Chapter 09. Habitat Protection Areas in the Critical Area
Regulation .01 Buffer.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Accessory” means a structure that is:
(a)
Detached from a principal structure;
(b)
Located on the same lot as the principal structure; and
(c)
Customarily incidental and subordinate to the principal structure.
(2)
“Addition” means a newly constructed area that increases the size of a structure.
(3)
Buffer Management Plan.
(a)
“Buffer management plan” means a narrative, graphic description, or plan of the buffer that is necessary when an applicant proposes a development activity that will:
(i)
Affect a portion of the buffer;
(ii)
Alter buffer vegetation; or
(iii)
Require the establishment of a portion of the buffer in vegetation.
(b)
“Buffer management plan” includes a major buffer management plan, a minor buffer management plan, and a simplified buffer management plan.
(4)
“Caliper” has the meaning stated in COMAR 08.19.03.01.
(5)
“Canopy tree” means a tree that, when mature, reaches a height of at least 35 feet.
(5-1)
“Ecosystem” means a more or less self-contained biological community together with the physical environment in which the community’s organisms occur.
(6)
“Fully established” means the buffer contains as much diverse, native vegetation as necessary to support a firm and stable riparian habitat capable of self-sustaining growth and regeneration.
(6-1)
Hazardous Tree.
(a)
“Hazardous tree” means:
(i)
A tree with a structural defect, such as a crack, canker, weak branch union, decay, dead wood, root damage, or root disease, that decreases the structural integrity of the tree and which, because of its location, is likely to fall and cause personal injury or property damage, including acceleration of soil erosion; or
(ii)
Based on its location in the landscape, a healthy tree that, with continued normal growth, will damage an existing permanent structure or significantly increase the likelihood of soil erosion.
(b)
“Hazardous tree” does not include a tree for which the likelihood of personal injury, property damage, or soil erosion can reasonably be eliminated or significantly diminished:
(i)
With routine and proper arboricultural practices, such as regular watering, application of fertilizer or mulch, and pruning; or
(ii)
By relocation of property that is likely to be damaged.
(7)
“In-kind replacement” means the removal of a structure and the construction of another structure that is smaller than or identical to the original structure in use, footprint area, width, and length.
(8)
“Invasive species” means a type of plant that is non-native to the ecosystem under consideration and whose introduction causes, or is likely to cause, economic or environmental harm or harm to human health.
(9)
Repealed.
(10)
“Large shrub” means a shrub that, when mature, reaches a height of at least 6 feet.
(10-1)
“Limit of disturbance” means the area of a development or redevelopment activity that includes temporary disturbance and permanent disturbance.
(11)
“Major buffer management plan” means a plan and supporting documentation required under Regulation .01-3J of this chapter.
(12)
“Minor buffer management plan” means a plan and supporting documentation required under Regulation .01-3I of this chapter.
(13)
“Native” means indigenous to the physiographic area in Maryland where the planting is proposed.
(14)
“Natural regeneration” has the meaning stated in COMAR 08.19.03.01.
(14-1)
Permanent Disturbance.
(a)
“Permanent disturbance” means a material, enduring change in the topography, landscape, or structure that occurs as part of a development or redevelopment activity.
(b)
“Permanent disturbance” includes:
(i)
Construction or installation of any material that will result in lot coverage;
(ii)
Construction of a deck;
(iii)
Except under §B(18-2)(b)(iii) of this regulation, grading;
(iv)
Except under §B(18-2)(b)(ii) of this regulation, clearing of a tree, forest, or developed woodland; and
(v)
A septic system in a forest or developed woodland on a lot created before local program approval, if clearing is required.
(c)
“Permanent disturbance” does not include a septic system on a lot created before local program approval if the septic system is located in existing grass or clearing is not required.
(15)
“Simplified buffer management plan” means a plan required for an application under Regulation .01-3H of this chapter.
(16)
“Small shrub” means a shrub that, when mature, reaches a height of up to 6 feet.
(17)
Repealed.
(18)
“Substantial alteration” means a repair, reconstruction, replacement, or improvement of a principal structure, with a proposed total footprint that is at least 50 percent greater than that of the structure that is the subject of the application.
(18-1)
“Supplemental planting plan” means a description and landscape schedule that shows the proposed species type, quantity, and size of plants to be located within a buffer if natural regeneration does not meet the required stem density.
(18-2)
Temporary Disturbance.
(a)
“Temporary disturbance” means a short-term change in the landscape that occurs as part of a development or redevelopment activity.
(b)
“Temporary disturbance” includes:
(i)
Storage of materials that are necessary for the completion of the development or redevelopment activity;
(ii)
Construction of a road or other pathway that is necessary for access to the site of the development or redevelopment activity, if the road or pathway is removed immediately after completion of the development or redevelopment activity and the area is restored to its previous vegetative condition;
(iii)
Grading of a development site, if the area is restored to its previous vegetative condition immediately after completion of the development or redevelopment activity; and
(iv)
Locating a septic system on a lot created before local program approval if the septic system is located in existing grass or clearing is not required.
(c)
“Temporary disturbance” does not include:
(i)
A septic system in a forest or developed woodland on a lot created before local program approval, if clearing is required; and
(ii)
A violation.
(19)
“Understory tree” means a tree that, when mature, reaches a height of 12 to 35 feet.
(20)
Repealed.
C.
