Md. Code Regs. 08.19.04.13

Current through Register Vol. 51, No. 12, June 14, 2024

Section 08.19.04.13 - Approval Decision and Appeal

A. Approval Decision.

(1) After the closing date for receipt of written comments and after a public information hearing, if a hearing has been requested, the Department shall:

(a) Consider the written comments, testimony, and other information received; and

(b) Afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony.

(2) The Department may request additional information from the applicant as a result of concerns raised in written comments or testimony at the public information hearing.

(3) Written notice of the approval decision or denial shall be mailed to the applicant and to persons on the interested persons list. Notice of the decision need not be published.

B. Appeal of Final Forest Conservation Plan Decision.

(1) A contested case hearing may be requested by a person who has legal rights, duties, interests, or privileges different from the general public which are adversely affected by the Department's decision to approve, deny, or condition a final forest conservation plan.

(2) The contested case hearing request shall be in writing and filed with the Department within 30 days of issuance of the decision with the unit issuing the decision.

(3) The contested case hearing request shall contain:

(a) The name, address, and telephone number of:

(i) The person requesting the hearing, and

(ii) An attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel;

(b) A description of the grounds for the request, including the specific legal right, duty, privilege, or interest which may be adversely affected by the determination, and which is different from those interests held by the general public;

(c) A statement of the specific relief desired as a result of the contested case hearing; and

(d) A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called.

(4) The contested case hearing shall be conducted under State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04.

(5) The decision of the Department on the basis of the contested case hearing is the final decision for purposes of judicial review.

C. Delegation of Decision-Making Authority.

(1) The Director of the Forestry Division in the Resource Conservation Service shall render the decision to approve, deny, or condition a final forest conservation plan.

(2) If there is an appeal under §B of this regulation, the Assistant Secretary shall render the final decision for the Department.

D. Determination on Request for Contested Case Hearing.

(1) The Director or the Director's designee shall review a request for a contested case hearing to determine whether the person requesting a hearing has:

(a) A specific legal right, duty, privilege, or interest which is or may be adversely affected by the final forest conservation plan determination and which is different from that held by the general public;

(b) Raised at least one issue that is related to the subject of the final forest conservation plan and arises under Natural Resources Article, §§ 5-1601 -5-1612, Annotated Code of Maryland, or this subtitle; and

(c) Made a contested case hearing request within the required 30-day time period.

(2) The Director or the Director's designee shall determine whether to grant or deny the request for a contested case hearing. If the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed by certified mail to the person requesting a hearing.

(3) The notification of the determination to deny a request for a contested case hearing shall contain the following:

(a) The specific reasons for the denial;

(b) A statement of the right to request a review of the denial under §D(4) of this regulation; and

(c) A statement that, if a person does not request a review under this regulation, the denial shall be the Department's final decision as to the contested case hearing request.

(4) Within 10 calendar days of receipt of the denial, a person who is adversely affected by a determination to deny a request for a contested case hearing may file with the Assistant Secretary written exceptions and a request to present oral argument. After considering the written exceptions, the Assistant Secretary may hear oral argument, and shall issue a written final decision.

(5) If the Assistant Secretary's written final decision to the contested case hearing request is adverse to a party other than the Department, the party may obtain judicial review of the decision in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and the Maryland Rules of Procedure.

Md. Code Regs. 08.19.04.13

Regulation .13B amended effective April 5, 2010 (37:7 Md. R. 569)