Md. Code Regs. 26.23.01.01

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

Section 26.23.01.01 - Definitions

A. The following definitions describe the meaning of terms used in this subtitle, unless the context in which they are used clearly requires a different meaning or a different meaning is prescribed at the point of use. Terms not defined below shall have the meaning given to them in Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland, in other or relevant statutes or regulations in this title or, if not defined in statutes, the meaning attributed by common use.

B. Terms Defined.

(1) "Act" means the Nontidal Wetlands Protection Act, Environment Article, Title 5, Subtitle 9, Annotated Code of Maryland.

(2) "Adaptive vegetation" means plant species which are not native but provide similar value to native species and grow successfully in Maryland.

(3) "Administrative Procedure Act" means the provisions of State Government Article, § 10-101 et seq., Annotated Code of Maryland.

(4) "Adverse impact" means any diminishment of nontidal wetland acreage or function.

(5) "Agricultural activity" means aquaculture and farming activities including plowing, tillage, cropping, seeding, cultivating, the grazing and raising of livestock, sod production, other products cultivated as part of a recognized commercial enterprise, and harvesting for production of food and fiber products, excluding forest products. The definition includes tobacco, nursery stock, Christmas trees, and aquaculture ponds and other ponds used to conduct farming activities. Activities that result in a change to a land use other than agriculture are not agricultural activities. Structures or temporary storage areas related to the sale of the products are excluded from this definition.

(6) "Agriculture" means a land use dominated by the production of food, fiber, aquaculture, or livestock, and other products cultivated as part of a recognized commercial enterprise.

(7) "Areas that have lain fallow" means areas used for agriculture or forestry activities that are not in production for agriculture or forest products.

(8) "Aquaculture" means the commercial rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or shipment.

(9) "Aquaculture facility" means a pond, impoundment, raceway, or tank, and their associated structures essential for the purpose of aquaculture.

(10) "Avoid" means to refrain from conducting an activity that may adversely impact a nontidal wetland.

(10-1) "Bank operator" means the person responsible for construction, maintenance, monitoring, and undertaking activities to establish a mitigation bank and to sell mitigation credits.

(11) "Bedding" means a site preparation method when a small ridge of surface soil is formed to provide an elevated area on which forest seedlings are to be planted.

(12) "Best management practices" means conservation practices or systems of practices and management measures that:

(a) Control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics, and sediment; and

(b) Minimize adverse impacts to the surface water, ground water flow, and circulation patterns, and to the chemical, physical, and biological characteristics of nontidal wetlands.

(13) "Bog" means a nontidal wetland characterized by organic soils, accumulated peat, and soils saturated to the surface throughout the year with minimal fluctuation in water level.

(14) "Buffer" means a regulated area, 25 feet in width, surrounding a nontidal wetland, measured from the outer edge of the nontidal wetland.

(15) "Clean Water Act" means the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977 and later amendments (33 U.S.C. § 1251 et seq.).

(16) "COMAR" means the Code of Maryland Regulations.

(17) "Comprehensive watershed management plan" means a plan developed in cooperation with local, county, State, and federal agencies and approved by the Department which addresses nontidal wetland protection, creation, restoration, enhancement, cumulative impacts, flood protection, water supply concerns, and other natural resource elements.

(18) "Conventional rotational cycle" means the growing of crops in a planned and used system that:

(a) Alternates the type of crop planted in a method that protects soil and water from degradation, noxious weeds, insects, and diseases; and

(b) Seeks to achieve the objectives of the landowner.

(19) "Creation" means actions performed which establish nontidal wetlands on upland sites.

(19-1) Critical Area.

(a) "Critical Area" means the Chesapeake Bay Critical Area and all lands and waters defined in Natural Resources Article, § 8-1807, Annotated Code of Maryland.

(b) "Critical Area" includes:

(i) All waters of and lands under the Chesapeake Bay and its tributaries to the head of the tide as indicated on the State tidal wetlands maps, and all State and private tidal wetlands designated under Environment Article, Title 16, Annotated Code of Maryland;

(ii) All land and water areas within 1,000 feet beyond the landward boundaries of State or private tidal wetlands and the heads of tides designated under Environment Article, Title 16, Annotated Code of Maryland; and

(iii) Modification to the areas in this subsection through inclusions or exclusions proposed by local jurisdictions and approved by the Critical Area Commission as specified in Natural Resources Article, § 8-1807, Annotated Code of Maryland.

(20) "Critical habitat" means habitat necessary for the survival of threatened or endangered species, or species in need of conservation.

(21) "Delmarva bay" means a nontidal wetland characterized by an elliptical or oval shape and centripetal drainage, usually bordered by a distinct rim, that is:

(a) Located in a depression with seasonal surface water that is absent in summer;

(b) Generally located on the Delmarva Peninsula; and

(c) Thinly forested or unforested with abundant herbaceous vegetation that may be apparent only after surface water recedes in the summer.