Policies. In developing and updating its Critical Area program, a local jurisdiction shall use all of the following policies with regard to the buffer:
(1)
Provide for the removal or reduction of sediments, nutrients, and potentially harmful or toxic substances in runoff entering the Chesapeake and Atlantic Coastal Bays or their tributaries;
(2)
Minimize the adverse effects of human activities on wetlands, shorelines, stream banks, tidal waters, and aquatic resources;
(3)
Maintain an area of transitional habitat between aquatic and upland communities;
(4)
Maintain the natural environment of streams; and
(5)
Protect riparian wildlife habitat.
D.
Authority of Secretary; Scope; Alternative Procedures and Requirements.
(1)
The provisions of this chapter may not be construed to limit the authority of the Secretary of Agriculture under Agriculture Article, Title 9, Subtitle 4, Annotated Code of Maryland.
(2)
Except for a shoreline stabilization measure in a modified buffer area, the provisions of this regulation through Regulation .01-7 of this chapter do not apply within a modified buffer area under Regulation .01-8 of this chapter.
(3)
A local jurisdiction may adopt alternative procedures and requirements for the provisions of this chapter if:
(a)
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
(b)
The Commission has approved those alternative procedures and requirements.
E.
Buffer Standards.
(1)
In conjunction with mitigation performed in accordance with an approved buffer management plan under Regulation .01-3 of this chapter, a local jurisdiction may authorize disturbance in the buffer for:
(a)
A development activity:
(i)
Associated with a water-dependent facility or activity under COMAR 27.01.03;
(ii)
Authorized under a variance;
(iii)
In accordance with §E(8) of this regulation;
(iv)
In accordance with Regulation .01-3B of this chapter; or
(v)
Associated with the placement of dredged material under COMAR 27.01.03.03D; or
(b)
In accordance with COMAR 26.24.02, a shoreline stabilization measure under COMAR 27.01.04.
(2)
Except as authorized under §E(1) of this regulation, a local jurisdiction may not authorize disturbance in the buffer.
(3)
Except for the buffer widths under §E(5)—(7) of this regulation and based on existing field conditions, a local jurisdiction shall require the measurement of a buffer of at least 100 feet [landward from]:
(a)
Landward from the mean high water line of tidal waters;
(b)
From the landward boundary of a tidal wetland; and
(c)
From the edge of each bank of a tributary stream.
(4)
To calculate the buffer widths under §E(5)—(7) of this regulation, a local jurisdiction shall require the measurement of the buffer from the points specified under §E(3) of this regulation.
(5)
If a local jurisdiction grants final local approval for a subdivision or a site plan in a resource conservation area on or after July 1, 2008, the local jurisdiction shall require:
(a)
A buffer of at least 200 feet landward from the mean high water line of tidal waters or from the landward boundary of a tidal wetland; and
(b)
An expanded buffer in accordance with §E(7) of this regulation.
(6)
The provisions of §E(5)(a) of this regulation do not apply if:
(a)
The application for subdivision or site plan approval was submitted before July 1, 2008, and legally recorded by July 1, 2010;
(b)
The application involves the use of growth allocation; or
(c)
A local program procedure approved by the Commission provides for the reduction of the strict application of a 200-foot buffer under §E(5)(a) of this regulation if a 200-foot buffer would preclude a subdivision of the property at a density of one dwelling unit per 20 acres or an intra-family transfer authorized under Natural Resources Article, §8-1808.2, Annotated Code of Maryland.
(7)
If a buffer is contiguous to a steep slope, a nontidal wetland, a nontidal wetland of special State concern under COMAR 26.23.06, a hydric soil, or a highly erodible soil, a local jurisdiction shall expand the buffer width required under §E(3) or (5)(a) of this regulation and shall calculate the extent of that expansion in accordance with all of the following requirements:
(a)
A steep slope at a rate of 4 feet for every 1 percent of slope or to the top of the slope, whichever is greater;
(b)
In accordance with COMAR 26.23.01.01B;
(i)
A nontidal wetland to its upland boundary; and
(ii)
A nontidal wetland of special State concern to include the wetland and its regulated 100-foot buffer; and
(c)
A highly erodible soil on a slope less than 15 percent or a hydric soil, to the lesser of:
(i)
The landward boundary; or
(ii)
300 feet, including the buffer width required under §E(3) or (5)(a) of this regulation.
(8)
If a buffer is contiguous to a hydric soil or to a highly erodible soil on a slope less than 15 percent and that buffer is located on a lot or parcel that was created before January 1, 2010, a local jurisdiction may authorize a development activity in the expanded buffer if:
(a)
The location of the development activity is in the expanded portion of the buffer but not in the buffer required under §E(3) of this regulation;
(b)
The buffer occupies at least 75 percent of the lot or parcel; and
(c)
Mitigation occurs at a 2:1 ratio based on the lot coverage of the proposed development activity that is in the expanded buffer.
Regulation .01-1 Buffer Establishment.LinkCopy Citation
A.
Applicability.
(1)
The requirements of this regulation are applicable to:
(a)
A development or redevelopment activity that occurs on a lot or parcel that includes a buffer if that development or redevelopment activity is located outside the buffer; and
(b)
The approval of a subdivision that includes a buffer .
(2)
If an applicant for a subdivision of a lot under §A(1)(b)of this regulation uses or leases the lot for an agricultural purpose, the applicant:
(a)
In accordance with local land recordation requirements, shall record an approved buffer management plan under Regulation .01-3 of this chapter; and
(b)
If authorized by the local jurisdiction, may delay implementation of the buffer management plan until the use of the lot is converted to a nonagricultural purpose.
(3)
The requirements of this regulation are not applicable to an in-kind replacement of a structure.
B.
