It is the goal of the State to preserve the tidal wetlands of the State, prevent their loss and despoliation, and strive for a net resource gain in tidal wetland acreage and function. An applicant for a license or permit required under this subtitle shall design a project to first avoid and then minimize the loss of tidal wetlands. If the Department determines that the loss of tidal wetlands is unavoidable and may be licensed or permitted by the Department or recommended for licensing to the Board of Public Works, the permit or license shall require mitigation in accordance with this subtitle. Tidal wetlands are found in the Chesapeake Bay, the tidal tributaries to the Chesapeake Bay, and the 3-mile area seaward of the low water mark of Maryland's Atlantic coast. These regulations combine in one subtitle the Department's processing of applications for licenses to conduct activities in or over State tidal wetlands and for permits to conduct activities on private tidal wetlands. However, it is not the intent of these regulations to change the legal distinctions between State tidal wetlands and private tidal wetlands. The State holds State tidal wetlands in a proprietary capacity, in trust for the benefit of the people of Maryland. The Department regulates the activities of private persons on private tidal wetlands. When the Department acts on the application for a permit to conduct activities on private tidal wetlands, it is regulating the exercise of preexisting property rights. In contrast, when the State acts on an application for a license to conduct activities in or over State tidal wetlands, it is deciding whether or not to grant to a person certain limited property rights that the person did not have previously, and, in making that decision, the State enjoys the same discretion that any owner has in deciding whether to grant to another an interest in the owner's property. This subtitle describes the Department's review of license applications for the dredging or filling of State tidal wetlands and the construction, reconstruction, or repair of structures on State tidal wetlands. Following the Department's review of an application, the Department shall make a decision or the Department shall submit a recommendation to the Board of Public Works. The Board of Public Works shall take final action on an application for a license in accordance with COMAR 23.02.04. This subtitle also describes the Department's review of permit applications for dredging, filling, removing, or otherwise altering or polluting private tidal wetlands. Following review of an application, the Department shall make a decision in accordance with these regulations. In this subtitle, the following terms have the meanings indicated. Terms Defined. “Administration” means the Water Management Administration, a unit of the Department of the Environment designated by the Secretary of the Environment to administer Environment Article, Title 16, Annotated Code of Maryland. “Administrative Procedure Act” means the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. “Aquaculture” has the meaning stated in Natural Resources Article, §4-11A-01, Annotated Code of Maryland. “Bathymetry” means the water depth relative to the elevation of mean low water. “Beach nourishment” means a structural shoreline stabilization measure that is: Made by placing or pumping appropriately-sized sand from elsewhere onto an eroding shore; and Designed to: Create a new beach; or Restore or widen an existing beach. “Best management practices” means conservation practices or systems of practices and management measures that: Control soil loss and reduce water quality degradation caused by runoff, nutrients, animal waste, toxicants, and sediment if best management practices do not dredge or fill tidal wetlands; and Minimize adverse impacts to the surface water, ground water flow, circulation patterns, and to the chemical, physical, and biological characteristics of tidal wetlands. “Board” means the Board of Public Works. “Boathouse” means a structure with a roof or cover, or similar device placed over open water to protect a boat or other vessel. “Breakwater” means a structural shoreline stabilization measure comprised of a segmented or non-segmented stone structure that is: Typically placed offshore parallel to the shoreline; and Designed to dissipate wave energy and reduce erosion. “Buffer management plan” has the meaning stated in COMAR 27.01.09.01. “Bulkhead” means a structural shoreline stabilization measure comprised of a vertical retaining wall composed of wood, stone, concrete, plastic, steel, or other similar material that is: Placed parallel to the shoreline; and Designed to control erosion. “Containment structure” means a facility designed for the sole purpose of accepting and confining dredged material from tidal waters while allowing the release of effluent, and excludes those structures designed to contain, impound, or obstruct the waters of the State as defined by Environment Article, §5-501, Annotated Code of Maryland. “Coastal Bays” means the estuaries situated between Maryland's Atlantic Ocean barrier islands and the opposing shoreline of the mainland which include Chincoteague Bay, Sinepuxent Bay, Isle of Wight, Newport Bay, Assawoman Bay, and the St. Martin River. “Critical Area” has the meaning stated in COMAR 27.01.01.01B. Critical Area Buffer. “Critical Area buffer” means an area in the Critical Area that: Based on conditions present at the time of development, is immediately landward from mean high water of tidal waters, the edge of each bank of a tributary stream, or the landward boundary of a tidal wetland; and Exists or may be established in natural vegetation to protect a stream, tidal wetland, tidal waters, or terrestrial environment from human disturbance. “Critical Area buffer” includes an area of: At least 100 feet, even if that area was previously disturbed by human activity; and Expansion for contiguous areas, including a steep slope, hydric soil, highly erodible soil, nontidal wetland, or a Nontidal Wetland of Special State Concern as defined in COMAR 26.23.01.01. “Critical Area