Code of Maryland Regulations › Title 26 - DEPARTMENT OF ENVIRONMENT › Part 4 - SUBTITLES 19-30 › Subtitle 23 - NONTIDAL WETLANDS › Chapter 26.23.01 - General › Section 26.23.01.01 - Definitions

Current through Register Vol. 51, No. 14, July 12, 2024
A. The following
				  definitions describe the meaning of terms used in this subtitle, unless the
				  context in which they are used clearly requires a different meaning or a
				  different meaning is prescribed at the point of use. Terms not defined below
				  shall have the meaning given to them in Environment Article, Title 5, Subtitle
				  9, Annotated Code of Maryland, in other or relevant statutes or regulations in
				  this title or, if not defined in statutes, the meaning attributed by common
				  use.
B. Terms Defined.
(1) "Act" means the Nontidal Wetlands
				  Protection Act, Environment Article, Title 5, Subtitle 9, Annotated Code of
				  Maryland.
(2) "Adaptive vegetation"
				  means plant species which are not native but provide similar value to native
				  species and grow successfully in Maryland.
(3) "Administrative Procedure Act" means the
				  provisions of State Government Article, §
											10-101 et seq.,
				  Annotated Code of Maryland.
(4)
				  "Adverse impact" means any diminishment of nontidal wetland acreage or
				  function.
(5) "Agricultural
				  activity" means aquaculture and farming activities including plowing, tillage,
				  cropping, seeding, cultivating, the grazing and raising of livestock, sod
				  production, other products cultivated as part of a recognized commercial
				  enterprise, and harvesting for production of food and fiber products, excluding
				  forest products. The definition includes tobacco, nursery stock, Christmas
				  trees, and aquaculture ponds and other ponds used to conduct farming
				  activities. Activities that result in a change to a land use other than
				  agriculture are not agricultural activities. Structures or temporary storage
				  areas related to the sale of the products are excluded from this
				  definition.
(6) "Agriculture" means
				  a land use dominated by the production of food, fiber, aquaculture, or
				  livestock, and other products cultivated as part of a recognized commercial
				  enterprise.
(7) "Areas that have
				  lain fallow" means areas used for agriculture or forestry activities that are
				  not in production for agriculture or forest products.
(8) "Aquaculture" means the commercial
				  rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or
				  shipment.
(9) "Aquaculture
				  facility" means a pond, impoundment, raceway, or tank, and their associated
				  structures essential for the purpose of aquaculture.
(10) "Avoid" means to refrain from conducting
				  an activity that may adversely impact a nontidal wetland.
(10-1) "Bank operator" means the person responsible for
					 construction, maintenance, monitoring, and undertaking activities to establish
					 a mitigation bank and to sell mitigation credits.
(11) "Bedding" means a site preparation
				  method when a small ridge of surface soil is formed to provide an elevated area
				  on which forest seedlings are to be planted.
(12) "Best management practices" means
				  conservation practices or systems of practices and management measures that:
(a) Control soil loss and reduce water
				  quality degradation caused by nutrients, animal waste, toxics, and sediment;
				  and
(b) Minimize adverse impacts to
				  the surface water, ground water flow, and circulation patterns, and to the
				  chemical, physical, and biological characteristics of nontidal
				  wetlands.
(13) "Bog"
				  means a nontidal wetland characterized by organic soils, accumulated peat, and
				  soils saturated to the surface throughout the year with minimal fluctuation in
				  water level.
(14) "Buffer" means a
				  regulated area, 25 feet in width, surrounding a nontidal wetland, measured from
				  the outer edge of the nontidal wetland.
(15) "Clean Water Act" means the Federal
				  Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977
				  and later amendments (33
				  U.S.C. §
												1251 et seq.).
(16) "COMAR" means the Code of Maryland
				  Regulations.
(17) "Comprehensive
				  watershed management plan" means a plan developed in cooperation with local,
				  county, State, and federal agencies and approved by the Department which
				  addresses nontidal wetland protection, creation, restoration, enhancement,
				  cumulative impacts, flood protection, water supply concerns, and other natural
				  resource elements.
(18)
				  "Conventional rotational cycle" means the growing of crops in a planned and
				  used system that:
(a) Alternates the type of
				  crop planted in a method that protects soil and water from degradation, noxious
				  weeds, insects, and diseases; and
(b) Seeks to achieve the objectives of the
				  landowner.
(19)
				  "Creation" means actions performed which establish nontidal wetlands on upland
				  sites.
(19-1) Critical Area.