A local jurisdiction shall require an applicant to establish the buffer in vegetation in accordance with §C of this regulation and Regulation .01-2 of this chapter and to provide a buffer management plan under Regulation .01-3 of this chapter when an applicant applies for:
(1)
Approval of a subdivision;
(2)
Conversion from one land use to another land use on a lot or a parcel; or
(3)
Development on a lot or a parcel created before January 1, 2010.
C.
When the buffer is not fully forested or is not fully established in existing, naturally occurring woody or wetland vegetation, an applicant shall establish the buffer to the extent required in the following table:
D.
A local jurisdiction may authorize an applicant to deduct from the total establishment requirement an area of lot coverage removed from the buffer if:
(1)
The lot coverage existed before the date of local program adoption or was allowed by local procedures; and
(2)
The total area is stabilized.
Regulation .01-2 Mitigation and Planting Standards.LinkCopy Citation
A.
Applicability. The requirements of this regulation are applicable to a development or redevelopment activity that occurs on a lot or parcel that includes a buffer when that development or redevelopment activity is located inside the buffer.
B.
As applicable to a site, a local jurisdiction shall require that a buffer management plan in accordance with Regulation .01-3 of this chapter satisfy the planting and mitigation standards of this regulation and satisfy the buffer establishment standards required under Regulation .01-1 of this chapter so as to:
(1)
Prohibit the installation or cultivation of new lawn or turf on-site in the buffer;
(2)
Ensure the planting of native species in compliance with the amounts specified under §§C, D, H, J, and K of this regulation;
(3)
Ensure coverage of the buffer with mulch or native ground cover or both until buffer plantings are established; and
(4)
Ensure plantings are distributed throughout the buffer to provide optimum habitat and water quality benefits.
C.
Permanent Disturbance. As applicable to a site, a local jurisdiction shall calculate the cumulative amount of buffer mitigation required for permanent disturbance in accordance with the following standards:
(1)
Except as specified under §C(2) and (3) of this regulation, mitigation for a development or redevelopment activity in the buffer or for the removal of an individual tree, developed woodland, or forest shall be calculated:
(a)
According to the ratios under §H of this regulation; and
(b)
Based on the square footage of the area of the canopy coverage removed, as determined by the local jurisdiction.
(2)
For removal of a diseased, dying, invasive, or hazardous tree:
(a)
Mitigation shall be one tree of at least a 3/4-inch caliper for each tree removed; or
(b)
The affected area shall be stabilized in native woody vegetation, if a tree cannot be replanted due to space constraints.
(3)
For removal of a dead tree, the affected area shall be stabilized with native groundcover or other native vegetation as necessary.
D.
Temporary Disturbance. As applicable to a site, a local jurisdiction shall require that an area in the buffer that is temporarily disturbed by a development activity be restored to pre-disturbance conditions.
E.
Except as authorized under §F of this regulation, if mitigation planting cannot be located on-site within the buffer because of site constraints, a local jurisdiction shall require planting in the following order of priority:
(1)
On-site and adjacent to the buffer; and
(2)
On-site elsewhere in the Critical Area.
F.
A local jurisdiction may authorize payment of a fee in lieu of buffer mitigation under Regulation .01-5 of this chapter, but only if there is no feasible alternative.
G.
A local jurisdiction may authorize off-site planting in the buffer if this option is part of a local Critical Area program approved by the Commission or the subject of a written agreement between the local jurisdiction and the Commission.
H.
Permanent Disturbance. In accordance with the applicable activity, a local jurisdiction shall require the following ratios of mitigation for each permanent disturbance:
I.
A local jurisdiction may authorize an applicant to deduct from the total mitigation requirement an area of lot coverage removed from the buffer if:
(1)
The lot coverage existed before the date of local program adoption or was allowed by local procedures; and
(2)
The total area is stabilized.
J.
A local jurisdiction may authorize a combination of plantings for buffer mitigation in accordance with the following table:
K.
A local jurisdiction may authorize a combination of plantings and natural regeneration for buffer establishment in accordance with the following table:
L.
A local jurisdiction shall apply the following planting credits for the type and size of the vegetation proposed:
M.
A local jurisdiction may authorize an applicant to increase the percentage of large shrubs, small shrubs, or herbaceous perennials in a buffer management plan if:
(1)
The buffer has existing canopy coverage of at least 50 percent; or
(2)
Site constraints that preclude canopy planting, including severely eroding slopes, salt water intrusion, predominately sandy soils, or unconsolidated fill.
N.
All landscaping stock planted in accordance with §L of this regulation shall be 100 percent guaranteed for at least 2 years after planting is completed.
O.
A local jurisdiction may use the following table to allow flexible stocking size when authorized under §§J and K of this regulation:
P.
A local jurisdiction may not:
(1)
Authorize a variance to the planting and mitigation standards under this regulation; or
(2)
Issue a final use and occupancy permit for an application under Regulation .01-3B(2) of this chapter unless the applicant:
(a)
Completes the planting required under an approved buffer management plan; or
(b)
Pending completion of the planting required under an approved buffer management plan during the next planting season, provides financial assurance to cover the costs for:
(i)
Materials and installation; and
(ii)
In the case of a mitigation or establishment requirement that is at least 5,000 square feet, long-term survivability in accordance with the requirements of Regulation .01-3J(2)(d) of this chapter.
Q.
Before recordation of a final subdivision or final approval of a site plan for a multifamily, commercial, industrial, or institutional use, an applicant shall:
(1)
Post permanent signs delineating the upland boundary of the buffer at a ratio of at least one sign per lot or per 200 linear feet of shoreline, whichever is applicable; and
(2)
Design each sign required under §Q(1) of this regulation so that it:
(a)
Is at least 6 inches in width and 8 inches in height;
(b)
Is placed at a height of 4.5 feet, but not attached to a tree; and
(c)
Clearly states “Critical Area Buffer” No clearing or disturbance permitted".
