These regulations establish the requirements for the design, construction, operation, and maintenance of agricultural drainage projects that are financed or managed by public drainage associations. To the maximum extent practicable, these regulations assure protection of natural resources and prevent water pollution by non-point source pollutants associated with agricultural drainage projects. The following terms have the meanings indicated. Terms Defined. “Agricultural drainage project” (project) means the construction, reconstruction, repair, straightening, widening, or deepening of any ditch, drain, canal, or other watercourse, natural or man-made, financed or managed by a public drainage association to lower the water level in the soil of adjacent lands for agricultural purposes. “Association” and “public drainage association” mean an organization established to locate, construct or reconstruct, operate and maintain ditches, drains, and channels to provide agricultural drainage under Article 25, §52, Annotated Code of Maryland. “Best management practice” (BMP) means a conservation or pollution practice that: Reduces soil loss associated with farming practices; or Minimizes movement of sediment, animal wastes, nutrients, or agricultural chemicals into the waters of the State. “Cooperator's agreement” means a landowner's written agreement with a local soil conservation district to have a soil conservation and water quality plan prepared. “Department” means the Maryland Department of Agriculture, the Department of the Environment, or the Department of Natural Resources, or any combination of them. “Maintenance” means the periodic: Control of woody growth or removal of shrubs and small trees which alter the flow, affect channel stability, or limit access to a channel; Removal of channel obstructions, debris, and minor sediment deposits so long as the removal does not: Alter the approved design of the channel; or Consist of channel reconstruction or realignment; Cleaning out or installation of sediment traps; Routine repair work needed to maintain the project in accordance with the approved design specifications; and Installation of water control structures and stabilization of soil to prevent erosion. “Off-sided construction or reconstruction” means a method of constructing channels through riparian or other woodland, characterized by the following: Construction or reconstruction operations are performed from one side of the channel called the construction side, the other side of the channel being called the off-side; Blowouts and treefalls are prevented by: Clearing the off-side bank of trees and other vegetation up to 12 feet from top of bank, and Selectively cutting diseased, damaged, and other problematic trees on the off-side that would fall into the channel from beyond the cleared area; After construction, the off-side berm is allowed to reestablish natural vegetation, while all maintenance to the channel is performed from the construction side. “Person” means any individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind any partnership, association, corporation, or other entity. Person includes the federal government, this State, any county, municipal corporation, or other political subdivision of this State or any of their units. “Pollution” means any contamination or other alteration of the physical, chemical, or biological properties of any waters of this State, including a change in temperature, taste, color, turbidity, or odor of the waters, or the discharge or deposit of any organic matter, harmful organism, or liquid, gaseous, solid, radioactive, or other substance into any waters of the State that will render the waters harmful, or detrimental to: Public health, safety, or welfare; Domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; Livestock, wild animals, or birds; or Fish or other aquatic life. “Secretary” means the Secretary of Agriculture unless the context indicates otherwise. “Soil conservation and water quality plan” means a farm plan approved by a local soil conservation district to minimize soil erosion, and to minimize the movement of sediment, animal waste, nutrients, or agricultural chemicals into the waters of the State. “Stable channel” means a channel where: The following degradation does not occur: Significant erosion of the channel banks and bottom, Erosion around culverts, bridges, or water control structures along the channel, and The formation or enlargement of gullies because of the uncontrolled entry of water flow; Significant aggregation to the channel occurs only within the designated limits on: Sediment traps, In-stream wetlands designed for this purpose, and Channel reaches designed for this purpose. “Water control structure” means a structure in an Agricultural drainage project that: Conveys water; Controls the direction or rate of flow of water; or Maintains a desired water surface elevation. “Waters of the State” includes both surface and underground waters within the boundaries of the State subject to its jurisdiction, including that portion of the Atlantic Ocean within the boundaries of the State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, public ditches, tax ditches, and public drainage systems within the State, other than those designed and used to collect, convey, or dispose of sanitary sewage. Required Plans. For any project constructed or reconstructed before the effective date of this chapter, the following apply: All associations which operate and maintain a project shall submit to the Secretary for approval: Within 1 year of the effective date of this chapter, an inspection report for