The Forest Conservation Act of 1991 requires units of local government with planning and zoning authority to establish and implement local forest conservation programs, and provides for the Department's administration of forest conservation requirements, in the absence of a local forest conservation program. The Forest Conservation Act of 1991 also provides that this subtitle include a model ordinance and guidance manual to: Establish standards of performance required in forest stand delineations and forest conservation plans; and Assist persons in developing the required forest stand delineations and forest conservation plans. The forest stand delineation and forest conservation plans implement forest conservation, reforestation, and afforestation requirements for certain land use categories and certain regulated activities established in Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland. This subtitle implements the provisions of Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland, by providing for a local forest conservation program and the State forest conservation program, and provides guidance to units of local government with planning and zoning authority, by incorporating a Model Forest Conservation Ordinance. Recommendations, references, and guidance on the preparation of forest stand delineations and forest conservation plans are available for local jurisdictions to utilize in locally adopted and approved forest conservation programs and for persons subject to the State Forest Conservation Program in the State Forest Conservation Technical Manual. The terms in §B of this regulation have the meanings indicated. Terms used in this subtitle apply to both the local program and the State program. Terms not defined in this regulation have the meanings given to them in Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland. Terms Defined. “Afforestation” means the: Establishment of a forest on an area on which forest cover has been absent for a long period of time; or Planting of open areas which are not presently in forest cover. “Agricultural support building” means a building other than a human residence necessary to sustain an agricultural activity. “Applicant” means a person who: Is applying for: Subdivision approval; A grading or sediment control permit; or Project plan approval if the applicant is a State or local agency; or Has received approval of a forest stand delineation or forest conservation plan. “Approved forest management plan” means a document: Approved by the Department's forester assigned to the county in which the property is located; and Which operates as a protective agreement for forest conservation as described in Natural Resources Article, §5-1607(e) and (f), Annotated Code of Maryland. “Approving authority” means: The Department of Natural Resources for subdivision, project plans, grading, or sediment control activities proposed by a local or State agency; or A unit of government responsible for reviewing subdivision, project plans, grading, or sediment control plans within the local jurisdiction. “Assistant Secretary” means the Assistant Secretary of Resource Management Services in the Department of Natural Resources. Repealed. “Champion tree” means the largest tree of its species within the United States, the State, county, or municipality. Repealed. “Critical habitat area” means a critical habitat for an endangered species and its surrounding protection area. A critical habitat area: Is likely to contribute to the long-term survival of the species; Is likely to be occupied by the species for the foreseeable future; and Constitutes habitat of the species which is considered critical under Natural Resources Article, §4-2A-06 or 10-2A-06, Annotated Code of Maryland. “Critical habitat for endangered species” means a habitat occupied by an endangered species as determined or listed under Natural Resources Article, §4-2A-04 or 10-2A-04, Annotated Code of Maryland. “Declaration of intent” means a document required under Regulation .05 of this chapter which is a signed and notarized statement by a landowner or the landowner's agent certifying that the activity on the landowner's property: Is for certain activities exempted under this subtitle or Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland; Does not circumvent the requirements of this subtitle or Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland; and Does not conflict with the purposes of any other declaration of intent. “Department” means the Department of Natural Resources, except within the Model Ordinance under COMAR 08.19.03 when it is defined as the department charged with implementing the local forest conservation program. Development Project. “Development project” means the grading or construction activities occurring on areas of 40,000 square feet or greater. “Development project” includes redevelopment. “Development project completion” means, for the purposes of implementing afforestation and reforestation requirements or completing payment into a fund: The release of the development bond, if required; Acceptance of the project's streets, utilities, and public services by the local authority; or A designation by the State or local authority that a: Development project has been completed; or Particular stage of a staged development project, including a planned unit development, has been completed. “Director” means the Director of the Forest Service in the Department. “Extenuating circumstances” means conditions requiring extension of a set time limit to: Process an application; Render a decision; or Conduct a public hearing. “Forest conservancy district board” means the forestry board created for each State forest conservancy district under Natural Resources Article, §§5-601—5-610, Annotated Code of Maryland. “Forest Conservation and Management Agreement” means an agreement as stated in Tax-Property Article, §8-211, Annotated Code of Maryland. Repealed. “Forest management plan” means a plan establishing best conservation and management practices for a landowner in assessment of the resource values of forested property. “Forest mitigation bank” means an area of land which has been intentionally afforested or reforested for the express purpose of providing credits for afforestation and reforestation requirements. “Forest mitigation bank agreement” means an agreement entered into by an individual owning a forest mitigation bank and the Department, or local government with an approved local program, which commits the banker to certain procedures and requirements when creating and operating the forest bank. “Forest mitigation bank plan” means a plan for approval of a forest mitigation bank submitted to the Department, or a local government having an approved local program, by an individual proposing to establish a forest mitigation bank. “Growing season” means the period of consecutive frost-free days as stated in the current soil survey for each county published by the National Cooperative Soil Survey Program, 16 U.S.C. §590(a)—(f). “Landscaping plan” means a plan: Drawn to scale, showing dimensions and details for reforesting an area at least 35 feet wide and covering 2,500 square feet or greater in size; Using native or indigenous plants when appropriate; and Which is made part of an approved forest conservation plan. “Local agency” means each unit of local government in the executive, legislative, or judicial branch of a county or municipal government, including an office or department of public works. “Local authority” means the unit of local government charged with adopting or implementing the local program. “Local program” means the forest conservation program adopted and administered by a unit of local government having planning and zoning authority and approved by the Department. “Lot” means a unit of land, the boundaries of which have been established by subdivision of a larger parcel, and which will not be the subject of further subdivision, as defined by Natural Resources Article, §5-1601, Annotated Code of Maryland, and this subtitle, without an approved forest stand delineation and forest conservation plan. “Maintenance agreement” means the short-term management agreement associated with afforestation or reforestation plans required under Natural Resources Article, §5-1605(c)(9), Annotated Code of Maryland. “Minor development project” means a project which is: On less than 5 acres of land containing not more than four lots per acre; A minor subdivision as defined in the approved local forest conservation program; or Defined in the approved local forest conservation program as substantively similar to §B(29)(a) of this regulation. “Municipality” means a municipal corporation. “Offsite” means outside the limits of the area encompassed by a tract. “Onsite” means within the limits of an area encompassed by a tract, including an area classified as a 100-year floodplain. “Priority funding area” means an area designated as a priority funding area under §5-7B-02 of the State Finance and Procurement Article. “Project plan” means a construction, grading, or sediment control activity on an area of 40,000 square feet or greater, conducted by a local or State agency. “Public utility” means any: Transmission line or electric generating station; or Water, sewer, electric, gas, telephone, or television cable service line. “Qualified professional” means a person who meets the requirements of COMAR 08.19.06.01A. “Regulated activity” means any of the following activities when that activity occurs on a unit of land which is 40,000 square feet or greater: Subdivision; Grading; An activity that requires a sediment control permit; or Project plan of a State or local agency. “Secretary” means the Secretary of Natural Resources. “Sediment control permit” means the authorization of an activity regulated under a sediment control plan as provided in Environment Article, Title 4, Annotated Code of Maryland. “State agency” means a unit in the executive, legislative, or judicial branch of the State government or a unit that is created by public general law and operates in at least two counties. “State program” means the State forest conservation program administered by the Department. “Stream restoration project” means an activity that: Is designed to stabilize stream banks or enhance stream function or habitat located within an existing stream waterway, or floodplain; Avoids and minimizes impacts to forests and provides for replanting on-site an equivalent number of trees to the number removed by the project; May be performed under a municipal separate storm sewer system permit, a watershed implementation plan growth offset, or another plan administered by the local government to achieve or maintain water quality standards; and Is not performed to satisfy stormwater management, wetlands mitigation, or any other regulatory requirement associated with proposed development activity. “Subdivision” means any division of a unit of land into two or more lots or parcels for the purpose, whether immediate or future, of transfer of ownership, sale, lease, or development. Timber Harvesting. “Timber harvesting” means a tree-cutting operation affecting 1 or more acres of forest or developed woodland within a 1-year interval that disturbs 5,000 square feet or more of forest floor. “Timber harvesting” does not include grubbing and clearing of root mass. “Tract” means property or unit of land subject to an application for a grading or sediment control permit, subdivision approval, project plan approval, or areas subject to this subtitle. “Tract for a planned unit development” means the entire property subject to a planned unit development. Variance. “Variance” means relief from Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. “Variance” does not mean a zoning variance. “Watershed” means all land lying within an area described as a subbasin in water quality regulations adopted by the Department of the Environment under COMAR 26.08.02.08. Exemptions. The provisions of this subtitle do not apply to: Highway construction activities under Natural Resources Article, §5-103, Annotated Code of Maryland; Areas governed by the Chesapeake Bay Critical Area Protection Law, Natural Resources Article, §§8-1801—8-1817, Annotated Code of Maryland, including those areas into which Critical Area forest protection measures have been extended under Natural Resources Article, §5-1602(c), Annotated Code of Maryland; Commercial logging and timber harvesting operations, including harvesting subject to the forest conservation and management program under Tax-Property Article, §8-211, Annotated Code of Maryland, that are completed on or after July 1, 1991, on property which: Has not been the subject of an application for a grading permit for development within 5 years after the logging or timber harvesting operation, and after which time the property shall be subject to this subtitle; and Is the subject of a declaration of intent as provided for in Regulation .05 of this chapter which includes a sketch map of the property showing the area to be harvested; Agricultural activities not resulting in a change in land use category, including agricultural support buildings and other related structures built using accepted best management practices, except that a person who is engaging in an agricultural activity clearing 40,000 square feet or greater of forest within a 1-year period may not receive an agricultural exemption unless the person files a declaration of intent as provided for in Regulation .05 of this chapter which includes: A statement that the landowner or landowner's agent will practice agriculture on that portion of the property for 5 years from the date of the declaration; and A sketch map of the property, which shows the area to be cleared; The cutting or clearing of public utility rights-of-way licensed under Public Utilities Article, §§7-207 and 7-208 or 7-205, Annotated Code of Maryland, or land for electric generating stations licensed under Public Utilities Article, §§7-207 and 7-208 or 7-205, Annotated Code of Maryland, if: Required certificates of public convenience and necessity have been issued under Natural Resources Article, §5-1603(f), Annotated Code of Maryland; and Cutting or clearing of the forest is conducted to minimize the loss of forest; Routine maintenance or emergency repairs of public utility rights-of-way licensed under Public Utilities Article, §§7-207 and 7-208 or 7-205, Annotated Code of Maryland; Except for a public utility subject to §A(6) of this regulation, any routine maintenance or emergency repairs of a public utility right-of-way if: The right-of-way existed before the effective date of a State or local program; or The right-of-way's initial construction was approved under this subtitle; A residential construction activity that is conducted on an existing single lot of any size of record at the time of application, or a linear project not otherwise exempted under §A(5), (6), or (7) of this regulation, if the activity: Does not result in the cumulative cutting, clearing, or grading of more than 20,000 square feet of forest; Does not result in the cutting, clearing, or grading of a forest that is subject to the requirements of a previous forest conservation plan approved under this subtitle; and Is the subject of a declaration of intent filed with the Department or local authority, as provided for in Regulation .05 of this chapter, stating that the lot will not be the subject of a regulated activity within 5 years of the cutting, clearing, or grading of forest; Strip mining or deep mining of coal regulated under Environment Article, Title 15, Subtitle 5 or 6, Annotated Code of Maryland; Noncoal surface mining regulated under Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland; An activity required for the purpose of constructing a dwelling intended for the use of the owner, or a child of the owner, if the activity: Does not result in the cutting, clearing, or grading of more than 20,000 square feet of forest; and Is the subject of a declaration of intent, as provided for in Regulation .05 of this chapter, stating that the lot will not be the subject of further subdivision or a regulated activity within 5 years of the cutting, clearing, or grading of forest; A county that has and maintains 200,000 acres or more of its land area in forest cover and which has met the provisions of COMAR 08.19.02.01B or D, and a municipality within an exempt county that has assigned its obligations to the county under Natural Resources Article, §5-1603(a)(3), Annotated Code of Maryland, and COMAR 08.19.02.01C or D; A preliminary plan of subdivision or a grading or sediment control permit approved before July 1, 1991; A planned unit development that, by December 31, 1991, has: Met all local requirements for planned unit development approval; and Obtained initial development plan approval by the appropriate local planning or zoning authority; A real estate transfer to provide a security, leasehold, or other legal or equitable interest, including a transfer of title, in a portion of a lot or parcel, if: The transfer does not involve a change in land use, or new development or redevelopment, with associated land-disturbing activities; and Both the grantor and grantee file a declaration of intent as provided for in Regulation .05 of this chapter; An activity on a previously developed area covered by impervious surface and located in the priority funding area; Maintenance or retrofitting of a stormwater management structure that may include clearing of vegetation or removal and trimming of trees, so long as the maintenance or retrofitting is within the original limits of disturbance for construction of the existing structure, or within any maintenance easement for access to the structure; or Stream restoration project, as described regulation .03 of this Chapter, for which the applicant for a grading or sediment control permit has executed a binding maintenance agreement of at least 5 years with the affected property owner or owners. Application. The provisions of this subtitle apply to: A unit of local government having planning and zoning authority, required to adopt a local program; Under COMAR 08.19.04, any construction, project plan, grading, or sediment control activity, except for an activity regulated under Natural Resources Article, §5-103, Annotated Code of Maryland, on areas 40,000 square feet or greater by: A State agency, or A unit of county government, municipality, or other political subdivision, including a public utility or public works project; A person filing application for a subdivision, grading, or sediment control permit on areas of 40,000 square feet or greater, including public utility construction not exempt under §A of this regulation, after the dates provided for in §C of this regulation. Except as provided in §D of this regulation, on or after January 1, 1993, or the effective date of a local program, whichever is earlier, the local jurisdiction or other approving authority may not approve an application for subdivision or grading or sediment control plan approval that is not accompanied by an approved forest conservation plan. Effective Date. The absence of an approved forest conservation plan does not prevent a local jurisdiction or other approving authority from approving an application for final plat or equivalent approval, as this term is defined by the local jurisdiction and approved by the Department, if the application is: Filed before January 1, 1993, or the effective date of a local program, whichever is earlier; and Substantively complete for final determination under applicable criteria other than forest conservation requirements. For the purpose of §D(1) of this regulation, a local jurisdiction shall consider an application to be substantively complete even if an approval or permit from another government agency that is required as part of the application has not been obtained, if the local jurisdiction determines that the approval or permit is not available solely because of the inaction of the other government agency and not because the applicant has failed to use best efforts to obtain the approval or permit. A person who has obtained final plat or equivalent approval, or has filed an application that satisfies this section, before January 1, 1993, or the effective date of a local program, whichever is earlier, is not required to file a forest conservation plan with a subsequent application for sediment or grading plan approval for the tract to be developed according to the final plat or equivalent approval. The purpose of the declaration of intent is to verify that the proposed activity is exempt under Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland, and this subtitle. A person seeking an exemption under Regulation .04A(3), (4), (8), (11), and (15) shall file a declaration of intent with the approving authority. The declaration of intent is effective for 5 years. The existence of a declaration of intent does not preclude another exempted activity on the property subject to a declaration of intent, if the activity: Does not conflict with the purpose of any existing declaration of intent; and Complies with the applicable requirements for an exempted activity. If a regulated activity on the area covered by the declaration of intent occurs within 5 years of the effective date of the declaration of intent: There shall be an immediate loss of exemption; and There may be a noncompliance action taken by the Department or local authority, as appropriate, under this subtitle. An applicant may apply for a regulated activity on that area of the property not covered under the declaration of intent if the requirements of this subtitle are satisfied. The Department or local authority may require a person failing to file a declaration of intent or found in noncompliance with a declaration of intent to: Meet the requirements in this subtitle for a regulated activity; Pay a noncompliance fee of 30 cents per square foot of forest cut or cleared under the declaration of intent; Be subject to other enforcement actions appropriate under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle; or File a declaration of intent with the Department or local authority. In its determination of appropriate enforcement action, the Department or local authority may consider whether failure to file a declaration of intent by a person required to file is a knowing violation of this subtitle. A local program may substitute for the declaration of intent a procedure that assures that exempted activities do not circumvent the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. Commercial Logging and Timber Harvesting. The requirement for a declaration of intent may be satisfied by a forest management plan for the entire tract prepared by a forester licensed in Maryland according to Business Occupations and Professions Article, Title 7, Annotated Code of Maryland, which outlines management practices needed to meet the stated objectives for a minimum of 5 years. Agricultural Activities or Commercial Logging and Timber Harvesting. A declaration of intent may be part of an amended sediment and erosion control plan which ensures that the activity meets the conditions for an exemption as stated in Regulation .04A(3) or (4) of this chapter. Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .02 amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 945) Regulation .03B amended effective November 22, 1993 (20:23 Md. R. 1803); July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 945); August 20, 2001 (28:16 Md. R. 1481); February 3, 2014 (41:2 Md. R. 90) Regulation .04A amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 945); August 20, 2001 (28:16 Md. R. 1481); November 2, 2009 (36:22 Md. R. 1723); February 3, 2014 (41:2 Md. R. 90) Regulation .05J, K adopted effective July 1, 1996 (23:13 Md. R. 941) A unit of local government having planning and zoning authority: Shall adopt, by December 31, 1992, a local forest conservation program which meets or is more stringent than the requirements and standards of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle; or May assign its obligation to its county, under Natural Resources Article, §5-1603(a)(3), Annotated Code of Maryland, if it is a municipality and if the county and the Department concur. Except as provided under §D of this regulation, a county which, after July 1, 1991, has 200,000 acres or more of forest cover, may request an exemption if the: County submits to the Department a letter signed by the appropriate county official requesting an exemption; and Department confirms that the county has 200,000 acres or more based on data from the Maryland Office of Planning or the Department's forest resource inventory provided for in COMAR 08.19.06.04. A municipality in a county exempted under §B of this regulation: Is not considered exempt unless it has assigned its obligations to its county under Natural Resources Article, §5-1603(a)(4), Annotated Code of Maryland; and May continue its exempt status without assigning its obligations every 2 years if the county: Retains its exemption; and Concurs with the assignment. The counties of Allegany and Garrett, including the municipalities in each county: Are exempt from §§A of this regulation; and May continue the exemption during the time the counties maintain 200,000 acres or more of forest cover based on data from the Maryland Office of Planning or the Department's forest resource inventory, provided for in COMAR 08.19.06.04. A county or municipality exempt under §§B—D of this regulation may at any time submit a local Forest Conservation Program to the Department for approval under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland. A local authority shall submit a proposed forest conservation program to the Department, for the Department's review and approval, which meets or is more stringent than the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland. General Criteria. The forest conservation program of a local authority shall include: A policy document that contains a brief overview of the purpose and intent of the program; The requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and the elements of each Article of the Model Forest Conservation Ordinance provided in COMAR 08.19.03 enacted in substantively similar form as: Local law, regulation, or ordinance; or Amendments to existing local laws, regulations, or ordinances; A technical manual which: Adopts standards of Natural Resources Article, §§5-1601—5-1613, Annotated Code of Maryland, and this regulation, for approval of forest stand delineation and forest conservation plans; and May be modeled after the State Forest Conservation Technical Manual; An explanation of how the local code provisions are consistent with Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland; A certification by the chief legal officer of the local authority or the chief executive officer that thresholds and standards have been adopted as stated in Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland; and Any other provisions necessary to implement the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle. Under the administrative review, approval, and appeal procedures, the local authority shall demonstrate that: The review process for the forest stand delineation, simplified forest delineation plan, or substitute plan permitted under Natural Resources Article, §5-1604(b)(2), Annotated Code of Maryland, and the forest conservation plan is consistent with the local development review process; Approval of a subdivision, project plan, or issuance of either a grading or sediment control permit, is contingent upon the approval of a forest conservation plan; and The hearing and appeal procedures are consistent with the local appellate review procedures. The local authority may provide incentives including: Cost share programs for forest management; Tax incentives; Information about State and federal programs; Provisions for forest mitigation banks; and Other provisions for conservation of forests that are consistent with Natural Resources Article, §§5-1601—5-1612, and the local comprehensive land use plan and that are approved by the Department. Effective Date Criteria. For the purpose of COMAR 08.19.01.04D, a local jurisdiction shall cross-reference as part of its forest conservation program those other current local criteria for final subdivision, project plan, grading, or sediment and erosion control plan approval that apply to a determination of substantive completeness of an application. The Department is responsible for assuring that the information referenced in §E(1) of this regulation is available for affected parties on or before July 1, 1992. Activities which are granted an exemption from the local program are limited to those activities that: Are designated in COMAR 08.19.01.04A; Meet criteria established in the local program approved by the Department that demonstrate that the activities meet the: Thresholds and standards for forest retention and protection as set forth in Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland; and Standards for sensitive areas protection as established under Article 66B, §§3.05—3.06, Annotated Code of Maryland, and adopted in a local land use plan as defined in Article 66B, §1.00(f), Annotated Code of Maryland. Protective measures required by this subtitle include: A 2-year maintenance agreement for afforestation and reforestation projects; Long-term measures to retain as forest all land forested, afforested, or reforested, including but not limited to protective agreements such as conservation easements, approved forest management plans, Forest Conservation and Management Agreements, deed restrictions, covenants, or land trusts; and A final development plat or subdivision document which shows the areas held under those protective measures. Variance. The local program shall contain a provision that: Notice of a variance request shall be given to the Department within 15 days of the local program's receipt of the request; and Establishes the right and authority of the Department to initiate or intervene in an administrative, judicial, or other original proceeding or appeal in the State concerning an approval of a variance under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. Local Forest Conservation Fund. A local forest conservation fund may be established for: Payments by a person made instead of afforestation or reforestation after demonstrating to the satisfaction of the local authority that the requirements of afforestation or reforestation onsite or offsite cannot be reasonably accomplished and appropriate credits generated by a forest mitigation bank in the same county or watershed are not available; and Fines collected from persons in noncompliance with this subtitle or Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland. Money deposited in a local forest conservation fund under §I(1)(a) of this regulation may only be used for the costs associated with afforestation or reforestation, including costs directly related to site identification, acquisition, preparation, maintenance of existing forests, and achieving urban canopy goals. Money deposited in a local forest conservation fund under §I(1)(b) of this regulation may be used by the local authority for the purpose of implementing this subtitle. If the local authority does not establish a forest conservation fund, the local authority: Shall provide written notice to an applicant that the applicant shall demonstrate to the satisfaction of the Department and local authority that reforestation or afforestation onsite or offsite cannot be reasonably accomplished; Shall forward the tentatively approved forest conservation plan to the Department for final review before a determination that the payment into the Department's fund may be permitted; and May not provide final approval of the applicant's forest conservation plan and the applicant may not deposit money into the Department's fund, until the Department has given notice to the local authority that the Department concurs that afforestation and reforestation cannot be reasonably accomplished. A local authority that has an established forest conservation fund shall provide to the Department and make available to the public: A general plan identifying appropriate and potentially available areas for mitigation projects; and Detailed accounting procedures for accurately tracking money received into and expended out of the forest conservation fund. The local authority may include the following process for submittal of a forest conservation plan: A preliminary forest conservation plan, which shall be reviewed at the first formal stage in the review process; and A final forest conservation plan, which shall be reviewed with the final subdivision or site plan as provided in Natural Resources Article, §5-1605(d), Annotated Code of Maryland. The local authority may allow an applicant to file the forest stand delineation and the forest conservation plan in a single submittal if the following requirements are met: The procedure is limited to minor development projects; and The local authority demonstrates that the procedure: Is consistent with the procedural requirements in Natural Resources Article, §§5-1604 and 5-1605, Annotated Code of Maryland, and this subtitle; and Complies with the standards and requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. The local program may substitute for the declaration of intent a procedure that assures exempted activities do not circumvent the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. Forest Stand Delineations. A local program may include other requirements than those referenced in Natural Resources Article, §5-1604(b)(1)—(3), Annotated Code of Maryland, for the approval of a forest stand delineation, if the following conditions are met: The standards of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle are met; and The forest stand delineation, simplified forest stand delineation, or substitute plan permitted under Natural Resources Article, §5-1604(b)(2), Annotated Code of Maryland, is: Conducted on the entire site; and Used during the local preliminary review process to determine the most suitable and practical areas for forest conservation. A local program may adopt the standards for forest stand delineations in COMAR 08.19.04 or procedures as described in the State Forest Conservation Technical Manual. Linear Project Applications. A local authority may adopt standards and requirements for linear project applications if the following conditions are met: The local authority demonstrates to the Department that the standards and requirements are consistent with Natural Resources Article, §§5-1601—5-1613, Annotated Code of Maryland, and this subtitle; The projects are limited to those defined in COMAR 08.19.01.03B; The net tract area of a linear project is consistent with the definition in COMAR 08.19.01.03B; Exemption of a linear project from submitting a forest conservation plan is consistent with 08.19.01.04A(8); and Linear project applications show priority retention and planting areas, as identified in Natural Resources Article, §5-1607(c)(d), Annotated Code of Maryland, and by the local program, adjacent to the linear project area. A local program may adopt the standards in COMAR 08.19.04 or the procedures as described in the State Forest Conservation Technical Manual. Other Forest Conservation Credits for Special Project Areas. A local program approved by the Department may include additional steps as described in this section in the priority sequence for afforestation or reforestation as authorized in Natural Resources Article, §5-1607(b)(2), Annotated Code of Maryland, for specific development projects which are located in: Municipalities which adopt a tree care protection ordinance or master plan for trees planted in public rights-of-way or planted in accordance with this regulation; An existing area as designated under an adopted local land use plan which meets the standards of Article 66B, §§3.05—3.06, Annotated Code of Maryland; or Specific areas designated in a local program subject to approval by the Department. The additional steps for afforestation or reforestation are limited to: Use of street trees if: A minimum planting area is established in accordance with tree size; The planting plan, maintenance agreement, and long-term protective agreements ensure that a continuous canopy will be maintained at maturity; and Selection of trees is determined by site constraints; or Acquisition of protective easements on existing forested areas, if: These areas are not currently protected in perpetuity by easement or other long-term protection measures as designated by §G of this regulation; and The afforestation or reforestation credit granted does not exceed 50 percent of the area of forest cover protected through the acquisition of the easement. The local program may contain provisions more stringent than the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle. Local Authority's Forest Mitigation Bank Program. A local program approved by the Department may include provisions for forest mitigation banks to be established. A forest mitigation bank may allow applicants to meet the requirements of this subtitle and Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, by purchasing credits from an approved forest mitigation bank. A local program shall require a forest mitigation bank to: Afforest or reforest an area of land in accordance with an approved forest mitigation bank agreement; Be protected by an easement, deed restrictions, or covenants which: Require the land in the bank to remain forested in perpetuity; and Are enforceable by the local authority and the Department; Limit the use of the land in the bank to those activities which are consistent with: Forest conservation such as recreational activities; Forest management pursuant to a forest conservation and management program as provided in Tax-Property Article, §8-211, Annotated Code of Maryland; or Activities specified in a forest management plan prepared by a licensed forester and approved by the local authority or the Department; Use native plant materials for afforestation or reforestation unless inappropriate; and Cause trees to be planted which: Establish or enhance forested buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet; Establish forested corridors or enhance existing forested corridors to connect existing forest, within or adjacent to the site; Establish or enhance forested areas in 100-year floodplains; Stabilize slopes of 25 percent or greater; Stabilize slopes of 15 percent or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions; Establish forest buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights-of-way; or Establish additional forest areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate. Where practical, forested corridors should be a minimum of 300 feet in width to facilitate wildlife movement. A local program shall require an individual proposing to establish a forest mitigation bank to submit a: Completed application on a form approved by the Department and which has been signed by an authorized individual in conformance with COMAR 08.19.04.02I; Forest mitigation bank plan which contains a: Vicinity map of the proposed mitigation bank site; Simplified forest stand delineation which meets the criteria in COMAR 08.19.04.02; Detailed afforestation or reforestation plan prepared by a licensed Maryland forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A which includes a timetable and description of the site and soil preparation needed, species, size, and spacing to be utilized; Proposed 2-year maintenance agreement that sets forth how the areas afforested or reforested will be maintained to ensure protection and satisfactory establishment, that complies with COMAR 08.19.04.05C(4)(a), and includes watering and reinforcement planting provisions if survival falls below required standards; Copy of the deed of the property; Survey or other legally sufficient description of the bank site for inclusion in the deeds of easement, deed restrictions, or covenants; Title report or other assurance that: The property is not encumbered by any covenants or other types of restrictions which would impair the property's use as a forest mitigation bank; and There is legally sufficient access to the forest mitigation bank site which can be used by the local government and the Department to inspect the property; and Description of the system to be used by the banker to identify and track which portions of the bank have been debited to meet an applicant's off-site afforestation or reforestation requirements. A local program shall require the owner of the mitigation bank to enter into an agreement which contains the: Approved reforestation or afforestation plan; Approved system for marking and tracking which portions of the bank have been debited; and Acknowledgment that the bank may not debit any portion of the afforested or reforested land until 2 years of successful growth have been achieved unless the banker has posted a bond or alternate form of security to ensure that trees will be cared for and maintained in perpetuity. Enforcement Notification. The local program shall contain a provision that notice of an enforcement action shall be given to the Department within 15 days after the commencement of enforcement by the local program. The local authority shall include in its application for the Department's approval: Information required in Regulation .02 of this chapter; A letter requesting approval, signed by the appropriate official; Three copies of proposed laws, ordinances, regulations, or amendments to existing laws, ordinances, or regulations, including code provisions and permit requirements, which show that the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle have been met; Three copies of the local technical manual or a statement that the local authority proposes to adopt the Forest Conservation Manual; Three copies of the proposed policy document; and The name of the person to be contacted by the Department regarding the application. The Department shall acknowledge receipt of the application in writing by regular mail. The Department shall consider an application complete if: It contains all of the information required in §A of this regulation; and The information is sufficient for the Department to process the application. The Department shall notify the local authority in writing not later than July 1, 1992, whether the program is approved. After the Department approves the program, the local authority shall: Hold hearings, unless hearings have been held before submittal to the Department for approval; and Adopt the program in accordance with its procedures for enacting a law, ordinance, or regulation, by December 31, 1992, or sooner. If the Department does not approve the proposed local program, the Department shall give notice in writing that: The application is incomplete, identifying the additional information needed; The application requires revision; and There is a specified date by which a revised application shall be submitted to the Department. A revised application shall be submitted to the Department within 2 months of the date the Department notified the local authority of the need for revisions. A local authority shall have in effect by January 1, 1993, an approved program which meets or is more stringent than the requirements and standards of this subtitle. If a local authority has not adopted a program by January 1, 1993, the Department shall assume review and approval of all forest stand delineations and forest conservation plans within the jurisdiction of that local authority. The Department shall conduct a review of each local program at least every 2 years from the date the program is approved. The review shall consist of: Documentation from the local authority which includes the: Number, location, and type of projects; Number and location of acres cleared, conserved, and planted; Amount of reforestation and afforestation fees and noncompliance penalties collected and expended, the number of acres for which the fees were collected, and the number of acres reforested, afforested, or conserved using the fees; and Number and location of forest mitigation banks approved; Field checks by the Department at development projects subject to the local program and forest mitigation banks approved by the local program; and An evaluation of compliance with the performance standards and required forest conservation measures provided in Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland. The information required by §B(1) of this regulation shall be submitted with a letter signed by the person in charge of the local program. A local authority having a proposed amendment to its program shall demonstrate to the Department's satisfaction that the proposed amendment is as stringent or more stringent than the provisions of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle. The Department may conduct a review at any time it receives information that a local program is being administered in substantial violation of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle. If the Department notifies a local authority that the authority's program is in noncompliance and the local authority has failed to comply with the terms of the notice with 90 