R.
Concurrent with the recordation of a final plat and in accordance with Regulation .01-3 of this chapter, an applicant shall record an easement or similar instrument for a buffer management plan.
S.
A local jurisdiction may not approve a final subdivision application until the jurisdiction has reviewed and approved the buffer management plan submitted under Regulation .01-3 of this chapter.
Regulation .01-3 Buffer Management Plans.LinkCopy Citation
A.
The provisions of this regulation do not apply to maintenance of an existing grass lawn or an existing garden in the buffer.
B.
A local jurisdiction shall require an applicant proposing a development activity to submit a buffer management plan if:
(1)
The establishment of the buffer is required in accordance with Regulation .01-1 of this chapter; or
(2)
Disturbance to the buffer will result from the issuance of an authorization, including a:
(a)
Variance;
(b)
Subdivision approval;
(c)
Site plan approval;
(d)
Local approval of a shoreline stabilization measure, as authorized by the Board of Public Works or the Department of the Environment;
(e)
Building permit;
(f)
Grading permit;
(g)
Special exception; or
(h)
Permit or other approval by a local health department for the installation, repair, or replacement of a septic system.
C.
In accordance with the requirements under Regulations .01-1 and .01-2 of this chapter, a local jurisdiction shall require an applicant to submit a:
(1)
Simplified buffer management plan;
(2)
Minor buffer management plan; or
(3)
Major buffer management plan.
D.
A local jurisdiction may not approve a buffer management plan unless:
(1)
The plan clearly indicates that all planting standards under Regulation .01-2 of this chapter will be met; and
(2)
Appropriate measures are in place for the protection and maintenance of all buffer areas established under this regulation.
E.
A local jurisdiction may not issue a permit or other approval for a development activity under Regulation .01-1 or .01-2 of this chapter unless the local jurisdiction has approved the buffer management plan submitted under §C of this regulation.
F.
If an applicant fails to implement a buffer management plan, that failure shall constitute a violation of the local Critical Area program.
G.
A local jurisdiction may not issue a permit or other approval of a development activity for a property that is the subject of a violation under §F of this regulation.
H.
Simplified Buffer Management Plan.
(1)
Before the performance of an activity under this section in the buffer, a local jurisdiction shall require the applicant to submit a simplified buffer management plan as part of the application associated with any of the following activities:
(a)
Providing access up to 3 feet wide to a private pier or shoreline that is up to 3 feet wide;
(b)
Manually removing invasive or noxious vegetation;
(c)
Filling to maintain an existing grass lawn;
(d)
Managing storm damage;
(e)
Repairing or replacing a septic system; or
(f)
Except for an emergency situation under §H(2) of this regulation, cutting up to five dead, diseased, dying, invasive, or hazardous trees.
(2)
If cutting a tree in the buffer is immediately necessary because of an emergency situation, the applicant shall submit a simplified buffer management plan to the local jurisdiction at the earliest possible time after the tree has been cut.
(3)
A simplified buffer management plan shall include:
(a)
A brief narrative describing the proposed activity, including the anticipated start date and method to be used;
(b)
The proposed mitigation;
(c)
In the case of the removal of invasive or noxious species, the revegetation of the area in accordance with Regulation .01-2 B(1) and (3) of this chapter;
(d)
The proposed planting date; and
(e)
The signature of the party responsible for the proposed activity and for ensuring the survival of the planting.
I.
Minor Buffer Management Plan.
(1)
A local jurisdiction shall require an applicant to submit a minor buffer management plan for:
(a)
Establishment of less than 5,000 square feet of the buffer for an application listed under Regulation .01-1 of this chapter; or
(b)
A requested disturbance that requires less than 5,000 square feet of mitigation for an application listed under Regulation .01-2 of this chapter.
(2)
A minor buffer management plan shall include:
(a)
A plan that shows the proposed limit of disturbance, the total number and size of trees to be removed, if applicable, and the arrangement of the planting to be done;
(b)
A landscape schedule that shows the proposed species type, the quantity of plants, the size of plants to be installed, and the planting date;
(c)
A maintenance plan for the control of invasive species, pests, and predation that shows invasive species and pest control practices, the provision of at least 2 years of monitoring, and a reinforcement planting provision if survival rates fall below the standards in Regulation .01-2M and N of this chapter;
(d)
An inspection agreement that grants permission to the local jurisdiction to inspect the plantings at appropriate times;
(e)
If buffer establishment is required under Regulation .01-1 of this chapter, the information on which calculation of the amount of buffer to be planted was based;
(f)
If buffer mitigation is required under Regulation .01-2 of this chapter, the information on which calculation of the amount of the buffer to be planted was based; and
(g)
The signature of the party responsible for the proposed activity and for ensuring the survival of the planting.
J.
Major Buffer Management Plan.
(1)
A local jurisdiction shall require an applicant to submit a major buffer management plan for:
(a)
Establishment of at least 5,000 square feet of the buffer for an application listed under Regulation .01-1 of this chapter; or
(b)
A requested disturbance that requires at least 5,000 square feet of mitigation for an application listed under Regulation .01-2 of this chapter.