(a) "Critical Area" means the Chesapeake Bay
				  Critical Area and all lands and waters defined in Natural Resources Article, §
												8-1807, Annotated
				  Code of Maryland.
(b) "Critical
				  Area" includes:
(i) All waters of and lands
				  under the Chesapeake Bay and its tributaries to the head of the tide as
				  indicated on the State tidal wetlands maps, and all State and private tidal
				  wetlands designated under Environment Article, Title 16, Annotated Code of
				  Maryland;
(ii) All land and water
				  areas within 1,000 feet beyond the landward boundaries of State or private
				  tidal wetlands and the heads of tides designated under Environment Article,
				  Title 16, Annotated Code of Maryland; and
(iii) Modification to the areas in this
				  subsection through inclusions or exclusions proposed by local jurisdictions and
				  approved by the Critical Area Commission as specified in Natural Resources
				  Article, §
													8-1807, Annotated
				  Code of Maryland.
(20) "Critical habitat" means habitat
				  necessary for the survival of threatened or endangered species, or species in
				  need of conservation.
(21)
				  "Delmarva bay" means a nontidal wetland characterized by an elliptical or oval
				  shape and centripetal drainage, usually bordered by a distinct rim, that is:
(a) Located in a depression with seasonal
				  surface water that is absent in summer;
(b) Generally located on the Delmarva
				  Peninsula; and
(c) Thinly forested
				  or unforested with abundant herbaceous vegetation that may be apparent only
				  after surface water recedes in the summer.
(22) "Department" means the Department of the
				  Environment.
(23) "Destruction or
				  removal of plant life that would alter the character of a nontidal wetland"
				  means:
(a) The physical removal of natural
				  nontidal wetlands vegetation; or
(b) Causing mortality of nontidal wetland
				  vegetation by the application of herbicides, hydrologic alteration, or by other
				  means.
(24) "Detention
				  basin" means an impoundment area made by constructing an embankment or
				  excavating a pit, or both, for the purpose of temporarily storing storm
				  water.
(25) "Director" means the
				  Director of the Water Management Administration in the Department.
(26) "Discharge of fill material" means the
				  addition from any source of fill material into nontidal wetlands, which
				  includes the following activities:
(a)
				  Placement of fill necessary for the construction of any structure;
(b) Building of any structure or impoundment
				  requiring rock, sand, dirt, or other materials for its construction;
(c) Site development fill for recreational,
				  industrial, commercial, residential, and other uses;
(d) Causeways or road fills;
(e) Dams and dikes;
(f) Artificial islands;
(g) Property protection or reclamation
				  devices, or both;
(h) Levees;
				  and
(i) Fills for structures such
				  as, and associated with, sewage treatment facilities and intake and outfall
				  pipes.
(27) "Disturbance
				  of water level or water table" means the alteration of the existing elevation
				  of ground water or surface water by:
(a)
				  Adding or impounding a sufficient quantity of storm water or water from other
				  sources to modify the existing vegetation, values, or functions of the nontidal
				  wetland; or
(b) Draining, ditching,
				  or otherwise causing the depletion of the existing ground water or surface
				  water levels so that the activity would modify the existing
				  vegetation.
(28)
				  "Drainage" means methods for changing the hydrologic conditions of nontidal
				  wetlands, including lowering ground water or surface water levels through
				  pumping, ditching, or otherwise altering water flow patterns.
(29) "Emergent nontidal wetland" means that
				  portion of a nontidal wetland dominated by erect, rooted, herbaceous vegetation
				  as the uppermost vegetative strata.
(30) "Enhancement" means actions performed to
				  provide additional protection to, or create or improve the functions of, a
				  nontidal wetland, or other aquatic sites or resources.
(31) "Excavation" means to dig or remove
				  soil, rocks, or other materials resulting in a change in all or part of the
				  elevation of a site.
(32) "Exotic"
				  means any species of plant or animal that is foreign to the State.
(33) "Expanded buffer" means a regulated area
				  100 feet in width, surrounding a nontidal wetland, measured from the outer edge
				  of a nontidal wetland, and established because of the presence of steep slopes,
				  highly erodible soils, or the presence of nontidal wetlands of special State
				  concern.
(34) "Extenuating
				  circumstances" means conditions requiring extension of a set time limit to
				  process an application, render a decision, or conduct a public
				  hearing.
(35) "Farm pond" means a
				  predominantly open water body used primarily to support agricultural
				  activities, including livestock watering, irrigation, sediment control, fire
				  protection, or aquaculture. Predominantly open water bodies on areas with a
				  land use other than agriculture or that are not used primarily for agricultural
				  activities are not considered farm ponds.
