In this subtitle the following words have the meanings indicated. “Agricultural activity” means aquaculture and farming activities. “Agricultural activity” includes: Plowing, tillage, cropping, seeding, cultivating, and harvesting for the production of food and fiber products; and The grazing of livestock. “Best management practices” means conservation practices or systems of practices and management measures that: Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics, and sediment; and Minimize adverse impacts to the surface water and groundwater flow and circulation patterns, and to the chemical, physical, and biological characteristics of a nontidal wetland. “Compensation ratio” means the ratio of the area of wetland restored, created, or enhanced to the area of wetland for which mitigation is required. “Department” means the Department of the Environment. “Forestry activity” means planting, cultivating, thinning, harvesting, or any other activity undertaken to use forest resources or to improve their quality or productivity. “Hydrologic unit” means a drainage area within: A multilevel hierarchical drainage system established under the National Watershed Boundary Dataset as published by the U.S. Geological Survey and as amended, revised, or replaced from time to time; and Which drainage boundaries are established using hydrographic and topographic data to delineate an area of land upstream from a specific point on a river, stream, or a similar surface water. “Hydrologic unit code” means a numerical identifier that describes a hydrologic unit’s physical location and position within the drainage system hierarchy. “Instrument” means the formal written agreement between mitigation bank owners and the Department that establishes liability, performance standards, management and monitoring requirements, and the terms of bank credit approval. “Interagency review team” means an interagency group of federal, State, and local agencies that reviews documentation for, and advises the Department on, the establishment of proposed mitigation banks and the development of the instrument. “Isolated nontidal wetland” means a nontidal wetland that is not hydrologically connected, through surface or subsurface flow, to streams, tidal or nontidal wetlands, or tidal waters. “Mitigation banking” means wetland restoration, creation, or enhancement undertaken expressly for the purpose of providing compensation credits for wetland losses from future activities. “Nontidal wetland” means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. The determination of whether an area is a nontidal wetland shall be made in accordance with the publication known as the “Federal Manual for Identifying and Delineating Jurisdictional Wetlands”, published in 1989 and as may be amended. “Nontidal wetlands” do not include tidal wetlands regulated under Title 16 of this article. “Regulated activity” means any of the following activities in a nontidal wetland or within a 25 foot buffer of the nontidal wetland: The removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind; The changing of existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics; The disturbance of the water level or water table by drainage, impoundment, or other means; The dumping, discharging of material, or filling with material, including the driving of piles and placing of obstructions; The grading or removal of material that would alter existing topography; and The destruction or removal of plant life that would alter the character of a nontidal wetland. “Regulated activity” does not include an agricultural activity or forestry activity as defined in this section. “Service area” means the geographic area within which impacts can be mitigated at a specific mitigation bank, as designated in its instrument. “Soil conservation and water quality plan” means a land use plan for a farm that shows a farmer how to make best possible use of soil and water resources while protecting and conserving those resources for the future.

The General Assembly finds that nontidal wetlands play important roles in the preservation and protection of the Chesapeake Bay and other waters of the State. Nontidal wetlands serve important roles through the reduction of pollutant loadings, including excess nutrients, sediment, and toxics, the attenuation of floodwaters and stormwaters, shoreline stabilization and erosion control, waterfowl breeding and habitat for many species of fish, game and nongame birds, and mammals, including rare and endangered species, food chain support, and timber production. Many nontidal wetlands have already been lost or degraded due to the combined effects of population growth and land use. Further degradation and losses of nontidal wetlands will contribute to the decline of the Chesapeake Bay and other waters of the State. It is the intent of the General Assembly to protect the waters of the State through a comprehensive, statewide nontidal wetland program in cooperation with federal agencies, other states, and local government. The goal of the program shall be to attain no net overall loss in nontidal wetland acreage and function and to strive for a net resource gain in nontidal wetlands over present conditions. It is the intent of the General Assembly that: Waters of the State be protected; Further degradation and losses of nontidal wetlands due to human activity be prevented wherever possible; and Where unavoidable losses or degradations occur as a result of permitted human activity, these losses or degradations be offset wherever practicable and feasible through the deliberate restoration or creation of nontidal wetlands.

