Md. Code Regs. 26.23.05.01

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

Section 26.23.05.01 - Agricultural Activities

A. A person conducting an agricultural activity is exempt from the requirement to obtain a nontidal wetlands permit under this subtitle. Unless exempted in §B of this regulation, a person conducting an agricultural activity which adversely impacts a nontidal wetland shall implement best management practices to protect nontidal wetlands and provide mitigation for any loss of nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, a soil conservation district after December 31, 1990.

B. Exemptions. The following activities are exempt from the approval and mitigation requirements of this subtitle:

(1) Repair and maintenance for agricultural activities in nontidal wetlands. These activities include repair and maintenance of:

(a) Drainage ditches;

(b) Farm ponds;

(c) Channels;

(d) Subsurface drains;

(e) Bridges;

(f) Water control structures;

(g) Aquaculture ponds and associated structures;

(h) Roads and causeways; and

(i) Existing best management practices.

(2) Agricultural activities and operation and maintenance activities conducted in accordance with public drainage regulations contained in COMAR 15.20.01.

(3) Agricultural activities on areas that have lain fallow for any reason. The exemption may not apply if agricultural activities have not taken place for 5 consecutive years.

(4) Agricultural activities on areas set aside or taken out of production if the area is under and complies with a formal program for agriculture, as authorized by the Agricultural Stabilization and Conservation Service within the U.S. Department of Agriculture, or the Conservation Reserve Program, or other formal set-aside programs that may be established by the Maryland Department of Agriculture. The exemption does not apply if agricultural activities have not resumed within 5 years after expiration of the time limit specified in the set-aside program.

(5) Structures for agricultural activities essential to the continued operation of a farm if the nontidal wetland being impacted is on land which is farmed, set aside, lying fallow, or part of a crop rotation.

(6) Agricultural activities including plowing, seeding, cultivating, harvesting, tilling, grazing, farm pond construction, and draining on areas not otherwise fallow or part of a set-aside program, provided that the activities do not drain, dredge, fill, or otherwise convert a nontidal wetland on which agricultural activities are not presently conducted. The following apply:

(a) Construction or operation of a pond in nontidal wetlands used exclusively for wildlife management is not considered an agricultural activity.

(b) Agricultural activities in nontidal wetlands dominated by woody hydrophytes shall maintain a dominance of woody hydrophytes and not alter the surface or ground water hydrology or drain, dredge, fill, convert, or degrade the water quality of nontidal wetlands, to qualify for an exemption under this subsection.

(7) Agricultural activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. A soil conservation district shall:

(a) Determine whether an area is an isolated nontidal wetland based on published hydrologic and hydraulic data and data obtained in the field which shows whether the nontidal wetland is hydrologically connected.

(b) Determine whether a nontidal wetland has significant plant or wildlife value.

(c) Notify the Department when a determination is made under §B(7)(a) or (b) of this regulation. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.

(8) Agricultural activities whose cumulative impact for the entire and complete project is less than 5,000 square feet of nontidal wetland which contains no significant plant or wildlife value. A soil conservation district shall:

(a) Determine whether a nontidal wetland has significant plant or wildlife value.

(b) Notify the Department when a determination under §B(8)(a) of this regulation is made. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.

C. Aquaculture facilities associated with land uses other than agriculture shall be used exclusively for aquaculture in order to be considered an agricultural activity.

D. Intent of Best Management Practices. Best management practices for agricultural activities in nontidal wetlands shall be designed to achieve the following goals:

(1) Control soil loss and minimize sediment deposition in nontidal wetlands;

(2) Minimize water quality degradation;

(3) Minimize adverse impacts to the surface water and ground water circulation patterns; and

(4) Minimize adverse impacts to the chemical, physical, or biological characteristics of nontidal wetlands.

E. A soil conservation district shall consider all of the following criteria when approving the use of a best management practice for agricultural activities in nontidal wetlands:

(1) Whether an alternate best management practice can accomplish the purpose with less adverse impact to a nontidal wetland.

(2) The feasibility of future nontidal wetland restoration.

(3) The cost and extent of mitigation.

(4) Landowner objectives.

(5) Whether activities change the level of surface water or ground water in a nontidal wetland. This includes whether changes to flow and circulation:

(a) Are recommended in the soil conservation and water quality plan; and

(b) Are reversible.

