Chapter 02. Development in the Critical Area

Intensely developed areas;

Limited development areas; and

Resource conservation areas.

Based on the criteria stated in Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland, and in this subtitle, identify each of the land classifications within its jurisdiction; and

Develop policies and programs to achieve the objectives proposed by the Commission.

Development in each type of land classification shall be subject to strict criteria in order to prevent adverse impacts on water quality or fish, wildlife, or plant habitat;

It is preferable to direct intense development activities outside the Critical Area;

If proposed in the Critical Area, an intense development activity is appropriately located in an intensely developed area;

Low intensity development may be authorized in a limited development area;

Land uses in a resource conservation area are primarily designated for nature-dominated environments, such as wetlands, forests, and abandoned fields, and resource-utilization activities, such as agriculture, forestry, and fishery activities; and

It is a priority to improve the quality of stormwater entering the Chesapeake or Atlantic Coastal Bays or their tributary streams.

For soil erosion and sediment control, management measures shall be consistent with the requirements of Environmental Article, §§4-101—4-116, Annotated Code of Maryland, and COMAR 26.17.01;

For stormwater runoff, stormwater management measures shall be consistent with the requirements of Environmental Article, §§4-201—4-215, Annotated Code of Maryland, and COMAR 26.17.02;

For shore erosion, shoreline stabilization measures shall be consistent with the requirements of Environmental Article, Title 16, Annotated Code of Maryland, and COMAR 26.24.04; and

Any other applicable State statute or regulation.

For an activity or facility such as nonmaritime heavy industry:

For an activity or facility such as a sanitary landfill or a solid or hazardous waste collection or disposal facility:

A facility that serves a use identified under the local jurisdiction’s Critical Area program;

A linear regional or interstate transportation facility that must cross tidal waters; or

A linear regional or interstate utility transmission facility that must cross tidal waters.

The activity or facility is associated with a wastewater treatment facility; or

In accordance with an approved nutrient management plan under Agriculture Article, Title 8, Subtitle 8, Annotated Code of Maryland, and COMAR 15.20.04 and .06—.08, sludge is applied on agricultural land that is not in the buffer.

Housing density is at least four dwelling units per acre;

Industrial, institutional, or commercial uses are concentrated in the area; or

Public sewer and water collection and distribution systems are currently serving the area and housing density is greater than three dwelling units per acre.

Except as authorized under §B(2) of this regulation, the features in §A(1)—(3) of this regulation shall be located in an area of at least 20 adjacent acres, or that entire upland portion of the Critical Area within the boundary of a municipality, whichever is less.

The features may be located in an area of less than 20 adjacent acres if:

Improve the quality of stormwater from developed areas that enters the Chesapeake or Atlantic Coastal Bays or their tributary streams;

Accommodate additional development of the type and intensity designated by the local jurisdiction if water quality is not impaired;

Minimize the expansion of intensely developed areas into portions of the Critical Area designated as habitat protection areas under COMAR 27.01.09 and resource conservation areas under Regulation .05 of this chapter;

Conserve and enhance fish, wildlife, and plant habitats, as identified in COMAR 27.01.09, within intensely developed areas;

Minimize the adverse water quality and quantity impact of stormwater and encourage the use of retrofitting measures to address existing stormwater management problems;

Cluster future development as a means to reduce lot coverage and to maximize areas of natural vegetation; and

With assistance from the State, establish programs to enhance biological resources that provide positive effects on water quality and urban wildlife habitat within the Critical Area, such as urban forestry, landscaping, gardens, wetlands, and aquatic habitat restoration elements.

