Chapter 04. Mitigation
Regulation .01 Mitigation for Agricultural Activities.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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:
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.LinkCopy Citation
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.LinkCopy Citation
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.LinkCopy Citation
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).
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.LinkCopy Citation
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 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—.07 were recodified from Regulations .13—.18, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996