Md. Code Regs. 08.19.02.02 - Criteria for Evaluating Local Programs
A.
A local authority shall submit a proposed forest conservation program to the
Department, for the Department's review and approval, which meets or is more
stringent than the requirements of Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland.
B. General
Criteria. The forest conservation program of a local authority shall include:
(1) A policy document that contains a brief
overview of the purpose and intent of the program;
(2) The requirements of Natural Resources Article,
§§
5-1601 -5-1612,
Annotated Code of Maryland, and the elements of each Article of the Model Forest
Conservation Ordinance provided in COMAR 08.19.03 enacted in substantively similar
form as:
(a) Local law, regulation, or ordinance;
or
(b) Amendments to existing local
laws, regulations, or ordinances;
(3) A technical manual which:
(a) Adopts standards of Natural Resources Article,
§§
5-1601 -5-1613,
Annotated Code of Maryland, and this regulation, for approval of forest stand
delineation and forest conservation plans; and
(b) May be modeled after the State Forest
Conservation Technical Manual;
(4) An explanation of how the local code
provisions are consistent with Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland;
(5) A
certification by the chief legal officer of the local authority or the chief
executive officer that thresholds and standards have been adopted as stated in
Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland; and
(6) Any
other provisions necessary to implement the requirements of Natural Resources
Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, and this subtitle.
C. Under the administrative review, approval, and
appeal procedures, the local authority shall demonstrate that:
(1) The review process for the forest stand
delineation, simplified forest delineation plan, or substitute plan permitted under
Natural Resources Article, §
5-1604(b)(2),
Annotated Code of Maryland, and the forest conservation plan is consistent with the
local development review process;
(2)
Approval of a subdivision, project plan, or issuance of either a grading or sediment
control permit, is contingent upon the approval of a forest conservation plan;
and
(3) The hearing and appeal
procedures are consistent with the local appellate review
procedures.
D. The local
authority may provide incentives including:
(1)
Cost share programs for forest management;
(2) Tax incentives;
(3) Information about State and federal
programs;
(4) Provisions for forest
mitigation banks; and
(5) Other
provisions for conservation of forests that are consistent with Natural Resources
Article, §§
5-1601 -5-1612, and the
local comprehensive land use plan and that are approved by the
Department.
E. Effective Date
Criteria.
(1) For the purpose of COMAR
08.19.01.04D, a local
jurisdiction shall cross-reference as part of its forest conservation program those
other current local criteria for final subdivision, project plan, grading, or
sediment and erosion control plan approval that apply to a determination of
substantive completeness of an application.
(2) The Department is responsible for assuring
that the information referenced in §E(1) of this regulation is available for
affected parties on or before July 1, 1992.
F. Activities which are granted an exemption from
the local program are limited to those activities that:
(1) Are designated in COMAR
08.19.01.04A;
(2) Meet criteria established in the local program
approved by the Department that demonstrate that the activities meet the:
(a) Thresholds and standards for forest retention
and protection as set forth in Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland; and
(b)
Standards for sensitive areas protection as established under Article 66B,
§§ 3.05 -3.06, Annotated Code of Maryland, and adopted in a local land use
plan as defined in Article 66B, § 1.00(f), Annotated Code of
Maryland.
G.
Protective measures required by this subtitle include:
(1) A 2-year maintenance agreement for
afforestation and reforestation projects;
(2) Long-term measures to retain as forest all
land forested, afforested, or reforested, including but not limited to protective
agreements such as conservation easements, approved forest management plans, Forest
Conservation and Management Agreements, deed restrictions, covenants, or land
trusts; and
(3) A final development plat
or subdivision document which shows the areas held under those protective
measures.
H. Variance. The
local program shall contain a provision that:
(1)
Notice of a variance request shall be given to the Department within 15 days of the
local program's receipt of the request; and
(2) Establishes the right and authority of the
Department to initiate or intervene in an administrative, judicial, or other
original proceeding or appeal in the State concerning an approval of a variance
under Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, or this subtitle.
I. Local Forest Conservation Fund.
(1) A local forest conservation fund may be
established for:
(a) Payments by a person made
instead of afforestation or reforestation after demonstrating to the satisfaction of
the local authority that the requirements of afforestation or reforestation onsite
or offsite cannot be reasonably accomplished and appropriate credits generated by a
forest mitigation bank in the same county or watershed are not available;
and
(b) Fines collected from persons in
noncompliance with this subtitle or Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland.
(2) Money deposited in a local forest conservation
fund under §I(1)(a) of this regulation may only be used for the costs
associated with afforestation or reforestation, including costs directly related to
site identification, acquisition, preparation, maintenance of existing forests, and
achieving urban canopy goals.
(3) Money
deposited in a local forest conservation fund under §I(1)(b) of this regulation
may be used by the local authority for the purpose of implementing this
subtitle.
