# COMAR Title 26 — Department of the Environment ## Subtitle 23 — Nontidal Wetlands ### Chapter 01 — General **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01—.05 were recodified from Regulations .01, .08, .22, .23, .and .24, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996 **Administrative History:** Regulation .02 amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .02-1 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997 **Administrative History:** Regulation .03C, D amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .04A amended effective February 5, 2001 (28:2 Md. R. 104) **Administrative History:** Regulation .05B, D amended effective June 18, 2018 (45:12 Md. R. 620) #### Regulation .01 Definitions. *COMAR 26.23.01.01* A. The following definitions describe the meaning of terms used in this subtitle, unless the context in which they are used clearly requires a different meaning or a different meaning is prescribed at the point of use. Terms not defined below shall have the meaning given to them in Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland, in other or relevant statutes or regulations in this title or, if not defined in statutes, the meaning attributed by common use. B. Terms Defined. (1) “Act” means the Nontidal Wetlands Protection Act, Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland. (2) “Adaptive vegetation” means plant species which are not native but provide similar value to native species and grow successfully in Maryland. (3) “Administrative Procedure Act” means the provisions of State Government Article, §10-101 et seq., Annotated Code of Maryland. (4) “Adverse impact” means any diminishment of nontidal wetland acreage or function. (5) “Agricultural activity” means aquaculture and farming activities including plowing, tillage, cropping, seeding, cultivating, the grazing and raising of livestock, sod production, other products cultivated as part of a recognized commercial enterprise, and harvesting for production of food and fiber products, excluding forest products. The definition includes tobacco, nursery stock, Christmas trees, and aquaculture ponds and other ponds used to conduct farming activities. Activities that result in a change to a land use other than agriculture are not agricultural activities. Structures or temporary storage areas related to the sale of the products are excluded from this definition. (6) “Agriculture” means a land use dominated by the production of food, fiber, aquaculture, or livestock, and other products cultivated as part of a recognized commercial enterprise. (7) “Areas that have lain fallow” means areas used for agriculture or forestry activities that are not in production for agriculture or forest products. (8) “Aquaculture” means the commercial rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or shipment. (9) “Aquaculture facility” means a pond, impoundment, raceway, or tank, and their associated structures essential for the purpose of aquaculture. (10) “Avoid” means to refrain from conducting an activity that may adversely impact a nontidal wetland. (10-1) “Bank operator” means the person responsible for construction, maintenance, monitoring, and undertaking activities to establish a mitigation bank and to sell mitigation credits. (11) “Bedding” means a site preparation method when a small ridge of surface soil is formed to provide an elevated area on which forest seedlings are to be planted. (12) “Best management practices” means conservation practices or systems of practices and management measures that: (a) Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics, and sediment; and (b) Minimize adverse impacts to the surface water, ground water flow, and circulation patterns, and to the chemical, physical, and biological characteristics of nontidal wetlands. (13) “Bog” means a nontidal wetland characterized by organic soils, accumulated peat, and soils saturated to the surface throughout the year with minimal fluctuation in water level. (14) “Buffer” means a regulated area, 25 feet in width, surrounding a nontidal wetland, measured from the outer edge of the nontidal wetland. (15) “Clean Water Act” means the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977 and later amendments (33 U.S.C. §1251 et seq.). (16) “COMAR” means the Code of Maryland Regulations. (17) “Comprehensive watershed management plan” means a plan developed in cooperation with local, county, State, and federal agencies and approved by the Department which addresses nontidal wetland protection, creation, restoration, enhancement, cumulative impacts, flood protection, water supply concerns, and other natural resource elements. (18) “Conventional rotational cycle” means the growing of crops in a planned and used system that: (a) Alternates the type of crop planted in a method that protects soil and water from degradation, noxious weeds, insects, and diseases; and (b) Seeks to achieve the objectives of the landowner. (19) “Creation” means actions performed which establish nontidal wetlands on upland sites. (19-1) Critical Area. (a) “Critical Area” means the Chesapeake Bay Critical Area and all lands and waters defined in Natural Resources Article, §8-1807, Annotated Code of Maryland. (b) “Critical Area” includes: (i) All waters of and lands under the Chesapeake Bay and its tributaries to the head of the tide as indicated on the State tidal wetlands maps, and all State and private tidal wetlands designated under Environment Article, Title 16, Annotated Code of Maryland; (ii) All land and water areas within 1,000 feet beyond the landward boundaries of State or private tidal wetlands and the heads of tides designated under Environment Article, Title 16, Annotated Code of Maryland; and (iii) Modification to the areas in this subsection through inclusions or exclusions proposed by local jurisdictions and approved by the Critical Area Commission as specified in Natural Resources Article, §8-1807, Annotated Code of Maryland. (20) “Critical habitat” means habitat necessary for the survival of threatened or endangered species, or species in need of conservation. (21) “Delmarva bay” means a nontidal wetland characterized by an elliptical or oval shape and centripetal drainage, usually bordered by a distinct rim, that is: (a) Located in a depression with seasonal surface water that is absent in summer; (b) Generally located on the Delmarva Peninsula; and (c) Thinly forested or unforested with abundant herbaceous vegetation that may be apparent only after surface water recedes in the summer. (22) “Department” means the Department of the Environment. (23) “Destruction or removal of plant life that would alter the character of a nontidal wetland” means: (a) The physical removal of natural nontidal wetlands vegetation; or (b) Causing mortality of nontidal wetland vegetation by the application of herbicides, hydrologic alteration, or by other means. (24) “Detention basin” means an impoundment area made by constructing an embankment or excavating a pit, or both, for the purpose of temporarily storing storm water. (25) “Director” means the Director of the Water Management Administration in the Department. (26) “Discharge of fill material” means the addition from any source of fill material into nontidal wetlands, which includes the following activities: (a) Placement of fill necessary for the construction of any structure; (b) Building of any structure or impoundment requiring rock, sand, dirt, or other materials for its construction; (c) Site development fill for recreational, industrial, commercial, residential, and other uses; (d) Causeways or road fills; (e) Dams and dikes; (f) Artificial islands; (g) Property protection or reclamation devices, or both; (h) Levees; and (i) Fills for structures such as, and associated with, sewage treatment facilities and intake and outfall pipes. (27) “Disturbance of water level or water table” means the alteration of the existing elevation of ground water or surface water by: (a) Adding or impounding a sufficient quantity of storm water or water from other sources to modify the existing vegetation, values, or functions of the nontidal wetland; or (b) Draining, ditching, or otherwise causing the depletion of the existing ground water or surface water levels so that the activity would modify the existing vegetation. (28) “Drainage” means methods for changing the hydrologic conditions of nontidal wetlands, including lowering ground water or surface water levels through pumping, ditching, or otherwise altering water flow patterns. (29) “Emergent nontidal wetland” means that portion of a nontidal wetland dominated by erect, rooted, herbaceous vegetation as the uppermost vegetative strata. (30) “Enhancement” means actions performed to provide additional protection to, or create or improve the functions of, a nontidal wetland, or other aquatic sites or resources. (31) “Excavation” means to dig or remove soil, rocks, or other materials resulting in a change in all or part of the elevation of a site. (32) “Exotic” means any species of plant or animal that is foreign to the State. (33) “Expanded buffer” means a regulated area 100 feet in width, surrounding a nontidal wetland, measured from the outer edge of a nontidal wetland, and established because of the presence of steep slopes, highly erodible soils, or the presence of nontidal wetlands of special State concern. (34) “Extenuating circumstances” means conditions requiring extension of a set time limit to process an application, render a decision, or conduct a public hearing. (35) “Farm pond” means a predominantly open water body used primarily to support agricultural activities, including livestock watering, irrigation, sediment control, fire protection, or aquaculture. Predominantly open water bodies on areas with a land use other than agriculture or that are not used primarily for agricultural activities are not considered farm ponds. (36) “Farmed nontidal wetlands” means an area designated by §B(62) that is presently tilled, grazed, or under conservation tillage for agricultural activities, or is lying fallow and has been out of production for agricultural activities for less than 5 consecutive years. (37) “Federal Manual” means the “Federal Manual for Identifying and Delineating Jurisdictional Wetlands”, 1989, promulgated by the Federal Interagency Committee for Wetland Delineation, which is incorporated by reference. (38) “Fill” means any materials placed in an area which change the elevation of the preexisting surface or ground water level, or the soil surface. (39) “Forested nontidal wetland” means that portion of a nontidal wetland dominated by woody vegetation greater than 20 feet in height. (40) “Forestry activity” means planting, cultivating, thinning, harvesting, or any other activity undertaken to use forest resources or to improve their quality or productivity. Activities that change nontidal wetlands to another land use, including but not limited to agriculture or development, are not forestry activities. (41) “Forest harvesting” means the felling, skidding, loading, and transporting of forest products. (42) “Forest road” means a temporary or permanent access road used to conduct forestry activities or transport timber or other forest products from a felling site to a public road. Roads constructed or used to convert forest land to another land use are not forest roads. (43) “Functions” means roles nontidal wetlands serve through: (a) Reduction of pollutant loadings, including excess nutrients, sediment, and toxics; (b) Attenuation of flood waters and storm waters; (c) Shoreline stabilization and erosion control; (d) Breeding grounds and habitat for many species of plants and wildlife including fish, game, and nongame birds and mammals, including threatened and endangered species and species in need of conservation; (e) Food chain support; and (f) Timber production. (44) “General area” means the geographic or market vicinity that has desired characteristics for fulfilling the basic project purpose. (45) “Grazing” means feeding on grass or other herbaceous plants in a field. (46) “Hybrid” means the offspring of any species of plants or animals of genetically dissimilar parents or stock. (47) “Hydrologically connected” means a nontidal wetland that: (a) Is contiguous to a watercourse, surface water body, tidal wetland, or drainage ditch; (b) Is within or connected to any 100-year floodplain as determined by calculation or Federal Emergency Management Agency maps; (c) Receives or discharges surface water or groundwater as intermittent or perennial flow from or to a surface water body, watercourse, or other tidal or nontidal wetland as demonstrated by the presence of an intermittent or perennial stream or spring flow; or (d) Was formerly contiguous to a surface water body, watercourse, or a nontidal wetland described in §B(47)(a)—(c), above, and is presently separated from these areas by a man-made berm, fill, road, or other structure. (48) “Hydrophyte” means plant life adapted to growth and reproduction under periodically saturated root zone conditions during at least a portion of the growing season. A listing of these plants can be found in the “National List of Plant Species that Occur in Wetlands: 1988, Maryland”, which is incorporated by reference. (49) “In kind” means characteristics closely approximating those of a nontidal wetland before it was adversely impacted by a regulated or an agricultural activity. (50) “Initial planning phase” means the period of time in which the feasibility of a project is evaluated before committing resources necessary for its implementation. (51) “Intermittent stream” means those areas that are surface waters, contained within a defined channel or bed, that flow at least once per year. A defined channel or bed is indicated by hydraulically sorted sediment, or the removal of vegetative litter, or loosely rooted vegetation by the action of moving water. (52) “Isolated nontidal wetland” means a nontidal wetland that is not hydrologically connected, through surface or subsurface flow to streams, tidal or nontidal wetlands, or tidal waters. (53) “Landscape management” means to maintain or enhance vegetation on land that was planted or manipulated for horticultural purposes. Landscape management includes mowing, pruning, and private gardening, excluding agricultural activities. (54) “Landscape management area” means an area predominately covered with grasses or herbaceous ground cover established and maintained for horticultural purposes. The landscape management area may include a lawn which contains trees, shrubs, or other plants. (55) “Log deck” means a place where logs or tree-length materials are assembled in or near the forest for loading and transporting. (56) “Loss of nontidal wetlands” means the alteration of: (a) Existing nontidal wetland vegetation or water levels that significantly impairs or eliminates its principal functions, but excluding: (i) Forestry activities conducted in accordance with an approved sediment and erosion control plan that complies with COMAR 26.23.05.02 and .03; (ii) Rectification; and (iii) Department-approved enhancement projects; or (b) An area so that it no longer meets the nontidal wetland definition. (57) Maintenance. (a) “Maintenance” means activities undertaken to prevent the deterioration, impairment, or need for repair of a serviceable fill area, structure, right-of-way, or land use, which includes management of vegetation and replacement of structural components. (b) “Maintenance” does not include the following activities, unless conducted in a temporary sediment control structure, wash pond, or roadside ditch: (i) Dredging; (ii) Excavating; or (iii) Filling. (58) “Minimize” means to reduce adverse impacts to nontidal wetlands to the greatest practicable and reasonable degree. (59) “Mitigation” means creation, restoration, or enhancement of nontidal wetlands, that were or will be lost due to regulated or agricultural activities. (60) “Mitigation bank” means an area of land that is: (a) Developed and operated as approved by the Department; (b) Used to satisfy wetland mitigation requirements when use of mitigation credits is specifically approved by the Department; (c) Managed using a system of credits and debits jointly recorded by the bank operator and the Department. (60-1) “Mitigation banking agreement” means a legally binding document between a bank operator, mitigation bank owner, and the Department that describes operation, maintenance, remediation, and monitoring requirements for a mitigation bank. (60-2) “Mitigation credit” or “credit” means an acreage value assigned to a mitigation bank. (61) “Native” means any plant or animal species indigenous to Maryland. (62) “Nontidal wetland”: (a) Means an area that is inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation; (b) Is determined according to the Federal Manual; (c) Does not include tidal wetlands regulated under Environment Article, Title 16, Annotated Code of Maryland. (63) “Nontidal wetlands of special State concern” means the areas designated based on criteria in Regulation .04 of this chapter, and listed in COMAR 26.23.06.01 as having exceptional ecological or educational value of State wide significance. (64) “Off-site” means not on the same parcel as a nontidal wetland which has been adversely impacted by a regulated activity. (65) “On-site” means the same parcel on which a nontidal wetland has been adversely impacted by a regulated activity. (66) “Out of kind” means biological characteristics not closely approximating those of the nontidal wetland before it was adversely impacted by a regulated or an agricultural activity. (67) “Peat mining” means the extraction of peat of a commercially valuable quality and quantity. (68) “Person” means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity. (69) “Practicable” means available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes. (70) “Presently conducted” means existing or ongoing. (71) “Project” means the entire activity on a parcel of land including all proposed and projected phases and sections of land subdivisions of which all regulated or other activities conducted in a nontidal wetland, buffer, or expanded buffer are a part. (72) “Project purpose” means the principal reason for conducting all regulated activities and other activities on a project site. (73) “Rectify” or “rectification” means actions performed to nontidal wetlands which have been temporarily impacted by regulated, forestry, or agricultural activities to return them to previous conditions with at least the same nontidal wetland acreage and equivalent function. (74) “Regulated activity”: (a) Means any of the following activities which are directly undertaken or originate in a nontidal wetland, or within a buffer or expanded buffer of a nontidal wetland: (i) Removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind; (ii) Changing existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics; (iii) Disturbance of the water level or water table by drainage, impoundment, or other means; (iv) Dumping, discharging of material, or filling with material, including the driving of piles, and placing of obstructions; (v) Grading or removal of material that would alter existing topography; and (vi) Destruction or removal of plant life that would alter the character of a nontidal wetland; and (b) Does not include an agricultural activity or forestry activity as defined in this subtitle. (74-1) “Remediation” means corrective actions necessary to ensure success of a mitigation site or a mitigation bank. (75) “Repair” means an activity that restores the scope, size, and design of a serviceable fill area, structure, or land use to its previously authorized and undamaged condition. Activities that change the size or scope of a project beyond the original design so as to drain, dredge, fill, flood, change the hydrology, or otherwise convert nontidal wetlands that were not previously impacted by the project are not included in this definition. Minor deviations to plans or specifications are allowed as long as no permanent nontidal wetland impact results from the deviation. (75-1) “Replacement ratio” or “compensation ratio” means the ratio of the area of wetland restored, created, or enhanced to the area of wetland for which mitigation is required. (76) “Restoration” or “restore” means actions performed which establish nontidal wetlands on former nontidal wetland sites. (77) “Scrub-shrub wetland” means that portion of a nontidal wetland dominated by woody vegetation less than 20 feet in height as the uppermost strata. (78) “Seed tree law” means Natural Resources Article, §5-501 et seq., Annotated Code of Maryland. (79) “Serviceable” means presently usable or currently fulfilling its basic, original purpose. (80) “Significant plant or wildlife value” means a nontidal wetland: (a) Of the following unusual or unique community types: (i) Bogs; (ii) Areas with bald cypress (Taxodium distichum), Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), or American larch (Larix laricina) that contain at least 20 percent of these species in any strata as determined by the Federal Manual; or (iii) Delmarva bays; (b) With water discharge that maintains minimum stream base flow important for maintaining plant and wildlife species; (c) With threatened or endangered species, or species in need of conservation; (d) Adjacent to Class III or Class IV waters defined in COMAR 26.08.02.08; (e) Of special State concern; (f) Supporting vernal pools; or (g) That is regularly or periodically influenced by tidal waters. (81) “Site preparation” means a forest activity to remove unwanted vegetation and other material, and to cultivate or prepare the soil for reforestation. (82) “Skid trail” means a temporary, nonstructural pathway over forest soil to drag felled trees or logs to a log deck. (83) “Soil conservation and water quality plan” means a land use plan for a farm that shows a farmer how to make best possible use of soil and water resources while protecting and conserving those resources for the future. (84) “Spring” means a nontidal wetland that discharges ground water at the surface to form a pool or to provide intermittent or perennial surface flow, and that is usually characterized by saturated or organic soils. (85) “State programmatic general permit” means a general permit issued by the U.S. Army Corps of Engineers governing the protection of nontidal wetlands in Maryland. (86) “Utility line” means any underground or overhead transmission line, pipe, cable, or wire for the conveyance of public or private water or sewer, natural gas, or the transmission of electrical, radio, or telecommunications service. (87) “Vernal pool” means a nontidal wetland in a confined depression that has surface water for at least 2 consecutive months during the growing season, and: (a) Is free of adult fish populations; (b) Provides habitat for amphibians; and (c) Lacks abundant herbaceous vegetation. (88) “Water dependent activity” means an activity for which the use of surface water would be essential to fulfill a basic purpose of the proposed