Chapter 07. Hearing Procedures for Waterway Obstruction, Waterway Construction, and Water Appropriation and Use Permits
Regulation .01 Scope.LinkCopy Citation
This chapter applies to all public informational and contested case hearings required under Environment Article, §§5-203 and 5-506, Annotated Code of Maryland, pertaining to the conservation, protection, and use of water resources in the State. These procedures are intended to supplement the procedures required by law, and do not apply to investigations or informal meetings. In the event of a conflict between this chapter and COMAR 08.01.04, this chapter applies.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Administration” means the Water Management Administration of the Department of the Environment.
(2)
“Administrative Procedure Act” means State Government Article, §10-201 et seq., Annotated Code of Maryland.
(3)
“Appropriate local official” means the:
(a)
County executive or president of the county legislative body; or
(b)
Mayor or chief administrative official for any city or town in which the proposed permitted activity takes place.
(4)
“Completed application” means an application for a Subtitle 5 permit which the Administration has determined is complete under the applicable statutes and regulation.
(5)
“Contested case hearing” means an adjudicatory hearing as defined by the Administrative Procedure Act.
(6)
“Contiguous property” means, for:
(a)
Water appropriation or use permit applications, those properties having a common boundary with the applicant's property; or
(b)
Waterway construction permit applications, those properties which lie within the 100-year floodplain and have a common boundary with the applicant's property.
(7)
“Department” means the Department of the Environment.
(8)
“Director” means the Director of the Water Management Administration.
(9)
“Filed” means received at the office of the Director of the Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224, including received by mail, facsimile machine, or personal delivery.
(10)
“Hearing examiner” means hearing examiner, hearing officer, administrative law judge of the Office of Administrative Hearings, or other person designated to conduct a contested case hearing.
(11)
“Interested persons list” means the mailing list of persons interested in a Subtitle 5 permit application that is compiled by the Department and includes:
(a)
Contiguous property owners;
(b)
Appropriate local officials; and
(c)
Individuals who comment on, request hearings, or make inquiries about an application during any phase of the Department's application review process.
(12)
“Office of Administrative Hearings” means the unit of State government authorized to conduct contested case hearings.
(13)
“Presiding official” means a representative of the Administration designated by the Director to conduct public informational hearings under this chapter.
(14)
“Public informational hearing” means the informational hearing conducted under Environment Article, §5-506, Annotated Code of Maryland, at which the permit applicant, the Administration, and interested persons may offer facts, exhibits, questions, and comments concerning an application for a permit.
(15)
“Requester” means the person requesting a contested case hearing who has a specific legal right, duty, interest, or privilege different from the general public which is, or may be, adversely affected by the determination to grant or deny a Subtitle 5 permit.
(16)
“Subtitle 5 permit” means a permit issued under Environment Article, §§5-502 and 5-503, Annotated Code of Maryland, including those pertaining to water appropriation and use, waterway construction, and waterway obstruction.
Regulation .03 Notice of Completed Application and Opportunity for Public Informational Hearing.LinkCopy Citation
A.
An applicant for a new or modified Subtitle 5 permit shall submit to the Administration a list of the names and addresses of contiguous property owners and appropriate local officials who have been served with a notice of application by the applicant. The Administration may consider evidence of an easement or right-of-way secured from a contiguous property owner as satisfaction of the notice requirement to a contiguous property owner under this section.
B.
Within 30 days of the Administration's determination that a Subtitle 5 permit application is complete, the Administration shall issue a notice of completed application and opportunity for a public informational hearing on the application in accordance with all of the following. The notice shall be:
(1)
Mailed to each person on the interested persons list, and the Administration may add additional individuals and public officials to the interested persons list as appropriate;
(2)
Published for at least 1 business day in a newspaper of general circulation in the county, with the applicant bearing the cost of the newspaper notice;
(3)
Published in the Maryland Register in accordance with State Government Article, §7-214, Annotated Code of Maryland.
C.
Contents. The notice required under §B of this regulation shall include:
(1)
The name and address of the applicant;
(2)
A description of the location and the nature of the activity for which the permit has been sought;
(3)
A reference to the applicable statutes or regulations governing the application process;
(4)
A statement that any further notices concerning the application will be provided only by mail to those persons on the interested persons list;
(5)
A description of how persons may:
(a)
Submit written comments or information about the application,
(b)
Request a public informational hearing, or
(c)
Request inclusion on the interested persons mailing list;
(6)
A statement of the deadline by which written comments, information, or hearing requests shall be received by the Administration; and
(7)
The name, address, and telephone number of the office within the Administration from which information about the application may be obtained.
