Md. Code Regs. 26.23.04.05

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

Section 26.23.04.05 - Mitigation Plan

A. A person conducting an agricultural activity in nontidal wetlands shall submit mitigation components of a soil conservation and water quality plan to the Department consistent with the requirements of this regulation.

B. Phase I.

(1) A permittee shall submit Phase I of a mitigation plan as part of the permit application.

(2) Phase I of the mitigation plan shall include all of the following information:

(a) Names, addresses, and telephone numbers of the principals associated with project implementation.

(b) A proposal, if applicable, to use monetary compensation consistent with Regulation .04 of this chapter to fulfill mitigation requirements.

(c) A photograph and description of the type and acreage of proposed nontidal wetland losses.

(d) A description of the activity which may cause the loss of nontidal wetlands.

(e) A description of mitigation projects, including best management practices for agricultural activities, proposed as fulfillment of the required replacement of lost nontidal wetland acreage and functions. The description shall include the proposed source of hydrology and project location maps showing the geographic relationship between the area of potential nontidal wetland losses and the proposed mitigation sites.

(f) A description of the site selection process and a justification of the selection of the proposed mitigation site based on Regulation .03H and I of this chapter.

(g) A description of the selected protection mechanisms for each mitigation site as required in Regulation .03K of this chapter.

(h) A proposal, if applicable, to mitigate through the use of mitigation credits in a mitigation bank, including the:

(i) Name of the bank operator and owner,

(ii) Location of the mitigation bank,

(iii) Type and acreage of mitigation credits in the mitigation bank proposed for use.

(3) The Department shall render a decision concerning the acceptability of Phase I of a mitigation plan as part of the final permit decision.

(4) The Department, in rendering a decision on Phase I of a mitigation plan, shall provide guidance to the applicant on the contents, timing, and necessity of proceeding with Phase II of the mitigation plan.

(5) The Department shall review proposals to use mitigation credit from an approved mitigation bank based on Regulation .03 of this chapter and:

(a) Evidence that the applicant has investigated on-site mitigation and that on-site mitigation is infeasible;

(b) Ability of the proposed mitigation bank to replace or enhance the functions of the wetland that are proposed to be lost;

(c) Compliance by the bank operator with the terms of the mitigation banking agreement; and

(d) Availability of credits in the mitigation bank.

C. Phase II.

(1) A permittee may submit Phase II of a mitigation plan as part of the permit application.

(2) Unless otherwise determined by the Department, Phase II of the mitigation plan shall be submitted within 3 months of the Department's final permit decision and shall include all of the following information about each mitigation project:

(a) Plan view scaled drawings, including:

(i) Vicinity map showing the mitigation project location, existing land use, and zoning;

(ii) Location, type, and acreage of proposed nontidal wetland mitigation activities;

(iii) Proposed location of stockpile areas;

(iv) Location of sediment and erosion control practices;

(v) Locations of all areas used to store machinery, equipment, or supplies;

(vi) Proposed source of borrow materials;

(vii) Proposed location, spacing, and type of propagules for each plant species;

(viii) Location of best management practices for agricultural activities; and

(ix) Other information pertinent to Phase II of a mitigation plan as required by the Department.

(b) Cross-section drawing showing existing and proposed final site conditions including grade, elevation, and slope.

(c) Description of how enhancement activities, including best management practices for agricultural activities, will replace lost nontidal wetland acreage and functions.

(d) If applicable, a description of how the enhancement of farmed nontidal wetlands will replace lost nontidal wetland acreage and functions.

(e) Construction schedule, which includes estimated start and completion dates.

(f) Hydrology, which includes:

(i) Estimated elevation of surface and ground water as measured from the soil surface bimonthly, March-May, and monthly, June-October;

(ii) The source of the water such as ground water, precipitation, and surface water, over various seasons of the year; and

(iii) The reliability of the hydrologic sources throughout the various seasons of the year; and

(iv) Relevant precipitation data.

(g) Substrate conditions including a description of:

(i) Existing soil and substrate conditions; and

(ii) Soil and substrate amendments needed to meet hydric soil characteristics and maintain the specified plant species.

(h) Vegetation to be planted including all of the following:

(i) The scientific and common name of plant species, which shall be native or adaptive to the State;

(ii) Planting dates for each species according to propagation method; and

(iii) Planting stock fertilizer requirements for the entire 5-year monitoring period.

(i) A 5-year monitoring schedule establishing responsibility for the removal of exotic and nuisance vegetation, and permanent establishment of the nontidal wetland system and its component parts. The Department shall encourage the permittee or person conducting an agricultural activity to provide for the long-term maintenance and monitoring of mitigation sites beyond the required monitoring period.

(j) A detailed budget of the proposed mitigation project costs including:

(i) Land acquisition; and

(ii) Design, which includes construction, monitoring, and maintenance.

(k) Documentation of the protection mechanisms required in Regulation .03K of this chapter.

(3) The permittee or person conducting an agricultural activity shall present evidence of a legal right to implement the proposed mitigation plan on the selected sites by providing:

(a) An executed deed conveying title to the selected site to the permittee or person conducting an agricultural activity;

(b) An executed conservation easement agreement;

(c) Written evidence of the landowner's consent to the use of the selected site;

(d) A fully executed option agreement, long-term lease agreement, or contract of sale for the selected site; or

(e) Other written evidence of a possessory or ownership interest in the selected site.

(4) The Department may waive all or part of the requirements of Phase II of a mitigation plan.

(5) The Department may not release a bond or terminate monitoring without receipt of a legally binding deed, long-term lease, or conservation easement agreement on those lands where mitigation will occur.

(6) The permittee or person conducting an agricultural activity shall provide the Department access to the mitigation site during business hours.

(7) The Department shall render a decision concerning the acceptability of Phase II of a mitigation plan within 45 days of receipt of a completed plan, unless a final permit decision has not been made. If the Department fails to notify the applicant within the 45-day period, the plan shall be considered acceptable unless a final permit decision has not been made.

D. Mitigation Plan Modification.

(1) The Department may require, and a permittee or person conducting an agricultural activity may request, modifications to an approved mitigation plan or component during construction to ensure compliance with this subtitle. Modification, substitution, or other deviations from an approved mitigation plan or component may not be made without approval under this section.

(2) A modification request may be made orally or in writing.

(3) A written request shall contain the following information:

(a) The name of the permittee or person conducting an agricultural activity;

(b) Location of the mitigation project;

(c) A description of the proposed modification; and

(d) A justification for the modification.

(4) The Department's decision may be given orally or in writing. The Department shall notify a permittee or person conducting an agricultural activity of its decision within 10 days of a written request. If an oral decision is made, the Department shall confirm its decision in writing within 10 days. The Department's decision, whether oral or written, is binding on the permittee or person conducting an agricultural activity.

Md. Code Regs. 26.23.04.05

Regulations .05 were recodified under COMAR 08.05.04 Nontidal Wetlands, February 1996