Chapter 04. State Forest Conservation Program
Regulation .01 Application.LinkCopy Citation
A.
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:
(1)
On or after July 1, 1992, any construction, grading, or sediment control activity, or subdivision or project plan by a:
(a)
State agency, except for an activity regulated under Natural Resources Article, §5-103, or
(b)
Unit of county government, municipal corporation, or other political subdivision which uses State funds for that activity;
(2)
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;
(3)
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
(4)
A project for which a local program requests State program review, if:
(a)
The project has State-wide impact on significant forest resources; and
(b)
The Department agrees to review the project.
B.
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.
C.
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.
D.
The following procedure shall apply to a unit of government described in §A(1)(b) of this regulation:
(1)
The subdivision or project plan or application for grading or sediment control permit or other construction plan shall be submitted to the local authority;
(2)
The local authority shall notify the Department within 15 days of receipt of the project plan or application;
(3)
Within 15 days of receipt of notice from the local authority, the Department shall:
(a)
Determine whether the project has impact on significant forest resources; and
(b)
Notify the local authority whether the project is subject to the State program;
(4)
If the Department determines that the project is subject to the State program, the:
(a)
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
(b)
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
(5)
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.
Regulation .02 Forest Stand Delineation Submittal Procedures.LinkCopy Citation
A.
The Department shall:
(1)
Review an application for a forest stand delineation to determine whether it is complete and correct; and
(2)
Acknowledge receipt of the application in writing by regular mail.
B.
The Department shall consider a forest stand delineation application complete if the application contains all of the following information:
(1)
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;
(2)
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:
(a)
100-year nontidal floodplains in watersheds 400 acres or larger, or for Class III streams,
(b)
Intermittent streams and perennial streams, including buffers that are at least 50 feet wide measured from the top of the normal bank,
(c)
Steep slopes of 25 percent or more,
(d)
Critical habitat areas,
(e)
Nontidal or tidal wetlands and their buffers,
(f)
Topographic contours and intervals,
(g)
Hydric soils, erodible soils on slopes of 15 percent or more, and soils with structural limitations as classified by USDA soil surveys; and
(3)
A completed application form supplied by the Department, complying with the requirements of §§I and J of this regulation.
C.
A simplified forest stand delineation may be used if:
(1)
Forest does not currently exist on the site or forest on the site will not be cut, cleared, or graded for the proposed development;
(2)
All forest on the site will be protected under a long-term protective agreement; and
(3)
The environmental features map, in addition to the requirements of §B of this regulation, exhibits:
(a)
Field-verified forest boundaries delineating the:
(i)
Maximum aerial extent of the canopy, and
(ii)
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;
(b)
Dominant species type of the forest;
(c)
A proposed limit of disturbance line; and
(d)
Proposed areas of long-term protection.
D.
An intermediate forest stand delineation may be used if:
(1)
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;
(2)
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;
(3)
The environmental features map, in addition to the requirements in §C(4) of this regulation, exhibits:
(a)
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,
(b)
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,
(c)
Composition, using dominant species, forest association, or other description,
(d)
Total acreage of forest proposed for disturbance,
(e)
Past and present management practices, and
(f)
Potential of forested areas adjacent to proposed disturbance limits to recover, or recommendations for management after disturbance.
E.
A full forest stand delineation:
(1)
Shall be used if a development does not fall within the category for which an intermediate or simplified forest stand delineation is applicable; and
(2)
Includes an environmental features map, in addition to the requirements of §B of this regulation, that exhibits:
(a)
Location, description, and size of forest stands with forest boundaries extending off-site,
(b)
Sampling locations used for the analysis and, if a plot method is used, the centers of the plots marked in the field,
(c)
Field-verified locations of any priority retention areas, and
(d)
Field-verified locations of any priority afforestation areas located outside of existing forest areas.
F.
A full forest stand delineation application shall include a forest stand summary analysis of existing forest stands and environmental features:
(1)
Using field sampling with methods that ensure a minimum of 67 percent confidence level or procedures approved by the Department;
(2)
Giving a general site description including soils, topography, and hydrology;
(3)
Detailing methodology of sampling;
(4)
Describing forest stand:
(a)
Composition derived from species specific data,
(b)
Structure,
(c)
Condition,
(d)
Function; and
(5)
Evaluating areas for retention or disturbance.