(22) "Department" means the Department of the Environment.

(23) "Destruction or removal of plant life that would alter the character of a nontidal wetland" means:

(a) The physical removal of natural nontidal wetlands vegetation; or

(b) Causing mortality of nontidal wetland vegetation by the application of herbicides, hydrologic alteration, or by other means.

(24) "Detention basin" means an impoundment area made by constructing an embankment or excavating a pit, or both, for the purpose of temporarily storing storm water.

(25) "Director" means the Director of the Water Management Administration in the Department.

(26) "Discharge of fill material" means the addition from any source of fill material into nontidal wetlands, which includes the following activities:

(a) Placement of fill necessary for the construction of any structure;

(b) Building of any structure or impoundment requiring rock, sand, dirt, or other materials for its construction;

(c) Site development fill for recreational, industrial, commercial, residential, and other uses;

(d) Causeways or road fills;

(e) Dams and dikes;

(f) Artificial islands;

(g) Property protection or reclamation devices, or both;

(h) Levees; and

(i) Fills for structures such as, and associated with, sewage treatment facilities and intake and outfall pipes.

(27) "Disturbance of water level or water table" means the alteration of the existing elevation of ground water or surface water by:

(a) Adding or impounding a sufficient quantity of storm water or water from other sources to modify the existing vegetation, values, or functions of the nontidal wetland; or

(b) Draining, ditching, or otherwise causing the depletion of the existing ground water or surface water levels so that the activity would modify the existing vegetation.

(28) "Drainage" means methods for changing the hydrologic conditions of nontidal wetlands, including lowering ground water or surface water levels through pumping, ditching, or otherwise altering water flow patterns.

(29) "Emergent nontidal wetland" means that portion of a nontidal wetland dominated by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

(30) "Enhancement" means actions performed to provide additional protection to, or create or improve the functions of, a nontidal wetland, or other aquatic sites or resources.

(31) "Excavation" means to dig or remove soil, rocks, or other materials resulting in a change in all or part of the elevation of a site.

(32) "Exotic" means any species of plant or animal that is foreign to the State.

(33) "Expanded buffer" means a regulated area 100 feet in width, surrounding a nontidal wetland, measured from the outer edge of a nontidal wetland, and established because of the presence of steep slopes, highly erodible soils, or the presence of nontidal wetlands of special State concern.

(34) "Extenuating circumstances" means conditions requiring extension of a set time limit to process an application, render a decision, or conduct a public hearing.

(35) "Farm pond" means a predominantly open water body used primarily to support agricultural activities, including livestock watering, irrigation, sediment control, fire protection, or aquaculture. Predominantly open water bodies on areas with a land use other than agriculture or that are not used primarily for agricultural activities are not considered farm ponds.

(36) "Farmed nontidal wetlands" means an area designated by §B(62) that is presently tilled, grazed, or under conservation tillage for agricultural activities, or is lying fallow and has been out of production for agricultural activities for less than 5 consecutive years.

(37) "Federal Manual" means the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands", 1989, promulgated by the Federal Interagency Committee for Wetland Delineation, which is incorporated by reference.

(38) "Fill" means any materials placed in an area which change the elevation of the preexisting surface or ground water level, or the soil surface.

(39) "Forested nontidal wetland" means that portion of a nontidal wetland dominated by woody vegetation greater than 20 feet in height.

(40) "Forestry activity" means planting, cultivating, thinning, harvesting, or any other activity undertaken to use forest resources or to improve their quality or productivity. Activities that change nontidal wetlands to another land use, including but not limited to agriculture or development, are not forestry activities.

(41) "Forest harvesting" means the felling, skidding, loading, and transporting of forest products.

(42) "Forest road" means a temporary or permanent access road used to conduct forestry activities or transport timber or other forest products from a felling site to a public road. Roads constructed or used to convert forest land to another land use are not forest roads.

(43) "Functions" means roles nontidal wetlands serve through:

(a) Reduction of pollutant loadings, including excess nutrients, sediment, and toxics;

(b) Attenuation of flood waters and storm waters;

(c) Shoreline stabilization and erosion control;

(d) Breeding grounds and habitat for many species of plants and wildlife including fish, game, and nongame birds and mammals, including threatened and endangered species and species in need of conservation;

(e) Food chain support; and

(f) Timber production.

(44) "General area" means the geographic or market vicinity that has desired characteristics for fulfilling the basic project purpose.

(45) "Grazing" means feeding on grass or other herbaceous plants in a field.

(46) "Hybrid" means the offspring of any species of plants or animals of genetically dissimilar parents or stock.

