Code of Maryland Regulations › Title 26 - DEPARTMENT OF ENVIRONMENT › Part 3 - SUBTITLES 13-18 › Subtitle 17 - WATER MANAGEMENT › Chapter 26.17.04 - Construction on Nontidal Waters and Floodplains › Section 26.17.04.11 - Criteria for Evaluating Applications

Current through Register Vol. 51, No. 14, July 12, 2024
A. The criteria described herein are
				  presented to assist persons in preparing their permit applications and to
				  provide a consistent basis for the Administration's decisions. The
				  Administration shall follow the criteria, unless the Administration determines
				  that the overall public interest requires a variance. In that case, written
				  documentation justifying the variance shall have been submitted by the
				  applicant and will be approved in writing by the Administration, for inclusion
				  in the record. As the basis for approval, denial, or modification of a permit,
				  the Administration shall weigh all public advantages and disadvantages. The
				  administration shall grant the permit, if approval of the project is in the
				  best public interest and the plans for the project provide for the greatest
				  feasible utilization of the waters of the State, adequately preserve the public
				  safety, and promote the general public welfare. The criteria described in § B
				  of this regulation shall apply to all applications. Depending on the purpose of
				  the proposed project, additional specific criteria, as described in subsequent
				  sections, shall also apply.
B.
				  General Criteria.
(1) In all cases where the
				  proposed project is on a stream in the State Scenic and Wild Rivers Program
				  and, in the case of other streams, when necessary, the Administration shall
				  advise the applicant of the outstanding scenic, fish, wildlife, and other
				  recreation values to the citizens of the State. In these cases, the applicant
				  shall consider alternatives less harmful to the stream's value as a scenic and
				  wild resource. Construction of an impoundment upon a scenic or wild river is
				  contrary to the public interest, if that project floods an area of unusual
				  beauty, blocks the access to the public of a view previously enjoyed, or alters
				  the stream's wild qualities.
(2) A
				  dam or other structure impeding the natural flow of a scenic and wild river may
				  not be constructed, operated, or maintained in a scenic and wild river, and
				  channelization may not be undertaken unless specifically approved. The
				  Secretary's approval authority under Natural Article, §8-406, is delegated to
				  the Director of the Water Resources Administration or the Director's designee.
				  The Director or the designee shall consider the comments received from the
				  Department of Natural Resources as well as the standards established in §B(1)
				  of this regulation to protect the river's scenic and wild qualities.
(3) In the evaluation of permit applications,
				  the Administration shall consider the blockage of free passage of fish to be
				  contrary to the public interest, except as provided in Natural Resources
				  Article, §
											4-502(d),
				  Annotated Code of Maryland.
(4)
				  Category II, III, or IV dams may not be built or allowed to impound water in
				  any location where a failure is likely to result in the loss of human life or
				  severe damage to streets, major roads, public utilities, or other high value
				  property.
(5) Proposed projects
				  that eliminate or significantly and adversely affect aquatic or terrestrial
				  habitat and their related flora and fauna are not in the public interest. At a
				  minimum, all in-stream construction shall be prohibited from October through
				  April, inclusive, for natural trout waters and from March through May,
				  inclusive, for recreational trout waters. In addition, the construction of
				  proposed projects, which may adversely affect anadromous fish spawning areas,
				  shall be prohibited from March 15 through June 15, inclusive. For projects when
				  there is no reasonable alternative to the adverse effects on nontidal wetlands
				  or other aquatic or terrestrial habitat, the applicant shall be required to
				  provide measures to mitigate, replace, or minimize the loss of
				  habitat.
(6) Proposed projects
				  which increase the risk of flooding to other property owners are prohibited,
				  unless that area subject to additional risk of flooding is purchased, placed in
				  designated flood easement, or addressed by other means acceptable to the
				  Administration.
(7) The
				  construction or substantial improvement of any residential, commercial, or
				  industrial structure in the 100-year frequency floodplain and below the water
				  surface elevation of the 100-year frequency flood may not be permitted. Minor
				  maintenance and repair may be permitted. In addition, the modifications of
				  existing structures for flood-proofing purposes may be permitted.
				  Flood-proofing modifications shall be designed and constructed in accordance
				  with specifications approved by the Administration.