G.
An approved forest stand delineation may remain in effect for a period not longer than 5 years.
H.
A simplified, intermediate, or full forest stand delineation shall:
(1)
Be prepared by a licensed Maryland forester, licensed landscape architect, or qualified professional as specified in COMAR 08.19.06.01A; and
(2)
Exhibit a stamp or certification of the preparer.
I.
Authorized Signature.
(1)
The application shall be signed by:
(a)
An officer of the corporation or an authorized agent of a corporation;
(b)
An authorized official of a federal, State, or local government;
(c)
A partner of an association or partnership; or
(d)
An individual applicant.
(2)
The individual who signs an application is responsible for the truth, accuracy, and completeness of all information in the application.
J.
Time for Submittal.
(1)
A forest stand delineation for the affected tract shall be submitted:
(a)
At the initial stages of subdivision or project plan approval;
(b)
Before a grading permit application is submitted; or
(c)
Before a sediment control application is submitted.
(2)
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.
K.
Notification by the Department.
(1)
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.
(2)
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.
(3)
If the delineation is incorrect, the Department shall notify the applicant and require the applicant to correct the delineation.
(4)
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.
(5)
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:
(a)
Inclement weather conditions;
(b)
Review required by other State agencies;
(c)
Review required by local agencies; or
(d)
Other justifiable extenuating circumstances.
Regulation .03 General Forest Conservation Plan Provisions.LinkCopy Citation
A.
In developing a forest conservation plan, the applicant shall give priority to techniques for retaining existing forest on the site.
B.
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:
(1)
How techniques for retention have been exhausted;
(2)
Why the priority forests and priority areas specified in Natural Resources Article, §5-1607(c)(1), Annotated Code of Maryland, are not being retained:
(a)
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;
(b)
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
(c)
How the standards for meeting afforestation or reforestation requirements in Natural Resources Article, §5-1607(b)(1) or (3) will be followed; and
(3)
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.
C.
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.
D.
The demonstration required by §§B and C of this regulation shall contain:
(1)
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
(2)
Certification by the preparer of the forest conservation plan.
E.
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:
(1)
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;
(2)
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;
(3)
Nontidal wetlands shall be considered to be priority areas for retention and replacement;
(4)
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.
F.
Retention Areas.
(1)
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.
(2)
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:
(a)
All priority areas are protected in retention areas;
(b)
A minimum 10,000 square foot protection zone is specified; and
(c)
All critical root zone area is included in the protection area.
(3)
Retained trees, shrubs, or plants may be incorporated into afforestation and reforestation plans.
Regulation .04 Preliminary Forest Conservation Plan Submittal Procedures.LinkCopy Citation
A.
A preliminary forest conservation plan shall:
(1)
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
(2)
Exhibit a stamp or certification of the preparer.
B.
The Department shall:
(1)
Review an application for preliminary forest conservation plan approval to determine whether it is complete and correct; and
(2)
Acknowledge receipt of the preliminary forest conservation plan in writing by regular mail.
C.
The Department shall consider an application complete if the application contains all of the following:
(1)
The approved forest stand delineation for the site to scale;
(2)
A table listing the:
(a)
Proposed values, when applicable, of the following to the nearest 1/10 of an acre including total:
(i)
Parcel area,
(ii)
Tract area,
(iii)
Area in 100-year nontidal floodplain,
(iv)
Net tract area,
(v)
Area of existing forest cover,
(vi)
Area of proposed forest clearing,
(vii)
Area of reforestation,
(viii)
Area of afforestation,
(ix)
Area of retention areas;
(b)
Land use category, pertinent threshold percent, and area;
(3)
Proposed location of retention areas;
(4)
Proposed specifications for protection of retention areas;
(5)
In the case of afforestation or reforestation, a proposed afforestation or reforestation plan which shows:
(a)
Locations of areas to be planted;
(b)
Specifications for conducting the afforestation or reforestation;
(c)
Construction sequence with notification for inspection;
(d)
Proposed maintenance and monitoring agreement;
(6)
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:
(a)
Location;
(b)
Soils;
(c)
Environmental features which are priority planting areas as stated in Natural Resources Article, §5-1607(d), Annotated Code of Maryland;
(7)
Proposed limits of disturbance delineated;
(8)
Proposed long-term protection agreement; and
(9)
Sufficient information for the Department to process the forest conservation plan.
