If a Maryland review commission takes too long to act on a local government's Chesapeake Bay protection plan, does the plan get approved automatically?

Plain-English summary

Three Maryland legislators asked the Attorney General, in 1989, whether Somerset County's local Chesapeake Bay Critical Area program had been "deemed approved" by default under a statutory 90-day review deadline, after the Critical Area Commission took five weeks just to confirm the county's submission was complete and then tried to use the full 90 days from that later date to review it. The Attorney General concluded that the Commission could screen submissions for completeness before starting the review clock, but once it determined a submission was complete, as it had for Somerset County, the 90-day period began running immediately from that determination, not from some later date the Commission chose; because the Commission's later attempt to disapprove parts of the program came after the 90 days had already run, the county's program was approved by operation of law.

Currency note

This opinion was issued in April 1989 and interpreted the Chesapeake Bay Critical Area Law and Commission review procedures as they existed at that time. Maryland's critical area program has continued to evolve through statutory amendments and Commission practice in the decades since. This page is a historical record of how the Attorney General resolved one specific timing dispute over Somerset County's 1988 program submission. It describes what the opinion concluded at the time and is not a statement of current Maryland critical area law or Commission procedure. Verify the current statute and Commission practice directly before relying on anything here.

Common questions

Did a Maryland county's Chesapeake Bay protection plan get automatically approved just because a review commission was slow?
Yes, in this specific case. The opinion concluded that once the Critical Area Commission determined Somerset County's program submission was complete, the statutory 90-day review period began immediately, and because the Commission did not act within that period, the program was "deemed approved" by operation of law under NR §8-1809(d)(2), regardless of the Commission's later attempt to disapprove parts of it.

Could the Commission still screen a county's submission before starting the 90-day clock?
Yes. The opinion agreed with the Commission's practice of screening submissions for basic completeness first, reasoning that an incomplete submission was never truly "received" as a proposed program under the statute, so the 90-day clock did not start until the Commission determined the submission contained all the statute's required minimum elements.

Did being "deemed approved" mean Somerset County's program was guaranteed to comply with all Bay protection requirements?
No. The opinion was careful to note that approval by default under the statute was not the same as a substantive Commission finding that the program met all statutory and regulatory requirements, and it flagged that any parts of the program the Commission had tried to disapprove could still face legal challenge later if they genuinely fell short of the law's standards.

Background and statutory framework

Under the Chesapeake Bay Critical Area Law, each local jurisdiction bore primary responsibility for developing a program meeting statutory goals (minimizing water-quality impacts, conserving habitat, and establishing appropriate land use policies), subject to Commission review and approval, with all such programs required to be in effect within 760 days of the Commission's criteria taking effect. NR §8-1809 set a detailed schedule: a jurisdiction had 270 days (extendable) to submit a proposed program after a public hearing, the Commission had 30 days to appoint a five-member panel for a local hearing, and then 90 days from receiving the proposed program to either approve it or specify required changes, with the program "deemed approved" if the Commission did neither within that window.

Somerset County submitted its program on March 15, 1988. Five weeks later, on April 26, 1988, the Commission's chairman sent a letter confirming the submission was complete as to the statute's required elements and stating that the 90-day review period would begin "as of the date of this letter," rather than from the original March 15 submission. The Commission did not act by June 13 (90 days after the original submission), but on June 29, within 90 days of the April 26 letter, it disapproved certain aspects of the program. The opinion framed the central question as whether the county's program had already been deemed approved before that June 29 disapproval.

The opinion first addressed whether the Commission could screen submissions for completeness at all, concluding yes: reading NR §8-1809's reference to "a proposed program" together with the minimum program elements required by NR §8-1808(b) and the Commission's criteria, an incomplete submission was never properly "submitted" or "received" in the statutory sense, so it did not start the 90-day clock, a reading also supported by the practical need for a meaningful public hearing and adequate review time, and by out-of-state cases construing similar deemed-approval statutes for other types of applications. But the opinion then held that the Commission's discretion to screen for completeness did not extend to also giving itself extra time after finding a submission complete: once the Commission determined, as it explicitly had for Somerset County, that the program was complete, the 90-day period began running from that determination, and the Commission was not permitted to treat a later date as the true start of the clock. Because the Commission's June 29 disapproval came after the 90 days had already elapsed from its own April 26 completeness determination, the opinion concluded Somerset County's program was approved by default, while cautioning that this default approval did not resolve whether the program actually satisfied the law's substantive requirements, leaving open the possibility of future legal challenges to any genuinely deficient elements.