project. (88-1) “Watershed sub-basin” means one of the 20 watershed areas delineated by the Department in COMAR 26.08.01 and comprising, in sum total, the surface waters of the State. (89) “Wildlife” means any species of a vertebrate or invertebrate animal, excluding domestic species. #### Regulation .02 Activities Exempt from Permit Requirement. *COMAR 26.23.01.02* The following activities are exempt from the letter of authorization, permit, and mitigation requirements of this subtitle: A. Forestry activities. B. Agricultural activities in COMAR 26.23.05.01B. All other agricultural activities are exempt from the permit requirements of this subtitle, but are subject to the mitigation requirements of COMAR 26.23.04.01 and COMAR 26.23.04.03—.07. C. Approved mitigation projects required under this subtitle. D. Any proposed regulated activity conducted by a person who has applied to the U.S. Army Corps of Engineers by December 31, 1990, for a permit under §404 of the Clean Water Act, provided that the following conditions are satisfied: (1) The U.S. Army Corps of Engineers ultimately issues a permit or other document under §D(3) of this regulation; (2) The applicant does not alter the scope of the regulated activity originally applied for without authorization from the U.S. Army Corps of Engineers; (3) A person submits the following information to the Department, as may be applicable, and as may be requested by the Department: (a) A copy of a dated application for a permit under §404 of the Clean Water Act; (b) A copy of the plans for the project which were submitted to the U.S. Army Corps of Engineers; (c) A letter from the U.S. Army Corps of Engineers describing the project and proposed activity and stating one of the following: (i) The project and proposed activity is authorized by the U.S. Army Corps of Engineers; (ii) The proposed activity is exempt from §404 of the Clean Water Act permit requirements. E. Activities within farmed nontidal wetlands and their buffers, excluding farmed nontidal wetlands with 15 or more consecutive days of inundation during the growing season, and their buffers. The duration of inundation is determined by the Department consistent with federal agency procedures adopted pursuant to the Food Security Act of 1985, 16 U.S.C. §3801 et seq. F. The following activities, if they do not result in cumulative direct or indirect adverse impacts: (1) Construction of additions, outbuildings, and accessories to existing structures within a landscape management area which impacts less than 1,000 square feet of nontidal wetlands; (2) Construction placed on existing impervious surfaces or on structures within the buffer or expanded buffer; (3) Removal of 30 percent of the trees in the buffer, provided that: (a) The density but not the areal extent of the trees is reduced; and (b) Not more than 30 percent of the understory is removed; (4) Mowing or other forms of vegetation control on existing rights-of-way; (5) The control of State-designated noxious weeds; (6) Landscape management in the nontidal wetland, buffer, or expanded buffer; (7) Soil investigations; (8) Percolation tests for sewage disposal fields; (9) Survey markers or survey monuments; (10) Other similar activities with minimal adverse impacts as approved by the Department; (11) The maintenance of the following serviceable structures or fills: (a) Aboveground and underground utilities; (b) Structures in rights-of-way; (c) Railroad beds; (d) Road beds, roadside ditches, culverts, outlet ditches, wash ponds, and temporary sediment control structures; (e) Bridges; (f) Dams; (g) Dikes; (h) Levees; (i) Water and wastewater control structures; and (j) Facilities designed for storm water management; (12) Within the Critical Area, a cumulative removal of 10 percent of the trees within the buffer or expanded buffer, if: (a) The density but not the areal extent of the trees is reduced; and (b) Not more than 10 percent of the understory is removed. #### Regulation .03 County Delegation. *COMAR 26.23.01.03* A. Request for Delegation. (1) The Department may delegate all or part of its authority under the Act to a county that enacts a nontidal wetlands protection program that meets or exceeds the standards adopted by the Department. (2) To request delegation, a county shall submit a written request to the Department which includes the following information: (a) A copy of the proposed program, as enacted, or other evidence of authority to implement a program; (b) Schedule for program implementation and procedures; (c) Description of overall program administration, including sufficient staff for enforcement, administration, and training; (d) Proposed program budget and funding; and (e) Evidence that the program has been approved by the county legislative body. (3) The Department may provide technical assistance and a model county ordinance for use and consideration by a county. (4) Within 30 days of receiving all of the information in this section, the Department shall submit written comments to the county, including recommendations and proposals for program revisions and improvements. This time period may be modified by mutual agreement of the Department and the county. A county shall resolve any issues raised in the Department's written comments to the Department's satisfaction, including making any required legislative changes. (5) In reviewing the acceptability of the county's program, the Department may consider: (a) Consistency with the minimum standards of the Act; (b) Consistency with this subtitle; (c) Whether the county employs or plans to employ an adequate number of qualified personnel to implement the program; and (d) Likelihood of successful implementation. (6) When the county has formally approved a program satisfactory to the Department, the Department shall, in writing, grant or deny delegation. If denied, the Department, in writing, shall state its grounds for denial. The Department may not deny a requested delegation unless opportunity has been afforded to the appropriate officials of the affected county to present arguments before the Secretary on why delegation should be granted. The presentation of arguments to the Secretary is not a contested case hearing. The Secretary's determination shall be final. (7) If granted, delegation shall be effective from the date of written notice to the county and shall continue for not more than 2 years unless renewed or withdrawn by the Department. (8) A county accepting delegation in accordance with this subtitle shall: (a) Use the joint federal and State permit application form; (b) For activities not qualifying under a State programmatic general permit from the U.S. Army Corps of Engineers, issue a joint State and county permit on a form adopted by the Department; the joint State and county permit shall be separate and distinct from existing county permits and approval; and (c) For activities qualifying under a State programmatic general permit, issue a recommended permit decision to the Department. (9) If a county is authorized to issue permits for activities qualifying under a State programmatic general permit, it shall establish a nontidal wetland compensation fund, independent of the fund maintained by the Department, in accordance with the Act and COMAR 26.23.04.07. B. Authority and Standards for Delegation. (1) Provided that this authority has been delegated, a county with an approved nontidal wetlands protection program shall have the authority to issue, deny, or condition nontidal wetlands permits for all regulated activities within a nontidal wetland or buffer, except for the following regulated activities: (a) In nontidal wetlands of special State concern and their expanded buffers; (b) Which directly impact two or more county jurisdictions; (c) Undertaken by a unit of the State or federal government, or on State or federal owned or controlled land; (d) Qualifying under a State programmatic general permit that does not apply to county governments; and (e) For which the State has elected to make the final permit decision. (2) The Department may not grant local program delegation authority for agricultural and forestry activities specified under Environment Article, §5-905, Annnotated Code of Maryland. However, this section is not intended to preclude a county from exercising any authority over agricultural or forestry activities granted to it under any other existing State law. (3) If authorized by the U.S. Army Corps of Engineers, the Department may grant a county the authority to issue nontidal wetland permits for activities qualifying under a State programmatic general permit. C. State Oversight. (1) The following procedures apply for permit applications evaluated by a county for activities not qualifying under a State programmatic general permit: (a) Complete applications shall be submitted to the Department and the county. (b) The Department shall notify the county when the Department intends to process the application and render a final permit decision. (c) A county shall provide the Department with a copy of the public notice for any complete application that the Department has not processed for a final permit decision, if the responsibility to prepare public notices has been delegated to the county. (d) If the Department intends to comment upon, object to, or make recommendations with respect to a permit application, the Department shall notify the county within 10 days of receipt of the public notice. If a county is notified, a permit may not be issued until the Department has approved issuance of the permit. (e) At the Department's request, a county shall transmit the following information to the Department: (i) A copy of the complete permit application with all of the information required by COMAR 26.23.02.01; (ii) A copy of any other documents relevant to permit review including a mitigation plan; and (iii) Information brought out by the public during the comment period or at a hearing. (f) Within 20 days of receipt of all of the information required by §C(1)(e) of this regulation, the Department shall comment upon, object to, recommend, or condition issuance of a permit. The Department's recommendation shall be binding on a county. A recommendation of permit denial shall state the reasons for a denial. If the Department fails to make a recommendation to the county within the specified time period, the county may take whatever action it deems appropriate. (g) If a county denies an application due to the recommendation of the Department, the applicant may appeal the denial to the Department under COMAR 26.24.02.03B. (h) A county shall provide a copy of a mitigation plan upon written request by the Department. (2) Permit applications for activities qualifying under a State programmatic general permit shall be: (a) Submitted to the Department and the county; and (b) Processed and evaluated by a county for a recommended permit decision within 10 days of the: (i) Expiration of the public comment period under COMAR 26.23.02.02F(2)(d); or (ii) Determination that the activity tentatively qualifies for a letter of authorization. (3) A county shall submit its recommended permit or letter of authorization decision to the Department. (4) The final permit or letter of authorization decision shall be made by the Department. (5) An applicant aggrieved by the Department's decision may appeal the decision under COMAR 26.23.02.03B. D. Program Reporting. A county granted delegation authority shall submit an annual report to the Department, coinciding with the State fiscal year and evaluating the county's administration of the program. The report shall include the following information: (1) Number of permits issued, modified, and denied; (2) Types of activities; (3) Locations of activities; (4) Number of violations identified and number and nature of enforcement actions taken; (5) Comments from the regulated community and members of the public, including copies of any written complaints on a county's administration of the program; (6) Acreage totals of nontidal wetland losses by type; (7) Mitigation actions, including acreage totals of mitigation projects by type of project; (8) Examples of minimization efforts; (9) Number of letters of authorization granted and nontidal wetlands lost as a result; and (10) A report on the county's nontidal wetland compensation fund in accordance with COMAR 26.23.04.07. E. The Department may investigate complaints concerning a county's implementation of the Act. The investigation may include an on-site investigation. F. The Department may take enforcement action against a permittee or person not complying with the requirements of the Act and this subtitle when it determines that the action is necessary and appropriate, and shall notify the county in a timely manner of the action taken. G. Renewal. (1) At least 3 months before a county's delegation expires, the county may submit a written request to the Department for renewal of program delegation. The Department shall notify the county, in writing, within 30 days of receipt of the request whether its request is granted or denied. (2) The Department may require necessary or appropriate amendments to a county program before renewing a delegation. (3) The Department may not deny delegation renewal unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final. (4) The presentation of arguments to the Secretary is not a contested case hearing. H. Withdrawal of Delegation Authority. (1) The Department may withdraw program delegation authority upon a finding that the county program is not being administered in a manner consistent with the Act or this subtitle. (2) The Department shall notify the county in writing that delegation is withdrawn and the reason for withdrawal. (3) The Department may not withdraw delegation unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final. (4) The presentation of arguments to the Secretary is not a contested case hearing. (5) If county delegation is withdrawn, any unencumbered funds contained in a county's nontidal wetlands compensation fund shall be transferred to the nontidal wetland compensation fund maintained by the Department. #### Regulation .04 Expanded Buffer. *COMAR 26.23.01.04* A. Nontidal wetlands for which the buffer shall be expanded to 100 feet by regulation are: (1) Nontidal wetlands of special State concern; and (2) Nontidal wetlands with adjacent areas containing: (a) Steep slopes; or (b) Highly erodible soils; and (3) Outstanding National Resource Waters (ONRW). B. Nontidal Wetlands of Special State Concern. (1) The following criteria shall be used by the Department to designate nontidal wetlands of special State concern that: (a) Provide habitat or ecologically important buffers for the habitat of plant or animal species: (i) Listed as endangered or threatened by the U.S. Fish and Wildlife Service; (ii) Listed as endangered or threatened, or species listed as in need of conservation by the Department of Natural Resources; or (iii) Considered to be a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department of Natural Resources; or (b) Are unique natural areas or contain ecologically unusual natural communities. (2) Nontidal wetlands of special State concern are designated in COMAR 26.23.06.01. C. Nontidal Wetlands with Steep Slopes and Highly Erodible Soils. (1) The following criteria may be used by the Department in designating nontidal wetlands with steep slopes or highly erodible soils: (a) Slopes immediately adjacent to the nontidal wetlands in excess of 15 percent; or (b) Soils adjacent to a nontidal wetland with an erodibility factor greater than 0.35 as determined by the United States Soil Conservation Service. (2) Specific nontidal wetland sites with steep slopes and highly erodible soils identified by the Department shall be designated by regulation. #### Regulation .05 Enforcement. *COMAR 26.23.01.05* A. Enforcement Authority. The means of enforcement under this regulation may be made available to county governments with delegated authority under Regulation .03 of this chapter. Any hearing and associated processes under this regulation may be conducted by authorized county governments when these enforcement means are used, upon agreement between the Department and the county. B. Complaints and Orders. (1) In addition to any other sanction authorized by Environment Article, §5-911, Annotated Code of Maryland, the Department may serve a written complaint upon an alleged violator if the Department determines that there has been a violation of: (a) Any provision of Environment Article, §§5-901—5-911, Annotated Code of Maryland; (b) A regulation in this subtitle; (c) A permit or condition of a permit; (d) An administrative order; or (e) A condition of an authorization letter. (2) The complaint shall: (a) Identify the violator and the location of the violation; (b) State the provision violated; (c) State the specific facts upon which the complaint is based; and (d) Provide an opportunity to request a hearing to contest the complaint. (3) At any time, including during an enforcement action, the Department may issue an administrative order requiring the violator to take corrective action within a certain time period. The corrective action may include any or all of the following: (a) Cease the violation; (b) Stabilize the site; (c) Stop all construction work at the site of a regulated activity; (d) Restore or rectify unlawfully impacted nontidal wetlands; or (e) Submit a written report or plan concerning the violation. (4) Service. (a) A complaint, order, or other administrative notice issued by the Department may be served on the violator personally, on the violator's agent at the activity site, or by certified mail to the violator's last known address as shown in the Department's records. (b) An order issued under this regulation is effective immediately, according to its terms, when it is served. C. Hearings. (1) The Department shall give notice and hold any hearing under this subtitle in conformance with the Administrative Procedure Act and COMAR 08.01.04. (2) Within 10 calendar days of receiving a complaint, order, or notice under this regulation, the violator may request a hearing in writing. (3) If a person has been served with an order for corrective action, the person may request a stay in conjunction with a request for a hearing. (4) A request for stay may be heard before or during a hearing on the complaint. At the request of a permittee, a request for stay may be heard within 10 business days of the Department's receipt of the request. D. Administrative Action with Regard to Permit or Bond. The Department may suspend or revoke a permit, letter of authorization, or forfeit a bond on a mitigation plan upon failure of the violator to comply with the requirements of an administrative order. The administrative procedures for permit or letter authorization suspension, revocation, and bond forfeiture are set forth in COMAR 26.23.02.09 and 26.23.04.04. E. Statutory Remedies. The provisions of this regulation may not be construed to limit or otherwise affect the authority of the Department to proceed against violators under Environment Article, §5-911, Annotated Cose of Maryland. ### Chapter 02 — Permit Application and Processing **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01—.09 were recodified from Regulations .02—.07, .11, .12, and .25, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996 **Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .02G, J amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .05-1 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997 **Administrative History:** Regulation .08 amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .09 amended effective June 18, 2018 (45:12 Md. R. 620) #### Regulation .01 Application Requirements for Regulated Activities. *COMAR 26.23.02.01* A. A person may not conduct a regulated activity in a nontidal wetland, or within a buffer or expanded buffer, unless the Department has issued a permit or letter of authorization, or the regulated activity is exempt under COMAR 26.23.01.02. Applications received by the Department after September 30, 1993, to conduct a regulated activity in the Critical Area are subject to the requirements of this subtitle. B. Application Form. (1) An application for a nontidal wetland permit or letter of authorization shall include all of the information required in the application form and any additional information required by the Department in §D of this regulation. (2) The application form shall be a joint federal and State application for regulated activities in nontidal wetlands in Maryland. (3) The Department shall: (a) Coordinate with other State, federal, and county governmental agencies to expedite review of associated permits; (b) Work with the U.S. Army Corps of Engineers in developing a State programmatic general permit for regulated activities in nontidal wetlands; (c) Coordinate the permit review process under memoranda of understanding with other State agencies. (4) The application form may be obtained from the following governmental agencies: (a) Water Management Administration in the Department; (b) U. S. Army Corps of Engineers, Baltimore District; or (c) Any agency designated by each county. (5) An applicant is encouraged to consult guidance maps prepared by the Department to assist in identifying and locating nontidal wetlands. (6) The person signing the application form shall be the legal property owner and: (a) An officer of the corporation, or an authorized agent of a corporation; (b) A legally authorized official of a federal, State, or local government; (c) An authorized partner of an association or partnership; or (d) An individual applicant. (7) The person who signs an application shall be responsible for the truth, accuracy, and completeness of all information in the application. (8) An applicant may not submit false or misleading information on the application form, or submit an application without intending to conduct the activity described in the application. C. An applicant for a permit or letter of authorization shall submit all of the information required in the application form. D. In addition to the information required in §C of this regulation, an applicant for a permit or letter of authorization may be required to submit one or more of the following items of information for an application to be considered complete and the delineation correct: (1) A site plan at a scale not less than 1 inch equals 200 feet that includes the following, if applicable: (a) Nontidal wetland boundary, as marked or flagged in the field, based on a field delineation and in accordance with the Federal Manual, including a buffer and expanded buffer; (b) Location of existing and proposed structures; (c) Location of proposed regulated activities; (d) Property lines of parcels impacted by the regulated activity; (e) Names of contiguous property owners; (f) Location of nontidal wetlands of special State concern; and (g) Location and number of all soil investigations; (2) A cross section of estimated final elevations after filling, grading, or