Chapter 05. Mitigation
Regulation .01 Mitigation.LinkCopy Citation
A.
Goal. It is the goal of the State to preserve tidal wetlands, prevent their loss and despoliation, and strive for a net resource gain in tidal wetlands acreage and function.
B.
Mitigation Requirements.
(1)
An applicant for a license or permit shall design a project to first avoid and then minimize the loss of tidal wetlands. If an applicant demonstrates that alteration of tidal wetlands cannot be avoided to accomplish the project, the Department shall:
(a)
Recommend that the Board require mitigation as a condition of a State tidal wetlands license; or
(b)
Require mitigation as a condition of a private tidal wetlands permit.
(2)
Mitigation projects shall be designed to replace the values and functions associated with the wetlands to be impacted.
(3)
Mitigation projects shall be connected to existing tidal wetlands or tidal waterways. 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:
(a)
Locations on-site;
(b)
Locations off-site in the:
(i)
Immediate watershed subsegment where the tidal wetland loss occurred,
(ii)
Watershed sub-basin where the tidal wetland loss occurred, or
(iii)
State minor basin where the tidal wetlands loss occurred.
(4)
Mitigation for the loss of tidal wetlands shall be considered in the following order of preference:
(a)
Restoration;
(b)
In-kind creation;
(c)
Out-of-kind creation;
(d)
Enhancement of existing tidal wetlands;
(e)
Monetary compensation to the Wetlands Compensation Fund.
(5)
Enhancement activities may be accepted in addition to tidal wetlands restoration or creation when the applicant has demonstrated to the satisfaction of the Department that enhancement provides additional protection or improves tidal wetlands functions. Activities may include:
(a)
Enhancement of degraded tidal wetlands; or
(b)
Preservation of existing tidal wetlands.
(6)
The Department may recommend that the Board accept monetary compensation only if the Department determines that creation, restoration, or enhancement of tidal wetlands are not feasible alternatives.
(7)
Mitigation requirements may be reduced or eliminated:
(a)
For shore erosion control projects that meet all of the requirements of COMAR 26.24.04.01; or
(b)
If the proposed project provides a significant environmental benefit as determined by the Department.
(8)
The Department may not base a final tidal wetland permit decision or tidal wetland license recommendation solely on the environmental benefits of a mitigation proposal or the financial benefits of a monetary compensation proposal.
(9)
The Department may approve mitigation bank sites in consultation with the appropriate local, State, and federal agencies.
C.
Standards.
(1)
The Department may use acreage replacement ratios to determine the size of newly created, restored, or enhanced tidal wetlands as mitigation for the loss of existing tidal wetlands. Acreage replacement ratios are expressed as a relationship between two numbers. The first number is the acreage of tidal wetlands to be mitigated and the second is the acreage of tidal wetlands lost. Acreage replacement ratios for in-kind creation and restoration are as follows:
(a)
Open water tidal wetlands—1:1;
(b)
Emergent tidal wetlands—2:1;
(c)
Scrub-shrub tidal wetlands—2:1;
(d)
Forested tidal wetlands—2:1; and
(e)
Tidal wetlands habitat for rare, threatened, or endangered species, or species in need of conservation—3:1.
(2)
Out-of-kind creation and enhancement ratios are increased by a factor of 2.
(3)
A mitigation project, as built, shall meet the following plant survival criteria:
(a)
After 5 years, greater than 85 percent of the mitigation site shall be vegetated by planted species approved by the Department; and
(b)
Allowances shall be made for natural species changes as long as the plant communities are similar to those lost.
(4)
In determining if mitigation activities will replace tidal wetlands acreage and functional losses, the Department shall consider the following:
(a)
Degree to which the mitigation activity replaces the functions of the lost tidal wetlands;
(b)
Benefits of the mitigation activity in rehabilitating or maintaining tidal wetlands;
(c)
Scope and extent of the mitigation activity;
(d)
Proximity of the mitigation activity to the tidal wetlands loss;
(e)
Technical merits of the mitigation activity and its likelihood of long-term success;
(f)
Adverse impact of the mitigation activity on natural resources;
(g)
Relationship of the mitigation activity to ongoing natural resource management activities; and
(h)
Compatibility of the mitigation activity with approved comprehensive river or watershed management plans, if applicable.
D.
Mitigation Plan.
(1)
At a minimum, a mitigation plan shall contain the following information:
(a)
A plan view of the mitigation area drawn at a scale not smaller than 1 inch equals 50 feet, including the delineation of all existing and adjacent tidal and nontidal wetlands, submerged aquatic vegetation, and shellfish resources;
(b)
Existing and proposed elevations of the ground contours referenced to mean low water at the site;
(c)
Cross-section views if elevation changes are required to provide adequate substrate to support plant species;
(d)
The location and description of all existing and proposed tidal wetlands plants by species;
(e)
Photographs of the affected tidal wetlands, including the types of vegetation;
(f)
The proposed method of construction, including temporary or permanent access roads;
(g)
Location, type, and characteristics of all borrow or fill materials and method of site grading;
(h)
Construction schedule;
(i)
Method of final site stabilization;
(j)
A description of how the proposed mitigation project will replace the functions of lost tidal wetlands; and
(k)
Monitoring plan.
(2)
A licensee or permittee shall implement the mitigation plan before or concurrent with the construction of the project unless otherwise directed by the Department.