Citations and references

Statutes:

• NR §8-1808(a)(1), assigning primary responsibility for local programs to jurisdictions subject to Commission review
• NR §8-1808(b), the three core statutory goals a local program must serve
• NR §8-1808(c), the eleven minimum elements a "sufficient" program must contain
• NR §8-1809(c), the local jurisdiction's submission deadline and public hearing requirement
• NR §8-1809(d)(1), the Commission's 30-day deadline to appoint a local hearing panel
• NR §8-1809(d)(2), the 90-day review deadline and default "deemed approved" rule at issue in this opinion
• NR §8-1809(d)(3), the 40-day deadline for reviewing a changed proposal
• NR §8-1809(e), governing a "proposed change" to a program
• NR §8-1809(f), the 760-day overall deadline for all critical area programs to be in effect
• NR §8-1809(g) and (h), governing program "amendments"
• NR §8-1809(i), requiring compliance with both the statute and the Commission's criteria
• NR §8-1810, the Commission's authority to adopt a program itself for a noncompliant jurisdiction
• NR §1-503(b), the Environmental Standing Act's citizen-suit provision for mandamus or equitable relief
• 12 U.S.C. § 1843(c), the analogous federal bank holding company deemed-approval statute discussed in Bank America Corp.
• N.H. Rev. Stat. Ann. §36:23 (1969), the analogous New Hampshire subdivision-plat deemed-approval statute discussed in Allard v. Thalheimer

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), cited for the guiding principle of construing statutes consistent with legislative goals
• Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957), cited for treating a similar automatic-affirmance deadline as mandatory, not directory
• Bank America Corp. v. Board of Governors, 596 F.2d 1368 (9th Cir. 1979), federal case construing an analogous 91-day deemed-approval banking statute
• Allard v. Thalheimer, 358 A.2d 395 (N.H. 1976), New Hampshire Supreme Court decision holding an incomplete plat submission does not start a deemed-approval clock
• Lake Erie Power & Light Co. v. Telling-Belle Vernon Co., 14 N.E.2d 947, 952 (Ohio 1937), cited alongside Allard on incomplete filings
• Kornbluth v. Savannah, 398 F. Supp. 1266, 1268 (E.D.N.Y. 1975), cited alongside Allard on incomplete filings
• Matthews v. Kern, 22 N.Y.S.2d 621, 622 (Sup. Ct. 1942), cited alongside Allard on incomplete filings
• Holy Cross Hosp. v. Health Services Cost Review Comm'n, 283 Md. 677, 685, 393 A.2d 181 (1978), cited for deference to an agency's contemporaneous interpretation of its own governing statute
• Madison at Merrick, Inc. v. Leonard, 253 N.Y.S.2d 44 (Sup. Ct. 1964), cited for the rule that an agency cannot effectively extend its own review deadline once an application is complete
• Savage v. Town of Rye, 415 A.2d 873, 875 (N.H. 1980), cited for approving a preapplication completeness review so long as the agency adheres strictly to the deadline once an application is final
• Tuscarora Forests, Inc. v. Fernmanagh Bd. of Supervisors, 471 A.2d 137, 138 (Pa. Cmwlth. 1984), cited alongside Savage on incomplete subdivision plans

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 60-70 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CHESAPEAKE BAY CRITICAL AREA COMMISSION

Local Programs - Review And Approval - Status Of Somerset County's
Program

April 17, 1989

The Honorable Lewis R. Riley
Senate Of Maryland

The Honorable Norman H. Conway
The Honorable Daniel M. Long
Maryland House of Delegates

Together with the late Delegate Pilchard, you requested our

opinion concerning the applicability of §8-1809(d) (2) of the Natural
Resources Article ("NR" Article") to the critical area program of
Somerset County. Specifically, you ask whether the Somerset County
program was "deemed approved" under that paragraph.

For the reasons stated below, we conclude that, although the

Chesapeake Bay Critical Area Commission had the discretion to screen
local program submissions for completeness prior to the beginning of
the 90-day period that the statute provides for Commission review, in
the case of Somerset County the Commission exceeded the bounds of
its discretion. In our opinion, Somerset County's program was
"deemed approved" as submitted by the county. However, we should
not be understood to be addressing the program's compliance with
substantive elements of the Critical Area Law and its implementing
regulations.1

 1 See text accompanying note 6 below.

                               I

                     Statutory Background

 In two prior opinions, this office discussed in detail the purposes

of the Chesapeake Bay Critical Area Law and the procedures of the
Critical Area Commission. 73 Opinions of the Attorney General 57
(1988); 72 Opinions of the Attorney General 14 (1987). Under this
law, "each local jurisdiction shall have primary responsibility for
developing and implementing a program, subject to review and
approval by the Commission." NR §8-1808(a)(1).