excavating; (3) The acreage, function, and type of nontidal wetlands, buffer, and expanded buffer to be affected permanently or temporarily by the regulated activity; (4) A representative photograph of the affected nontidal wetland; (5) Data from soil samples which shall be: (a) Taken to a minimum depth of 20 inches and which include a description of soil colors and textures obtained from borings sufficient to verify hydric or nonhydric conditions; (b) On transects perpendicular to the nontidal wetlands boundary, starting within the nontidal wetlands area and moving towards the uplands; and (c) Numbered and accompanied by a soil description indicating the observed or estimated depth to the highest water table during the year; (6) Data sheets from the Federal Manual identifying and describing hydrology and vegetation along the transects required in §D(5)(b) and (c) of this regulation; (7) Identification of nontidal wetlands known or believed to have significant plant or wildlife value; (8) Description of the type and quantity of fill material to be used; (9) Alternative site information, including a description of available utilities, site access, type of nontidal wetland, and description of potential impacts for each alternative site considered by the applicant; (10) Map of the geographic boundaries of the general area where the proposed project could be undertaken and still meet the project purpose; (11) Brief discussion of demographic factors which are critical to the success of the project including census data, statistics, or marketing studies; (12) Description of water, wastewater, community facilities, schools, transportation, or other public facility requirements of the project; (13) Evidence of present or future availability of projects with the same or similar public need; (14) Demonstration of public need, including evidence of a demand for the project in the general area; (15) An assessment of nontidal wetland, buffer, and expanded buffer functions; (16) Field survey of animal species or the natural characteristics of the site; (17) Larger scale or more detailed engineering design plans or maps; (18) Soil infiltration rates as determined in the field; (19) Factors considered for avoiding and minimizing losses of nontidal wetlands; (20) Evidence of an applicant's efforts to accommodate site constraints; (21) Evidence that the regulated activity will not cause or contribute to a degradation of water quality standards; (22) Information for fulfilling potential mitigation requirements; (23) Information about, or status of, any local government approvals or permits. E. The Department may require the applicant to flag the nontidal wetland boundary in the field in accordance with the Federal Manual, including a buffer and expanded buffer. The applicant shall maintain the boundary flags in place until notified by the Department. F. Confidential Information. (1) Except as provided in §F(2) of this regulation, information submitted to the Department under this regulation shall be made available for public inspection and copying. (2) An applicant may request in writing, at the time of submission of the application, that confidential information submitted as part of an application not be disclosed. The Department shall determine if the information is confidential under State Government Article, §10-611 et seq., Annotated Code of Maryland, and other applicable law. If the Department denies the applicant's request for nondisclosure, the applicant may withdraw an application or seek review of the Department's determination under applicable law. If the applicant withdraws an application, the Department shall, at the request of the applicant, return any documents designated as confidential. #### Regulation .02 Application Processing Procedures for the Department. *COMAR 26.23.02.02* A. The Department shall acknowledge receipt of the application in writing, by regular mail, and assign the application a processing number. An applicant shall use the application processing number when making inquiries concerning the application. B. The Department shall notify an applicant in writing within 45 days of receipt of an application whether the application is complete and the delineation correct. C. The Department shall consider an application complete if: (1) It contains all of the information required in Regulation .01C of this chapter and requested in Regulation .01D of this chapter; and (2) The Department determines that all the information submitted is sufficient for the Department to process the application. D. The following apply to the Department's determination whether the application is complete and the delineation correct: (1) If the information submitted is insufficient for the Department to make either determination, the Department shall notify the applicant in writing of any items of additional information listed in Regulation .01D of this chapter that will be required. (2) If the information submitted is so insufficient that the Department is unable to make an initial completeness determination, the Department shall return the application and may not review the delineation, if one is submitted. E. If the Department fails to notify an applicant within 45 days of receipt of the application, the application shall be considered complete and the delineation correct. F. The Department, upon written notice to the applicant, may extend the 45-day time period when the following extenuating circumstances prevent consideration of the application: (1) Inclement weather conditions; (2) Review required by federal agencies; or (3) Review required by other State agencies, or local government agency. G. Public Notice. (1) After the Department has determined that an application is complete, and the delineation is correct, the Department shall issue, at the applicant's expense, a public notice of an opportunity to submit written comments or to request a public informational hearing about the application. Public notice may not be required for activities that qualify for a letter of authorization under COMAR 26.23.03. (2) The public notice shall contain: (a) The name and address of the applicant; (b) A description of the nature and location of the proposed activity and mitigation plan, if applicable; (c) Instructions for submission of written comments, requests for a public hearing, and requests to be included on the interested persons list; (d) The expiration date for the opportunity to comment or to request a public informational hearing; (e) A statement that any further notices concerning actions on the application will be provided only by mail to those persons on the interested persons list; (f) The name, address, and telephone number of a person in the Department from which information about the application may be obtained; and (g) A reference to the applicable statute or regulations governing the application process. (3) The public notice may be given by: (a) Joint notice with other federal, State, or county agencies; (b) Joint notice with other units or programs within the Department; (c) Selected mailing to federal, State, county, or municipal authorities and other persons on the interested persons list; (d) Publication for at least 1 business day 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 (e) Publication in the Maryland Register under State Government Article, §7-214, Annotated Code of Maryland. H. Public Informational Hearing. (1) Any interested person may request in writing a public informational hearing. (2) If requested, a public informational hearing shall be held on a permit 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. (3) The Department may extend the time period for the public informational hearing for the following extenuating circumstances: (a) Circumstances listed in §F of this regulation; (b) A request by an applicant; or (c) A Department request for individual permit review under COMAR 26.23.01.03C. (4) The Director may delegate all or part of the Director's authority to hold a public informational hearing to any employee of the Department, or a county delegated authority under COMAR 26.23.01.03. The employee authorized to conduct the public informational hearing shall be designated as the presiding official. (5) An applicant and any interested person shall be given an opportunity at the public informational hearing to present facts and make statements for or against granting the permit. 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 the Administrative Procedure Act. (6) The presiding official may determine the order of presentation of comments and questions at the public informational hearing. The public informational hearing may be conducted in the following order: (a) Introduction by the Department; (b) Presentation of 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 informational hearing by the presiding official. (7) The presiding official has the authority and duty to: (a) Conduct a full and fair public informational hearing; (b) Act to avoid unnecessary delay, and to maintain order; and (c) Regulate the course of the public informational hearing and the conduct of the participants. (8) The presiding official shall prepare an official record of the public informational hearing. (9) A tape recording or stenographic notes of the public informational hearing, if any, may not be transcribed unless the Department, the applicant, or a participant in the public informational hearing requests a transcript. Costs of transcription shall be paid by the person requesting the transcript. I. In calculating any time period provided for in this subtitle, if the last day falling within the time period falls on a Saturday, Sunday, or a State holiday, the time period will be extended until the close of business on the next normal business day. J. Letters of Authorization. (1) Within 21 days of the Department's determination that the application is complete and the delineation correct, the Department shall notify the applicant in writing whether the activity qualifies for a letter of authorization and, if so, what best management practices, if any, will be required. (2) The letter of authorization is void if the information submitted is later shown to have been false, misleading, or inaccurate, and the Department shall pursue any appropriate enforcement action under COMAR 26.23.01.05 as to any activities that have been undertaken under the void letter of authorization. (3) If the Department determines that the proposed activity does not qualify for a letter of authorization, it shall notify the applicant of the need to apply for a permit under Regulation .01 of this chapter. (4) The Department shall specify in the letter of authorization the time period for which it is valid. (5) If an applicant applies for both a letter of authorization and a permit, the Department may withhold its decision on the letter of authorization pending a final permit decision. K. Interested Persons List. Upon written request, the Department may add additional names to the interested persons list. Those wishing to have their names placed on the interested persons list may send a written request to the Water Management Administration, Nontidal Wetlands and Waterways Division. #### Regulation .03 Permit Decision and Appeal. *COMAR 26.23.02.03* A. Permit Decision. (1) After the closing date for receipt of written comments and after a public informational hearing, if requested, the Department shall: (a) Consider the written comments, testimony, and other information received; and (b) Render a decision to grant, deny, or condition a permit within: (i) 60 days from the Department's determination that an application is complete and the delineation correct, if no public informational hearing is requested, or (ii) 45 days of a public informational hearing. (2) The Department may extend the time period in which to render a decision for an additional 30 days for the following extenuating circumstances: (a) Review required by a federal, State, or local government agency; (b) A Department request for individual permit review under COMAR 26.23.01.03; or (c) A request by an applicant. (3) The Department may afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony at the public informational hearing. (4) The applicant may request in writing that the Department withhold its decision until additional information can be provided. The Department may withhold its permit decision for 6 months, after which the application shall be deemed withdrawn and a new application submitted, unless otherwise determined by the Department. (5) The Department may request additional information from the applicant as a result of concerns raised in written comments or testimony at the public informational hearing. (6) Written notice of the permit decision shall be mailed to the applicant and to all persons on the interested persons list. Notice of the permit decision need not be published. (7) Work authorized under a permit shall begin within 3 years of the date of permit issuance and the work shall be completed within the time period specified in the permit, which may not exceed 10 years. (8) An applicant may not resubmit a denied permit application for 6 months from the date of denial unless there is a substantive change in the application. (9) A permit may not be issued, and work may not begin under a permit, unless a final site plan or any other necessary information is provided to the Department. B. Appeal of Permit Decision. (1) 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 grant, deny, or condition a permit, may request a contested case hearing. (2) The contested case hearing request shall be in writing and filed within 30 days of issuance of the permit decision with the unit issuing the decision. (3) The contested case hearing request shall contain: (a) The name, address, and telephone number of the person requesting the hearing; (b) The name, address, and telephone number of any attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel; (c) A description of the grounds for the request, including the specific legal right, duty, privilege, or interest which may be adversely affected by the permit determination, and which is different from those interests held by the general public; (d) A statement of the specific relief desired as a result of the contested case hearing; and (e) 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 the Administrative Procedure Act and COMAR 08.01.04. (5) The decision of the Department on the basis of the contested case hearing shall be the final decision for purposes of judicial review. C. Delegation of Decision-Making Authority. (1) The Chief of the Nontidal Wetlands and Waterways Division in the Water Management Administration shall render the decision to grant, deny, or condition a permit under §A of this regulation. (2) In the event of an appeal under §B of this regulation, the Director shall render the final decision for the Department. D. Determinations on Standing. (1) The Director or a 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 permit 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 permit and arises under the Act or this subtitle; and (c) Made a contested case hearing request within the required 30-day time period. (2) The Director or a 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 review under this regulation is not sought, the denial shall be the Department's final decision as to the contested case hearing request. (4) A person 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 oral argument, and shall issue a written final decision. (5) If the Director's written final decision as 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 the Administrative Procedure Act and the Maryland Rules of Procedure. #### Regulation .04 Criteria for Review of Nontidal Wetland Permit Applications. *COMAR 26.23.02.04* A. The Department may not issue a permit for a regulated activity unless the Department finds that the applicant has demonstrated that the: (1) Proposed project is water dependent and requires access to a nontidal wetland as a central element of its basic function under the criteria in §§B and C of this regulation, or is not water dependent, and has no practicable alternative under the criteria in §D of this regulation; (2) Regulated activity will first avoid and then minimize adverse impacts to the nontidal wetland based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the criteria in Regulation .05B of this chapter; (3) Regulated activity does not cause or contribute to a degradation of ground waters or surface waters under the criteria in Regulation .06A of this chapter; and (4) Proposed project is consistent with any comprehensive watershed management plan developed or approved by the Department under Environment Article, §5-908, Annotated Code of Maryland. B. Water Dependency Test. (1) A proposed project is considered water dependent if the use of surface water or a nontidal wetland would be essential to fulfill the basic purpose of the proposed project. (2) The Department shall apply the following criteria in determining whether a proposed project is water dependent: (a) Whether an alternate water source is available for use, including surface runoff or ground water that may have fewer adverse impacts on nontidal wetlands; and (b) Whether the use of a nontidal wetland would only enhance a project rather than function as an essential element of a project. (3) In determining whether a proposed project is water dependent, the Department shall consider the applicant's definition of project purpose but may independently determine whether the proposed project is water dependent. (4) For a multiple use project which has both water-dependent and non-water-dependent features, the Department shall determine which features are water dependent. C. Access Test. (1) In determining whether the proposed project requires access to a nontidal wetland as a central element of its basic function, the Department shall consider whether access could be accomplished at another location that would first avoid and then minimize nontidal wetland impacts. (2) A water-dependent project which the Department determines requires access to a nontidal wetland is exempted from the requirements of §D of this regulation, but shall comply with all other requirements referenced in §A of this regulation. D. Practicable Alternative Analysis. (1) The applicant shall demonstrate to the satisfaction of the Department that practicable alternatives, including both alternative site analysis and on-site minimization, have been analyzed and that the proposed regulated activity has no practicable alternative. (2) In determining whether the proposed regulated activity has a practicable alternative, the Department shall consider whether: (a) The basic project purpose cannot be reasonably accomplished using one or more other sites in the same general area as the proposed project that would avoid or result in less adverse impact to nontidal wetlands under the criteria in Regulation .05 of this chapter. The Department shall consider the applicant's definition of the general area, but may make an independent determination. (b) A reduction in the size, scope, configuration, or density of the proposed project and all alternative designs that would avoid or result in less adverse impact to nontidal wetlands would not accomplish the basic purpose of the project, under the criteria in Regulation .05B of this chapter. (c) The applicant has made a good faith effort to accommodate site constraints such as inadequate zoning, infrastructure, or parcel size, that caused an alternative to the proposed regulated activity and project to be rejected. To determine if an applicant has made a reasonable effort to accommodate constraints, the Department shall consider any pertinent information, including: (i) Correspondence or other written documentation between an applicant and a local authority, including a request for a special exception or other zoning variance; (ii) Evidence of efforts to modify the local infrastructure, including future planned expansions or redesign of the project because of a potential nontidal wetland impact; and (iii) Written documentation of efforts undertaken to acquire another site or reconfigure the proposed project to accommodate the constraint. (d) The regulated activity is necessary for the project to meet a demonstrated public need. The following apply: (i) To determine if the regulated activity is necessary for the proposed project to meet a demonstrated public need, the Department shall consider any pertinent information, including the economic value that the proposed project contributes to an identified State or local economic priority and if the proposed project promotes the public health, safety, or welfare. (ii) In weighing the economic value of the proposed project in meeting a demonstrated public need in the general area, and the ecological and economic value associated with the nontidal wetland, the Department shall consider the functions of, and benefits and economic value provided to the general public by, the nontidal wetland adversely impacted by the regulated activity, and the ability of the nontidal wetland to continue to provide those identified functions and benefits to the general public. #### Regulation .05 Alternative Site and Avoidance and Minimization Analyses. *COMAR 26.23.02.05* A. Alternative Sites. (1) An applicant shall prove to the Department's satisfaction that alternative sites for the proposed project have been examined during the initial planning phase. (2) An applicant shall search during the initial planning phase for one or more alternative sites that meet the basic project purpose and would result in less or no adverse impact to nontidal wetlands. (3) Determining the Initial Planning Phase. (a) The intent of this section is to require an applicant to evaluate the feasibility of the project and the adverse impact on nontidal wetlands at the earliest stage of the development process, before the applicant has committed substantial resources in the project site. Consideration of alternative sites at the earliest stage enables the applicant to retain the flexibility to avoid adverse impacts to nontidal wetlands. (b) An applicant shall select the earliest of the following times as the initial planning phase for the proposed project: (i) When an applicant conducts a formal or informal feasibility or market study, prepares an environmental impact statement or assessment, or a similar study for the project; (ii) When an applicant enters into an option agreement or contract of sale for the property; (iii) When an applicant applies for a building permit, subdivision or infrastructure approval, zoning change, or any other local governmental approvals for the project; (iv) At the time an applicant applies for a permit under this subtitle; (v) When a budget or financing request is secured; or (vi) Any other appropriate time selected by the applicant. (c) For the time selected in §A(3)(b) of this regulation, an applicant shall provide a written justification of the selection, including