Chapter 02. Permit Application and Processing
Regulation .01 Application Requirements for Regulated Activities.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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 annotations
Authority: Environment Article, §§5-901—5-911, Annotated Code of Maryland
History: Effective date: March 15, 1990 (17:5 Md. R. 637)
History: Chapter revised as an emergency provision effective January 1, 1991 (18:2 Md. R. 128)
History: Chapter revised effective May 13, 1991 (18:9 Md. R. 1007)
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
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)
History: Regulations .01 and .15—.18 amended and Regulation .17-1 adopted effective November 7, 1994 (21:22 Md. R. 1874)
History: Regulations .01—.09 were recodified from Regulations .02—.07, .11, .12, and .25, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996
History: Regulation .01 amended effective June 18, 2018 (45:12 Md. R. 620)
History: Regulation .02G, J amended effective June 18, 2018 (45:12 Md. R. 620)
History: Regulation .05-1 adopted as an emergency provision effective October 22, 1996 (23:23 Md. R. 1552); emergency status expired April 22, 1997
History: Regulation .08 amended effective June 18, 2018 (45:12 Md. R. 620)
History: Regulation .09 amended effective June 18, 2018 (45:12 Md. R. 620)