These local programs are at the core of the overall effort to protect

the Bay. In NR §8-1808(b), the General Assembly mandated that:

      A program shall consist of those elements which are
    necessary or appropriate to:

         (1) Minimize adverse impacts on water quality
    that result from pollutants that are discharged from
    structures or conveyances or that have run off from
    surrounding lands;

         (2) Conserve fish, wildlife, and plant habitat; and

         (3) Establish land use policies for development in
    the Chesapeake Bay Critical Area which accommodate
    growth and also address the fact that, even if pollution
    is controlled, the number, movement, and activities of
    persons in that area can create adverse environmental
    impacts.

 A local program must comply with requirements in both the statute

and the Commission's criteria. NR §8-1809(i). The statute specifies
eleven elements that, "[at] a minimum," would make a program
"sufficient" to meet the statutory goals. NR §8-1808(c). The criteria,
in turn, elaborate upon the required elements of a local jurisdiction's
program. See generally COMAR 14.15.

To assure that the overall program goals would be realized "in a

consistent and uniform manner," the General Assembly established in
NR §8-1809 a detailed schedule for local program development.
"Within 760 days after criteria adopted by the Commission become
effective, there shall be in effect throughout the Chesapeake Bay
Critical Area programs approved or adopted by the Commission." NR
§8-1809(f). Local jurisdictions were given the option of either
developing their own programs or letting the Commission do so, and
a schedule for preparation and approval was set forth as follows in NR
§8-1809:

        (c) If a local jurisdiction states its intent to develop
    a program, it shall prepare a proposed program and
    submit it to the Commission within 270 days after the
    effective date of the criteria adopted under §8-1808 of
    this subtitle.      However, if the local jurisdiction
    submits evidence satisfactory to the Commission that
    it is making reasonable progress in the development of
    a program, the Commission may extend this period
    for up to an additional 180 days. Before submission
    of a program to the Commission within the time
    allowed by this subsection, a local jurisdiction shall
    hold at least one public hearing on the proposed
    program, for which 2-weeks notice shall be published
    in a newspaper of general circulation in the local
    jurisdiction.

       (d) (1) Within 30 days after a program is submitted,
    the Commission shall appoint a panel of 5 of its
    members to conduct, in the affected jurisdiction, a
    public hearing on the proposed program.

           (2) Within 90 days after the Commission
    receives a proposed program from a local jurisdiction,
    it shall either approve the proposal or notify the local
    jurisdiction of specific changes that must be made in
    order for the proposal to be approved.           If the
    Commission does neither the proposal shall be deemed
    approved.

          (3) A changed proposal shall be submitted to the
    Commission in the same manner as the original
    proposal, within 40 days after the Commission's
    notice. Unless the Commission approves a changed
    proposal or disapproves a changed proposal and states
    in writing the reasons for its disapproval within 40
    days, the changed proposal shall be deemed approved.

 Your question concerns one aspect of the procedures by which the

Commission was to review a local jurisdiction's program. Under NR
§8-1809(c), "[i]f a local jurisdiction states its intent to develop a
program, it shall prepare a proposed program and submit it to the
Commission within 270 days after the effective date of the
[Commission's] criteria .... Then, "[w]ithin 90 days after the
Commission receives a proposed program from a local jurisdiction, it
shall either approve the proposal or notify the local jurisdiction of
specific changes that must be made in order for the proposal to be
approved. If the Commission does neither the proposal shall be
deemed approved." NR §8-1809(d)(2).

                                 II

          Submission of Somerset County's Program

On March 15, 1988, a representative of Somerset County delivered

the county's proposed program to the Commission. Five weeks later,
on April 26, 1988, the late Judge Solomon Liss, then Chairman of the
Commission, sent the following letter to the President of the Board of
County Commissioners for Somerset County:

        This is to formally acknowledge submittal of the
     Somerset County Chesapeake Bay Critical Area
     Program on March 15, 1988 to the Commission. This
     is also to inform you that the Somerset County
     Critical Area Program has been determined to be
     complete as to the required elements in Section 8-1808
     of the Law and 14.15.10 and 14.15.11 of the criteria.
     Therefore, as of the date of this letter, the 90-day
     review period by the Commission will begin.

