover, our review of ALJ Hurwitz’s Recommended Order on Remand indicates that the contested case focused primarily on whether lots 8, 9, 10, and 11 were eligible for sewer service and was not concerned with how the Department implemented the Consent Order for similarly situated ⁵⁰⁸ lots that received sewer service.

Although the Department’s Final Decision Maker concluded that, “the lots were not treated differently than similarly situated lots in the West Ocean City area,” it is not apparent from the record how this decision was made. The Department’s Final Decision Maker’s conclusion was based on the determination by ALJ Hurwitz that the delineation procedures in place at the time of the Consent Order were properly applied to lots 8, 9, 10, 11; ALJ Hurwitz did not directly address whether the Department and the County properly applied the appropriate wetlands delineation procedures under the Consent Order to similarly situated lots. In fact, ALJ Hurwitz stated, “[e]ven if [the Department] has implemented the Consent Order in an arbitrary and capricious manner regarding other lots, its treatment of those lots have no bearing upon the sewer service eligibility of Appellants’ lots.” We hold that appellants are not collaterally estopped from asserting that their lots are similarly situated to the non-mapped wetlands lots that obtained sewer service under the 1992 Policy.

VI

Appellants’ properly raised the similarly situated issue and we now determine it on the merits. We hold that appellants’ lots are not similarly situated to those lots that have received sewer service under the 1992 Policy. Appellants’ lots contain mapped wetlands and are not similarly situated to non-mapped wetland lots that received sewer connections. In fact, appellants concede that their lots constitute mapped wetlands; they concede also that the County has applied the distinction consistently between mapped and non-mapped wetland lots to determine sewer service eligibility under the 1992 Policy.

Lots 8, 9, and 10 contained a small area of mapped wetlands on the 1984 Maps and on the 1986 Maps (the revised 1984 Maps) each lot was 60-100% mapped wetlands. The List of 26 lots do not contain mapped wetlands on either of the Consent Order maps. The 1992 Policy distinguishes between mapped and non-mapped wetlands. Based on this distinction, appellants’ mapped lots are not similarly situated to non-mapped lots on the List of 26. ⁵⁰⁹ VII.

The distinction between mapped and non-mapped wetlands as used in the 1992 Policy bears a rational relationship to several legitimate state interests. The distinction is rationally related to the State’s legitimate interest in addressing the unfairness created by changing definitions of wetlands and ensuring the fiscal integrity of the sewer system while adhering to the environmental restrictions set forth in the Consent Order conditioning EPA’s grant. By conditioning sewer service eligibility on the wetland guidance maps and the wetland delineation methodologies in place as of 1983, the 1992 Policy addresses fairness concerns by restoring property owners’ expectations; expectations that were established when they purchased lots in reliance on the maps and then eliminated when they were “caught up in the implementation of new wetland delineation methodologies.” As the State argues, the restoration of property owners’ expectations in turn addresses the Department’s concerns about the solvency of the sewer system because the number of lots over which to spread the cost of the system is maintained. Furthermore, in applying the service prohibition of the Consent Order to all of the lots reflected on the EPA mandated wetland guidance maps, the 1992 Policy ensures that federal funding of the sewer system does not result in the destruction of wetlands that were known to exist at the time the Consent Order was effectuated.

The record reveals the Department’s concern with fairness. The Department received letters from Jeff Mumford and Matt Engle in September 1991 appealing the Department’s determination on a July 29, 1991 field visit that their formerly buildable lots in West Ocean City were wetlands. Mr. Engle asserts that he believed the lots were totally buildable when purchased in August of 1991. Mr. Mumford’s letter indicates that he paid the annual front foot assessment on his lots since it was imposed. 26 The Department received an additional ⁵¹⁰ letter in January 1992 from Lai Keswani’s attorney.

The letter stated that Mr. Keswani purchased his lot on November 21, 1989 after ensuring that it was eligible for sewer service under the Consent Order. Subsequently, Mr. Keswani was denied sewer service because of the identification of wetlands on his parcel. Each of these individuals relied upon the Consent Order maps to their detriment and their cases demonstrate that the Department had a rational basis for seeking EPA assistance to address the unfairness created by the changing definitions of wetlands. 27 These letters demonstrate that the Department and County proposed the mapped/non-mapped distinction to address issues associated with the implementation of the Corps of Engineers’ 1989 Federal Manual. Specifically, the Administrator of the Capital Projects Program at the Department, Angelo Bianca, wrote a letter to EPA on November 20, 1991 to address issues of fairness and adherence to environmental restrictions. 28 Mr. Bianca noted that use of the 1989 Federal Manual was “unfair to lot owners who rely on the maps to square away the issue of sewer service” and that “a reasonable solution” was “to allow the wetlands delineation procedures that existed at the time of the signing of the Consent Order to be utilized for the purpose of determining a lot’s ability to receive sewer service.” The Department’s fairness concern is supported also by the confusion and criticism associated with implementation of the 1989 Federal Manual.

The 1989 Federal Manual provided a uniform method for wetland delineations by the EPA, the Corps of Engineers, the Soil Conservation Service, and the Fish and Wildlife Service, but it was criticized for increasing ⁵¹¹ the Corps of Engineers’ scope of regulatory jurisdiction under the Clean Water Act beyond historical limits. See Michael C. Blumm, The Clinton Wetlands Plan: No Net Gain In Wetlands Protection, 9 J. Land Use & Envtl. L. 203 , 208 (1994); Michael S. Nagy, The Definition of ‘Wetlands” Under Section 404 of the Clean Water Act: Past, Present, and Future, 3 U. Balt. J. Envtl.

L. 92 , 94-96 (1993) (noting companies’, farmers’, and builders’ dislike of the Manual because it was too strict). In response to the criticism, the Corps of Engineers and EPA developed and published for public comment on August 14, 1991 proposed revisions to the 1989 Federal Manual. 29 56 Fed.Reg. 40,446-01 (Aug. 14, 1991). On August 17, 1991, federal legislation was enacted that precluded the Corps of Engineers from relying on the 1989 Federal Manual. See Energy and Water Development Appropriations Act of 1992, Pub.L. No. 102-104, 105 Stat. 510, 518 (1991).

As a result, the Corps of Engineers returned to using the 1987 Manual, though it was not until January 1993 that EPA abandoned its attempt to incorporate revisions to the 1989 Federal Manual and that both the Corps of Engineers and EPA agreed to adopt the 1987 Manual for purposes related to the Clean Water Act. See Nagy, 3 U. Balt. J. Envtl. L. at 95, 97.

Thus, even after August 1991, there was little certainty regarding the standards for wetland delineations until January 1993. In light of this historical context and the letters from concerned West Ocean City residents, we are persuaded that the Department’s desire to adopt the 1992 Policy was rationally related to a legitimate state interest in avoiding unfairness to those property owners who were impacted by the introduction of the 1989 Federal Manual and its resulting wetland determinations. EPA articulated that fairness was an interest when it announced its approval of the 1992 Policy to the Baltimore District of the Corps of Engineers, “[w]e base our findings on one of fairness to local long range planning efforts.” The 1992 Policy clarified for all property owners ⁵¹² that the wetland delineation procedures in effect were those that existed at the time of the Consent