There is a statewide program within the Department for the conservation, regulation, enhancement, creation, monitoring, and wise use of nontidal wetlands. The Department shall: Coordinate with other State agencies, federal agencies, other states, local governments, and interested persons in the regulation of nontidal wetlands; Assist local governments in undertaking nontidal wetland management planning, including mapping, technical assistance, and expediting the permit process; Develop certification programs to ensure uniform and professional standards for the identification, delineation, functional assessment, and mitigation of nontidal wetlands; Evaluate proposed activities on nontidal wetlands and grant or deny permits or other approvals of proposed activities; Conduct watershed studies and educational programs and disseminate information concerning the nontidal wetlands program; Prepare, adopt, and periodically revise guidance maps of nontidal wetlands; Adopt standards for planning, regulating, restoring, creating, and enhancing nontidal wetlands; Purchase, restore, and create nontidal wetlands; and Conduct periodic monitoring, cumulative impact assessment, and evaluation of activities authorized under this subtitle. By December 31, 1989 the Department shall adopt final regulations necessary to administer this subtitle, in accordance with § 10-111(a) of the State Government Article.

The Department may delegate all or part of its authority under this subtitle to any county that enacts a nontidal wetland protection program by December 31, 1994 that meets at least the minimum standards adopted by the Department. After December 31, 1994, the Department may delegate all or part of its authority under this subtitle to a county that applies to the Department to initiate a nontidal wetland protection program and meets at least the minimum standards adopted by the Department. The Department shall establish a schedule for acceptance of applications from counties to initiate programs under this paragraph that provides a limited period of time once every 2 years for counties to submit their applications to the Department. A delegation in accordance with this subsection: May not be effective for more than 2 years; and May be renewed by the Department for additional 2-year periods. After an opportunity for a hearing and upon a finding that the county program is not being administered in a manner consistent with the standards adopted by the Department, the Department may withdraw program delegation. Any regulated activity undertaken by a unit of State government shall comply with the provisions of this subtitle, including the provisions of this subtitle requiring the issuance of a nontidal wetland permit by the Department. The unit is not required to have local government approval.

The following agricultural and forestry activities are exempt from the approval and mitigation requirements of this section: Agricultural activities undertaken in accordance with public drainage regulations; Agricultural and forestry activities, including the repair and maintenance of farm ponds, drainage ditches, channels, subsurface drains, causeways, bridges, or water control structures, provided that they do not drain, dredge, fill, or convert nontidal wetlands on which agricultural and forestry activities are not presently conducted; Agricultural and forestry activities on areas that have laid fallow as part of a conventional rotational cycle or due to a civil action involving ownership of the property; Agricultural and forestry activities on areas that had been set aside or taken out of production under a formal State or federal program; Forestry activities not requiring an erosion and sediment control plan; Construction or maintenance of forest roads and skid trails in accordance with best management practices; and Other activities exempted by the Department by regulation to maintain consistency with federal law. After December 31, 1990 agricultural activities conducted in nontidal wetlands that are not exempted under subsection (a) of this section require the soil conservation district to approve a soil conservation and water quality plan that contains best management practices to protect nontidal wetlands in compliance with regulations adopted by the Department in consultation with the Department of Agriculture. After December 31, 1990 forestry activities required to have an erosion and sediment control plan that are not exempted under subsection (a) of this section shall incorporate nontidal wetlands best management practices in compliance with regulations under this subtitle. After December 31, 1990 if an agricultural activity that is not exempted under subsection (a) of this section results in a loss of nontidal wetlands, the Department shall require that a soil conservation and water quality plan include mitigation for the loss within 3 years. Mitigation may include creation or restoration of nontidal wetlands or monetary compensation. In determining the extent of mitigation, the Department shall consider the benefits provided by best management practices. If the State Department of Agriculture determines in writing that mitigation will create an economic hardship that would jeopardize the continued operation of the farm, mitigation may be deferred until: The economic hardship no longer exists; The current owner or operator transfers the farm to a new owner or operator, however, the current owner or operator is responsible for mitigation; or Agricultural activities no longer take place on the nontidal wetland. The soil conservation district shall be responsible for delineating the extent of nontidal wetlands affected by agricultural or forestry activities.

