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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1519 September Term, 1999 _______________________________

JOHN SERRA

V.

MARYLAND DEPARTMENT OF THE ENVIRONMENT

_______________________________ Hollander, Salmon, Krauser, JJ.

_______________________________ Opinion by Salmon, J.

Filed: September 5, 2000

Appellant, John Serra, challenges the authority of appellee, the Maryland Department of the Environment ("the MDE"), to regulate the construction of boathouses over State tidal wetlands. In 1998, Serra applied to the MDE for a wetlands license to construct a boathouse to be attached to an existing pier. After the MDE denied the wetlands application, Serra appealed the denial. The Circuit Court for Anne Arundel County upheld Serra then filed this timely appeal and

the MDE's decision. raises two issues: 1.

Does the Maryland Department of the Environment have the authority to regulate an activity that is neither the dredging nor filling of state waterways? Did the circuit court commit error when it found that a structure designed to provide a cover for a boat while it is berthed on a pier is a "non-water dependent structure" and therefore prohibited by section 16-104 of the Environment article of the Annotated Code of Maryland?

2.

We answer the first question in the affirmative and affirm the decision of the MDE to deny Serra's wetlands license. We also

answer the second question in the affirmative; however, that answer does not affect the outcome of the case.

PART I

BACKGROUND Serra is the owner of the property located at 2019 Poplar Ridge Road, Pasadena, Maryland. The property is bounded on

the south side by Main Creek, a tidal, navigable waterway of the State of Maryland. On March 22, 1995, Serra's predecessor

in title obtained a permit to construct a pier that extends one hundred feet into the waters of Main Creek. In 1998, after the pier was constructed, Serra applied to the MDE for a tidal wetlands license to build a 33' by 12' covered slip over the open water. The proposed structure was The structure was to be

to be attached to the existing pier.

composed of galvanized metal piping and removable cloth covering. Serra's purpose for building the covered structure

was to protect his boat from the elements while moored. The MDE found that the structure was a "boathouse" as that term is defined by section 26.24.01.02B(2) of the Code of Maryland Regulations (COMAR). That section provides:

"'Boathouse' means a structure with a roof or cover, or similar device placed over open water to protect a boat or other vessel." COMAR section 26.24.04.02C(2) reads "[e]xcept may not construct a new The MDE

at commercial marinas, a person

boathouse in or over State or private wetlands."

denied the license on the basis that it violated COMAR 26.24.04.02C(2). The trial judge affirmed the MDE's denial of

2

the permit, albeit for a reason different from that advanced by the MDE. The court ruled that the MDE

had the authority to regulate boathouses over State wetlands and that the boathouse is prohibited under

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Maryland Law