Commission” means the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, as established under the Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland. “Department” means the Department of the Environment. “Direct discharge” means the concentrated release of storm water to tidal waters or vegetated tidal wetlands from new development or redevelopment projects in the Critical Area. “Director” means the Director of the Water Management Administration. “Dredging” means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands. “Emergency condition” means a sudden, unforeseen occurrence caused by act of God, natural disaster, or other similar natural event or catastrophe when the health, safety, or welfare of the citizens of the State would be jeopardized by a delay in issuance of a license or permit. “Endangered species” has the meaning stated in COMAR 08.03.08.01. “Fetch” means the linear distance of open water over which wind-generated waves of a certain direction, speed, and duration travel unobstructed before reaching a shoreline. Filling. “Filling” means the: Displacement of navigable water by the depositing of soil, sand, gravel, shells, or other materials, including pilings, piers, boathouses, deadweights, or riprap into State or private tidal wetlands; Artificial alteration of tidal water levels by any physical structure, drainage ditch, or otherwise; or Discharge of water from storm drainage projects directly into tidal waters of the State. “Filling” does not include: Drainage of agricultural land; In-place replacement or repair of functional shore erosion control structures using substantially similar materials and construction design; Planting of wetlands vegetation when no grading or fill in State or private wetlands is necessary; or Marking channels and harbors and establishing aids to navigation if approval has been granted by the United States Coast Guard. “Fish” has the meaning stated in Natural Resources Article, §4-101, Annotated Code of Maryland. “Functional” means performing at least 85 percent of the action that a structure was originally designed to perform. “General wetlands license” means written authorization from the Department based on a standing authorization by the Board for recurrent or minimally disruptive activities conducted in State tidal wetlands. “General wetlands permit” means written authorization from the Department for activities conducted in private tidal wetlands that cause only minimal individual and cumulative adverse impacts. “Groin” means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is: Typically placed perpendicular to the shoreline; and Designed to trap sand and reduce erosion. “Historic property” means a district, site, building, structure, monument, or object significant in the prehistory, history, upland and underwater archeology, architecture, engineering, and culture of the State, including artifacts, records, and remains related to a district, site, building, structure, or object. “In kind” means having characteristics closely approximating original characteristics, including those of a vegetated tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of similar materials and dimensions. “In the dry” means activities performed above or landward of the mean high water line and all tidal wetland vegetation. “Jetty” means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is: Placed at inlets; and Designed to: Stabilize the position of a channel; Shield vessels from wave forces; and Control the movement of sand along adjacent beaches by minimizing the movement of sand into a channel. “Landward boundary of tidal wetlands” means the common boundary between upland or nontidal wetlands, and State or private wetlands, as defined in this subtitle. “License” means written authorization by the Board or by the Department under delegation from the Board to dredge, fill, construct structures, or conduct other activities involving State tidal wetlands which conveys a limited property interest. “Maintenance dredging” means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands, that restores a navigation channel, marina, or mooring basin to depths confirmed after 1972. “Marina” means a facility for the mooring, docking, or storing of more than ten vessels on tidal navigable waters, including a commercial, noncommercial, or community facility. “Mean higher high water” means the average of the higher high water height of each tidal day observed over the national tidal datum epoch, including a spring tide. “Mean high water” means the average of all the high water levels observed over the national tidal datum epoch. “Mean high water line” means the line where the land meets the water surface at the elevation of mean high water. “Mean low water” means the average of all the low water levels observed over the national tidal datum epoch. “Mitigation” means the creation, restoration, or enhancement of tidal wetlands lost or damaged due to dredging or filling. “National tidal datum epoch” means the specific 19-year period adopted by the National Ocean Service as the official time segment over which tidal observations are taken and reduced to obtain mean values for tidal datums. Nonstructural Shoreline Stabilization Measure. “Nonstructural shoreline stabilization measure” means an erosion control measure that is dominated by tidal wetland vegetation and is designed to preserve the natural shoreline, minimize erosion, and establish aquatic habitat. “Nonstructural shoreline stabilization measure” includes a living shoreline. “Nontidal wetland” has the meaning stated in COMAR 26.23.01.01. “Non-water-dependent structure or activity” means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation does not require location in or over State or private tidal wetlands. “Out of kind” means having characteristics not closely approximating those of a tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of dissimilar materials or dimensions. “Permit” means written authorization by the Department to dredge, fill, construct structures, or to conduct certain other activities involving private tidal wetlands. “Person” means any natural