Md. Code Regs. 08.19.02.02

Current through Register Vol. 51, No. 19, September 20, 2024

Section 08.19.02.02 - Criteria for Evaluating Local Programs

A. A local authority shall submit a proposed forest conservation program to the Department, for the Department's review and approval, which meets or is more stringent than the requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland.

B. General Criteria. The forest conservation program of a local authority shall include:

(1) A policy document that contains a brief overview of the purpose and intent of the program;

(2) The requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, and the elements of each Article of the Model Forest Conservation Ordinance provided in COMAR 08.19.03 enacted in substantively similar form as:

(a) Local law, regulation, or ordinance; or

(b) Amendments to existing local laws, regulations, or ordinances;

(3) A technical manual which:

(a) Adopts standards of Natural Resources Article, §§5-1601 -5-1613, Annotated Code of Maryland, and this regulation, for approval of forest stand delineation and forest conservation plans; and

(b) May be modeled after the State Forest Conservation Technical Manual;

(4) An explanation of how the local code provisions are consistent with Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland;

(5) A certification by the chief legal officer of the local authority or the chief executive officer that thresholds and standards have been adopted as stated in Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland; and

(6) Any other provisions necessary to implement the requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, and this subtitle.

C. Under the administrative review, approval, and appeal procedures, the local authority shall demonstrate that:

(1) The review process for the forest stand delineation, simplified forest delineation plan, or substitute plan permitted under Natural Resources Article, §5-1604(b)(2), Annotated Code of Maryland, and the forest conservation plan is consistent with the local development review process;

(2) Approval of a subdivision, project plan, or issuance of either a grading or sediment control permit, is contingent upon the approval of a forest conservation plan; and

(3) The hearing and appeal procedures are consistent with the local appellate review procedures.

D. The local authority may provide incentives including:

(1) Cost share programs for forest management;

(2) Tax incentives;

(3) Information about State and federal programs;

(4) Provisions for forest mitigation banks; and

(5) Other provisions for conservation of forests that are consistent with Natural Resources Article, §§5-1601 -5-1612, and the local comprehensive land use plan and that are approved by the Department.

E. Effective Date Criteria.

(1) For the purpose of COMAR 08.19.01.04D, a local jurisdiction shall cross-reference as part of its forest conservation program those other current local criteria for final subdivision, project plan, grading, or sediment and erosion control plan approval that apply to a determination of substantive completeness of an application.

(2) The Department is responsible for assuring that the information referenced in §E(1) of this regulation is available for affected parties on or before July 1, 1992.

F. Activities which are granted an exemption from the local program are limited to those activities that:

(1) Are designated in COMAR 08.19.01.04A;

(2) Meet criteria established in the local program approved by the Department that demonstrate that the activities meet the:

(a) Thresholds and standards for forest retention and protection as set forth in Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland; and

(b) Standards for sensitive areas protection as established under Article 66B, §§ 3.05 -3.06, Annotated Code of Maryland, and adopted in a local land use plan as defined in Article 66B, § 1.00(f), Annotated Code of Maryland.

G. Protective measures required by this subtitle include:

(1) A 2-year maintenance agreement for afforestation and reforestation projects;

(2) Long-term measures to retain as forest all land forested, afforested, or reforested, including but not limited to protective agreements such as conservation easements, approved forest management plans, Forest Conservation and Management Agreements, deed restrictions, covenants, or land trusts; and

(3) A final development plat or subdivision document which shows the areas held under those protective measures.

H. Variance. The local program shall contain a provision that:

(1) Notice of a variance request shall be given to the Department within 15 days of the local program's receipt of the request; and

(2) Establishes the right and authority of the Department to initiate or intervene in an administrative, judicial, or other original proceeding or appeal in the State concerning an approval of a variance under Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, or this subtitle.

I. Local Forest Conservation Fund.

(1) A local forest conservation fund may be established for:

(a) Payments by a person made instead of afforestation or reforestation after demonstrating to the satisfaction of the local authority that the requirements of afforestation or reforestation onsite or offsite cannot be reasonably accomplished and appropriate credits generated by a forest mitigation bank in the same county or watershed are not available; and

(b) Fines collected from persons in noncompliance with this subtitle or Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland.

(2) Money deposited in a local forest conservation fund under §I(1)(a) of this regulation may only be used for the costs associated with afforestation or reforestation, including costs directly related to site identification, acquisition, preparation, maintenance of existing forests, and achieving urban canopy goals.

