Chapter 05. Agricultural and Forestry Activities
Regulation .01 Agricultural Activities.LinkCopy Citation
A.
A person conducting an agricultural activity is exempt from the requirement to obtain a nontidal wetlands permit under this subtitle. Unless exempted in §B of this regulation, a person conducting an agricultural activity which adversely impacts a nontidal wetland shall implement best management practices to protect nontidal wetlands and provide mitigation for any loss of nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, a soil conservation district after December 31, 1990.
B.
Exemptions. The following activities are exempt from the approval and mitigation requirements of this subtitle:
(1)
Repair and maintenance for agricultural activities in nontidal wetlands. These activities include repair and maintenance of:
(a)
Drainage ditches;
(b)
Farm ponds;
(c)
Channels;
(d)
Subsurface drains;
(e)
Bridges;
(f)
Water control structures;
(g)
Aquaculture ponds and associated structures;
(h)
Roads and causeways; and
(i)
Existing best management practices.
(2)
Agricultural activities and operation and maintenance activities conducted in accordance with public drainage regulations contained in COMAR 15.20.01.
(3)
Agricultural activities on areas that have lain fallow for any reason. The exemption may not apply if agricultural activities have not taken place for 5 consecutive years.
(4)
Agricultural activities on areas set aside or taken out of production if the area is under and complies with a formal program for agriculture, as authorized by the Agricultural Stabilization and Conservation Service within the U.S. Department of Agriculture, or the Conservation Reserve Program, or other formal set-aside programs that may be established by the Maryland Department of Agriculture. The exemption does not apply if agricultural activities have not resumed within 5 years after expiration of the time limit specified in the set-aside program.
(5)
Structures for agricultural activities essential to the continued operation of a farm if the nontidal wetland being impacted is on land which is farmed, set aside, lying fallow, or part of a crop rotation.
(6)
Agricultural activities including plowing, seeding, cultivating, harvesting, tilling, grazing, farm pond construction, and draining on areas not otherwise fallow or part of a set-aside program, provided that the activities do not drain, dredge, fill, or otherwise convert a nontidal wetland on which agricultural activities are not presently conducted. The following apply:
(a)
Construction or operation of a pond in nontidal wetlands used exclusively for wildlife management is not considered an agricultural activity.
(b)
Agricultural activities in nontidal wetlands dominated by woody hydrophytes shall maintain a dominance of woody hydrophytes and not alter the surface or ground water hydrology or drain, dredge, fill, convert, or degrade the water quality of nontidal wetlands, to qualify for an exemption under this subsection.
(7)
Agricultural activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. A soil conservation district shall:
(a)
Determine whether an area is an isolated nontidal wetland based on published hydrologic and hydraulic data and data obtained in the field which shows whether the nontidal wetland is hydrologically connected.
(b)
Determine whether a nontidal wetland has significant plant or wildlife value.
(c)
Notify the Department when a determination is made under §B(7)(a) or (b) of this regulation. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.
(8)
Agricultural activities whose cumulative impact for the entire and complete project is less than 5,000 square feet of nontidal wetland which contains no significant plant or wildlife value. A soil conservation district shall:
(a)
Determine whether a nontidal wetland has significant plant or wildlife value.
(b)
Notify the Department when a determination under §B(8)(a) of this regulation is made. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.
C.
Aquaculture facilities associated with land uses other than agriculture shall be used exclusively for aquaculture in order to be considered an agricultural activity.
D.
Intent of Best Management Practices. Best management practices for agricultural activities in nontidal wetlands shall be designed to achieve the following goals:
(1)
Control soil loss and minimize sediment deposition in nontidal wetlands;
(2)
Minimize water quality degradation;
(3)
Minimize adverse impacts to the surface water and ground water circulation patterns; and
(4)
Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands.
E.
A soil conservation district shall consider all of the following criteria when approving the use of a best management practice for agricultural activities in nontidal wetlands:
(1)
Whether an alternate best management practice can accomplish the purpose with less adverse impact to a nontidal wetland.
(2)
The feasibility of future nontidal wetland restoration.
(3)
The cost and extent of mitigation.
(4)
Landowner objectives.
(5)
Whether activities change the level of surface water or ground water in a nontidal wetland. This includes whether changes to flow and circulation:
(a)
Are recommended in the soil conservation and water quality plan; and
(b)
Are reversible.