D.
The review of a preliminary forest conservation plan shall be concurrent with the review of the preliminary site plan.
E.
A preliminary forest conservation plan may be modified during the different stages of the review process provided the Department approves the changes.
F.
Authorized Signature.
(1)
The application shall be signed by:
(a)
An officer of the corporation or an authorized agent of a corporation;
(b)
An authorized official of a federal, State, or local government;
(c)
A partner of an association or partnership; or
(d)
An individual applicant.
(2)
The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application.
G.
The preliminary forest conservation plan shall be:
(1)
Submitted at a reasonable time before a preliminary plan of subdivision is submitted; and
(2)
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.
H.
For the purposes of processing the preliminary forest conservation plan, the Department shall:
(1)
Consult with the jurisdiction; and
(2)
Determine when in the subdivision review process the preliminary plan of subdivision occurs.
I.
Approval of a preliminary forest conservation plan under the State program supersedes any inconsistent local laws, ordinances, or plans.
J.
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.
Regulation .05 Final Forest Conservation Plan Submittal Procedures.LinkCopy Citation
A.
A final forest conservation plan shall:
(1)
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
(2)
Exhibit a stamp or certification of the preparer.
B.
The Department shall:
(1)
Review an application for final forest conservation plan approval to determine whether it is complete and correct; and
(2)
Acknowledge receipt of the final forest conservation plan in writing by regular mail.
C.
The Department shall consider an application complete if the application contains:
(1)
Locations and types of protective devices to be used during construction activities to protect trees, and forests designated for conservation, including protective devices:
(a)
Which shall be installed if clearing, grading, or construction occurs within 50 feet of a retention area; and
(b)
That shall be field located and inspected pursuant to Regulation .14 of this chapter before the start of construction;
(2)
Protective measures which shall include:
(a)
Details and specifications required to implement the proposed protection measures;
(b)
A construction sequence that describes:
(i)
Clearing, grading, or installation of sediment and erosion control measures;
(ii)
Installation and removal of protective devices;
(iii)
Inspections;
(iv)
Other activities that may be required to implement the proposed protection measures;
(c)
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;
(d)
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;
(e)
A requirement that field adjustments may be made subject to approval of an amended forest conservation plan;
(3)
Assurances that forest retention area protective devices shall be:
(a)
Visible;
(b)
Well-anchored;
(c)
Approved in the field before clearing or grading, or when construction commences; and
(d)
In place and maintained as needed until construction completion, final inspection, and an occupancy permit is issued, unless waived by the approving authority;
(4)
Substantive elements required by Regulations .04C—E of this chapter, as finalized elements of the forest conservation plan, including:
(a)
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;
(i)
Watering, and
(ii)
Reinforcement planting provisions if survival falls below the required recommendations in the following chart:
1.
These stocking and survival requirements are the minimum numbers estimated to meet the definition of forest from bare land.
2.
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.
3.
Spacing does not imply that trees or shrubs must be planted in a grid pattern.
Notes:
(b)
A long-term binding protective agreement specified in COMAR 08.19.05.02 that:
(i)
Provides protection for areas of forest conservation, including areas of afforestation, reforestation, and retention; and
(ii)
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
(5)
Other information the Department determines is necessary.
D.
If critical root zone in the retention area is disturbed by clearing, grading, or construction, additional protective measures shall be required, including:
(1)
Root pruning;
(2)
Crown reduction; or
(3)
Watering.
E.
Authorized Signature.
(1)
The application shall be signed by:
(a)
An officer of the corporation or an authorized agent of a corporation;
(b)
An authorized official of a federal, State, or local government;
(c)
A partner of an association or partnership; or
(d)
An individual applicant.
