License or Permit Required. Except as set forth in §C of this regulation, before beginning any work, a person who proposes to construct or reconstruct structures, or to dredge or fill a State or private tidal wetland, shall obtain a: License from the Board; or License, general license, general permit, or permit from the Department. Uses and Activities Prohibited on State or Private Tidal Wetlands Without a License or Permit. Except when authorized, a person may not: Fill, place, dump, or discharge on tidal wetlands any: Loam, peat, sand, gravel, soil, or other similar substance, or Trash, garbage, debris, junk, or other polluting substance; Drain, excavate, or dredge the tidal wetlands encompassed by this subtitle, or remove from the tidal wetlands loam, peat, sand, gravel, soil, or other similar substance; Construct any structure in, on, over, or under tidal wetlands; or Perform an act or use involving tidal wetlands in a manner which would destroy the natural vegetation or existing patterns of tidal flow, or alter the natural and beneficial character of the tidal wetland. Exemptions from a State Tidal Wetlands License and a Private Tidal Wetlands Permit. The following activities are exempted from the requirement to obtain a license from the Board or a license, general license, general permit, or permit from the Department under this subtitle: Dredging of seafood products by any licensed operator including normal leased bottom activities permitted under Natural Resources Article, Title 4, Subtitle 11, Annotated Code of Maryland, and COMAR 08.02.08.12, or the harvesting of submerged aquatic vegetation provided the root system is not affected; Trapping, hunting, fishing, and catching shellfish, if legally permitted; Mosquito control and abatement projects as approved by the Department of Agriculture; Improvement of agricultural drainage ditches as approved by the Department of Agriculture; Routine maintenance, repair, or replacement of a highway structure, pier, boathouse, a structure on a pier, bulkhead, revetment, tidal impoundment dike, water control structure, aboveground transmission facility, agricultural drainage ditch, or highway drainage ditch when the existing structure is functional and there is no increase in the original length, width, height, or channelward encroachment; Channel and harbor navigation aids, if approval has been granted by the United States Coast Guard; Private piers that meet the criteria in COMAR 26.24.04.02; Control of exotic plant species such as Phragmites australis, if a toxic materials permit under COMAR 26.08.03.02 is obtained; Temporary installation of bass spawning boxes from March 1 through June 15 annually outside of marked navigation channels. Who May Apply. An applicant for a license or permit is a person: With a riparian interest in private tidal wetlands or upland adjacent to State tidal wetlands, or an agent designated by the person with riparian interest; or Seeking approval for navigation, mining, aquaculture, archeology, or similar projects in tidal wetlands. Application Form. The application form shall be a joint federal and State application for the regulation of activities in tidal wetlands in Maryland. An applicant for a tidal wetlands license or permit shall submit all of the information required by the Department in a manner and form acceptable to the Department before final action on the application is taken. For additional information requirements for specific project types, see COMAR 26.24.03 and 26.24.04. The application form is available at the following government agencies: Department of the Environment; U. S. Army Corps of Engineers, Baltimore District; An agency designated by each county or municipality; or Department of the Environment, Water Management Administration. The person who signs an application form shall be: An individual or an individual's authorized agent; An officer or authorized agent of a corporation; An authorized official of a State or local government; or An authorized member of an association or partnership. The person who signs an application is responsible for the truth, accuracy, and completeness of all information in the application. The Department shall acknowledge receipt of an application in writing by regular mail, and shall advise the applicant of the public notice requirements under COMAR 26.24.01.04. The Department shall review an application to determine whether it is complete for processing. An application is complete if it contains all the information required in this subtitle. The Department shall notify an applicant within 45 days by telephone or in writing of the additional information required in an incomplete application. If the Department fails to notify an applicant within 45 days, an application is considered complete. The Department may require additional information from an applicant as a result of the administrative review process. For purposes of an application, mean high water and mean low water are: Referenced in feet to a benchmark elevation based upon: The National Geodetic Vertical Datum of 1929 (NGVD) which is incorporated by reference under 41 FR 20202 (1976); The North American Vertical Datum of 1988 (NAVD) which is incorporated by reference under 48 FR 50784 (1983); or A benchmark established and documented by an applicant and approved by the Department; Determined using one of the following methods: Control tide station data as published by the U. S. Department of Commerce, National Oceanic and Atmospheric Administration; Derivation of the equivalent high water datum using a comparison of observational records with control tide station data as published by the U. S. Department of Commerce, National Oceanic and Atmospheric Administration; or An evaluation of the project site conditions based upon the following parameters: Predicted tide range elevations, Meteorologic conditions, Vegetation and other biological factors at the site including barnacles and algae lines, and Physical indicators at the site such as rack lines, stain