Md. Code Regs. 26.23.01.03

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

Section 26.23.01.03 - County Delegation

A. Request for Delegation.

(1) The Department may delegate all or part of its authority under the Act to a county that enacts a nontidal wetlands protection program that meets or exceeds the standards adopted by the Department.

(2) To request delegation, a county shall submit a written request to the Department which includes the following information:

(a) A copy of the proposed program, as enacted, or other evidence of authority to implement a program;

(b) Schedule for program implementation and procedures;

(c) Description of overall program administration, including sufficient staff for enforcement, administration, and training;

(d) Proposed program budget and funding; and

(e) Evidence that the program has been approved by the county legislative body.

(3) The Department may provide technical assistance and a model county ordinance for use and consideration by a county.

(4) Within 30 days of receiving all of the information in this section, the Department shall submit written comments to the county, including recommendations and proposals for program revisions and improvements. This time period may be modified by mutual agreement of the Department and the county. A county shall resolve any issues raised in the Department's written comments to the Department's satisfaction, including making any required legislative changes.

(5) In reviewing the acceptability of the county's program, the Department may consider:

(a) Consistency with the minimum standards of the Act;

(b) Consistency with this subtitle;

(c) Whether the county employs or plans to employ an adequate number of qualified personnel to implement the program; and

(d) Likelihood of successful implementation.

(6) When the county has formally approved a program satisfactory to the Department, the Department shall, in writing, grant or deny delegation. If denied, the Department, in writing, shall state its grounds for denial. The Department may not deny a requested delegation unless opportunity has been afforded to the appropriate officials of the affected county to present arguments before the Secretary on why delegation should be granted. The presentation of arguments to the Secretary is not a contested case hearing. The Secretary's determination shall be final.

(7) If granted, delegation shall be effective from the date of written notice to the county and shall continue for not more than 2 years unless renewed or withdrawn by the Department.

(8) A county accepting delegation in accordance with this subtitle shall:

(a) Use the joint federal and State permit application form;

(b) For activities not qualifying under a State programmatic general permit from the U.S. Army Corps of Engineers, issue a joint State and county permit on a form adopted by the Department; the joint State and county permit shall be separate and distinct from existing county permits and approval; and

(c) For activities qualifying under a State programmatic general permit, issue a recommended permit decision to the Department.

(9) If a county is authorized to issue permits for activities qualifying under a State programmatic general permit, it shall establish a nontidal wetland compensation fund, independent of the fund maintained by the Department, in accordance with the Act and COMAR 26.23.04.07 a.

B. Authority and Standards for Delegation.

(1) Provided that this authority has been delegated, a county with an approved nontidal wetlands protection program shall have the authority to issue, deny, or condition nontidal wetlands permits for all regulated activities within a nontidal wetland or buffer, except for the following regulated activities:

(a) In nontidal wetlands of special State concern and their expanded buffers;

(b) Which directly impact two or more county jurisdictions;

(c) Undertaken by a unit of the State or federal government, or on State or federal owned or controlled land;

(d) Qualifying under a State programmatic general permit that does not apply to county governments; and

(e) For which the State has elected to make the final permit decision.

(2) The Department may not grant local program delegation authority for agricultural and forestry activities specified under Environment Article, § 5-905, Annnotated Code of Maryland. However, this section is not intended to preclude a county from exercising any authority over agricultural or forestry activities granted to it under any other existing State law.

(3) If authorized by the U.S. Army Corps of Engineers, the Department may grant a county the authority to issue nontidal wetland permits for activities qualifying under a State programmatic general permit.

C. State Oversight.

(1) The following procedures apply for permit applications evaluated by a county for activities not qualifying under a State programmatic general permit:

(a) Complete applications shall be submitted to the Department and the county.

(b) The Department shall notify the county when the Department intends to process the application and render a final permit decision.

(c) A county shall provide the Department with a copy of the public notice for any complete application that the Department has not processed for a final permit decision, if the responsibility to prepare public notices has been delegated to the county.

(d) If the Department intends to comment upon, object to, or make recommendations with respect to a permit application, the Department shall notify the county within 10 days of receipt of the public notice. If a county is notified, a permit may not be issued until the Department has approved issuance of the permit.