(6) Whether the locations of aquaculture ponds, farm ponds, and any other structures for agriculture minimize adverse impacts to nontidal wetlands. The following locations minimize nontidal wetland adverse impacts in decreasing order of preference:

(a) Uplands;

(b) Isolated farmed nontidal wetlands;

(c) Other farmed nontidal wetlands;

(d) Emergent nontidal wetlands;

(e) Scrub-shrub nontidal wetlands; and

(f) Forested nontidal wetlands.

F. Best Management Practices.

(1) A person conducting agricultural activities in nontidal wetlands that are not otherwise exempt in §B of this regulation shall implement best management practices that meet the intent of D and E of this regulation as set forth in a soil conservation and water quality plan that is consistent with this regulation.

(2) A person conducting an agricultural activity may use best management practices recommended in publications by the Maryland Department of Agriculture and the U.S. Department of Agriculture Soil Conservation Service. Individual practices may include:

(a) Conservation cropping sequences;

(b) Conservation tillage;

(c) Filter strips;

(d) Fertilizer management; or

(e) Waste management.

(3) When farm roads are constructed in nontidal wetlands, they shall be designed according to the following criteria:

(a) Contain not more than the minimum length and width necessary to conduct agricultural activities;

(b) Minimize encroachment in nontidal wetlands;

(c) Maintain flow of water unless otherwise recommended in the soil conservation and water quality plan; and

(d) Be stabilized.

(4) Best management practices for changes in surface water patterns or ground water levels shall attempt to accommodate nontidal wetland restoration, creation, or enhancement if agricultural activities no longer occur on the site.

(5) Best management practices that require planting of vegetation shall use native or adaptive vegetation.

(6) Farm ponds or aquaculture facilities that are located in intermittent or perennial streams, or that divert water from intermittent or perennial streams, shall:

(a) Not cause a violation of applicable State water quality standards as established by the Department;

(b) Allow the continued migration and reproduction of fish and wildlife that do occur, and that traditionally have occurred, in the streams and nontidal wetlands; and

(c) Minimize changes to upstream, downstream, and adjacent nontidal wetland hydrology and vegetation.

(7) Aquaculture facilities shall be designed to minimize the escape of exotic or hybrid plant species into nontidal wetlands.

(8) Temporary adverse impacts shall be rectified.

G. Plan Processing and Approval.

(1) A soil conservation district shall:

(a) Delineate or review and approve the extent of nontidal wetlands impacted by the agricultural activity according to the Federal Manual; and

(b) Assist in the preparation of and approve a soil conservation and water quality plan, including mitigation components, that complies with this regulation and COMAR 26.23.04.01 o and .03-----.07.

(2) A soil conservation district may use guidance maps prepared by the Department to assist in the identification of nontidal wetlands.

(3) A soil conservation district may not approve a plan if it fails to comply with criteria and best management practices as set forth in this regulation, and mitigation requirements contained in COMAR 26.23.04.01 o and .03-----.07.

(4) A soil conservation district shall modify a plan when there is a change in the agricultural activity being conducted or a new best management practice is implemented that results in the loss of additional nontidal wetlands on areas not exempted under §B of this regulation. A modified plan that impacts additional nontidal wetlands shall require additional mitigation.

H. Coordination with Other Programs.

(1) To assist a person conducting agricultural activities in expediting the permit process for other State or federal programs, the Department may provide additional comments on voluntary protection standards for agricultural activities in nontidal wetlands.

(2) A person conducting an agricultural activity in a nontidal wetland may request that the soil conservation district incorporate the voluntary protection standards into the soil conservation and water quality plan.

(3) If additional standards are met, the person conducting an agricultural activity may request that the Department coordinate review of the agricultural activities in nontidal wetlands with other appropriate governmental agencies.

I. Agricultural activities in nontidal wetlands shall be subject to the enforcement provisions of COMAR 26.23.01.05 o.

J. A soil conservation district and the Department of Agriculture shall cooperate with the Department to resolve a violation of these regulations caused by an agricultural activity.

Md. Code Regs. 26.23.05.01

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 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 from Regulations .19_.21, respectively, under COMAR 08.05.04 Nontidal Wetlands, February 1996