person, partnership, joint stock company, unincorporated association or society, the federal government, the State, any unit of the State, a political subdivision, or other corporation of any type. Pier. “Pier” means any fixed or floating pier, wharf, dock, walkway, or other similar water-dependent structure constructed on or over State or private tidal wetlands for the purpose of gaining access to the navigable waters of the State. “Pier” does not include a structure on pilings or stilts that was constructed before December 2, 1985, landward of the tidal wetland boundaries. “Private tidal wetlands” means: Land not considered State wetland bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth; Tidal wetlands transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights, to the extent of the interest transferred; and Tidal waters created by the excavation of upland unless conveyed to the State. “Public informational hearing” means a meeting, open to the public, at which the applicant or the Department presents information concerning a permit or license and the Department receives oral and written comments concerning a decision to issue or deny a permit or a license. A public informational hearing is not a contested case hearing under State Government Article, §10-202(d), Annotated Code of Maryland. “Regular or periodic tidal action” means the rise and fall of the sea produced by the attraction of the sun and the moon uninfluenced by wind or any other circumstances. Repair. “Repair” means an activity that restores the scope, size, and design of a functional structure to its previously authorized, undamaged condition. “Repair” does not include activities that change the size or scope of a project beyond the original design and dredge or fill tidal wetlands that were not previously impacted by the project. “Restoration” means reestablishment of tidal wetlands on former tidal wetland sites. “Revetment” means a structural shoreline stabilization measure comprised of stone, broken concrete, or other similar material that is: Typically placed parallel to the shoreline; and Designed to: Prevent erosion; Fortify a bulkhead; or Stabilize an embankment. “Riparian landowner” means a property owner whose land borders on tidal wetlands or waters of the State. “Riparian rights” means the rights of an owner of land bordering on tidal wetlands or waters of the State as recognized by Environment Article, Title 16, Annotated Code of Maryland. “Shallow water habitat” means aquatic habitat less than 3 feet in depth at mean low water. “Species in need of conservation” has the meaning stated in COMAR 08.03.08.01. “State tidal wetlands” means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide. Tidal wetlands of this category which have been transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights are considered private tidal wetlands to the extent of the interest transferred. Structural shoreline stabilization measure. "Structural shoreline stabilization measure” means an erosion control measure that uses devices to armor and stabilize an area landward of the measure from further erosion. "Structural shoreline stabilization measure” includes the use of a bulkhead, gabion, revetment, groin, breakwater, jetty, sand, beach nourishment, and any other similar structure, or any other device for erosion control or vessel protection. Structure. “Structure” means building or construction materials, or a combination of those materials, that are purposely assembled or joined together on or over land or water. “Structure” includes a temporary or permanent fixed or floating pier, piling, deck, walkway, dwelling, building, boathouse, platform, gazebo, or shelter for the purpose of marine access, navigation, working, eating, sleeping, or recreating. Submerged Aquatic Vegetation. “Submerged aquatic vegetation (SAV)” means a vascular hydrophyte, which is rooted or unrooted, that lies entirely beneath the surface of the water except for the flowering parts of some species. Examples include Zannichellia palustris, Ruppia sp., and Potamogeton sp. “Submerged aquatic vegetation” does not include algae. “Threatened species” has the meaning stated in COMAR 08.03.08.01. “Tidal wetlands” means all State and private tidal wetlands, marshes, submerged aquatic vegetation, lands, and open water within the Chesapeake Bay and its tidal tributaries, the Coastal Bays and their tidal tributaries, and the Atlantic Ocean to a distance of 3 miles offshore of the low water mark. “Tidal wetland boundary map” means a map or aerial photograph on a scale of 1 inch to 200 feet that delineates the landward boundary of tidal wetlands and is adopted by the Department. “Unified soil classification system” means a classification system used to classify sedimentary materials by grain size into gravel, silt, and clays. It is the principal classification system used by engineers, and its boundaries correspond to U. S. standard sieve sizes. “Upland” means any area that does not qualify as a tidal or nontidal wetland. “Utility line” means an underground or overhead transmission line, conduit pipe, cable, or wire for the conveyance of public or private water, sewage, natural gas, or petroleum, or the transmission of electricity or telecommunications. “Waiver” means a decision by the Department that a person is not required to construct a nonstructural shoreline stabilization measure. “Water dependent” means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation, requires location in or over State or private wetlands. “Water Quality Certification” means the certification required under COMAR 26.08.02.10. “Wetlands License” means written authorization by the Board to dredge, fill, construct a structure, or conduct any other activity involving State tidal wetlands that does not qualify for approval under a general wetlands license. “Wetlands Permit” means written authorization by the Department to dredge, fill, remove, alter, pollute, or conduct any other activity involving private tidal wetlands that does not qualify for approval under a general wetlands permit. In accordance with COMAR 23.02.04.04A, the Board has delegated