Division 5. Nontidal Wetland Protection Ordinance

Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics and sediment; and

Minimize adverse impacts to the surface water, groundwater flow, and circulation patterns, and to the chemical, physical and biological characteristics of a nontidal wetland.

The physical removal of natural nontidal wetland vegetation; or

Causing mortality of nontidal wetland vegetation by the application of herbicides, hydrologic alteration, or by other means.

Placement of fill necessary for the construction of any structure;

Building or any structure or impoundment requiring rock, sand, dirt, or other materials for its construction;

Site development fills for recreational, industrial, commercial, residential, and other uses;

Causeways or road fills;

Dams and dikes;

Artificial islands;

Property protection or reclamation devices, or both;

Levees; and

Fills for structures such as, and associated with, sewage treatment facilities and intake and outfall pipes.

Adding or impounding a sufficient quantity of stormwater or water from other sources to modify the existing vegetation, values or functions of the nontidal wetlands; or

Draining, ditching, or otherwise causing the depletion of the existing groundwater or surface water levels so that the activity would modify the existing vegetation.

Reduction of pollutant loadings, including excess nutrients, sediment and toxics;

Attenuation of floodwaters and stormwaters;

Shoreline stabilization and erosion control;

Breeding grounds and habitat for many species of plants and wildlife including fish, game and nongame birds and mammals, including threatened and endangered species and species in need of conservation;

Food chain support; and

Timber production.

Contiguous to a watercourse, surface water body, tidal wetland or ditch drainage;

Within or connected to any 100-year floodplain as determined by calculation or by FEMA Maps;

Receives or discharges surface or groundwater as intermittent or perennial flow from or to a surface water body, watercourse or other tidal or nontidal wetland as demonstrated by the presence of an intermittent or perennial stream or spring flow; or

Formerly contiguous to a surface water body, watercourse or a nontidal wetland described in subsection (b)(40)(A) through (C) above, but is presently separated from these areas by a man-made berm, fill, road or other structure.

Alteration of existing nontidal wetland vegetation or water levels that significantly impairs or eliminates its principal functions, but excluding;

Alteration of an area so that it no longer meets the nontidal wetland definition.

Maintenance does not include the following activities, unless conducted in a temporary sediment control structure, wash pond or roadside ditch:

Means any of the following activities which are directly undertaken or originate in a nontidal wetland, buffer or expanded buffer;

Does not include an agricultural activity or forestry activity as defined in this Ordinance.

Of the following unusual or unique community types:

With water discharge that maintains minimum stream base flow important for maintaining plant wildlife species;

With threatened or endangered species, or species in need of conservation;

Adjacent to Class III or Class IV waters as defined in COMAR 26.08.02.08;

Of Special State Concern;

That supports vernal pools as defined in COMAR 08.05.04.01 B.87; and

That is regularly or periodically influenced by tidal waters.

If the proposed project includes any regulated activity;

If the proposed project can be modified to first avoid and then to minimize impacts on nontidal wetlands;

If the proposed activity falls under the jurisdiction of a Unified Nontidal Wetland permit, a State Nontidal Wetland permit or if a Federal Section 404 permit may be required; and

If the proposed activity is exempt or if it qualifies for a Letter of Authorization.

The review process can be used to identify wetland areas, verify wetland delineations, or assist the applicant in identifying the type of nontidal wetland permits required for the proposed project.

Submission requirements. The application and background information shall include the name of the property; the name of the applicant; the name of the property owner and their signatures; the name of the contract purchaser; a location map; the County Road Atlas page number and grid coordinates; zoning classification; a site plan of all proposed regulated and nonregulated activities, including, but not limited to the topography, natural features, location and dimensions of structures, driveways, pools, walk-ways, utility lines, septic systems and wells; a narrative of the proposed project's purpose; and any other information the Department may require.

Additional submission requirements. If applicable, the following information shall also be submitted: the wetland report and delineation in accordance with the Corps of Engineers Wetland Delineation manual, Technical Report Y-87-1 and any subsequent amendments. Forest Stand Delineation and the proposed Type I or Type II Tree Conservation Plan; the proposed or approved preliminary plan of subdivision; soil map; drainage area map; and a 200 foot scale map of the project site if the proposed project involves a subdivision or a commercial or industrial use.