The 90th day after March 15, 1988, was June 13. By that date,

the Commission had taken no action. However, on June 29, 1988,

2
  The Commission's criteria, which were approved by the General Assembly,

became effective on May 13, 1986.

more than 90 days after March 15, but within 90 days of Judge Liss'
April 26 letter, the Commission disapproved certain aspects of the
county's proposed program. The issue, then, is whether the county's
program had been "deemed approved" under NR §8-1809(d)(2) prior
to the Commission's partial disapproval on June 29.

                                       Ill

                     Mandatory Nature of Deadline

In attempting to construe the phrase "[w]ithin 90 days after the

Commission receives a proposed program from a local jurisdiction,"
our guiding principle is to achieve a result consistent with the goal of
the General Assembly. See Kaczorowski v. City of Baltimore, 309 Md.
505, 525 A.2d 628 (1987). Although the legislative history contains
no material related to this question, we do draw guidance from the
context in which NR §8-1809(d)(2) appears.

 Unquestionably, the General Assembly sought to compel a

Commission decision, one way or the other, about the adequacy of a
local jurisdiction's program within the fixed period of 90 days. The
default language, "If the Commission [takes no action] the proposal
shall be deemed approved," is meant to force Commission action
within the 90-day deadline. This time limit is not merely directory.
See Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957).3

 One important goal of the Critical Area Law was to have measures

to protect the Bay in place by a set date, "[w]ithin 760 days after
criteria adopted by the Commission become effective ...." NR §8-
1809(f). Moreover, the statute sets out a timetable for steps in local
program development, including the Commission's review, consistent
with this overall deadline. See Part I above.

As we explained in detail last year, the Commission's review

process was a demanding one. The Commission was required to assess
each program element to determine if it comported with the applicable

 3
    In Scherr, the Court of Appeals held that the following provision was

mandatory, not directory: "The failure of the [circuit] court to determine an appeal
within a period of 30 days after the record has been filed in court by the local [liquor]
board ... shall constitute an automatic affirmance of the local board's decision ...."
211 Md. at 566.

provisions of the statute and the criteria. See 73 Opinions of the
Attorney General at 61. If the Commission concluded that a program
element was deficient, it was empowered to direct a change in that
element. Nevertheless, despite the formidable nature of the task, the
Commission was required to decide whether there were any
deficiencies within 90 days. In light of the statutory scheme and its
underlying purpose, the Commission was not permitted to allow itself
extra time for this review. We do not understand the Commission, in
its practice or interpretation, to have contended otherwise.

                              IV

            Screening for Program Completeness

 When the first local programs were submitted to the Commission,

the Commission's counsel were asked whether a program wholly
lacking one or more of the elements mandated in NR §8-1808(c) or in
the criteria was sufficient to trigger the 90 day period for Commission
action provided by NR §8-1809(d)(2). Counsel advised the
Commission that when the General Assembly required a local
jurisdiction to submit "a proposed program," it meant a program
containing all of the minimum and mandatory program elements. If a
program submission failed this test, counsel advised, the 90 days for
Commission action from receipt of "a proposed program" would not
start. Thus, counsel advised that the Commission's proposal to subject
initial program submissions to a "completeness review" was supported
by the law. We think that this advice was correct.

First, the reference in NR §8-1809 to submission of "a proposed

program" must be read in the context of other provisions of the law,
described in Part I above, that delineate what a "program" must include
"at a minimum." There is nothing in NR §8-1809 to suggest that a
"proposed program" could consist of anything less than the minimum
elements set forth in NR §8-1808(b) and the Commission's criteria.

Second, to read the references to "proposed program" in NR §8-

1809(c) and (d) to mean anything less than a program containing all of
the minimum elements would frustrate the intent of other provisions in
NR §8-1809. For example, a local jurisdiction was required by NR
§8-1809(c) to hold a public hearing on its proposed program before
submitting it to the Commission. But if a "proposed program"

contained less than all of the minimum program elements, the public
would have been deprived of an opportunity to comment on the missing
elements.

