Chapter 01. General

“Act” means the Nontidal Wetlands Protection Act, Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland.

“Adaptive vegetation” means plant species which are not native but provide similar value to native species and grow successfully in Maryland.

“Administrative Procedure Act” means the provisions of State Government Article, §10-101 et seq., Annotated Code of Maryland.

“Adverse impact” means any diminishment of nontidal wetland acreage or function.

“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.

“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.

“Areas that have lain fallow” means areas used for agriculture or forestry activities that are not in production for agriculture or forest products.

“Aquaculture” means the commercial rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or shipment.

“Aquaculture facility” means a pond, impoundment, raceway, or tank, and their associated structures essential for the purpose of aquaculture.

“Avoid” means to refrain from conducting an activity that may adversely impact a nontidal wetland.

“Bank operator” means the person responsible for construction, maintenance, monitoring, and undertaking activities to establish a mitigation bank and to sell mitigation credits.

“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.

“Best management practices” means conservation practices or systems of practices and management measures that:

“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.

“Buffer” means a regulated area, 25 feet in width, surrounding a nontidal wetland, measured from the outer edge of the nontidal wetland.

“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.).

“COMAR” means the Code of Maryland Regulations.

“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.

“Conventional rotational cycle” means the growing of crops in a planned and used system that:

“Creation” means actions performed which establish nontidal wetlands on upland sites.

Critical Area.

“Critical habitat” means habitat necessary for the survival of threatened or endangered species, or species in need of conservation.

“Delmarva bay” means a nontidal wetland characterized by an elliptical or oval shape and centripetal drainage, usually bordered by a distinct rim, that is:

“Department” means the Department of the Environment.

“Destruction or removal of plant life that would alter the character of a nontidal wetland” means:

“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.

“Director” means the Director of the Water Management Administration in the Department.

“Discharge of fill material” means the addition from any source of fill material into nontidal wetlands, which includes the following activities:

“Disturbance of water level or water table” means the alteration of the existing elevation of ground water or surface water by:

“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.

“Emergent nontidal wetland” means that portion of a nontidal wetland dominated by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

“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.

“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.

“Exotic” means any species of plant or animal that is foreign to the State.

“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.

“Extenuating circumstances” means conditions requiring extension of a set time limit to process an application, render a decision, or conduct a public hearing.

“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.

“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.

“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.

“Fill” means any materials placed in an area which change the elevation of the preexisting surface or ground water level, or the soil surface.

“Forested nontidal wetland” means that portion of a nontidal wetland dominated by woody vegetation greater than 20 feet in height.

“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.

“Forest harvesting” means the felling, skidding, loading, and transporting of forest products.

“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.

“Functions” means roles nontidal wetlands serve through:

“General area” means the geographic or market vicinity that has desired characteristics for fulfilling the basic project purpose.

“Grazing” means feeding on grass or other herbaceous plants in a field.

“Hybrid” means the offspring of any species of plants or animals of genetically dissimilar parents or stock.

“Hydrologically connected” means a nontidal wetland that:

“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.

“In kind” means characteristics closely approximating those of a nontidal wetland before it was adversely impacted by a regulated or an agricultural activity.

“Initial planning phase” means the period of time in which the feasibility of a project is evaluated before committing resources necessary for its implementation.

“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.

“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.

“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.

“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.

“Log deck” means a place where logs or tree-length materials are assembled in or near the forest for loading and transporting.

“Loss of nontidal wetlands” means the alteration of:

Maintenance.

“Minimize” means to reduce adverse impacts to nontidal wetlands to the greatest practicable and reasonable degree.

“Mitigation” means creation, restoration, or enhancement of nontidal wetlands, that were or will be lost due to regulated or agricultural activities.

“Mitigation bank” means an area of land that is:

“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.

“Mitigation credit” or “credit” means an acreage value assigned to a mitigation bank.

“Native” means any plant or animal species indigenous to Maryland.

“Nontidal wetland”:

“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.

“Off-site” means not on the same parcel as a nontidal wetland which has been adversely impacted by a regulated activity.

“On-site” means the same parcel on which a nontidal wetland has been adversely impacted by a regulated activity.

“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.

“Peat mining” means the extraction of peat of a commercially valuable quality and quantity.

“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.

“Practicable” means available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes.

“Presently conducted” means existing or ongoing.

“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.