(2)
A major buffer management plan shall include:
(a)
A plan that shows the proposed limit of disturbance, the total number and size of trees to be removed, if applicable, and the arrangement of the planting to be done;
(b)
A landscape schedule that shows the proposed species type, the quantity of plants, the size of plants to be installed, and the planting date;
(c)
A maintenance plan for the control of invasive species, pests, and predation that shows invasive species and pest control practices, the provisions of at least 2 years of monitoring, and a reinforcement planting provision if survival rates fall below the standards in Regulation .01-2 M and N of this chapter;
(d)
A long-term protection plan that includes evidence of financial assurance that adequately covers the planting and survivability requirement, a provision for at least 2 years of monitoring as required in Regulation .01-2 M and N of this chapter, and if planting, an anticipated planting date before construction or the sale of the lot;
(e)
An inspection agreement that grants permission to the local jurisdiction to inspect the plantings at appropriate times;
(f)
If buffer establishment is required under Regulation .01-1 of this chapter, the information on which calculation of the amount of buffer to be planted was based;
(g)
If buffer mitigation is required under Regulation .01-2 of this chapter, the information on which calculation of the amount of the buffer to be planted was based; and
(h)
The signature of the party responsible for the proposed activity and for the survival of the planting.
(3)
For a major buffer management plan a single species may not exceed 20 percent of the total planting requirement.
Regulation .01-4 Natural Regeneration Requirements.LinkCopy Citation
A.
The provisions of this regulation are:
(1)
Applicable to a buffer management plan that includes natural regeneration; and
(2)
In addition to the requirements under Regulation .01-3 of this chapter.
B.
A local jurisdiction shall ensure that:
(1)
The buffer management plan does not include any new managed lawn or turf;
(2)
The natural regeneration area is within 300 feet of a mature forest of at least 1 acre that contains a seed bank of native species adequate for natural regeneration; and
(3)
The buffer management plan includes all of the information identified in §C of this regulation.
C.
The natural regeneration component of a buffer management plan shall consist of:
(1)
A site plan that includes:
(a)
Delineation of the proposed area within 300 feet of a mature forest that contains a seed bank of native species adequate to support natural regeneration;
(b)
The soil type; and
(c)
In accordance with Regulation .01-2P of this chapter, signage that delineates the natural regeneration area at one sign per 200 linear feet along the boundary of the area; and
(2)
A description in narrative form of:
(a)
Nearby seed sources of mature tree species;
(b)
Presence or absence of invasive species in the proposed natural regeneration area and in the nearby forest, and, if applicable, control practices for those invasive species;
(c)
Soil texture, soil moisture regime, sunlight exposure, and soil amendments of the proposed natural regeneration area;
(d)
Site preparation methods and timing;
(e)
A monitoring plan; and
(f)
A supplemental planting plan to be implemented in accordance with §D of this regulation; and
(3)
Financial assurance for at least 5 years that:
(a)
Is sufficient to cover the cost of planting an area equivalent to the area of proposed natural regeneration; and
(b)
Specifies that release of the financial assurance may not occur until the natural regeneration area, through natural growth and, if necessary, implementation of the supplemental planting plan, contains at least 300 live trees on a per acre basis that are at least 4 feet tall.
D.
Report, Inspection, and Procedures for Release of Financial Assurance.
(1)
Five years after the date of approval of a buffer management plan that includes natural regeneration, the party responsible for the development or redevelopment activity and the survival of the planting associated with that activity shall submit to the local jurisdiction a report for the natural regeneration area that contains:
(a)
Photographs of the natural regeneration area;
(b)
Based on standard sampling practices, an estimate of the number and average size of trees growing within the natural regeneration area on a per acre basis; and
(c)
A list of all plant species found within the natural regeneration area.
(2)
Upon receipt of the report, the local jurisdiction shall inspect the natural regeneration site.
(3)
If the natural regeneration area does not contain at least 300 live trees on a per acre basis that are at least 4 feet tall, the local jurisdiction may:
(a)
Extend the term of the natural regeneration and financial assurance to allow for up to 5 additional years of growth, if the report and inspection indicate viable progress toward natural regeneration; or
(b)
Require implementation of the supplemental planting plan provided in the natural regeneration component of the buffer management plan.
(4)
If the local jurisdiction extends the term of the natural regeneration and financial assurance to allow for additional growth under §D(3)(a) of this regulation, the local jurisdiction may increase the amount of financial assurance required.
(5)
Upon expiration of the time provided under an extension of the term of natural regeneration and financial assurance or under a supplemental planting plan:
(a)
The party responsible shall submit to the local jurisdiction an updated report that contains all the information required under §D(1) of this regulation; and
(b)
Upon receipt of the report, the local jurisdiction shall re-inspect the natural regeneration site.
(6)
At the end of 5 years after the date of approval of a buffer management plan that includes natural regeneration, at the end of a term extension provided under §D(3)(a) of this regulation, or at the end of the implementation of a supplemental planting plan required under §D(3)(b) of this regulation, if the natural regeneration area:
(a)
Contains at least 300 live trees on a per acre basis that are at least 4 feet tall, the local jurisdiction shall release the financial assurance; or
(b)
Does not contain at least 300 live trees on a per acre basis that are at least 4 feet tall, the local jurisdiction may not release the financial assurance.
(7)
At any time during the course of performance of a buffer management plan under this regulation, if a local jurisdiction determines that natural regeneration is not likely in the time anticipated in the buffer management plan and that the party responsible is no longer available to complete performance of the buffer management plan, the local jurisdiction may apply the financial assurance to the implementation of the supplemental planting plan.
Regulation .01-5 Fee In Lieu of Buffer Mitigation.LinkCopy Citation
A.