days, the Department may do one or more of the following: Assume review and approval of all forest conservation plans and forest mitigation bank applications within the jurisdiction of the local authority until the deficiencies are corrected; On a finding by an auditor made in consultation with the Office of the Attorney General that a local authority has misappropriated local forest conservation funds, the Department may require the local authority to submit payment to the State Forest Conservation Fund for the amount of any misappropriated local forest conservation funds; and Request that the Attorney General investigate payments and expenditures of funds collected by the local authority under this subtitle. The Department's assumption of a local program does not affect the validity of a prior approval of a forest conservation plan granted by the local authority. Every 2 years, the Department shall review an exemption received by a county under Regulation .01B or D of this chapter. Loss of County's Exemption. If a county fails to maintain at least 200,000 acres of forest cover, the Department shall: Revoke the exemption status of the county, including municipalities; and Provide notice of revocation in the Maryland Register and in a daily newspaper distributed in the county. Within a county or municipality which has lost its exemption, a person who has not received final plat or equivalent approval, or who has not been issued a grading or sediment control permit for a project, is subject to the State program 60 days after the publication of the notice of revocation described in §I(1)(b) of this regulation. Within 4 months of initial publication of notice of revocation, a county and any municipality which has not assigned its obligation provided in Natural Resources Article, §5-1603(a)(3), Annotated Code of Maryland, shall submit a proposed program to the Department. Within 2 months of submission, the Department shall approve a program as submitted by the county or municipality or provide written notice of program elements needing revision. Revisions required by the Department shall be submitted to the Department within 2 months of the date the Department notified the county or municipality of the need for revisions. If a county or municipality does not adopt a local program, the Department shall continue to review and approve all forest stand delineations and forest conservation plans within that county or municipality. Appeal of Program Suspension or Revocation. If a local program is found to be deficient by the Department, the appropriate official of the local authority may request a hearing before the Secretary. The hearing is not a contested case hearing under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. A hearing request shall be in writing and filed with the Secretary within 30 days of issuance of the decision to suspend or revoke. The hearing request shall contain: The name, address, and telephone number of the person requesting the hearing; A description of the grounds for the request; A statement of the specific relief desired as a result of the hearing; An outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called; and Documentation which describes the authority of the person requesting the hearing to represent the local authority. A hearing before the Secretary shall be conducted within 60 days unless delayed because of extenuating circumstances. The decision of the Secretary, on the basis of the hearing, shall be the final decision of the Department. On or before March 1 of each year, a local government shall submit an annual report to the Department which contains the: Number, location, and types of projects permitted since the last annual report; Amount and location of acres cleared, conserved, and planted, including any areas located in the 100 year floodplain, in connection with a development project; Amount of reforestation and afforestation fees and noncompliance penalties collected and expended, the number of acres for which the fees were collected, and the number of acres reforested, afforested, or conserved using the fees; Size and location of all forest mitigation banks approved in the past year; Number of acres debited from each forest mitigation bank since the last annual report; List of the forest mitigation banks inspected since the last annual report; Costs of implementing the forest conservation program; and Number, location, and types of violations and enforcement activities conducted. The size and location of all conserved and planted forest areas shall be submitted in an electronic geographic information system or computer aided design format if possible, or if not possible, location shall be given by Maryland State Plane Grid Coordinates and 8 digit subwatershed. Natural Resources Article, §§5-1601—5-1613, Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .01A amended effective July 1, 1996 (23:13 Md. R. 941) Regulation .01C amended effective August 28, 2001 (28:16 Md. R. 1481) Regulation .02 amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 945); August 20, 2001 (28:16 Md. R. 1481); November 2, 2009 (36:22 Md. R. 1723) Regulation .02I amended effective January 24, 2011 (38:2 Md. R. 83); November 4, 2019 (46:22 Md. R. 976) Regulation .02R adopted effective January 26, 2009 (36:2 Md. R. 100) Regulation .04B amended effective June 15, 1998 (25:12 Md. R. 945); November 4, 2019 (46:22 Md. R. 976) Regulation .04F amended effective June 15, 1998 (25:12 Md. R. 945); February 3, 2014 (41:2 Md. R. 90) Regulation .05 adopted effective June 15, 1998 (25:12 Md. R. 945) Regulation .05A amended effective November 4, 2019 (46:22 Md. R. 976) Regulation .05A, B amended effective January 26, 2009 (36:2 Md. R. 100) The following Model Ordinance shall be to assist and guide in the development of a local program. This Model Ordinance will further enable each unit of local government with planning and zoning authority to determine the size, location and orientation of forest to be retained, and prioritize tracts of land for reforestation and afforestation. Although it is the intention of the Department that this chapter be liberally construed to accomplish its purpose, a local authority shall demonstrate that the substantive provisions of each article are incorporated in the local program. Some local authorities may be able to adopt this Ordinance with only minor changes appropriate to each jurisdiction. Other local authorities may choose to use elements of this Ordinance to amend existing laws, statutes, or Ordinances. Model Forest Conservation Ordinance Ordinance Number _________ An Ordinance for the purpose of prohibiting certain development projects from cutting or clearing certain forests within the Community of _________________ unless a forest stand delineation and a forest conservation plan are in effect. Purpose. In this Ordinance the following terms have the meanings indicated. “Afforestation” means: Establishment of a forest on an area from which forest cover has been absent for a long period of time; or Planting of open areas which are not presently in forest cover. “Agricultural activity” means farming activities including plowing, tillage, cropping, installation of best management practices, seeding, cultivating, and harvesting for production of food and fiber products (except commercial logging and timber harvesting operations), the grazing and raising of livestock, aquaculture, sod production, orchards, nursery, and other products cultivated as part of a recognized commercial enterprise. “Agricultural and resource areas” means undeveloped areas zoned for densities of less than or equal to one dwelling unit per 5 acres and corresponds to (Name of County) County Zoning Classification(s) _____ . “Applicant” means a person who is applying for subdivision or project plan approval or a grading or sediment control permit, or who has received approval of a forest stand delineation or forest conservation plan. “Approved forest management plan” means a document: Approved by the Department of Natural Resources forester assigned to the county in which the property is located; and Which operates as a protective agreement for forest conservation as described in the Natural Resources Article, §§5-1607(e)—(f), Annotated Code of Maryland. “Caliper” means the diameter measured at 2 inches above the root collar. “Champion tree” means the largest tree of its species within the United States, the State, county, or municipality; Repealed. “Commercial and industrial uses” means manufacturing operations, office complexes, shopping centers, and other similar uses and their associated storage areas, yarding and parking areas, and corresponds to (Name of County) County Zoning Classification(s) _______ . “Commercial logging or timber harvesting operations” means the cutting and removing of tree stems from a site for commercial purposes, leaving the root mass intact. “Critical habitat area” means a critical habitat for an endangered species and its surrounding protection area. A critical habitat area shall: Be likely to contribute to the long-term survival of the species; Be likely to be occupied by the species for the foreseeable future; and Constitute habitat of the species which is considered critical under Natural Resources Article, §§4-2A-04 and 10-2A-06, Annotated Code of Maryland. “Critical habitat for endangered species” means a habitat occupied by an endangered species as determined or listed under Natural Resources Article, §§4-2A-04 and 10-2A-04, Annotated Code of Maryland. “Declaration of intent” means: A signed and notarized statement by a landowner or the landowner's agent certifying that the activity on the landowner's property: Is for certain activities exempted under this Ordinance or Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland; Does not circumvent the requirements of this Ordinance or Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland; and Does not conflict with the purposes of any other declaration of intent; or The document required under COMAR 08.19.01.05 or this Ordinance. “Department” means the Department charged with implementing the local forest conservation program. Development Project. “Development project” means the grading or construction activities occurring on a specific tract that is 40,000 square feet or greater. “Development project” includes redevelopment. “Development project completion” means for the purposes of afforestation, reforestation, or payment into a fund: The release of the development bond, if required; Acceptance of the project's streets, utilities, and public services by the Department; or Designation by the Department or State that a: Development project has been completed; or Particular stage of a staged development project, including a planned unit development, has been completed. Forest. “Forest” means a biological community dominated by trees and other woody plants covering a land area of 10,000 square feet or greater. “Forest” includes: Areas that have at least 100 live trees per acre with at least 50 percent of those trees having a 2-inch or greater diameter at 4.5 feet above the ground and larger; and Areas that have been cut but not cleared. “Forest” does not include orchards. “Forest Conservancy District Board” means the forestry board created for each State forest conservancy district under Natural Resources Article, §§5-601—5-610, Annotated Code of Maryland. “Forest conservation” means the retention of existing forest or the creation of new forest at the levels set by the State or Department. “Forest Conservation and Management Agreement” means an agreement as stated in Tax-Property Article, §8-211, Annotated Code of Maryland. “Forest Conservation Technical Manual” means the (Name of county) County technical manual incorporated by reference, used to establish standards of performance required in preparing forest stand delineations and forest conservation plans. “Forest conservation plan” means a plan approved pursuant to Natural Resources Article, §§5-1606 and 5-1607, Annotated Code of Maryland. “Forest cover” means the area of a site meeting the definition of forest. “Forest management plan” means a plan establishing best conservation and management practices for a landowner in assessment of the resource values of forested property. “Forest mitigation bank” means an area of land which has been intentionally afforested or reforested for the express purpose of providing credits for reforestation requirements. “Forest mitigation bank agreement” means an agreement entered into by an individual owning a forest mitigation bank and the Department or local government which commits the banker to certain procedures and requirements when creating and operating the forest mitigation bank. “Forest mitigation bank plan” means a plan submitted for approval of a forest mitigation bank to the Department, or a local government with an approved local program, by an individual proposing to establish a forest mitigation bank. “Forest stand delineation” means the methodology for evaluating the existing vegetation on a site proposed for development, as provided in the (Name of County) County Forest Conservation Technical Manual. “Growing season” means the period of consecutive frost-free days as stated in the current soil survey for this county published by the National Cooperative Soil Survey Program, 16 U.S.C. §590(a)—(f). “High density residential areas” means areas zoned for densities greater than 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service, and corresponds to the (Name of County) County Zoning Classification(s) of _____ . “Institutional development area” means schools, colleges and universities, military installations, transportation facilities, utility and sewer projects, government offices and facilities, golf courses, recreation areas, parks, and cemeteries and corresponds to the (Name of County) County Zoning Classification(s) of _____ . “Intermittent stream” means a stream in which surface water is absent during a part of the year as shown on the most recent 7.5 minute topographic quadrangle published by the United States Geologic Survey as confirmed by field verification. “Landscaping plan” means a plan: Drawn to scale, showing dimensions and details for reforesting an area at least 35 feet wide and covering 2,500 square feet or greater in size; Using native or indigenous plants when appropriate; and Which is made part of an approved forest conservation plan. “Linear project” means a project which: Is elongated with nearly parallel sides; Is used to transport a utility product or public service not otherwise contained in an application for subdivision, such as electricity, gas, water, sewer, communications, trains, and vehicles; and May traverse fee simple properties through defined boundaries, or established easement rights. “Local agency” means each unit in the executive, legislative, or judicial branch of a county or municipal government, including an office or department of public works. “Lot” means a unit of land, the boundaries of which have been established by subdivision of a larger parcel, and which will not be the subject of further subdivision, as defined by Natural Resources Article, §5-1601, Annotated Code of Maryland, and this Ordinance without an approved forest stand delineation and forest conservation plan. “Maintenance agreement” means the short-term management agreement associated with afforestation or reforestation plans required under Natural Resources Article, §5-1605, Annotated Code of Maryland, and this Ordinance. “Medium density residential areas” means areas zoned for densities greater than 1 dwelling unit per 5 acres and less than or equal to 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service, and corresponds to the (Name of County) County Zoning Classification(s) of _____ . “Minor development project” means a project: On less than 5 acres of land containing not more than four lots per acre; or Substantively similar as defined by the Department and approved by the State. “Mixed use development” means a single, relatively high density development project, usually commercial in nature, which includes two or more types of uses, and corresponds to the (Name of County) County Zoning Classification(s) of _____ . “Natural regeneration” means the natural establishment of trees and other vegetation with at least 400 woody, free-to-grow seedlings per acre, which are capable of reaching a height of at least 20 feet at maturity. “Net tract area” means: Except in agriculture and resource areas, the total area of a site, including both forested and nonforested areas, to the nearest 1/10 acre, reduced by that area where forest clearing is restricted by another local ordinance or program; In agriculture and resource areas, the part of the total tract for which land use will be changed or will no longer be used for primarily agricultural activities, reduced by that area where forest clearing is restricted by another local ordinance or program; and For a linear project: The area of a right-of-way width, new access roads, and storage; or The limits of disturbance as shown on an application for sediment and erosion control approval or in a capital improvements program project description. Nontidal Wetlands. “Nontidal wetlands” means an area that is: Inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation; and Considered a nontidal wetland in accordance with the publication known as the “Federal Manual for Identifying and Delineating Jurisdictional Wetlands,” published in 1989 and as may be amended and interpreted by the U.S. Environmental Protection Agency. “Nontidal wetlands” does not include tidal wetlands regulated under Natural Resources Article, Title 9, Annotated Code of Maryland. “Offsite” means outside of the limits of the area encompassed by the tract. “Onsite” means within the limits of the area encompassed by the tract, including an area classified as a 100-year floodplain. "100-year flood" means a flood which has a 1 percent chance of being equaled or exceeded in any given year. Except for Class III waters (natural trout streams), a body of water with a watershed less than 400 acres is excluded. "100-year floodplain" means an area along or adjacent to a stream or body of water, except tidal waters, that is capable of storing or conveying floodwaters during a 100-year frequency storm event, or a 100-year flood. “Perennial stream” means a stream containing surface water throughout an average rainfall year, as shown on the most recent 7.5 minute topographic quadrangle published by the United States Geologic Survey, as confirmed by field verification. “Person” means the federal government, the State, a county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any of their affiliates, or any other entity. “Planned unit development” means a development comprised of a combination of land uses or varying intensities of the same land use in accordance with an integrated plan that provides flexibility in land use design approved by (Name of County) County with at least 20 percent of the land permanently dedicated to open space and corresponds to (Name of County) County Zoning Classification _____ . “Priority funding area” means an area designated as a priority funding area under State Finance and Procurement Article, §5-7b-02, Annotated Code of Maryland. “Project plan” means a construction, grading, or sediment control activity on an area of 40,000 square feet or greater by a local agency. “Public utility” means any: Transmission line or electric generating station; or Water, sewer, electric, gas, telephone, or television cable service line. Reforestation. “Reforestation” or “reforested” means the: Creation of a biological community dominated by trees and other woody plants containing at least 100 live trees per acre with at least 50 percent of those trees having the potential of attaining a 2-inch or greater diameter measured at 4.5 feet above the ground, within 7 years; or Establishment of a forest according to procedures set forth in the (Name of county) County Forest Conservation Technical Manual. “Reforestation” or “reforested” includes landscaping of areas under an approved landscaping plan establishing a forest at least 35 feet wide and covering 2,500 square feet or more of area. “Reforestation” or “reforested” for a linear project involving overhead transmission lines may consist of a biological community dominated by trees and woody shrubs with no minimum height or diameter criteria. “Regulated activity” means any of the following activities, when that activity occurs on a unit of land which is 40,000 square feet or greater: Subdivision; Grading; An activity that requires a sediment control permit; or Project plan of a local agency. “Retention” means the deliberate holding and protecting of existing trees, shrubs, or plants on the site according to established standards as provided in the (Name of County) County Forest Conservation Technical Manual. “Sediment control permit” means the authorization of an activity regulated under a sediment control plan as provided in Environment Article, Title 4, Annotated Code of Maryland. “Seedling” means an unbranched woody plant, less than 24 inches in height and having a diameter of less than 1/2 inch measured at 2 inches above the root collar. “Selective clearing” means the careful and planned removal of trees, shrubs, and plants using specific standards and protection measures under an approved forest conservation plan. “Stream buffer” means all lands lying within 50 feet, measured from the top of each normal bank of a perennial or intermittent stream. “Stream restoration project” means an activity that: Is designed to stabilize stream banks or enhance stream function or habitat located within an existing stream, waterway, or floodplain; Avoids and minimizes impacts to forests and provides for replanting on-site an equivalent number of trees to the number removed by the project; Maybe performed under a municipal separate storm sewer system permit, a watershed implementation plan growth offset, or another plan administered by the State or local government to achieve or maintain water quality standards; and Is not performed to satisfy stormwater management, wetlands mitigation, or any other regulatory requirement associated with proposed development activity. “Subdivision” means any division of a unit of land into 2 or more lots or parcels for the purpose, whether immediate or future, of transfer of ownership, sale, lease, or development. Timber Harvesting. “Timber harvesting” means a tree-cutting operation affecting 1 or more acres of forest or developed woodland within a 1-year interval that disturbs 5,000 square feet or more of forest floor. “Timber harvesting” does not include grubbing