A local jurisdiction shall develop a strategy to reduce the impacts on water quality that are generated by existing development. This shall include an assessment of water quality and impacts to biological resources prompted by community redevelopment plans and programs and may further include a public education program, the implementation of urban best management practices, and the use of such techniques as are outlined in §D(9)(a) of this regulation;

Development and redevelopment shall be subject to the habitat protection area criteria prescribed in COMAR 27.01.09;

A local jurisdiction shall require, at the time of development or redevelopment:

A local jurisdiction shall prohibit the location of a road, bridge, or utility in any portion of the Critical Area designated as a habitat protection area under COMAR 27.01.09, unless there is no feasible alternative;

If the location of a road, bridge, or utility in a habitat protection area is authorized under §D(4) of this regulation, a local jurisdiction shall ensure that the design, construction, and maintenance of the road, bridge, or utility:

A local jurisdiction shall prohibit the location of a development activity if that development or any related activity would cross or affect a stream, unless there is no feasible alternative;

If the location of a development activity is authorized under §D(6) of this regulation, a local jurisdiction shall ensure that the design and construction of the development activity:

Ports and industries which use water for transportation and derive economic benefits from shore access shall be located near existing port facilities. Local jurisdictions may identify other sites for planned future port facility development and use if this use will provide significant economic benefit to the State or local jurisdiction and is consistent with the provisions of COMAR 27.01.03.03—.05 and 27.01.09, and other State and federal regulations; and

When the cutting or clearing of trees in forests and developed woodland areas is associated with current or planned development activities, all of the following shall be required

Housing density ranging from one dwelling unit per 5 acres up to four dwelling units per acre;

Areas not dominated by agriculture, wetland, forest, barren land, surface water, or open space;

Areas meeting the conditions of Regulation .03A, but not .03B, of this chapter; or

Areas having public sewer or public water, or both.

Maintain, to the extent practicable, existing areas of natural habitat;

Accommodate additional low or moderate intensity development if:

Reduce the extent of lot coverage and maximize areas of natural vegetation through consideration of cluster development when planning for future development.

If the location of a road, bridge, or utility in a habitat protection area is authorized under §D(1)(b) of this regulation, the design, construction, and maintenance of the road, bridge, or utility so as to:

Prohibition on the location of a development activity if that development or any related activity would cross or affect a stream, unless there is no feasible alternative;

If the location of a development activity is authorized under §C(2) of this regulation, the design and construction of the development activity so as to:

All development sites shall incorporate a wildlife corridor system that connects the largest undeveloped, or most vegetated tracts of land within and adjacent to the site in order to provide continuity of existing wildlife and plant habitats with offsite habitats. The wildlife corridor system may include habitat protection areas identified in COMAR 27.01.09. A local jurisdiction shall ensure the maintenance of the wildlife corridors by requiring the establishment of conservation easements, restrictive covenants, or similar instruments through which the corridor is preserved by public or private groups, including homeowner associations, nature trusts, and other organizations;

For the cutting or clearing of trees in forest and developed woodland areas which are associated with current or planned development activities in the limited development area, a local jurisdiction shall:

For the alteration of forest and developed woodland areas in the limited development area, a local jurisdiction shall apply all of the following criteria:

For forest and woodland development, a local jurisdiction shall adhere to all of the following criteria :

Disturbance on a slope measuring at least 15 percent, as measured before disturbance, shall be prohibited unless the disturbance is the only effective way to stabilize the slope and is consistent with the policies in §B of this regulation;

A local jurisdiction shall limit lot coverage on a parcel in accordance with all of the following maximums:

A local jurisdiction may authorize development activity on soils having development constraints if the jurisdiction includes mitigation measures that:

For a habitat protection area:

For a water-dependent facility or activity, criteria as provided in COMAR 27.01.03.

Density is less than one dwelling unit per 5 acres; or

Dominant land use is in agriculture, wetland, forest, barren land, surface water, or open space.

Conserve, protect, and enhance the overall ecological values of the Critical Area, its biological productivity, and its diversity;

Provide adequate breeding, feeding, and wintering habitats for wildlife populations that require the Chesapeake and Atlantic Coastal Bays, their tributaries, or coastal habitats in order to sustain their species;

Conserve the land and water resource base that is necessary to maintain and support land uses such as agriculture, forestry, fisheries activities, and aquaculture;

Conserve the existing developed woodlands, forests, and riparian areas for the water quality benefits that they provide;

Promote agricultural and conservation easements;

Encourage tax incentives or other incentive or disincentive programs that promote the continuation of agriculture, forestry, and natural habitats; and

Consider cluster development, transfer of development rights, maximum lot size provisions, and any other means likely to maintain the land area necessary to support the protective uses.