(6)
Whether the locations of aquaculture ponds, farm ponds, and any other structures for agriculture minimize adverse impacts to nontidal wetlands. The following locations minimize nontidal wetland adverse impacts in decreasing order of preference:
(a)
Uplands;
(b)
Isolated farmed nontidal wetlands;
(c)
Other farmed nontidal wetlands;
(d)
Emergent nontidal wetlands;
(e)
Scrub-shrub nontidal wetlands; and
(f)
Forested nontidal wetlands.
F.
Best Management Practices.
(1)
A person conducting agricultural activities in nontidal wetlands that are not otherwise exempt in §B of this regulation shall implement best management practices that meet the intent of §§D and E of this regulation as set forth in a soil conservation and water quality plan that is consistent with this regulation.
(2)
A person conducting an agricultural activity may use best management practices recommended in publications by the Maryland Department of Agriculture and the U.S. Department of Agriculture Soil Conservation Service. Individual practices may include:
(a)
Conservation cropping sequences;
(b)
Conservation tillage;
(c)
Filter strips;
(d)
Fertilizer management; or
(e)
Waste management.
(3)
When farm roads are constructed in nontidal wetlands, they shall be designed according to the following criteria:
(a)
Contain not more than the minimum length and width necessary to conduct agricultural activities;
(b)
Minimize encroachment in nontidal wetlands;
(c)
Maintain flow of water unless otherwise recommended in the soil conservation and water quality plan; and
(d)
Be stabilized.
(4)
Best management practices for changes in surface water patterns or ground water levels shall attempt to accommodate nontidal wetland restoration, creation, or enhancement if agricultural activities no longer occur on the site.
(5)
Best management practices that require planting of vegetation shall use native or adaptive vegetation.
(6)
Farm ponds or aquaculture facilities that are located in intermittent or perennial streams, or that divert water from intermittent or perennial streams, shall:
(a)
Not cause a violation of applicable State water quality standards as established by the Department;
(b)
Allow the continued migration and reproduction of fish and wildlife that do occur, and that traditionally have occurred, in the streams and nontidal wetlands; and
(c)
Minimize changes to upstream, downstream, and adjacent nontidal wetland hydrology and vegetation.
(7)
Aquaculture facilities shall be designed to minimize the escape of exotic or hybrid plant species into nontidal wetlands.
(8)
Temporary adverse impacts shall be rectified.
G.
Plan Processing and Approval.
(1)
A soil conservation district shall:
(a)
Delineate or review and approve the extent of nontidal wetlands impacted by the agricultural activity according to the Federal Manual; and
(b)
Assist in the preparation of and approve a soil conservation and water quality plan, including mitigation components, that complies with this regulation and COMAR 26.23.04.01 and .03—.07.
(2)
A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands.
(3)
A soil conservation district may not approve a plan if it fails to comply with criteria and best management practices as set forth in this regulation, and mitigation requirements contained in COMAR 26.23.04.01 and .03—.07.
(4)
A soil conservation district shall modify a plan when there is a change in the agricultural activity being conducted or a new best management practice is implemented that results in the loss of additional nontidal wetlands on areas not exempted under §B of this regulation. A modified plan that impacts additional nontidal wetlands shall require additional mitigation.
H.
Coordination with Other Programs.
(1)
To assist a person conducting agricultural activities in expediting the permit process for other State or federal programs, the Department may provide additional comments on voluntary protection standards for agricultural activities in nontidal wetlands.
(2)
A person conducting an agricultural activity in a nontidal wetland may request that the soil conservation district incorporate the voluntary protection standards into the soil conservation and water quality plan.
(3)
If additional standards are met, the person conducting an agricultural activity may request that the Department coordinate review of the agricultural activities in nontidal wetlands with other appropriate governmental agencies.
I.
Agricultural activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05.
J.
A soil conservation district and the Department of Agriculture shall cooperate with the Department to resolve a violation of these regulations caused by an agricultural activity.
Regulation .02 Forestry Activities.LinkCopy Citation
A.
A person conducting a forestry activity is exempt from the requirements under this subtitle to obtain a nontidal wetland permit and to provide mitigation. Unless exempted in §B of this regulation, a person conducting a forestry activity shall implement best management practices to protect nontidal wetlands through a sediment and erosion control plan submitted to and approved by a soil conservation district after December 31, 1990.
B.
Exemptions. The following forestry activities shall be exempt from the plan approval requirements of this regulation and Regulation .03 of this chapter:
(1)
Repair and maintenance of existing structures associated with forestry activities in nontidal wetlands, including drainage ditches, roads, skid trails, causeways, bridges, culverts, and firebreaks, provided the repair and maintenance activities do not drain, dredge, fill, or convert nontidal wetlands.