If necessary to identify the potential impacts of a proposed project, the Department will request submission of one or more of the following: an analysis of pre- and post discharges to wetlands (changes to discharges, volumes and velocities); the total number of sites considered by an applicant along with the physical, economic and demographic characteristics of each site; the purpose of the proposed project and its relationship to the site; the location of any existing structural or natural features that constrain the placement or configuration of the proposed project; the spatial requirements of the proposed project; the sensitivity of the project design to the nontidal wetland(s); and any proposed phasing of the project (for larger projects which may not be completed within three (3) years, it is recommended that the project be phased).

Reduction in acreage of a nontidal wetland affected by a regulated activity;

Harm to threatened or endangered species or species in need of conservation, or the critical habitat of these species;

Movement of aquatic and wildlife species indigenous to the nontidal wetland or water body;

Ability of the nontidal wetland to continue to support and provide habitat for those aquatic and wildlife species using the area;

Hydrologic regime of the areas upstream and downstream of the area of impact;

Functions of the impacted and/or adjacent nontidal wetlands;

Passage of normal or expected high flows, or the relocation of water;

Subsurface water flow into or out of any nontidal wetland area;

Presence of, or potential for, supporting fish spawning areas;

Presence of areas having significant plant or wildlife value;

Cumulative impact to nontidal wetlands; and,

Impacts to the 100- year floodplain.

An officer or authorized agent, if the applicant is a corporation;

A legally authorized official, if the applicant is a County agency or municipal government;

An authorized partner, if the applicant is an association or a partnership; or

An individual or his/her legally authorized representative, if the applicant is an individual.

Nontidal wetland boundary, as marked by flags in the field, based on field delineation and in accordance with the Corps Delineation Manual, including the buffer and expanded buffer. The applicant shall maintain the boundary flags in place until notified by the Department;

Location of all existing and proposed structures;

Location of all proposed regulated and nonregulated activities;

Property Lines of all adjacent and/or impacted properties;

Names of adjacent property owners;

Location of Nontidal Wetlands of Special State Concern;

Location and number of all soil samples;

Location of the County's approved 100-year floodplain boundary based on the proposed condition;

Existing topography (2 foot field run contours, 5 foot contours or aerial as needed); and

Type I and II Tree Conservation Plan or a valid letter of exemption;

The present or future availability of projects with the same or similar public need; and

A demand for the project in the general area;

Taken from a minimum depth of 20 inches and include a description of soil colors and textures as obtained from borings sufficient to verify hydric or nonhydric conditions;

On transects perpendicular to the nontidal wetland boundary, starting within the nontidal wetland area and moving towards the upland; and

Numbered and accompanied by a soil description log indicating the observed or estimated depth to the highest water table during the year;

The name and address of the applicant;

A description of the nature and location of the proposed project;

A description of the proposed mitigation plan, if applicable.

Instructions of how to submit written comments, request a public informational hearing, and/or how to place one's name on the interested person's mailing list;

The expiration date for the opportunity to comment on the wetland delineation or to request a public informational hearing regarding same;

A statement that any further notices concerning actions on the application will be provided only by mail to those persons on the interested persons mailing list; and

The name, address and telephone number of person in the Department from which information about the application may be obtained.

Selected mailing to Federal, State, County, or municipal authorities; persons on the interested persons mailing list; and adjacent property owners;

Publication for at least one (1) business day in a newspaper of record;

Joint notice with other Federal, State or County agencies; or

Joint notice with other units or programs within the Department.

Circumstances listed in subsection (e); or

A request by an applicant.

Introduction by the Department.

Presentation or proposed project by the applicant;

Comments and questions by public officials;

Comments and questions by other persons; and

Closing of the public informational hearing by the presiding official;

Conduct a full and fair public informational hearing;

Act to avoid unnecessary delay and to maintain order; and

Regulate the course of the public informational hearing and the conduct of the participants.

Consider the written comments, testimony and other information received; and

Render a decision to grant, deny or condition a permit within:

Review required by a Federal or State agency; or

Request by an applicant.

The name, address and telephone number of the person making the request;

The name, address and telephone number of any attorney representing the person making the request;

A description of the grounds for the request, including the specific legal right, duty, privilege or interest which may be adversely affected by the permit determination, and which is different from those interests held by the general public;

A statement of the specific relief desired as a result of the reconsideration; and

A general outline of the evidence supporting the desired relief, including the names and addresses of those that can verify the information submitted for the reconsideration.

A specific legal right, duty, privilege, or interest which is or may be adversely affected by the permit determination and which is different from that held by the general public;

Raised at least one issue that is related to the subject of the permit and arises under this Ordinance; and

Made a request for reconsideration within 30 days of the date the permit was issued or denied as specified under this subsection.