Land use management practices shall be consistent with the policies and criteria for habitat protection areas in COMAR 27.01.09, the policies and criteria for agriculture in COMAR 27.01.06, and the policies and criteria for forestry in COMAR 27.01.05;

Land within the resource conservation area may be developed for residential uses at a density not to exceed one dwelling unit per 20 acres. A local jurisdiction:

Existing industrial and commercial facilities, including those that directly support agriculture, forestry, aquaculture, or residential development not exceeding the density specified in §C(2) of this regulation, shall be allowed in resource conservation areas;

Additional industrial or commercial facilities may not be located in the resource conservation area unless the use is authorized by a local program;

Institutional facilities may not be located in the resource conservation area unless the use is authorized by a local program;

A commercial, institutional, or industrial solar energy generating system may be authorized in accordance with COMAR 27.01.14;

A local jurisdiction shall develop a program to assure that the overall acreage of forest and woodland within its resource conservation areas does not decrease;

Development activity within the resource conservation area shall be consistent with the criteria for limited development areas in Regulation .04 of this chapter; and

Limitations on lot coverage on a parcel shall be in accordance, as applicable, with the following maximums:

Tidal wetlands; and

Land owned by the federal government.

In conformance with the requirements of this subtitle; and

Designated on the locally approved Critical Area map that is submitted by the local jurisdiction as part of its application to the Commission for growth allocation approval.

A buffer management plan;

A habitat protection plan; and

Other applicable conditions of approval as determined by the Commission at the time of project approval.

All information and documentation relevant to the local jurisdiction's determination that the project meets the standards listed under Natural Resources Article, §8-1808.1(c)(2), Annotated Code of Maryland, and Regulation .06-3 of this chapter;

All information and documentation that addresses the factors to be considered by the Commission under Natural Resources Article, §8-1808.1(c)(4), Annotated Code of Maryland, and Regulation .06-3 of this chapter;

A conceptual site development plan;

An environmental features map;

In accordance with Regulation .06-2 of this chapter, an environmental report that demonstrates that the project has been designed and will be constructed in compliance with all requirements of the proposed Critical Area land classification;

For the following resources, as appropriate for the project site and each government agency, a preliminary review and comment from the Department of the Environment, Department of Natural Resources, Maryland Historical Trust, and U.S. Army Corps of Engineers regarding:

A map that shows the land area where the local jurisdiction proposes a change to a Critical Area land classification; and

Verification that the amount of proposed growth allocation indicated on the map submitted under §A(7) of this regulation is accurate and equal to the amount of growth allocation to be deducted from the local jurisdiction's existing total allotment of growth allocation.

The name of the project and its street address;

Tax map information that includes, as applicable, the:

A site plan with a scale provided at 1"=10', 1"=20', 1"=30', 1"=40', 1"=50', 1"= 60', or 1"=100';

Orientation;

A vicinity map with the project site clearly identified;

Existing parcel and tract boundaries or lot lines;

The project boundary;

The limits of disturbance;

A proposed development envelope;

All Critical Area boundaries, including existing and proposed land classifications and the land classification of all lots or parcels adjacent to the project site;

The boundaries of the 100-year floodplain;

The field-run topography;

Vegetative cover information by acre or square footage, including:

Soil features of the project and where each soil type is located;

Field determination of each intermittent stream and each perennial stream;

A delineation of the buffer;

As applicable and in accordance with the requirements of COMAR 27.01.09.01E or the local program, a delineation of an expanded buffer that is necessary because of a contiguous slope of 15 percent or greater or the presence of a hydric soil, highly erodible soil, or a nontidal wetland;

When converting from a resource conservation area to a limited development area or an intensely developed area, the location and extent of the 300-foot setback;

A field-delineated location and description of the extent of a nontidal wetland, including the buffer from that nontidal wetland, that is:

Unless the Commission determines an otherwise acceptable period of time, a field-delineated location and description of the extent of a tidal wetland that is less than 2 years old, including the delineation of State and private tidal wetland boundaries;

Identification and location of all wildlife habitat and plant habitat, including a nesting site of colonial nesting water birds, a waterfowl staging and concentration area, a riparian habitat, a habitat of forest interior dwelling birds, a locally significant habitat, and a natural heritage area;