A local jurisdiction shall collect a fee in lieu of buffer mitigation if the planting requirements under Regulation .01-2 of this chapter cannot be met.
B.
A local jurisdiction shall:
(1)
Calculate the square footage of mitigation due in accordance with Regulation .01-2 of this chapter;
(2)
Except as provided under §C of this regulation, collect at least $1.50 per square foot of mitigation required;
(3)
Establish a special fund, which may not revert to the jurisdiction's general fund, for the collection of the fee in lieu of buffer mitigation; and
(4)
Use money from that fund only:
(a)
To establish the buffer on sites where planting is not a condition of development or redevelopment; or
(b)
For water quality and habitat enhancement projects, as described in a local Critical Area program approved by the Commission or in an agreement between the local jurisdiction and the Commission.
C.
A local jurisdiction may utilize a lesser fee in lieu of buffer mitigation that is based on an alternative to the amount required under §B of this regulation if:
(1)
The jurisdiction demonstrates that its proposed alternative will ensure the receipt of funds sufficient to administer a financially sound fee in lieu of buffer mitigation program, based on the following costs in that jurisdiction:
(a)
Planting materials;
(b)
Labor;
(c)
Land acquisition, either by fee simple or by easement;
(d)
Planting maintenance; and
(e)
Monitoring and administration of the special account; and
(2)
The Commission approves the lesser alternative proposed.
D.
Each year by April 1, on a form provided by the Commission, a local jurisdiction shall report to the Commission regarding the administration of its fee program and its special fund over the course of the previous calendar year, including:
(1)
The number of projects for which a fee was collected and the amount of the fee per project;
(2)
The total square footage of buffer impact that generated the fee;
(3)
A short description of each planting project, including the amount spent on each project;
(4)
The square footage area of buffer replanted;
(5)
The account balance as of December 31; and
(6)
If funds are purposely being held in the separate account in order to achieve a long-term purpose that is consistent with the local program polices and goals, the nature of that purpose and the projected time and funding that will be necessary to accomplish that purpose.
Regulation .01-6 Agricultural Activities.LinkCopy Citation
A.
The provisions of this regulation may not be construed to require a buffer or a vegetated filter strip for an agricultural drainage ditch, if the adjacent agricultural land has in place a soil conservation and water quality plan as required in COMAR 27.01.06.03.
B.
Agriculture is authorized in the buffer, if, as a minimum agricultural best management practice, a vegetated filter strip of at least 25 feet, measured landward from the mean high water line of tidal [waters or tributary streams or from the edge of tidal wetlands] waters, from the landward boundary of a tidal wetland, or from the edge of each bank of a tributary stream, whichever is farther inland, is established, and if:
(1)
The filter strip is composed of trees, shrubs, grass, or mixed vegetation and is managed as to provide water quality benefits and habitat protection consistent with the policies stated in Regulation .01 of this chapter. Noxious weeds, including Johnson grass, Canada thistle, and other invasive plants, such as multiflora rose, which occur in the filter strip, may be controlled by authorized means;
(2)
The filter strip is expanded by a distance of 4 feet for every 1 percent of slope, for slopes greater than 6 percent;
(3)
The filter strip is maintained until the landowner is implementing, under a soil conservation and water quality plan, a program of agricultural best management practices for the specific purposes of improving water quality and protecting wildlife and plant habitats, and if the portion of the soil conservation and water quality plan being implemented achieves the water quality and habitat protection objectives of the filter strip;
(4)
The feeding or watering of livestock does not occur within 50 feet measured landward from the mean high water line of tidal waters, from the landward boundary of a tidal wetland, or from the edge of each bank of a tributary stream, whichever is farther inland;
(5)
Clearing of existing natural vegetation in the buffer is prohibited; and
(6)
Agricultural activities, including the grazing of livestock, do not disturb stream banks, tidal shorelines, or other habitat protection areas covered, as applicable, in this chapter.
Regulation .01-7 Tree Clearing and Timber Harvesting.LinkCopy Citation
A.
In accordance with all of the following requirements, the buffer shall be managed to achieve or enhance the functions stated in Regulation .01 of this chapter:
(1)
Except as authorized under §A(2) of this regulation, a person may not cut or clear trees within the buffer; and
(2)
The commercial harvesting of trees may be authorized if:
(a)
The commercial harvesting is by:
(i)
Selection cutting; or
(ii)
The clearcutting of loblolly pine or tulip poplar;
(b)
The cutting or clearing is at least 50 feet:
(i)
Landward from the mean high water line of tidal waters;
(ii)
From the landward boundary of a tidal wetland; and
(iii)
From the edge of each bank of a tributary stream;
(c)
The cutting does not occur in the habitat protection areas described in COMAR 27.01.09.02.—05; and
(d)
The cutting is conducted in conformance with the requirements of COMAR 27.01.05 and in conformance with a buffer management plan prepared by a registered, professional forester and approved by the Department of Natural Resources.
B.
The buffer management plan shall be required for all commercial harvests within the buffer, regardless of the size of the area to be cut, and shall contain the following minimum requirements:
(1)
Disturbance to stream banks and shorelines shall be avoided;
(2)
The area disturbed or cut shall be replanted or allowed to regenerate in a manner that assures the availability of cover and breeding sites for wildlife, and reestablishes the wildlife corridor function of the buffer; and
(3)
The cutting does not involve the creation of logging roads and skid trails within the buffer.
C.
Commercial harvesting of trees, by any method, may be authorized up to the edge of each bank of an intermittent stream if the cutting is conducted in conformance with the requirements of §A(2)(c) of this regulation.