the project detailing the conditions of the association's drainage system, and Within 5 years of the effective date of this chapter, an operation and maintenance plan for the project and an implementation schedule of needed corrective maintenance and repairs to the project; Until such time that an operation and maintenance plan for the project is approved by the Secretary, an association shall perform needed maintenance to the project in an environmentally sound manner; An association shall operate and maintain a project according to the operation and maintenance plan for the project approved by the Secretary; If an association intends to perform any project maintenance not addressed in an existing operation and maintenance plan for a project approved by the Secretary, the association shall obtain the written approval of the Secretary, except that an association may make immediate corrective repairs to a project when necessary; The Secretary shall make the final determination whether any proposed activity on a project is maintenance or reconstruction. For any project constructed or reconstructed after the effective date of this chapter, the following apply: Before constructing or reconstructing a project, an association shall have a construction or reconstruction plan and an operation and maintenance plan for the project approved by the Secretary; An association shall construct or reconstruct, operate and maintain a project according to the construction or reconstruction plan and the operation and maintenance plan for the project approved by the Secretary; If an association intends to perform any project maintenance not addressed in a existing operation and maintenance plan for the project approved by the Secretary, the association shall obtain the written approval of the Secretary, except that an association may make immediate corrective repairs to a project when necessary; The Secretary shall make the final determination whether any proposed activity on a project is maintenance or reconstruction. Land Use Requirements. Before any project's construction or reconstruction plan is approved: All of the association's taxable cropland acreage in a proposed project shall be under a: Current, not more than 10 years old, soil conservation and water quality plan; or Signed cooperator's agreement. If any landowner refuses to comply with §B(1)(a), the Secretary may: Waive the requirement of §B(1)(a) for those uncooperative landowners in a proposed project; and Not waive this requirement for more than 20 percent of the association's taxable cropland acreage. Those BMPs necessary to minimize non-point source water pollution shall be implemented on the cropland acreage within a proposed project. Soil conservation and water quality plans for farms within a proposed project shall be implemented, if possible, according to a timetable established by the soil conservation and water quality plan. Construction or Reconstruction Plan Requirements. Before constructing or reconstructing a project, an association shall comply with the following: Submit four copies of the construction or reconstruction plan to the Secretary for approval. The construction or reconstruction plan shall include: A transmittal letter to the Secretary, including: The name of the association; The name of the watershed and the drainage area involved; and A map indicating north arrow, watershed boundaries, scale, and any other information necessary to locate the project. The project design specifications, including: A general description of the project's soil types; The layout of the drainage channels; The location of existing areas of trees and shrubs along the channel; The design and location of water control structures; The design and location of sediment traps; A hydrological analysis if required under Regulation .05B; and A wetlands inventory map delineating the project. The association shall use the National Wetlands Inventory Maps available from the Department of Natural Resources. If the scale of the National Wetlands Inventory maps is inappropriate, the association may use maps of another scale, so long as the wetlands classification and mapping is consistent with the National Wetlands Inventory. Any lost wetlands required to be replaced under Regulation .05F and any wetlands, 1/4 acre or larger, created by the project shall be delineated on the wetlands inventory map. The construction methods, including: Open channel construction techniques; Measures to limit disturbance to the soil; Spoil spreading techniques and information concerning the volume of spoil materials and the location of spoil disposal sites; and Temporary or permanent soil stabilization techniques for channel banks, berms, and soil disposal sites. Water quality protection measures including plans for: Establishing vegetative strips along the channels; Installing BMPs along the channels; Retaining or reestablishing areas of trees, shrubs, and herbaceous growth along the channel in accordance with Regulation .05E; and Replacing wetlands in accordance with Regulation .05F. A signed statement from the local soil conservation district, stating that the project's farmland will meet the soil conservation and water quality plan requirements in accordance with Regulation .06. The project's design shall comply with Regulation .05, and the construction or reconstruction of the project shall comply with Regulation .06. Operation and Maintenance Plan Requirements. Before constructing or reconstructing a project, or as required in Regulation .03A(1) for operating and maintaining a project, an association shall comply with the following: Submit four