to the Department the authority to reject, authorize, modify, condition, or deny applications for construction or replacement of pilings, fixed or floating piers, decks, walkways, boathouses, and related structures on piers. Exemptions from Public Notice for a State Wetlands License. If the Department recommends to the Board that a State wetlands license be granted, the Board may issue a license without public notice for: Projects which qualify under the general license in COMAR 26.24.02.04; Construction of a shore erosion control structure other than a revetment, if the fill area is less than 300 feet in length parallel to the upland and as close to the upland as structurally feasible, but not more than 10 feet channelward of the mean high water line; Repair or replacement of a bulkhead for the purpose of shore erosion control when the bulkhead is presently functional, but is deteriorating or damaged, only if the repair or replacement structure does not extend more than 18 inches channelward of the existing structure measured from the channelward face of the existing piling to the landward face of the proposed sheeting, although replacement may include stone or broken concrete placed along the base of the bulkhead, only if the stone or broken concrete does not extend more than 10 feet channelward of the bulkhead; and Construction or repair of a private, noncommercial boat ramp only if the ramp does not exceed 12 feet in width and extend more than 30 feet channelward of the mean high water line. Exemptions from Public Notice for Private Wetlands Permits. The Department may: Issue a private wetlands permit without a public notice for the following categories of projects: Projects which qualify under the general permit in COMAR 26.24.02.05, Construction of tide gates designed to prevent the encroachment of salt water into agricultural drainage ditches, and Installation of underground utilities, if the surface of the wetlands is restored substantially to its original condition; Authorize work in private wetlands without public notice when an emergency exists. An applicant shall notify adjoining riparian property owners in writing at the time of application if the proposed project requires public notice. The notification shall include: A copy of the application and plans for the proposed project; and A statement advising the property owner to direct any comments or concerns directly to the Department within 2 weeks of receipt. The Department shall issue a public notice of an opportunity to submit written comments, or to request a public informational hearing about the application for a State wetlands license or private wetlands permit. Public notice is not required for activities exempted under §§A and B of this regulation. The notice in §D of this regulation shall: Contain: The name of the applicant; A general description of the nature and location of the proposed activity including the street address of the proposed activity; Instructions for submission of written comments or a request for a public informational hearing; The expiration date for the opportunity to comment or to request a public informational hearing; and The address and telephone number of an individual in the Department from whom information about the application may be obtained; Be given by: Publication 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; Publication in the Maryland Register; Joint notice with other units or programs reviewing applications for other approvals within the Department; and Selected mailing to federal, State, county, or municipal authorities, and other list of interested persons, including anyone who has: Submitted written comments on the specific project in question, Requested to be kept informed about the specific project, or Requested receipt of public notices for tidal wetlands licenses and permits. An interested person may request the Department or the Board to hold a public informational hearing on a project requiring public notice. A request shall be in writing to the Department. If a hearing is requested, the Department shall set the date, time, and place for the hearing. Notice of the hearing shall be given by: Publication in a daily newspaper distributed in one or more counties which the Department determines may be directly affected by the project, or if there is no local daily newspaper, in a newspaper of general circulation in that county; Publication in the Maryland Register; and Selected mailing to federal, State, county, or municipal authorities, and other list of interested persons. The hearing shall take place not less than 14 calendar days after publication of the public notice of the public informational hearing. The hearing shall be conducted by a representative of the Board or the Department's designee. The individual authorized to conduct the public hearing shall be designated as the hearing officer. The applicant and interested persons shall be given an opportunity at the informational hearing to present facts and make statements for or against granting the license or permit. Questions may be asked of, and directed to, the hearing officer, but cross-examination may not be conducted. The hearing is not a contested case hearing under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. The order of the presentation is determined by the hearing officer and may be conducted as follows: Introduction of the activity and participants by the hearing officer; Statement of legal authorities, public policy, and procedures by the hearing officer; Presentation of the proposed project by the applicant; Questions about the activity; Statements by public officials; Statements in opposition; Statements in support; and Closing of the hearing by the hearing officer. The hearing officer has the authority and duty to: Conduct a full and fair public informational hearing; Act to avoid unnecessary delay and to maintain order; Regulate the course of the public hearing and the conduct of the participants; Extend the time period for providing supplemental written comments or information for inclusion in the hearing record; and Rule upon a request for a continuance