Identification and location of habitat of threatened and endangered species, and species in need of conservation;

Identification and location of anadromous fish propagation waters;

Location of existing and proposed area of lot coverage, including identification of a building, road, parking lot, and any other area that contributes to lot coverage;

Location of any other proposed development feature, including an outlot, storm drain and outfall, utility connection, septic system, stormwater management system, shoreline stabilization measure, and pier;

Location of a path or walkway, including those exempt from lot coverage requirements;

Location of an existing or proposed mitigation area that is required because of an impact on forest, developed woodland, wetland, buffer, or other habitat protection area; and

If applicable:

A project description;

The subdivision and development history:

A brief narrative that describes:

Total acreage in the Critical Area and total acreage for which Critical Area designation is proposed to be changed;

Total forest, developed woodland, and vegetated area proposed to be cleared;

Method and description of proposed stormwater management, including all qualitative and quantitative management measures;

In the intensely developed area, the preliminary plan for compliance with the 10 percent pollutant reduction rule, including all worksheets and all supporting documentation;

Measures proposed for soil erosion and sediment control, including implementation strategy;

In the limited development area and resource conservation area, existing and proposed lot coverage information, calculated by square feet of coverage for each lot and total area of lot coverage within the limited development area and total area of lot coverage within the resource conservation area;

Mitigation required for clearing of forest area, developed woodland, or vegetation in accordance with the requirements of Regulations .04C and .05C(9) of this chapter, COMAR 27.01.05, or the local program;

If applicable, the proposed afforestation area:

Identification of the local zoning district and that district's defining characteristics;

A buffer management plan, consistent with §B of this regulation if:

If the proposed development will impact an identified habitat protection area, a habitat protection plan that is consistent with §C of this regulation.

Require the developer to prepare a habitat protection plan that:

Ensure:

For a growth allocation application that is to be located in a priority funding area, in accordance with State Finance and Procurement Article, §§5-7B-02 and 5-7B-03, Annotated Code of Maryland, all of the following items in the plan:

For a growth allocation application that is not to be located in a priority funding area, all of the following items in the plan:

The local jurisdiction is a municipal corporation; or

In Calvert, Caroline, Cecil, Charles, Dorchester, Kent, Queen Anne’s, St. Mary’s, Somerset, Talbot, Wicomico, and Worcester Counties:

Locate a new intensely developed area in a limited development area or adjacent to an existing intensely developed area;

Locate a new limited development area adjacent to an existing limited development area or an intensely developed area;

Locate in a manner that:

Locate a new intensely developed area or limited development area in a resource conservation area at least 300 feet landward from the mean high water line of tidal waters or from the landward boundary of a tidal wetland, unless the local jurisdiction proposes, and the Commission approves, alternative measures for enhancement of water quality and habitat that provide greater benefits to the resources; and

For a growth allocation application for a residential subdivision, comply with the requirements and procedures under Environment Article, §9-206, Annotated Code of Maryland, and Land Use Article, Title 1, Subtitle 5, and §5-104, Annotated Code of Maryland.

The alternative standard is consistent with the local jurisdiction's adopted comprehensive plan; and

The Commission has approved the alternative standard as part of the local program.

Consistency with the jurisdiction's adopted comprehensive plan and whether the growth allocation would implement the goals and objectives of the adopted plan;

For a new intensely developed area, whether the development will:

For a new limited development area, whether the development will:

The use of existing public infrastructure, where practical;

Consistency with State and regional environmental protection policies concerning the protection of threatened and endangered species, and species in need of conservation that may be located on-site or off-site;

Impacts on a priority preservation area, as defined under Agriculture Article, §2-518, Annotated Code of Maryland;

Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams; and

Environmental impacts associated with location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development.

In this regulation, the following terms have the meanings indicated.

Defined Terms.

For the total number of acres of a parcel for which growth allocation is approved if, as of December 1, 1985 in the Chesapeake Bay Critical Area or June 1, 2002 in the Atlantic Coastal Bays Critical Area:

For the number of growth allocation acres approved within a growth allocation envelope, if:

In the Chesapeake Bay Critical Area, on December 1, 1985; or

In the Atlantic Coastal Bays Critical Area, on June 1, 2002.

