Title 27 CRITICAL AREA COMMISSION FOR THE CHESAPEAKE … · 13 Chapter 03 [Water Dependent]...

1

Title 27 CRITICAL AREA COMMISSION 1

FOR THE CHESAPEAKE AND ATLANTIC 2

COASTAL BAYS 3

4

Subtitle 01 CRITERIA FOR LOCAL CRITICAL AREA 5

PROGRAM DEVELOPMENT 6

7

Chapter 01 General Provisions 8

Authority: Natural Resources Article, §§8-1806, 8-1808(c), 8-1808.4(a), 8-1808.5(a), and 8-1811, 9

Annotated Code of Maryland 10

11

.01 Definitions. 12

A. (text unchanged) 13

B. Terms Defined. 14

(1) — (13) (text unchanged) 15

(14) ["Community piers" means boat docking facilities associated with subdivisions and 16

similar residential areas, and with condominium, apartment, and other multiple-family dwelling 17

units. Private piers are excluded from this definition] “Community pier” has the meaning stated 18

in Natural Resources Article, §8-1808.5(a), Annotated Code of Maryland. 19

(15) — (51-2) (text unchanged) 20

(52) Port. 21

(a) "Port" means a facility or area established or designated by the State or a local 22

[jurisdictions for purposes] jurisdiction for the purpose of water-borne commerce. 23

(b) “Port” does not include a product transfer facility or activity, as covered in 24

COMAR 27.01.03.11. 25

2


(67-1) Structure. 2

(a) "Structure" means building or construction materials, or a combination of 3

those materials, that are purposely assembled or joined together on or over land or water. 4

(b) "Structure" includes a temporary or permanent fixed or floating pier, piling, 5

deck, walkway, dwelling, building, boathouse, platform, gazebo, and a shelter for the purpose of 6

marine access, navigation, working, eating, sleeping, or recreating. 7


[(76) "Water-use industry" means an industry that requires location near the shoreline 9

because it utilizes surface waters for cooling or other internal purposes.] REPEAL 10


12

Chapter 03 [Water Dependent] Water-Dependent Facilities and Activities 13

Authority: Natural Resources Article, §§8-1808(d) and 8-1808.3, Annotated Code of Maryland 14

15

.01 Definition. 16

A. ["Water-dependent facilities" means those structures or works associated with industrial, 17

maritime, recreational, educational, or fisheries activities that require location at or near the 18

shoreline within the Buffer specified in COMAR 27.01.09] In this chapter, “water-dependent 19

facility or activity” means a structure or activity that, by reason of its intrinsic nature or 20

operation or because of its association with an industrial, maritime, recreational, educational, 21

aquaculture, or fishery activity, is dependent on the water and requires location at or near the 22

shoreline or in the buffer. 23

3

B. [An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the 1

water by reason of the intrinsic nature of its operation. These activities include, but are not 2

limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas 3

and other boat docking structures, public beaches and other public water-oriented recreation 4

areas, and fisheries activities] “Water-dependent facility or activity” includes: 5

(1) A port; 6

(2) An intake or outfall structure; 7

(3) A marina, another boat-docking facility, or a structure or activity that is essential to 8

the operation of the water-dependent facility, structure, or activity; 9

(4) A fuel pump or other fuel-dispensing equipment on a pier, a sanitary sewage pump or 10

other wastewater removal equipment on a pier, and an office on a pier for managing marina 11

operations, such as monitoring vessel traffic, registering vessels, providing docking services, and 12

housing electrical or emergency equipment related to marina operations; 13

(5) A public beach and any other public water-oriented recreation area; 14

(6) A product transfer facility or activity, as defined in Regulation .11 of this chapter; 15

and 16

(7) Any other water-dependent facility or activity that supports water quality restoration 17

in the Chesapeake Bay, the Atlantic Coastal Bays, or their watersheds. 18

[C. Excluded from this regulation are individual private piers installed or maintained by 19

riparian landowners, and which are not part of a subdivision which provides community piers 20

(see Regulation .07 of this chapter).] 21

22

.01-1. Applicability. 23

4

The provisions of this chapter are not applicable to: 1

A. A private pier that: 2

(1) Is installed or maintained by a riparian landowner; and 3

(2) Is not part of a residential project that provides a community pier or other community 4

boat-docking or storage facility under Regulation .07 of this chapter; or 5

B. A nonwater-dependent project covered under COMAR 27.01.13. 6

7

.02 [Policies] Policy. 8

In developing [their] and updating its Critical Area [programs, local jurisdictions] program, a 9

local jurisdiction shall [follow these policies when addressing water-dependent facilities: 10

A. Limit development activities in the Buffer, specified in COMAR 27.01.09, to those that are 11

water-dependent; and 12

B. Provide by] provide design and locational criteria to assure that [these activities will have] a 13

water-dependent facility or activity has minimal individual and cumulative impact on water 14

quality and fish, wildlife, and plant habitat in the Critical Area. 15

16

.03 General Criteria. 17

In developing [their] and updating its Critical Area [programs, local jurisdictions shall follow 18

these criteria when addressing water-dependent facilities] program, a local jurisdiction: 19