(3) Money deposited in a local forest conservation fund under §I(1)(b) of this regulation may be used by the local authority for the purpose of implementing this subtitle.

(4) If the local authority does not establish a forest conservation fund, the local authority:

(a) Shall provide written notice to an applicant that the applicant shall demonstrate to the satisfaction of the Department and local authority that reforestation or afforestation onsite or offsite cannot be reasonably accomplished;

(b) Shall forward the tentatively approved forest conservation plan to the Department for final review before a determination that the payment into the Department's fund may be permitted; and

(c) May not provide final approval of the applicant's forest conservation plan and the applicant may not deposit money into the Department's fund, until the Department has given notice to the local authority that the Department concurs that afforestation and reforestation cannot be reasonably accomplished.

(5) A local authority that has an established forest conservation fund shall provide to the Department and make available to the public:

(a) A general plan identifying appropriate and potentially available areas for mitigation projects; and

(b) Detailed accounting procedures for accurately tracking money received into and expended out of the forest conservation fund.

J. The local authority may include the following process for submittal of a forest conservation plan:

(1) A preliminary forest conservation plan, which shall be reviewed at the first formal stage in the review process; and

(2) A final forest conservation plan, which shall be reviewed with the final subdivision or site plan as provided in Natural Resources Article, §5-1605(d), Annotated Code of Maryland.

K. The local authority may allow an applicant to file the forest stand delineation and the forest conservation plan in a single submittal if the following requirements are met:

(1) The procedure is limited to minor development projects; and

(2) The local authority demonstrates that the procedure:

(a) Is consistent with the procedural requirements in Natural Resources Article, §§5-1604 and 5-1605, Annotated Code of Maryland, and this subtitle; and

(b) Complies with the standards and requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, or this subtitle.

L. The local program may substitute for the declaration of intent a procedure that assures exempted activities do not circumvent the requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, or this subtitle.

M. Forest Stand Delineations.

(1) A local program may include other requirements than those referenced in Natural Resources Article, §5-1604(b)(1) -(3), Annotated Code of Maryland, for the approval of a forest stand delineation, if the following conditions are met:

(a) The standards of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, and this subtitle are met; and

(b) The forest stand delineation, simplified forest stand delineation, or substitute plan permitted under Natural Resources Article, §5-1604(b)(2), Annotated Code of Maryland, is:

(i) Conducted on the entire site; and

(ii) Used during the local preliminary review process to determine the most suitable and practical areas for forest conservation.

(2) A local program may adopt the standards for forest stand delineations in COMAR 08.19.04 or procedures as described in the State Forest Conservation Technical Manual.

N. Linear Project Applications.

(1) A local authority may adopt standards and requirements for linear project applications if the following conditions are met:

(a) The local authority demonstrates to the Department that the standards and requirements are consistent with Natural Resources Article, §§5-1601 -5-1613, Annotated Code of Maryland, and this subtitle;

(b) The projects are limited to those defined in COMAR 08.19.01.03B;

(c) The net tract area of a linear project is consistent with the definition in COMAR 08.19.01.03B;

(d) Exemption of a linear project from submitting a forest conservation plan is consistent with 08.19.01.04A(8); and

(e) Linear project applications show priority retention and planting areas, as identified in Natural Resources Article, §5-1607(c)(d), Annotated Code of Maryland, and by the local program, adjacent to the linear project area.

(2) A local program may adopt the standards in COMAR 08.19.04 or the procedures as described in the State Forest Conservation Technical Manual.

O. Other Forest Conservation Credits for Special Project Areas.

(1) A local program approved by the Department may include additional steps as described in this section in the priority sequence for afforestation or reforestation as authorized in Natural Resources Article, §5-1607(b)(2), Annotated Code of Maryland, for specific development projects which are located in:

(a) Municipalities which adopt a tree care protection ordinance or master plan for trees planted in public rights-of-way or planted in accordance with this regulation;

(b) An existing area as designated under an adopted local land use plan which meets the standards of Article 66B, §§ 3.05 -3.06, Annotated Code of Maryland; or

(c) Specific areas designated in a local program subject to approval by the Department.

(2) The additional steps for afforestation or reforestation are limited to:

(a) Use of street trees if:

(i) A minimum planting area is established in accordance with tree size;

(ii) The planting plan, maintenance agreement, and long-term protective agreements ensure that a continuous canopy will be maintained at maturity; and

(iii) Selection of trees is determined by site constraints; or

(b) Acquisition of protective easements on existing forested areas, if:

(i) These areas are not currently protected in perpetuity by easement or other long-term protection measures as designated by §G of this regulation; and

(ii) The afforestation or reforestation credit granted does not exceed 50 percent of the area of forest cover protected through the acquisition of the easement.

