Md. Code Regs. 26.23.04.01

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

Section 26.23.04.01 - Mitigation for Agricultural Activities

A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses are not required for agricultural activities which are exempted under COMAR 26.23.05.01 a B.

B. Requirements.

(1) The Department shall require that a person conducting an agricultural activity in nontidal wetlands after December 31, 1990, mitigate for the loss of nontidal wetlands within 3 years of the loss, if the agricultural activity is not exempted under COMAR 26.23.05.01 a B.

(2) A person conducting an agricultural activity which causes the loss of nontidal wetlands shall, in consultation with a soil conservation district, develop a mitigation component of the soil conservation and water quality plan.

(3) A person conducting an agricultural activity shall submit the mitigation component of a soil conservation and water quality plan to the Department for review before final approval by a soil conservation district.

(4) The Department shall review the mitigation component of the soil conservation and water quality plan for consistency with Regulations .03-----.07 of this chapter. The Department shall notify the landowner and the soil conservation district if the mitigation component is consistent within 60 days of receipt of a mitigation component.

(5) If the Department fails to notify the landowner and the soil conservation district within 60 days of receipt of a mitigation component, then the mitigation component shall be deemed to be consistent with Regulations .03-----.07 of this chapter.

(6) A soil conservation district may not approve the components of a soil conservation and water quality plan pertaining to nontidal wetland impacts if the Department has determined that the mitigation component is inconsistent with Regulations .03-----.07 of this chapter.

(7) The Department, in determining the extent of mitigation, shall consider the benefit provided by best management practices in replacing lost nontidal wetland acreage and functions.

(8) The Department may accept monetary compensation only if it is determined that creation, restoration, or enhancement of nontidal wetlands are not feasible alternatives. Monetary compensation shall be accepted only under the conditions, and based on the fee structure guidelines, in Regulation .07 of this chapter.

(9) If the Department of Agriculture determines in writing that mitigation will create an economic hardship that would jeopardize the continued operation of a farm, mitigation may be deferred until one or more of the following occur:

(a) The economic hardship no longer exists.

(b) The current owner or operator transfers the farm to a new owner or operator. In this case, the current owner or operator shall remain responsible for mitigation.

(c) Agricultural activities no longer take place on the nontidal wetland.

(10) When an economic hardship, as determined by the Department of Agriculture, ends due to conditions described in §B(9) of this regulation:

(a) A person conducting an agricultural activity shall implement the mitigation component of an approved soil conservation and water quality plan within 3 years of the loss of the nontidal wetland, or within 1 year of the end of the economic hardship, whichever is greater; and

(b) The Department of Agriculture shall notify the Department in writing within 30 days of the end of the economic hardship.

(11) The Department shall require that a person conducting an agricultural activity in a nontidal wetland, which requires mitigation, to file a surety bond with the Department consistent with Regulation .04B of this chapter, within:

(a) 60 days of approval of the soil conservation and water quality plan which includes the mitigation component, provided that an economic hardship determination has not been granted; or

(b) 90 days of the expiration of an economic hardship determination.

(12) The Department of Agriculture shall submit a mitigation report to the Department at the end of each fiscal year. This report shall provide the following information on the status of the Department of Agriculture's economic hardship determinations for each farm:

(a) Whether the economic hardship still exists;

(b) Whether the owner or operator granted the deferral is the current owner or operator; and

(c) The acreage of nontidal wetland losses for which mitigation has been deferred by the economic hardship.

Md. Code Regs. 26.23.04.01

Regulations .01 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .01 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151);
Regulations .01 amended 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, under COMAR 08.05.04 Nontidal Wetlands, February 1996