Md. Code Regs. 27.01.09.01-2

Current through Register Vol. 51, No. 18, September 6, 2024

Section 27.01.09.01-2 - Mitigation and Planting Standards

A. Applicability. The requirements of this regulation are applicable to a development or redevelopment activity that occurs on a lot or parcel that includes a buffer to tidal waters, a tidal wetland, or a tributary stream when that development or redevelopment activity is located inside the buffer.

B. As applicable to a site, a local jurisdiction shall require that a buffer management plan in accordance with Regulation .01-3 of this chapter satisfy the planting and mitigation standards of this regulation and satisfy the buffer establishment standards required under Regulation .01-1 of this chapter so as to:

(1) Prohibit the installation or cultivation of new lawn or turf on-site in the buffer;

(2) Ensure the planting of native species in compliance with the amounts specified under §§C, D, H, J, and K of this regulation;

(3) Ensure coverage of the buffer with mulch or native ground cover or both until buffer plantings are established; and

(4) Ensure plantings are distributed throughout the buffer to provide optimum habitat and water quality benefits.

C. Permanent Disturbance. As applicable to a site, a local jurisdiction shall calculate the cumulative amount of buffer mitigation required for permanent disturbance in accordance with the following standards:

(1) Except as specified under §C(2) and (3) of this regulation, mitigation for a development or redevelopment activity in the buffer or for the removal of an individual tree, developed woodland, or forest shall be calculated:

(a) According to the ratios under §H of this regulation; and

(b) Based on the square footage of the area of the canopy coverage removed, as determined by the local jurisdiction.

(2) For removal of a diseased, dying, invasive, or hazardous tree:

(a) Mitigation shall be one tree of at least a 3/4-inch caliper for each tree removed; or

(b) The affected area shall be stabilized in native woody vegetation, if a tree cannot be replanted due to space constraints.

(3) For removal of a dead tree, the affected area shall be stabilized with native groundcover or other native vegetation as necessary.

D. Temporary Disturbance. As applicable to a site, a local jurisdiction shall require that an area in the buffer that is temporarily disturbed by a development activity be restored to pre-disturbance conditions.

E. Except as authorized under §F of this regulation, if mitigation planting cannot be located on-site within the buffer because of site constraints, a local jurisdiction shall require planting in the following order of priority:

(1) On-site and adjacent to the buffer; and

(2) On-site elsewhere in the Critical Area.

F. A local jurisdiction may authorize payment of a fee in lieu of buffer mitigation under Regulation .01-5 of this chapter, but only if there is no feasible alternative

G. A local jurisdiction may authorize off-site planting in the buffer if this option is part of a local Critical Area program approved by the Commission or the subject of a written agreement between the local jurisdiction and the Commission.

H. Permanent Disturbance. In accordance with the applicable activity, a local jurisdiction shall require the following ratios of mitigation for each permanent disturbance:

Activity	Mitigation Ratio
Septic on a lot created before local program approval if	Not
located in existing grass or if clearing is not required	applicable
Septic system in a forest or developed woodland on a lot created before local program approval if clearing is required	1:1
A shoreline stabilization measure, unless otherwise authorized under COMAR 27.01.04.03	1:1
Riparian water access	2:1
Development of a water-dependent facility or activity under COMAR 27.01.03	2:1
Variance	3:1
Violation	4:1

I. A local jurisdiction may authorize an applicant to deduct from the total mitigation requirement an area of lot coverage removed from the buffer if:

(1) The lot coverage existed before the date of local program adoption or was allowed by local procedures; and

(2) The total area is stabilized.