(36) "Farmed nontidal wetlands" means an area
				  designated by §B(62) that is presently tilled, grazed, or under conservation
				  tillage for agricultural activities, or is lying fallow and has been out of
				  production for agricultural activities for less than 5 consecutive
				  years.
(37) "Federal Manual" means
				  the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands",
				  1989, promulgated by the Federal Interagency Committee for Wetland Delineation,
				  which is incorporated by reference.
(38) "Fill" means any materials placed in an
				  area which change the elevation of the preexisting surface or ground water
				  level, or the soil surface.
(39)
				  "Forested nontidal wetland" means that portion of a nontidal wetland dominated
				  by woody vegetation greater than 20 feet in height.
(40) "Forestry activity" means planting,
				  cultivating, thinning, harvesting, or any other activity undertaken to use
				  forest resources or to improve their quality or productivity. Activities that
				  change nontidal wetlands to another land use, including but not limited to
				  agriculture or development, are not forestry activities.
(41) "Forest harvesting" means the felling,
				  skidding, loading, and transporting of forest products.
(42) "Forest road" means a temporary or
				  permanent access road used to conduct forestry activities or transport timber
				  or other forest products from a felling site to a public road. Roads
				  constructed or used to convert forest land to another land use are not forest
				  roads.
(43) "Functions" means roles
				  nontidal wetlands serve through:
(a) Reduction
				  of pollutant loadings, including excess nutrients, sediment, and
				  toxics;
(b) Attenuation of flood
				  waters and storm waters;
(c)
				  Shoreline stabilization and erosion control;
(d) Breeding grounds and habitat for many
				  species of plants and wildlife including fish, game, and nongame birds and
				  mammals, including threatened and endangered species and species in need of
				  conservation;
(e) Food chain
				  support; and
(f) Timber
				  production.
(44)
				  "General area" means the geographic or market vicinity that has desired
				  characteristics for fulfilling the basic project purpose.
(45) "Grazing" means feeding on grass or
				  other herbaceous plants in a field.
(46) "Hybrid" means the offspring of any
				  species of plants or animals of genetically dissimilar parents or
				  stock.
(47) "Hydrologically
				  connected" means a nontidal wetland that:
(a)
				  Is contiguous to a watercourse, surface water body, tidal wetland, or drainage
				  ditch;
(b) Is within or connected
				  to any 100-year floodplain as determined by calculation or Federal Emergency
				  Management Agency maps;
(c)
				  Receives or discharges surface water or groundwater as intermittent or
				  perennial flow from or to a surface water body, watercourse, or other tidal or
				  nontidal wetland as demonstrated by the presence of an intermittent or
				  perennial stream or spring flow; or
(d) Was formerly contiguous to a surface
				  water body, watercourse, or a nontidal wetland described in §B(47)(a)-(c),
				  above, and is presently separated from these areas by a man-made berm, fill,
				  road, or other structure.
(48) "Hydrophyte" means plant life adapted to
				  growth and reproduction under periodically saturated root zone conditions
				  during at least a portion of the growing season. A listing of these plants can
				  be found in the "National List of Plant Species that Occur in Wetlands: 1988,
				  Maryland", which is incorporated by reference.
(49) "In kind" means characteristics closely
				  approximating those of a nontidal wetland before it was adversely impacted by a
				  regulated or an agricultural activity.
(50) "Initial planning phase" means the
				  period of time in which the feasibility of a project is evaluated before
				  committing resources necessary for its implementation.
(51) "Intermittent stream" means those areas
				  that are surface waters, contained within a defined channel or bed, that flow
				  at least once per year. A defined channel or bed is indicated by hydraulically
				  sorted sediment, or the removal of vegetative litter, or loosely rooted
				  vegetation by the action of moving water.
(52) "Isolated nontidal wetland" means a
				  nontidal wetland that is not hydrologically connected, through surface or
				  subsurface flow to streams, tidal or nontidal wetlands, or tidal
				  waters.
(53) "Landscape management"
				  means to maintain or enhance vegetation on land that was planted or manipulated
				  for horticultural purposes. Landscape management includes mowing, pruning, and
				  private gardening, excluding agricultural activities.
(54) "Landscape management area" means an
				  area predominately covered with grasses or herbaceous ground cover established
				  and maintained for horticultural purposes. The landscape management area may
				  include a lawn which contains trees, shrubs, or other plants.
(55) "Log deck" means a place where logs or
				  tree-length materials are assembled in or near the forest for loading and
				  transporting.