copies of the operation and maintenance plan to the Secretary for approval. The operation and maintenance plan shall contain: A transmittal letter to the Secretary, including: The name of the association; The name of the watershed and the drainage acreage involved; and A map indicating north arrow, watershed boundaries, scale, and any other information necessary to locate the property. The project's maintenance program, including a general description of the project's soil types and provisions to: Perform routine, recurring maintenance such as mowing, seeding, and clean out; Prevent project deterioration; Install or replace project components when necessary; and Repair damage from normal deterioration, drought, flooding, or vandalism. Maintenance methods, including: Open channel maintenance techniques; Measures to limit soil disturbance; Spoil spreading techniques; and Temporary or permanent soil stabilization techniques for the channel banks, berms, and spoil disposal areas. Water quality protection measures, including plans for: Establishing and maintaining vegetative strips along a channel; Installing BMPs along a channel; Installing sediment traps; Disposing of spoil; and Retaining or reestablishing areas of trees, shrubs and herbaceous growth along a channel in accordance with Regulation .05E(4). An implementation schedule for the project's maintenance program. The project's maintenance shall comply with Regulation .06, and the project's operation and maintenance program shall comply with Regulation .07. The design of a project shall conform to the following criteria: Channel Design. An outlet shall be designated for each channel to permit the discharge of water by gravity flow or pumping. All channels shall be sloped and aligned to produce stable channels. Water Control Structures. The channel design shall include necessary water control structures for the efficient functioning of the channels. These structures include: Water control devices and weirs; Flood gates; Pumping bays; and Other structures affecting the functioning of the channel. Water control structures shall be designed, where applicable, according to the provisions in Natural Resources Article, §4-501 et seq., Annotated Code of Maryland. Flood Control. A project shall be designed to minimize upstream and downstream flooding. An association shall submit an analysis of a project's hydrological impact when downstream flooding exists or may result from a project and populated areas may be affected. Hydrological analysis shall include hydrological models and hydraulic calculations necessary to determine the changes to a 100-year frequency flood including modifications to: Water surface elevations; Water velocities; and Hydrograph timing. Formulae, models, and analysis methods for the hydrological analysis shall be subject to approval by the Secretary. Erosion Control. A project shall be designed to minimize erosion and sediment deposition. Sediment traps shall be installed in key locations along channel reaches. Water control structures shall be designed for the entry of concentrated flow of water into a channel without significant deposition or degradation. A channel shall be designed to minimize overbank wash of channel spoil by: Diverting surface water around spoil banks; Protecting channel bank stability by properly placing spoil; or Sloping the finished surface of the spoil away from a channel. Vegetated Strips. The following definitions describe the meaning of the terms used in §D: “Main channel” means the primary water course constructed or maintained by an association that drains water from a subwatershed or watershed area and lateral channels. “Lateral channel” means any watercourse constructed or maintained by an association that transports water from segments of a subwatershed or watershed to the main channel. Vegetated strips shall be designed, established, and maintained to stabilize the soil and to minimize the movement of sediment into a channel during operation. Measurements for a vegetated strip shall be made from the top of a channel bank. A minimum 10-foot wide vegetated strip shall be established and maintained along each cleared side of a main channel. A minimum 4-foot wide vegetated strip shall be established and maintained along each cleared side of a lateral channel only if acceptable BMPs submitted to the Secretary for approval are implemented on adjoining cropland. The following apply: Acceptable BMPs may include: Minimum tillage; Seasonal cover crops; Reverse berms; Permanent sediment traps in on-farm channels; and Other methods to achieve a level of water quality protection equivalent to a 10-foot wide vegetated strip. In the absence of BMPs approved by the Secretary, a minimum 10-foot wide vegetated strip shall be established and maintained along each cleared side of a lateral channel. Vegetation shall be established and maintained to stabilize the soil on the sides of both channel banks. Water Temperature Controls. One-sided or off-sided construction or reconstruction of a channel in woodland shall be used if practical. Both-sided construction of a channel in woodland shall be allowed by the Secretary only when it is the only practical construction method. Both-sided reconstruction of a channel in woodland shall be allowed by the Secretary when: It is the only practical reconstruction method; or Both-sided construction or reconstruction was previously used and both right-of-ways are clear of woody growth. Areas of trees, shrubs, and herbaceous growth that shade a channel shall be retained, replanted, or allowed to reestablish naturally, unless it can be demonstrated