and clearing of root mass. “Tract” means property or unit of land subject to an application for a grading or sediment control permit, subdivision approval, project plan approval, or areas subject to this law. “Tract for a planned unit development” means the entire property subject to a planned unit development. “Tree” means a large, branched woody plant having one or several self-supporting stems or trunks that reach a height of at least 20 feet at maturity. Variance. “Variance” means relief from Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this Ordinance. “Variance” does not mean a zoning variance. “Watershed” means all land lying within an area described as a subbasin in water quality regulations adopted by the Department of the Environment under COMAR 26.08.02.08. “Whip” means an unbranched woody plant greater than 24 inches in height and having a diameter of less than 1 inch measured at 2 inches above the root collar. Except as provided in §3.2 of this article, this Ordinance applies to: A person making application for a subdivision, project plan, grading, or sediment control approval on units of land 40,000 square feet or greater after the effective date of this Ordinance; A public utility not exempt under §3.2E and F of this article; A unit of county or municipal government, including a public utility or public works project, making application for a subdivision, project plan, grading, or sediment control approval on areas 40,000 square feet or greater. This Ordinance does not apply to: Highway construction activities under Natural Resources Article, §5-103, Annotated Code of Maryland; Areas governed by the Chesapeake Bay Critical Area Protection Law, Natural Resources Article, §§8-1801—8-1817, Annotated Code of Maryland, including those areas into which Critical Area forest protection measures have been extended under Natural Resources Article, §5-1602(c), Annotated Code of Maryland; Commercial logging and timber harvesting operations, including harvesting conducted subject to the forest conservation and management program under Tax-Property Article, §8-211, Annotated Code of Maryland, that are completed: Before July 1, 1991; or After July 1, 1991, on property which: Has not been the subject of application for a grading permit for development within 5 years after the logging or harvesting operation; and Is the subject of a declaration of intent as provided for in §3.3 of this article, approved by the Department; Agricultural activities not resulting in a change in land use category, including agricultural support buildings and other related structures built using accepted best management practices, except that a person engaging in an agricultural activity clearing 40,000 square feet or greater of forest within a 1-year period, may not receive an agricultural exemption, unless the person files a declaration of intent as provided for in §3.3 of this article which includes: A statement that the landowner or landowner's agent will practice agriculture on that portion of the property for 5 years from the date of the declaration; and A sketch map of the property which shows the area to be cleared; The cutting or clearing of public utility rights-of-way licensed under Public Utility Companies, §§7-207 and 7-208 or 7-205, Annotated Code of Maryland, or land for electric generating stations licensed under Public Utility Companies, §§7-207 and 7-208 or 7-205, Annotated Code of Maryland, if: Required certificates of public convenience and necessity have been issued in accordance with Natural Resources Article, §5-1603(f), Annotated Code of Maryland; and Cutting or clearing of the forest is conducted to minimize the loss of forest; Routine maintenance or emergency repairs of public utility rights-of-way licensed under Public Utility Companies, §7-207 and 7-208 or 7-205, Annotated Code of Maryland; Except for a public utility subject to §3.2F of this article, routine maintenance or emergency repairs of a public utility right-of-way if: The right-of-way existed before the effective date of this Ordinance; or The right-of-way's initial construction was approved under this Ordinance; A residential construction activity conducted on an existing single lot of any size of record at the time of application, or a linear project not otherwise exempted under this Ordinance, if the activity: Does not result in the cumulative cutting, clearing, or grading of more than 20,000 square feet of forest; Does not result in the cutting, clearing, or grading of a forest that is subject to the requirements of a previous forest conservation plan approved under this Ordinance; and Is the subject of a declaration of intent filed with the Department, as provided for in §3.3 of this article, stating that the lot will not be the subject of a regulated activity within 5 years of the cutting, clearing, or grading of forest; Strip or deep mining of coal regulated under Environment Article, Title 15, Subtitle 5 or 6, Annotated Code of Maryland; Noncoal surface mining regulated under Environment Article, Title 15, Subtitle 8, Annotated Code of Maryland; An activity required for the purpose of constructing a dwelling house intended for the use of the owner, or a child of the owner, if the activity: Does not result in the cutting, clearing, or grading of more than 20,000 square feet of forest; and Is the subject of a declaration of intent filed with the Department, as provided for in §3.3 of this article, which states that transfer of ownership may result in a loss of exemption; A preliminary plan of subdivision or a grading or sediment control plan approved before July 1, 1991; A planned unit development that, by December 31, 1991, has: Met all requirements for planned unit development approval; and Obtained initial development plan approval by the Department; A real estate transfer to provide a security, leasehold, or other legal or equitable interest, including a transfer of title, of a portion of a lot or parcel, if: The transfer does not involve a change in land use, or new development or redevelopment, with associated land-disturbing activities; and Both the grantor and grantee file a declaration of intent, as provided for in §3.3 of this article; An activity on a previously developed area covered by impervious surface and located in the priority funding area; Maintenance or retrofitting of a stormwater management structure that may include clearing of vegetation or removal and trimming of trees, if the maintenance or retrofitting is within the original limits of disturbance for construction of the existing structure, or within any maintenance easement for access to the structure; or A stream restoration project, as defined in Article II 2.57 of this ordinance, for which the applicant for a grading or sediment control permit has executed a binding maintenance agreement of at least 5 years with the affected property owner or owners. Declaration of Intent. The purpose of the declaration of intent is to verify that the proposed activity is exempt under Natural Resources Article, §§5-103 and 5-1601—5-1612, Annotated Code of Maryland, and this Ordinance. A person seeking an exemption under §3.2C, D, H, K, and N of this article shall file a declaration of intent with the Department. The declaration of intent is effective for 5 years. The existence of a declaration of intent does not preclude another exempted activity on the property subject to a declaration of intent, if the activity: Does not conflict with the purpose of any existing declaration of intent; and Complies with the applicable requirements for an exempted activity. If a regulated activity on the area covered by the declaration of intent occurs within 5 years of the effective date of the declaration of intent: There shall be an immediate loss of exemption; or There may be a noncompliance action taken by the Department, as appropriate, under this Ordinance. An applicant may apply for a regulated activity on that area of the property not covered under the declaration of intent if the requirements of this Ordinance are satisfied. The Department may require a person failing to file a declaration of intent or found in noncompliance with a declaration of intent to: Meet the retention, afforestation, and reforestation requirements established in Articles III—XIII of this Ordinance; Pay a noncompliance fee of 30 cents per square foot of forest cut or cleared under the declaration of intent; Be subject to other enforcement actions appropriate under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this Ordinance; or File a declaration of intent with the Department. In its determination of appropriate enforcement action, the Department may consider whether failure to file a declaration of intent by a person required to file is a knowing violation of this Ordinance. Commercial Logging and Timber Harvesting. The requirements for a declaration of intent may be satisfied by a forest management plan for the entire tract, prepared by a forester licensed in Maryland according to Business Occupations and Professions Article, Title 7, Annotated Code of Maryland, which outlines management practices needed to meet the stated objectives for a minimum of 5 years. Agricultural Activities or Commercial Logging and Timber Harvesting. A declaration of intent may be part of an amended sediment and erosion control plan which ensures that the activity meets the conditions for an exemption as stated in Article III, §3.2C and D of this Ordinance. A person making application after the effective date of ______, for subdivision or local agency project plan approval, a grading permit, or a sediment control permit for an area of land of 40,000 square feet or greater shall: Submit to the Department a forest stand delineation and a forest conservation plan for the lot or parcel on which the development is located; and Use methods approved by the Department, as provided in the (Name of County) County Forest Conservation Technical Manual, to protect retained forests and trees during construction. If a local agency or person using state funds makes application to conduct a regulated activity, the provisions of COMAR 08.19.04.01D—G apply. Criteria. A forest stand delineation shall be submitted at the initial stages of subdivision or project plan approval, before a grading permit application, or before a sediment control application is submitted for the tract being developed. The delineation shall be prepared by a licensed forester, licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A. The delineation shall be used during the preliminary review process to determine the most suitable and practical areas for forest conservation and shall contain the following components: A topographic map delineating intermittent and perennial streams, and steep slopes over 25 percent; A soils map delineating soils with structural limitations, hydric soils, or soils with a soil K value greater than 0.35 on slopes of 15 percent or more; Forest stand maps indicating species, location, and size of trees and showing dominant and codominant forest types; Location of 100-year floodplains; Information required by the (Name of county) County Forest Conservation Technical Manual; and Other information the Department determines is necessary to implement this Ordinance. If approved by the Department, a simplified delineation, a concept plan or plat, preliminary plat or plan, sediment control plan, or other appropriate document, verified by a site visit, if appropriate, may substitute for the forest stand delineation if: No forest cover is disturbed during a construction activity; and Designated to be under a long term protective agreement. The Department shall consider a simplified forest stand delineation, or other substitute plan described in §5.1D, complete if it includes: All requirements under §5.1C(1), (2), (4), and (5) of this article; A map showing existing forest cover as verified by field inspection; and Other information required by this Ordinance. An approved forest stand delineation may remain in effect for a period not longer than 5 years. Time for Submittal. Within 30 calendar days after receipt of the forest stand delineation, the Department shall notify the applicant whether the forest stand delineation is complete and correct. If the Department fails to notify the applicant within 30 days, the delineation shall be treated as complete and correct. The Department may require further information or provide for an additional 15 calendar days under extenuating circumstances. General Provisions. In developing a forest conservation plan, the applicant shall give priority to techniques for retaining existing forest on the site. If existing forest on the site subject to a forest conservation plan cannot be retained, the applicant shall demonstrate to the satisfaction of the Department: How techniques for forest retention have been exhausted; Why the priority forests and priority areas specified in Natural Resources Article, §5-1604(c)(1), Annotated Code of Maryland, cannot be left in an undisturbed condition: If priority forests and priority areas cannot be left undisturbed, how the sequence for afforestation or reforestation will be followed in compliance with Natural Resources Article, §5-1607, Annotated Code of Maryland; Where on the site in priority areas afforestation or reforestation will occur in compliance with Natural Resources Article, §5-1607, Annotated Code of Maryland; and How the disturbance to the priority forests and priority areas specified in Natural Resources Article, §5-1607(c)(2), Annotated Code of Maryland, qualifies for a variance. The applicant shall demonstrate to the satisfaction of the Department that the requirements for afforestation or reforestation onsite or offsite cannot be reasonably accomplished if the applicant proposes to make a payment into the local forest conservation fund or to purchase credits from a forest mitigation bank. Nontidal Wetlands. A regulated activity within the net tract area that occurs wholly or partly in areas regulated as nontidal wetlands under Environment Article, Title 9, Annotated Code of Maryland, is subject to both the nontidal wetlands regulatory requirements and the requirements of this law, subject to the following: Any area of forest in the net tract area, including forest in nontidal wetlands that is retained, shall be counted towards forest conservation requirements under this law; For the purpose of calculating reforestation mitigation under this Ordinance, a forested nontidal wetland permitted to be cut or cleared and required to be mitigated under Environment Article, Title 9, Annotated Code of Maryland, shall be shown on the forest conservation plan and subtracted on an acre-for-acre basis from the total amount of forest to be cut or cleared as part of a regulated activity; Nontidal wetlands shall be considered to be priority areas for retention and replacement; Forested nontidal wetland identification and delineation should be included at the earliest stage of planning to assist the applicant in avoidance and reduction of impacts to the nontidal wetlands and to avoid delay in the approval process. Preliminary Forest Conservation Plan. A preliminary forest conservation plan shall be prepared by a licensed forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A. A preliminary forest conservation plan shall: Be submitted with the preliminary plan of subdivision or proposed project plan; Include the approved forest stand delineation for the site; Include a table that lists the proposed values of the following, in square feet: Net tract area; Area of forest conservation required; and Area of forest conservation that the applicant proposes to provide, including both onsite and offsite areas; Include a clear graphic indication of the forest conservation provided on the site drawn to scale, showing areas where retention of existing forest or afforestation or reforestation is proposed; Include an explanation of how the provisions of §6.1 of this article have been met; In the case of afforestation or reforestation, include a proposed afforestation or reforestation plan; Include a proposed construction timetable showing the sequence of forest conservation procedures; Show the proposed limits of disturbance; Show proposed stockpile areas; Incorporate a proposed 2-year maintenance agreement that shows how areas designated for afforestation or reforestation will be maintained to ensure protection and satisfactory establishment; and Other information the Department determines is necessary to implement this Ordinance. The review of the preliminary forest conservation plan shall be concurrent with the review of the preliminary site plan. During the different stages of the review process, the preliminary forest conservation plan may be modified provided the Department approves of the changes. The Final Forest Conservation Plan. A final forest conservation plan shall be prepared by a licensed forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A. A final forest conservation plan shall: Be submitted with the following: A final subdivision plan; A final project plan; An application for a grading permit; or An application for a sediment control permit; Show proposed locations and types of protective devices to be used during construction activities to protect trees and forests designated for conservation; In the case of afforestation or reforestation, include an afforestation or reforestation plan, with a timetable and description of needed site and soil preparation, species, size, and spacing to be used; Incorporate a binding 2-year maintenance agreement specified in COMAR 08.19.05.01 that details how the areas designated for afforestation or reforestation will be maintained to ensure protection and satisfactory establishment, including: Watering; and A reinforcement planting provision if survival rates fall below required standards, as provided in the (Name of County) County Forest Conservation Technical Manual; Incorporate a long-term binding protective agreement as specified in COMAR 08.19.05.02 that: Provides protection for areas of forest conservation, including areas of afforestation, reforestation, and retention; and Limits uses in areas of forest conservation to those uses that are designated and consistent with forest conservation, including recreational activities and forest management practices that are used to preserve forest; Include the substantive elements required under §6.2B(2)—(5), (7)—(9), and (11) of this article, as finalized elements of the forest conservation plan; and Other information the Department determines is necessary to implement this Ordinance. Time for Submittal. Within 45 calendar days after receipt of the final forest conservation plan, the Department shall notify the applicant whether the forest conservation plan is complete and approved. If the Department fails to notify the applicant within 45 calendar days, the plan shall be treated as complete and approved. The Department may require further information or extend the deadline for an additional 15 calendar days under extenuating circumstances. At the request of the applicant, the Department may extend the deadline under extenuating circumstances. The Department's review of a final forest conservation plan shall be concurrent with the review of the final subdivision or project plan, grading permit application, or sediment control application associated with the project. The Department may revoke an approved forest conservation plan if it finds that: A provision of the plan has been violated; Approval of the plan was obtained through fraud, misrepresentation, a false or misleading statement, or omission of a relevant or material fact; or Changes in the development or in the condition of the site necessitate preparation of a new or amended plan. The Department may issue a stop work order against a person who violates a provision of this Ordinance or a regulation, order, approved forest conservation plan, or maintenance agreement. Before revoking approval of a forest conservation plan, the Department shall notify the violator in writing and provide an opportunity for a hearing. Afforestation Requirement. A person making application after the effective date of this Ordinance for subdivision or project plan approval, a grading permit, or a sediment control permit for an area of land of 40,000 square feet or greater, shall: Conduct afforestation on the lot or parcel in accordance with the following: A tract having less than 20 percent of the net tract area in forest cover shall be afforested up to at least 20 percent of the net tract area for the following land use categories: Agriculture and resource areas; and Medium density residential areas; A tract with less than 15 percent of its net tract area in forest cover shall be afforested up to at least 15 percent of the net tract area for the following land use categories: Institutional development areas; High density residential areas; Mixed use and planned unit development areas; and Commercial and industrial use areas; Comply with the following when cutting into forest cover that is currently below the afforestation percentages described in §7.1A(1) and (2) of this article: The required afforestation level shall be determined by the amount of forest existing before cutting or clearing begins; and Forest cut or cleared below the required afforestation level shall be reforested or afforested at a 2 to 1 ratio and added to the amount of afforestation necessary to reach the minimum required afforestation level, as determined by the amount of forest existing before cutting or clearing began. Retention. The following trees, shrubs, plants, and specific areas are considered priority for retention and protection and shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department, that reasonable efforts have been made to protect them and the plan cannot reasonably be altered: Trees, shrubs, and plants located in sensitive areas including the 100-year floodplain, intermittent and perennial streams and their buffers, coastal bays and their buffers, steep slopes, nontidal wetlands, and critical habitats; and Contiguous forest that connects the largest undeveloped or most vegetated tracts of land within and adjacent to the site. Retention. The following trees, shrubs, plants, and specific areas are considered priority for retention and protection and shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department, that the applicant qualifies for a variance in accordance with Section 14.1 of this article: Trees, shrubs, or plants determined to be rare, threatened, or endangered under: The federal Endangered Species Act of 1973 in 16 U.S.C. §§1531—1544 and in 50 CFR 17; The Maryland Nongame and Endangered