(2)
The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application.
F.
The final forest conservation plan shall be:
(1)
Submitted for a site at the same time as the following plans or permit applications are submitted:
(a)
A final subdivision plan,
(b)
A final project plan,
(c)
An application for a grading permit; and
(2)
Approved before a final subdivision or project plan is approved, or a grading or sediment control permit is issued.
G.
The final forest conservation plan may not be modified without the approval of the Department.
H.
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.
I.
Approval of a final forest conservation plan under the State program supersedes any inconsistent local laws, ordinances, or plans.
Regulation .06 State Procedures for Minor Development Projects.LinkCopy Citation
A.
An applicant may file the forest stand delineation and the forest conservation plan in a single submittal, if the following requirements are met:
(1)
The activity is a minor development project as defined in COMAR 08.19.01.03B(29); and
(2)
The submittal includes an application form provided by the Department.
B.
The Department shall:
(1)
Provide a simplified application form for the concurrent submission of a forest stand delineation and forest conservation plan; and
(2)
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.
Regulation .07 Afforestation and Retention.LinkCopy Citation
A.
A person subject to this subtitle making application for subdivision approval, project plan approval, grading permit, or sediment control permit shall:
(1)
Conduct afforestation on the lot or parcel in accordance with the following:
(a)
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:
(i)
Agriculture and resource areas, and
(ii)
Medium density residential areas;
(b)
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:
(i)
Institutional development areas,
(ii)
High density residential areas,
(iii)
Mixed use and planned unit development areas, and
(iv)
Commercial and industrial use areas;
(2)
Comply with the following when cutting into forest cover that is currently below the afforestation percentages described in §A of this regulation:
(a)
The required afforestation level shall be determined by the amount of forest existing before cutting or clearing begins; and
(b)
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.
B.
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.
C.
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:
(1)
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
(2)
Contiguous forest that connects the largest undeveloped or most vegetated tracts of land within and adjacent to the site.
D.
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:
(1)
Trees, shrubs, or plants determined to be rare, threatened, or endangered under:
(a)
The federal Endangered Species Act of 1973 in 16 U.S.C. §§1531—1544 and in 50 CFR 17,
(b)
The Maryland Nongame and Endangered Species Conservation Act, Natural Resources Article, §§10-2A-01—10-2A-09, Annotated Code of Maryland, and
(c)
COMAR 08.03.08;
(2)
Trees that:
(a)
Are part of an historic site,
(b)
Are associated with an historic structure, or
(c)
Have been designated by the Department as a national, State, or local champion tree; and
(3)
A tree having a diameter measured at 4.5 feet above the ground of:
(a)
30 inches or more, or
(b)
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.
Regulation .08 Reforestation.LinkCopy Citation
A.
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.
B.
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:
(1)
Agricultural and resource areas 50 percent;
(2)
Medium density residential areas 25 percent;
(3)
Institutional development areas 20 percent;
(4)
High density residential areas 20 percent;
(5)
Mixed use and planned unit development areas 15 percent;
(6)
Commercial and industrial use areas 15 percent.
C.
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.
D.
Reforestation Formula.
(1)
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.
(2)
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.
(3)
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.
E.
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.
F.
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.
G.
The following are considered a priority for afforestation or reforestation as provided for in Natural Resources Article, §5-1607(d), Annotated Code of Maryland:
(1)
Establish or enhance forest buffers adjacent to streams and coastal bays;
(2)
Establish or increase existing forested corridors;
(3)
Establish or enhance forest buffers adjacent to critical habitats, when appropriate;
(4)
Steep slopes;
(5)
Buffers adjacent to areas of differing land uses;
(6)
Increase overall area of contiguous forest; and
(7)
Establish or enhance forested areas in the 100-year floodplains.
H.
Recommended Tree Species List.
(1)
Native plant materials shall be used for afforestation or reforestation, when appropriate, and selected from a list of approved species established by the Department.
(2)
The Department shall adopt a list of tree species to be used for any required afforestation or reforestation.