“Project purpose” means the principal reason for conducting all regulated activities and other activities on a project site.

“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.

“Regulated activity”:

“Remediation” means corrective actions necessary to ensure success of a mitigation site or a mitigation bank.

“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.

“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.

“Restoration” or “restore” means actions performed which establish nontidal wetlands on former nontidal wetland sites.

“Scrub-shrub wetland” means that portion of a nontidal wetland dominated by woody vegetation less than 20 feet in height as the uppermost strata.

“Seed tree law” means Natural Resources Article, §5-501 et seq., Annotated Code of Maryland.

“Serviceable” means presently usable or currently fulfilling its basic, original purpose.

“Significant plant or wildlife value” means a nontidal wetland:

“Site preparation” means a forest activity to remove unwanted vegetation and other material, and to cultivate or prepare the soil for reforestation.

“Skid trail” means a temporary, nonstructural pathway over forest soil to drag felled trees or logs to a log deck.

“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.

“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.

“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.

“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.

“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:

“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.

“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.

“Wildlife” means any species of a vertebrate or invertebrate animal, excluding domestic species.

The U.S. Army Corps of Engineers ultimately issues a permit or other document under §D(3) of this regulation;

The applicant does not alter the scope of the regulated activity originally applied for without authorization from the U.S. Army Corps of Engineers;

A person submits the following information to the Department, as may be applicable, and as may be requested by the Department:

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;

Construction placed on existing impervious surfaces or on structures within the buffer or expanded buffer;

Removal of 30 percent of the trees in the buffer, provided that:

Mowing or other forms of vegetation control on existing rights-of-way;

The control of State-designated noxious weeds;

Landscape management in the nontidal wetland, buffer, or expanded buffer;

Soil investigations;

Percolation tests for sewage disposal fields;

Survey markers or survey monuments;

Other similar activities with minimal adverse impacts as approved by the Department;

The maintenance of the following serviceable structures or fills:

Within the Critical Area, a cumulative removal of 10 percent of the trees within the buffer or expanded buffer, if:

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.

To request delegation, a county shall submit a written request to the Department which includes the following information:

The Department may provide technical assistance and a model county ordinance for use and consideration by a county.

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.

In reviewing the acceptability of the county's program, the Department may consider:

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.

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.

A county accepting delegation in accordance with this subtitle shall:

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.

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:

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.

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.

The following procedures apply for permit applications evaluated by a county for activities not qualifying under a State programmatic general permit:

Permit applications for activities qualifying under a State programmatic general permit shall be:

A county shall submit its recommended permit or letter of authorization decision to the Department.

The final permit or letter of authorization decision shall be made by the Department.

An applicant aggrieved by the Department's decision may appeal the decision under COMAR 26.23.02.03B.

Number of permits issued, modified, and denied;

Types of activities;

Locations of activities;

Number of violations identified and number and nature of enforcement actions taken;

Comments from the regulated community and members of the public, including copies of any written complaints on a county's administration of the program;

Acreage totals of nontidal wetland losses by type;

Mitigation actions, including acreage totals of mitigation projects by type of project;

Examples of minimization efforts;

Number of letters of authorization granted and nontidal wetlands lost as a result; and

A report on the county's nontidal wetland compensation fund in accordance with COMAR 26.23.04.07.

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.

The Department may require necessary or appropriate amendments to a county program before renewing a delegation.

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.

The presentation of arguments to the Secretary is not a contested case hearing.

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.

The Department shall notify the county in writing that delegation is withdrawn and the reason for withdrawal.

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.

The presentation of arguments to the Secretary is not a contested case hearing.

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.

Nontidal wetlands of special State concern; and

Nontidal wetlands with adjacent areas containing:

Outstanding National Resource Waters (ONRW).

The following criteria shall be used by the Department to designate nontidal wetlands of special State concern that:

Nontidal wetlands of special State concern are designated in COMAR 26.23.06.01.

The following criteria may be used by the Department in designating nontidal wetlands with steep slopes or highly erodible soils:

Specific nontidal wetland sites with steep slopes and highly erodible soils identified by the Department shall be designated by regulation.

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:

The complaint shall:

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:

Service.

The Department shall give notice and hold any hearing under this subtitle in conformance with the Administrative Procedure Act and COMAR 08.01.04.

Within 10 calendar days of receiving a complaint, order, or notice under this regulation, the violator may request a hearing in writing.

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.

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.