D.
Time. A request for a public informational hearing shall be filed within 14 calendar days after publication of the notice required under §B of this regulation.
E.
Waiver of Public Informational Hearing. The Department may waive the holding of a public informational hearing if the permit application is of the type listed in Environment Article, §5-506(b), (d), or (e), Annotated Code of Maryland. In the case of a waiver, the only notice required shall be that provided by the applicant as described in §A of this regulation and in Environment Article, §5-506, Annotated Code of Maryland.
Regulation .04 Requests for Public Informational Hearing.LinkCopy Citation
A.
Any interested person may file a written request for a public informational hearing. The request shall be filed within 14 calendar days of publication of the notice required under Regulation .03B of this chapter.
B.
A request for hearing shall be considered filed when it is received at the office of the Director, Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224.
Regulation .05 Notice of Public Informational Hearing.LinkCopy Citation
A.
Within 10 calendar days after receipt of a request for a public informational hearing, the Administration shall set the date, time, and place for the hearing and shall mail a hearing notice to those on the interested persons list. Notice need not be published.
B.
Contents. The notice of public informational hearing shall include:
(1)
A description of the project or activity for which the permit is sought;
(2)
The date, time, and place of the hearing;
(3)
The statutory authority of the Administration to conduct the hearing;
(4)
A citation for the procedures under which the hearing shall be conducted; and
(5)
A statement that the applicant and interested persons shall be given an opportunity at the hearing to offer information for or against the application for a permit.
Regulation .06 Conduct of the Public Informational Hearing.LinkCopy Citation
A.
The Director may delegate all or part of the authority to hold a public informational hearing to a presiding official or to a hearing examiner.
B.
Hearing Procedures.
(1)
The public informational hearing shall be conducted under the applicable statutes.
(2)
The Administrative Procedure Act and COMAR 08.01.04 do not apply to public informational hearings.
(3)
The applicant, Administration representatives, and interested persons may offer information or comments for or against granting the application.
(4)
Questions may be asked of, and directed to, the presiding official, but cross-examination may not be conducted.
C.
Order of Presentation. The presiding official may conduct the public informational hearing in the following order:
(1)
Introduction by the Administration;
(2)
Presentation of proposed project by the applicant;
(3)
Comments and questions by public officials;
(4)
Comments and questions by other persons; and
(5)
Closing of the public informational hearing record.
D.
Powers and Duties of the Presiding Official. The presiding official has the authority to:
(1)
Conduct a full and fair public informational hearing;
(2)
Avoid unnecessary delay and maintain order; and
(3)
Regulate the course of the public hearing and the conduct of the participants, including the power to:
(a)
Accept written comments, documents, and other exhibits;
(b)
Extend the closing of the record;
(c)
Continue the hearing;
(d)
Record the hearing;
(e)
Request that participants and observers sign an attendance register and provide a mailing address; and
(f)
Change the location or date of a hearing to accommodate special circumstances or needs of the participants.
Regulation .07 Record of Public Informational Hearing.LinkCopy Citation
The presiding official shall maintain an official record of the public informational hearing, consisting of:
A.
The permit application and related documents;
B.
Pertinent studies, reports, evaluations, or other documents of the Administration;
C.
Copies of notices required under Regulations .03B and .05A of this chapter, including certifications of publication;
D.
Requests for the public informational hearing;
E.
The attendance register;
F.
Documents, written statements, and other exhibits submitted at the public informational hearing; and
G.
The recording of the public informational hearing.
Regulation .08 Final Permit Decision — Notice.LinkCopy Citation
A.
Following the application review and comment period for a Subtitle 5 permit, and after any public informational hearing on the permit application, the Administration shall issue, modify, or deny the permit application.
B.
Notice. Written notice of the final permit decision shall be mailed to the applicant and to all individuals on the interested persons list. Notice need not be published.
C.
Contents. The notice of permit decision shall include:
(1)
The final decision of the Administration on the Subtitle 5 permit application, with a brief description of the factual basis for the final decision;
(2)
A reference to the statutes or regulation under which the action is being taken;
(3)
The right of a person who has a specific legal right, duty, privilege, or interest different from the general public, which is or may be adversely affected by the final decision, to request a contested case hearing;
(4)
The time period within which a contested case hearing shall be requested, the action a person is required to take in order to timely request a hearing, and the address where a person may send the request; and
(5)
The procedure for filing a motion for temporary stay of the issuance of the permit pending a final decision in the contested case.