Species Conservation Act, Natural Resources Article, §§10-2A-01—10-2A-09, Annotated Code of Maryland; and COMAR 08.03.08; Trees that: Are part of an historic site; Are associated with an historic structure; or Have been designated by the State or the Department as a national, State, or county champion tree; and Any tree having a diameter measured at 4.5 feet above the ground of: 30 inches or more; or 75 percent or more of the diameter, measured at 4.5 feet above the ground, of the current State champion tree of that species as designated by the Department of Natural Resources. Forest Conservation Threshold. There is a forest conservation threshold established for all land use categories, as provided in Subsection B of this article. The forest conservation threshold means the percentage of the net tract area at which the reforestation requirement changes from a ratio of 1/4 acre planted for each acre removed above the threshold to a ratio of 2 acres planted for each acre removed below the threshold. After reasonable efforts to minimize the cutting or clearing of trees and other woody plants have been exhausted in the development of a subdivision or project plan, grading and sediment control activities, and implementation of the forest conservation plan, the forest conservation plan shall provide for reforestation, purchase of credits from a forest mitigation bank, or payment into the forest conservation fund, according to the formula set forth in Subsections B and C of this article and consistent with §6.1 of this article, and the following forest conservation thresholds for the applicable land use category: Calculations. For all existing forest cover measured to the nearest 1/10th acre cleared on the net tract area above the applicable forest conservation threshold, the area of forest removed shall be reforested at a ratio of 1/4 acre planted for each acre removed. Each acre of forest retained on the net tract area above the applicable forest conservation threshold shall be credited against the total number of acres required to be reforested under paragraph(1) of this subsection. The calculation of the credit shall be according to the criteria provided in the (Name of County) County Forest Conservation Technical Manual. For all existing forest cover measured to the nearest 1/10th acre cleared on the net tract area below the applicable forest conservation threshold, the area of forest removed shall be reforested at a ratio of 2 acres planted for each acre removed below the threshold. Sequence for Afforestation and Reforestation. After techniques for retaining existing forest on the site have been exhausted, the preferred sequence for afforestation and reforestation, as determined by the Department, is as follows: Forest creation in accordance with a forest conservation plan using one or more of the following: Transplanted or nursery stock; Whip and seedling stock; or Natural regeneration where it can be adequately shown to meet the objective of the State Forest Conservation Technical Manual; In a municipal corporation with a tree management plan and in an existing population center designated in a county master plan that has been adopted to conform with the Economic Growth, Resource Protection, and Planning Act of 1992, or in any other designated area approved by the Department, the use of: Street trees as a permissible step in the priority sequence for afforestation or reforestation and with a mature canopy coverage may be granted full credit as a mitigation technique; and Acquisition of an off-site protection easement on existing forested areas not currently protected in perpetuity as a mitigation technique, in which case the afforestation or reforestation credit granted may not exceed 50 percent of the area of forest cover protected; When all other options, both on-site and off-site, have been exhausted, landscaping as a mitigation technique conducted under an approved landscaping plan that establishes a forest at least 35 feet wide and covering at least 2,500 square feet of area. A sequence other than the one described in Subsection A of this article may be used for a specific project, if necessary, to achieve the objectives of the county land use plan or county land use policies, or to take advantage of opportunities to consolidate forest conservation efforts. The following are considered a priority for afforestation and reforestation: Those techniques that enhance existing forest and involve selective clearing or supplemental planting on-site; On-site afforestation or reforestation where the retention options have been exhausted, using methods selected in accordance with Subsection F of this section, and the location being selected in accordance with this subsection; Off-site afforestation or reforestation in the same watershed or in accordance with an approved master plan where the applicant has demonstrated that no reasonable alternative on-site exists, or where: Any on-site priority areas for afforestation or reforestation have been planted in accordance with this subsection; and The applicant has justified to the Department's satisfaction that environmental benefits associated with off-site afforestation or reforestation exceed those derived from on-site planting. In the cases cited in Subsection C of this section, the method shall be selected in accordance with Subsection F of this section and the location shall be selected in accordance with Subsection C of this section. Off-site afforestation or reforestation may include the use of forest mitigation banks which have been so designated in advance by the Department. Standards for meeting afforestation or reforestation requirements shall be established using one or more of the following methods: Establish or enhance forest buffers adjacent to intermittent and perennial streams, and coastal bays and their buffers, to widths of at least 50 feet; Establish or increase existing forested corridors to connect existing forests within or adjacent to the site and, where practical, forested corridors should be a minimum of 300 feet in width to facilitate wildlife movement; Establish or enhance forest buffers adjacent to critical habitats where appropriate; Establish or enhance forested areas in the 100-year floodplains; Establish plantings to stabilize slopes of 25 percent or greater and slopes of 15 percent or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions; Establish buffers adjacent to areas of differing land use when appropriate, or adjacent to highways or utility rights-of-way; Establish forest areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate; and Use native plant materials for afforestation or reforestation, when appropriate. A person required to conduct afforestation or reforestation under this article shall accomplish it within 1 year or two growing seasons, whichever is a greater time period, following development project completion. Forest Conservation Fund. There is established a forest conservation fund in the local program that meets the requirements of Natural Resources Article, §5-1610(h-1), Annotated Code of Maryland. If a person subject to this Ordinance demonstrates to the satisfaction of the Department that requirements for reforestation or afforestation onsite or offsite cannot be reasonably accomplished and appropriate credits generated by a forest mitigation bank in the same county or watershed are not available, the person shall contribute money into the county forest conservation fund: For a project inside a priority funding area, as defined in Natural Resources Article, §5-1610, Annotated Code of Maryland, at a rate of 30.5 cents per square foot of the area of required planting with the amount adjusted by the Department based on the previous year’s inflation rate; and For a project outside a priority funding area, at a rate of 36.6 cents per square foot of the area of required planting. Money contributed instead of afforestation or reforestation under this article shall be paid within 90 calendar days after development project completion. The county shall accomplish the reforestation or afforestation for the equivalent number of acres for which the money is deposited within 2 years or 3 growing seasons, whichever is a greater time period, after receipt of the money. Money deposited in the local forest conservation fund: May be spent on the costs directly related to reforestation and afforestation, including site identification, acquisition, preparation, maintenance of existing forests, and achieving urban canopy goals; Shall be deposited in a separate forest conservation fund; and May not revert to the general fund. Sites for Afforestation or Reforestation Using Fund Money. Except as provided in Subsection G(2) of this section, the reforestation or afforestation requirement under this article shall occur in the county and watershed in which the project is located. If the reforestation or afforestation cannot be reasonably accomplished in the county and watershed in which the project is located, then the reforestation or afforestation shall occur in the county or watershed in the state in which the project is located. If there is no local forest conservation fund established, a person may contribute to the State fund. The Department of Natural Resources shall determine when contribution is allowable under COMAR 08.19.02.02I. Article X-1 Payment by Credits From a Forest Mitigation Bank. Use of Forest Mitigation Bank. If a person subject to this Ordinance demonstrates to the satisfaction of the Department that requirements for reforestation or afforestation onsite or offsite cannot be reasonably accomplished, the person may contribute credits from a forest mitigation bank. A credit is required for each tenth of an acre of an area of required planting. The credits shall be debited from an approved forest mitigation bank within 90 calendar days after development project completion. Article X-2 Establishing Forest Mitigation Banks. Forest Mitigation Banks. A person may create a forest mitigation bank from which applicants may purchase credits to meet the afforestation and reforestation requirements of this Ordinance. The forest mitigation bank shall: Afforest or reforest an area of land in accordance with a forest mitigation bank agreement; Be protected by an easement, deed restrictions, or covenants which require the land in the bank to remain forested in perpetuity and are enforceable by the Department and the Department of Natural Resources; Limit the use of the land in the bank to those activities which are not inconsistent with forest conservation such as recreational activities, forest management under a forest conservation and management program under Tax-Property Article, §8-211, Annotated Code of Maryland, or activities specified in a forest management plan prepared by a licensed forester and approved by the Department; Use native plant materials for afforestation or reforestation unless inappropriate; and Cause trees to be planted which: Establish or enhance forested buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet; Establish or increase existing forested corridors, which, where practical, should be a minimum of 300 feet in width to facilitate wildlife movement, to connect existing forests within or adjacent to the site; Establish or enhance forest buffers adjacent to critical habitats where appropriate; Establish or enhance forested areas in 100-year floodplains; Stabilize slopes of 25 percent or greater; Stabilize slopes of 15 percent or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions; Establish buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights-of-way; or Establish forest areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate. A person proposing to create a forest mitigation bank shall submit to the Department a: Completed application on a form approved by the Department which has been signed by an authorized individual in conformance with COMAR 08.19.04.02I; Forest mitigation bank plan which contains a: Vicinity map of the proposed mitigation bank site; Simplified forest stand delineation which meets the criteria in COMAR 08.19.04.02; Detailed afforestation or reforestation plan, which shall include a timetable and description of the site and soil preparation needed, species, size, and spacing to be utilized, prepared by a licensed Maryland forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A; and Proposed 2-year maintenance agreement that: Sets forth how the areas afforested or reforested will be maintained to ensure protection and satisfactory establishment; Complies with COMAR 08.19.04.05C(4)(a); and Includes watering and reinforcement planting provisions if survival falls below required standards; Copy of the deed to the property; Survey or other legally sufficient description of the bank site for inclusion in the deeds of easement, deed restrictions, or covenants; Title report or other assurance that: The property is not encumbered by any covenants or other types of restrictions which would impair the property's use as a forest mitigation bank; and There is legally sufficient access to the forest mitigation bank site which can be used by the Department and its assignees to inspect the forest mitigation bank; and Description of the system to be used by the person owning and operating the forest mitigation bank to identify and keep track of which portions of the bank have been debited to meet an applicant's offsite afforestation or reforestation requirements. The owner of an approved forest mitigation bank shall enter into an agreement with the Department which contains: The approved reforestation or afforestation plan; The approved system for marking and tracking which portions of the bank have been debited; and An acknowledgment that the bank may not debit any portion of the afforested or reforested land until 2 years of successful growth has been achieved unless the banker has posted a bond or alternate form of security. Recommended Tree Species List. Tree species used for afforestation or reforestation shall be native to the county, when appropriate, and selected from a list of approved species established by the Department. The Department shall adopt a list of tree species to be used for any required afforestation or reforestation and incorporate it into the (Name of county) County Forest Conservation Technical Manual. Bonding. A person required to conduct afforestation or reforestation under this article shall furnish financial security in the form of a bond, an irrevocable letter of credit, or other security approved by the Department. The surety shall: Assure that the afforestation, reforestation, and the associated maintenance agreement are conducted and maintained in accordance with the approved forest conservation plan; Be in an amount equal to the estimated cost, as determined by the Department, of afforestation and reforestation; and Be in a form and of a content approved by the Department. After one growing season, the person required to file a bond under §12.1A of this article may request reduction of the amount of the bond or other financial security by submitting a written request to the Department with a justification for reducing the bond or other financial security amount, including estimated or actual costs to ensure afforestation or reforestation requirements are met. The Department shall determine whether a lesser amount is sufficient to cover the cost of afforestation or reforestation, taking into account the following: The number of acres; The proposed method of afforestation or reforestation; The cost of planting materials or replacement materials; The cost of maintenance of the afforestation or reforestation project; and Other relevant factors. If, after two growing seasons, the plantings associated with the afforestation or reforestation meet or exceed the standards of the (Name of County) County Forest Conservation Technical Manual, the amount of the cash bond, letter of credit, surety bond, or other security shall be returned or released. A local forest conservation program may incorporate the financial security set forth in §12.1A—D of this article or in COMAR 08.19.05.01B. Protection Devices. The County shall adopt standards for the protection of trees from construction activity. Before cutting, clearing, grading, or construction begins on a site for which a forest conservation plan is required by this article, the applicant shall demonstrate to the Department that protective devices have been established. Procedure. A person may request a variance from this Ordinance or the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, if the person demonstrates that enforcement would result in unwarranted hardship to the person. An applicant for a variance shall: Describe the special conditions peculiar to the property which would cause the unwarranted hardship; Describe how enforcement of these rules will deprive the applicant of rights commonly enjoyed by others in similar areas; Verify that the granting of the variance will not confer on the applicant a special privilege that would be denied to other applicants; Verify that the variance request is not based on conditions or circumstances which are the result of actions by the applicant; Verify that the request does not arise from a condition relating to land or building use, either permitted or nonconforming, on a neighboring property; and Verify that the granting of a variance will not adversely affect water quality. The Department shall make findings that the applicant has met the requirements in Subsections A and B of this article before the Department may grant a variance. Notice of a request for a variance shall be given to the Department of Natural Resources within 15 days of receipt of a request for a variance. There is established by this Ordinance the right and authority of the Department of Natural Resources to initiate or intervene in an administrative, judicial, or other original proceeding or appeal in the State concerning an approval of a variance under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this Ordinance. Enforcement. Noncompliance Fees. A person found to be in noncompliance with this Ordinance, regulations adopted under this Ordinance, the forest conservation plan, or the associated 2-year maintenance agreement, shall be assessed by the Department the penalty of 30 cents per square foot of the area found to be in noncompliance with required forest conservation. Money collected under Subsection A(1) of this article shall be deposited in the forest conservation fund as required by Article X of this Ordinance, and may be used by the Department for purposes related to implementing this Ordinance. Violation. In addition to the provisions under Subsection A of this article, a person who violates a provision of this Ordinance or a regulation or order adopted or issued under this Ordinance is liable for a penalty not to exceed $1,000, which may be recovered in a civil action brought by the Department. Each day a violation continues is a separate violation. The Department may seek an injunction requiring the person to cease violation of this Ordinance and take corrective action to restore or reforest an area. The local program may adopt the enforcement provisions under COMAR 08.19.06.03. The local program shall provide to the Department notice of an enforcement action within 15 days after the commencement of enforcement by the local program. On or before March 1 of each year, the Department shall submit to the Department of Natural Resources a report which contains the: Number, location, and type of projects subject to the provisions of this Ordinance; Amount and location of acres cleared, conserved, and planted, including any areas located in the 100 year floodplain, in connection with a development project; Amount of reforestation and afforestation fees and noncompliance penalties collected and expended, the number of acres for which the fees were collected, and the number of acres reforested, afforested, or conserved using the fees; Costs of implementing the Forest Conservation Program; Location and size of all forest mitigation banks approved during the past year with a description of the priority areas afforested or reforested by the bank; Number of acres debited from each forest mitigation bank since the last annual report; Forest mitigation banks inspected since the last annual report; Number, location, and types of violations and types of enforcement activities conducted; and The size and location of all conserved and planted forest areas shall be submitted in an electronic geographic information system or computer aided design format if possible. If not possible, the location shall be given by Maryland State Plane Grid Coordinates and 8 digit subwatershed. The Department shall submit the necessary documentation to comply with COMAR 08.19.02.04. This Ordinance is hereby enacted and becomes effective ________, 20____. This Ordinance may be amended as required. All amendments to this Ordinance are subject to the approval of the Department of Natural Resources. Natural Resources Article, §§5-1601—5-1613, Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .01 amended effective November 22, 1993 (20:23 Md. R. 1803); July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 946); August 20, 2001 (28:16 Md. R.1482); January 26, 2009 (36:2 Md. R. 100); November 2, 2009 (36:22 Md. R. 1723); January 24, 2011 (38:2 Md. R. 83); February 3, 2014 (41:2 Md. R. 90); March 30, 2015 (42:6 Md. R. 511); November 4, 2019 (46:22 Md. R. 976) Development Activities. The following development projects or development activities on areas 40,000 square feet or greater shall be subject to this chapter's provisions: On or after July 1, 1992, any construction, grading, or sediment control activity, or subdivision or project plan by a: State agency, except for an activity regulated under Natural Resources Article, §5-103, or Unit of county government, municipal corporation, or other political subdivision which uses State funds for that activity; On or after January 1, 1993, any construction, grading, or sediment control activity, or subdivision or project plan by a unit of a county government, municipal corporation, or other political subdivision which does not have a local program, even if State funds are not used for that activity; A person filing application for a subdivision, grading, or sediment control permit on areas of 40,000 square feet or greater, including public utility construction not exempt under COMAR 08.19.01.04A, after the dates provided for in §B of this regulation; and A project for which a local program requests State program review, if: The project has State-wide impact on significant forest resources; and The Department agrees