Code of Maryland Regulations › Title 26 - DEPARTMENT OF ENVIRONMENT › Part 4 - SUBTITLES 19-30 › Subtitle 23 - NONTIDAL WETLANDS › Chapter 26.23.02 - Permit Application and Processing › Section 26.23.02.05 - Alternative Site and Avoidance and Minimization Analyses

Current through Register Vol. 51, No. 14, July 12, 2024
A. Alternative Sites.
(1) An applicant shall prove to the
				  Department's satisfaction that alternative sites for the proposed project have
				  been examined during the initial planning phase.
(2) An applicant shall search during the
				  initial planning phase for one or more alternative sites that meet the basic
				  project purpose and would result in less or no adverse impact to nontidal
				  wetlands.
(3) Determining the
				  Initial Planning Phase.
(a) The intent of this
				  section is to require an applicant to evaluate the feasibility of the project
				  and the adverse impact on nontidal wetlands at the earliest stage of the
				  development process, before the applicant has committed substantial resources
				  in the project site. Consideration of alternative sites at the earliest stage
				  enables the applicant to retain the flexibility to avoid adverse impacts to
				  nontidal wetlands.
(b) An applicant
				  shall select the earliest of the following times as the initial planning phase
				  for the proposed project:
(i) When an
				  applicant conducts a formal or informal feasibility or market study, prepares
				  an environmental impact statement or assessment, or a similar study for the
				  project;
(ii) When an applicant
				  enters into an option agreement or contract of sale for the property;
(iii) When an applicant applies for a
				  building permit, subdivision or infrastructure approval, zoning change, or any
				  other local governmental approvals for the project;
(iv) At the time an applicant applies for a
				  permit under this subtitle;
(v)
				  When a budget or financing request is secured; or
(vi) Any other appropriate time selected by
				  the applicant.
(c) For
				  the time selected in §A(3)(b) of this regulation, an applicant shall provide a
				  written justification of the selection, including copies of any documentation
				  supporting the selection and an explanation of why earlier times would be
				  inappropriate or inapplicable to the proposed project.
(d) While the Department will give serious
				  consideration to the initial planning phase selected by the applicant, the
				  Department reserves the right to require additional information from the
				  applicant concerning the initial planning phase selection or independently to
				  determine the appropriate time.
(4) To determine if the project purpose
				  cannot be reasonably accomplished by using other sites, the Department shall,
				  if applicable, consider:
(a) Whether an
				  applicant has made and can document a good faith effort to analyze alternative
				  sites in the general area during the initial planning phase of the proposed
				  project to first avoid and then minimize adverse impacts to nontidal
				  wetlands;
(b) Whether an applicant
				  has made and can document attempts to obtain land ownership interests or other
				  rights to conduct the proposed project activity on alternative sites which
				  avoid and minimize impact to nontidal wetlands;
(c) The total number of alternative sites and
				  the physical, economic, and demographic characteristics of the alternative
				  sites considered by an applicant;
(d) The physical, economic, and demographic
				  requirements of the proposed project relative to the alternative sites
				  analyzed;
(e) The degree to which
				  use of potential alternative sites is constrained by other governmentally
				  imposed restrictions and requirements, including concern for avoidance of
				  environmental, social, community, archaeological, historic, and parkland
				  impacts;
(f) Efforts undertaken to
				  reduce adverse impacts to nontidal wetlands through consideration of reduction
				  of proposed density or other site designs or project configuration on each
				  alternative site analyzed; and
(g)
				  The costs of fulfilling potential mitigation requirements for the project on
				  the selected or alternative site.
(5) An alternative site may not be excluded
				  from consideration during the initial planning phase because it includes or
				  requires an area not owned by the applicant which could reasonably be obtained,
				  used, expanded, or managed to fulfill the basic purpose of the proposed
				  project.