Md. Code Regs. 26.23.04.04

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

Section 26.23.04.04 - Monitoring and Bonding

A. Monitoring.

(1) The monitoring period begins with the first full growing season following completion of construction. The period of the growing season is specified in the post-construction monitoring plan, Phase II plan, or mitigation banking agreement.

(2) Monitoring reports are submitted by:

(a) A permittee or person conducting an agricultural activity for a period of 5 years from the completion of construction of the mitigation project, unless the Department provides written notice that the monitoring requirements have been fulfilled in less than 5 years;

(b) A mitigation bank operator, for a minimum of 5 years after completion of construction of the bank or until the last available credit is withdrawn, whichever is later.

(3) The Department shall require that monitoring reports be submitted:

(a) Annually, not later than December 31; and

(b) In an acceptable form.

(4) The permittee, bank operator, or person conducting an agricultural activity shall consider monitoring requirements fulfilled upon receipt of written notice from the Department. If the Department fails to send written notice to the permittee, bank operator, or person conducting an agricultural activity within 60 days after the end of the monitoring period, the monitoring requirement shall be considered fulfilled.

(5) Through written notification to the permittee, bank operator, or person conducting an agricultural activity, the Department may extend the required monitoring period for not more than an additional 3-year period, if the mitigation project fails to comply with Regulation .03J of this chapter.

(6) The permittee, bank operator, or person conducting an agricultural activity shall provide annual monitoring reports to the Department which include the following information:

(a) A description of how the mitigation project meets the mitigation project standards in Regulation .03J of this chapter;

(b) Photographs of the mitigation project;

(c) The commercial source of planting stock whenever planting is required;

(d) A description of any modifications which have been made or need to be made to implement the mitigation plan or component so as to meet the standards of Regulation .03J of this chapter; and

(e) For mitigation banks, monitoring information required in a mitigation banking agreement.

(7) The Department reserves the right to inspect the mitigation project at any time during the construction and required monitoring period, and any time after that to assess the long-term viability of the mitigation site.

B. Bonding.

(1) This section does not apply to agencies of any federal, State, county, or municipal government.

(2) Within 60 days of the Department's approval of Phase II of the mitigation plan, or the mitigation component of a soil conservation and water quality plan, a permittee or person conducting an agricultural activity shall file with the Department a surety bond on a form to be prescribed and furnished by the Department.

(3) The bond shall be payable to the State and conditioned upon the successful completion of construction of the mitigation project according to an approved mitigation plan, as it may be modified under Regulation .05D of this chapter, by a permittee or a person conducting an agricultural activity.

(4) Alternate Forms of Security.

(a) Instead of a surety bond, the Department may accept one of the following alternate forms of security:

(i) A deposit of cash or negotiable bonds of the U.S. Government having a market value equal to the acceptable bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

(ii) A certificate of deposit equal to the required bond, issued by a bank in the State and accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

(iii) An irrevocable letter of credit that is equivalent to the required bond, issued by a bank or financial institution organized or authorized to do business in the State, that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture;

(iv) The grant to the Department, in trust, of a deed, an easement, or other interest in upland property owned by the permittee or person conducting an agricultural activity that has at least the same monetary value as the selected mitigation site;

(v) Fulfillment of mitigation requirements before completion of the permitted activity or before the approved agricultural activity results in a loss of nontidal wetlands.

(b) The permittee or person conducting an agricultural activity shall submit to the Department all alternate forms of security deposited under §B(4)(a)(i)-----(iii) of this regulation until authorized for release. All alternate forms of security may not expire until construction of the mitigation project has been successfully completed pursuant to the approved mitigation plan, as may be modified under Regulation .05D of this chapter.

(5) Amount of Bond.

(a) The amount of the bond for a permittee shall be set at $20,000 per acre of nontidal wetland mitigation required under the permit.

(b) The permittee may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information.

(c) The Department shall determine whether a lesser amount is sufficient to cover the cost of mitigation, taking into account the following:

(i) Number of acres to be mitigated;

(ii) The cost of land in the area of the mitigation site;

(iii) The proposed method of mitigation; and

(iv) Any other relevant factors, including the likelihood of success of the project.