to the Secretary that the: Presence of trees and shrubs will prevent adequate access to a channel for maintenance; or Absence of these areas of trees and shrubs will not elevate water temperature to levels that will adversely impact fish or other aquatic life. Wetlands Replacement. An association shall replace drained or filled, non-tidal wetlands as required by this section. The following are included: Land areas that are required to be replaced by an association under this section are those areas that: Support a predominance of plants that grow in water or in periodically water saturated soils; Have remained natural and uncultivated for at least 3 successive years; and When drained or filled, will cause water pollution by significantly: Increasing erosion and siltation, or Reducing the area's ability to filter water pollutants. Land areas required to be replaced under this section shall be replaced as follows: One acre of land with equal soil-water conditions shall be created to replace each acre of drained or filled land when the: Water table is near the soil surface for extended periods during the frost-free growing season of most years; or Soil is water-saturated, or surface water is present for extended periods during the frost-free growing season of most years. In all other cases, 1 acre of temporarily to permanently flooded land shall be created to replace every 4 acres of drained or filled land. The Secretary shall consult with the Secretaries of the Departments of Natural Resources and the Environment to determine if an association's construction or reconstruction plan adequately meets the requirement of this section. In-stream Excavation. Except with the written permission of the Secretary of the Department of Natural Resources, in-stream excavation or clearing is prohibited between the following dates: October 1 through April 30 in natural trout waters; March 1 through May 31 in recreational trout waters; and March 15 through June 15 in anadromous fish spawning waters. Clearing and Snagging. Clearing and snagging of a channel may not endanger channel stability. The areas to be cleared and snagged shall be limited to: The channel bottom, banks, and berms; Adjacent trees or other objects that may fall into a channel; Access roads; Temporary disposal areas; and Areas designated by a soil conservation district for planned conservation areas. Revegetation. On each project, a species of erosion controlling vegetation adapted to the area and a proven method of vegetation establishment shall be used for revegetation. Provisions shall be taken on a project to reduce soil erosion until effective revegetation can be accomplished. During the growing season, at a minimum: Channel banks shall be seeded at the end of each day's excavation; and Other areas where soil has been disturbed shall be seeded within 7 days of final soil disturbance. The progress of revegetation shall be monitored by the association and corrective action taken when necessary. The operation and maintenance program for a project shall conform to the following: General Maintenance. General maintenance to a channel, maintenance areas, and right-of-ways includes the: Removal of obstructions, debris, and sediment; Control of woody growth; Cleaning out of permanent sediment traps; Installation of necessary sediment traps; Installation of necessary water control structures where uncontrolled concentrated flow of water enters a channel; Stabilization of eroding areas; Routine repair of damaged structures and channel banks; and Observation of all other sound operation and maintenance practices. Sediment Traps and Channel Clean Out. Sediment traps shall be installed where necessary for the efficient operation of a channel. The design and installation of a sediment trap shall include providing a stable channel bank slope. The clean out of a channel or sediment trap includes: Removal of silt bars and sediment; Restoration of a stable channel bank slope; and Maintaining the approved channel or sediment trap design. Channel spoil shall be placed in locations where the spoil does not: Prevent watershed runoff from entering the natural flood plain; Interfere with travel ways; Endanger the stability of a channel; Fill adjacent wetlands; and Wash back into a channel. Disturbed areas shall be stabilized and seeded in accordance with Regulation .06C. Vegetated Strips. Vegetated strips shall be established and maintained on all channels in accordance with Regulation .05D. Water Temperature Control. Areas of trees, shrubs, and herbaceous growth shall be retained or reestablished in accordance with Regulation .05E(4). In this regulation, “plan” means a construction or reconstruction plan, or operation and maintenance plan, or both, as appropriate. Plan Submission. Within 14 days of receiving a project plan, the Secretary of Agriculture shall forward a copy to the Secretaries of Natural Resources and the Environment. The Departments of Natural Resources and the Environment shall have 60 calendar days from receipt to review a plan and respond in writing to the Secretary. The Secretary shall review the comments from the Departments of the Environment and Natural Resources. If there is any significant disagreement among the three Departments concerning the plan, the Secretary shall schedule a meeting between the Departments to resolve any disagreement. Plan Approval. The Secretary shall make the final determination whether to approve a plan. The Secretary shall respond to the association within 30 days from receipt of comments from the Departments of Natural Resources and the Environment and either: Approve the