Md. Code Regs. 26.23.04.06

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

Section 26.23.04.06 - Mitigation Banking

A. Application Procedures.

(1) A person proposing to establish and operate a mitigation bank shall submit a mitigation bank application on a form provided by the Department.

(2) The application shall meet the requirements of COMAR 26.23.02.01 a B(6).

(3) A mitigation bank concept plan is submitted with the application and includes:

(a) Drawings at a scale equal to 1 inch equals 200 feet or other scale approved by the Department, and showing existing topography, nontidal wetland boundaries and buffers, and 100-year floodplain boundaries, if applicable;

(b) A vicinity map of the proposed mitigation bank site;

(c) Proposed acreage and type of nontidal wetlands to be established in the bank;

(d) A description of methods of establishment of nontidal wetlands;

(e) The proposed water source;

(f) A description of proposed earth disturbance necessary;

(g) A preliminary assessment of impact, if any, on existing nontidal wetlands, buffers, and 100-year floodplains;

(h) A proposed mechanism to protect the mitigation bank site in perpetuity, including easements, covenants, deed restrictions, or similar means approved by the Department;

(i) As applicable, information regarding consistency with natural resource management plans, approved watershed plans, forest conservation, local growth management policies, and local comprehensive plans; and

(j) Other information required by Regulation .05C of this chapter.

(4) The applicant shall provide other pertinent information as required by the Department.

(5) The Department shall render a decision on the completeness of the mitigation bank application within 45 days of receipt.

(6) The Department may extend the time period for review of the mitigation bank application due to:

(a) Inclement weather conditions; or

(b) Additional review required by other State, federal, or local agencies.

B. Public Notice and Public Informational Hearing.

(1) The Department may issue a public notice for a proposed mitigation bank less than 5 acres in size.

(2) After the Department has determined that an application for a proposed mitigation bank greater than 5 acres in size is complete, the Department shall issue, at the applicant's expense, a public notice in accordance with COMAR 26.23.02.02 a G(2) and (3).

(3) If requested, a public informational hearing shall be conducted in accordance with COMAR 26.23.02.02 a H.

(4) Based on information presented at the public informational hearing, the applicant may be required to submit additional information.

C. Mitigation Banking Agreement.

(1) A mitigation banking agreement shall be developed after the Department approves a mitigation banking application.

(2) The Department and the applicant shall execute a mitigation banking agreement before:

(a) Construction of the mitigation bank; and

(b) Consideration by the Department of the use of the mitigation credits by applicants.

(3) At the Department's discretion, a mitigation banking agreement may include:

(a) Construction plans and specifications developed in accordance with Regulation .05C(2) of this chapter;

(b) Specifications for:

(i) A bond or alternate form of security, as approved by the Department; or

(ii) A remedy to be imposed on a government agency responsible for a government-operated mitigation bank, upon failure to perform remediation;

(c) Performance standards to demonstrate anticipated success of the mitigation bank, including:

(i) Sufficiency of hydrology to sustain a nontidal wetland;

(ii) An interim standard of a minimum of 45 percent coverage of planted or naturally occurring plant species;

(iii) A final standard of a minimum of 85 percent coverage of planted or naturally occurring plant species within a time frame specified by the Department which may not exceed the term of the monitoring period specified in Regulation .04A of this chapter; and

(iv) Evidence to document that the mitigation bank is providing or will provide specific nontidal wetland functions;

(d) Provisions for post-construction monitoring and maintenance of the mitigation bank consistent with Regulation .04A of this chapter;

(e) The executed instrument to protect the mitigation bank in perpetuity;

(f) Bank operation and maintenance procedures;

(g) Bank operator responsibilities;

(h) Remediation procedures;

(i) Accounting and reporting requirements;

(j) Monitoring requirements;

(k) Mitigation bank close-out procedures;

(l) Procedures for termination of the agreement; and

(m) Other terms agreed upon by the bank operator and the Department.

(4) The bank operator shall construct, operate, and maintain the mitigation bank according to the terms of the mitigation banking agreement.

(5) The Department shall approve, in writing, all revisions, amendments, or modifications to the mitigation banking agreement.

(6) The bank operator shall notify the Department upon completion of construction of the mitigation bank.