marks on nearby structures, and beach particle sorting. The Department may require an applicant to engage a professional engineer, licensed under Maryland law, to certify that the design meets all of the requirements of the Department. This requirement may apply to projects including: Shore erosion control structures; and Dredge material placement sites. The Department may require project plans to include a bathymetric survey that is referenced to a benchmark based on the NGVD of 1929 or NAVD of 1988, or a benchmark established and documented by an applicant and approved by the Department. All survey and topographic information shall be referenced to 0.0 mean low water. Other Approvals. The Department may suspend processing of an application for a structure or activity if the application is inconsistent with State, federal, or local land use requirements, including federal tidal wetlands authorizations under §404 of the Clean Water Act of 1992 and §10 of the Rivers and Harbors Act of 1899, critical area, zoning, special exception, variance, or conditional use approvals. The Department will make these consistency determinations in cooperation with the appropriate State, federal, and local regulatory agencies. Project approval under this subtitle does not relieve a licensee or permittee of the need to obtain other approvals that may be required. A person shall obtain a permit to engage in aquaculture activities under COMAR 08.02.14 before the Department will accept an application for construction of an aquaculture facility in tidal wetlands. An applicant shall allow reasonable access for inspection of the project site by representatives of the Department. An applicant may request in writing, at the time an application is submitted or as soon as possible, that certain information submitted as part of an application not be disclosed. The Department shall determine if the information is confidential under State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland, and other applicable law. If the Department denies a request for nondisclosure, an applicant may withdraw the application or appeal the Department's determination under applicable law. If an applicant withdraws an application, the Department shall, at the request of the applicant, return any documents claimed to be confidential. Evaluation Criteria. The criteria in this regulation are presented to assist in preparing an application and to provide a consistent basis for recommendations and decisions for licenses or permits. As the basis for a recommendation or final decision, including approval, denial, suspension, or modification of a license or permit, the Department shall take into account ecological, economic, developmental, recreational, and aesthetic values of tidal wetlands in order to preserve tidal wetlands and prevent their despoliation and loss. When reviewing an application for a license, the Department considers the proprietary interests of the Board over State tidal wetlands. Application Evaluation. In evaluating an application, the Department shall consider the degree to which: Dredging and filling activities can be avoided or minimized; The proposed activity is water-dependent; The proposed activity will alter or destroy tidal wetlands, including a determination of how the proposed project will: Destroy or adversely affect the value of the tidal wetlands as a source of nutrients or habitat for finfish, crustaceans, mollusks, or wildlife of significant economic or ecologic value, Affect potential habitat areas such as historic spawning and nursery grounds for anadromous and semianadromous fisheries species and shallow water areas suitable to support populations of submerged aquatic vegetation, Eliminate or substantially reduce marine commerce, recreation, and aesthetic enjoyment, Affect the natural ability of tidal wetlands to reduce flood damage and adversely affect the public health and welfare, and Substantially reduce the capacity of tidal wetlands to trap sediment, and result in increased silting of channel and harbor areas to the detriment of free navigation; The proposed activity would alter natural water flow, water temperature, water quality, and natural tidal circulation regimes; The proposed activity would alter littoral drift; The proposed activity enhances the aquatic environment; The proposed activity would impact local, regional, and State economic conditions; The proposed activity is consistent with State, federal, and local land use plans and laws, including Critical Area laws; Alternatives for the disposal of dredged material have been explored; The natural, scenic, historic property, and aesthetic values can be retained or enhanced; The proposed activity provides facilities for the proper handling of storm water runoff and sanitary wastes; Danger may arise because of the location of proposed structures from hurricanes, floods, sea level rise, or other determinable and periodically recurring natural hazards; Navigational safety is affected; The activity benefits the public, if applicable; Shore erosion is controlled; Maintenance and operation of the proposed project is assured; Recreational and navigational access to beaches and waters of the State is provided; The proposed activity would alter the scenic and wild qualities of a designated State scenic and wild river; and The proposed activity would impact historic waterfowl staging areas and colonial bird-nesting sites. The Board shall issue a general wetlands license for those activities proposed in State tidal wetlands listed in §B of this regulation. A person proposing an activity in State tidal wetlands under the general wetlands license shall apply to the Department. The Department shall consider the ecological, economic, developmental, recreational, and aesthetic values of the proposed project and determine if the proposed project qualifies under the general wetlands license. If a project qualifies for a general wetlands license and does not require mitigation under COMAR 26.24.05.01, the