(56) "Loss of
				  nontidal wetlands" means the alteration of:
(a) Existing nontidal wetland vegetation or
				  water levels that significantly impairs or eliminates its principal functions,
				  but excluding:
(i) Forestry activities
				  conducted in accordance with an approved sediment and erosion control plan that
				  complies with COMAR
				  26.23.05.02 a and .03;
(ii) Rectification; and
(iii) Department-approved enhancement
				  projects; or
(b) An area
				  so that it no longer meets the nontidal wetland definition.
(57) Maintenance.
(a) "Maintenance" means activities undertaken
				  to prevent the deterioration, impairment, or need for repair of a serviceable
				  fill area, structure, right-of-way, or land use, which includes management of
				  vegetation and replacement of structural components.
(b) "Maintenance" does not include the
				  following activities, unless conducted in a temporary sediment control
				  structure, wash pond, or roadside ditch:
(i)
				  Dredging;
(ii) Excavating;
				  or
(iii) Filling.
(58) "Minimize" means
				  to reduce adverse impacts to nontidal wetlands to the greatest practicable and
				  reasonable degree.
(59)
				  "Mitigation" means creation, restoration, or enhancement of nontidal wetlands,
				  that were or will be lost due to regulated or agricultural
				  activities.
(60) "Mitigation bank"
				  means an area of land that is:
(a) Developed
				  and operated as approved by the Department;
(b) Used to satisfy wetland mitigation
				  requirements when use of mitigation credits is specifically approved by the
				  Department;
(c) Managed using a
				  system of credits and debits jointly recorded by the bank operator and the
				  Department.
(60-1) "Mitigation banking agreement" means a legally
					 binding document between a bank operator, mitigation bank owner, and the
					 Department that describes operation, maintenance, remediation, and monitoring
					 requirements for a mitigation bank.
(60-2) "Mitigation credit" or "credit" means an acreage
					 value assigned to a mitigation bank.
(61) "Native" means any plant or animal
				  species indigenous to Maryland.
(62) "Nontidal wetland":
(a) Means an area that is inundated or
				  saturated by surface water or ground water at a frequency and duration
				  sufficient to support, and that under normal circumstances does support, a
				  prevalence of vegetation typically adapted for life in saturated soil
				  conditions, commonly known as hydrophytic vegetation;
(b) Is determined according to the Federal
				  Manual;
(c) Does not include tidal
				  wetlands regulated under Environment Article, Title 16, Annotated Code of
				  Maryland.
(63) "Nontidal
				  wetlands of special State concern" means the areas designated based on criteria
				  in Regulation .04 of this chapter, and listed in COMAR
				  26.23.06.01 a as having
				  exceptional ecological or educational value of State wide
				  significance.
(64) "Off-site" means
				  not on the same parcel as a nontidal wetland which has been adversely impacted
				  by a regulated activity.
(65)
				  "On-site" means the same parcel on which a nontidal wetland has been adversely
				  impacted by a regulated activity.
(66) "Out of kind" means biological
				  characteristics not closely approximating those of the nontidal wetland before
				  it was adversely impacted by a regulated or an agricultural activity.
(67) "Peat mining" means the extraction of
				  peat of a commercially valuable quality and quantity.
(68) "Person" means the federal government,
				  the State, any county, municipal corporation, or other political subdivision of
				  the State, or any of their units, or an individual, receiver, trustee,
				  guardian, executor, administrator, fiduciary, or representative of any kind, or
				  any partnership, firm, association, public or private corporation, or any other
				  entity.
(69) "Practicable" means
				  available and capable of being done after taking into consideration costs,
				  existing technology, and logistics in light of overall project
				  purposes.
(70) "Presently
				  conducted" means existing or ongoing.
(71) "Project" means the entire activity on a
				  parcel of land including all proposed and projected phases and sections of land
				  subdivisions of which all regulated or other activities conducted in a nontidal
				  wetland, buffer, or expanded buffer are a part.
(72) "Project purpose" means the principal
				  reason for conducting all regulated activities and other activities on a
				  project site.
(73) "Rectify" or
				  "rectification" means actions performed to nontidal wetlands which have been
				  temporarily impacted by regulated, forestry, or agricultural activities to
				  return them to previous conditions with at least the same nontidal wetland
				  acreage and equivalent function.