 Third, if the Commission had been required to act within 90 days

on a proposed program lacking some of the minimum elements, the
Commission would have had no choice but to disapprove the program.
However, this would have meant that upon receipt of a corrected
program, the Commission would have had only 40 days to review the
entire program (NR §8-1809(d)(3)), not the 90 days contemplated by
NR §8-1809(d)(2). The need to act on a whole program in so
truncated a time period would also have obviated the Commission's
only public hearing, required by NR §8-1809(d) to be held by a panel
within 30 days of the original submission of a program. Since perhaps
the bulk of a program would not yet have been submitted, that hearing
might have been a futile exercise. In short, a reading of the act that
would have forced so foreshortened a review process is inconsistent
with the statutory objective. See Bank America Corp. v. Board of
Governors, 596 F.2d 1368 (9th Cir. 1979).4

 Moreover, although we are aware of no Maryland case on point,

cases from other jurisdictions support the Commission's practice. In
Allard v. Thalheimer, 358 A.2d 395 (N.H. 1976), the New Hampshire
Supreme Court construed a similar statutory scheme. Under New
Hampshire law, a person seeking approval of a subdivision plat was to
submit it to the local planning board. The statute required the planning
board to "act to approve or disapprove [the plat] within 90 days; ...
otherwise such plat shall be deemed to have been approved ...." N.H.
Rev. Stat. Ann. §36:23 (1969). The plaintiff purported to submit a
plat, but the planning board rejected it because it did not meet a
regulatory requirement that lot sizes be shown in square feet. The
court held: "In these circumstances the master properly rejected the

 4
     This case involved another automatic approval statute. Under 12 U.S.C.

§ 1843(c), an application by a bank holding company to engage in certain nonbanking
activities "shall be deemed to have been granted" if the Board of Governors of the
Federal Reserve System fails to act on the application "within the 91 day period
which begins on the date of submission to the Board of the complete record on that
application ...." The Ninth Circuit observed that "we must interpret the 91 day rule
in a way which gives the Board an adequate opportunity to discover and evaluate
'possible adverse affects such as undue concentration of resources, decreased or
unfair competition, conflicts of interest,' and the like, so that the Board can 'insure
that the activities of these companies do not result in harm to the public ....'" 596
F.2d at 1376-77 (quoting substantive provisions of the law).

plaintiff's claim that he submitted the plat." 358 A.2d at 396.
Accord Lake Erie Power & Light Co. v. Telling-Belle Vernon Co., 14
N.E.2d 947, 952 (Ohio 1937) (filing requirement for regulatory
approval not satisfied if key contractual term is omitted). See also
Kornbluth v. Savannah, 398 F. Supp. 1266, 1268 (E.D.N.Y. 1975)
(claim under Tort Claims Act not properly "presented" when
physician's statements were omitted); Matthews v. Kern, 22 N.Y.S.2d
621, 622 (Sup. Ct. 1942) (improperly filled out citizenship application
not a "filing").

 Finally, even if the Commission's decision to engage in

"completeness reviews" were viewed as debatable, it was a reasonable
interpretation of the statute, entitled to deference. "[T]he view taken
of a statute by administrative officials soon after its passage is strong,
persuasive influence ... and should not be disregarded except for the
strongest and most urgent reasons." Holy Cross Hosp. v. Health
Services Cost Review Comm'n, 283 Md. 677, 685, 393 A.2d 181
(1978).

                                V

            Effect of Completeness Determination

 Although the Commission had the power to return to a local

jurisdiction an incomplete program without having initiated the 90-day
review period, however, the situation involving Somerset County poses
a different question: When the Commission screens a program for
completeness and determines that it is complete, was the Commission
permitted to treat the 90-day review period as beginning on the date of
its determination of completeness? We think not.

 Just as an incomplete program was never properly "submitted" or

"received" and therefore never initiated the 90-day review period, so
a complete program was "submitted" and "received" and therefore did
initiate the 90-day review period. There is nothing in the language of
the statute or its underlying policy that would permit the Commission,
in effect, to grant itself more than 90 days to review a complete
program. See Madison at Merrick, Inc. v. Leonard, 253 N.Y.S.2d 44

(Sup. Ct. 1964).5 Indeed, one out-of-state case expressly approves a
procedure for "preapplication review" of subdivision applications,
much like that of the Commission, but only if the reviewing agency
adheres strictly to the statutory deadline for review once the application
is "final." Savage v. Town of Rye, 415 A.2d 873, 875 (N.H. 1980).
See also Tuscarora Forests, Inc. v. Fernmanagh Bd. of Supervisors,
471 A.2d 137, 138 (Pa. Cmwlth. 1984) (incomplete subdivision plan
justifies agency inaction "pending submission and review of a revised
plan containing more complete information").