The specific reasons for the denial;

A statement that if appeal under this regulation is not sought, the denial shall be the Department's final decision on the request for reconsideration.

Whether an alternative water source is available for use, including surface runoff or groundwater, that may have fewer adverse impacts on nontidal wetlands; and

Whether the use of a nontidal wetland would only enhance a project rather than being essential to it.

The project purpose can be reasonably accomplished using one or more alternative sites in the same general area as the proposed site that would avoid or result in

The intent of the initial planning phase is to require an applicant to evaluate the feasibility of the project and the adverse impact on nontidal wetlands at the earliest stage of the development process, before the applicant has committed substantial resources in the project site. Consideration of alternative sites at the earliest stage enables the applicant to retain the flexibility to avoid adverse impacts to nontidal wetlands.

An applicant shall select the earliest of the following times as the initial planning phase for the proposed project:

For the time selected in subsection (a)(3)(B), an applicant shall provide a written justification of the selection, including copies of any documentation supporting the selection and an explanation of why earlier times would be inappropriate or inapplicable to the proposed project.

While the Director will give serious consideration to the initial planning phase selected by the applicant, the Department reserves the right to require additional information from the applicant concerning the initial planning phase selection or to independently determine the appropriate time.

Whether an applicant has made, and can document, a reasonable effort to analyze alternative sites in the general area during the initial planning phase to first avoid adverse impacts and then to minimize adverse impacts to nontidal wetlands;

Whether an applicant has made, and can document, attempts to obtain land ownership interests or other rights to conduct the proposed project on alternative sites which first avoid adverse impacts and then minimize adverse impacts to nontidal wetlands;

The total number of alternative sites and the physical, economic and demographic characteristics of those sites considered by an applicant;

The physical, economic and demographic requirements of the proposed project relative to the alternative sites analyzed;

The degree to which use of alternative sites is constrained by other governmentally imposed restrictions and requirements, including concern for avoidance of other environmental, social, community, archaeological, historic and park land impacts;

Efforts undertaken to reduce adverse impacts to nontidal wetlands through consideration of reducing density, other site designs or project configurations on each alternative site analyzed; and

The costs of fulfilling mitigation requirements for each alternative site.

The spatial requirements of the proposed project;

The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project;

The purpose of the proposed project and how the purpose relates to placement, configuration or density;

Sensitivity of the site design to nontidal wetlands;

An applicant's efforts to:

The costs of fulfilling potential mitigation requirements based on project configuration or design versus the alternative project configuration or design.

Reduction in acreage of a nontidal wetland affected by a regulated activity;

Harm to a threatened or endangered species in need of conservation, or to the critical habitat of these species;

Movement of aquatic and wildlife species indigenous to the nontidal wetland or water body;

Ability of the nontidal wetland to continue to support and provide habitat for those aquatic and wildlife species using the area;

Hydrologic regime of the areas upstream and downstream of the area of impact;

Functions of the impacted or adjacent nontidal wetlands;

Passage of normal or expected high flows, or the relocation of water;

Subsurface water flow into or out of any nontidal wetland areas;

Presence of, or potential for, supporting fish spawning areas;

Presence of areas having significant plant or wildlife value;

Cumulative impact to nontidal wetlands; and

Impacts to the 100-year floodplain.

Aquatic ecosystem diversity, productivity and stability;

Plankton, fish, shellfish and wildlife;

Recreational and economic values; and

Public welfare; or

Violates any applicable State water quality standard, the Environment Article of the Annotated Code of Maryland, or the Clean Water Act; and

Degrades surface and groundwater quality.

When the Department, after consultation with MDNR and appropriate Federal, State and local government agencies, approves the request;

A private property owner agrees to assist in the preparation of the comprehensive watershed management plan in accordance with this subsection; and

The comprehensive watershed management plan meets the requirements of subsection (b)(3) through (5).

A functional assessment of nontidal wetlands within the watershed;

The location of potential mitigation sites;

Protection of nontidal wetlands;

A plan for limiting cumulative impacts to nontidal wetlands;

Water supply management; and

Flood management.

A copy of a dated application for a permit under Section 404 of the Clean Water Act;

A copy of the plans for the project which were submitted to the Corps; and

A letter from the Corps describing the project and proposed activity and stating either:

The density, but not the areal extent of the trees, is reduced;

No more than 30 percent of the understory is removed; and

Clearing is in conformance with the applicable Type I and/or Type II Tree Conservation Plan;

Above and underground utilities;

Structures in rights-of-way;

Railroad beds;

Road beds, roadside ditches, culverts, outlet ditches, wash ponds and temporary sediment control structures;

Bridges;

Dams;

Dikes;

Levees;

Water and wastewater control structures; and

Facilities designed for stormwater management.