to review the project. Except as provided in COMAR 08.19.01.04D, on or after January 1, 1993, the local jurisdiction or other approving authority may not approve an application for subdivision, project plan, grading, or sediment control plan approval that is not accompanied by a forest stand delineation and a forest conservation plan approved by the Department in those jurisdictions without a local program in effect. On or after July 1, 1992 , the local jurisdiction or other approving authority may not approve a project plan, determined to be subject to the State program because of use of State funds, that is not accompanied by a forest stand delineation and a forest conservation plan approved by the Department. The following procedure shall apply to a unit of government described in §A(1)(b) of this regulation: The subdivision or project plan or application for grading or sediment control permit or other construction plan shall be submitted to the local authority; The local authority shall notify the Department within 15 days of receipt of the project plan or application; Within 15 days of receipt of notice from the local authority, the Department shall: Determine whether the project has impact on significant forest resources; and Notify the local authority whether the project is subject to the State program; If the Department determines that the project is subject to the State program, the: Time limit for approval of the forest stand delineation and preliminary and final forest conservation plans shall begin when the Department receives the necessary documents from the local authority; and Local authority may not approve a subdivision plan or project plan or issue the grading or sediment control permit until the local authority receives notice from the Department that the standards and requirements of the State program have been satisfied; and If the Department determines the project need not be reviewed under the State program, the time limit for approval of the forest stand delineation and forest conservation plan under the local program begins when the local authority receives notice from the Department. The Department shall: Review an application for a forest stand delineation to determine whether it is complete and correct; and Acknowledge receipt of the application in writing by regular mail. The Department shall consider a forest stand delineation application complete if the application contains all of the following information: A site vicinity map showing the location of the site in relation to other properties within approximately 1 square mile or more, including forested and sensitive areas adjacent to the site; An environmental features map, also known as a forest stand delineation map, which is prepared at the same scale as the proposed development plan showing where applicable: 100-year nontidal floodplains in watersheds 400 acres or larger, or for Class III streams, Intermittent streams and perennial streams, including buffers that are at least 50 feet wide measured from the top of the normal bank, Steep slopes of 25 percent or more, Critical habitat areas, Nontidal or tidal wetlands and their buffers, Topographic contours and intervals, Hydric soils, erodible soils on slopes of 15 percent or more, and soils with structural limitations as classified by USDA soil surveys; and A completed application form supplied by the Department, complying with the requirements of §§I and J of this regulation. A simplified forest stand delineation may be used if: Forest does not currently exist on the site or forest on the site will not be cut, cleared, or graded for the proposed development; All forest on the site will be protected under a long-term protective agreement; and The environmental features map, in addition to the requirements of §B of this regulation, exhibits: Field-verified forest boundaries delineating the: Maximum aerial extent of the canopy, and Extent of contiguous forest up to 100 feet from the property boundaries and the size of contiguous forest in acres, if forest extends off-site; Dominant species type of the forest; A proposed limit of disturbance line; and Proposed areas of long-term protection. An intermediate forest stand delineation may be used if: The forest retention on a development site will be greater or equal to the calculation of a break-even amount as provided in Natural Resources Article, §5-1606(b)—(e), Annotated Code of Maryland; Priority forest and priority retention areas, as provided in Natural Resources Article, §5-1607, Annotated Code of Maryland, will not be disturbed during or after development; The environmental features map, in addition to the requirements in §C(4) of this regulation, exhibits: The calculations necessary to demonstrate that the development proposal meets the condition of forest retention and protection in an amount greater than or equal to the break-even amount, Confirmation by a walk-through survey, by a qualified professional, of forested areas that the proposed disturbance areas do not contain any priority forests or priority retention areas, Composition, using dominant species, forest association, or other description, Total acreage of forest proposed for disturbance, Past and present management practices, and Potential of forested areas adjacent to proposed disturbance limits to recover, or recommendations for management after disturbance. A full forest stand delineation: Shall be used if a development does not fall within the category for which an intermediate or simplified forest stand delineation is applicable; and Includes an environmental features map, in addition to the requirements of §B of this regulation, that exhibits: Location, description, and size of forest stands with forest boundaries extending off-site, Sampling locations used for the analysis and, if a plot method is used, the centers of the plots marked in the field, Field-verified locations of any priority retention areas, and Field-verified locations of any priority afforestation areas located outside of existing forest areas. A full forest stand delineation application shall include a forest stand summary analysis of existing forest stands and environmental features: Using field sampling with methods that ensure a minimum of 67 percent confidence level or procedures approved by the Department; Giving a general site description including soils, topography, and hydrology; Detailing methodology of sampling; Describing forest stand: Composition derived from species specific data, Structure, Condition, Function; and Evaluating areas for retention or disturbance. An approved forest stand delineation may remain in effect for a period not longer than 5 years. A simplified, intermediate, or full forest stand delineation shall: Be prepared by a licensed Maryland forester, licensed landscape architect, or qualified professional as specified in COMAR 08.19.06.01A; and Exhibit a stamp or certification of the preparer. Authorized Signature. The application shall be signed by: An officer of the corporation or an authorized agent of a corporation; An authorized official of a federal, State, or local government; A partner of an association or partnership; or An individual applicant. The individual who signs an application is responsible for the truth, accuracy, and completeness of all information in the application. Time for Submittal. A forest stand delineation for the affected tract shall be submitted: At the initial stages of subdivision or project plan approval; Before a grading permit application is submitted; or Before a sediment control application is submitted. A local jurisdiction or other approving authority that approves subdivision or project plans or that issues grading or sediment control permits may not proceed with the subdivision or permit approval process until it receives notice from the Department that the forest stand delineation is complete and correct. Notification by the Department. The Department shall notify an applicant in writing within 30 calendar days of receipt of the forest stand delineation as to whether the application is complete and correct. If the forest stand delineation application is incomplete or information submitted is insufficient, the Department shall notify the applicant in writing of the additional information needed. If the delineation is incorrect, the Department shall notify the applicant and require the applicant to correct the delineation. If the Department fails to notify an applicant within 30 calendar days of receipt of the forest stand delineation application, the application shall be considered complete and the delineation correct. The Department may provide for an additional 15 calendar days for notification to an applicant when the following extenuating circumstances prevent consideration of the application: Inclement weather conditions; Review required by other State agencies; Review required by local agencies; or Other justifiable extenuating circumstances. In developing a forest conservation plan, the applicant shall give priority to techniques for retaining existing forest on the site. If existing forest on the site subject to a forest conservation plan cannot be retained, the applicant shall demonstrate to the satisfaction of the Department: How techniques for retention have been exhausted; Why the priority forests and priority areas specified in Natural Resources Article, §5-1607(c)(1), Annotated Code of Maryland, are not being retained: If priority forests and priority areas cannot be left undisturbed, how the sequence for afforestation or reforestation will be followed in compliance with Natural Resources Article, §5-1607(a), Annotated Code of Maryland; Where on the site in the priority areas the afforestation or reforestation will occur in compliance with Natural Resources Article, §5-1607, Annotated Code of Maryland; and How the standards for meeting afforestation or reforestation requirements in Natural Resources Article, §5-1607(b)(1) or (3) will be followed; and How the disturbance to the priority forests and priority areas specified in Natural Resources Article, §5-1607(c)(2), Annotated Code of Maryland, qualifies for a variance in accordance with Regulation .10 of this chapter. The applicant shall demonstrate to the satisfaction of the Department that the requirements of afforestation or reforestation onsite or offsite cannot be reasonably accomplished if the applicant proposes to purchase credits from a forest mitigation bank, or make a payment into the forest conservation fund instead of afforestation or reforestation. The demonstration required by §§B and C of this regulation shall contain: A statement addressing the requirement in §§B and C of this regulation, signed by the applicant, and appended to or on the forest conservation plan map; and Certification by the preparer of the forest conservation plan. Nontidal Wetlands. A regulated activity within the net tract area that occurs wholly or partly in areas regulated as nontidal wetlands under Environment Article, Title 9, Annotated Code of Maryland, is subject to both the nontidal wetlands regulatory requirements and the requirements of this subtitle, subject to the following: Any area of forest in the net tract area, including forest in nontidal wetlands that is retained shall be counted towards forest conservation requirements under this subtitle; Any forested nontidal wetland permitted to be cut or cleared and required to be mitigated under Environment Article, Title 9, Annotated Code of Maryland, shall be shown on the forest conservation plan and subtracted on an acre-for-acre basis from the total amount of forest to be cut or cleared as part of a regulated activity, for the purpose of calculating reforestation mitigation under this subtitle; Nontidal wetlands shall be considered to be priority areas for retention and replacement; Forested nontidal wetland identification and delineation should be included at the earliest stage of planning to assist the applicant in avoidance and reduction of impacts to the nontidal wetlands. Retention Areas. If the requirements of §B of this regulation are satisfactorily demonstrated and additional retention area is required, then additional retention areas may be located by the applicant according to an evaluation of forest stands for water quality, wildlife habitat, or other objectives as determined in the recommendations in the approved forest stand delineation. The areas shall be identified on the forest conservation plan with the appropriate objective. If the forest stand delineation recommendations include preserving trees which are not priority for retention as stated in Natural Resources Article, §5-1607(c), Annotated Code of Maryland, these trees may be designated for protection and retention credit only if: All priority areas are protected in retention areas; A minimum 10,000 square foot protection zone is specified; and All critical root zone area is included in the protection area. Retained trees, shrubs, or plants may be incorporated into afforestation and reforestation plans. A preliminary forest conservation plan shall: Be prepared by a licensed Maryland forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A; and Exhibit a stamp or certification of the preparer. The Department shall: Review an application for preliminary forest conservation plan approval to determine whether it is complete and correct; and Acknowledge receipt of the preliminary forest conservation plan in writing by regular mail. The Department shall consider an application complete if the application contains all of the following: The approved forest stand delineation for the site to scale; A table listing the: Proposed values, when applicable, of the following to the nearest 1/10 of an acre including total: Parcel area, Tract area, Area in 100-year nontidal floodplain, Net tract area, Area of existing forest cover, Area of proposed forest clearing, Area of reforestation, Area of afforestation, Area of retention areas; Land use category, pertinent threshold percent, and area; Proposed location of retention areas; Proposed specifications for protection of retention areas; In the case of afforestation or reforestation, a proposed afforestation or reforestation plan which shows: Locations of areas to be planted; Specifications for conducting the afforestation or reforestation; Construction sequence with notification for inspection; Proposed maintenance and monitoring agreement; If the preliminary forest conservation plan designates off-site planting, the plan proposed in §C(5) of this regulation which contains a map of the proposed planting site showing: Location; Soils; Environmental features which are priority planting areas as stated in Natural Resources Article, §5-1607(d), Annotated Code of Maryland; Proposed limits of disturbance delineated; Proposed long-term protection agreement; and Sufficient information for the Department to process the forest conservation plan. The review of a preliminary forest conservation plan shall be concurrent with the review of the preliminary site plan. A preliminary forest conservation plan may be modified during the different stages of the review process provided the Department approves the changes. Authorized Signature. The application shall be signed by: An officer of the corporation or an authorized agent of a corporation; An authorized official of a federal, State, or local government; A partner of an association or partnership; or An individual applicant. The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application. The preliminary forest conservation plan shall be: Submitted at a reasonable time before a preliminary plan of subdivision is submitted; and Approved at the same time as a preliminary plan of subdivision is approved, unless the Department determines that the preliminary forest conservation plan is incomplete. For the purposes of processing the preliminary forest conservation plan, the Department shall: Consult with the jurisdiction; and Determine when in the subdivision review process the preliminary plan of subdivision occurs. Approval of a preliminary forest conservation plan under the State program supersedes any inconsistent local laws, ordinances, or plans. An applicant may submit the information required by §C of this regulation as part of the final forest conservation plan under Regulation .05 of this chapter. A final forest conservation plan shall: Be prepared by a licensed Maryland forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01A; and Exhibit a stamp or certification of the preparer. The Department shall: Review an application for final forest conservation plan approval to determine whether it is complete and correct; and Acknowledge receipt of the final forest conservation plan in writing by regular mail. The Department shall consider an application complete if the application contains: Locations and types of protective devices to be used during construction activities to protect trees, and forests designated for conservation, including protective devices: Which shall be installed if clearing, grading, or construction occurs within 50 feet of a retention area; and That shall be field located and inspected pursuant to Regulation .14 of this chapter before the start of construction; Protective measures which shall include: Details and specifications required to implement the proposed protection measures; A construction sequence that describes: Clearing, grading, or installation of sediment and erosion control measures; Installation and removal of protective devices; Inspections; Other activities that may be required to implement the proposed protection measures; A requirement that no equipment, vehicles, machinery, dumping, storage, other construction activities, burial, fire, or other disposal of construction materials shall be located inside forest retention areas, subject to approval by the approving authority, or an amended forest conservation plan; A requirement that fires permitted in the construction area shall conform with State and local regulations for fire control, and may not enter the retention area or its canopy; A requirement that field adjustments may be made subject to approval of an amended forest conservation plan; Assurances that forest retention area protective devices shall be: Visible; Well-anchored; Approved in the field before clearing or grading, or when construction commences; and In place and maintained as needed until construction completion, final inspection, and an occupancy permit is issued, unless waived by the approving authority; Substantive elements required by Regulations .04C—E of this chapter, as finalized elements of the forest conservation plan, including: A binding minimum 2-year maintenance agreement specified in COMAR 08.19.05.01A that details how the areas designated for afforestation or reforestation be maintained to ensure protection and satisfactory establishment of forest, including; Watering, and Reinforcement planting provisions if survival falls below the required recommendations in the following chart: These stocking and survival requirements are the minimum numbers estimated to meet the definition of forest from bare land. In certain circumstances, any combination of the above mentioned stocking options, dry seeding, tree shelters, transplants, and/or natural regeneration may be appropriate strategies to fulfill the requirements of an approved Forest Conservation Plan. They will be evaluated on a case-by case basis by the approving authority. Spacing does not imply that trees or shrubs must be planted in a grid pattern. Notes: A long-term binding protective agreement specified in COMAR 08.19.05.02 that: Provides protection for areas of forest conservation, including areas of afforestation, reforestation, and retention; and Limits uses in areas for forest conservation to those uses that are consistent with forest conservation, including recreational activities and forest management practices that are used to preserve forest; and Other information the Department determines is necessary. If critical root zone in the retention area is disturbed by clearing, grading, or construction, additional protective measures shall be required, including: Root pruning; Crown reduction; or Watering. Authorized Signature. The application shall be signed by: An officer of the corporation or an authorized agent of a corporation; An authorized official of a federal, State, or local government; A partner of an association or partnership; or An individual applicant. The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application. The final forest conservation plan shall be: Submitted for a site at the same time as the following plans or permit applications are submitted: A final subdivision plan, A final project plan, An application for a grading permit; and Approved before a final subdivision or project plan is approved, or a grading or sediment control permit is issued. The final forest conservation plan may not be modified without the approval of the Department. For purposes of submitting the final forest conservation plan, the Department shall consult with the local jurisdiction and shall determine when, in the subdivision process, the final plan of subdivision occurs. Approval of a final forest conservation plan under the State program supersedes any inconsistent local laws, ordinances, or plans. An applicant may file the forest stand delineation and the forest conservation plan in a single submittal, if the following requirements are met: The activity is a minor development project as defined in COMAR 08.19.01.03B(29); and The submittal includes an application form provided by the Department. The Department shall: Provide a simplified application form for the concurrent submission of a forest stand delineation and forest conservation plan; and Make a determination in the processing of the form that the minor development project is in compliance with the standards and requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle. A person subject to this subtitle making application for subdivision approval, project plan approval, grading permit, or sediment control permit shall: Conduct afforestation on the lot or parcel in accordance with the following: A tract having less than 20 percent of the net tract area in forest cover shall be afforested up to 20 percent of the net tract area for the following land use categories: Agriculture and resource areas, and Medium density residential areas; A tract with less than 15 percent of its net tract area in forest cover shall be afforested up to 15 percent of the net tract area for the following land use categories: Institutional development areas, High density residential areas, Mixed use and planned unit development areas, and Commercial