(3)
A bond shall be recommended as a condition of a license or required as a permit condition to assure that mitigation is performed. The Department shall approve the form of the bond in accordance with Regulation .02 of this chapter.
E.
Monitoring Report.
(1)
A permittee or licensee shall submit annual monitoring reports for 5 years from the completion of the construction of the mitigation project, unless the permittee or licensee has received written notice from the Department that the monitoring requirements have been fulfilled in less than 5 years. The monitoring report shall include the following:
(a)
A description of how the mitigation project meets the mitigation project standards in this regulation;
(b)
Photographs of the mitigation project;
(c)
The commercial source of planting stock whenever planting is required;
(d)
A description of modifications which have been made or need to be made to implement the mitigation plan necessary to meet this regulation; and
(e)
An “as-built” site design plan shall be included in the first annual report, and subsequent reports shall detail any modifications to the “as built” plan.
(2)
The Department reserves the right to inspect the mitigation project at any reasonable time during the construction and required monitoring period, and any time after that to assess the long-term viability of the mitigation site.
(3)
Through written notification to the permittee or licensee, the Department may extend the required monitoring period for not more than an additional 3-year period, for a total of 8 years, if the mitigation project fails to comply with the standards in §C of this regulation.
Regulation .02 Bonding for Mitigation Purposes.LinkCopy Citation
A.
This regulation does not apply to any State, county, or municipal government, or to projects licensed by the Board.
B.
This regulation only applies to those projects proposed and permitted by the Department in private tidal wetlands.
C.
The bond is payable to the Department and conditioned upon fulfillment of mitigation monitoring requirements.
D.
Alternative Forms of Security.
(1)
Instead of a surety bond, the Department may accept one of the following forms of security:
(a)
A deposit of cash or negotiable bonds of the federal government having a market value equal to the bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;
(b)
A certificate of deposit equal to the required bond amount, issued by a bank in the State and with a written agreement from the bank to pay the State on demand in the event of forfeiture;
(c)
An irrevocable letter of credit equal to the bond amount, issued by a bank or financial institution organized 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;
(d)
The grant to the Department, in trust, of a deed, easement, or other interest in upland property owned by the permittee that has the same or greater monetary value than the selected mitigation site; or
(e)
Fulfillment of mitigation requirements before completion of the permitted activity which results in the loss of tidal wetlands.
(2)
The permittee shall submit to the Department the alternative form of security under this regulation, until authorized by the Department for release. Alternative forms of security may not be released until monitoring of the mitigation project has been successfully completed.
E.
Amount of Bond.
(1)
The amount of the bond for a permittee is $50,000 per acre of tidal wetlands mitigation required under the permit, or in an amount determined by the Department.
(2)
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.
(3)
The Department shall determine whether a lesser amount is sufficient to cover the cost of the mitigation project, taking into account the following:
(a)
Number of acres to be mitigated;
(b)
The cost of land in the area of the mitigation site;
(c)
The proposed method of mitigation; and
(d)
Any other relevant factors, including the likelihood of success of the project.
F.
Liability under the bond continues until the Department determines that the monitoring requirements have been fulfilled, and the surety or financial institution receives written notice from the Department that the mitigation project was successfully completed.
G.
A surety bond or other alternative form of security may be cancelled by the surety, bank, or other issuing entity when both of the following conditions are satisfied:
(1)
The surety notifies the Department and the permittee of its intent to cancel the bond, in writing, by certified mail, not less than 90 days before cancellation; and
(2)
At least 45 days before the cancellation date indicated in the notice, the permittee files a replacement bond 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.
H.
Bond Forfeiture.
(1)
The bond or other instrument securing compliance with the mitigation plan may be subject to forfeiture upon:
(a)
Revocation of a tidal wetlands license or permit;
(b)
Failure to comply with an administrative order; or
(c)
Failure to comply with any element of the approved mitigation plan.
(2)
The Department, in writing and by certified mail, shall notify the permittee, surety, or other financial institution of the Department's intention to initiate forfeiture proceedings and the grounds for forfeiture.
(3)
The permittee, surety, or other financial institution has 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited.
(4)
On showing cause, the Department shall provide for a reasonable time for the permittee, surety, or other financial institution to correct the problem.
(5)
If the permittee, surety, or other financial institution fails to show cause, the bond is forfeited nisi and the Department shall notify the permittee, surety, or other financial institution. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted within 30 days from forfeiture nisi, the bond shall be forfeited absolute.
I.
If tidal wetlands are adequately protected, the Department may allow an applicant to post one bond under Environment Article, §15-823, Annotated Code of Maryland, or another Department program requiring bonding.
J.
A permittee may not conduct a regulated activity in a tidal wetland if the permittee previously forfeited a bond under this subtitle, unless the permittee repays the Department the cost of completing the mitigation project in excess of the forfeited bond, plus interest at the rate set in Courts and Judicial Proceedings Article, §11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee shall complete the mitigation project at the permittee's expense according to the approved mitigation plan.
Chapter annotations
Authority: Environment Article, Title 16, Annotated Code of Maryland
History: Effective date: February 14, 1994 (21:3 Md. R. 184)
History: (Wetlands regulations before February 14, 1994, appeared under COMAR 08.05.07)
History: Regulations .01 and .02 were recodified from Regulations .21 and .22, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996