of the hearing. At the close of the public comment period, the hearing officer shall prepare an official record of the public informational hearing or comments. A tape recording or notes of the public informational hearing, if any, may be transcribed if the Department, the applicant, or a participant in the public hearing requests a transcript within 5 working days of the public informational hearing. Costs shall be paid by the requester. After a public hearing, the Wetlands Administrator for the Board shall present the proposed project at a public meeting of the Board. The Board shall make a final decision under COMAR 23.02.04. Determination of Violation. The Department shall serve a written complaint on a violator if it determines that there has been a violation of: Any provision of Environment Article, §§16-101—16-503, Annotated Code of Maryland; A regulation in this subtitle; A license or permit condition; or An administrative order. Complaints. A complaint shall comply with the notice requirements under COMAR 08.01.04.05. Orders. At any time, including during an enforcement action, the Department may issue an administrative order requiring the violator to take corrective action within a certain time period. The order may require the violator to: Cease the violation; Stabilize the site; Stop all construction work at the site of a regulated activity; Restore unlawfully affected State or private wetlands; or Submit a written report or plan concerning the violation. Suspension or Revocation. Grounds for License or Permit Suspension or Revocation. The Department or the Board may suspend or revoke a permit or license if the Department determines that any of the following have occurred: A violation of the provisions of Environment Article, §§16-101—16-503, Annotated Code of Maryland, this subtitle, or COMAR 23.02.04; Failure of a licensee or permittee to comply with the requirements of an administrative action or order under this subtitle; Requirements and conditions of the license or permit have been violated; Misrepresentation in the license or permit application process or failure to disclose a relevant or material fact has occurred; There has been a substantial deviation from the plans, specifications, or requirements of the license or permit; The licensee or permittee has prevented a representative of the Department from entering the site to make reasonable inspections; The licensee or permittee's rights under the license or permit have not been vested and new information, changes in site conditions, or amended regulatory requirements necessitate revocation; or The licensee or permittee has failed to post or maintain financial assurances required under COMAR 26.24.05.02. Notice. Except for emergency actions under §H of this regulation, a tidal wetlands license or permit may not be suspended, modified, or revoked unless the Department or the Board first gives the permittee or licensee written notice by certified mail of the specific facts that warrant suspension or revocation. Hearings. Upon receipt of written notice to suspend, modify, or revoke a permit, the permittee or surety has 10 calendar days to request a contested case hearing. A hearing under this subsection shall be conducted in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. An appeal from a license suspension or revocation shall be in accordance with COMAR 23.02.04. If the Department does not receive a request for a hearing, the permit shall be suspended, modified, or revoked, and the right to appeal shall be waived. Bond Forfeiture. If the Department finally determines that a permit shall be revoked, the Department may immediately forfeit the bond and notify the permittee and surety in writing. An appeal of the final decision to forfeit a bond shall be to the circuit court. Service. A complaint, order, or other administrative notice issued by the Department may be served on a violator personally or by certified mail to the violator's last known address. An order issued under this regulation is effective immediately. Hearings. The Department shall hold a hearing under this regulation in conformance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04. Within 10 calendar days of service of a written complaint under this regulation, a violator may request a hearing in writing. Emergency Action. License Recommendations. The Department may recommend that the Board take action to immediately suspend a license if the Department: Finds that the public health, safety, or welfare imperatively requires immediate suspension; and Promptly gives the licensee written notice of the recommendation which shall include: Specific facts upon which the immediate suspension is based, and The licensee's opportunity to appeal in accordance with COMAR 23.02.04. Permit Actions. The Department may order an immediate suspension of a permit if the Department: Finds that the public health, safety, or welfare imperatively requires the immediate suspension; and Promptly gives the permittee written notice of the suspension. A notice of immediate suspension shall include a statement of: Specific facts on which the immediate suspension is based; and The permittee's opportunity to be heard in accordance with §D of this regulation. If the Department determines, from the information submitted with an application for a private wetlands permit, that a waiver of a regulation of this subtitle is in the public interest, the Department may grant relief from the requirement upon request. If a waiver results in the loss of tidal wetlands, the applicant is required to mitigate for that loss in accordance with COMAR 26.24.05.01. Environment Article, Title 16, Annotated Code of Maryland Effective date: February 14, 1994 (21:3 Md. R. 184) (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07) Regulations .01—.07 were recodified from Regulations .01, .02, .13, .24, .25, .27, and .28, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996 Regulation .02B amended as an emergency provision effective March 9, 2007 (34:7 Md. R. 695); emergency expired September 5, 2007 Regulation .02B amended effective February 4, 2013 (40:2 Md. R. 73)