copies of any documentation supporting the selection and an explanation of why earlier times would be inappropriate or inapplicable to the proposed project. (d) While the Department will give serious consideration to the initial planning phase selected by the applicant, the Department reserves the right to require additional information from the applicant concerning the initial planning phase selection or independently to determine the appropriate time. (4) To determine if the project purpose cannot be reasonably accomplished by using other sites, the Department shall, if applicable, consider: (a) Whether an applicant has made and can document a good faith effort to analyze alternative sites in the general area during the initial planning phase of the proposed project to first avoid and then minimize adverse impacts to nontidal wetlands; (b) Whether an applicant has made and can document attempts to obtain land ownership interests or other rights to conduct the proposed project activity on alternative sites which avoid and minimize impact to nontidal wetlands; (c) The total number of alternative sites and the physical, economic, and demographic characteristics of the alternative sites considered by an applicant; (d) The physical, economic, and demographic requirements of the proposed project relative to the alternative sites analyzed; (e) The degree to which use of potential alternative sites is constrained by other governmentally imposed restrictions and requirements, including concern for avoidance of environmental, social, community, archaeological, historic, and parkland impacts; (f) Efforts undertaken to reduce adverse impacts to nontidal wetlands through consideration of reduction of proposed density or other site designs or project configuration on each alternative site analyzed; and (g) The costs of fulfilling potential mitigation requirements for the project on the selected or alternative site. (5) An alternative site may not be excluded from consideration during the initial planning phase because it includes or requires an area not owned by the applicant which could reasonably be obtained, used, expanded, or managed to fulfill the basic purpose of the proposed project. B. Avoidance and Minimization Analysis. (1) The applicant shall demonstrate to the Department's satisfaction that all necessary steps have been taken to first avoid and then minimize adverse impacts to the nontidal wetlands. Losses of nontidal wetlands shall be permitted only when adverse impacts to nontidal wetlands are necessary and unavoidable. (2) In reviewing the sufficiency of the applicant's efforts to first avoid and then minimize adverse impacts to a nontidal wetland by a reduction in the size, scope, or density of the proposed project, or by an alternative configuration or design, the Department shall include consideration of: (a) The spatial requirements of the proposed project; (b) The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project; (c) The purpose of the proposed project, and how the purpose relates to placement, configuration, or density; (d) Sensitivity of the site design to nontidal wetlands; (e) An applicant's efforts to: (i) Reduce the scope of the proposed project; (ii) Remove or accommodate site constraints including zoning, infrastructure, access, or natural features; and (iii) Otherwise avoid or minimize adverse impacts; and (f) The costs of fulfilling potential mitigation requirements based on the proposed project configuration or design versus the alternative project configuration or design. (3) The Department shall consider pertinent factors when evaluating the extent to which a proposed project has avoided, or the regulated activity has minimized, direct or indirect adverse impacts to nontidal wetlands under this section, including: (a) Reduction in acreage of a nontidal wetland affected by a regulated activity; (b) Harm to a threatened or endangered species or species in need of conservation, or to the critical habitat of these species; (c) Movement of wildlife indigenous to the nontidal wetland or water body; (d) Ability of the nontidal wetland to continue to support and provide habitat for those species of wildlife using the area; (e) Hydrologic regime of the areas upstream and downstream of the area of impact; (f) Functions of the impacted or adjacent nontidal wetlands; (g) Passage of normal or expected high flows, or the relocation of water; (h) Subsurface water flow into or out of any nontidal wetland area; (i) Presence of fish spawning areas; (j) Presence of areas having significant plant or wildlife value; and (k) Cumulative impact to nontidal wetlands. #### Regulation .06 Water Quality and Watershed Management Plans. *COMAR 26.23.02.06* A. To meet the requirements of Regulation .04A(3) of this chapter, a regulated activity may not: (1) As determined by the Department, cause an individual or cumulative effect that degrades: (a) Aquatic ecosystem diversity, productivity, and stability; (b) Plankton, fish, shellfish, and wildlife; (c) Recreational and economic values; and (d) Public welfare; or (2) As determined by the Department, cause an individual or cumulative effect that: (a) Violates any applicable State water quality standard, the Environment Article of the Annotated Code of Maryland, or the Clean Water Act; (b) Degrades surface and ground water quality. B. To meet the requirements of Regulation .04A(4) of this chapter, a regulated activity shall be consistent with any comprehensive watershed management plan developed or approved by the Department. Comprehensive watershed management plans shall meet the following criteria: (1) Comprehensive watershed management plans may be prepared by local, State, or federal government agencies; (2) A private property owner may request to assist in the preparation of a comprehensive watershed management plan when the entire watershed is owned by the private property owner; and: (a) When the Department, after consultation with appropriate local, State, and federal agencies, approves of the request; (b) A private property owner agrees to assist in the preparation of the comprehensive management plan in accordance with this section; and (c) The comprehensive watershed management plan meets the requirements of §B(3)—(5) of this regulation; (3) Comprehensive watershed management plans shall be prepared in cooperation with local, State, and federal agencies and approved by the Department; (4) The Department may not adopt or approve a plan before conducting a public informational hearing on the proposed plan in the county or counties affected by the comprehensive watershed management plan; (5) A comprehensive watershed management plan shall include the following elements: (a) A functional assessment of nontidal wetlands within the watershed; (b) The location of potential mitigation sites; (c) Protection of nontidal wetlands; (d) A plan for limiting cumulative impacts to nontidal wetlands; (e) Water supply management; and (f) Flood management. #### Regulation .07 Permit Modifications. *COMAR 26.23.02.07* A. The Department may require modification of a nontidal wetland permit to ensure compliance with this subtitle. B. The Department may make modifications to a permit: (1) Upon written request by the permittee; or (2) When the rights of the permittee under the permit have not vested, and the Department: (a) Receives new, relevant information; or (b) Has amended the regulation under which the permit was issued. C. Requests by Permittee for Modification. (1) A permittee may apply for a modification of an unexpired permit by submitting a written request to the Department. (2) A request for a permit modification shall contain the following: (a) Description of the requested modification; (b) Statement of the reasons and need for the requested modification; and (c) Statement of the impact of the modification to nontidal wetlands. (3) An applicant shall provide additional information requested by the Department. (4) Within 30 days of receiving a request for permit modification, or of receiving additional information, if any, the Department shall notify the permittee if the modification is major or minor and of its decision to grant, deny, or condition the request. (5) Within 15 days of receipt of notification, a permittee may request a contested case hearing on a complete or partial denial of a request to modify a permit. The hearing shall be conducted in conformance with the Administrative Procedure Act and COMAR 26.01.02. (6) A permittee may be required to submit a new permit application for major modifications. D. Minor Modifications. (1) Minor modifications are changes to the original permit which do not constitute a significant departure from its terms and conditions, including: (a) Correction of typographical errors; (b) Changes in frequency of monitoring by the permittee; (c) Changes of land ownership or permittee; (d) Extension or reduction of the term of the permit; (e) Minor field modifications, including substitution of comparable materials, structural realignments, and sediment and erosion control corrections; and (f) Relocation of the regulated activity at the permit site where the adverse impact is equal to or smaller than originally authorized. (2) The Department may make minor modifications without public notice or review. E. Major Modifications. (1) Major modifications are changes to the original permit which constitute a significant departure from its terms and conditions, including changes in the scope of the project which result in a greater adverse impact to nontidal wetlands than originally authorized. (2) Major modifications are subject to the public notice and hearing procedures required for permit applications under Regulation .02 of this chapter. F. Notice to Permittee of Required Modifications. (1) The Department shall notify a permittee, in writing, if a modification to a permit is required under §B(2) of this regulation. (2) Within 15 days of receipt of notification, a permittee may request a contested case hearing on the modification. The hearing shall be conducted in conformance with the Administrative Procedure Act and COMAR 08.01.04. #### Regulation .08 Temporary Emergency Nontidal Wetland Authorizations. *COMAR 26.23.02.08* A. The Department may issue a temporary emergency nontidal wetland permit or letter of authorization for a regulated activity if: (1) A threat to life, severe loss or damage of property, or threat to public safety or public works is imminent; and (2) The anticipated threat, loss, or damage may occur before a permit or letter of authorization can be issued under the procedures otherwise required by this subtitle. B. Emergency Authorization Requirements. The temporary emergency permit or letter of authorization shall: (1) Incorporate, to the greatest extent practical and feasible, the standards and criteria required for nonemergency regulated activities; (2) Be limited in duration to the time required to complete the authorized emergency activity, not to exceed 90 days; (3) Require rectification for nontidal wetlands with temporary adverse impacts; and (4) Require mitigation for nontidal wetland losses, unless exempt under COMAR 26.23.04.02. C. Temporary Emergency Procedure. (1) Not later than the next business day after beginning an emergency regulated activity, a temporary emergency permit or letter of authorization shall be requested. (2) A temporary emergency permit or letter of authorization request may be made orally. However, the applicant shall submit a written request to the Department within 3 business days of the oral request. (3) The request in §C(2) of this regulation shall include the: (a) Applicant's name; (b) Location of the emergency activity; (c) Extent of work to be done; (d) Anticipated adverse impact on nontidal wetlands; and (e) Reason for the emergency. (4) The temporary emergency permit or letter of authorization may be granted orally or in writing. If oral approval is granted, the Department shall issue a written emergency permit or letter of authorization within 3 business days of the approval. (5) If oral approval is not granted, the Department shall issue a written temporary emergency permit or letter of authorization within 10 business days of the request if the temporary emergency permit or letter of authorization is approved by the Department. D. For activities which do not qualify for a letter of authorization under Chapter .03 of this subtitle, the Department shall provide public notice and opportunity for comment on the issuance of a temporary emergency permit in a local newspaper of general circulation, not later than 15 days after the issuance of a permit. E. Upon written request by a permittee, or authorized person, the Department may extend the temporary emergency permit or letter of authorization if more time is required to complete the work authorized or to rectify the site. F. The Department may suspend or revoke a temporary emergency permit or letter of authorization in conformance with Regulation .09 of this chapter. G. Work performed under a temporary emergency permit or letter of authorization shall conform to conditions specified by the Department. H. A person shall apply for a nontidal wetland permit or letter of authorization pursuant to Regulation .01 of this chapter if: (1) The person intends to conduct an additional regulated activity at the site which does not qualify for a temporary emergency permit or letter of authorization; (2) A temporary emergency permit or letter of authorization is denied; (3) Work authorized under the temporary emergency permit or letter of authorization is conducted beyond the 90-day period in §B(2) of this regulation without approval from the Department; (4) The activity does not qualify for a temporary emergency permit or letter of authorization; or (5) Mitigation is required under §B(4) of this regulation. #### Regulation .09 Suspension and Revocation. *COMAR 26.23.02.09* A. Grounds for Suspension or Revocation. The Department may suspend or revoke a permit or a letter of authorization after notice to the permittee or person issued letter of authorization and opportunity for a hearing if the Department determines that any of the following has occurred: (1) Failure of a permittee or person issued letter of authorization to post a bond required under COMAR 26.23.04.04; (2) Permittee or person issued letter of authorization has failed to comply with the requirements of an administrative action or order under this subtitle or for a violation of the Act or this subtitle; (3) Misrepresentation or fraud in the application process or failure to disclose a relevant or material fact; (4) Requirements of the permit or letter of authorization have been violated; (5) Substantial deviation from the plans, specifications, or requirements of the permit or letter of authorization; (6) Permittee or person issued letter of authorization has prevented a representative of the Department from entering the activity site to make reasonable inspections; (7) Rights under the permit or letter of authorization have not vested and new information, changes in site conditions, or amended regulatory requirements necessitate revocation or suspension;or (8) The permittee or person issued letter of authorization has not begun work under the authorization and requested that the permit or letter of authorization be withdrawn. B. Notice. Except as provided for emergency actions under §D of this regulation, the Department may not suspend or revoke a nontidal wetlands permit or letter of authorization unless the Department first gives written notice by certified mail of the specific facts that warrant suspension or revocation, and an opportunity to make a written request for a contested case hearing under §C of this regulation. C. Contested Case Hearings. (1) Upon receipt of written notice to suspend or revoke a permit or a letter of authorization, the permittee or person issued letter of authorization shall have 10 calendar days to request a contested case hearing. (2) A hearing under this section shall be conducted in conformance with the Administrative Procedure Act and COMAR 26.01.02 and 26.23.02.09. (3) If the Department receives no request for a hearing, the permit or letter of authorization shall be revoked or suspended. D. Emergency Action. (1) The Department may order the immediate suspension or revocation of a permit letter of authorization if the Department: (a) Finds that the public health, safety, or welfare imperatively requires the emergency action; and (b) Promptly gives the permittee written notice of the emergency action. (2) A notice of emergency action shall include a statement of the: (a) Specific facts upon which the emergency action is based; and (b) Permittee's opportunity to be heard, in accordance with §C of this regulation. ### Chapter 03 — Letter of Authorization **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01 and .02 were recodified from Regulations .09 and .10, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996 **Administrative History:** Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .02 amended effective June 18, 2018 (45:12 Md. R. 620) **Administrative History:** Regulation .02C amended as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997 #### Regulation .01 Activities Requiring a Letter of Authorization. *COMAR 26.23.03.01* A. Except for regulated activities proposed within the Critical Area, an activity that qualifies for a letter of authorization is exempt from the permit and mitigation requirements of this subtitle. Activities proposed in the Critical Area are not exempt from the mitigation requirements of COMAR 26.23.04.02—.07. B. Upon application, the activities listed below may qualify for a letter of authorization provided that the conditions in Regulation .02B of this chapter are satisfied and best management practices, which may be required by the Department, are all met: (1) Activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. An applicant's determination of whether an area is an isolated nontidal wetland shall be based on published hydrologic and hydraulic data or data obtained in the field which shows whether the nontidal wetland is hydrologically connected. (2) Activities whose cumulative loss of nontidal wetlands and buffer, which contains no significant plant or wildlife value, is: (a) Less than 5,000 square feet; or (b) Greater than 5,000 square feet, provided that: (i) The actual loss of nontidal wetlands is less than 5,000 square feet, and (ii) Activities in the buffer result in minimal additional adverse impacts to nontidal wetlands, as determined by the Department. (3) Installation of Utility Lines. (a) The installation of utility lines includes the following activities: (i) Trenching, jetting, jackhammering, or plowing of nontidal wetlands; (ii) Laying of pipe, cable, or wire; (iii) Backfilling of the excavated trench containing the pipe, cable, or wire; (iv) Placement of riprap; and (v) Rectification of nontidal wetland areas which have been disturbed. (b) Utility lines do not include: (i) Intake and outfall structures; (ii) Pipe or pipeline used to transport any liquid or slurry substance except as associated with water and sewage lines; (iii) Natural gas lines greater than 12 inches in diameter; or (iv) Storm water conveyance systems. (4) Construction of overhead power transmission lines. (5) Mitigation projects not required under this subtitle. (6) Regulated activities which impact the buffer, and less than 2 acres of farmed nontidal wetlands with 15 or more consecutive days of inundation during the growing season, except in nontidal wetlands of special State concern or their expanded buffer. (7) The repair of the following serviceable structures or fills: (a) Aboveground and underground utilities; (b) Structures in rights-of-way; (c) Railroad beds; (d) Road beds, roadside ditches, culverts, and outlet ditches; (e) Bridges; (f) Dams; (g) Dikes; (h) Levees; (i) Water and wastewater control structures; and (j) Facilities designed for storm water management. (8) Activities which will result in the loss of nontidal wetlands that have been temporarily created by a permitted or authorized construction activity or as a result of a permitted mining activity, including wetlands created: (a) Incidental to mining activities that were conducted under an approved mining plan or permit, or wetlands that have been created incidental to a mining activity, and that will be impacted during implementation of an approved reclamation plan; (b) As a result of the construction of an approved sediment control structure; and (c) For a specific purpose that will remain for a specified period of time, including wash ponds and grassed waterways. C. The following conditions apply to the activities listed in §B(7) of this regulation: (1) If the structure or fill has been put to uses other than the use originally intended or authorized for the original construction, and the repair activity will alter or impair any additional nontidal wetland area, the repair of the structure may not be exempted. (2) Repair to be made more than 3 years after damage occurs or is first identified does not qualify for an exemption. D. An applicant seeking a letter of authorization under §B(8) of this regulation shall submit the following: (1) Information regarding the creation of the wetlands; (2) The purpose of the wetland creation, if applicable; (3) The length of time the wetland will exist; (4) A copy of the approved site plan, erosion and sediment control plan, mining plan, or reclamation plan; (5) A description of the function the created wetland will serve; (6) A request for the length of time the letter of authorization is to be valid; and (7) Justification for conducting the regulated activity in the nontidal wetland. E. Structures that have been placed in nontidal wetlands (for example, sediment traps), or that have impacted nontidal wetlands through their construction or operation do not qualify for a letter of authorization under §B(8) of this regulation. F. A letter of authorization issued under §B(8) of this regulation is in effect for a period of up to 5 years and may be extended for one additional 5-year period. A letter of authorization granted under §B(8) may not be extended for more than one 5-year period, for a total of 10 years, unless the regulated activity is part of a permitted mining activity or involves implementation of a mining reclamation plan. #### Regulation .02 Best Management Practices for Letters of Authorization. *COMAR 26.23.03.02* A. If a letter of authorization is granted, the Department may require an applicant to comply with best management practices, including one or more of the following: (1) Conduct the regulated activity so as not to harm a threatened or endangered species, or species in need of conservation, or alter or impair the critical habitat of these species; (2) Properly maintain the structure or fill; (3) Design the project to first avoid and then minimize any adverse impacts to the nontidal wetlands' existing topography, vegetation, fish and wildlife resources, and hydrologic