Department may issue the authorization directly to the applicant. General Wetlands License Projects. Projects which qualify for approval under the general license include projects to: Add stone or broken concrete to a revetment or channelward of a bulkhead if the stone or broken concrete extends not more than 10 feet channelward of the existing structure; Emplace a revetment for shore erosion control only if it is less than 500 feet in length and it is aligned not more than 10 feet channelward of the mean high water line; Fill near shore shallow water not more than 35 feet channelward of the mean high water line only if the fill area is less than 500 feet in length and parallel to the upland for the purpose of shore erosion control by tidal vegetated wetland creation; Maintenance dredge a mooring, boat ramp, or travel lift slip with an area of 1,500 square feet or less and remove 100 cubic yards or less of material, if the licensee complies with the water quality certification required under COMAR 26.08.02; Reconfigure an existing marina if there is no dredging or no increase in channelward encroachment beyond existing piers and associated structures; Construct a boat ramp not more than 12 feet wide and 30 feet channelward of the mean high water line; Armor or strengthen bridges or causeways when the activity extends not more than 10 feet from the existing structure, requires no dredging, and does not impede the flow of the waterway; Create a new discharge of storm water runoff within 1,000 feet landward of the tidal wetlands boundary, if the drainage system directly discharges to tidal waters and employs stormwater control measures to manage runoff for rate and water quality according to State and local standards which include measures: Designed to control erosive velocities to tidal waters of wetlands, and Required under COMAR 27.01.01 and 27.02.01 and a State-approved critical area program of a local jurisdiction;; Clear debris and windfalls from shorelines without dredging State tidal wetlands; Install temporary monitoring or research devices; and Construct a replacement bulkhead within a maximum of 18 inches channelward of a functional bulkhead. Term of License. An authorization under a general license expires 3 years after the date of issuance. If the construction or the activity authorized under this general license is not completed within 3 years, a license extension may not be granted by the Department and the licensee shall apply for a new license. General License Conditions. To obtain authorization under the general license to be valid, an applicant shall: Obtain all required federal, State, county, or local approvals before beginning work on a licensed activity; When applicable, obtain an approved sediment and erosion control plan from the local soil conservation district before construction; Notify the Enforcement Division of the Water Management Administration at least 5 days before beginning work; Allow representatives of the Department to enter the property at reasonable times to inspect the ongoing or completed work under the license; and Design and construct the authorized work in a manner which minimizes adverse impacts on natural resource values, including water quality, plants, wildlife, and plant and wildlife habitat. The Department shall issue a general wetlands permit to the Administration for those activities in private wetlands listed in §B of this regulation. A person proposing an activity in private tidal wetlands under the general wetlands permit shall apply to the Administration. The Administration shall consider the ecological, economic, developmental, recreational, and aesthetic values of the proposed project and determine if the project proposed in the application qualifies under the general wetlands permit. If a project qualifies under the general wetlands permit and does not require mitigation under COMAR 26.24.05.01, the Administration may issue the authorization directly to the applicant. General Wetlands Permit Projects. Projects which qualify for approval under the general permit include projects described in Regulation .04 of this chapter and projects to: Install or maintain underground utilities such as phone, cable television, electricity, or natural gas pipelines not exceeding 12 inches in diameter if the surface of the wetlands is restored to its original elevation and vegetation; Conserve soil, vegetation, water, fish, shellfish, and wildlife using best management practices; and Improve wildlife habitat as approved by the Administration. Term of Permit. An authorization under the general permit expires 3 years after the date of issuance. If the construction or activity is not completed within 3 years, the Department may not grant an extension and the permittee shall reapply for authorization. General Permit Conditions. In order for an authorization under this general permit to be valid, the applicant shall meet the requirements under Regulation .04D of this chapter. License Conditions. Standard conditions of a tidal wetlands license shall be imposed by the Board in accordance with COMAR 23.02.04.13. The Department may recommend that the Board include special conditions, including requirements for maintenance dredging, mitigation, compensation, and financial assurances, in accordance with COMAR 23.02.04.14. The Department shall use the guidelines in §§C—L of this regulation in recommending conditions to the Board. The licensee shall submit a construction schedule to the Department 10 days before the beginning of construction. The use of construction equipment or other temporary structural barriers may not decrease the width of the navigable waterway by more than 50 percent during construction, unless approved by the Department. The Department may prohibit dredging during certain times to protect shellfish. The Department may determine time restrictions in accordance with the following: Factors including the type of project, nature of the bottom substrate, location, and other physical site characteristics