(47) "Hydrologically connected" means a nontidal wetland that:

(a) Is contiguous to a watercourse, surface water body, tidal wetland, or drainage ditch;

(b) Is within or connected to any 100-year floodplain as determined by calculation or Federal Emergency Management Agency maps;

(c) Receives or discharges surface water or groundwater as intermittent or perennial flow from or to a surface water body, watercourse, or other tidal or nontidal wetland as demonstrated by the presence of an intermittent or perennial stream or spring flow; or

(d) Was formerly contiguous to a surface water body, watercourse, or a nontidal wetland described in §B(47)(a)-(c), above, and is presently separated from these areas by a man-made berm, fill, road, or other structure.

(48) "Hydrophyte" means plant life adapted to growth and reproduction under periodically saturated root zone conditions during at least a portion of the growing season. A listing of these plants can be found in the "National List of Plant Species that Occur in Wetlands: 1988, Maryland", which is incorporated by reference.

(49) "In kind" means characteristics closely approximating those of a nontidal wetland before it was adversely impacted by a regulated or an agricultural activity.

(50) "Initial planning phase" means the period of time in which the feasibility of a project is evaluated before committing resources necessary for its implementation.

(51) "Intermittent stream" means those areas that are surface waters, contained within a defined channel or bed, that flow at least once per year. A defined channel or bed is indicated by hydraulically sorted sediment, or the removal of vegetative litter, or loosely rooted vegetation by the action of moving water.

(52) "Isolated nontidal wetland" means a nontidal wetland that is not hydrologically connected, through surface or subsurface flow to streams, tidal or nontidal wetlands, or tidal waters.

(53) "Landscape management" means to maintain or enhance vegetation on land that was planted or manipulated for horticultural purposes. Landscape management includes mowing, pruning, and private gardening, excluding agricultural activities.

(54) "Landscape management area" means an area predominately covered with grasses or herbaceous ground cover established and maintained for horticultural purposes. The landscape management area may include a lawn which contains trees, shrubs, or other plants.

(55) "Log deck" means a place where logs or tree-length materials are assembled in or near the forest for loading and transporting.

(56) "Loss of nontidal wetlands" means the alteration of:

(a) Existing nontidal wetland vegetation or water levels that significantly impairs or eliminates its principal functions, but excluding:

(i) Forestry activities conducted in accordance with an approved sediment and erosion control plan that complies with COMAR 26.23.05.02 a and .03;

(ii) Rectification; and

(iii) Department-approved enhancement projects; or

(b) An area so that it no longer meets the nontidal wetland definition.

(57) Maintenance.

(a) "Maintenance" means activities undertaken to prevent the deterioration, impairment, or need for repair of a serviceable fill area, structure, right-of-way, or land use, which includes management of vegetation and replacement of structural components.

(b) "Maintenance" does not include the following activities, unless conducted in a temporary sediment control structure, wash pond, or roadside ditch:

(i) Dredging;

(ii) Excavating; or

(iii) Filling.

(58) "Minimize" means to reduce adverse impacts to nontidal wetlands to the greatest practicable and reasonable degree.

(59) "Mitigation" means creation, restoration, or enhancement of nontidal wetlands, that were or will be lost due to regulated or agricultural activities.

(60) "Mitigation bank" means an area of land that is:

(a) Developed and operated as approved by the Department;

(b) Used to satisfy wetland mitigation requirements when use of mitigation credits is specifically approved by the Department;

(c) Managed using a system of credits and debits jointly recorded by the bank operator and the Department.

(60-1) "Mitigation banking agreement" means a legally binding document between a bank operator, mitigation bank owner, and the Department that describes operation, maintenance, remediation, and monitoring requirements for a mitigation bank.

(60-2) "Mitigation credit" or "credit" means an acreage value assigned to a mitigation bank.

(61) "Native" means any plant or animal species indigenous to Maryland.

(62) "Nontidal wetland":

(a) Means an area that is inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation;

(b) Is determined according to the Federal Manual;

(c) Does not include tidal wetlands regulated under Environment Article, Title 16, Annotated Code of Maryland.

(63) "Nontidal wetlands of special State concern" means the areas designated based on criteria in Regulation .04 of this chapter, and listed in COMAR 26.23.06.01 a as having exceptional ecological or educational value of State wide significance.

(64) "Off-site" means not on the same parcel as a nontidal wetland which has been adversely impacted by a regulated activity.

(65) "On-site" means the same parcel on which a nontidal wetland has been adversely impacted by a regulated activity.

(66) "Out of kind" means biological characteristics not closely approximating those of the nontidal wetland before it was adversely impacted by a regulated or an agricultural activity.

(67) "Peat mining" means the extraction of peat of a commercially valuable quality and quantity.

(68) "Person" means the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity.

(69) "Practicable" means available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes.

(70) "Presently conducted" means existing or ongoing.

(71) "Project" means the entire activity on a parcel of land including all proposed and projected phases and sections of land subdivisions of which all regulated or other activities conducted in a nontidal wetland, buffer, or expanded buffer are a part.