conditions; (4) Conduct the regulated activity so as not to restrict or impede the: (a) Movement of wildlife indigenous to the nontidal wetlands or adjacent water, or (b) Passage of normal or expected high water flows; (5) Adhere to time-of-year restrictions as required by the Department under COMAR 26.08.02; (6) Avoid any disturbances in breeding areas for migratory waterfowl; (7) Maintain the hydrologic regime of the nontidal wetlands upstream, downstream, or adjacent to the exempted activity; (8) Remove excess fill or construction material or debris to an upland disposal area; (9) Place materials in a location and manner which does not adversely impact surface or subsurface water flow into or out of the nontidal wetland; (10) If backfill is obtained from sources other than the originally excavated material, use clean material free of waste metal products, unsightly debris, toxic material, or any other deleterious substance; (11) Place heavy equipment on mats or suitably design the equipment to prevent damage to the nontidal wetlands; (12) Repair and maintain any serviceable structures or fills so as not to result in a substantial deviation from the plans or specifications or the original structure or fill, although minor deviations due to changes in materials or construction techniques, and which are necessary for repair and maintenance, are permitted; (13) Rectify any nontidal wetlands temporarily impacted by any proposed repair and maintenance activity; (14) Repair and maintain any serviceable structure or fill so there is no permanent loss of nontidal wetlands in excess of nontidal wetlands lost under the original construction or fill; (15) Conduct the activity so as not to cause or contribute to a degradation of water quality as determined by the Department; (16) For installation of utility lines, make postconstruction grades and elevations of nontidal wetlands the same as the original grades and elevations. B. A proposed activity does not qualify for a letter of authorization if the Department determines that the activity: (1) Does not qualify under Regulation .01 of this chapter; (2) May result in significant individual or cumulative impacts to nontidal wetlands, attributable to an entire and complete project; or (3) Does not comply with the best management practices in this regulation. C. Activities of a Similar Nature. (1) Applicants proposing to conduct repeated regional or Statewide activities of a similar nature that may qualify for a letter of authorization may submit a single application to the Department. (2) The Department may issue a single letter of authorization for these activities in §C(1) of this regulation. (3) Activities may include: (a) Structural repair and maintenance; or (b) Work within rights-of-way. ### Chapter 04 — Mitigation **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01—.07 were recodified from Regulations .13—.18, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996 #### Regulation .01 Mitigation for Agricultural Activities. *COMAR 26.23.04.01* A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses are not required for agricultural activities which are exempted under COMAR 26.23.05.01B. B. Requirements. (1) The Department shall require that a person conducting an agricultural activity in nontidal wetlands after December 31, 1990, mitigate for the loss of nontidal wetlands within 3 years of the loss, if the agricultural activity is not exempted under COMAR 26.23.05.01B. (2) A person conducting an agricultural activity which causes the loss of nontidal wetlands shall, in consultation with a soil conservation district, develop a mitigation component of the soil conservation and water quality plan. (3) A person conducting an agricultural activity shall submit the mitigation component of a soil conservation and water quality plan to the Department for review before final approval by a soil conservation district. (4) The Department shall review the mitigation component of the soil conservation and water quality plan for consistency with Regulations .03—.07 of this chapter. The Department shall notify the landowner and the soil conservation district if the mitigation component is consistent within 60 days of receipt of a mitigation component. (5) If the Department fails to notify the landowner and the soil conservation district within 60 days of receipt of a mitigation component, then the mitigation component shall be deemed to be consistent with Regulations .03—.07 of this chapter. (6) A soil conservation district may not approve the components of a soil conservation and water quality plan pertaining to nontidal wetland impacts if the Department has determined that the mitigation component is inconsistent with Regulations .03—.07 of this chapter. (7) The Department, in determining the extent of mitigation, shall consider the benefit provided by best management practices in replacing lost nontidal wetland acreage and functions. (8) The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation shall be accepted only under the conditions, and based on the fee structure guidelines, in Regulation .07 of this chapter. (9) If the Department of Agriculture determines in writing that mitigation will create an economic hardship that would jeopardize the continued operation of a farm, mitigation may be deferred until one or more of the following occur: (a) The economic hardship no longer exists. (b) The current owner or operator transfers the farm to a new owner or operator. In this case, the current owner or operator shall remain responsible for mitigation. (c) Agricultural activities no longer take place on the nontidal wetland. (10) When an economic hardship, as determined by the Department of Agriculture, ends due to conditions described in §B(9) of this regulation: (a) A person conducting an agricultural activity shall implement the mitigation component of an approved soil conservation and water quality plan within 3 years of the loss of the nontidal wetland, or within 1 year of the end of the economic hardship, whichever is greater; and (b) The Department of Agriculture shall notify the Department in writing within 30 days of the end of the economic hardship. (11) The Department shall require that a person conducting an agricultural activity in a nontidal wetland, which requires mitigation, to file a surety bond with the Department consistent with Regulation .04B of this chapter, within: (a) 60 days of approval of the soil conservation and water quality plan which includes the mitigation component, provided that an economic hardship determination has not been granted; or (b) 90 days of the expiration of an economic hardship determination. (12) The Department of Agriculture shall submit a mitigation report to the Department at the end of each fiscal year. This report shall provide the following information on the status of the Department of Agriculture's economic hardship determinations for each farm: (a) Whether the economic hardship still exists; (b) Whether the owner or operator granted the deferral is the current owner or operator; and (c) The acreage of nontidal wetland losses for which mitigation has been deferred by the economic hardship. #### Regulation .02 Mitigation for Regulated Activities. *COMAR 26.23.04.02* A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses is not required for regulated activities: (1) Exempted in COMAR 26.23.01.02 and 26.23.03.01, except when specified; (2) Which do not result in a loss of nontidal wetlands; (3) Occurring only in the buffer or expanded buffer. B. Requirements. (1) A permittee shall take all necessary steps to first avoid adverse impacts and then minimize losses of nontidal wetlands. If the permittee demonstrates to the Department's satisfaction that losses of nontidal wetlands are unavoidable and necessary, the Department shall require the permittee to develop and implement mitigation practices. (2) The Department shall require a permittee, as a condition of a permit, to mitigate or monetarily compensate for nontidal wetland losses caused by regulated activities not listed as exemptions in §A of this regulation. (3) The Department may waive some or all of the off-site mitigation requirements for up to 1 acre of nontidal wetland loss for construction of special wastewater disposal facilities in a nontidal wetland on residential property. The waiver is conditioned upon the applicant siting the special wastewater disposal facility so as to avoid and minimize impacts to nontidal wetlands, and upon performance of on-site mitigation to the maximum extent practicable. (4) The Department may reduce mitigation requirements if the regulated activity provides a significant environmental benefit or if the proposed mitigation project has a high likelihood of success, as determined by the Department. (5) The Department shall require a permittee to develop and submit for Department review and approval mitigation plans consistent with the mitigation: (a) Standards of Regulation .03 of this chapter; (b) Plan requirements in Regulation .05 of this chapter; and (c) Monitoring and bond requirements in Regulation .04 of this chapter. (6) The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation shall only be accepted under conditions and based on the fee structure guidelines described in Regulation .07 of this chapter. (7) The Department may not base a final nontidal wetland permit determination solely on the environmental benefits of a mitigation proposal or the financial benefits of monetary compensation proposals. (8) If the Department denies approval of a mitigation plan and the permittee is aggrieved by the decision, the permittee may appeal the denial under the procedures in COMAR 26.23.02.03B. The Department may order a cessation of the permitted activity or interim stabilization measures pending resolution of the contested case over denial of a mitigation plan. (9) The Department may approve of mitigation bank sites in consultation with the appropriate local, State, and federal agencies for the purpose of providing mitigation for identified projects. Mitigation bank sites for identified projects are required to meet the standards of Regulation .03H, I, and J and the monitoring requirements of Regulation .04A of this chapter. #### Regulation .03 Mitigation Standards. *COMAR 26.23.04.03* A. Goal. It is the goal of the Act to attain no net overall loss in nontidal wetland acreage and function, and to strive for a net resource gain in nontidal wetlands. However, it may not be possible for the goal of no net loss to be achieved in each permit action. Achievement of this goal will occur through the regulatory components of this subtitle and other Statewide initiatives which incorporate nontidal wetlands creation, restoration, and enhancement projects outside of the regulatory framework. B. Mitigation standards shall be determined in part through the use of acreage replacement ratios. Acreage replacement ratios are expressed as a relationship between two numbers. The first number shall specify the acreage of nontidal wetlands to be mitigated and the second shall specify the acreage of nontidal wetlands lost. C. The Department shall consider the mitigation requirement for replacing a loss of nontidal wetlands to be fulfilled when: (1) The following acreage replacement ratios have been met through in-kind creation or restoration for: (a) Emergent nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank, (b) Scrub-shrub nontidal wetlands—2:1 or 3:1 when using credit from an approved mitigation bank, (c) Forested nontidal wetlands—2:1 or 3:1 when using credit from an approved mitigation bank, (d) Emergent nontidal wetlands designated as nontidal wetlands of special State concern—2:1 or 3:1 when using credit from an approved mitigation bank, (e) Scrub-shrub nontidal wetlands designated as nontidal wetlands of special State concern—3:1 or 4.5:1 when using credit from an approved mitigation bank, and (f) Forested nontidal wetlands designated as nontidal wetlands of special State concern—3:1 or 4.5:1 when using credit from an approved mitigation bank; (2) A minimum in-kind acreage replacement ratio of 1:1 has been met, and lost nontidal wetland functions have been replaced by additional creation, restoration, or enhancement activities including best management practices for agricultural activities; (3) The Department has determined on a case-by-case basis that enhancement is the only mitigation option, and has specified requirements which have been met by the permittee or person conducting an agricultural activity; or (4) The Department has specified mitigation requirements which have been agreed to and implemented by the permittee or a person conducting an agricultural activity. D. The Department shall consider the mitigation requirement for replacing a loss of farmed nontidal wetlands to be fulfilled when the following replacement ratios have been met through: (1) Enhancement of farmed nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank; or (2) Creation or restoration of emergent, scrub-shrub, or forested nontidal wetlands—1:1 or 1.5:1 when using credit from an approved mitigation bank. E. In order for enhancement activities to be accepted towards replacement of lost nontidal wetlands functions, the permittee or person conducting an agricultural activity may be required to: (1) Perform a functional assessment on the wetland proposed to be impacted before the loss of any nontidal wetlands occurs based on-site assessment techniques acceptable to the Department; and (2) Identify how enhancement activities are to replace specified nontidal wetland functions that will be lost. F. Enhancement activities may be accepted to replace the loss of nontidal wetland functions when an enhancement activity provides additional protection to, creates, or improves the functions of, nontidal wetlands. Activities may include: (1) Enhancement of farmed wetlands; (2) Enhancement of degraded nontidal wetlands; (3) Best management practices for agricultural activities; (4) Department-approved wildlife ponds; (5) Purchase or preservation of upland buffers adjacent to existing, created, restored, or enhanced nontidal wetlands; (6) Purchase or preservation of existing nontidal wetlands; and (7) Activities consistent with plans and agreements to create or improve waterfowl habitats in Maryland. G. In determining if enhancement activities will replace nontidal wetland acreage and functional losses, the Department shall consider the following: (1) Degree to which the enhancement activity replaces functions of the lost nontidal wetland; (2) Benefits of the enhancement activity in rehabilitating or maintaining nontidal wetlands; (3) Scope and extent of the enhancement activity; (4) Proximity of the enhancement activity to the nontidal wetland loss; (5) Technical merits of the enhancement activity and its likelihood of long-term success; (6) Adverse impact of the enhancement activity on natural resources; (7) Relationship of the enhancement activity to ongoing natural resource management activities; and (8) Compatibility of the enhancement activity with approved comprehensive watershed management plans, if applicable. H. Geographic Location. Mitigation projects preferably shall be connected to existing nontidal wetlands, waterways, or 100-year floodplains. Projects may be located on multiple parcels. Projects shall be located according to the following geographic location in order of preference, unless otherwise determined by the Department: (1) Locations on-site; (2) Locations off-site, and: (a) Identified in a comprehensive watershed management plan approved by the Department; (b) Identified in plans and agreements to create or improve waterfowl habitats in Maryland and approved by the Department; (c) Where the Department has determined, in consultation with other State, local, and federal government agencies, that regional needs for nontidal wetlands functions strongly justify the siting of mitigation projects, and the mitigation project is located: (i) In the watershed where the nontidal wetland loss occurred; (ii) In the drainage basin where the nontidal wetland loss occurred; or (3) In a county with delegation authority, the preferred location of off-site mitigation projects is within the county. I. Siting Within Geographic Locations. In selecting sites within geographic regions for mitigation, a permittee or person conducting an agricultural activity shall pursue mitigation projects on upland sites which have undergone significant human disturbances. A permittee or person conducting an agricultural activity should avoid, whenever possible, siting mitigation projects on: (1) Forested lands; (2) Lands used for dredged disposal, mine refuse, or other purposes where contaminant problems may exist; or (3) Lands which are existing or potential habitat for plant or animal species: (a) Listed as endangered or threatened by the U.S. Fish and Wildlife Service; (b) Listed as endangered or threatened or species listed as in need of conservation by the Department of Natural Resources; or (c) Considered as a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department of Natural Resources. J. Project Standards. (1) The permittee or person conducting an agricultural activity shall successfully implement the approved mitigation plan within the time period required by the Department and specified in the mitigation plan. (2) Created or restored nontidal wetlands shall meet the following plant survival criteria: (a) After 5 years, greater than 85 percent of the site shall be vegetated by planted species approved by the Department or by a species composition agreed to by the Department; (b) Allowances shall be made for natural species changes as long as the plant communities are similar to those lost; and (c) After 5 years, the nontidal wetland shall be dominated by native or adaptive vegetation. (3) In the case of a permittee or person conducting an agricultural activity, who has proposed the use of natural revegetation as part of the creation, restoration, or enhancement project, after 5 years, greater than 85 percent of the site shall be: (a) Vegetated by species similar to those found in the nontidal wetland lost or by a species composition agreed to by the Department; and (b) Dominated by native or adaptive vegetation. (4) In the case where the nontidal wetland was dominated by exotic or nuisance plants, the Department shall accept out-of-kind mitigation. (5) The Department may not approve mitigation plans that include exotic or nuisance plants. K. Protection Mechanisms. (1) The permittee, bank operator, or person conducting an agricultural activity shall provide mechanisms to assure the protection of the created, restored, or enhanced nontidal wetlands in perpetuity. This may be achieved through any protection mechanism approved by the Department, including: (a) Deed restrictions; (b) Conservation easements; (c) Deeding the created, restored, or enhanced nontidal wetland to an organization or public agency capable of protecting the area in perpetuity; or (d) Restrictive covenants. (2) Any protection mechanism under §K(1) of this regulation shall include provisions on the following: (a) Language granting the Department, or any successor agency, access to the mitigation site for inspections during the monitoring period and for construction of the mitigation project, if the permittee or person conducting an agricultural activity forfeits a bond and the Department decides to complete construction of the mitigation project; (b) In the case of an easement agreement, language allowing assignment of a permittee's, or person conducting an agricultural activity's, interest under the easement agreement to the Department, if the bond is forfeited and the Department decides to complete construction of the mitigation project; (c) An absolute prohibition on the draining, dredging, removal, or filling of the created nontidal wetland site; (d) Language that the restriction is perpetual, binding on the grantor's personal representatives, heirs, successors, and assigns and runs with the land. #### Regulation .04 Monitoring and Bonding. *COMAR 26.23.04.04* A. Monitoring. (1) The monitoring period begins with the first full growing season following completion of construction. The period of the growing season is specified in the post-construction monitoring plan, Phase II plan, or mitigation banking agreement. (2) Monitoring reports are submitted by: (a) A permittee or person conducting an agricultural activity for a period of 5 years from the completion of construction of the mitigation project, unless the Department provides written notice that the monitoring requirements have been fulfilled in less than 5 years; (b) A mitigation bank operator, for a minimum of 5 years after completion of construction of the bank or until the last available credit is withdrawn, whichever is later. (3) The Department shall require that monitoring reports be submitted: (a) Annually, not later than December 31; and (b) In an acceptable form. (4) The permittee, bank operator, or person conducting an agricultural activity shall consider monitoring requirements fulfilled upon receipt of written notice from the Department. If the Department fails to send written notice to the permittee, bank operator, or person conducting an agricultural activity within 60 days after the end of the monitoring period, the monitoring requirement shall be considered fulfilled. (5) Through written notification to the permittee, bank operator, or person conducting an agricultural activity, the Department may extend the required monitoring period for not more than an additional 3-year period, if the mitigation project fails to comply with Regulation .03J of this chapter. (6) The permittee, bank operator, or person conducting an agricultural activity shall provide annual monitoring reports to the Department which include the following information: (a) A description of how the mitigation project meets the mitigation project standards in Regulation .03J of this chapter; (b) Photographs of the mitigation project; (c) The commercial source of planting stock whenever planting is required; (d) A description of any modifications which have been made or need to be made to implement the mitigation plan or component so as to meet the standards of Regulation .03J of this chapter; and (e) For mitigation banks, monitoring information required in a mitigation banking agreement. (7) The Department reserves the right to inspect the mitigation project at any time during the construction and required monitoring period, and any time after that to assess the long-term viability of the mitigation site. B. Bonding. (1) This section does not apply to agencies of any federal, State, county, or municipal government. (2) Within 60 days of the Department's approval of Phase II of the mitigation plan, or the mitigation component of a soil conservation and water quality plan, a permittee or person conducting an agricultural activity shall file with the Department a surety bond on a form to be prescribed and furnished by the Department. (3) The bond shall be payable to the State