of the site; Mechanical dredging within 500 yards of shellfish areas is prohibited from December 16 through March 14, and June 1 through September 30; and Hydraulic dredging within 500 yards of shellfish areas is prohibited from June 1 through September 30. Dredge restrictions in other identified shellfish areas shall be determined on a case-by-case basis by the Department. Dredging may be prohibited during certain periods by the Department to protect identified finfish-spawning and nursery areas. The Department shall determine dredging time restrictions in accordance with the following: Restrictions during the nursery period of finfish species shall be determined by the Department using factors including target species, type of project, location, and other physical site characteristics; Dredging is prohibited from: February 15 through June 15 in areas where yellow perch have been documented to spawn, and March 1 through June 15 in areas where other important finfish species identified by the Department have been documented to spawn. Dredging is prohibited within 500 yards of SAV from April 15 through October 15. Detailed final project plans and specifications shall be submitted to and approved by the Administration before the project begins. The Department may prohibit the construction of structures on, in, or over shore erosion control structures unless specifically licensed by the Board of Public Works. Other specific conditions may be recommended by the Department on a case-by-case basis. Permit Conditions. Standard conditions of a private permit shall be imposed by the Department, which at a minimum address the following: Protection of property rights; Construction time period; Term of permit; Compliance with plans and specifications; Maintenance of permitted project; Protection and management of natural resources; Use of navigable waters; and Other approvals required. The Department may include special conditions such as requirements for maintenance dredging, mitigation, financial assurances, or other approvals. The Department shall use the guidelines in §B of this regulation in establishing special conditions. Requests for License or Permit Modifications. Upon written request for a license or permit modification, the Department shall determine if the modification is major or minor. Minor modifications to a license may be recommended to the Board or made to a permit by the Department if the modification involves: A change in land ownership; A reduction in the scope of the originally authorized work; Revisions to the project plans or specifications that would otherwise be approved; or Structures, activities, or the conditions of a license or permit which require modification to correct adverse environmental impacts. Major modifications to a license or permit require a new application as described in Regulation .02 of this chapter. Requests for Construction Period Extensions. The Department may not extend the construction period for maintenance dredging projects. The construction period of a tidal wetlands license or permit may be extended for a valid reason. Only one extension for construction authorized under a license or permit may be granted. An extension shall be for a period up to 3 years. A request for extension shall be made in writing to the Department and shall include the following: The reason the project could not be completed within the construction period in the original license or permit; Revised schedule for start and completion of construction; Assurances that all other State, federal, and local approvals have not expired or have been authorized; Evidence of a substantial effort made to construct the authorized works within the construction period specified in the license or permit; Evidence that the project is to be constructed in phases over a number of years; or Evidence of undue hardship due to circumstances beyond the applicant's control. Requests for Reinstatements. A wetlands license or permit that has expired may not be reinstated and requires a new application as described in Regulation .02 of this chapter. Modifications. If the Department determines that a modification to a project is necessary, the Department may revise a permit or request a revision of the license by the Board. If conditions are revealed which will not permit safe construction, the license or permit may be suspended or revoked in accordance with COMAR 26.24.01.06. License Decisions. A party aggrieved by a decision of the Board may petition the circuit court in the county where the land is located within 30 days after receiving the decision. An aggrieved party's impacted interests shall be specific and different from the interests of the public, and the right to an appeal is limited by law to aggrieved parties. Permit Decisions. An applicant who is adversely affected by a decision of denial, suspension, revocation, or condition of a permit by the Department may, within 30 days of receipt of the administrative action, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear argument and shall issue a written final decision. The applicant, the county, or the municipal government where the land is located may appeal the final decision of the Director to the circuit court in the county where the land is located within 30 days of the final decision. An applicant may not reapply for a permit under this subtitle until after the expiration of 18 months from the date of the denial, or the final determination of an appeal from the denial. 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) Regulation .18B amended as an emergency provision effective August 1, 1995 (22:17 Md. R. 1309); amended permanently effective December 4, 1995 (22:24 Md. R. 1894) Regulation .19A amended as an emergency provision effective August 1, 1995 (22:17 Md. R. 1309); amended permanently effective December 4, 1995 (22:24 Md. R. 1894) Regulations .01—.08 were recodified from Regulations .03—.05, .18—.20, .23, and .26, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996