J. A local jurisdiction may authorize a combination of plantings for buffer mitigation in accordance with the following table:

Total Mitigation Requirement	Options
Less than 1 acre	Landscaping stock according to §L of this regulation for the entire area
1 acre or greater	At least 50 percent of area in landscaping stock according to §L of this regulation, with the remainder according to §O of this regulation

K. A local jurisdiction may authorize a combination of plantings and natural regeneration for buffer establishment in accordance with the following table:

Total Establishment Requirement	Options
Less than 1/4 acre	Landscaping stock according to §L of this regulation for the entire area
-1/4 acre to 1 acre	At least 25 percent landscaping stock according to §L of this regulation, with the remainder a combination according to §O of this regulation or natural regeneration according to Regulation .01-4 of this chapter
Greater than 1 acre	At least 10 percent landscaping stock according to §L of this regulation, with the remainder a combination according to §O of this regulation or natural regeneration according to Regulation .01-4 of this chapter

L. A local jurisdiction shall apply the following planting credits for the type and size of the vegetation proposed:

Vegetation Type	Minimum Size Eligible for Credit	Maximum Credit Allowed (Square Feet)	Maximum Percent of Landscape Stock Credit
Canopy tree	2-inch caliper	200	Not applicable
Canopy tree	3/4-inch caliper	100	Not applicable
Understory tree	3/4"inch caliper	75	Not applicable
Large shrub	3 feet high	50	30
Small shrub	18 inches high	25	20
Herbaceous perennial	1 quart or based on the area covered by plugs or seed mix	2	10
Planting Cluster for buffer establishment or mitigation of less than 1/2 acre	1 canopy tree; and 3 large shrubs or 6 small shrubs of sizes listed above	300	Not applicable
Planting Cluster for buffer establishment or mitigation of less than 1/2 acre	2 understory trees; and 3 large shrubs or 6 small shrubs of sizes listed above	350	Not applicable

M. A local jurisdiction may authorize an applicant to increase the percentage of large shrubs, small shrubs, or herbaceous perennials in a buffer management plan if:

(1) The buffer has existing canopy coverage of at least 50 percent; or

(2) Site constraints that preclude canopy planting, including severely eroding slopes, salt water intrusion, predominately sandy soils, or unconsolidated fill.

N. All landscaping stock planted in accordance with §L of this regulation shall be 100 percent guaranteed for at least 2 years after planting is completed.

O. A local jurisdiction may use the following table to allow flexible stocking size when authorized under §§J and K of this regulation:

Stock Size of Trees Only	Required Number of Stems Per Acre	Survivability Requirement	Minimum Financial Assurance Period After Planting
Bare-root seedling or whip	700	50 percent	5 years
1/2-inch to 1-inch container grown trees	450	75 percent	2 years
More than 1-inch container grown trees	350	90 percent	2 years

P. A local jurisdiction may not:

(1) Authorize a variance to the planting and mitigation standards under this regulation; or

(2) Issue a final use and occupancy permit for an application under Regulation .01-3B(2) of this chapter unless the applicant:

(a) Completes the planting required under an approved buffer management plan; or

(b) Pending completion of the planting required under an approved buffer management plan during the next planting season, provides financial assurance to cover the costs for:

(i) Materials and installation; and

(ii) In the case of a mitigation or establishment requirement that is at least 5,000 square feet, long-term survivability in accordance with the requirements of Regulation .01-3J(2)(d) of this chapter.

Q. Before recordation of a final subdivision or final approval of a site plan for a multifamily, commercial, industrial, or institutional use, an applicant shall:

(1) Post permanent signs delineating the upland boundary of the buffer at a ratio of at least one sign per lot or per 200 linear feet of shoreline, whichever is applicable; and

(2) Design each sign required under §Q(1) of this regulation so that it:

(a) Is at least 6 inches in width and 8 inches in height;

(b) Is placed at a height of 4.5 feet, but not attached to a tree; and

(c) Clearly states "Critical Area Buffer-No clearing or disturbance permitted".

R. Concurrent with the recordation of a final plat and in accordance with Regulation .01-3 of this chapter, an applicant shall record an easement or similar instrument for a buffer management plan.

S. A local jurisdiction may not approve a final subdivision application until the jurisdiction has reviewed and approved the buffer management plan submitted under Regulation .01-3 of this chapter.

Md. Code Regs. 27.01.09.01-2

Regulations .01-2 adopted effective March 8, 2010 (37:5 Md. R. 428); amended effective 49:3 Md. R. 139, eff. 2/7/2022; amended effective 50:4 Md. R.111-172, eff. 3/6/2023