and conditioned upon the successful completion of construction of the mitigation project according to an approved mitigation plan, as it may be modified under Regulation .05D of this chapter, by a permittee or a person conducting an agricultural activity. (4) Alternate Forms of Security. (a) Instead of a surety bond, the Department may accept one of the following alternate forms of security: (i) A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the acceptable bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture; (ii) A certificate of deposit equal to the required bond, issued by a bank in the State and accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture; (iii) An irrevocable letter of credit that is equivalent to the required bond, issued by a bank or financial institution organized or authorized to do business in the State, that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture; (iv) The grant to the Department, in trust, of a deed, an easement, or other interest in upland property owned by the permittee or person conducting an agricultural activity that has at least the same monetary value as the selected mitigation site; (v) Fulfillment of mitigation requirements before completion of the permitted activity or before the approved agricultural activity results in a loss of nontidal wetlands. (b) The permittee or person conducting an agricultural activity shall submit to the Department all alternate forms of security deposited under §B(4)(a)(i)—(iii) of this regulation until authorized for release. All alternate forms of security may not expire until construction of the mitigation project has been successfully completed pursuant to the approved mitigation plan, as may be modified under Regulation .05D of this chapter. (5) Amount of Bond. (a) The amount of the bond for a permittee shall be set at $20,000 per acre of nontidal wetland mitigation required under the permit. (b) The permittee may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information. (c) The Department shall determine whether a lesser amount is sufficient to cover the cost of mitigation, taking into account the following: (i) Number of acres to be mitigated; (ii) The cost of land in the area of the mitigation site; (iii) The proposed method of mitigation; and (iv) Any other relevant factors, including the likelihood of success of the project. (6) Liability under a bond shall continue until the Department receives and approves of an as-built plan for the mitigation project and the surety or financial institution receives written notice from the Department that construction of the mitigation project was successfully completed. (7) A surety bond or other alternative form of security may not be cancelled by the surety, bank, or other issuing entity unless both of the following conditions are satisfied: (a) The surety notifies the Department and the permittee or person conducting an agricultural activity of its intent to cancel the bond, in writing, by registered mail, not less than 90 days before cancellation; and (b) At least 45 days before the cancellation date indicated in the notice, the permittee or person conducting an agricultural activity files a commitment from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice. (8) Bond Forfeiture. (a) The bond or other instrument securing compliance with the mitigation plan or component may be subject to forfeiture upon: (i) Revocation of a nontidal wetlands permit; (ii) Failure of the permittee to comply with an administrative order; or (iii) Failure to comply with any element of the approved mitigation plan and any approved modifications; or (iv) Failure to comply with any element of the approved mitigation component of a soil conservation and water quality plan, and any approved modifications. (b) The Department, in writing and by certified mail, shall notify the permittee or a person conducting an agricultural activity, and the surety or other financial institution, of the Department's intention to initiate forfeiture proceedings. (c) The permittee or a person conducting an agricultural activity shall have 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited. (d) On showing cause, the Department shall provide for a reasonable time for the permittee or person conducting an agricultural activity, or surety or other financial institution, to correct the problem. (e) If the permittee or person conducting an agricultural activity fails to show cause, the bond or other instrument shall be forfeited nisi and the Department shall notify the permittee, surety or other financial institution, or the person conducting an agricultural activity of the forfeiture. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted to the Department within 30 days from forfeiture nisi, the bond or other security shall be forfeited absolute. (f) The Department shall use forfeited bonds or alternate forms of security to perform mitigation requirements. (9) To avoid double bonding, the Department shall work with an applicant required to post bond under Environment Article, §15-823, Annotated Code of Maryland, and other Department programs requiring a bond. (10) A permittee or person conducting an agricultural activity may not conduct a regulated or agricultural activity in a nontidal wetland if the permittee or person conducting an agricultural activity previously forfeited any bond or alternate security under this subtitle, unless the permittee or person conducting an agricultural activity repays the Department the cost of completing the mitigation project in excess of the forfeited bond or alternate security, plus interest at the rate set in the Courts and Judicial Proceedings Article, §11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee or person conducting an agricultural activity shall complete the mitigation project at its expense according to the approved mitigation plan and any approved modifications. C. Bonding for Mitigation Banks. (1) Government agencies operating a mitigation bank are not subject to the provisions of this section. (2) As approved by the Department and as provided in §B(4), (5), and (7) of this regulation, a mitigation bank operator shall: (a) Post a performance bond, or alternate form of security, payable to the Department; (b) Guarantee to pay to the Department, or place in escrow or trust, an amount equal to the amount due under the mitigation fee structure for the county in which the mitigation bank is located or under guidelines in Regulation .07 of this chapter; (c) Perform the mitigation on another site acceptable to the Department; or (d) Provide such other alternate form of security as may be acceptable to the Department. (3) Liability under the performance bond or alternate form of security set forth in §B(2)(a) or (4) of this regulation commences at the time the Department approves use of the mitigation bank and continues: (a) Through the end of the monitoring period specified in the mitigation banking agreement or until the last credit is withdrawn, whichever is later; and (b) Until the surety or financial institution receives written notice from the Department that the bond or alternate form of security may be released. (4) The Department may partially release the performance bond or alternate form of security during the term of the monitoring period. (5) The performance bond or alternate form of security is subject to forfeiture upon failure of the bank operator to comply with: (a) The terms of the mitigation banking agreement; or (b) Regulations .03—.07 of this chapter, as applicable. (6) The bond forfeiture provisions of §B(8)(b)—(e) of this regulation apply to mitigation banks. #### Regulation .05 Mitigation Plan. *COMAR 26.23.04.05* A. A person conducting an agricultural activity in nontidal wetlands shall submit mitigation components of a soil conservation and water quality plan to the Department consistent with the requirements of this regulation. B. Phase I. (1) A permittee shall submit Phase I of a mitigation plan as part of the permit application. (2) Phase I of the mitigation plan shall include all of the following information: (a) Names, addresses, and telephone numbers of the principals associated with project implementation. (b) A proposal, if applicable, to use monetary compensation consistent with Regulation .04 of this chapter to fulfill mitigation requirements. (c) A photograph and description of the type and acreage of proposed nontidal wetland losses. (d) A description of the activity which may cause the loss of nontidal wetlands. (e) A description of mitigation projects, including best management practices for agricultural activities, proposed as fulfillment of the required replacement of lost nontidal wetland acreage and functions. The description shall include the proposed source of hydrology and project location maps showing the geographic relationship between the area of potential nontidal wetland losses and the proposed mitigation sites. (f) A description of the site selection process and a justification of the selection of the proposed mitigation site based on Regulation .03H and I of this chapter. (g) A description of the selected protection mechanisms for each mitigation site as required in Regulation .03K of this chapter. (h) A proposal, if applicable, to mitigate through the use of mitigation credits in a mitigation bank, including the: (i) Name of the bank operator and owner, (ii) Location of the mitigation bank, (iii) Type and acreage of mitigation credits in the mitigation bank proposed for use. (3) The Department shall render a decision concerning the acceptability of Phase I of a mitigation plan as part of the final permit decision. (4) The Department, in rendering a decision on Phase I of a mitigation plan, shall provide guidance to the applicant on the contents, timing, and necessity of proceeding with Phase II of the mitigation plan. (5) The Department shall review proposals to use mitigation credit from an approved mitigation bank based on Regulation .03 of this chapter and: (a) Evidence that the applicant has investigated on-site mitigation and that on-site mitigation is infeasible; (b) Ability of the proposed mitigation bank to replace or enhance the functions of the wetland that are proposed to be lost; (c) Compliance by the bank operator with the terms of the mitigation banking agreement; and (d) Availability of credits in the mitigation bank. C. Phase II. (1) A permittee may submit Phase II of a mitigation plan as part of the permit application. (2) Unless otherwise determined by the Department, Phase II of the mitigation plan shall be submitted within 3 months of the Department's final permit decision and shall include all of the following information about each mitigation project: (a) Plan view scaled drawings, including: (i) Vicinity map showing the mitigation project location, existing land use, and zoning; (ii) Location, type, and acreage of proposed nontidal wetland mitigation activities; (iii) Proposed location of stockpile areas; (iv) Location of sediment and erosion control practices; (v) Locations of all areas used to store machinery, equipment, or supplies; (vi) Proposed source of borrow materials; (vii) Proposed location, spacing, and type of propagules for each plant species; (viii) Location of best management practices for agricultural activities; and (ix) Other information pertinent to Phase II of a mitigation plan as required by the Department. (b) Cross-section drawing showing existing and proposed final site conditions including grade, elevation, and slope. (c) Description of how enhancement activities, including best management practices for agricultural activities, will replace lost nontidal wetland acreage and functions. (d) If applicable, a description of how the enhancement of farmed nontidal wetlands will replace lost nontidal wetland acreage and functions. (e) Construction schedule, which includes estimated start and completion dates. (f) Hydrology, which includes: (i) Estimated elevation of surface and ground water as measured from the soil surface bimonthly, March—May, and monthly, June—October; (ii) The source of the water such as ground water, precipitation, and surface water, over various seasons of the year; and (iii) The reliability of the hydrologic sources throughout the various seasons of the year; and (iv) Relevant precipitation data. (g) Substrate conditions including a description of: (i) Existing soil and substrate conditions; and (ii) Soil and substrate amendments needed to meet hydric soil characteristics and maintain the specified plant species. (h) Vegetation to be planted including all of the following: (i) The scientific and common name of plant species, which shall be native or adaptive to the State; (ii) Planting dates for each species according to propagation method; and (iii) Planting stock fertilizer requirements for the entire 5-year monitoring period. (i) A 5-year monitoring schedule establishing responsibility for the removal of exotic and nuisance vegetation, and permanent establishment of the nontidal wetland system and its component parts. The Department shall encourage the permittee or person conducting an agricultural activity to provide for the long-term maintenance and monitoring of mitigation sites beyond the required monitoring period. (j) A detailed budget of the proposed mitigation project costs including: (i) Land acquisition; and (ii) Design, which includes construction, monitoring, and maintenance. (k) Documentation of the protection mechanisms required in Regulation .03K of this chapter. (3) The permittee or person conducting an agricultural activity shall present evidence of a legal right to implement the proposed mitigation plan on the selected sites by providing: (a) An executed deed conveying title to the selected site to the permittee or person conducting an agricultural activity; (b) An executed conservation easement agreement; (c) Written evidence of the landowner's consent to the use of the selected site; (d) A fully executed option agreement, long-term lease agreement, or contract of sale for the selected site; or (e) Other written evidence of a possessory or ownership interest in the selected site. (4) The Department may waive all or part of the requirements of Phase II of a mitigation plan. (5) The Department may not release a bond or terminate monitoring without receipt of a legally binding deed, long-term lease, or conservation easement agreement on those lands where mitigation will occur. (6) The permittee or person conducting an agricultural activity shall provide the Department access to the mitigation site during business hours. (7) The Department shall render a decision concerning the acceptability of Phase II of a mitigation plan within 45 days of receipt of a completed plan, unless a final permit decision has not been made. If the Department fails to notify the applicant within the 45-day period, the plan shall be considered acceptable unless a final permit decision has not been made. D. Mitigation Plan Modification. (1) The Department may require, and a permittee or person conducting an agricultural activity may request, modifications to an approved mitigation plan or component during construction to ensure compliance with this subtitle. Modification, substitution, or other deviations from an approved mitigation plan or component may not be made without approval under this section. (2) A modification request may be made orally or in writing. (3) A written request shall contain the following information: (a) The name of the permittee or person conducting an agricultural activity; (b) Location of the mitigation project; (c) A description of the proposed modification; and (d) A justification for the modification. (4) The Department's decision may be given orally or in writing. The Department shall notify a permittee or person conducting an agricultural activity of its decision within 10 days of a written request. If an oral decision is made, the Department shall confirm its decision in writing within 10 days. The Department's decision, whether oral or written, is binding on the permittee or person conducting an agricultural activity. #### Regulation .06 Mitigation Banking. *COMAR 26.23.04.06* A. Application Procedures. (1) A person proposing to establish and operate a mitigation bank shall submit a mitigation bank application on a form provided by the Department. (2) The application shall meet the requirements of COMAR 26.23.02.01B(6). (3) A mitigation bank concept plan is submitted with the application and includes: (a) Drawings at a scale equal to 1 inch equals 200 feet or other scale approved by the Department, and showing existing topography, nontidal wetland boundaries and buffers, and 100-year floodplain boundaries, if applicable; (b) A vicinity map of the proposed mitigation bank site; (c) Proposed acreage and type of nontidal wetlands to be established in the bank; (d) A description of methods of establishment of nontidal wetlands; (e) The proposed water source; (f) A description of proposed earth disturbance necessary; (g) A preliminary assessment of impact, if any, on existing nontidal wetlands, buffers, and 100-year floodplains; (h) A proposed mechanism to protect the mitigation bank site in perpetuity, including easements, covenants, deed restrictions, or similar means approved by the Department; (i) As applicable, information regarding consistency with natural resource management plans, approved watershed plans, forest conservation, local growth management policies, and local comprehensive plans; and (j) Other information required by Regulation .05C of this chapter. (4) The applicant shall provide other pertinent information as required by the Department. (5) The Department shall render a decision on the completeness of the mitigation bank application within 45 days of receipt. (6) The Department may extend the time period for review of the mitigation bank application due to: (a) Inclement weather conditions; or (b) Additional review required by other State, federal, or local agencies. B. Public Notice and Public Informational Hearing. (1) The Department may issue a public notice for a proposed mitigation bank less than 5 acres in size. (2) After the Department has determined that an application for a proposed mitigation bank greater than 5 acres in size is complete, the Department shall issue, at the applicant's expense, a public notice in accordance with COMAR 26.23.02.02G(2) and (3). (3) If requested, a public informational hearing shall be conducted in accordance with COMAR 26.23.02.02H. (4) Based on information presented at the public informational hearing, the applicant may be required to submit additional information. C. Mitigation Banking Agreement. (1) A mitigation banking agreement shall be developed after the Department approves a mitigation banking application. (2) The Department and the applicant shall execute a mitigation banking agreement before: (a) Construction of the mitigation bank; and (b) Consideration by the Department of the use of the mitigation credits by applicants. (3) At the Department's discretion, a mitigation banking agreement may include: (a) Construction plans and specifications developed in accordance with Regulation .05C(2) of this chapter; (b) Specifications for: (i) A bond or alternate form of security, as approved by the Department; or (ii) A remedy to be imposed on a government agency responsible for a government-operated mitigation bank, upon failure to perform remediation; (c) Performance standards to demonstrate anticipated success of the mitigation bank, including: (i) Sufficiency of hydrology to sustain a nontidal wetland; (ii) An interim standard of a minimum of 45 percent coverage of planted or naturally occurring plant species; (iii) A final standard of a minimum of 85 percent coverage of planted or naturally occurring plant species within a time frame specified by the Department which may not exceed the term of the monitoring period specified in Regulation .04A of this chapter; and (iv) Evidence to document that the mitigation bank is providing or will provide specific nontidal wetland functions; (d) Provisions for post-construction monitoring and maintenance of the mitigation bank consistent with Regulation .04A of this chapter; (e) The executed instrument to protect the mitigation bank in perpetuity; (f) Bank operation and maintenance procedures; (g) Bank operator responsibilities; (h) Remediation procedures; (i) Accounting and reporting requirements; (j) Monitoring requirements; (k) Mitigation bank close-out procedures; (l) Procedures for termination of the agreement; and (m) Other terms agreed upon by the bank operator and the Department. (4) The bank operator shall construct, operate, and maintain the mitigation bank according to the terms of the mitigation banking agreement. (5) The Department shall approve, in writing, all revisions, amendments, or modifications to the mitigation banking agreement. (6) The bank operator shall notify the Department upon completion of construction of the mitigation bank. (7) Within 60 days of completion of construction, the bank operator shall submit to the Department: (a) As-built drawings with post-construction contours; and (b) Drawings showing actual planting, which are attached to and made a part of the mitigation banking agreement. (8) The bank operator shall allow representatives or agents of the Department to enter the mitigation bank at any time during or after construction to conduct inspections and to assess the success of the mitigation bank. D. Timing of Sale of Mitigation Credit and Approval of Mitigation Bank Use. (1) The bank operator may select the time to begin sale of credits. (2) The sale of credits by a bank operator may not imply approval of the use of those credits by the Department for specific projects. (3) The Department may approve use of not more than 1/2 of the acreage in a mitigation bank before the end of two full growing seasons after construction, based on approval by the Department of: (a) Executed mitigation banking agreement; (b) As-built plans showing completed site construction, preparation, and contouring; (c) Executed mechanism to protect the mitigation bank in perpetuity; and (d) Fulfillment of bonding requirements, if applicable. (4) The Department may approve use of the remaining 1/2 of the acreage after two full growing seasons have elapsed, if remediation is not required and the interim performance standards specified in the mitigation banking agreement have been met. (5) The Department shall advise the bank operator and applicants proposing to use credits of the Department's approval of the bank. (6) The Department may approve use of mitigation credits as partial fulfillment of a permittee's mitigation requirement. E. Accounting and Reporting Requirements. (1) Within the time frames allowed in the mitigation banking agreement, the bank operator shall submit to the Department for each transaction the: (a) Name and address of the person purchasing or returning credits; (b) Date of the transaction; (c) Amount and type of wetland acreage to be used as credit; and (d) Project