Regulation .01-8 Modified Buffer Area.LinkCopy Citation
A.
As part of the local Critical Area program to be submitted to the Commission, a local jurisdiction may request a modification to the minimum requirements applicable in the buffer where it can be sufficiently demonstrated that the existing pattern of residential, industrial, commercial, institutional, or recreational development in the Critical Area prevents the buffer from fulfilling the functions stated in Regulation .01 of this chapter.
B.
A local jurisdiction shall require mitigation for a development activity within an area mapped as a modified buffer area.
C.
A local jurisdiction may propose other measures for achieving the water quality and habitat protection objectives of the policies, including public education and urban forestry programs.
Regulation .02 Nontidal Wetlands.LinkCopy Citation
The provisions of COMAR 26.23.01 apply to nontidal wetlands in the Critical Area. A person conducting a regulated activity within nontidal wetlands in the Critical Area shall obtain a permit or other authorization from the Department of the Environment. Nothing in this regulation may be interpreted as altering any requirements for development activities set out in this subtitle.
Regulation .03 Threatened and Endangered Species and Species in Need of Conservation.LinkCopy Citation
A.
Repealed.
B.
Policy. In developing and updating its Critical Area program, a local jurisdiction shall provide protection for threatened and endangered species, species in need of conservation, and their habitats in the Critical Area.
C.
Criteria. In developing and updating its Critical Area program, a local jurisdiction shall use all of the following criteria:
(1)
Protection of the habitats of threatened and endangered species and species in need of conservation in cooperation with the expertise of the Department of Natural Resources and other appropriate public agencies and private organizations; and
(2)
These programs shall consist of at least one of the following elements:
(a)
Designation of a protection area around each of the habitats occurring in the jurisdiction within which development and other disturbances shall be prohibited, unless it can be shown that the development or disturbance will not have or cause adverse impacts on these habitats; or
(b)
Protection of the habitats of threatened and endangered species and species in need of conservation by means of acquisition, conservation easements, cooperative agreements with landowners, special provisions in forest management and soil conservation plans, or other methods approved by the Commission.
Regulation .04 Plant Habitat and Wildlife Habitat.LinkCopy Citation
A.
Repealed.
B.
Policies. In developing and updating its Critical Area program, a local jurisdiction shall:
(1)
Conserve plant and wildlife habitats in the Critical Area;
(2)
Protect plant and wildlife habitats that tend to be least abundant or which may become less abundant in the future if current land use trends continue;
(3)
Protect plant and wildlife habitats which are required to support the continued presence of species protected under the provisions of Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland, and this title;
(4)
Protect plant and wildlife habitats which are determined to be locally significant habitats; and
(5)
Protect natural heritage areas.
C.
Criteria. In developing and updating its Critical Area program, a local jurisdiction shall:
(1)
Include a plant and wildlife habitat protection program as an element of its Critical Area program. Each program shall be developed using the expertise of the Department of Natural Resources, the U.S. Fish and Wildlife Service, other appropriate agencies, and adjacent jurisdictions.
(2)
Ensure that each plant and wildlife habitat protection program consists of:
(a)
Identification of the following plant and wildlife habitats in the Critical Area:
(i)
Nesting sites of colonial nesting water birds;
(ii)
Waterfowl staging and concentration areas in tidal waters, tributary streams, or tidal and nontidal wetlands;
(iii)
Existing riparian forests, such as relatively mature forests of at least 300 feet in width which occur adjacent to streams, wetlands, or the shoreline of the Chesapeake Bay, the Atlantic Coastal Bays, or their tributaries;
(iv)
Forests utilized as breeding areas by forest interior dwelling birds and other wildlife species, such as relatively mature forests within the Critical Area of 100 acres or more, or forest connected with these breeding areas;
(v)
Other areas which may in the future be identified by State and federal agencies as important plant or wildlife habitat;
(vi)
Other plant and wildlife habitats determined to be of local significance; and
(vii)
Designated natural heritage areas.
(b)
Programs to conserve or protect the plant and wildlife habitats identified in §C(2)(a) of this regulation. Program objectives should include:
(i)
The establishment of buffers for nesting sites of colonial nesting water birds so that these sites are protected from the adverse impacts of development and from disturbance during the breeding season.
(ii)
The location of new water-dependent facilities so as to prevent disturbance to sites of significance to wildlife, such as aquatic staging and concentration areas for waterfowl.
(iii)
Protection measures, including a buffer where appropriate, for other plant and wildlife habitats identified in §C(2)(a)(v) of this regulation.
(iv)
Protection and conservation of forests required to support wildlife species identified in §C(2)(a)(iii) and (iv) of this regulation by developing management programs which have as their objective the conservation of wildlife that inhabit or use the areas. The programs should assure that development or the clearing or cutting of trees is conducted so as to conserve riparian habitat and forest interior dwelling birds and their habitat. Management measures may include incorporating appropriate wildlife protection elements into forest management plans, cluster zoning, or other site design criteria which provide for the conservation of plant and wildlife habitat. Measures may also include soil conservation plans that have plant and wildlife habitat protection provisions appropriate to the areas identified in §C(2)(a)(iii) and (iv) of this regulation and incentive programs which use the acquisition of easements and other similar techniques.
(v)
When development or cutting or clearing of trees occurs in a forest, a requirement that, to the extent practicable, corridors of existing forest or woodland vegetation be maintained to provide effective connections among wildlife habitats.
(vi)
The protection of plant and wildlife habitats considered to be locally significant habitats.
(vii)
The protection of a natural heritage area from alteration resulting from development or cutting or clearing so that the structure and species composition of the area are maintained.