(2)
Forestry activities on areas that have lain fallow due to disease eradication or before site preparation. A person conducting forestry activities shall implement best management practices when the land is no longer fallow and the area is replanted or allowed to regenerate.
(3)
Forestry activities on areas that have lain fallow after harvesting before replanting or regeneration due to a civil action involving ownership of the property. A person conducting forestry activities shall implement best management practices to protect nontidal wetlands upon resolution of the civil action.
(4)
Forestry activities on nontidal wetlands that have been set aside or taken out of production under a formal State or federal program for forest land for the time period of the set aside if change does not occur in land use. A person conducting forestry activities shall implement best management practices upon expiration of the time period of the set aside and when a new sediment and erosion control plan is required.
(5)
Forestry activities that do not require a sediment and erosion control plan.
(6)
Forestry activities that are begun before January 1, 1991, in accordance with a sediment and erosion control plan approved before January 1, 1991.
C.
Intent of Best Management Practices. Best management practices for forestry activities in nontidal wetlands shall be designed to achieve the following goals:
(1)
Control soil loss and sediment deposition in nontidal wetlands;
(2)
Minimize water quality degradation caused by sediment;
(3)
Minimize adverse impacts to circulation patterns or flow of surface water or ground water;
(4)
Prevent a nontidal wetland from being changed to upland or any other area that no longer meets the nontidal wetland definition; and
(5)
Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands.
D.
A soil conservation district shall consider the following factors in approving the use of best management practices for forestry activities in nontidal wetlands:
(1)
Properties of specific soils to resist compaction or ruts and support equipment;
(2)
Ability to maintain surface and ground water levels in the nontidal wetland after the harvest; and
(3)
Maintenance of the ecological value of nontidal wetlands of special State concern.
E.
Best Management Practices.
(1)
A person conducting forestry activities in nontidal wetlands shall implement best management practices that meet the intent of §§C and D of this regulation as set forth in a sediment and erosion control plan prepared by a registered professional forester, and approved by a soil conservation district that is consistent with this regulation and Regulation .03 of this chapter.
(2)
For skid trails, log decks, and roads, a person conducting a forestry activity shall use site specific best management practices approved by a soil conservation district. These best management practices may include:
(a)
Locating major skid trails to the maximum extent feasible on soils that resist compaction, ruts, or other disturbances that adversely impact nontidal wetland hydrology.
(b)
Selecting appropriate equipment to skid logs shall be based upon:
(i)
Slope; and
(ii)
Ability of the soil to resist erosion or other disturbance.
(c)
Constructing forest roads:
(i)
On uplands where feasible, or on the highest available ground if uplands are unavailable, so as to minimize encroachment into nontidal wetlands.
(ii)
Using stabilization techniques to minimize erosion.
(iii)
Following natural contours of the land, wherever feasible.
(iv)
Maintaining the hydrology of the nontidal wetland by constructing diversion ditches at the minimum depth to maintain flow of water and using mats or similar temporary structures to reduce compaction or creation of ruts.
(v)
By not using fill materials for forest roads or using the minimum amount of fill material necessary to maintain a road. Fill shall be excavated from uplands when feasible, and shall be free from State or federally designated toxic pollutants.
(d)
Constructing stream crossings as to:
(i)
Cross in the shortest distance feasible.
(ii)
Be of appropriate design, considering the size of the stream and whether the crossing is temporary or permanent. Examples of these structures are mats, bridges, or culverts.
(iii)
Allow unrestricted movement of aquatic life in the stream.
(e)
Locating and maintaining log decks:
(i)
On uplands when they are on-site or available;
(ii)
As far from streams or nontidal wetlands as practicable or on the highest available ground if uplands are unavailable;
(iii)
At a minimum size and number necessary for the operation;
(iv)
With diversion ditches to direct water away from the deck during use;
(v)
By collecting and disposing of trash, debris, and chemicals outside the nontidal wetland.
(f)
Regrading and revegetating as necessary areas affected by skid trails, log decks, and temporary roads after harvesting is completed.
(3)
For harvest and regeneration practices, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district. These best management practices may include one or more of the following:
(a)
Using high flotation equipment when nontidal wetland soils are unable to support conventional equipment or harvesting on frozen or dry nontidal wetland soils when these soils are capable of supporting equipment to prevent compaction, ruts, or other significant disturbances to nontidal wetland soils or hydrology.
(b)
Conducting forestry activities so as to prevent impoundment of water or increased runoff in the nontidal wetland, unless the change is recommended in a sediment and erosion control plan.