A. In accordance with Natural Resources Article, §8-1808.3, Annotated Code of Maryland, 20

Regulation .11 C (4) of this chapter, if applicable, and COMAR 27.01.09, shall limit 21

development in the buffer to the minimum lot coverage necessary to accommodate each water-22

dependent facility or activity; 23

5

B. Except as otherwise provided in this chapter [new or expanded development activities may 1

be permitted in the Buffer in], may approve a water-dependent facility or activity in the buffer of 2

an intensely developed [and] area or a limited development [areas provided that it can be 3

shown] area if: 4

(1) [That they are] The facility or activity is water-dependent; 5

(2) [That the project] The facility or activity meets a recognized private right or public need; 6

(3) [That adverse effects] Adverse impacts on water quality and fish, [plant, and wildlife] 7

wildlife, and plant habitat are avoided or, in the alternative, minimized; and 8

(4) [That, insofar] Insofar as possible, a nonwater-dependent [structures or operations] 9

project associated with the water-dependent [projects or activities are] facility or activity is 10

located outside the [Buffer; and] buffer; 11

[(5) That the facilities are consistent with an approved local plan as set forth below.] 12

[B.] C. Except for a product transfer facility or activity under Regulation .11 of this chapter or 13

as otherwise authorized in this [regulation new or expanded development activities may not be 14

permitted in those portions of the Buffer which occur in] chapter, may not approve a water-15

dependent facility or activity in the buffer of a resource conservation [areas] area; 16

D. May not approve the placement of dredged material in the buffer or a portion of the Critical 17

Area that has been designated as a habitat protection area, except as necessary for: 18

(1) A beneficial use approved by the Board of Public Works or the Department of the 19

Environment, such as: 20

(a) Backfill for a shoreline stabilization measure; 21

(b) Use in a non-structural shoreline stabilization measure, including a living 22

shoreline; 23

6

(c) Beach nourishment; 1

(d) Restoration of an island; 2

(e) The creation, restoration, or enhancement of a wetland, or a fish, wildlife, or 3

plant habitat; or 4

(f) Any other approved beneficial use; or 5

(2) Placement in an area that was approved for the disposal of channel maintenance 6

dredged material before June 11, 1988; and 7

E. Shall ensure: 8

(1) The avoidance, or, in the alternative, the minimization of impacts to fish, wildlife, or 9

plant habitat; and 10

(2) Mitigation at a ratio of 1:1 based on the square footage of the area of the canopy 11

coverage removed. 12

13

.04 [Local Plan] General Requirements for the Location of Water-Dependent Facilities or 14

Activities. 15

A. [Local jurisdictions, with the assistance of appropriate State agencies, shall develop a plan 16

and associated policies and implementation programs for approving areas suitable for new or 17

expanded water-dependent facilities in accordance with Regulation .03, above, and others in this 18

chapter. The plans and programs should include the re-evaluation of areas currently zoned or 19

approved for these facilities to determine if current policies are consistent with the Critical Area 20

programs] The provisions of this regulation are in addition to the provisions of Regulation .03 of 21

this chapter. 22

7

B. [The plan shall specify a process which considers the following factors in planning for areas 1

suitable for water-dependent activities:] In accordance with the provisions of this chapter and in 2

conjunction with, as applicable, the Departments of Agriculture, Environment, and Natural 3

Resources, and any other appropriate federal or State agency, a local jurisdiction shall develop 4

a plan for the approval of an area as suitable for the location of a new or expanded water-5

dependent facility or activity. 6

C. In developing the plan required under §B of this regulation, a local jurisdiction shall 7

document how each of the following siting factors is accorded due consideration: 8

[(1) That the activities will not significantly alter existing water circulation patterns or salinity 9

regimes; 10

(2) That the water body upon which these activities are proposed has adequate flushing 11

characteristics in the area; 12

(3) That disturbance to wetlands, submerged aquatic plant beds, or other areas of important 13

aquatic habitats will be minimized; 14

(4) That adverse impacts to water quality that may occur as a result of these activities, such 15

as nonpoint source runoff, sewage discharge from land activities or vessels, or from boat 16

cleaning and maintenance operations, is minimized; 17

(5) That shellfish beds will not be disturbed or be made subject to discharge that will render 18

them unsuitable for harvesting; 19

(6) That dredging shall be conducted in a manner, and using a method, which causes the least 20

disturbance to water quality and aquatic and terrestrial habitats in the area immediately 21

surrounding the dredging operation or within the Critical Area, generally; 22

8

(7) That dredged spoil will not be placed within the Buffer or elsewhere in that portion of the 1

Critical Area which has been designated as a habitat protection area except as necessary for: 2

(a) Backfill for permitted shore erosion protection measures, 3

(b) Use in approved vegetative shore erosion projects, 4

(c) Placement on previously approved channel maintenance spoil disposal areas, and 5