name, location, and the Department's application processing number, if applicable, for which use of mitigation credit is proposed. (2) A government agency responsible for a government operated mitigation bank shall submit the name and address of the agency utilizing credits, the name of the contact person, and the information specified in §E(1)(b)—(d) of this regulation. (3) The bank operator and the Department shall jointly record withdrawal of the acreage approved for use by an applicant. (4) Mitigation credit will be withdrawn from the mitigation bank in the order approved by the Department. (5) For each year of operation, a summary of all activities relating to the sale or transfer of mitigation credits is submitted to the Department within 30 days after December 31 of each calendar year. (6) The bank operator shall notify the Department if the bank operator wishes to cease consideration of areas representing unsold or unused credits as part of the mitigation bank. (7) Mitigation credit withdrawn for a project anticipated to be authorized by the Department under this subtitle is returned to the mitigation bank if the Department: (a) Denies the authorization; (b) Authorizes impacts that are less than the amount anticipated; or (c) Requires mitigation by a method other than use of the mitigation credit. F. Remediation. (1) The Department may require remediation at any time before the end of the monitoring period to ensure compliance with the performance standards specified in the mitigation banking agreement. (2) To determine if remediation is necessary, the Department may require that specific data be collected and submitted by the bank operator. (3) Remediation required by the Department is directly related to ensuring that the performance standards specified in the mitigation banking agreement will be met. (4) The Department may withhold or suspend approval of use of credits in the bank until remediation is completed to the Department's satisfaction. (5) The Department may consider continuing to approve use of credits in the bank for that portion of the bank not requiring remediation. (6) If, after a period to be specified in a mitigation banking agreement, the Department determines that a government agency responsible for a government-operated mitigation bank has not performed remediation, the remedy specified in the mitigation banking agreement is imposed. G. Close Out of Mitigation Banks. (1) The Department and a bank operator may close out a mitigation bank when: (a) All credits have been withdrawn; (b) Monitoring has been completed to the Department's satisfaction; (c) Remediation, if required by the Department, has been completed to the Department's satisfaction; (d) Protection in perpetuity has been established; and (e) The bond or alternate form of security, if applicable, has been released. (2) The bank operator shall notify the Department in writing to request confirmation of the decision to close out the mitigation bank. (3) The Department shall confirm the close out within 45 days of receipt of the request, unless additional information is needed or the conditions in §G(1) of this regulation have not been met. #### Regulation .07 Nontidal Wetland Compensation Fund. *COMAR 26.23.04.07* A. The Department may accept monetary compensation if it determines that mitigation for nontidal wetland losses is not a feasible alternative. Monetary compensation may not substitute for the requirement to avoid or minimize nontidal wetland losses. B. When a permittee or person conducting an agricultural activity maintains that mitigation is not a feasible alternative based on the requirements of §C of this regulation, the permittee or person conducting an agricultural activity shall propose that the Department accept monetary compensation. A proposal for acceptance of monetary compensation shall be submitted as a part of Phase I of a mitigation plan or as part of the mitigation component of the soil conservation and water quality plan submitted to the Department for review. C. Monetary compensation may be accepted under one or more of the following circumstances: (1) The size of the nontidal wetland loss is less than 1 acre. (2) In-kind mitigation of nontidal wetlands to be lost is technically infeasible. (3) An acceptable mitigation site cannot be located within the areas identified in Regulation .03H of this chapter, as documented by submission of: (a) A map and description of sites rejected. (b) A justification of why each site was unsuitable for mitigation. (c) Other information required by the Department. (4) The Department recommends the use of the compensation fund. D. Monetary compensation proposals may be rejected if the Department determines that: (1) Mitigation requirements can be fulfilled on-site; or (2) Conditions in §C of this regulation are not fulfilled. E. The Department shall render decisions on proposals to accept monetary compensation based on §B of this regulation as part of a final permit or mitigation component decision. F. The Nontidal Wetland Compensation Fund shall include: (1) Monetary compensation paid by a permittee or person conducting an agricultural activity instead of engaging in the creation, restoration, or enhancement of nontidal wetlands; (2) A civil or criminal penalty imposed by a court pursuant to COMAR 26.23.01.05 or 26.23.02.09; and (3) Other monetary contributions to the Nontidal Wetland Compensation Fund from other sources. G. Funds in the Nontidal Wetland Compensation Fund may be used only for the creation, restoration, or enhancement of nontidal wetlands. This includes: (1) Development of mitigation plans; (2) Location and acquisition of land; (3) Acquisition of easements; (4) Design, construction, planting, monitoring, and maintenance of mitigation sites; and (5) Purchase of credits in mitigation banks. H. The Department may determine monetary compensation fees based on costs anticipated to construct mitigation projects, including location and acquisition of land, design, construction, maintenance, and monitoring costs. The Department may use the following to determine these costs: (1) Land acquisition costs derived from fair market value of the converted nontidal wetland by the permittee or person conducting an agricultural activity, based on at least two independent appraisals or other evidence of land value which may be acceptable to the Department; (2) Design costs derived from a percentage of construction costs or actual costs for projects similar in size and complexity completed by a permittee, person conducting an agricultural activity, or the Department; (3) Construction costs derived on a case-by-case basis, taking into account the following factors: (a) Nontidal wetland type, size, and functions; (b) Amount of planting, grading, and other site preparations; and (c) Costs of similar mitigation projects completed by permittees, persons conducting agricultural activities, or the Department; and (4) Monitoring and maintenance costs derived from a percentage of construction costs or actual costs for projects similar in size and complexity completed by a permittee, person conducting an agricultural activity, or the Department. I. Funds credited and any interest accrued to the Nontidal Wetland Compensation Fund shall remain available until expended, and may not revert to the general fund. J. The Department shall prepare an annual report on the Nontidal Wetland Compensation Fund that includes an accounting of: (1) Financial receipts and expenditures to and from the Fund; and (2) Mitigation projects completed and in progress. K. The Department shall provide a copy of the annual report to the General Assembly as provided under State Government Article, §2-1312, Annotated Code of Maryland. ### Chapter 05 — Agricultural and Forestry Activities **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01—.03 were recodified from Regulations .19—.21, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996 #### Regulation .01 Agricultural Activities. *COMAR 26.23.05.01* A. A person conducting an agricultural activity is exempt from the requirement to obtain a nontidal wetlands permit under this subtitle. Unless exempted in §B of this regulation, a person conducting an agricultural activity which adversely impacts a nontidal wetland shall implement best management practices to protect nontidal wetlands and provide mitigation for any loss of nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, a soil conservation district after December 31, 1990. B. Exemptions. The following activities are exempt from the approval and mitigation requirements of this subtitle: (1) Repair and maintenance for agricultural activities in nontidal wetlands. These activities include repair and maintenance of: (a) Drainage ditches; (b) Farm ponds; (c) Channels; (d) Subsurface drains; (e) Bridges; (f) Water control structures; (g) Aquaculture ponds and associated structures; (h) Roads and causeways; and (i) Existing best management practices. (2) Agricultural activities and operation and maintenance activities conducted in accordance with public drainage regulations contained in COMAR 15.20.01. (3) Agricultural activities on areas that have lain fallow for any reason. The exemption may not apply if agricultural activities have not taken place for 5 consecutive years. (4) Agricultural activities on areas set aside or taken out of production if the area is under and complies with a formal program for agriculture, as authorized by the Agricultural Stabilization and Conservation Service within the U.S. Department of Agriculture, or the Conservation Reserve Program, or other formal set-aside programs that may be established by the Maryland Department of Agriculture. The exemption does not apply if agricultural activities have not resumed within 5 years after expiration of the time limit specified in the set-aside program. (5) Structures for agricultural activities essential to the continued operation of a farm if the nontidal wetland being impacted is on land which is farmed, set aside, lying fallow, or part of a crop rotation. (6) Agricultural activities including plowing, seeding, cultivating, harvesting, tilling, grazing, farm pond construction, and draining on areas not otherwise fallow or part of a set-aside program, provided that the activities do not drain, dredge, fill, or otherwise convert a nontidal wetland on which agricultural activities are not presently conducted. The following apply: (a) Construction or operation of a pond in nontidal wetlands used exclusively for wildlife management is not considered an agricultural activity. (b) Agricultural activities in nontidal wetlands dominated by woody hydrophytes shall maintain a dominance of woody hydrophytes and not alter the surface or ground water hydrology or drain, dredge, fill, convert, or degrade the water quality of nontidal wetlands, to qualify for an exemption under this subsection. (7) Agricultural activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. A soil conservation district shall: (a) Determine whether an area is an isolated nontidal wetland based on published hydrologic and hydraulic data and data obtained in the field which shows whether the nontidal wetland is hydrologically connected. (b) Determine whether a nontidal wetland has significant plant or wildlife value. (c) Notify the Department when a determination is made under §B(7)(a) or (b) of this regulation. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district. (8) Agricultural activities whose cumulative impact for the entire and complete project is less than 5,000 square feet of nontidal wetland which contains no significant plant or wildlife value. A soil conservation district shall: (a) Determine whether a nontidal wetland has significant plant or wildlife value. (b) Notify the Department when a determination under §B(8)(a) of this regulation is made. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district. C. Aquaculture facilities associated with land uses other than agriculture shall be used exclusively for aquaculture in order to be considered an agricultural activity. D. Intent of Best Management Practices. Best management practices for agricultural activities in nontidal wetlands shall be designed to achieve the following goals: (1) Control soil loss and minimize sediment deposition in nontidal wetlands; (2) Minimize water quality degradation; (3) Minimize adverse impacts to the surface water and ground water circulation patterns; and (4) Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands. E. A soil conservation district shall consider all of the following criteria when approving the use of a best management practice for agricultural activities in nontidal wetlands: (1) Whether an alternate best management practice can accomplish the purpose with less adverse impact to a nontidal wetland. (2) The feasibility of future nontidal wetland restoration. (3) The cost and extent of mitigation. (4) Landowner objectives. (5) Whether activities change the level of surface water or ground water in a nontidal wetland. This includes whether changes to flow and circulation: (a) Are recommended in the soil conservation and water quality plan; and (b) Are reversible. (6) Whether the locations of aquaculture ponds, farm ponds, and any other structures for agriculture minimize adverse impacts to nontidal wetlands. The following locations minimize nontidal wetland adverse impacts in decreasing order of preference: (a) Uplands; (b) Isolated farmed nontidal wetlands; (c) Other farmed nontidal wetlands; (d) Emergent nontidal wetlands; (e) Scrub-shrub nontidal wetlands; and (f) Forested nontidal wetlands. F. Best Management Practices. (1) A person conducting agricultural activities in nontidal wetlands that are not otherwise exempt in §B of this regulation shall implement best management practices that meet the intent of §§D and E of this regulation as set forth in a soil conservation and water quality plan that is consistent with this regulation. (2) A person conducting an agricultural activity may use best management practices recommended in publications by the Maryland Department of Agriculture and the U.S. Department of Agriculture Soil Conservation Service. Individual practices may include: (a) Conservation cropping sequences; (b) Conservation tillage; (c) Filter strips; (d) Fertilizer management; or (e) Waste management. (3) When farm roads are constructed in nontidal wetlands, they shall be designed according to the following criteria: (a) Contain not more than the minimum length and width necessary to conduct agricultural activities; (b) Minimize encroachment in nontidal wetlands; (c) Maintain flow of water unless otherwise recommended in the soil conservation and water quality plan; and (d) Be stabilized. (4) Best management practices for changes in surface water patterns or ground water levels shall attempt to accommodate nontidal wetland restoration, creation, or enhancement if agricultural activities no longer occur on the site. (5) Best management practices that require planting of vegetation shall use native or adaptive vegetation. (6) Farm ponds or aquaculture facilities that are located in intermittent or perennial streams, or that divert water from intermittent or perennial streams, shall: (a) Not cause a violation of applicable State water quality standards as established by the Department; (b) Allow the continued migration and reproduction of fish and wildlife that do occur, and that traditionally have occurred, in the streams and nontidal wetlands; and (c) Minimize changes to upstream, downstream, and adjacent nontidal wetland hydrology and vegetation. (7) Aquaculture facilities shall be designed to minimize the escape of exotic or hybrid plant species into nontidal wetlands. (8) Temporary adverse impacts shall be rectified. G. Plan Processing and Approval. (1) A soil conservation district shall: (a) Delineate or review and approve the extent of nontidal wetlands impacted by the agricultural activity according to the Federal Manual; and (b) Assist in the preparation of and approve a soil conservation and water quality plan, including mitigation components, that complies with this regulation and COMAR 26.23.04.01 and .03—.07. (2) A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands. (3) A soil conservation district may not approve a plan if it fails to comply with criteria and best management practices as set forth in this regulation, and mitigation requirements contained in COMAR 26.23.04.01 and .03—.07. (4) A soil conservation district shall modify a plan when there is a change in the agricultural activity being conducted or a new best management practice is implemented that results in the loss of additional nontidal wetlands on areas not exempted under §B of this regulation. A modified plan that impacts additional nontidal wetlands shall require additional mitigation. H. Coordination with Other Programs. (1) To assist a person conducting agricultural activities in expediting the permit process for other State or federal programs, the Department may provide additional comments on voluntary protection standards for agricultural activities in nontidal wetlands. (2) A person conducting an agricultural activity in a nontidal wetland may request that the soil conservation district incorporate the voluntary protection standards into the soil conservation and water quality plan. (3) If additional standards are met, the person conducting an agricultural activity may request that the Department coordinate review of the agricultural activities in nontidal wetlands with other appropriate governmental agencies. I. Agricultural activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05. J. A soil conservation district and the Department of Agriculture shall cooperate with the Department to resolve a violation of these regulations caused by an agricultural activity. #### Regulation .02 Forestry Activities. *COMAR 26.23.05.02* A. A person conducting a forestry activity is exempt from the requirements under this subtitle to obtain a nontidal wetland permit and to provide mitigation. Unless exempted in §B of this regulation, a person conducting a forestry activity shall implement best management practices to protect nontidal wetlands through a sediment and erosion control plan submitted to and approved by a soil conservation district after December 31, 1990. B. Exemptions. The following forestry activities shall be exempt from the plan approval requirements of this regulation and Regulation .03 of this chapter: (1) Repair and maintenance of existing structures associated with forestry activities in nontidal wetlands, including drainage ditches, roads, skid trails, causeways, bridges, culverts, and firebreaks, provided the repair and maintenance activities do not drain, dredge, fill, or convert nontidal wetlands. (2) Forestry activities on areas that have lain fallow due to disease eradication or before site preparation. A person conducting forestry activities shall implement best management practices when the land is no longer fallow and the area is replanted or allowed to regenerate. (3) Forestry activities on areas that have lain fallow after harvesting before replanting or regeneration due to a civil action involving ownership of the property. A person conducting forestry activities shall implement best management practices to protect nontidal wetlands upon resolution of the civil action. (4) Forestry activities on nontidal wetlands that have been set aside or taken out of production under a formal State or federal program for forest land for the time period of the set aside if change does not occur in land use. A person conducting forestry activities shall implement best management practices upon expiration of the time period of the set aside and when a new sediment and erosion control plan is required. (5) Forestry activities that do not require a sediment and erosion control plan. (6) Forestry activities that are begun before January 1, 1991, in accordance with a sediment and erosion control plan approved before January 1, 1991. C. Intent of Best Management Practices. Best management practices for forestry activities in nontidal wetlands shall be designed to achieve the following goals: (1) Control soil loss and sediment deposition in nontidal wetlands; (2) Minimize water quality degradation caused by sediment; (3) Minimize adverse impacts to circulation patterns or flow of surface water or ground water; (4) Prevent a nontidal wetland from being changed to upland or any other area that no longer meets the nontidal wetland definition; and (5) Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands. D. A soil conservation district shall consider the following factors in approving the use of best management practices for forestry activities in nontidal wetlands: (1) Properties of specific soils to resist compaction or ruts and support equipment; (2) Ability to maintain surface and ground water levels in the nontidal wetland after the harvest; and (3) Maintenance of the ecological value of nontidal wetlands of special State concern. E. Best Management Practices. (1) A person conducting forestry activities in nontidal wetlands shall implement best management practices that meet the intent of §§C and D of this regulation as set forth in a sediment and erosion control plan prepared by a registered professional forester, and approved by a soil conservation district that is consistent with this regulation and Regulation .03 of this chapter. (2) For skid trails, log decks, and roads, a person conducting a forestry activity shall use site specific best management practices approved by a soil conservation district. These best management practices may include: (a) Locating major skid trails to the maximum extent feasible on soils that resist compaction, ruts, or other disturbances that adversely impact nontidal wetland hydrology. (b) Selecting appropriate equipment to skid logs shall be based upon: (i) Slope; and (ii) Ability of the soil to resist erosion or other disturbance. (c) Constructing forest roads: (i) On uplands where feasible, or on the highest available ground if uplands are unavailable, so as to minimize encroachment into nontidal wetlands. (ii) Using stabilization techniques to minimize erosion. (iii) Following natural contours of the land, wherever feasible. (iv) Maintaining the hydrology of the nontidal wetland by constructing diversion ditches at the minimum depth to maintain flow of water and using mats or similar temporary structures to reduce compaction or creation of ruts. (v) By not using fill materials for forest roads or using the minimum amount of fill material necessary to maintain a road. Fill shall be excavated from uplands when feasible, and shall be free from State or federally designated toxic pollutants. (d) Constructing stream crossings as to: (i) Cross in the shortest distance feasible. (ii) Be of appropriate design, considering the size of the stream and whether the crossing is temporary or permanent. Examples of these structures are mats, bridges, or culverts. (iii) Allow unrestricted movement of aquatic life in the