(4) If the local authority
does not establish a forest conservation fund, the local authority:
(a) Shall provide written notice to an applicant
that the applicant shall demonstrate to the satisfaction of the Department and local
authority that reforestation or afforestation onsite or offsite cannot be reasonably
accomplished;
(b) Shall forward the
tentatively approved forest conservation plan to the Department for final review
before a determination that the payment into the Department's fund may be permitted;
and
(c) May not provide final approval
of the applicant's forest conservation plan and the applicant may not deposit money
into the Department's fund, until the Department has given notice to the local
authority that the Department concurs that afforestation and reforestation cannot be
reasonably accomplished.
(5) A
local authority that has an established forest conservation fund shall provide to
the Department and make available to the public:
(a) A general plan identifying appropriate and
potentially available areas for mitigation projects; and
(b) Detailed accounting procedures for accurately
tracking money received into and expended out of the forest conservation
fund.
J. The local
authority may include the following process for submittal of a forest conservation
plan:
(1) A preliminary forest conservation plan,
which shall be reviewed at the first formal stage in the review process;
and
(2) A final forest conservation
plan, which shall be reviewed with the final subdivision or site plan as provided in
Natural Resources Article, §
5-1605(d),
Annotated Code of Maryland.
K.
The local authority may allow an applicant to file the forest stand delineation and
the forest conservation plan in a single submittal if the following requirements are
met:
(1) The procedure is limited to minor
development projects; and
(2) The local
authority demonstrates that the procedure:
(a) Is
consistent with the procedural requirements in Natural Resources Article,
§§
5-1604 and
5-1605, Annotated Code
of Maryland, and this subtitle; and
(b)
Complies with the standards and requirements of Natural Resources Article,
§§
5-1601 -5-1612,
Annotated Code of Maryland, or this subtitle.
L. The local program may substitute for the
declaration of intent a procedure that assures exempted activities do not circumvent
the requirements of Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, or this subtitle.
M. Forest Stand Delineations.
(1) A local program may include other requirements
than those referenced in Natural Resources Article, §
5-1604(b)(1)
-(3), Annotated Code of Maryland, for the approval of a forest stand delineation, if
the following conditions are met:
(a) The
standards of Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, and this subtitle are met; and
(b) The forest stand delineation, simplified
forest stand delineation, or substitute plan permitted under Natural Resources
Article, §
5-1604(b)(2),
Annotated Code of Maryland, is:
(i) Conducted on
the entire site; and
(ii) Used during
the local preliminary review process to determine the most suitable and practical
areas for forest conservation.
(2) A local program may adopt the standards for
forest stand delineations in COMAR 08.19.04 or procedures as described in the State
Forest Conservation Technical Manual.
N. Linear Project Applications.
(1) A local authority may adopt standards and
requirements for linear project applications if the following conditions are met:
(a) The local authority demonstrates to the
Department that the standards and requirements are consistent with Natural Resources
Article, §§
5-1601 -5-1613,
Annotated Code of Maryland, and this subtitle;
(b) The projects are limited to those defined in
COMAR 08.19.01.03B;
(c) The net tract area of a linear project is
consistent with the definition in COMAR
08.19.01.03B;
(d) Exemption of a linear project from submitting
a forest conservation plan is consistent with
08.19.01.04A(8);
and
(e) Linear project applications show
priority retention and planting areas, as identified in Natural Resources Article,
§
5-1607(c)(d),
Annotated Code of Maryland, and by the local program, adjacent to the linear project
area.
(2) A local program may
adopt the standards in COMAR 08.19.04 or the procedures as described in the State
Forest Conservation Technical Manual.
O. Other Forest Conservation Credits for Special
Project Areas.
(1) A local program approved by the
Department may include additional steps as described in this section in the priority
sequence for afforestation or reforestation as authorized in Natural Resources
Article, §
5-1607(b)(2),
Annotated Code of Maryland, for specific development projects which are located in:
(a) Municipalities which adopt a tree care
protection ordinance or master plan for trees planted in public rights-of-way or
planted in accordance with this regulation;
(b) An existing area as designated under an
adopted local land use plan which meets the standards of Article 66B, §§
3.05 -3.06, Annotated Code of Maryland; or
(c) Specific areas designated in a local program
subject to approval by the Department.
(2) The additional steps for afforestation or
reforestation are limited to:
(a) Use of street
trees if:
(i) A minimum planting area is
established in accordance with tree size;
(ii) The planting plan, maintenance agreement, and
long-term protective agreements ensure that a continuous canopy will be maintained
at maturity; and
(iii) Selection of
trees is determined by site constraints; or
(b) Acquisition of protective easements on
existing forested areas, if:
(i) These areas are
not currently protected in perpetuity by easement or other long-term protection
measures as designated by §G of this regulation; and
(ii) The afforestation or reforestation credit
granted does not exceed 50 percent of the area of forest cover protected through the
acquisition of the easement.