(6) Liability under a bond shall continue until the Department receives and approves of an as-built plan for the mitigation project and the surety or financial institution receives written notice from the Department that construction of the mitigation project was successfully completed.

(7) A surety bond or other alternative form of security may not be cancelled by the surety, bank, or other issuing entity unless both of the following conditions are satisfied:

(a) The surety notifies the Department and the permittee or person conducting an agricultural activity of its intent to cancel the bond, in writing, by registered mail, not less than 90 days before cancellation; and

(b) At least 45 days before the cancellation date indicated in the notice, the permittee or person conducting an agricultural activity files a commitment from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice.

(8) Bond Forfeiture.

(a) The bond or other instrument securing compliance with the mitigation plan or component may be subject to forfeiture upon:

(i) Revocation of a nontidal wetlands permit;

(ii) Failure of the permittee to comply with an administrative order; or

(iii) Failure to comply with any element of the approved mitigation plan and any approved modifications; or

(iv) Failure to comply with any element of the approved mitigation component of a soil conservation and water quality plan, and any approved modifications.

(b) The Department, in writing and by certified mail, shall notify the permittee or a person conducting an agricultural activity, and the surety or other financial institution, of the Department's intention to initiate forfeiture proceedings.

(c) The permittee or a person conducting an agricultural activity shall have 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited.

(d) On showing cause, the Department shall provide for a reasonable time for the permittee or person conducting an agricultural activity, or surety or other financial institution, to correct the problem.

(e) If the permittee or person conducting an agricultural activity fails to show cause, the bond or other instrument shall be forfeited nisi and the Department shall notify the permittee, surety or other financial institution, or the person conducting an agricultural activity of the forfeiture. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted to the Department within 30 days from forfeiture nisi, the bond or other security shall be forfeited absolute.

(f) The Department shall use forfeited bonds or alternate forms of security to perform mitigation requirements.

(9) To avoid double bonding, the Department shall work with an applicant required to post bond under Environment Article, § 15-823, Annotated Code of Maryland, and other Department programs requiring a bond.

(10) A permittee or person conducting an agricultural activity may not conduct a regulated or agricultural activity in a nontidal wetland if the permittee or person conducting an agricultural activity previously forfeited any bond or alternate security under this subtitle, unless the permittee or person conducting an agricultural activity repays the Department the cost of completing the mitigation project in excess of the forfeited bond or alternate security, plus interest at the rate set in the Courts and Judicial Proceedings Article, § 11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee or person conducting an agricultural activity shall complete the mitigation project at its expense according to the approved mitigation plan and any approved modifications.

C. Bonding for Mitigation Banks.

(1) Government agencies operating a mitigation bank are not subject to the provisions of this section.

(2) As approved by the Department and as provided in §B(4), (5), and (7) of this regulation, a mitigation bank operator shall:

(a) Post a performance bond, or alternate form of security, payable to the Department;

(b) Guarantee to pay to the Department, or place in escrow or trust, an amount equal to the amount due under the mitigation fee structure for the county in which the mitigation bank is located or under guidelines in Regulation .07 of this chapter;

(c) Perform the mitigation on another site acceptable to the Department; or

(d) Provide such other alternate form of security as may be acceptable to the Department.

(3) Liability under the performance bond or alternate form of security set forth in §B(2)(a) or (4) of this regulation commences at the time the Department approves use of the mitigation bank and continues:

(a) Through the end of the monitoring period specified in the mitigation banking agreement or until the last credit is withdrawn, whichever is later; and

(b) Until the surety or financial institution receives written notice from the Department that the bond or alternate form of security may be released.

(4) The Department may partially release the performance bond or alternate form of security during the term of the monitoring period.

(5) The performance bond or alternate form of security is subject to forfeiture upon failure of the bank operator to comply with:

(a) The terms of the mitigation banking agreement; or

(b) Regulations .03-----.07 of this chapter, as applicable.

(6) The bond forfeiture provisions of §B(8)(b)-----(e) of this regulation apply to mitigation banks.

Md. Code Regs. 26.23.04.04

Regulations .04 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .04 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151);
Regulations .04 amended permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .04 were recodified under COMAR 08.05.04 Nontidal Wetlands, February 1996