Chapter 05. State Agency Actions Resulting in Development on State-Owned Lands

In this chapter, the following words have the meanings indicated.

Terms Defined.

A program or class of activities for which the Commission has issued a general approval under COMAR 27.02.03; or

A duly executed Memorandum of Understanding between the agency and the Commission that is applicable to the agency’s proposed development.

If State-owned land is classified as a resource conservation area under COMAR 27.01.02.05 and 27.01.11, that classification may not change the total acreage of growth allocation available to the local jurisdiction where the land is located; and

Development on State-owned land classified by a local jurisdiction as a resource conservation area may not diminish the total acreage of growth allocation available to that jurisdiction.

The requirements under Regulations .03—.15 of this chapter and the likely effects of these requirements on a development project, including the fee simple acquisition or disposal of land in the Critical Area; and

Climate resilient practices that address coastal hazards, extreme weather events, sea level rise, and other impacts.

The commencement of construction or the issuance of a request for proposal for site design, development, or engineering; or

For a major transportation capital project, as defined in Transportation Article, §2-103.1, Annotated Code of Maryland, the final project planning phase.

A description of the development project;

Findings that the development project complies with all requirements under Regulations .03—.15 of this chapter, as applicable;

All information and documentation required by the Commission; and

If applicable, findings under COMAR 27.02.06.

Shall:

May approve, deny, approve with conditions, or send back the proposed development project, based on an assessment of the extent to which the project complies with the requirements under Regulations .03—.14 of this chapter.

To the maximum extent practicable, a State agency shall locate development outside the Critical Area;

A State agency may not locate a solid or hazardous waste acceptance facility on State-owned land in the Critical Area; and

Except in the buffer, a State agency may apply, or authorize the application of, sludge in the Critical Area if the application:

Shall demonstrate to the Commission that the development project has received all applicable federal and State authorizations, including approvals related to stormwater management and soil erosion and sediment control;

Shall comply with the habitat protection area requirements under Regulations.09—.13 of this chapter;

Shall, to the maximum extent practicable:

When cutting or clearing trees located in a forest or developed woodland or altering a forest or developed woodland, shall:

If development is likely to result in an adverse off-site impact on the Critical Area of a local jurisdiction, shall, with the proposal and findings required under Regulation .02 of this chapter, describe:

Except as authorized under §E(1) of this regulation, may not locate a development project on a site where that project or a related project would cross or impact a stream;

Except as authorized under §E(2) of this regulation, may not locate a road, bridge, or utility in a habitat protection area designated under COMAR 27.01.09;

Shall demonstrate to the Commission that the development will comply with all stormwater pollutant reduction requirements that are applicable under the Critical Area Program;

Shall demonstrate to the Commission that:

Shall replant at a ratio of at least 3:1 of the entire areal extent of a cleared forest or developed woodland if the agency:

Demonstrate to the Commission why that impact is unavoidable;

Provide an assessment of the ecological features on site that could be enhanced, restored, or created in order to maintain existing wetland functions and to provide additional protection against future sea level rise and coastal storm impacts; and

Make recommendations regarding the most feasible methods to address the detrimental impact and the enhancement, restoration, and creation of natural features on site.

The location and design of the project will minimize impacts from coastal hazards and sea level rise; and

Long-term access has been considered.

Development on a site where the project would cross or impact a stream if:

A road, bridge, or utility in a habitat protection area if:

Shall provide an offset if the stormwater management technology authorized under §B(8) of this regulation does not reduce pollutant loading by at least 10 percent:

May provide the offset off site if:

The development project has received all applicable federal and State authorizations; and

Development on any fastland created by the agency will be consistent with the requirements of this chapter.

Plant native vegetation and minimize areas maintained as lawn or turf; and

Utilize pervious surfaces rather than impervious surfaces on the development site.

Except as authorized under §D(2) of this regulation, a State agency shall locate a port or an industrial facility in an intensely developed area and as close as possible to an already-existing port or facility if the port or facility uses water for transportation and derives an economic benefit from shore access.

A State agency may identify an alternative to the location specified under §D(1) of this regulation for future port or industrial facility development and use if the alternative location:

Subject to the requirements under §E(2) of this regulation, a State agency may locate a new facility or other new development that has the potential for adversely affecting water quality or fish, wildlife, and plant habitats in the Critical Area only if the facility or development is located in an intensely developed area.

An agency may locate, or authorize the location of, the following facilities or types of development in an intensely developed area:

Except as authorized under §D of this regulation, may remove up to 20 percent of the areal extent of forest or developed woodland, and shall maintain the remaining percentage as forest or developed woodland;

On a slope measuring at least 15 percent, as measured before development, may not propose a disturbance, unless the disturbance is the only effective way to stabilize the slope;

May not design or construct a development project that exceeds 15 percent of the lot coverage on:

If there is no forest or developed woodland established on a proposed development site, shall:

More than 20 percent and up to 30 percent of the areal extent of a forest or developed woodland if:

More than 30 percent of the areal extent of a forest or developed woodland if:

A State agency shall comply with all of the provisions under Regulation .03-2 of this chapter, except that the prohibition under Regulation .03-2C(3) is not applicable in the resource conservation area;

A State agency may not design or construct a development project that exceeds 15 percent of the lot coverage on:

Overall density may not exceed one dwelling unit per 20 acres.