(74) "Regulated activity":
(a) Means any of the following activities
				  which are directly undertaken or originate in a nontidal wetland, or within a
				  buffer or expanded buffer of a nontidal wetland:
(i) Removal, excavation, or dredging of soil,
				  sand, gravel, minerals, organic matter, or materials of any kind;
(ii) Changing existing drainage
				  characteristics, sedimentation patterns, flow patterns, or flood retention
				  characteristics;
(iii) Disturbance
				  of the water level or water table by drainage, impoundment, or other
				  means;
(iv) Dumping, discharging of
				  material, or filling with material, including the driving of piles, and placing
				  of obstructions;
(v) Grading or
				  removal of material that would alter existing topography; and
(vi) Destruction or removal of plant life
				  that would alter the character of a nontidal wetland; and
(b) Does not include an agricultural activity
				  or forestry activity as defined in this subtitle.
(74-1) "Remediation" means corrective actions necessary to
					 ensure success of a mitigation site or a mitigation bank.
(75) "Repair" means an activity
				  that restores the scope, size, and design of a serviceable fill area,
				  structure, or land use to its previously authorized and undamaged condition.
				  Activities that change the size or scope of a project beyond the original
				  design so as to drain, dredge, fill, flood, change the hydrology, or otherwise
				  convert nontidal wetlands that were not previously impacted by the project are
				  not included in this definition. Minor deviations to plans or specifications
				  are allowed as long as no permanent nontidal wetland impact results from the
				  deviation.
(75-1) "Replacement ratio" or "compensation ratio" means
					 the ratio of the area of wetland restored, created, or enhanced to the area of
					 wetland for which mitigation is required.
(76) "Restoration" or "restore" means actions
				  performed which establish nontidal wetlands on former nontidal wetland
				  sites.
(77) "Scrub-shrub wetland"
				  means that portion of a nontidal wetland dominated by woody vegetation less
				  than 20 feet in height as the uppermost strata.
(78) "Seed tree law" means Natural Resources
				  Article, §
											5-501 et seq.,
				  Annotated Code of Maryland.
(79)
				  "Serviceable" means presently usable or currently fulfilling its basic,
				  original purpose.
(80) "Significant
				  plant or wildlife value" means a nontidal wetland:
(a) Of the following unusual or unique
				  community types:
(i) Bogs;
(ii) Areas with bald cypress (Taxodium
				  distichum), Atlantic white cedar (Chamaecyparis thyoides), red spruce (Picea
				  rubens), balsam fir (Abies balsamea), or American larch (Larix laricina) that
				  contain at least 20 percent of these species in any strata as determined by the
				  Federal Manual; or
(iii) Delmarva
				  bays;
(b) With water
				  discharge that maintains minimum stream base flow important for maintaining
				  plant and wildlife species;
(c)
				  With threatened or endangered species, or species in need of
				  conservation;
(d) Adjacent to Class
				  III or Class IV waters defined in COMAR
				  26.08.02.08 a;
(e) Of special State concern;
(f) Supporting vernal pools; or
(g) That is regularly or periodically
				  influenced by tidal waters.
(81) "Site preparation" means a forest
				  activity to remove unwanted vegetation and other material, and to cultivate or
				  prepare the soil for reforestation.
(82) "Skid trail" means a temporary,
				  nonstructural pathway over forest soil to drag felled trees or logs to a log
				  deck.
(83) "Soil conservation and
				  water quality plan" means a land use plan for a farm that shows a farmer how to
				  make best possible use of soil and water resources while protecting and
				  conserving those resources for the future.
(84) "Spring" means a nontidal wetland that
				  discharges ground water at the surface to form a pool or to provide
				  intermittent or perennial surface flow, and that is usually characterized by
				  saturated or organic soils.
(85)
				  "State programmatic general permit" means a general permit issued by the U.S.
				  Army Corps of Engineers governing the protection of nontidal wetlands in
				  Maryland.
(86) "Utility line" means
				  any underground or overhead transmission line, pipe, cable, or wire for the
				  conveyance of public or private water or sewer, natural gas, or the
				  transmission of electrical, radio, or telecommunications service.
(87) "Vernal pool" means a nontidal wetland
				  in a confined depression that has surface water for at least 2 consecutive
				  months during the growing season, and:
(a) Is
				  free of adult fish populations;
(b)
				  Provides habitat for amphibians; and
(c) Lacks abundant herbaceous
				  vegetation.
(88) "Water
				  dependent activity" means an activity for which the use of surface water would
				  be essential to fulfill a basic purpose of the proposed project.
(88-1) "Watershed sub-basin" means one of the 20 watershed
					 areas delineated by the Department in COMAR 26.08.01 and comprising, in sum
					 total, the surface waters of the State.
(89) "Wildlife" means any species of a
				  vertebrate or invertebrate animal, excluding domestic species.