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)