(7) Within 60 days of completion of construction, the bank operator shall submit to the Department:

(a) As-built drawings with post-construction contours; and

(b) Drawings showing actual planting, which are attached to and made a part of the mitigation banking agreement.

(8) The bank operator shall allow representatives or agents of the Department to enter the mitigation bank at any time during or after construction to conduct inspections and to assess the success of the mitigation bank.

D. Timing of Sale of Mitigation Credit and Approval of Mitigation Bank Use.

(1) The bank operator may select the time to begin sale of credits.

(2) The sale of credits by a bank operator may not imply approval of the use of those credits by the Department for specific projects.

(3) The Department may approve use of not more than 1/2 of the acreage in a mitigation bank before the end of two full growing seasons after construction, based on approval by the Department of:

(a) Executed mitigation banking agreement;

(b) As-built plans showing completed site construction, preparation, and contouring;

(c) Executed mechanism to protect the mitigation bank in perpetuity; and

(d) Fulfillment of bonding requirements, if applicable.

(4) The Department may approve use of the remaining 1/2 of the acreage after two full growing seasons have elapsed, if remediation is not required and the interim performance standards specified in the mitigation banking agreement have been met.

(5) The Department shall advise the bank operator and applicants proposing to use credits of the Department's approval of the bank.

(6) The Department may approve use of mitigation credits as partial fulfillment of a permittee's mitigation requirement.

E. Accounting and Reporting Requirements.

(1) Within the time frames allowed in the mitigation banking agreement, the bank operator shall submit to the Department for each transaction the:

(a) Name and address of the person purchasing or returning credits;

(b) Date of the transaction;

(c) Amount and type of wetland acreage to be used as credit; and

(d) Project name, location, and the Department's application processing number, if applicable, for which use of mitigation credit is proposed.

(2) A government agency responsible for a government operated mitigation bank shall submit the name and address of the agency utilizing credits, the name of the contact person, and the information specified in §E(1)(b)-(d) of this regulation.

(3) The bank operator and the Department shall jointly record withdrawal of the acreage approved for use by an applicant.

(4) Mitigation credit will be withdrawn from the mitigation bank in the order approved by the Department.

(5) For each year of operation, a summary of all activities relating to the sale or transfer of mitigation credits is submitted to the Department within 30 days after December 31 of each calendar year.

(6) The bank operator shall notify the Department if the bank operator wishes to cease consideration of areas representing unsold or unused credits as part of the mitigation bank.

(7) Mitigation credit withdrawn for a project anticipated to be authorized by the Department under this subtitle is returned to the mitigation bank if the Department:

(a) Denies the authorization;

(b) Authorizes impacts that are less than the amount anticipated; or

(c) Requires mitigation by a method other than use of the mitigation credit.

F. Remediation.

(1) The Department may require remediation at any time before the end of the monitoring period to ensure compliance with the performance standards specified in the mitigation banking agreement.

(2) To determine if remediation is necessary, the Department may require that specific data be collected and submitted by the bank operator.

(3) Remediation required by the Department is directly related to ensuring that the performance standards specified in the mitigation banking agreement will be met.

(4) The Department may withhold or suspend approval of use of credits in the bank until remediation is completed to the Department's satisfaction.

(5) The Department may consider continuing to approve use of credits in the bank for that portion of the bank not requiring remediation.

(6) If, after a period to be specified in a mitigation banking agreement, the Department determines that a government agency responsible for a government-operated mitigation bank has not performed remediation, the remedy specified in the mitigation banking agreement is imposed.

G. Close Out of Mitigation Banks.

(1) The Department and a bank operator may close out a mitigation bank when:

(a) All credits have been withdrawn;

(b) Monitoring has been completed to the Department's satisfaction;

(c) Remediation, if required by the Department, has been completed to the Department's satisfaction;

(d) Protection in perpetuity has been established; and

(e) The bond or alternate form of security, if applicable, has been released.

(2) The bank operator shall notify the Department in writing to request confirmation of the decision to close out the mitigation bank.

(3) The Department shall confirm the close out within 45 days of receipt of the request, unless additional information is needed or the conditions in §G(1) of this regulation have not been met.

Md. Code Regs. 26.23.04.06

Regulations .06 were recodified under COMAR 08.05.04 Nontidal Wetlands, February 1996