Md. Code Regs. 26.23.02.03

Current through Register Vol. 51, No. 11, May 31, 2024

Section 26.23.02.03 - Permit Decision and Appeal

A. Permit Decision.

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

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

(b) Render a decision to grant, deny, or condition a permit within:

(i) 60 days from the Department's determination that an application is complete and the delineation correct, if no public informational hearing is requested, or

(ii) 45 days of a public informational hearing.

(2) The Department may extend the time period in which to render a decision for an additional 30 days for the following extenuating circumstances:

(a) Review required by a federal, State, or local government agency;

(b) A Department request for individual permit review under COMAR 26.23.01.03 a; or

(c) A request by an applicant.

(3) The Department may afford the applicant an opportunity to provide additional information to address concerns raised in written comments or testimony at the public informational hearing.

(4) The applicant may request in writing that the Department withhold its decision until additional information can be provided. The Department may withhold its permit decision for 6 months, after which the application shall be deemed withdrawn and a new application submitted, unless otherwise determined by the Department.

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

(6) Written notice of the permit decision shall be mailed to the applicant and to all persons on the interested persons list. Notice of the permit decision need not be published.

(7) Work authorized under a permit shall begin within 3 years of the date of permit issuance and the work shall be completed within the time period specified in the permit, which may not exceed 10 years.

(8) An applicant may not resubmit a denied permit application for 6 months from the date of denial unless there is a substantive change in the application.

(9) A permit may not be issued, and work may not begin under a permit, unless a final site plan or any other necessary information is provided to the Department.

B. Appeal of Permit Decision.

(1) 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 grant, deny, or condition a permit, may request a contested case hearing.

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

(3) The contested case hearing request shall contain:

(a) The name, address, and telephone number of the person requesting the hearing;

(b) The name, address, and telephone number of any attorney representing the person requesting a hearing, or a statement of intent to proceed without counsel;

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

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

(e) 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 the Administrative Procedure Act and COMAR 08.01.04.

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

C. Delegation of Decision-Making Authority.

(1) The Chief of the Nontidal Wetlands and Waterways Division in the Water Management Administration shall render the decision to grant, deny, or condition a permit under §A of this regulation.

(2) In the event of an appeal under §B of this regulation, the Director shall render the final decision for the Department.

D. Determinations on Standing.

(1) The Director or a 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 permit 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 permit and arises under the Act or this subtitle; and

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

(2) The Director or a 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 review under this regulation is not sought, the denial shall be the Department's final decision as to the contested case hearing request.

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

(5) If the Director's written final decision as 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 the Administrative Procedure Act and the Maryland Rules of Procedure.

Md. Code Regs. 26.23.02.03

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);
Regulations .03 amended permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .03 were recodified, under COMAR 08.05.04 Nontidal Wetlands, June 1996