Md. Code Regs. 26.23.02.04

Current through Register Vol. 51, No. 9, May 3, 2024

Section 26.23.02.04 - Criteria for Review of Nontidal Wetland Permit Applications

A. The Department may not issue a permit for a regulated activity unless the Department finds that the applicant has demonstrated that the:

(1) Proposed project is water dependent and requires access to a nontidal wetland as a central element of its basic function under the criteria in §§B and C of this regulation, or is not water dependent, and has no practicable alternative under the criteria in §D of this regulation;

(2) Regulated activity will first avoid and then minimize adverse impacts to the nontidal wetland based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the criteria in Regulation .05B of this chapter;

(3) Regulated activity does not cause or contribute to a degradation of ground waters or surface waters under the criteria in Regulation .06A of this chapter; and

(4) Proposed project is consistent with any comprehensive watershed management plan developed or approved by the Department under Environment Article, § 5-908, Annotated Code of Maryland.

B. Water Dependency Test.

(1) A proposed project is considered water dependent if the use of surface water or a nontidal wetland would be essential to fulfill the basic purpose of the proposed project.

(2) The Department shall apply the following criteria in determining whether a proposed project is water dependent:

(a) Whether an alternate water source is available for use, including surface runoff or ground water that may have fewer adverse impacts on nontidal wetlands; and

(b) Whether the use of a nontidal wetland would only enhance a project rather than function as an essential element of a project.

(3) In determining whether a proposed project is water dependent, the Department shall consider the applicant's definition of project purpose but may independently determine whether the proposed project is water dependent.

(4) For a multiple use project which has both water-dependent and non-water-dependent features, the Department shall determine which features are water dependent.

C. Access Test.

(1) In determining whether the proposed project requires access to a nontidal wetland as a central element of its basic function, the Department shall consider whether access could be accomplished at another location that would first avoid and then minimize nontidal wetland impacts.

(2) A water-dependent project which the Department determines requires access to a nontidal wetland is exempted from the requirements of §D of this regulation, but shall comply with all other requirements referenced in §A of this regulation.

D. Practicable Alternative Analysis.

(1) The applicant shall demonstrate to the satisfaction of the Department that practicable alternatives, including both alternative site analysis and on-site minimization, have been analyzed and that the proposed regulated activity has no practicable alternative.

(2) In determining whether the proposed regulated activity has a practicable alternative, the Department shall consider whether:

(a) The basic project purpose cannot be reasonably accomplished using one or more other sites in the same general area as the proposed project that would avoid or result in less adverse impact to nontidal wetlands under the criteria in Regulation .05 of this chapter. The Department shall consider the applicant's definition of the general area, but may make an independent determination.

(b) A reduction in the size, scope, configuration, or density of the proposed project and all alternative designs that would avoid or result in less adverse impact to nontidal wetlands would not accomplish the basic purpose of the project, under the criteria in Regulation .05B of this chapter.

(c) The applicant has made a good faith effort to accommodate site constraints such as inadequate zoning, infrastructure, or parcel size, that caused an alternative to the proposed regulated activity and project to be rejected. To determine if an applicant has made a reasonable effort to accommodate constraints, the Department shall consider any pertinent information, including:

(i) Correspondence or other written documentation between an applicant and a local authority, including a request for a special exception or other zoning variance;

(ii) Evidence of efforts to modify the local infrastructure, including future planned expansions or redesign of the project because of a potential nontidal wetland impact; and

(iii) Written documentation of efforts undertaken to acquire another site or reconfigure the proposed project to accommodate the constraint.

(d) The regulated activity is necessary for the project to meet a demonstrated public need. The following apply:

(i) To determine if the regulated activity is necessary for the proposed project to meet a demonstrated public need, the Department shall consider any pertinent information, including the economic value that the proposed project contributes to an identified State or local economic priority and if the proposed project promotes the public health, safety, or welfare.

(ii) In weighing the economic value of the proposed project in meeting a demonstrated public need in the general area, and the ecological and economic value associated with the nontidal wetland, the Department shall consider the functions of, and benefits and economic value provided to the general public by, the nontidal wetland adversely impacted by the regulated activity, and the ability of the nontidal wetland to continue to provide those identified functions and benefits to the general public.

Md. Code Regs. 26.23.02.04

Regulations .04 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .04 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151);
Regulations .04 amended permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .04 were recodified, under COMAR 08.05.04 Nontidal Wetlands, June 1996