and industrial use areas; Comply with the following when cutting into forest cover that is currently below the afforestation percentages described in §A of this regulation: The required afforestation level shall be determined by the amount of forest existing before cutting or clearing begins; and Reforestation or afforestation for forest cut or cleared below the required afforestation level shall be reforested or afforested at a 2 to 1 ratio and added to the amount of afforestation necessary to reach the minimum required afforestation level. In a jurisdiction that does not have a local program in effect, the Department shall designate the forest conservation threshold for each of that jurisdiction's zoning categories. The following trees, shrubs, plants, and specific areas are considered priority for retention and protection and shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department, that all reasonable efforts have been made to protect them and the plan cannot reasonably be altered: Trees, shrubs, and plants located in sensitive areas including the 100-year floodplain, intermittent and perennial streams and their buffers, coastal bays and their buffers, steep slopes, nontidal wetlands, and critical habitats; and Contiguous forest that connects the largest undeveloped or most vegetated tracts of land within and adjacent to the site. The following trees, shrubs, plants, and specific areas are considered priority for retention and protection, and shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department, that the applicant qualified for a variance in accordance to Regulation .10 of this chapter: Trees, shrubs, or plants determined to be rare, threatened, or endangered under: The federal Endangered Species Act of 1973 in 16 U.S.C. §§1531—1544 and in 50 CFR 17, The Maryland Nongame and Endangered Species Conservation Act, Natural Resources Article, §§10-2A-01—10-2A-09, Annotated Code of Maryland, and COMAR 08.03.08; Trees that: Are part of an historic site, Are associated with an historic structure, or Have been designated by the Department as a national, State, or local champion tree; and A tree having a diameter measured at 4.5 feet above the ground of: 30 inches or more, or 75 percent or more of the diameter, measured at 4.5 feet above the ground, of the current State champion tree of that species as designated by the Department of Natural Resources. Forest conservation thresholds are established for each land use category, as provided in §B of this regulation. The forest conservation threshold is the percentage of the net tract area at which the reforestation requirement changes from a ratio of 1/4 acre planted for each acre removed above the threshold to a ratio of 2 acres planted for each acre removed below the threshold. After reasonable efforts to minimize the cutting or clearing of forests or trees or other woody plants have been exhausted in the development of a subdivision plan, project plan, or grading or sediment control activity, the forest conservation plan shall provide for reforestation, purchase of credits from a forest mitigation bank, or payment into the State forest conservation fund, according to the formula provided in §D of this regulation, which is consistent with Regulation .03 of this chapter and the following forest conservation thresholds for the applicable land use category: Agricultural and resource areas 50 percent; Medium density residential areas 25 percent; Institutional development areas 20 percent; High density residential areas 20 percent; Mixed use and planned unit development areas 15 percent; Commercial and industrial use areas 15 percent. In a jurisdiction that does not have a local program in effect, the Department shall designate the forest conservation threshold for each of that jurisdiction's zoning categories. Reforestation Formula. For all existing forest cover measured to the nearest 1/10 acre cleared on the net tract area above the applicable forest conservation threshold established by §B of this regulation, the area of forest removed shall be reforested at a ratio of 1/4 acre planted for each acre removed. Each acre of forest retained on the net tract area above the threshold shall be credited against the total number of acres required to be reforested under §D(1) of this regulation. For all existing forest cover measured to the nearest 1/10 acre cleared on the net tract area below the applicable forest conservation threshold established by §B of this regulation, the area of forest removed shall be reforested at a ratio of 2 acres planted for each acre removed below the threshold. The preferred sequence for afforestation and reforestation, as determined by the Department, after techniques for retaining existing forest on the site have been exhausted, are provided for in Natural Resources Article, §5-1607(a), Annotated Code of Maryland. A sequence other than the one described in §E of this regulation may be used for a specific project, if necessary, to achieve the objectives of the county land use plan or county land use policies, or to take advantage of opportunities to consolidate forest conservation efforts. The following are considered a priority for afforestation or reforestation as provided for in Natural Resources Article, §5-1607(d), Annotated Code of Maryland: Establish or enhance forest buffers adjacent to streams and coastal bays; Establish or increase existing forested corridors; Establish or enhance forest buffers adjacent to critical habitats, when appropriate; Steep slopes; Buffers adjacent to areas of differing land uses; Increase overall area of contiguous forest; and Establish or enhance forested areas in the 100-year floodplains. Recommended Tree Species List. Native plant materials shall be used for afforestation or reforestation, when appropriate, and selected from a list of approved species established by the Department. The Department shall adopt a list of tree species to be used for any required afforestation or reforestation. A person required to conduct afforestation or reforestation under this regulation shall accomplish it within 1 year or two growing seasons, whichever is a greater time period, following development project completion. If a person subject to this subtitle demonstrates to the satisfaction of the Department that the requirements for afforestation or reforestation cannot reasonably be accomplished onsite or offsite, the person shall either contribute money to the State forest conservation fund under Regulation .09 of this chapter, or purchase credits from an approved forest mitigation bank, within 90 days after development project completion. Payments by an applicant made instead of afforestation or reforestation shall be used only for the costs associated with reforestation and afforestation, including site identification, acquisition, preparation, maintenance of existing forests, and achieving urban canopy goals. Fines collected from persons found to be in noncompliance with their declaration of intent, forest conservation plan or the associated 2-year maintenance agreement, this subtitle, or local ordinances and regulations, may be used by the Department for any costs associated with the implementation of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle. If payments deposited under §A of this regulation remain in the Fund longer than 2 years or 3 growing seasons, the applicant may file a request, on a form provided by the Department, for the return of the unspent monies, if the applicant demonstrates to the satisfaction of the Department that the returned monies will be spent on tree plantings that: Will occur within the same county or watershed as the applicant's project; and Are not being planted to comply with: Reforestation or afforestation requirements of the State or local Forest Conservation Act program, or Requirements of any other federal, State, or local statute, ordinance, or regulation. Payment into the fee-in-lieu fund shall be determined by the Department and the rate amount shall be adjusted yearly for inflation based on the previous year’s inflation rates: For a project inside a priority funding area, as defined in Natural Resources Article, §5-1610, Annotated Code of Maryland , at a rate of 30.5 cents per square foot of the area required planting; and For a project outside a priority funding area, at a rate of 36.6 cents per square foot of the area of required planting. A person may create a forest mitigation bank from which applicants may purchase credits by afforesting or reforesting an area of land in accordance with a forest mitigation bank plan which has been approved by the Department. The area of land on which the bank is planted shall be a minimum of 1 acre. A forest mitigation bank shall use native plants for afforestation and reforestation, unless inappropriate. A person proposing to create a forest mitigation bank shall submit to the Department: A completed application on a form approved by the Department which has been signed by an authorized individual in conformance with COMAR 08.19.04.02I; and A forest mitigation bank plan which shall include: A 2-year maintenance agreement which meets all the standards described in COMAR 08.19.05, A bond or other alternate form of security to ensure that the trees will be cared for and maintained for 2 years or until sufficiently established, whichever is longer, All the information required by Regulation .04 of this chapter for a preliminary forest conservation plan, and The draft easement, covenants, or deed restrictions which will be sold to the developer when credits are withdrawn from the bank. A forest mitigation bank shall: Establish or enhance forest buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet; Establish or increase existing forested corridors, which where practical should be a minimum of 300 feet in width to facilitate wildlife movement, to connect existing forests within or adjacent to the site; Establish or enhance forested buffers adjacent to critical habitats where appropriate; Establish or enhance forested areas in 100-year floodplains; Stabilize slopes of 25 percent or greater; Stabilize slopes of 15 percent or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions; Establish buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights-of-way; or Establish forested areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate. Credits may not be debited from a forest mitigation bank until the trees planted in the bank have successfully survived for 2 years from the date of planting unless the bank has planted 25 percent more trees than is required for the project. On or before March 1 of each year, a forest mitigation bank shall submit an annual report to the Department which contains a list of all the tracts debited from the bank during the previous year. In order to debit credits from an approved forest mitigation bank, an applicant may draw credits from a forest mitigation bank by conveying or causing to be conveyed to the Department or its assignees, the easement, covenants, or deed restrictions which ensure that the newly reforested or afforested area of land shall remain a forest in perpetuity. The credits shall purchase the amount of land identified in Regulation .08 of this chapter. An applicant may request a variance from this subtitle or the requirements of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, if the applicant demonstrates that enforcement would result in unwarranted hardship to the applicant. An applicant for a variance shall: Describe the special conditions peculiar to the property which would cause the unwarranted hardship; Describe how enforcement of these rules will deprive the applicant of rights commonly enjoyed by others in similar areas; Verify that the granting of the variance will not confer on the applicant a special privilege that would be denied to other applicants; Verify that the variance request is not based on conditions or circumstances which are the result of actions by the applicant; Verify that the request does not arise from a condition relating to land or building use, either permitted or nonconforming, on a neighboring property; and Verify that the granting of a variance will not adversely affect water quality. The Department shall make findings that the applicant has met the requirements in §§A and B of this regulation before the Department may grant a variance. The Department shall issue a public notice of an opportunity to submit written comments or to request a public hearing after the Department has determined that applications for the following are complete: Forest conservation plan; or Submittal of a minor development project application. The public notice shall contain: The name and address of the applicant; A description of the nature and location of the proposed activity; Instructions for submission of written comments, requests for a public hearing, and requests to be included on the interested persons list; The expiration date for the opportunity to comment or to request a public information hearing; A statement that any further notices concerning actions on the application shall be provided only by mail to those persons on the interested persons list; and The name, address, and telephone number of an individual in the Department from whom information about the application may be obtained. The public notice may be given by: Joint notice with other federal, State, county, or municipal agencies; Joint notice with other units or programs within the Department; Selected mailing to federal, State, county, or municipal authorities and persons on the interested persons list; Publication in a daily newspaper distributed in one or more counties which the Department determines may be directly affected by the proposed activity, or if there is no local daily newspaper, in a newspaper of general circulation in that county; or Publication in the Maryland Register under State Government Article, §7-214, Annotated Code of Maryland. An interested person may request in writing a public information hearing. If requested, a public information hearing shall be held on a forest conservation plan or a minor subdivision plan application within 45 days of the expiration date specified in the public notice. After setting the date, time, and place for the hearing, the Department shall mail a hearing notice only to those persons on the interested persons list. The Department may extend the time period for the public information hearing for the following extenuating circumstances: Inclement weather conditions; Review required by other State agencies; A request by an applicant; or Other justified extenuating circumstances. The Director may delegate all or part of the Director's authority to hold a public information hearing to an employee of the Department. The employee authorized to conduct the public information hearing shall be designated as the presiding official. An applicant and any interested person shall be given an opportunity at the public information hearing to present facts and make statements for or against granting approval of the forest conservation plan. Questions may be asked of, and directed to, the presiding official, but cross-examination may not be conducted. The hearing is not a contested case hearing under State Government Article, §§10-201—10-217, Annotated Code of Maryland. Order of Hearing. The presiding official may determine the order of presentation of comments and questions at the public information hearing. The public information hearing may be conducted in the following order: Introduction by the Department; Presentation of the proposed project by the applicant; Comments and questions by public officials; Comments and questions by other persons; and Closing of the public information hearing by the presiding officer. The presiding officer has the authority and duty to: Conduct a full and fair public information hearing; Act to avoid unnecessary delay and to maintain order; and Regulate the course of the public information hearing and the conduct of the participants. The presiding officer shall prepare an official record of the public information hearing. A tape recording or stenographic notes of the public information hearing may not be transcribed unless the Department, the applicant, or a participant in the public information hearing requests a transcript. Costs of transcription shall be paid by the person requesting the transcript. Approval Decision. After the closing date for receipt of written comments and after a public information hearing, if a hearing has been requested, the Department shall: Consider the written comments, testimony, and other information received; and Afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony. The Department may request additional information from the applicant as a result of concerns raised in written comments or testimony at the public information hearing. Written notice of the approval decision or denial shall be mailed to the applicant and to persons on the interested persons list. Notice of the decision need not be published. Appeal of Final Forest Conservation Plan Decision. A contested case hearing may be requested by a person who has legal rights, duties, interests, or privileges different from the general public which are adversely affected by the Department's decision to approve, deny, or condition a final forest conservation plan. The contested case hearing request shall be in writing and filed with the Department within 30 days of issuance of the decision with the unit issuing the decision. The contested case hearing request shall contain: The name, address, and telephone number of: The person requesting the hearing, and An attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel; A description of the grounds for the request, including the specific legal right, duty, privilege, or interest which may be adversely affected by the 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 contested case hearing; and A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called. The contested case hearing shall be conducted under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. The decision of the Department on the basis of the contested case hearing is the final decision for purposes of judicial review. Delegation of Decision-Making Authority. The Director of the Forestry Division in the Resource Conservation Service shall render the decision to approve, deny, or condition a final forest conservation plan. If there is an appeal under §B of this regulation, the Assistant Secretary shall render the final decision for the Department. Determination on Request for Contested Case Hearing. The Director or the Director's designee shall review a request for a contested case hearing to determine whether the person requesting a hearing has: A specific legal right, duty, privilege, or interest which is or may be adversely affected by the final forest conservation plan 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 final forest conservation plan and arises under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, or this subtitle; and Made a contested case hearing request within the required 30-day time period. The Director or the Director's designee shall determine whether to grant or deny the request for a contested case hearing. If the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed by certified mail to the person requesting a hearing. The notification of the determination to deny a request for a contested case hearing shall contain the following: The specific reasons for the denial; A statement of the right to request a review of the denial under §D(4) of this regulation; and A statement that, if a person does not request a review under this regulation, the denial shall be the Department's final decision as to the contested case hearing request. Within 10 calendar days of receipt of the denial, a person who is adversely affected by a determination to deny a request for a contested case hearing may file with the Assistant Secretary written exceptions and a request to present oral argument. After considering the written exceptions, the Assistant Secretary may hear oral argument, and shall issue a written final decision. If the Assistant Secretary's written final decision to the contested case hearing request is adverse to a party other than the Department, the party may obtain judicial review of the decision in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and the Maryland Rules of Procedure. The State shall conduct at least three field inspections of a site subject to an approved forest conservation plan as follows: The first inspection shall take place before a construction activity begins to determine whether forest protection measures have been installed and conservation areas are clearly marked onsite; The second inspection shall take place following completion of all construction activities to determine the level of compliance with the provisions of the forest conservation plan; The third inspection shall take place at the end of the 2-year maintenance agreement, as stated in COMAR 08.19.05.01. Other inspections or meetings shall be conducted if the Department considers it necessary to carry out the provisions of this subtitle or the provisions of other legal agreements that may be adopted. Natural Resources Article, §§1-104 and 5-1601—5-1612; State Government Article, §10-206; Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .01 amended effective November 2, 2009 (36:22 Md. R. 1723) Regulation .01A amended effective March 14, 2005 (32:5 Md. R. 579) Regulations .02F, .04A, and .05A amended effective November 22, 1993 (20:23 Md. R. 1803) Regulation .02 repealed and new Regulation .02 adopted effective July 1, 1996 (23:13 Md. R. 941) Regulation .03 amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 946) Regulation .03B amended effective November 2, 2009 (36:22 Md. R. 1723) Regulation .04 repealed and new Regulation .04 adopted effective July 1, 1996 (23:13 Md. R. 941) Regulation .04J adopted effective August 20, 2001 (28:16 Md. R. 1482) Regulation .05 repealed and new Regulation .05 adopted effective July 1, 1996 (23:13 Md. R. 941) Regulation .07 amended effective June 15, 1998 (25:12 Md. R. 946) Regulation .07C, D amended effective November 2, 2009 (36:22 Md. R. 1723) Regulation .08 amended effective June 15, 1998 (25:12 Md. R. 946) Regulation .09A amended effective November 2, 2009 (36:22 Md. R. 1723) Regulation .09C adopted effective June 15, 1998 (25:12 Md. R. 946) Regulation .09C adopted effective March 30, 2015 (42:6 Md. R. 511) Regulation .09-1 adopted effective June 15, 1998 (25:12 Md. R. 946) Regulation .11A amended effective August 20, 2001 (28:16 Md. R. 1482) Regulation .12B, E amended effective August 