Approved by the Commission under the provisions of COMAR 27.02.03 or 27.02.06; or

In accordance with a duly executed Memorandum of Understanding between the agency and the Commission.

The facility or activity is water-dependent;

The facility or activity meets a recognized public need;

Adverse impacts on water quality and fish, wildlife, and plant [habitat] habitats are first avoided or, if unavoidable, minimized; and

A nonwater-dependent project associated with the water-dependent facility or activity is located outside the buffer;

A beneficial use approved by the Board of Public Works or the Department of the Environment, such as:

Placement in an area that was approved for the disposal of channel maintenance dredged material before June 11, 1988; and

The avoidance or, if unavoidable, the minimization of impacts to fish, wildlife, or plant habitat; and

Mitigation at a ratio of 1:1 based on the square footage of the area of the canopy coverage removed.

The impact on the water body upon which the water-dependent facility or activity is proposed that would likely result from the approval of that location, including:

Disturbance to:

Avoidance of disturbance to water quality and aquatic or terrestrial habitat resulting from the method or manner of dredging; and

Avoidance or, if avoidance is not possible, minimization of:

May locate a water-dependent industrial or port-related facility or activity in the buffer if:

Shall require that the operation of each commercial marina and each related commercial maritime facility or activity complies with:

May develop a commercial marina or a related commercial maritime facility or activity in the buffer of a resource conservation area, upon full satisfaction of all the requirements under §B(4)(a) of this regulation;

May locate:

As applicable, if an associated nonwater-dependent project is located outside the buffer, may locate in the buffer a research-associated water-dependent facility or activity or an education-associated water-dependent facility or activity; and

May locate the following facilities and activities in the buffer:

Prioritization of the preservation of the natural shoreline;

Protection of significantly eroding portions of the shoreline in the Critical Area; and

In order to conserve and protect plant, fish, and wildlife habitat, the use of appropriate shoreline stabilization measures that effectively and practically reduce shore erosion.

In accordance with COMAR 26.24.04.01-1, adherence to the structural shoreline stabilization maps developed and maintained by the Department of the Environment;

In accordance with Environment Article, §16-201(c), Annotated Code of Maryland, and COMAR 26.24.04.01, prohibition of the use of a structural shoreline stabilization measure in an area where no significant shore erosion occurs; and

Performance of mitigation measures applicable to the type of shoreline stabilization measure to be undertaken, as specified in the Commission form entitled “Shoreline Stabilization Measure Buffer Management Plan”.

A forest management plan shall be required for all timber harvesting occurring within any 1-year interval and affecting at least 1 acre of forest and developed woodland in the Critical Area. The plans shall be prepared by a registered professional forester and be reviewed and approved by the Department of Natural Resources. Plans shall include measures to protect surface and ground water quality, identify whether the activities will disturb or affect habitat protection areas as identified in Regulations .09—13 of this chapter, and incorporate protection measures for these areas. To provide for the continuity of habitat, the plans shall address mitigation through forest management techniques which include scheduling size, timing and intensity of harvest cuts, afforestation, and reforestation;

A sediment control plan shall be required for all harvests of at least 5,000 square feet of disturbed area in the Critical Area, including harvesting on agricultural lands. This plan shall be developed according to the guidelines established by the Department of Natural Resources. The operations shall be implemented in accordance with specifications set out by the local soil conservation district and the Department of Natural Resources; and

The cutting or clearing of trees within the buffer, as described in Regulation .09 of this chapter, shall be in accordance with that regulation.

Adverse impact to a habitat protection area covered in Regulations .09—.13 of this chapter, as applicable, is avoided; and

The experimental activity is approved by the State Department of Agriculture and the University of Maryland.

Each agricultural operation has in place and is implementing a current:

Agricultural activities authorized in the buffer are in accordance with Regulation .09 of this chapter; and

The creation of new agricultural land is not accomplished:

“Affected land” has the meaning stated in Environment Article, §15-801, Annotated Code of Maryland.

“Borrow pit” has the meaning stated in Environment Article, §15-801, Annotated Code of Maryland.

“Mineral” has the meaning stated in Environment Article, §15-801, Annotated Code of Maryland.

“Overburden” has the meaning stated in Environment Article, §15-801, Annotated Code of Maryland.

“Reclamation” has the meaning stated in COMAR 27.01.07.01.

“Spoil pile” has the meaning stated in Environment Article, §15-801, Annotated Code of Maryland.

“Surface mining” has the meaning stated in COMAR 27.01.07.01.

“Wash plant” has the meaning stated in COMAR 27.01.07.01.

The substantial loss of renewable resource land; and

The degradation of water quality; and

Utilization of all available measures to protect the Critical Area from all sources of pollution resulting from that activity, including sedimentation and siltation, chemical and petrochemical use and spillage, and storage or disposal of waste, dust, or spoil; and

Facilitation of site reclamation, including renewable resource land, as soon as possible and to the maximum extent possible.