I.
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.
J.
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.
Regulation .09 State Forest Conservation Fund.LinkCopy Citation
A.
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.
B.
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.
C.
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:
(1)
Will occur within the same county or watershed as the applicant's project; and
(2)
Are not being planted to comply with:
(a)
Reforestation or afforestation requirements of the State or local Forest Conservation Act program, or
(b)
Requirements of any other federal, State, or local statute, ordinance, or regulation.
D.
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:
(1)
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
(2)
For a project outside a priority funding area, at a rate of 36.6 cents per square foot of the area of required planting.
Regulation .09-1 State Forest Mitigation Banks.LinkCopy Citation
A.
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.
B.
The area of land on which the bank is planted shall be a minimum of 1 acre.
C.
A forest mitigation bank shall use native plants for afforestation and reforestation, unless inappropriate.
D.
A person proposing to create a forest mitigation bank shall submit to the Department:
(1)
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
(2)
A forest mitigation bank plan which shall include:
(a)
A 2-year maintenance agreement which meets all the standards described in COMAR 08.19.05,
(b)
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,
(c)
All the information required by Regulation .04 of this chapter for a preliminary forest conservation plan, and
(d)
The draft easement, covenants, or deed restrictions which will be sold to the developer when credits are withdrawn from the bank.
E.
A forest mitigation bank shall:
(1)
Establish or enhance forest buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet;
(2)
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;
(3)
Establish or enhance forested buffers adjacent to critical habitats where appropriate;
(4)
Establish or enhance forested areas in 100-year floodplains;
(5)
Stabilize slopes of 25 percent or greater;
(6)
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;
(7)
Establish buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights-of-way; or
(8)
Establish forested areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate.
F.
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.
G.
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.
H.
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.
Regulation .10 Variance.LinkCopy Citation
A.
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.
B.
An applicant for a variance shall:
(1)
Describe the special conditions peculiar to the property which would cause the unwarranted hardship;
(2)
Describe how enforcement of these rules will deprive the applicant of rights commonly enjoyed by others in similar areas;
(3)
Verify that the granting of the variance will not confer on the applicant a special privilege that would be denied to other applicants;
(4)
Verify that the variance request is not based on conditions or circumstances which are the result of actions by the applicant;
(5)
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
(6)
Verify that the granting of a variance will not adversely affect water quality.
C.
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.
Regulation .11 Public Notice.LinkCopy Citation
A.
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:
(1)
Forest conservation plan; or
(2)
Submittal of a minor development project application.
B.
The public notice shall contain:
(1)
The name and address of the applicant;
(2)
A description of the nature and location of the proposed activity;
(3)
Instructions for submission of written comments, requests for a public hearing, and requests to be included on the interested persons list;
(4)
The expiration date for the opportunity to comment or to request a public information hearing;
(5)
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
(6)
The name, address, and telephone number of an individual in the Department from whom information about the application may be obtained.
C.
The public notice may be given by:
(1)
Joint notice with other federal, State, county, or municipal agencies;
(2)
Joint notice with other units or programs within the Department;
(3)
Selected mailing to federal, State, county, or municipal authorities and persons on the interested persons list;
(4)
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
(5)
Publication in the Maryland Register under State Government Article, §7-214, Annotated Code of Maryland.
Regulation .12 Public Information Hearing.LinkCopy Citation
A.
An interested person may request in writing a public information hearing.
B.
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.
C.
The Department may extend the time period for the public information hearing for the following extenuating circumstances:
(1)
Inclement weather conditions;
(2)
Review required by other State agencies;
(3)
A request by an applicant; or
(4)
Other justified extenuating circumstances.
D.
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.
E.
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.
F.
Order of Hearing.
(1)
The presiding official may determine the order of presentation of comments and questions at the public information hearing.
(2)
The public information hearing may be conducted in the following order:
(a)
Introduction by the Department;
(b)
Presentation of the proposed project by the applicant;
(c)
Comments and questions by public officials;
(d)
Comments and questions by other persons; and
(e)
Closing of the public information hearing by the presiding officer.
G.