The remaining resource conservation area outside a growth allocation envelope in accordance with §B(2)(b)(i) of this regulation;

The remaining resource conservation area that is outside a growth allocation envelope and is less than 20 acres if:

The acreage of a 300-foot setback, even when it is less than 20 acres;

The acreage within the buffer required in COMAR 27.01.09.01 when it is within a 300-foot setback; and

The acreage of tidal wetlands on the parcel.

Deduction of more than one growth allocation envelope will provide a water quality or habitat benefit; and

The Commission approves the use of more than one growth allocation envelope.

A single lot or parcel of land that was legally of record on the date of program approval to be developed with a single family dwelling, if a dwelling is not already placed there, notwithstanding that the single family dwelling may be inconsistent with the density provisions of the approved local program;

Any land on which development activity has progressed to the point of the pouring of foundation footings or the installation of structural members;

Any legal parcel of land, not being part of a recorded or approved subdivision, that was recorded as of December 1, 1985, and land that was subdivided into recorded, legally buildable lots, where the subdivision received the local jurisdiction's final approval prior to June 1, 1984, if:

In accordance with Natural Resources Article, §8-1813, Annotated Code of Maryland, land that was subdivided into recorded, legally buildable lots, where the subdivision received the local jurisdiction's final approval between June 1, 1984 and December 1, 1985; and

Land that was subdivided into recorded, legally buildable lots, where the subdivision received the local jurisdiction's final approval after December 1, 1985, if:

In this regulation, the following term has the meaning stated.

Conforming.

Except as provided under §C of this regulation, and notwithstanding the location of the affected parcels or lots in a modified buffer area, the provisions of this regulation shall apply to a consolidation or reconfiguration of:

The provisions of this regulation do not apply to a conforming parcel or lot.

The alternative procedures and requirements are at least as effective as the Critical Area program under Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland, regulations adopted under the authority of that subtitle, and any additional requirements of the local program; and

The Commission has approved those alternative procedures and requirements.

Will, to the extent possible:

Will not increase or intensify development activities or human activities in the buffer or any other habitat protection area when compared with those activities that would result from the parcel or lot configuration in existence at the time of application for consolidation or reconfiguration.

The date of recordation of each legal parcel of land or recorded, legally buildable lot to be consolidated or reconfigured;

A plan drawn to scale in accordance with local procedures;

A plan that shows all existing and proposed parcel or lot boundaries;

A table that lists the number of all legal parcels of land or recorded, legally buildable lots and the number of proposed parcels or lots to be derived; and

Information sufficient for the local jurisdiction to make the findings set forth in §F of this regulation.

The proposed consolidation or reconfiguration will not result in a greater number of parcels, lots, or dwelling units in the Critical Area than the configuration in existence at the time of application would allow;

In the limited development area or resource conservation area, the proposed consolidation or reconfiguration:

The proposed consolidation or reconfiguration will not:

The proposed consolidation or reconfiguration will not create:

The proposed consolidation or reconfiguration identifies each habitat protection area on site, and, if the proposal impacts a habitat protection area, the proposed protective and restoration measures provide for the least possible adverse impact;

The proposed consolidation or reconfiguration:

The proposed consolidation or reconfiguration provides:

The proposed consolidation or reconfiguration fully complies with the afforestation and reforestation requirements in COMAR 27.01.05 and 27.01.09, unless clearing is necessary to avoid a habitat protection area.

A local jurisdiction shall issue a final written decision or order granting or denying an application for a consolidation, reconfiguration, or a modification or reconsideration of a consolidation or reconfiguration.

Within 10 business days after the issuance of a final written decision or order, the local jurisdiction shall send to the Commission a copy of the decision or order and, if applicable, the approved development plan.

The time period during which the Commission may file an appeal or a petition for judicial review begins on the date of the Commission's receipt of the final written decision or order.

Unless a local ordinance or other local legal authority specifies a time period greater than 30 days, the Commission may file an appeal or a petition for judicial review within 30 days of the date of the Commission's receipt of the final decision or order.