(c)
Employing site preparation methods that do not result in the conversion of nontidal wetland to upland by grading, bedding, or other disturbances to the soil.
(d)
Complying with the seed tree law.
(e)
Employing natural regeneration as the preferred method of regeneration in nontidal wetlands, excluding nontidal wetlands with loblolly pine that are regulated under the seed tree law and nontidal wetlands described in §E(3)(f) of this regulation, if surface water is present for at least 1 month of the growing season and high ground water is present for most of the growing season. Presence of surface or high ground water can be determined by:
(i)
Visual observation;
(ii)
Soil samples; or
(iii)
Other hydrological indicators that are described in the Federal Manual.
(f)
Managing nontidal wetlands with at least 20 percent of the live trees being Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), American larch (Larix laricina), or bald cypress (Taxodium distichum) to maintain at least the same distribution after harvest.
(4)
For nontidal wetlands of special State concern, a person conducting a forestry activity shall use site-specific best management practices approved by a soil conservation district under all of the following criteria:
(a)
These best management practices shall maintain the ecological value of nontidal wetlands of special State concern by establishing a:
(i)
Primary protection area for the crucial portions of nontidal wetlands of special State concern within which a disturbance may not occur, and
(ii)
Secondary protection area, when appropriate, within the nontidal wetland of special State concern where group selection, single tree selection, natural regeneration, limited skidder access, disturbance restrictions during the breeding and nesting season, and other low-impact techniques shall be used; and
(b)
Practices to maintain the ecological value of nontidal wetlands of special State concern may not be such that harvesting is prohibited within the secondary protection area provided that best management practices are consistent with §E(4)(a)(ii) of this regulation and this section.
F.
Best management practices for loblolly pine nontidal wetlands that are regulated by the seed tree law shall be simplified and limited to practices listed under §E(1), (2), and (3)(a)—(d) of this regulation, as appropriate to a specific site.
Regulation .03 Plan Review and Approval for Forestry Activities.LinkCopy Citation
A.
A soil conservation district shall obtain and consider all of the following information to determine which best management practices are necessary and appropriate:
(1)
A delineation according to the Federal Manual of the extent of nontidal wetlands affected by forestry activities including acreage of nontidal wetland to be harvested.
(2)
The method and schedule for harvesting as prepared by a registered professional forester.
(3)
A description of equipment to be used to conduct forestry activities in nontidal wetlands.
(4)
The estimated location of:
(a)
Major skid trails;
(b)
Log decks; and
(c)
Roads.
(5)
The proposed location of diversion ditches.
(6)
A description of anticipated site preparation methods. Methods may include one or more of the following, as appropriate:
(a)
Bedding;
(b)
Stabilization;
(c)
Additional clearing or stump removal;
(d)
Chemical treatment.
(7)
Description of measures to rectify disturbances from temporary forest roads, log decks, skid trails, and other temporary structures as necessary.
(8)
The proposed planting or regeneration method.
(9)
Forestry activities and protection areas in nontidal wetlands of special State concern described in Regulation .02E(4) of this chapter.
B.
A person conducting forestry activities in loblolly pine nontidal wetlands regulated under the seed tree law may submit a reforestation plan, instead of the information requirements of §A of this regulation, to a soil conservation district to expedite a review of a sediment and erosion control plan if the reforestation plan:
(1)
Contains information required under §A of this regulation to approve best management practices appropriate to the site; and
(2)
Has been approved by the Department.
C.
Plan Processing and Approval.
(1)
A soil conservation district shall:
(a)
Delineate or review and approve the delineation of nontidal wetlands according to the Federal Manual; and
(b)
Review and approve the sediment and erosion control plan if it complies with this regulation and Regulation .02 of this chapter.
(2)
A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands of special State concern.
(3)
The Department shall delineate the primary and secondary protection areas for nontidal wetlands of special State concern in consultation with a soil conservation district. Comments from the landowner and the registered professional forester prescribing the harvest method and schedule shall be considered.
(4)
A person conducting forestry activities shall:
(a)
Submit copies of an approved sediment and erosion control plan to the Department; and
(b)
Notify the soil conservation district when site conditions require a change in best management practices.
(5)
A person conducting forestry activities in nontidal wetlands on State lands shall submit sediment and erosion control plans to the Department for approval.
(6)
The Department shall recommend additional voluntary protection standards for forestry activities in nontidal wetlands upon request from a person conducting forestry activities.
(7)
Forestry activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05.
(8)
A soil conservation district shall cooperate with the Department to resolve a violation of these regulations caused by a forestry activity.
Chapter 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—.03 were recodified from Regulations .19—.21, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996