Md. Code Regs. 26.23.02.05

Current through Register Vol. 51, No. 10, May 17, 2024

Section 26.23.02.05 - Alternative Site and Avoidance and Minimization Analyses

A. Alternative Sites.

(1) An applicant shall prove to the Department's satisfaction that alternative sites for the proposed project have been examined during the initial planning phase.

(2) An applicant shall search during the initial planning phase for one or more alternative sites that meet the basic project purpose and would result in less or no adverse impact to nontidal wetlands.

(3) Determining the Initial Planning Phase.

(a) The intent of this section is to require an applicant to evaluate the feasibility of the project and the adverse impact on nontidal wetlands at the earliest stage of the development process, before the applicant has committed substantial resources in the project site. Consideration of alternative sites at the earliest stage enables the applicant to retain the flexibility to avoid adverse impacts to nontidal wetlands.

(b) An applicant shall select the earliest of the following times as the initial planning phase for the proposed project:

(i) When an applicant conducts a formal or informal feasibility or market study, prepares an environmental impact statement or assessment, or a similar study for the project;

(ii) When an applicant enters into an option agreement or contract of sale for the property;

(iii) When an applicant applies for a building permit, subdivision or infrastructure approval, zoning change, or any other local governmental approvals for the project;

(iv) At the time an applicant applies for a permit under this subtitle;

(v) When a budget or financing request is secured; or

(vi) Any other appropriate time selected by the applicant.

(c) For the time selected in §A(3)(b) of this regulation, an applicant shall provide a written justification of the selection, including copies of any documentation supporting the selection and an explanation of why earlier times would be inappropriate or inapplicable to the proposed project.

(d) While the Department will give serious consideration to the initial planning phase selected by the applicant, the Department reserves the right to require additional information from the applicant concerning the initial planning phase selection or independently to determine the appropriate time.

(4) To determine if the project purpose cannot be reasonably accomplished by using other sites, the Department shall, if applicable, consider:

(a) Whether an applicant has made and can document a good faith effort to analyze alternative sites in the general area during the initial planning phase of the proposed project to first avoid and then minimize adverse impacts to nontidal wetlands;

(b) Whether an applicant has made and can document attempts to obtain land ownership interests or other rights to conduct the proposed project activity on alternative sites which avoid and minimize impact to nontidal wetlands;

(c) The total number of alternative sites and the physical, economic, and demographic characteristics of the alternative sites considered by an applicant;

(d) The physical, economic, and demographic requirements of the proposed project relative to the alternative sites analyzed;

(e) The degree to which use of potential alternative sites is constrained by other governmentally imposed restrictions and requirements, including concern for avoidance of environmental, social, community, archaeological, historic, and parkland impacts;

(f) Efforts undertaken to reduce adverse impacts to nontidal wetlands through consideration of reduction of proposed density or other site designs or project configuration on each alternative site analyzed; and

(g) The costs of fulfilling potential mitigation requirements for the project on the selected or alternative site.

(5) An alternative site may not be excluded from consideration during the initial planning phase because it includes or requires an area not owned by the applicant which could reasonably be obtained, used, expanded, or managed to fulfill the basic purpose of the proposed project.

B. Avoidance and Minimization Analysis.

(1) The applicant shall demonstrate to the Department's satisfaction that all necessary steps have been taken to first avoid and then minimize adverse impacts to the nontidal wetlands. Losses of nontidal wetlands shall be permitted only when adverse impacts to nontidal wetlands are necessary and unavoidable.

(2) In reviewing the sufficiency of the applicant's efforts to first avoid and then minimize adverse impacts to a nontidal wetland by a reduction in the size, scope, or density of the proposed project, or by an alternative configuration or design, the Department shall include consideration of:

(a) The spatial requirements of the proposed project;

(b) The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project;

(c) The purpose of the proposed project, and how the purpose relates to placement, configuration, or density;

(d) Sensitivity of the site design to nontidal wetlands;

(e) An applicant's efforts to:

(i) Reduce the scope of the proposed project;

(ii) Remove or accommodate site constraints including zoning, infrastructure, access, or natural features; and

(iii) Otherwise avoid or minimize adverse impacts; and

(f) The costs of fulfilling potential mitigation requirements based on the proposed project configuration or design versus the alternative project configuration or design.

(3) The Department shall consider pertinent factors when evaluating the extent to which a proposed project has avoided, or the regulated activity has minimized, direct or indirect adverse impacts to nontidal wetlands under this section, including:

(a) Reduction in acreage of a nontidal wetland affected by a regulated activity;

(b) Harm to a threatened or endangered species or species in need of conservation, or to the critical habitat of these species;

(c) Movement of wildlife indigenous to the nontidal wetland or water body;

(d) Ability of the nontidal wetland to continue to support and provide habitat for those species of wildlife using the area;

(e) Hydrologic regime of the areas upstream and downstream of the area of impact;

(f) Functions of the impacted or adjacent nontidal wetlands;

(g) Passage of normal or expected high flows, or the relocation of water;

(h) Subsurface water flow into or out of any nontidal wetland area;

(i) Presence of fish spawning areas;

(j) Presence of areas having significant plant or wildlife value; and

(k) Cumulative impact to nontidal wetlands.

Md. Code Regs. 26.23.02.05

Regulations .05 were recodified, under COMAR 08.05.04 Nontidal Wetlands, June 1996