20, 2001 (28:16 Md. R. 1482) Regulation .13B amended effective April 5, 2010 (37:7 Md. R. 569) Maintenance Agreements. Application. A person required to conduct afforestation or reforestation under a local or State program shall include in the forest conservation plan a binding maintenance agreement for the minimum length of 2 years. Approval procedures and timing shall be consistent with the procedures provided in the local program or as provided in COMAR 08.19.04.04. The maintenance agreement shall detail how the areas designated for afforestation or reforestation will be maintained to ensure protection and satisfactory establishment of forest. The person required to conduct the afforestation or reforestation, after this referred to as the “obligee”, shall present evidence of a legal right to implement the proposed maintenance agreement on a selected site by providing: An executed deed conveying title to a selected site to the obligee; An executed conservation easement agreement; Written evidence of the landowner's consent to the use of a selected site; A fully executed option agreement, long-term lease agreement, or contract of sale for a selected site; or Other written evidence of a possessory or ownership interest in a selected site. The Department or the local authority shall be a signatory to the maintenance agreement, or shall be designated a third-party beneficiary of the agreement. The Department or local authority may not release a bond or end monitoring without receipt of a legally binding deed, long-term lease, or conservation easement agreement on those lands where afforestation or reforestation will occur. The maintenance agreement shall provide for access by the Department or local authority to the afforestation or reforestation site. Bonding. Application. A person required to conduct afforestation or reforestation, or to deposit money into a state or local fund under the State or local program shall include a bond or other financial security as an element of a forest conservation plan. This section does not apply to agencies of any federal, state, county or municipal government. Requirements. A financial security shall be furnished in the form of: A bond which shall be made payable to the Department or local authority; An irrevocable letter of credit which shall: Be equivalent to the required bond, Be issued by a financial institution authorized to do business in Maryland, Expressly state that the total sum is guaranteed to be available and payable directly to the Department on demand in the event of forfeiture, and Be in force until all mitigation for reforestation and afforestation and monitoring requirements have been fulfilled to the satisfaction of the Department or local authority or until all contributions have been made to the State or local fund; or Other security approved by the Department or local authority. The financial security shall: Ensure that: The afforestation, reforestation, and associated maintenance agreements are conducted and maintained in accordance with the approved forest conservation plan, or Contributions have been made to the State or local fund; Be in the amount equal to the estimated cost of afforestation and reforestation, or the amount of the contribution due, as determined by the Department or local authority; Be in a form and content approved by the Department or local authority. The value of the financial security: Shall be based on: The cost to perform all work required by the afforestation or reforestation plan if the work had to be performed by or contracted out by the Department or local authority, or When appropriate, the amount due for a fund contribution; May be adjusted according to the actual cost of mitigation for afforestation and reforestation or, if the cost of future mitigation work changes, the Department or local authority shall notify the obligee of a proposed adjustment and provide an opportunity for an informal conference on the adjustment; and May be reduced if the obligee proves to the Department or local authority that the costs to complete the mitigation project have been reduced. A surety bond or other alternative form of security may not be canceled by the surety, bank, or other issuing entity unless both of the following conditions are satisfied: The surety notifies the Department and the obligee of its intent to cancel the bond, in writing, by registered mail, not less than 90 days before cancellation; and At least 45 days before the cancellation date indicated in the notice, the obligee files a commitment from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice. After one growing season, the person required to file a bond or other financial security under this regulation may request reduction of the amount of the bond or other financial security by submitting a written request to the Department with a justification for reducing the bond or other financial security amount, including estimated or actual costs to ensure that the afforestation or reforestation requirements are met. The Department shall determine whether a lesser amount is sufficient to cover the cost of afforestation or reforestation, taking into account the following: The number of acres; The proposed method of afforestation or reforestation; The cost of planting materials or replacement materials; The cost of maintenance of the afforestation or reforestation project; and Other relevant factors. If, after two growing seasons or 1 year, whichever is greater, the plantings associated with the afforestation or reforestation meet or exceed the standards of the local or State program, the remaining amount of the cash bond, letter of credit, surety bond, or other security shall be returned or released. Bond Release. The bond shall be released on receipt of written notice from the Department or local authority, if applicable, stating that all afforestation or reforestation requirements have been met. The written notice shall be sent at the end of the required 2-year monitoring and management period, as provided in the maintenance agreement. If the Department fails to send written notice within 60 days after the end of the monitoring and management period, the bond shall be automatically released. Financial Security Forfeiture. The bond or other financial security may be subject to forfeiture if the obligee fails to comply with: Revocation of the forest conservation plan; An administrative order; or An element of the afforestation or reforestation plan. The Department or local authority shall notify the obligee, by certified mail, of the intention of the Department or local authority to initiate forfeiture proceedings. The obligee has 30 days from receipt of the notice of forfeiture to show cause why the bond or other financial security may not be forfeited. If the obligee fails to show cause, the bond or other financial security shall be forfeited. A local program may substitute for the bonding provisions of §B of this regulation a process that is consistent with the State bonding procedure. An applicant under the State or local program shall have in effect at all times approved long-term protective measures as provided for in Natural Resources Article, §5-1607, Annotated Code of Maryland, to retain as forest all land forested, afforested, or reforested under this subtitle. A local program shall contain provisions for long-term protective measures including, but not limited to, §B of this regulation. Approved Forest Management Plan. Procedure for Approval. The forest management plan: Shall be legally binding from the date of approval; Shall be prepared by a licensed professional forester; Shall be submitted to the Department's forester assigned to the county where the property is located; and May be amended periodically, as provided for in §B(2) of this regulation. The Department's forester shall review the plan to ensure that it is complete and consistent with the State or local program. The Department shall notify the local authority and the applicant if the forest management plan is approved. Procedure for Amendment of an Approved Forest Management Plan. An approved forest management plan may be amended if there is a change in site conditions or landowner objectives. Amendments shall be prepared by a licensed professional forester. The amendment shall be submitted to the Department's forester assigned to the county where the property is located. The forester shall review the amendment to ensure that it is complete and consistent with the State or local program. The Department shall notify the local authority and the applicant if the amendment is approved. The applicant shall sign the amendment. Forest Conservation and Management Agreement. An applicant may satisfy the requirement for long-term protection under Natural Resources Article, §5-1607(e), Annotated Code of Maryland, by executing and maintaining a Forest Conservation and Management Agreement, as provided in Tax-Property Article, §8-211, Annotated Code of Maryland, and COMAR 08.07.03. This agreement shall provide for notification to the approving authority on its termination by the property owner. Other Legally Binding Protective Agreements. Other legally binding protective agreements include: Covenants running with the land; Deed restrictions; Conservation easements; and Land trusts. Other legally binding agreements shall provide: Protection for land forested, afforested, or reforested under Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland, and this subtitle; and Limitation on the uses of forest to those that are consistent with forest conservation. Within 30 days of execution, an applicant shall record a legally binding protective agreement under this section in the local land record office in the county where the project is located. An applicant may include in a forest conservation plan another long-term protective measure if the applicant demonstrates to the satisfaction of the Department that the measure will provide for the long-term protection of the areas retained, afforested, or reforested under this subtitle. Procedure for a Timber Harvesting Plan. An individual may harvest timber on forested, reforested, or afforested areas protected under an approved forest conservation plan provided that the harvest: Is consistent with the intent of an approved forest management plan, forest conservation management agreement, or other long-term protective agreement; Is subject to a timber harvest plan: Prepared by a licensed professional forester, Submitted to the local forest conservancy district board for review and approval, and That remains in effect for 2 years; and Is consistent with the intent and requirements of the approved forest conservation plan. The local forest conservancy district board shall notify the individual whether the timber harvest plan under §F(1) of this regulation has been approved. Natural Resources Article, §§5-1601—5-1613, Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .01 amended effective July 1, 1996 (23:13 Md. R. 942) Regulation .02 amended effective July 1, 1996 (23:13 Md. R. 942); August 20, 2001 (28:16 Md. R. 1482) Regulation .02F amended effective November 2, 2009 (36:22 Md. R. 1723) An individual may prepare a forest stand delineation or a forest conservation plan, if the individual: Is a licensed forester; Is a licensed landscape architect; Is approved by a local program for work in that jurisdiction and the program has: Received final approval by the Department, and Criteria for a qualified professional consistent with the requirements of the Department; or Meets the requirements of §B of this regulation. An individual may be approved by the Department as a qualified professional if the individual: Possesses the following education or experience requirements: A 4-year degree in the natural resources sciences, natural resource management, landscape planning, or environmental planning, 4 years of professional experience in natural resources sciences, natural resource management, landscape planning, environmental planning, or the equivalent as determined by the Department, or A graduate degree in natural resources sciences and 1 year of professional experience; Has shown the ability to meet the obligations required by the Department to prepare a forest stand delineation and a forest conservation plan; and Has satisfactorily completed a forest conservation training program approved by the Department. The Department shall approve forest conservation training programs to be offered on a regular basis. This approval is contingent on the proposed training program demonstrating how to: Develop and interpret a forest stand delineation and forest conservation plan according to criteria stated in COMAR 08.19.04; Prepare and interpret soils, topography, floodplain, wetlands, and site maps; Prepare afforestation and reforestation plans according to criteria stated in COMAR 08.19.04; Prepare a sketch map of a site, showing areas of forest retention, proposed reforestation, or afforestation; Identify and evaluate protection measures that may be appropriate for forested areas that are sensitive to disturbance; Identify flora and fauna, including trees, woody shrubs, plants, and wildlife; Diagnose and treat forest pest and disease problems; and Understand ecosystem interactions including: Water regime impacts, Soil variations as they affect existing trees and species selection for afforestation and reforestation, Wildlife habitats, Multistoried plant canopies, and Forest successional stages. The Department may revoke or temporarily suspend its approval of an individual as a qualified professional, pursuant to §B of this regulation, if the individual is found guilty of: Fraud or deceit in obtaining the Department's approval as a qualified individual; or Negligence or wrongful conduct in the preparation of a forest stand delineation or forest conservation plan. Hearing. Approval of an individual as a qualified professional may not be revoked or temporarily suspended until after the individual has a hearing before the Department. Notice of the cause for the suspension or revocation and the hearing date shall be sent to the individual at the individual's last known address by registered or certified mail at least 20 days before the hearing. The nonappearance of the individual after the required notice has been given does not preclude holding the hearing. A hearing under this section is a contested case hearing and shall be conducted under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. The Department may reissue its approval of any qualified professional whose approval was previously revoked. Seminars for Local Officials. The Department shall provide a training program to assist local officials in the development of local programs, including one seminar per year for each geographic region of the State for the calendar years of 1992 and 1993. For the purposes of this training program the geographic regions are: Central Region—Baltimore, Carroll, Cecil, Harford, Howard, Kent, Montgomery, and Queen Anne's counties and Baltimore City; Eastern Region—Caroline, Dorchester, Somerset, Talbot, Wicomico, and Worcester counties; Southern Region—Anne Arundel, Calvert, Charles, Prince George's, and St. Mary's counties; and Western Region—Allegany, Frederick, Garrett, and Washington counties. Additional Seminars. The Department may offer additional annual seminars to assist local officials, developers, planners, surveyors, engineers, foresters, biologists, and landscape architects in the development, review, or approval of forest stand delineations and forest conservation plans. The Department may sponsor additional seminars in conjunction with other professional and trade organizations. Application. The provisions of this chapter apply to a person: Under the State program making application for a subdivision or project plan, grading, or sediment control permit, on areas 40,000 square feet or greater; and Violating the terms and provisions of an easement, covenant, or deed restrictions regarding a forest mitigation bank. A local authority may adopt the provisions of this chapter for the enforcement of a local program. Complaints and Orders. In addition to sanctions authorized by Natural Resources Article, §5-1612, Annotated Code of Maryland, the Department may serve a written complaint on an alleged violator if the Department determines that there has been a violation of: A provision of Natural Resources Article, §§5-1601—5-1611, Annotated Code of Maryland; A regulation of this subtitle; A forest stand delineation or forest conservation plan; An administrative order; or An easement, covenant, or deed restriction regarding a forest mitigation bank. The complaint shall: Identify the violator and the location of the violation; State the provision violated; State the specific facts on which the complaint is based; and Provide an opportunity to request a hearing to contest the complaint. Corrective Action. At any time, including during an enforcement action, the Department may issue an administrative order requiring the violator to take corrective action within a certain time period. The corrective action may include an order to: Stop the violation; Stabilize the site; Stop all construction work at the site of a regulated activity; Restore or rectify unlawfully cleared areas; or Submit a written report or plan concerning the violation. Service. A complaint, order, or other administrative notice issued by the Department shall be served: On the violator personally; On the violator's agent at the activity site; or By certified mail to the violator's last known address. An order issued under this regulation is effective immediately, according to its terms, when it is served. Hearings. The Department shall give notice and hold a hearing under this chapter in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. Within 10 calendar days of receiving a complaint, order, or notice under this chapter, the violator may request a hearing, in writing. If a person has been served with an order for corrective action, the person may request a stay in conjunction with a request for a hearing. A request for stay may be heard before or during a hearing on the complaint. At the request of a violator, a request for stay may be heard within 10 business days of the Department's receipt of the request. Administrative Action for a Forest Conservation Plan or Bond. The Department may suspend or revoke a forest conservation plan or forfeit a bond on a forest conservation plan on failure of the violator to comply with the requirements of an administrative order. In addition to seeking an injunction to enforce the terms of any easement, covenant, or deed restrictions regarding a forest mitigation bank, or seeking any other civil remedies, the Department may assess noncompliance fees against a person found to be in noncompliance with the terms of an easement, covenant, or deed restrictions regarding a forest mitigation bank. The fee shall be a penalty of 30 cents per square foot of the area found to be in noncompliance with the requirements. Money collected as noncompliance penalties shall be deposited in the State Forest Conservation Fund. Statutory Remedies. The provisions of this subtitle may not be construed to limit or affect the authority of the Department to proceed against violators under Natural Resources Article, §5-1612, Annotated Code of Maryland. Plan Suspension and Revocation. The Department may suspend or revoke a plan after notice to the violator and opportunity for a hearing has been provided if the Department determines that one or more of the following has occurred: Failure of a violator to post a bond required under COMAR 08.19.05.01B; Failure to comply with the requirements of an administrative action or order issued under this subtitle, or for a violation of Natural Resources Article, §§5-1601—5-1612, Annotated Code of Maryland; Misrepresentation in the application process or failure to disclose a relevant or material fact; Violation of a forest conservation plan requirement; Substantial deviation from the conditions, specifications, or requirements of a plan; Changes in site conditions, new information, or amended regulatory requirements necessitate revocation before a person's rights under a plan have vested. Notice. Except as provided under §G of this regulation, the Department may not suspend or revoke a forest conservation plan unless the Department first gives the violator written notice by certified mail of the specific facts that warrant suspension or revocation, and an opportunity to be heard. Contested Case Hearings. On receipt of written notice to suspend or revoke a forest conservation plan, the violator has 10 calendar days to request a contested case hearing. A hearing under this regulation shall be conducted in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. If the Department does not receive a request for a hearing, the forest conservation plan shall be suspended or revoked. Emergency Action. The Department may order the immediate suspension of a forest conservation plan if the Department finds that the public health, safety, or welfare imperatively requires the emergency suspension. The Department shall promptly give the violator written notice that the emergency action has been taken. A notice of emergency action shall include a statement of: Specific facts on which the emergency suspension is based; and The violator's opportunity to be heard. By December 31, 1992, the Department shall prepare and provide to local authorities a statewide forest resource inventory that includes: A list of priority areas for reforestation or afforestation of both publicly and privately owned land on a county-by-county basis; and Specific areas which contain plants and animal species to be considered as priority areas for forest retention and protection under Natural Resources Article, §5-1607(c), Annotated Code of Maryland. The Department shall update the Statewide forest resource inventory at least every 5 years or as considered appropriate. Natural Resources Article, §§1-104 and 5-1601—5-1613; State Government Article, §10-206; Annotated Code of Maryland Effective date: January 20, 1992 (19:1 Md. R. 24) Regulation .01A amended effective November 22, 1993 (20:23 Md. R. 1804) Regulation .01B, C amended effective July 1, 1996 (23:13 Md. R. 942) Regulation .01D—F adopted effective August 20, 2001 (28:16 Md. R. 1482) Regulation .01E amended effective April 5, 2010 (37:7 Md. R. 569) Regulation .02A amended effective August 20, 2001 (28:16 Md. R. 1482) Regulation .03A—C amended effective June 15, 1998 (25:12 Md. R. 946) Regulation .03C, F amended effective April 5, 2010 (37:7 Md. R. 569) Regulation .04B amended effective August 20, 2001 (28:16 Md. R. 1482)