The following types of activities shall be exempt from the permit requirements of this section if notice is given to the Department and best management practices are implemented: Activities which normally occur in nontidal wetlands with minimal impact on nontidal wetlands, including the repair and maintenance of existing structures, utilities, including underground utilities, rights-of-way, and railroad beds; or Activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. After December 31, 1990 a person may not conduct a regulated activity without first obtaining a permit from the Department. In addition to obtaining a permit, a person shall comply with all other pollution control, flood hazard reduction, sediment control, stormwater management, local zoning, and other applicable federal, State, and local regulations. To apply for a permit, the applicant shall submit a delineation of the affected nontidal wetlands and all other information as required by the Department. Within 45 days from receipt of the application, the Department shall notify the applicant whether the application is complete and the delineation is correct. If the Department fails to notify the applicant about the application or delineation within 45 days, the delineation shall be treated by the Department as correct and the application shall be treated as complete. The Department may request further information or provide for an extension of this deadline when extenuating circumstances prevent consideration of the application. After receipt of a complete application, under the procedures of § 5-204(b) through (e) of this title the Department shall issue public notice of an opportunity to submit written comments or to request a hearing. A hearing shall be held within 45 days if requested, unless extenuating circumstances justify an extension of time. The hearing is not a contested case under the State Government Article. In granting a permit, the Department may impose conditions or limitations required to carry out the provisions of this subtitle. The Department may require a bond or other instrument to secure compliance with the conditions in the permit. The Department may issue a temporary emergency permit for a regulated activity if: An unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted; and The anticipated threat or loss may occur before a permit can be issued or modified as provided under this subtitle. By December 31, 1989 the Department shall designate by regulation nontidal wetlands for which the buffer is to be expanded beyond 25 feet, but the total buffer may not exceed 100 feet, to assure adequate protections from adjacent activities or conditions which may adversely affect the nontidal wetland and associated aquatic ecosystem. Activities or conditions where the buffer may be expanded beyond 25 feet include the presence of slopes, highly erodible soils or other soils with development constraints, or the presence of nontidal wetlands of special State concern. The Department shall grant, deny, or condition a permit within 45 days of a public hearing or within 60 days of the receipt of a completed application if no hearing is held. After notifying the applicant, the Department may extend its action beyond these time periods for an additional 30 days for extenuating circumstances.

The Department may not issue a nontidal wetland permit for a regulated activity unless the Department finds that the applicant has demonstrated that the regulated activity: Is water dependent and requires access to the nontidal wetland as a central element of its basic function; or Is not water dependent and has no practicable alternative; Will minimize alteration or impairment of the nontidal wetland, including existing topography, vegetation, fish and wildlife resources, and hydrological conditions; Will not cause or contribute to a degradation of groundwaters or surface waters; and Is consistent with any comprehensive management plan that may be developed in accordance with § 5–908 of this subtitle. The applicant shall demonstrate to the satisfaction of the Department that practicable alternatives have been analyzed and that the regulated activity has no practicable alternative. In evaluating whether the proposed regulated activity has a practicable alternative, the Department shall consider: Whether the basic project purpose cannot be reasonably accomplished utilizing one or more other sites in the same general area that would avoid or result in less adverse impact on nontidal wetlands; Whether a reduction in the size, scope, configuration, or density of the project as proposed and all alternative designs that would result in less adverse impact on the nontidal wetland would not accomplish the basic purpose of the project; In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure, or parcel size, whether the applicant has made reasonable attempts to remove or accommodate these constraints; and The economic value of the proposed regulated activity in meeting a demonstrated public need in the area and the ecological and economic value associated with the nontidal wetland.

In cooperation with other State, local, and federal agencies, the Department may prepare comprehensive watershed management plans which address nontidal wetland protection, creation, and restoration, cumulative impacts, flood protection, and water supply concerns. Completed watershed management plans will be used as the basis for consistent permitting decisions and creating and restoring nontidal wetlands.

An applicant shall take all necessary steps to first avoid significant impairment and then minimize losses of nontidal wetlands. If the applicant demonstrates to the Department’s satisfaction that all necessary steps were taken and losses or significant impairment of nontidal wetlands are unavoidable, the Department shall require the applicant to adopt mitigation practices. By December 31, 1989 the Department, consistent with the goals established in § 5–902 of this subtitle, shall adopt by regulation standards and procedures for the mitigation of nontidal wetlands losses, including practices for nontidal wetland creation, restoration, enhancement, or monetary compensation. The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation may not be a substitute for the requirement to avoid and minimize nontidal wetland losses. There is a Nontidal Wetland Compensation Fund in the Department. The following money shall be deposited in the Fund: Any monetary compensation paid by an applicant instead of engaging in the creation, restoration, or enhancement of a nontidal wetland; and Any civil or criminal penalty imposed by a court in accordance with § 5–911 of this subtitle. Funds in the Nontidal Wetland Compensation Fund may be used only for the creation, restoration, or enhancement of nontidal wetlands, including: Acquisition of land; Acquisition of easements; Maintenance of mitigation sites; Purchase of credits in mitigation banks; and Contractual services necessary to accomplish the intent of this paragraph. Funds credited and any interest accrued to the Fund: Shall remain available until expended; and May not be reverted to the General Fund under any other provision of law. At the end of the fiscal year, the Department shall prepare an annual report on the Nontidal Wetland Compensation Fund that includes an accounting of all financial receipts and expenditures to and from the Fund and shall provide a copy of the report to the General Assembly, as provided under § 2–1257 of the State Government Article.