P. The local program may contain provisions more stringent than the requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, or this subtitle.

Q. Local Authority's Forest Mitigation Bank Program.

(1) A local program approved by the Department may include provisions for forest mitigation banks to be established. A forest mitigation bank may allow applicants to meet the requirements of this subtitle and Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, by purchasing credits from an approved forest mitigation bank.

(2) A local program shall require a forest mitigation bank to:

(a) Afforest or reforest an area of land in accordance with an approved forest mitigation bank agreement;

(b) Be protected by an easement, deed restrictions, or covenants which:

(i) Require the land in the bank to remain forested in perpetuity; and

(ii) Are enforceable by the local authority and the Department;

(c) Limit the use of the land in the bank to those activities which are consistent with:

(i) Forest conservation such as recreational activities;

(ii) Forest management pursuant to a forest conservation and management program as provided in Tax-Property Article, §8-211, Annotated Code of Maryland; or

(iii) Activities specified in a forest management plan prepared by a licensed forester and approved by the local authority or the Department;

(d) Use native plant materials for afforestation or reforestation unless inappropriate; and

(e) Cause trees to be planted which:

(i) Establish or enhance forested buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet;

(ii) Establish forested corridors or enhance existing forested corridors to connect existing forest, within or adjacent to the site;

(iii) Establish or enhance forested areas in 100-year floodplains;

(iv) Stabilize slopes of 25 percent or greater;

(v) Stabilize slopes of 15 percent or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions;

(vi) Establish forest buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights-of-way; or

(vii) Establish additional forest areas adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate.

(3) Where practical, forested corridors should be a minimum of 300 feet in width to facilitate wildlife movement.

(4) A local program shall require an individual proposing to establish a forest mitigation bank to submit a:

(a) Completed application on a form approved by the Department and which has been signed by an authorized individual in conformance with COMAR 08.19.04.02I;

(b) Forest mitigation bank plan which contains a:

(i) Vicinity map of the proposed mitigation bank site;

(ii) Simplified forest stand delineation which meets the criteria in COMAR 08.19.04.02I;

(iii) Detailed afforestation or reforestation plan prepared by a licensed Maryland forester, a licensed landscape architect, or a qualified professional who meets the requirements stated in COMAR 08.19.06.01AA which includes a timetable and description of the site and soil preparation needed, species, size, and spacing to be utilized;

(iv) Proposed 2-year maintenance agreement that sets forth how the areas afforested or reforested will be maintained to ensure protection and satisfactory establishment, that complies with COMAR 08.19.04.05C(4)(a), and includes watering and reinforcement planting provisions if survival falls below required standards;

(c) Copy of the deed of the property;

(d) Survey or other legally sufficient description of the bank site for inclusion in the deeds of easement, deed restrictions, or covenants;

(e) Title report or other assurance that:

(i) The property is not encumbered by any covenants or other types of restrictions which would impair the property's use as a forest mitigation bank; and

(ii) There is legally sufficient access to the forest mitigation bank site which can be used by the local government and the Department to inspect the property; and

(f) Description of the system to be used by the banker to identify and track which portions of the bank have been debited to meet an applicant's off-site afforestation or reforestation requirements.

(5) A local program shall require the owner of the mitigation bank to enter into an agreement which contains the:

(a) Approved reforestation or afforestation plan;

(b) Approved system for marking and tracking which portions of the bank have been debited; and

(c) Acknowledgment that the bank may not debit any portion of the afforested or reforested land until 2 years of successful growth have been achieved unless the banker has posted a bond or alternate form of security to ensure that trees will be cared for and maintained in perpetuity.

R. Enforcement Notification. The local program shall contain a provision that notice of an enforcement action shall be given to the Department within 15 days after the commencement of enforcement by the local program.

Md. Code Regs. 08.19.02.02

Regulation .02 amended effective July 1, 1996 (23:13 Md. R. 941); June 15, 1998 (25:12 Md. R. 945); August 20, 2001 (28:16 Md. R. 1481); November 2, 2009 (36:22 Md. R. 1723)
Regulation .02I amended effective January 24, 2011 (38:2 Md. R. 83)
Regulation .02R adopted effective January 26, 2009 (36:2 Md. R. 100); amended effective 46:22 Md. R. 976, eff. 11/4/2019