(c)
The determination of the existence and extent of plant and wildlife habitats and the development of appropriate protection measures for these habitats shall result from a cooperative effort among a local jurisdiction, public agencies, and private organizations.
Regulation .05 Anadromous Fish Propagation Waters.LinkCopy Citation
A.
Definitions. In this regulation, the following terms have the meanings indicated:
(1)
“Anadromous fish propagation waters” means a tributary stream of the Chesapeake Bay or the Atlantic Coastal Bays that has been designated by the Department of Natural Resources as waters in which the spawning of an anadromous species occurs or has occurred.
(2)
“Stream” means anadromous fish propagation waters in the Critical Area that have been designated by the Department of Natural Resources.
B.
Policies. In developing and updating its Critical Area program, a local jurisdiction shall use all of the following policies with regard to anadromous fish:
(1)
Protect the instream and streambank habitat of anadromous fish propagation waters;
(2)
Promote land use policies and practices in the watershed of spawning streams within the Critical Area which will minimize the adverse impacts of development on the water quality of the streams; and
(3)
Provide for the unobstructed movement of spawning and larval forms of anadromous fish in streams.
C.
Criteria.
(1)
In developing and updating its Critical Area program, a local jurisdiction shall use all of the following criteria:
(a)
The installation or introduction of concrete riprap or other artificial surfaces onto the bottom of natural streams shall be prohibited unless it can be demonstrated that water quality and fisheries habitat can be improved;
(b)
Channelization or other physical alterations which may change the course or circulation of a stream and thereby interfere with the movement of fish shall be prohibited;
(c)
A local jurisdiction shall develop policies and programs for avoiding adverse impacts of any activities occurring on those portions of any watershed within the Critical Area which drain into anadromous fish spawning streams. These policies and programs shall address at least the following objectives:
(i)
Minimize development activities or other land disturbances in the watershed;
(ii)
Improve or, if improvement is not possible, maintain water quality and habitat in streams;
(iii)
Minimize, to the extent possible, the discharge of sediments into streams; and
(iv)
Increase or, if an increase is not possible, maintain the natural vegetation of the watershed; and
(d)
Each local jurisdiction is encouraged to adopt land use policies and programs in watersheds outside the Critical Area to minimize the impacts of any activities on anadromous fish spawning streams.
(2)
In developing and updating its Critical Area program, a local jurisdiction shall use all of the following complementary State statutes and regulations:
(a)
Environment Article, Title 5, Subtitle 5, Annotated Code of Maryland;
(b)
In accordance with COMAR 26.17.04.05, the construction or placement of dams or other structures that would interfere with or prevent the movement of spawning fish or larval forms in streams shall be prohibited. If practical, the removal of existing barriers shall be effected;
(c)
A local jurisdiction shall assure that the construction, repair, or maintenance activities associated with bridges or other stream crossings or with utilities and roads, which involve disturbance within the buffer or which occur instream, as described in COMAR 26.17.04.11B(5), shall be prohibited between March 15 and June 15, inclusive; and
(d)
Any other applicable State statute or regulation.
Chapter annotations
Authority: Natural Resources Article, §8-1806, 8-1808(c), 8-1808.4(a), and 8-1811, Annotated Code of Maryland
History: Effective date: May 13, 1986 (12:24 Md. R. 2352)
History: COMAR 14.15 became effective upon the enactment of Resolution No. 37 (SJ 9), Acts of 1986.
History: COMAR 14.15.09 recodified to COMAR 27.01.09 in August, 1992
History: Regulation .01 amended effective March 8, 2010 (37:5 Md. R. 428)
History: Regulation .01C amended effective February 8, 2010 (37:3 Md. R. 177)
History: Regulations .01-1—.01-7 adopted effective March 8, 2010 (37:5 Md. R. 428)
History: Regulation .02 repealed and new Regulation .02 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1651); emergency status expired April 1, 1994
History: Regulation .02 repealed and new Regulation .02 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1153); adopted permanently effective October 24, 1994 (21:21 Md. R. 1816)
History: Regulation .02 amended effective February 8, 2010 (37:3 Md. R. 177)
History: Chapter revised effective March 5, 2012 (39:4 Md. R. 339)
History: Regulation .01 amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01B amended effective March 8, 2021 (48:5 Md. R. 218); February 7, 2022 (49:3 Md. R. 139)
History: Regulation .01D amended effective October 29, 2012 (39:21 Md. R. 1380)
History: Regulation .01D, E amended effective January 6, 2014 (40:26 Md. R. 2165); March 6, 2023 (50:4 Md. R. 123)
History: Regulation .01-1A amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01-2A amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01-2D, H amended effective February 7, 2022 (49:3 Md. R. 139)
History: Regulation .01-2H amended effective March 6, 2023 (50:4 Md. R. 123)
History: Regulation .01-3B amended effective March 6, 2023 (50:4 Md. R. 123)
History: Regulation .01-3 B, E amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01-6 amended effective September 6, 2021 (48:18 Md. R. 694)
History: Regulation .01-6B amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01-7 amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .01-8 amended effective October 29, 2012 (39:21 Md. R. 1380)
History: Regulation .02 amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .03 amended effective November 4, 2019 (46:22 Md. R. 980)
History: Regulation .03C amended effective January 20, 2025 (52:1 Md. R. 19)
History: Regulation .04 amended effective November 4, 2019 (46:22 Md. R. 980); January 20, 2025 (52:1 Md. R. 19)
History: Regulation .05 amended effective January 20, 2025 (52:1 Md. R. 19)