Code of Maryland Regulations › Title 26 - DEPARTMENT OF ENVIRONMENT › Part 4 - SUBTITLES 19-30 › Subtitle 23 - NONTIDAL WETLANDS › Chapter 26.23.04 - Mitigation › Section 26.23.04.01 - Mitigation for Agricultural Activities

Current through Register Vol. 51, No. 14, July 12, 2024
A. Exemptions. Mitigation or monetary
				  compensation for nontidal wetland losses are not required for agricultural
				  activities which are exempted under COMAR
				  26.23.05.01 a B.
B. Requirements.
(1) The Department shall require that a
				  person conducting an agricultural activity in nontidal wetlands after December
				  31, 1990, mitigate for the loss of nontidal wetlands within 3 years of the
				  loss, if the agricultural activity is not exempted under COMAR
				  26.23.05.01 a B.
(2) A person conducting an agricultural
				  activity which causes the loss of nontidal wetlands shall, in consultation with
				  a soil conservation district, develop a mitigation component of the soil
				  conservation and water quality plan.
(3) A person conducting an agricultural
				  activity shall submit the mitigation component of a soil conservation and water
				  quality plan to the Department for review before final approval by a soil
				  conservation district.
(4) The
				  Department shall review the mitigation component of the soil conservation and
				  water quality plan for consistency with Regulations .03-----.07 of this
				  chapter. The Department shall notify the landowner and the soil conservation
				  district if the mitigation component is consistent within 60 days of receipt of
				  a mitigation component.
(5) If the
				  Department fails to notify the landowner and the soil conservation district
				  within 60 days of receipt of a mitigation component, then the mitigation
				  component shall be deemed to be consistent with Regulations .03-----.07 of this
				  chapter.
(6) A soil conservation
				  district may not approve the components of a soil conservation and water
				  quality plan pertaining to nontidal wetland impacts if the Department has
				  determined that the mitigation component is inconsistent with Regulations
				  .03-----.07 of this chapter.
(7)
				  The Department, in determining the extent of mitigation, shall consider the
				  benefit provided by best management practices in replacing lost nontidal
				  wetland acreage and functions.
(8)
				  The Department may accept monetary compensation only if it is determined that
				  creation, restoration, or enhancement of nontidal wetlands are not feasible
				  alternatives. Monetary compensation shall be accepted only under the
				  conditions, and based on the fee structure guidelines, in Regulation .07 of
				  this chapter.
(9) If the Department
				  of Agriculture determines in writing that mitigation will create an economic
				  hardship that would jeopardize the continued operation of a farm, mitigation
				  may be deferred until one or more of the following occur:
(a) The economic hardship no longer
				  exists.
(b) The current owner or
				  operator transfers the farm to a new owner or operator. In this case, the
				  current owner or operator shall remain responsible for mitigation.
(c) Agricultural activities no longer take
				  place on the nontidal wetland.
(10) When an economic hardship, as determined
				  by the Department of Agriculture, ends due to conditions described in §B(9) of
				  this regulation:
(a) A person conducting an
				  agricultural activity shall implement the mitigation component of an approved
				  soil conservation and water quality plan within 3 years of the loss of the
				  nontidal wetland, or within 1 year of the end of the economic hardship,
				  whichever is greater; and
(b) The
				  Department of Agriculture shall notify the Department in writing within 30 days
				  of the end of the economic hardship.
(11) The Department shall require that a
				  person conducting an agricultural activity in a nontidal wetland, which
				  requires mitigation, to file a surety bond with the Department consistent with
				  Regulation .04B of this chapter, within:
(a)
				  60 days of approval of the soil conservation and water quality plan which
				  includes the mitigation component, provided that an economic hardship
				  determination has not been granted; or
(b) 90 days of the expiration of an economic
				  hardship determination.
(12) The Department of Agriculture shall
				  submit a mitigation report to the Department at the end of each fiscal year.
				  This report shall provide the following information on the status of the
				  Department of Agriculture's economic hardship determinations for each farm:
(a) Whether the economic hardship still
				  exists;
(b) Whether the owner or
				  operator granted the deferral is the current owner or operator; and
(c) The acreage of nontidal wetland losses
				  for which mitigation has been deferred by the economic hardship.