stream. (e) Locating and maintaining log decks: (i) On uplands when they are on-site or available; (ii) As far from streams or nontidal wetlands as practicable or on the highest available ground if uplands are unavailable; (iii) At a minimum size and number necessary for the operation; (iv) With diversion ditches to direct water away from the deck during use; (v) By collecting and disposing of trash, debris, and chemicals outside the nontidal wetland. (f) Regrading and revegetating as necessary areas affected by skid trails, log decks, and temporary roads after harvesting is completed. (3) For harvest and regeneration practices, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district. These best management practices may include one or more of the following: (a) Using high flotation equipment when nontidal wetland soils are unable to support conventional equipment or harvesting on frozen or dry nontidal wetland soils when these soils are capable of supporting equipment to prevent compaction, ruts, or other significant disturbances to nontidal wetland soils or hydrology. (b) Conducting forestry activities so as to prevent impoundment of water or increased runoff in the nontidal wetland, unless the change is recommended in a sediment and erosion control plan. (c) Employing site preparation methods that do not result in the conversion of nontidal wetland to upland by grading, bedding, or other disturbances to the soil. (d) Complying with the seed tree law. (e) Employing natural regeneration as the preferred method of regeneration in nontidal wetlands, excluding nontidal wetlands with loblolly pine that are regulated under the seed tree law and nontidal wetlands described in §E(3)(f) of this regulation, if surface water is present for at least 1 month of the growing season and high ground water is present for most of the growing season. Presence of surface or high ground water can be determined by: (i) Visual observation; (ii) Soil samples; or (iii) Other hydrological indicators that are described in the Federal Manual. (f) Managing nontidal wetlands with at least 20 percent of the live trees being Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), American larch (Larix laricina), or bald cypress (Taxodium distichum) to maintain at least the same distribution after harvest. (4) For nontidal wetlands of special State concern, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district under all of the following criteria: (a) These best management practices shall maintain the ecological value of nontidal wetlands of special State concern by establishing a: (i) Primary protection area for the crucial portions of nontidal wetlands of special State concern within which a disturbance may not occur, and (ii) Secondary protection area, when appropriate, within the nontidal wetland of special State concern where group selection, single tree selection, natural regeneration, limited skidder access, disturbance restrictions during the breeding and nesting season, and other low-impact techniques shall be used; and (b) Practices to maintain the ecological value of nontidal wetlands of special State concern may not be such that harvesting is prohibited within the secondary protection area provided that best management practices are consistent with §E(4)(a)(ii) of this regulation and this section. F. Best management practices for loblolly pine nontidal wetlands that are regulated by the seed tree law shall be simplified and limited to practices listed under §E(1), (2), and (3)(a)—(d) of this regulation, as appropriate to a specific site. #### Regulation .03 Plan Review and Approval for Forestry Activities. *COMAR 26.23.05.03* A. A soil conservation district shall obtain and consider all of the following information to determine which best management practices are necessary and appropriate: (1) A delineation according to the Federal Manual of the extent of nontidal wetlands affected by forestry activities including acreage of nontidal wetland to be harvested. (2) The method and schedule for harvesting as prepared by a registered professional forester. (3) A description of equipment to be used to conduct forestry activities in nontidal wetlands. (4) The estimated location of: (a) Major skid trails; (b) Log decks; and (c) Roads. (5) The proposed location of diversion ditches. (6) A description of anticipated site preparation methods. Methods may include one or more of the following, as appropriate: (a) Bedding; (b) Stabilization; (c) Additional clearing or stump removal; (d) Chemical treatment. (7) Description of measures to rectify disturbances from temporary forest roads, log decks, skid trails, and other temporary structures as necessary. (8) The proposed planting or regeneration method. (9) Forestry activities and protection areas in nontidal wetlands of special State concern described in Regulation .02E(4) of this chapter. B. A person conducting forestry activities in loblolly pine nontidal wetlands regulated under the seed tree law may submit a reforestation plan, instead of the information requirements of §A of this regulation, to a soil conservation district to expedite a review of a sediment and erosion control plan if the reforestation plan: (1) Contains information required under §A of this regulation to approve best management practices appropriate to the site; and (2) Has been approved by the Department. C. Plan Processing and Approval. (1) A soil conservation district shall: (a) Delineate or review and approve the delineation of nontidal wetlands according to the Federal Manual; and (b) Review and approve the sediment and erosion control plan if it complies with this regulation and Regulation .02 of this chapter. (2) A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands of special State concern. (3) The Department shall delineate the primary and secondary protection areas for nontidal wetlands of special State concern in consultation with a soil conservation district. Comments from the landowner and the registered professional forester prescribing the harvest method and schedule shall be considered. (4) A person conducting forestry activities shall: (a) Submit copies of an approved sediment and erosion control plan to the Department; and (b) Notify the soil conservation district when site conditions require a change in best management practices. (5) A person conducting forestry activities in nontidal wetlands on State lands shall submit sediment and erosion control plans to the Department for approval. (6) The Department shall recommend additional voluntary protection standards for forestry activities in nontidal wetlands upon request from a person conducting forestry activities. (7) Forestry activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05. (8) A soil conservation district shall cooperate with the Department to resolve a violation of these regulations caused by a forestry activity. ### Chapter 06 — Nontidal Wetlands of Special State Concern **Authority:** Environment Article, §§5-901—5-911, Annotated Code of Maryland **Administrative History:** Effective date: March 15, 1990 (17:5 Md. R. 637) **Administrative History:** Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128) **Administrative History:** Chapter revised effective May 13, 1991 (18:9 Md. R. 1007) **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994 **Administrative History:** Regulations .01—.04, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01—.04, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813) **Administrative History:** Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874) **Administrative History:** Regulations .01 and .02 were recodified from Regulations .26 and .27, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996 **Administrative History:** Regulation .01 amended as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105) **Administrative History:** Regulation .02 amended as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105) **Administrative History:** Regulation .03 adopted as an emergency provision effective September 1, 2000 (27:19 Md. R. 1723); emergency status expired December 31, 2000; emergency status extended at 28:3 Md. R.; amended permanently effective February 5, 2001 (28:2 Md. R. 105) #### Regulation .01 Areas Designated as Nontidal Wetlands of Special State Concern. *COMAR 26.23.06.01* Maps of areas designated as nontidal wetlands of special State concern shall be maintained by the Department and available for public review. Areas designated as nontidal wetlands of special State concern are listed below: Site Name U.S.G.S Quad Name A. Allegany County. (1) Fifteenmile Creek Macrosite Artemas (2) Little Knob Seep Evitts Creek (3) Long Pond Artemas (4) Murley Branch Spring Flintstone (5) North Branch Bottomland Patterson Creek (6) Pinto Marsh Cresaptown (7) Potomac Bends Wildland Paw Paw (8) Selinger Marsh Flintstone (9) Sideling Hill Creek Macrosite Bellegrove (10) Spring Gap Bottomland Patterson Creek (11) West Fairplay Paw Paw B. Anne Arundel County. (1) Benfield Bottomland Odenton (2) Conrail/Patuxent River Laurel (3) Fort George G. Meade Laurel, Odenton (4) Freetown Swamp Curtis Bay (5) Gumbottom Wetland Round Bay (6) Jabez Branch Odenton (7) John Wesley Church Site Round Bay (8) Little Patuxent Oxbow Laurel (9) Mountain Road Peninsula Bog Complex Round Bay, Gibson Island (10) Patuxent Community Ponds Odenton (11) Patuxent Maple Swamp Bowie (12) Patuxent Wildlife Research Center Laurel (13) Round Bay Bog Round Bay (14) Stony Run Relay (15) Watershed Woods South River C. Baltimore County. (1) Beaverdam Run Cockeysville (2) Beetree Run New Freedom (3) Big Gunpowder Falls—Forge Road Site White Marsh (4) Club Hill Forest White Marsh (5) Glencoe/Gunpowder Falls Hereford (6) Gwynn Falls North Reisterstown (7) Gwynn Falls South Reisterstown (8) Loch Raven—Hampton Area Towson (9) Lower Chimney Branch Reisterstown (10) Monkton Bog Phoenix (11) Phoenix Marsh Phoenix (12) Pikall Riverbank Ellicott City (13) Putty Hill Wetlands Towson, White Marsh (14) Red Run Branch Reisterstown (15) Rockland Meadows Cockeysville (16) Soldiers Delight Reisterstown D. Calvert County. (1) Battle Creek Cypress Swamp Broomes Island, Prince Frederick (2) Calvert Cliffs State Park Cove Point (3) Patuxent Highlands Lower Marlboro (4) Port Republic Watershed Prince Frederick (5) West Governor Run Watershed Prince Frederick E. Caroline County. (1) Baltimore Corner Goldsboro (2) Bates Ditch Hickman (3) Bridgetown Ponds NRMA Goldsboro (4) Central Avenue Corner Denton (5) East Melville Pond Goldsboro (6) Floral Swale Goldsboro (7) Greer's Pond Goldsboro (8) Hourglass Pond Goldsboro (9) Jackson Lane Site Goldsboro (10) Marvel Pond Goldsboro (11) Marydel East Goldsboro (12) Mt. Zion Pothole Goldsboro (13) Mt. Zion South Pond Goldsboro (14) Oldtown Pond Goldsboro (15) Opossum Hill Powerline Hobbs (16) Pasture Pond Goldsboro (17) Persimmon East Goldsboro (18) Persimmon Preserve Site Goldsboro (19) Petroski Bog Goldsboro (20) R and M Bay Goldsboro (21) Red Bridges Road Crossing Denton (22) Schuyler Road Pond Goldsboro (23) Smithville Swamp Hickman (24) South Melville Crossroads Pothole Goldsboro (25) Tuckahoe Creek North Ridgely F. Carroll County. (1) Alesia Swamp Lineboro (2) Hoods Mill Woodbine G. Cecil County. (1) Bald Friar Ravine Conowingo Dam (2) Camp Rodney Swamp North East (3) Cecil Bog Conowingo Dam (4) Charlestown West Seeps Havre De Grace (5) Log Cabin Sedge Meadow Conowingo Dam (6) Octoraro Slopes Rising Sun (7) Plum Creek North East (8) Port Deposit Aberdeen (9) Roaring Woods Conowingo Dam (10) Stone Run Millpond Rising Sun (11) Whitaker Swamp North East, Havre De Grace, Bay View (12) Wildcat Ravine Conowingo Dam H. Charles County. (1) Brentland Woods Mathias Point (2) Bryantown Swamp Hughesville (3) Cat Pond La Plata (4) County Line Trail Seep Brandywine (5) Doncaster State Forest Nanjemoy (6) Maryland Point Swamp Nanjemoy (7) Pomonkey School Stream Port Tobacco (8) Popes Creek Popes Creek (9) Port Tobacco Run Port Tobacco (10) Thomas Stone National Historic Site Port Tobacco (11) Upper Nanjemoy Creek Nanjemoy (12) Zekiah Swamp Brandywine, Hughesville, La Plata, Popes Creek, Charlotte Hall I. Dorchester County. (1) Bar Neck Oxbow Church Creek (2) Big Millpond East New Market, Rhodesdale (3) Brookview Ponds Rhodesdale (4) Cabin Creek Seep East New Market, Preston (5) Chicone Creek Rhodesdale (6) Dorchester Pond East New Market, Rhodesdale (7) Gales Creek Sharptown (8) Marshyhope Seasonal Pond Federalsburg, Rhodesdale (9) Messick Pond East New Market (10) Ocean Gateway Pond Rhodesdale (11) Rhodesdale Powerline Rhodesdale (12) Rhodesdale Powerline SE Rhodesdale (13) Savanna Lake Chicamacomico, Mardela Springs (14) Upper Blackwater River Golden Hill J. Frederick County. (1) Bennett Tributary Swamp Buckeystown (2) Brunswick Riverside Harpers Ferry (3) Buzzard Branch Myersville (4) Buzzard Branch Bog Myersville (5) Buzzard Branch Bottom Myersville (6) Catoctin Creek Mouth Point of Rocks (7) Catoctin Station Point of Rocks (8) East Buzzard Branch Catoctin Furnace (9) Eyeler Valley Blue Ridge Summit (10) Fishing Creek Catoctin Furnace (11) Foxville Swamp Blue Ridge Summit (12) Hunting Creek Hollow Blue Ridge Summit (13) Le Gore Bridge Woodsboro (14) Little Catoctin Creek Glade Myersville (15) Little Fishing Creek Pond Catoctin Furnace (16) Lock 28 Floodplain Point of Rocks (17) Lock 29 Floodplain Point of Rocks (18) Owens Creek Swamp Blue Ridge Summit (19) Ridenour Swamp Smithsburg (20) South Salamander Rock Fire Ponds Catoctin Furnace (21) Spruce Run Myersville (22) Steep Creek Swamp Catoctin Furnace (23) Turkey Creek Blue Ridge Summit (24) Upper Hunting Creek Swamp Blue Ridge Summit (25) Wigville Swamp Myersville K. Garrett County. (1) Altamont Swamp Deer Park (2) Amish Road Swamp Grantsville (3) Anvil Bog McHenry (4) Bear Creek North McHenry (5) Bear Creek South McHenry (6) Big Laurel Run Swamp Grantsville (7) Boiling Springs Woods Deer Park (8) Brenneman Hill Swamp Bittinger (9) Buffalo Run Marsh Friendsville (10) Bull Glade Run Oakland (11) Callahan Swamp Frostburg, Avilton (12) Casselman River Macrosite Avilton (13) Chisolm Run Swamp Oakland (14) Cristley Run Woods Avilton (15) Crab Run Floodplain Grantsville (16) Cranesville Swamp Sang Run (17) Cross Camp Cove Deer Park (18) Cunningham Lake South Bittinger (19) Cunningham Swamp Bittinger (20) East Negro Mountain Bog McHenry (21) Finzel Swamp Frostburg (22) Hammel Glade Deer Park (23) Herrington Creek Headwaters Swamp Oakland (24) Herrington Lake South Tributary Oakland (25) Herrington Lake Wetlands North Oakland (26) Herrington Run Oakland (27) Hutton Switch Bog Oakland (28) Kearney Bog Gorman (29) Kempton Marsh Davis (30) Kempton Ponds Davis (31) Keystone Swamp Deer Park (32) Laurel Run Bog Davis (33) Laurel Springs Davis (34) McHenry Wetland South McHenry (35) Meadow Mountain Run Swamp McHenry (36) Mount Nebo Wetlands Oakland (37) Mudlick Run Avilton (38) Murley Run Oakland (39) Negro Mountain Bog McHenry (40) Negro Mountain Bog—Accident Accident (41) Negro Mountain Powerline Bog McHenry (42) North Cherry Creek Bog McHenry (43) North Chisolm Run Oakland (44) North Laurel Run Swamp Table Rock, Davis (45) Pheasant Ridge Kitzmiller (46) Pine Swamp East Barton (47) Piney Creek Swamp Avilton (48) Piney Run Bog Sang Run (49) Poplar Lick Swamp Avilton (50) Potato Farm Cove Deer Park (51) Pronghorn Swamp Oakland (52) Puzzley Run Grantsville (53) Red Oak Run Swamp Davis (54) Rock House Bog McHenry (55) Rock Lodge Macrosite McHenry (56) Short Run Vernal Ponds Kitzmiller (57) South Dunkard Lick Oakland (58) South Prong Deer Park (59) Swallow Falls Spring Oakland (60) The Glades McHenry (61) The Little Mountain North Woods Gorman (62) Toliver Run NHA Sang Run (63) Upper Salt Block Run Sang Run (64) Upper Youghiogheny Friendsville (65) Upperman Road Bog Deer Park (66) West Deer Park Meadow Deer Park (67) West Piney Run Sang Run (68) Whale Swamp Oakland (69) White Cemetery Bog Gorman (70) White Rock Glade Sang Run (71) Wilson Swamp Deer Park (72) Wolf Swamp Avilton (73) Youghiogheny River—Sang Run Sang Run L. Harford County. (1) Bynum Run Bel Air (2) Deer Creek Serpentine Barren Delta (3) Harford Glen Edgewood (4) Hess Pond Phoenix (5) Little Gunpowder Falls White Marsh M. Howard County. (1) Benson Branch Sykesville (2) Browns Bridge Crossing Clarksville (3) Henryton Woods Sykesville (4) Hipsleys Mill Woods Woodbine (5) Landing Road Seep Savage (6) Old Guilford Ponds Savage (7) Upper Hammond Branch Clarksville N. Kent County. (1) Big Marsh Betterton (2) Black Bottom Ponds Millington (3) Brown's Pond Millington (4) Cypress Branch Pond Millington (5) Golts Pond West Millington (6) Golts Ponds Millington (7) Golts Railway Pond Millington (8) Lover's Lane Chestertown (9) Massey Pond Millington (10) Millington WMA Ponds Millington (11) Morgan Creek Galena O. Montgomery County. (1) Canal Bottomland Seneca, Sterling (2) Germantown Bog Germantown (3) Great Falls Floodplain Rockville (4) Great Falls NHA Falls Church (5) Little Bennett Regional Park Urbana (6) Little Falls Washington West (7) McKee-Beshers West Swamp Sterling (8) Potomac River—Cropley Falls Church (9) Puller Marsh Kensington (10) Sycamore Landing Riverside Sterling (11) Unit 1 Spring Washington West (12) Violets Lock Floodplain Seneca P. Prince George's County. (1) Beck Woods Laurel (2) Belt Woods Lanham (3) Beltsville Airport Bog Laurel (4) Beltsville Bottomland Forest Laurel, Beltsville (5) Beltsville Forest and Meadow Laurel (6) Beltsville Seasonal Ponds Laurel (7) Buck Lodge Road Bog Beltsville (8) Chews Lake Bristol (9) Fort Ravine Mount Vernon (10) Johnson's Gully Mount Vernon (11) Huntington Park Woods Laurel (12) Patuxent Maple Swamp Bowie (13) Patuxent W.R.C. Laurel (14) Route I-95 Bog Beltsville (15) Southwest Branch Bottomland Forest Lanham, Upper Marlboro (16) Suitland Bog Anacostia (17) Watkins Regional Park Lanham (18) Zekiah Swamp Brandywine Q. Queen Anne's County. (1) Andover Flatwoods Sudlersville (2) Cleaves Fork Sudlersville (3) Kane Crossroads Pond Goldsboro (4) Long Marsh Ditch Goldsboro (5) Prices Chapel Ponds Sudlersville (6) Pristine Pines Sudlersville (7) Pristine Pines South Sudlersville (8) Starr Ponds Wye Mills (9) Teats Branch Pond Sudlersville (10) Templeville Ponds Sudlersville (11) Tuckahoe Creek North Ridgely (12) Unicorn Millpond Sudlersville R. Saint Mary's County. (1) Church Swamp Rock Point, Leonardtown (2) Mill Creek Pond Hollywood (3) Miski Run Woods Leonardtown (4) St. Mary's River Bottomland Hollywood (5) West California Swamp Hollywood S. Somerset County. (1) Dublin Swamp Princess Anne, Dividing Creek (2) Eden Swamp and Powerline Eden T. Talbot County. (1) Geib Fairview Ponds Fowling Creek (2) Mill Creek Wildlife Sanctuary Wye Mills (3) Seth Pond Trappe U. Washington County. (1) Beaver Creek Funkstown (2) Beaver Creek Headwaters Smithsburg (3) Boyd Mountain Pond Clear Spring (4) Ernstville Stream Cherry Run (5) Little Antietam Creek Smithsburg (6) Quirauk Mountain Stream Smithsburg (7) Sideling Hill Creek Macrosite Bellegrove V. Wicomico County. (1) Barren Creek Hebron, Mardela Springs (2) Campbell Powerline Pittsville (3) Horsebridge Creek Bog Wango (4) Johnson Pond Delmar (5) Lawes Ditch Wango (6) Litsea Pond Wetipquin (7) Middle Plum Creek Sharptown (8) Mockingbird Pond Hebron (9) Nassawango Creek Wango (10) Parker Pond Salisbury (11) Plum Creek Bog Sharptown (12) Schumaker Pond Salisbury (13) Sharptown Bog Hebron, Sharptown (14) Spearin Road Powerlines Site Salisbury (15) Widow Swamp Salisbury (16) Williams Pond Delmar W. Worcester County. (1) Burbage Crossing Swamp Ninepin Branch (2) Campground Branch Public Landing (3) Colbourne Powerline Wango (4) Delaware Wildlands Whaleysville (5) Dividing Creek Ponds Dividing Creek (6) Furnace Road Powerlines Dividing Creek (7) Hancock Creek Swamp Girdletree (8) Ironshire Swamp Berlin (9) Little Mill Run Girdletree (10) Longridge Powerlines Salisbury (11) Lower Sturges Creek Bog Wango (12) Mt. Olive Church Pond Wango (13) Nassawango Creek Snow Hill, Wango (14) Oak Hill Road Powerline Dividing Creek (15) Pawpaw Creek Public Landing (16) Pikes Creek Girdletree (17) Pocomoke Oxbow Ninepin Branch (18) Porter Neck Bog Berlin, Ninepin Branch (19) Powell Creek Girdletree (20) Riley Creek Swamp Girdletree (21) Scarboro Creek Woods Girdletree (22) Scotts Landing Pond Boxiron (23) Spearin Road Powerlines Site Salisbury (24) Stockton Powerlines Girdletree (25) Tanhouse Creek Public Landing (26) West Ocean City Pond Ocean City #### Regulation .02 Areas Designated as Nontidal Wetlands of Special State Concern Located in the Critical Area. *COMAR 26.23.06.02* A. Maps of areas designated as nontidal wetlands of special State concern in the Critical Area shall be maintained by the Department and available for public review. Areas designated as nontidal wetlands of special State concern in the Critical Area are listed in §§B—Q of this regulation. #### Regulation .03 Best Management Practices for Nontidal Wetlands of Special State Concern and Expanded Buffers. *COMAR 26.23.06.03* If a permit or other authorization is granted, the Department may require an applicant to comply with best management practices, including one or more of the following: A. Protect against future disturbances to the nontidal wetland of special State concern by showing its surveyed boundary, expanded buffer, waterways, and 100-year floodplains on the property deed, and recording the information with the county; B. Avoid impacts to regulated wetlands, buffers, expanded buffers, waterways, 100-year floodplains, and steep slopes or highly erodible soils as described in COMAR 26.23.01.04C that may cause an adverse impact to the nontidal wetland of special State concern; C. Restrict regulated activities to the minimum area necessary to meet the project purpose; D. Maintain existing groundwater recharge to the nontidal wetland of special State concern and tributaries to nontidal wetlands of special State concern by limiting impervious surfaces; E. Use nonstructural stormwater management practices consistent with those in COMAR 26.17.02, to the extent practicable, such as infiltration, retention of forest, wetlands, and associated buffers, undisturbed floodplains, open space, and steep slopes, in association with structural stormwater management on properties with nontidal wetlands of special State concern or tributaries to nontidal wetlands of special State concern; F. Manage runoff so that there is no direct discharge of stormwater into wetlands or waterways; G. Restrict impervious surface on the project site to 15 percent or less, where practicable; H. Install sediment controls such as super silt fences or comparable controls to completely surround all disturbed areas and maintain controls daily; I. Stabilize disturbed areas daily with noninvasive native species; J. Place vegetative waste, including yard waste, grass clippings, leaves, etc. or other debris outside of regulated wetlands, expanded buffers, waterways, and 100-year floodplains that are in the drainage area of the nontidal wetland of special State concern; or K. Use other management practices listed in COMAR 26.23.03.02.