P. The local program may contain provisions more
stringent than the requirements of Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, or this subtitle.
Q. Local Authority's Forest Mitigation Bank
Program.
(1) A local program approved by the
Department may include provisions for forest mitigation banks to be established. A
forest mitigation bank may allow applicants to meet the requirements of this
subtitle and Natural Resources Article, §§
5-1601 -5-1612,
Annotated Code of Maryland, by purchasing credits from an approved forest mitigation
bank.
(2) A local program shall require
a forest mitigation bank to:
(a) Afforest or
reforest an area of land in accordance with an approved forest mitigation bank
agreement;
(b) Be protected by an
easement, deed restrictions, or covenants which:
(i) Require the land in the bank to remain
forested in perpetuity; and
(ii) Are
enforceable by the local authority and the Department;
(c) Limit the use of the land in the bank to those
activities which are consistent with:
(i) Forest
conservation such as recreational activities;
(ii) Forest management pursuant to a forest
conservation and management program as provided in Tax-Property Article,
§8-211, Annotated Code of Maryland; or
(iii) Activities specified in a forest management
plan prepared by a licensed forester and approved by the local authority or the
Department;
(d) Use native
plant materials for afforestation or reforestation unless inappropriate;
and
(e) Cause trees to be planted which:
(i) Establish or enhance forested buffers adjacent
to intermittent and perennial streams and coastal bays to widths of at least 50
feet;
(ii) Establish forested corridors
or enhance existing forested corridors to connect existing forest, within or
adjacent to the site;
(iii) Establish or
enhance forested areas in 100-year floodplains;
(iv) Stabilize slopes of 25 percent or
greater;
(v) Stabilize slopes of 15
percent or greater with a soil K value greater than 0.35 including the slopes of
ravines or other natural depressions;
(vi) Establish forest buffers adjacent to areas of
differing land use where appropriate, or adjacent to highways or utility
rights-of-way; or
(vii) Establish
additional forest areas adjacent to existing forests to increase the overall area of
contiguous forest cover, when appropriate.
(3) Where practical, forested corridors should be
a minimum of 300 feet in width to facilitate wildlife movement.
(4) A local program shall require an individual
proposing to establish a forest mitigation bank to submit a:
(a) Completed application on a form approved by
the Department and which has been signed by an authorized individual in conformance
with COMAR 08.19.04.02I;
(b) Forest mitigation bank plan which contains a:
(i) Vicinity map of the proposed mitigation bank
site;
(ii) Simplified forest stand
delineation which meets the criteria in COMAR
08.19.04.02I;
(iii) Detailed afforestation or reforestation plan
prepared by a licensed Maryland forester, a licensed landscape architect, or a
qualified professional who meets the requirements stated in COMAR
08.19.06.01AA which
includes a timetable and description of the site and soil preparation needed,
species, size, and spacing to be utilized;
(iv) Proposed 2-year maintenance agreement that
sets forth how the areas afforested or reforested will be maintained to ensure
protection and satisfactory establishment, that complies with COMAR
08.19.04.05C(4)(a),
and includes watering and reinforcement planting provisions if survival falls below
required standards;
(c) Copy
of the deed of the property;
(d) Survey
or other legally sufficient description of the bank site for inclusion in the deeds
of easement, deed restrictions, or covenants;
(e) Title report or other assurance that:
(i) The property is not encumbered by any
covenants or other types of restrictions which would impair the property's use as a
forest mitigation bank; and
(ii) There
is legally sufficient access to the forest mitigation bank site which can be used by
the local government and the Department to inspect the property;
and
(f) Description of the
system to be used by the banker to identify and track which portions of the bank
have been debited to meet an applicant's off-site afforestation or reforestation
requirements.
(5) A local
program shall require the owner of the mitigation bank to enter into an agreement
which contains the:
(a) Approved reforestation or
afforestation plan;
(b) Approved system
for marking and tracking which portions of the bank have been debited; and
(c) Acknowledgment that the bank may not debit any
portion of the afforested or reforested land until 2 years of successful growth have
been achieved unless the banker has posted a bond or alternate form of security to
ensure that trees will be cared for and maintained in
perpetuity.
R.
Enforcement Notification. The local program shall contain a provision that notice of
an enforcement action shall be given to the Department within 15 days after the
commencement of enforcement by the local program.
Notes
Regulation .02I amended effective January 24, 2011 (38:2 Md. R. 83)
Regulation .02R adopted effective January 26, 2009 (36:2 Md. R. 100); amended effective 46:22 Md. R. 976, eff.
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