                                      VI

                 Status of Somerset County Program

 In our view, the Commission exceeded the permissible bounds of

its discretion in its handling of the Somerset County program. It took
five weeks for the Commission to determine that the Somerset County
program was complete, and then it sought to take the full 90 day
review period in addition. But, as explained in Part V above, the
screening that we believe was permissible under the statute did not
permit this result.

Unquestionably, the Commission's resources were severely taxed

by the demands of the review process, at a time when the proposals of
many jurisdictions were pending. We do not doubt the Commission's
good faith in its processing of the Somerset County proposal.

Good faith alone is not enough, however. The Commission was

not empowered effectively to extend the 90-day deadline in NR §8-
1809(d)(2) by five weeks. Instead, the Commission was obliged to
disapprove any element of Somerset County's program by the 90th day

 5
    In this case, a county ordinance required the planning commission to act on a

proposed subdivision plat within 45 days, if the plat was filed "in accordance with the
regulations of the county planning commission." A developer complied with all the
regulatory requirements and then sought mandamus when the board failed to act
within 45 days. The board sought to defend its inaction by arguing that action was
not required until after a public hearing, which the board had the power to schedule.
The board's argument, if accepted, would have effectively allowed it to extend the
45-day review period indefinitely. The court rejected the board's argument: "It was
certainly not the Legislative intent to empower the County Planning Commission to
set up a procedural 'roadblock', and thus negate the clear intent of a Legislative
enactment...." 253 N.Y.S. 2d at 46.

from the Commission's receipt of the program, which the Commission
determined was complete. The Commission's disapproval after that
date was ineffective, for the county's program had already been
"deemed approved."

 To be sure, this approval by operation of law is not identical to

approval by the Commission. As we pointed out in Part I above, the
Critical Area Law mandates local program compliance with elements
in the statute and with the Commission's criteria. See NR §§8-
1808(b),(c), and (d) and 8-1809(i). There now exists no determination
that the Somerset County program is "sufficient to meet the goals" of
the Critical Area Law. NR §8-1808(c).

The Critical Area Law does not spell out the consequences of

approval by default under NR §8-1809(d)(2). Certain procedural
effects are clear: For example, the Commission may not itself adopt
a program for Somerset County under NR §8-1810. Moreover, any
modification in the county's program would be an "amendment" under
NR §8-1809(g) and (h), rather than a "proposed change" under NR §8-
1809(e).

Apart from these specific matters, the statute is silent and thus

leaves some important matters in doubt. If the Commission's
attempted (albeit legally ineffective) partial disapproval of June 29,
1988, reflects instances in which Somerset County's program fails to
meet statutory or regulatory requirements, actions taken under the
program might well be subject to legal challenge in the future.6

 We understand that the Commission and Somerset County have had

discussions aimed at modifications in the county's program. The
conclusion in this opinion is certainly not a reason for any lessening of
this cooperative endeavor.

 6
    Under the Environmental Standing Act, any person "may bring and maintain

an action for mandamus or equitable relief, including declaratory relief against any
officer or agency of the State or political subdivision to perform a nondiscretionary
ministerial duty imposed upon them under an environmental statute ... [or]
regulations, ... or for their failure to enforce an applicable environmental quality
standard for the protection of the air, water, or other natural resources of the State,
as expressed in a statute ... [or] regulation ...." NR §1-503(b).

                              VII

                          Conclusion

In summary, it is our opinion that the Chesapeake Bay Critical

Area Commission was authorized to screen the program submissions
of local jurisdictions to determine whether a submission contained all
elements required by statute and regulations. A proposed program that
was incomplete was not subject to Commission review under NR §8-
1809(d). However, if a program was found to be complete, the
Commission was required to act on the proposal within 90 days of its
receipt or else the program was "deemed approved."

Because Somerset County's program was found to be complete and

yet was not acted upon within 90 days of its receipt, that program has
been approved by operation of law. However, this mode of approval
by default entails uncertainty over whether the program has complied
with all of the requirements of the statute and regulations. In light of
the significant legal risk to which a noncomplying program would be
exposed, we recommend that Somerset County and the Commission
continue their efforts to agree on amendments to the program.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        Jack Schwartz
                                        Chief Counsel
                                          Opinions & Advice