(e) At the Department's request, a county shall transmit the following information to the Department:

(i) A copy of the complete permit application with all of the information required by COMAR 26.23.02.01 a;

(ii) A copy of any other documents relevant to permit review including a mitigation plan; and

(iii) Information brought out by the public during the comment period or at a hearing.

(f) Within 20 days of receipt of all of the information required by §C(1)(e) of this regulation, the Department shall comment upon, object to, recommend, or condition issuance of a permit. The Department's recommendation shall be binding on a county. A recommendation of permit denial shall state the reasons for a denial. If the Department fails to make a recommendation to the county within the specified time period, the county may take whatever action it deems appropriate.

(g) If a county denies an application due to the recommendation of the Department, the applicant may appeal the denial to the Department under COMAR 26.24.02.03 a B.

(h) A county shall provide a copy of a mitigation plan upon written request by the Department.

(2) Permit applications for activities qualifying under a State programmatic general permit shall be:

(a) Submitted to the Department and the county; and

(b) Processed and evaluated by a county for a recommended permit decision within 10 days of the:

(i) Expiration of the public comment period under COMAR 26.23.02.02 a F(2)(d); or

(ii) Determination that the activity tentatively qualifies for a letter of authorization.

(3) A county shall submit its recommended permit or letter of authorization decision to the Department.

(4) The final permit or letter of authorization decision shall be made by the Department.

(5) An applicant aggrieved by the Department's decision may appeal the decision under COMAR 26.23.02.03 a B.

D. Program Reporting. A county granted delegation authority shall submit an annual report to the Department, coinciding with the State fiscal year and evaluating the county's administration of the program. The report shall include the following information:

(1) Number of permits issued, modified, and denied;

(2) Types of activities;

(3) Locations of activities;

(4) Number of violations identified and number and nature of enforcement actions taken;

(5) Comments from the regulated community and members of the public, including copies of any written complaints on a county's administration of the program;

(6) Acreage totals of nontidal wetland losses by type;

(7) Mitigation actions, including acreage totals of mitigation projects by type of project;

(8) Examples of minimization efforts;

(9) Number of letters of authorization granted and nontidal wetlands lost as a result; and

(10) A report on the county's nontidal wetland compensation fund in accordance with COMAR 26.23.04.07 a.

E. The Department may investigate complaints concerning a county's implementation of the Act. The investigation may include an on-site investigation.

F. The Department may take enforcement action against a permittee or person not complying with the requirements of the Act and this subtitle when it determines that the action is necessary and appropriate, and shall notify the county in a timely manner of the action taken.

G. Renewal.

(1) At least 3 months before a county's delegation expires, the county may submit a written request to the Department for renewal of program delegation. The Department shall notify the county, in writing, within 30 days of receipt of the request whether its request is granted or denied.

(2) The Department may require necessary or appropriate amendments to a county program before renewing a delegation.

(3) The Department may not deny delegation renewal unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final.

(4) The presentation of arguments to the Secretary is not a contested case hearing.

H. Withdrawal of Delegation Authority.

(1) The Department may withdraw program delegation authority upon a finding that the county program is not being administered in a manner consistent with the Act or this subtitle.

(2) The Department shall notify the county in writing that delegation is withdrawn and the reason for withdrawal.

(3) The Department may not withdraw delegation unless opportunity has been afforded to the appropriate officials of the county to present arguments before the Secretary as to why delegation should be renewed. The Secretary's determination shall be final.

(4) The presentation of arguments to the Secretary is not a contested case hearing.

(5) If county delegation is withdrawn, any unencumbered funds contained in a county's nontidal wetlands compensation fund shall be transferred to the nontidal wetland compensation fund maintained by the Department.

Md. Code Regs. 26.23.01.03

Regulations .03 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .03 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151); .03, .08, .09, .14, and .22 amended and .27 adopted permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .03 were recodified from Regulations .01, .08, .22, .23, .and .24, respectively, under COMAR 08.05.04 Nontidal Wetlands, June 1996; amended effective 45:12 Md. R. 617, eff. 6/18/2018