In accordance with the provisions of COMAR 27.01.09, a habitat protection area;

An area where highly erodible soil exists; and

An area that is within 100 feet 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, unless:

In accordance with the requirements of COMAR 27.01.09.01E(3)—(7), the agency shall measure the buffer at least 100 feet;

Development activities, including structures, roads, parking areas, and other lot coverage areas, mining and related facilities, and septic systems, are not authorized in the buffer, except for those necessarily associated with water-dependent facilities or activities as defined in Regulation .04 of this chapter;

The buffer shall be maintained in natural vegetation, but may include planted vegetation where necessary to protect, stabilize, or enhance the shoreline;

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, 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:

The buffer shall be managed to achieve or enhance the functions stated in COMAR 27.01.09.01C. A person may not cut or clear trees within the buffer, except that:

When agricultural use of lands within the area of the buffer ceases and the lands are proposed to be converted to other uses, the buffer shall be established. In establishing the buffer, management measures shall be undertaken to provide forest vegetation that assures the buffer functions as set forth in the policies stated in COMAR 27.01.09.01C;

The agency shall expand the buffer beyond 100 feet to include contiguous, sensitive areas, such as steep slopes, hydric soils, or highly erodible soils, whose development or disturbance may impact streams, wetlands, or other aquatic environments. In the case of contiguous slopes of 15 percent or greater, the buffer shall be expanded 4 feet for every 1 percent of slope, or to the top of the slope, whichever is greater in extent; and

The agency may request from the Commission a modification of the Critical Area buffer requirements if it can be sufficiently demonstrated that the existing pattern of development in the Critical Area prevents the buffer from fulfilling the functions stated in COMAR 27.01.09.01C. If a modification is requested, the agency shall propose other measures for achieving the water quality and habitat protection objectives of the policies.

With the assistance of the Department of Natural Resources, identify any habitats of threatened or endangered species, or species in need of conservation that may be affected by the development;

Utilizing the expertise of the Department of Natural Resources, develop programs to protect the habitats of threatened and endangered species and species in need of conservation as identified in §B(1) of this regulation; and

Ensure that these programs consist of at least one of the following elements:

With the assistance of the Department of Natural Resources, identify the following wildlife and plant habitats that may be affected by the development:

The agency shall develop protection measures for the wildlife and plant habitats identified under §B(1) of this regulation as follows:

“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.

“Stream” means anadromous fish propagation waters in the Critical Area that have been designated by the Department of Natural Resources.

The agency shall, with the assistance of the Department of Natural Resources, identify whether the development will occur in the watersheds of anadromous fish spawning streams;

If the development will occur in those watersheds, all of the following measures shall be used:

State agencies shall use all of the following complementary State statutes and regulations:

The agency shall identify areas within the Critical Area where natural parks could be established, and consider conserving these features through acquisitions, easements, designation, or other appropriate means. Parks should not be chosen to preserve only natural curiosities, but they should be planned to include examples of coastal ecosystems that are found within the State, each with its geological and biological resources intact. Park boundaries should be based on biological necessity rather than administrative convenience.

Any plans developed for the use of parks should recognize that all natural terrain has a finite capacity to tolerate human disturbances and, therefore, should give utmost attention to limiting the number of park visitors in any park at any one time or in the course of a season.

In this regulation and in Regulations .15-1 through .15-3 of this chapter, the following terms have the meanings indicated.

Terms Defined.

The provisions of this regulation may not be construed to limit the authority of the Public Service Commission under Public Utilities Article, §7-207, Annotated Code of Maryland.

The requirements of this regulation are applicable to major and minor solar energy generating systems.

A State agency may locate a solar energy generating system constructed or established in the Critical Area in accordance with Regulation .15-1 of this chapter.

A State agency may locate a major solar energy generating system in the resource conservation area in accordance with Regulation .15-2 of this chapter.

A State agency may locate a solar energy generating system in a modified buffer area if the project is located over existing, legally developed lot coverage as described in Natural Resources Article, §8-1808.3, Annotated Code of Maryland.

Except for a regulated activity that is authorized by the Department of the Environment in accordance with COMAR 26.23.02, a State agency may not locate a solar energy generating system:

For a minor solar energy generating system, the solar panel shall be:

For a major solar energy generating system the solar panel shall be:

Measure and delineate the buffer in accordance with COMAR 27.01.09.01E(3)—(7);

Unless there is no feasible alternative, limit access through the buffer to the project area; and

When there is no feasible alternative to access through the buffer, locate one point of access through the buffer to the project area, or where a solar energy generating system includes noncontiguous parcels, minimize the number of access points through the buffer and:

In a limited development area, limit clearing of forest and developed woodlands to 20 percent of the entirety of the forest and developed woodlands in the project area; and

In a resource conservation area, limit clearing of forest and developed woodlands to 10 acres or 20 percent of the entirety of the forest and developed woodlands in the project area, whichever is less.

15 percent of the total project area in a limited development area; and

20 percent of the total project area in a resource conservation area.

Plant on-site in one of the following planting areas:

If approved by the Commission:

The area under the solar panels; or

Replanting required in Regulation .15-1D and F of this chapter.