plan; Approve the plan with modification; Approve the plan conditioned upon the formation of the association; Conditional approval may be issued for plans submitted by the county before an association is legally established, Final approval shall be given only when the Secretary is furnished a letter from the county government stating that it has approved the plan and established the association, Any changes in the plan by a county shall be submitted to the Secretary, who shall forward copies to the Secretaries of the Departments of Natural Resources and the Environment for review; Disapprove the plan; or Extend the Secretary's review period. Channel Inspection by the Association. The association managers or designee shall inspect the project within 2 weeks following any storm which results in water flow exceeding channel capacity. An association shall send a written inspection report to the Secretary not later than 90 days following the storm event. The report shall: Detail the damage to the channels, vegetation, and water control structures; and Describe needed repairs and corrective maintenance and the projected time when the work shall be accomplished. The association managers or designee shall inspect the project at least once every 2 years. The following apply: An association shall send a written inspection report to the Secretary by March 1st of the appropriate year. The report shall: Outline the last inspection of the project performed not more than 6 months before submission; Detail the condition of the channel, vegetation, and structures; Describe needed maintenance and the projected time when the work shall be completed; and Describe the work completed in the previous 2 years. An association need not file the biennial written inspection report required in §A(3) if: Storm damage occurred during the 6 months before March 1st of the appropriate year; and An inspection report required in §A(1) was submitted. An association shall keep records on work performed on a project. These records shall: Include the items of work, cost, and the date the work was completed; and Be made available upon request to the Secretary. State Inspection. The Secretary shall coordinate on-site inspections of a project by the Departments of Agriculture, the Environment, and Natural Resources. An association shall grant each Department the right of entry to inspect a project to ensure that it complies with an approved construction or reconstruction plan or an approved operation and maintenance plan for the project. Enforcement. The Secretaries of Agriculture, the Environment, or Natural Resources may pursue any sanction or remedy provided in Agriculture Article, §8-603, Annotated Code of Maryland. Before pursuing any sanction or remedy, however, the Secretaries of the Environment and Natural Resources shall: Consult with the Secretary of Agriculture; and Provide the Secretary of Agriculture a reasonable period of time to solve any problem. The Secretary of a Department may issue a written order for corrective measures to any person who violates this chapter, or who fails to follow any requirement of an approved project plan. A person ordered to comply with this chapter may request a hearing. The following apply: The hearing request shall be made in writing to the Secretary who issued the order; The hearing request shall be made not later than 10 days after the date the order is served; When different Departments have initiated administrative proceedings arising from the same or related activities, any person subject to more than one order may request a consolidated hearing; The hearing shall be scheduled within 30 working days from the receipt of the request; A decision shall be rendered within 30 working days from the hearing date; The Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland, governs the practice and procedure in all hearings and appeals. Whether an order for corrective measures has been issued or contested, the Secretary of a Department may, at any time, refer an alleged violation of this chapter or of any approved plan requirement directly to the Attorney General for appropriate legal action. In addition to any other sanction under Agriculture Article, §8-603, Annotated Code of Maryland, any person who constructs, reconstructs, operates, or maintains an agricultural drainage project without approved plans or in violation of approved plan requirements, shall be liable to the State in a civil action for damages in an amount equal to double the costs of that portion of constructing, reconstructing, operating, or maintaining the project that was not done in accordance with the requirements of this chapter. A civil action under Agriculture Article, §8-603, Annotated Code of Maryland, shall be prosecuted by the Attorney General on behalf of the appropriate Department. Damages recovered shall be deposited in a special fund to be used solely for: First, correcting the deficiencies in the agricultural drainage project in question; and Second, supporting the Secretary of Agriculture's program for review and approval of the agricultural drainage projects. The Secretary of any Department may seek an injunction against any person who does not have or fails to follow an approved plan. Agriculture Article, §§2-103 and 8-603, Annotated Code of Maryland Effective date: August 1, 1986 (13:14 Md. R. 1635) Regulation .02B amended effective August 2, 2004 (31:15 Md. R. 1186) Regulation .05F amended effective August 2, 2004 (31:15 Md. R. 1186) Regulation .08B, C amended effective August 2, 2004 (31:15 Md. R. 1186) Regulation .09B, C amended effective August 2, 2004 (31:15 Md. R. 1186)