Less than 5,000 square feet; or

Greater than 5,000 square feet; and

The installation of utility lines including the following activities:

Utility lines do not include:

Above and underground utilities;

Structures in rights-of-way;

Railroad beds;

Road beds, roadside ditches, culverts and outlet ditches;

Bridges;

Dams;

Dikes;

Levees;

Water and wastewater control structures; and

Facilities designed for stormwater management.

Incidental to mining activities that were conducted under an approved mining plan or permit, or wetlands that have been created incidental to a mining activity, and that will be impacted during implementation of an approved reclamation plan;

As a result of the construction of an approved sediment control structure; and

For a specific purpose that will remain for a specified period of time, including wash ponds and grassed waterways.

Movement of wildlife indigenous to the nontidal wetland or adjacent water; or

Passage of normal or expected high water flow;

Structural repair and maintenance; or

Work within rights-of-way.

Receives new, relevant information; or

Has amended the regulation under which the permit was issued.

Correction of typographical errors;

Changes in frequency of monitoring by the permittee;

Changes of land ownership or permittee;

Extension or reduction of the terms or conditions of the permit;

Minor filed modifications, including substitution of comparable materials, structural realignments and sediment and erosion control corrections not affecting the design and performance of wetland protection measures or mitigation plans approved by the Department; and

Relocation of the proposed project where the adverse impact is equal to or less than originally permitted.

Applicant's name;

Location of the emergency activity;

Extent of work to be done;

Anticipated adverse impact on nontidal wetlands; and

Reason for the emergency.

Standards of Section 32-231;

Plan requirements in Section 32-233; and

Monitoring and bonding requirements in Section 32-232.

Emergent nontidal wetlands 1:1;

Scrub-shrub nontidal wetlands 2:1;

Forested nontidal wetlands 2:1;

Emergent nontidal wetlands designated as Nontidal Wetlands of Special State Concern 2:1;

Scrub-shrub nontidal wetlands designated as Nontidal Wetlands of Special State Concern 3:1; and

Forested nontidal wetlands designated as Nontidal Wetlands of Special State Concern 3:1; or

In the watershed where the nontidal wetland loss occurred;

In the drainage basin where the nontidal wetland loss occurred; or

Outside the drainage basin where the nontidal wetland loss occurred, preferably within the County.

Listed as endangered or threatened by the U.S. Fish and Wildlife Service;

Listed as endangered or threatened or species listed as in need of conservation by the Department and MDNR; or

Considered as a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department and MDNR.

After five (5) years greater than 85 percent of the site shall be vegetated by planted species approved by the Department or by a species composition agreed to by the Department;

Allowances shall be made for natural species changes as long as the plant communities are similar to those lost; and

After five (5) years, the nontidal wetland shall be dominated by native or adaptive vegetation.

Vegetated by species similar to those that are found in the nontidal wetland area that was lost or by a species composition agreed to by the Department; and

Dominated by native or adaptive vegetation.

Deed restrictions;

Conservation easements;

Deeding the created, restored or enhanced nontidal wetland to an organization or public agency capable of protecting the area in perpetuity; or

Restrictive covenants.

Language granting the Department, or any successor agency, access to the mitigation site for inspections during the construction and monitoring period of the mitigation project, if the permittee forfeits a bond and the Department decides to complete the construction of the mitigation project;

In the case of an easement agreement, language allowing assignment of a permittee's interest under the easement agreement to the Department, if the bond is forfeited and the Department decides to complete construction of the mitigation project;

An absolute prohibition on the draining, dredging, removal or filling of the created nontidal wetland site; and

Language that the restriction is perpetual, binding on the grantor's personal representative, heirs, successors and assigns and runs with the land.

A description of how the mitigation project meets the mitigation project standards in Section 32-231(k);

Photographs of the mitigation project;

The commercial source of planting stock whenever planting is required;

A description of any midcourse corrections which have been taken, or need to be taken, to implement the mitigation plan or a component thereof to meet the standards of Section 32-231(k); and

An "as-built" site design plan.

A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the acceptable bond amount accompanied by a written agreement of the bank to pay the County on demand in the event of forfeiture;

A certificate of deposit equal to the required bond issued by a bank in the State of Maryland and accompanied by a written agreement of the bank to pay the County on demand in the event of forfeiture; or

An irrevocable letter of credit that is equivalent to the required bond issued by a bank or financial institution organized or authorized to do business in the State of Maryland that expressly states that the total sum is guaranteed to be available and payable directly to the County on demand in the event of forfeiture. The irrevocable letter of credit may not expire until all mitigation and monitoring requirements have been fulfilled to the Department's satisfaction.