Regulation .09 Request for Contested Case Hearing.LinkCopy Citation
A.
A request for a contested case hearing shall be:
(1)
Received within 10 business days of the mailing date of the notice of final permit decision;
(2)
Filed with the Administration or the program which made the determination.
B.
Contents. The request for a contested case hearing shall contain the following:
(1)
The full name and address of the person requesting the hearing and a telephone number at which the requester may be reached during normal business hours;
(2)
The name, address, and telephone number of any attorney representing the requester, or a statement that the requester intends to proceed without counsel;
(3)
A detailed description of the grounds for the request, including the specific legal right, duty, privilege, or interest of the requester which may be adversely affected by the permit decision, and which is different from those interests held by the general public;
(4)
A statement of the specific relief desired as a result of the adjudicatory hearing; and
(5)
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 by the requester.
C.
If a temporary stay is also requested under Regulation .11 of this chapter, a motion for temporary stay shall accompany the request for contested case hearing.
Regulation .10 Determinations on Standing and Adjudicability.LinkCopy Citation
A.
The appropriate program director of the Administration shall review a request for a contested case hearing to determine whether the:
(1)
Requester has a specific legal right, duty, privilege, or interest which is or may be adversely affected by the permit determination, and which is different from that held by the general public;
(2)
Requester has raised an adjudicable issue or issues which are:
(a)
Reasonably related to the subject of the permit, and
(b)
Within the scope of Subtitle 5;
(3)
Request was timely made.
B.
The program director shall determine whether to grant or deny the request for a contested case hearing. If the criteria listed in §A of this regulation are:
(1)
Met, the program director or a designee may grant the request for a contested case hearing;
(2)
Not met, and the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed to the requester by certified mail.
C.
Contents of Notification. The notification of the program director's determination to deny a request for a contested case hearing shall contain the following:
(1)
The specific reasons for the denial;
(2)
A statement of the right to request a review of the denial under §D of this regulation; and
(3)
A statement that if review under this regulation is not sought, the denial is the Department's final decision as to the contested case hearing request.
D.
Review. A requester who is adversely affected by the determination to deny a request for a contested case hearing may, within 10 calendar days of receipt of the denial, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear argument and shall issue a written final decision.
E.
Appeal. If the Director's written final decision is adverse to a party other than the Administration, the party may obtain judicial review of the decision in accordance with the Administrative Procedure Act and the Maryland Rules of Procedure.
Regulation .11 Motion for Temporary Stay.LinkCopy Citation
A.
A request for contested case hearing may be accompanied by a motion for temporary stay of the issuance of the Subtitle 5 permit pending a final decision in the contested case.
B.
Contents. A motion filed pursuant to §A of this regulation shall contain a:
(1)
Detailed description of how the criteria for granting a temporary stay, as set forth in Environment Article, §5-506, Annotated Code of Maryland, and COMAR 08.01.04.25 have been met; and
(2)
Statement of points and authorities in support of the motion.
C.
The requester has the burden of producing all evidence in support of the motion.
D.
Procedure.
(1)
Within 10 calendar days of the Administration's decision to grant a request for a contested case hearing, the Director or designee shall afford all parties an opportunity to present oral argument in support of, or in opposition to, a motion filed in accordance with §A of this regulation. This may be conducted by telephoned conference call.
(2)
Within 5 calendar days of oral argument, the Director or designee shall issue a final written decision granting or denying the motion for temporary stay.
Regulation .12 Contested Case Hearings.LinkCopy Citation
A.
Conduct. Contested case hearings under this chapter shall be conducted according to the procedures in COMAR 08.01.04.
B.
Procedures. In the event of a conflict between this chapter and COMAR 26.01.02, this chapter applies.
Chapter annotations
Authority: Environment Article, §§1-404, 5-203, and 5-506; State Government Article, §10-206; Annotated Code of Maryland
History: Effective date: August 17, 1977 (4:17 Md. R. 1296)
History: Regulations .01—.17, Procedure for Adjudicatory Hearings, repealed effective September 17, 1990 (17:18 Md. R. 2200)
History: Regulations .01—.12, Hearing Procedures for Waterway Obstruction, Waterway Construction, and Water Appropriation and Use Permits, adopted effective September 17, 1990 (17:18 Md. R. 2200)
History: Chapter recodified from COMAR 08.05.06 to COMAR 26.01.07, June 1996