Md. Code Regs. 26.23.04.02

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

Section 26.23.04.02 - Mitigation for Regulated Activities

A. Exemptions. Mitigation or monetary compensation for nontidal wetland losses is not required for regulated activities:

(1) Exempted in COMAR 26.23.01.02 a and 26.23.03.01 a, except when specified;

(2) Which do not result in a loss of nontidal wetlands;

(3) Occurring only in the buffer or expanded buffer.

B. Requirements.

(1) A permittee shall take all necessary steps to first avoid adverse impacts and then minimize losses of nontidal wetlands. If the permittee demonstrates to the Department's satisfaction that losses of nontidal wetlands are unavoidable and necessary, the Department shall require the permittee to develop and implement mitigation practices.

(2) The Department shall require a permittee, as a condition of a permit, to mitigate or monetarily compensate for nontidal wetland losses caused by regulated activities not listed as exemptions in §A of this regulation.

(3) The Department may waive some or all of the off-site mitigation requirements for up to 1 acre of nontidal wetland loss for construction of special wastewater disposal facilities in a nontidal wetland on residential property. The waiver is conditioned upon the applicant siting the special wastewater disposal facility so as to avoid and minimize impacts to nontidal wetlands, and upon performance of on-site mitigation to the maximum extent practicable.

(4) The Department may reduce mitigation requirements if the regulated activity provides a significant environmental benefit or if the proposed mitigation project has a high likelihood of success, as determined by the Department.

(5) The Department shall require a permittee to develop and submit for Department review and approval mitigation plans consistent with the mitigation:

(a) Standards of Regulation .03 of this chapter;

(b) Plan requirements in Regulation .05 of this chapter; and

(c) Monitoring and bond requirements in Regulation .04 of this chapter.

(6) 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 only be accepted under conditions and based on the fee structure guidelines described in Regulation .07 of this chapter.

(7) The Department may not base a final nontidal wetland permit determination solely on the environmental benefits of a mitigation proposal or the financial benefits of monetary compensation proposals.

(8) If the Department denies approval of a mitigation plan and the permittee is aggrieved by the decision, the permittee may appeal the denial under the procedures in COMAR 26.23.02.03 a B. The Department may order a cessation of the permitted activity or interim stabilization measures pending resolution of the contested case over denial of a mitigation plan.

(9) The Department may approve of mitigation bank sites in consultation with the appropriate local, State, and federal agencies for the purpose of providing mitigation for identified projects. Mitigation bank sites for identified projects are required to meet the standards of Regulation .03H, I, and J and the monitoring requirements of Regulation .04A of this chapter.

Md. Code Regs. 26.23.04.02

Regulations .02 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .02 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151);
Regulations .02 amended permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .02 were recodified under COMAR 08.05.04 Nontidal Wetlands, February 1996