The General Assembly declares that: In the application review process, one of the primary mitigation issues is locating the most beneficial area to conduct wetland restoration, creation, or enhancement; Where unavoidable losses or degradations occur as a result of permitted human activity, there exists a sequential process for mitigation site location which includes consideration of on–site alternatives where it may be environmentally preferable; Mitigation banking, which allows a person to restore, enhance, or create a functional wetland ecosystem, may offer a sound mitigation alternative and may provide an opportunity to contribute to the goal of no net loss in wetlands acreage and function; and Mitigation banking may not alter the regulatory requirements of § 5–907 of this subtitle. The Department shall develop standards and adopt regulations for the creation of wetland mitigation banks, including: The types and locations of wetlands to be restored, created, or enhanced and the types and locations of wetlands to be filled for which a person may obtain credit through a mitigation bank; The types and number of credits available through the bank to offset losses by acreage and by function of a wetland to be filled; The method of wetland construction, supervision, and maintenance to be required of a bank owner seeking to obtain credit for use of the bank; Maintenance requirements; Monitoring requirements; Bonding requirements, to include assurance of wetland function; Reporting requirements to the Department; Consistency with developed watershed plans, forest conservation, local growth management policies, and local comprehensive plans; Requirements for the protection in perpetuity of mitigation banks, through methods that include easements, covenants, or similar mechanisms, that shall be in place at the time credits are withdrawn; and Public notice and comment requirements, including opportunity for public review and comment on any specific wetland bank. The standards and regulations adopted by the Department under this section shall ensure that: The provisions of § 5–907 of this subtitle, including the avoidance, alternative analysis, and minimization of disturbance of nontidal wetlands, are fully adhered to; The goals of § 5–902 of this subtitle to attain no net overall loss in nontidal wetland acreage and function and to strive for a net resource gain are achieved; The potential for on–site mitigation is considered whenever it may be environmentally preferable; Mitigation through a mitigation bank shall be accomplished in service areas: Determined by the Department in coordination with an interagency review team; and That are consistent with federal guidelines; and For purposes of item (4) this subsection, a service area: Is the same 8 digit hydrologic unit code watershed in which the mitigation bank is located; and May be expanded to include other 8 digit hydrologic unit code watersheds if environmentally justified. This section may not be construed to require the Department to: Establish or fund State mitigation banks; Fund the establishment of mitigation banking by the private sector; or Use State lands for mitigation banking. The Department may establish mitigation banking through and with the cooperation of the private sector and may use State lands for mitigation banking sites.

The enforcement provisions in this section are in addition to any other applicable provisions in this title. In addition to the enforcement authority granted the Department, the enforcement provisions of this section may be exercised by any county that has program delegation authority. The Department may revoke a permit for cause, including violation of permit conditions, obtaining a permit by misrepresentation, failing to disclose a relevant or material fact, or change in conditions. The Department shall notify the violator in writing and provide an opportunity for a hearing. The Department may issue a stop work order against any person who violates any provision of this subtitle or any regulation, order, or permit under this subtitle related to a regulated activity. A person who violates any provision of this subtitle or any regulation, order, or permit under this subtitle is liable for a penalty not exceeding $10,000, which may be recovered in a civil action brought by the Department. Each day a violation continues is a separate violation under this subsection. The court may issue an injunction requiring the person to cease the violation and restore the area unlawfully disturbed. A person who violates any provision of or fails to perform any duty imposed by this subtitle or by a regulation, order, or permit under this subtitle is guilty of a misdemeanor and on conviction is subject to: For a first offense, a fine not exceeding $10,000; or For a second or subsequent offense, a fine not exceeding $25,000. The court may order the person to restore the area unlawfully disturbed.