The grant to the Department, in trust, of a deed, by an easement or other interest in upland property owned by the permittee, that has at least the same monetary value as the selected mitigation site.

Fulfillment of mitigation requirements before the permitted activity results in a loss of nontidal wetlands.

The Department shall obtain possession of, and keep in custody; all alternative forms of security deposited by the permittee under subsection (b)(4)(A) through (C) until authorized for release. All alternative forms of security may not expire until construction of the mitigation project has been successfully completed pursuant to the approved mitigation plan, as may be modified under Section 32-233(c).

Number of acres to be mitigated;

The cost of land in the area of the mitigation site;

The proposed method of mitigation; and

Any other relevant factors, including reduction of the bond amount for projects with a high likelihood of success.

Revocation of a nontidal wetland permit;

Failure of the permittee to comply with an administrative order; or

Failure to comply with any element of the approved mitigation plan and an approved modification.

Names, addresses and telephone numbers of the principals associated with project implementation;

A proposal, if applicable, to use monetary compensation consistent with Section 32-221 to fulfill mitigation requirements;

A photograph and description of the type and acreage of the proposed nontidal wetland losses;

A description of the activity causing the nontidal wetland loss;

A description of mitigation projects proposed to fulfill the required replacement of nontidal wetland acreage and/or functions. The description shall include a project location map, showing the geographic relationship between the area of proposed nontidal wetland loss and the proposed mitigation site or sites; and

A description of the site selection process and a justification of the selection of the proposed mitigation site based on Section 32-231(h) and (j);

A description of the selected protection mechanisms required in Section 32-231(1).

Plan view scaled drawings prepared by a licensed surveyor or engineer that include:

Cross section drawing showing existing and proposed final site conditions including grade, elevation and slope;

Description of how enhancement activities will replace lost nontidal wetland acreage and functions;

If applicable, a description of how the enhancement of farmed nontidal wetlands will replace lost nontidal wetland acreage and function;

Construction schedule, which includes estimated start and completion dates;

Hydrology, which includes:

Substrate conditions, including a description of:

Vegetation to be planted, including all of the following:

A five (5) year monitoring schedule establishing responsibility for the removal of exotic and nuisance vegetation, and permanent establishment of the nontidal wetland system and its component parts. The Department shall encourage the permittee to provide for the long-term maintenance and monitoring of mitigation sites beyond the required monitoring period;

A detailed budget of the proposed mitigation project costs, including:

A description of protection mechanisms required in Section 32-231(1).

An executed deed conveying title of the selected site to the permittee;

An executed conservation easement agreement;

Written evidence of the landowner's consent for use of the selected site;

A fully executed option agreement, long-term lease agreement, sales contract for the selected site; or

Other written evidence of a possessor ownership interest in the selected site.

The name of the permittee;

Location of the mitigation project;

A description of proposed modification; and

A justification for the modification.

Number of sites evaluated. A minimum of seven (7) sites is required;

A map and description of sites rejected;

Justification of why each site was unsuitable for mitigation; and

Other information required by the Department;

Slopes immediately adjacent to the nontidal wetlands in excess of 15 percent; or

Soils adjacent to a nontidal wetland with an erodibility factor greater than 0.35 as determined by the Prince George's Soil Conservation District.

For a first offense, a fine not to exceed $10,000; or

For a second offense or subsequent offense, a fine not to exceed $25,000.

The permittee has failed to post the bond required under Section 32-232(b);

The permittee has failed to comply with the requirements of an administrative action or order under this Ordinance or for a violation of this Ordinance;

The permit application misrepresented or failed to disclose a relevant or material fact;

The requirements of the permit have been violated;

There has been substantial deviation from the plans, specifications or requirements of the permit or the Letter of Authorization;

The permittee has prevented a representative of the Department from entering the activity site to make reasonable inspections; or

The permittee's rights under the permit have not vested and new information, changes in site conditions, or amended regulatory requirements necessitate revocation or suspension.

The specific facts that warrant the suspension or revocation; and

An opportunity for the permittee to appeal the action.

Finds that public health, safety or welfare requires the emergency action; and

Promptly gives the permittee written notice of the emergency action.

The specific facts upon which the emergency action is based; and

The permittee's opportunity to be heard in accordance with subsection (c).