The presiding officer has the authority and duty to:
(1)
Conduct a full and fair public information hearing;
(2)
Act to avoid unnecessary delay and to maintain order; and
(3)
Regulate the course of the public information hearing and the conduct of the participants.
H.
The presiding officer shall prepare an official record of the public information hearing.
I.
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.
Regulation .13 Approval Decision and Appeal.LinkCopy Citation
A.
Approval Decision.
(1)
After the closing date for receipt of written comments and after a public information hearing, if a hearing has been requested, the Department shall:
(a)
Consider the written comments, testimony, and other information received; and
(b)
Afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony.
(2)
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.
(3)
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.
B.
Appeal of Final Forest Conservation Plan Decision.
(1)
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.
(2)
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.
(3)
The contested case hearing request shall contain:
(a)
The name, address, and telephone number of:
(i)
The person requesting the hearing, and
(ii)
An attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel;
(b)
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;
(c)
A statement of the specific relief desired as a result of the contested case hearing; and
(d)
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.
(4)
The contested case hearing shall be conducted under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04.
(5)
The decision of the Department on the basis of the contested case hearing is the final decision for purposes of judicial review.
C.
Delegation of Decision-Making Authority.
(1)
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.
(2)
If there is an appeal under §B of this regulation, the Assistant Secretary shall render the final decision for the Department.
D.
Determination on Request for Contested Case Hearing.
(1)
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)
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;
(b)
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
(c)
Made a contested case hearing request within the required 30-day time period.
(2)
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.
(3)
The notification of the determination to deny a request for a contested case hearing shall contain the following:
(a)
The specific reasons for the denial;
(b)
A statement of the right to request a review of the denial under §D(4) of this regulation; and
(c)
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.
(4)
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.
(5)
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.
Regulation .14 Inspections.LinkCopy Citation
A.
The State shall conduct at least three field inspections of a site subject to an approved forest conservation plan as follows:
(1)
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;
(2)
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;
(3)
The third inspection shall take place at the end of the 2-year maintenance agreement, as stated in COMAR 08.19.05.01.
B.
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.
Chapter annotations
Authority: Natural Resources Article, §§1-104 and 5-1601—5-1612; State Government Article, §10-206; Annotated Code of Maryland
History: Effective date: January 20, 1992 (19:1 Md. R. 24)
History: Regulation .01 amended effective November 2, 2009 (36:22 Md. R. 1723)
History: Regulation .01A amended effective March 14, 2005 (32:5 Md. R. 579)
History: Regulations .02F, .04A, and .05A amended effective November 22, 1993 (20:23 Md. R. 1803)
History: Regulation .02 repealed and new Regulation .02 adopted effective July 1, 1996 (23:13 Md. R. 941)
History: Regulation .03 amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 946)
History: Regulation .03B amended effective November 2, 2009 (36:22 Md. R. 1723)
History: Regulation .04 repealed and new Regulation .04 adopted effective July 1, 1996 (23:13 Md. R. 941)
History: Regulation .04J adopted effective August 20, 2001 (28:16 Md. R. 1482)
History: Regulation .05 repealed and new Regulation .05 adopted effective July 1, 1996 (23:13 Md. R. 941)
History: Regulation .07 amended effective June 15, 1998 (25:12 Md. R. 946)
History: Regulation .07C, D amended effective November 2, 2009 (36:22 Md. R. 1723)
History: Regulation .08 amended effective June 15, 1998 (25:12 Md. R. 946)
History: Regulation .09A amended effective November 2, 2009 (36:22 Md. R. 1723)
History: Regulation .09C adopted effective June 15, 1998 (25:12 Md. R. 946)
History: Regulation .09C adopted effective March 30, 2015 (42:6 Md. R. 511)
History: Regulation .09-1 adopted effective June 15, 1998 (25:12 Md. R. 946)
History: Regulation .11A amended effective August 20, 2001 (28:16 Md. R. 1482)
History: Regulation .12B, E amended effective August 20, 2001 (28:16 Md. R. 1482)
History: Regulation .13B amended effective April 5, 2010 (37:7 Md. R. 569)