(72) "Project purpose" means the principal reason for conducting all regulated activities and other activities on a project site.

(73) "Rectify" or "rectification" means actions performed to nontidal wetlands which have been temporarily impacted by regulated, forestry, or agricultural activities to return them to previous conditions with at least the same nontidal wetland acreage and equivalent function.

(74) "Regulated activity":

(a) Means any of the following activities which are directly undertaken or originate in a nontidal wetland, or within a buffer or expanded buffer of a nontidal wetland:

(i) Removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind;

(ii) Changing existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics;

(iii) Disturbance of the water level or water table by drainage, impoundment, or other means;

(iv) Dumping, discharging of material, or filling with material, including the driving of piles, and placing of obstructions;

(v) Grading or removal of material that would alter existing topography; and

(vi) Destruction or removal of plant life that would alter the character of a nontidal wetland; and

(b) Does not include an agricultural activity or forestry activity as defined in this subtitle.

(74-1) "Remediation" means corrective actions necessary to ensure success of a mitigation site or a mitigation bank.

(75) "Repair" means an activity that restores the scope, size, and design of a serviceable fill area, structure, or land use to its previously authorized and undamaged condition. Activities that change the size or scope of a project beyond the original design so as to drain, dredge, fill, flood, change the hydrology, or otherwise convert nontidal wetlands that were not previously impacted by the project are not included in this definition. Minor deviations to plans or specifications are allowed as long as no permanent nontidal wetland impact results from the deviation.

(75-1) "Replacement ratio" or "compensation ratio" means the ratio of the area of wetland restored, created, or enhanced to the area of wetland for which mitigation is required.

(76) "Restoration" or "restore" means actions performed which establish nontidal wetlands on former nontidal wetland sites.

(77) "Scrub-shrub wetland" means that portion of a nontidal wetland dominated by woody vegetation less than 20 feet in height as the uppermost strata.

(78) "Seed tree law" means Natural Resources Article, § 5-501 et seq., Annotated Code of Maryland.

(79) "Serviceable" means presently usable or currently fulfilling its basic, original purpose.

(80) "Significant plant or wildlife value" means a nontidal wetland:

(a) Of the following unusual or unique community types:

(i) Bogs;

(ii) Areas with bald cypress (Taxodium distichum), Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea rubens), balsam fir (Abies balsamea), or American larch (Larix laricina) that contain at least 20 percent of these species in any strata as determined by the Federal Manual; or

(iii) Delmarva bays;

(b) With water discharge that maintains minimum stream base flow important for maintaining plant and wildlife species;

(c) With threatened or endangered species, or species in need of conservation;

(d) Adjacent to Class III or Class IV waters defined in COMAR 26.08.02.08 a;

(e) Of special State concern;

(f) Supporting vernal pools; or

(g) That is regularly or periodically influenced by tidal waters.

(81) "Site preparation" means a forest activity to remove unwanted vegetation and other material, and to cultivate or prepare the soil for reforestation.

(82) "Skid trail" means a temporary, nonstructural pathway over forest soil to drag felled trees or logs to a log deck.

(83) "Soil conservation and water quality plan" means a land use plan for a farm that shows a farmer how to make best possible use of soil and water resources while protecting and conserving those resources for the future.

(84) "Spring" means a nontidal wetland that discharges ground water at the surface to form a pool or to provide intermittent or perennial surface flow, and that is usually characterized by saturated or organic soils.

(85) "State programmatic general permit" means a general permit issued by the U.S. Army Corps of Engineers governing the protection of nontidal wetlands in Maryland.

(86) "Utility line" means any underground or overhead transmission line, pipe, cable, or wire for the conveyance of public or private water or sewer, natural gas, or the transmission of electrical, radio, or telecommunications service.

(87) "Vernal pool" means a nontidal wetland in a confined depression that has surface water for at least 2 consecutive months during the growing season, and:

(a) Is free of adult fish populations;

(b) Provides habitat for amphibians; and

(c) Lacks abundant herbaceous vegetation.

(88) "Water dependent activity" means an activity for which the use of surface water would be essential to fulfill a basic purpose of the proposed project.

(88-1) "Watershed sub-basin" means one of the 20 watershed areas delineated by the Department in COMAR 26.08.01 and comprising, in sum total, the surface waters of the State.

(89) "Wildlife" means any species of a vertebrate or invertebrate animal, excluding domestic species.

Md. Code Regs. 26.23.01.01

Regulations .01, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .01, .08, .09, .14, .15, and .22 amended and Regulation .27 adopted as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); Regulations .01, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .01 amended effective November 7, 1994 (21:22 Md. R. 1874)
Regulations .01 were recodified from Regulations .01, .08, .22, .23, .and .24, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996