(d) Beach nourishment; and 6

(8) That interference with the natural transport of sand will be minimized] 7

(1) The impact on the water body upon which the water-dependent facility or activity is 8

proposed that would likely result from the approval of that location, including: 9

(a) Alteration of an existing water circulation pattern or salinity regime; 10

(b) Adequacy of area flushing characteristics; 11

(c) Necessity of, and proximity to, a dredging operation; and 12

(d) Interference with the natural transport of sand; 13

(2) Disturbance to: 14

(a) An oyster harvest area, as defined in COMAR .08.02.04.11; 15

(b) An area covered in a current aquaculture lease, as defined in Natural Resources 16

Article, §4-11A-01, Annotated Code of Maryland; 17

(c) A harvest reserve area, as designated under Natural Resources Article, §4- 18

1009.1, Annotated Code of Maryland; 19

(d) An oyster sanctuary, as established in COMAR .08.02.04.15A; and 20

(e) Any other shellfish located in a shellfish area regulated by the Department of 21

Natural Resources; 22

9

(3) Avoidance of disturbance to water quality and aquatic or terrestrial habitat resulting 1

from the method or manner of dredging; and 2

(4) Avoidance or, in the alternative, minimization of: 3

(a) Disturbance to: 4

(i) A wetland; 5

(ii) Submerged aquatic vegetation; 6

(iii) A habitat of threatened or endangered species or species in need of 7

conservation; 8

(iv) In accordance with COMAR 26.08.02.04-1, a water body identified by the 9

Department of the Environment as a Tier II, high quality, water body and its watershed; and 10

(v) A nontidal wetland of special State concern, as set forth in COMAR 11

26.23.01.01 and .04, and COMAR 26.23.06.01; and 12

(b) Adverse impact on water quality that would likely result from the facility or activity, 13

such as nonpoint source runoff, sewage discharge, or other pollution related to vessel 14

maintenance. 15

[C. The information necessary for evaluating the above factors, if not available locally, should 16

be obtained from appropriate State and federal agencies.] 17

18

.05 Industrial and Port-Related Water-Dependent Facilities and Activities. 19

[New, expanded, or redeveloped water-dependent industrial or port-related facilities and the 20

replacement of these facilities may be located only in those portions of intensely developed areas 21

designated as a modified buffer area in accordance with COMAR 27.01.09.01-8 and are subject 22

10

to the requirements set forth in Regulation .03A of this chapter] A. The provisions of this 1

regulation are in addition to the provisions of Regulations .03 and .04 of this chapter. 2

B. A local jurisdiction may approve the development of an industrial or port-related water-3

dependent facility or activity that is located in an intensely developed area that: 4

(1) Under the provisions of COMAR 27.01.09.01-8: 5

(a) Has been designated as a modified buffer area; or 6

(b) Has not been designated as a modified buffer area, if the facility or activity 7

complies with local program requirements applicable to a non-conforming use in the local 8

jurisdiction in which the facility or activity is located; or 9

(2) Is an approved use in accordance with the local Critical Area program. 10

11

.06 Commercial Marinas and Other Water-Dependent Commercial Maritime Facilities and 12

Activities. 13

[A. New or expanded marinas and related facilities may be permitted in the Buffer within 14

intensely developed areas and limited development areas subject to the requirements of 15

Regulation .03A of this chapter. 16

B. New marinas or related maritime facilities may not be permitted in the Buffer within 17

resource conservation areas, except as provided in Regulation .08 of this chapter. 18

C. Expansion of existing marinas may be permitted by local jurisdictions within resource 19

conservation areas provided that it is sufficiently demonstrated that the expansion will not 20

adversely affect water quality, and that it will result in an overall net improvement in water 21

quality at or leaving the site of the marina. 22

11

D. New and existing marinas shall meet the sanitary requirements of the Department of the 1

Environment as required in COMAR 26.04.02. 2

E. New marinas shall establish a means of minimizing the discharge of bottom wash waters 3

into tidal waters] 4

A. The provisions of this regulation are in addition to the provisions of Regulations .03 and .04 5

of this chapter. 6

B. A local jurisdiction shall require that the operation of each commercial marina and each 7

related commercial maritime facility or activity complies with: 8

(1) The requirements of COMAR 26.08.04.09 and, as applicable, 26.24.04.03; and 9

(2) The stormwater, wastewater, noncontact cooling water discharge, and any other 10

applicable requirements of the Department of the Environment. 11

C. A local jurisdiction may approve: 12

(1) The development of a commercial marina or a related commercial maritime facility 13

or activity located in the buffer of an intensely developed area or a limited development area; 14

(2) The redevelopment or expansion of a commercial marina or other related commercial 15

maritime facility or activity located in the buffer of a resource conservation area; or 16

(3) The development of a new commercial marina or other related commercial maritime 17

facility or activity located in the buffer of a resource conservation area, if the marina or other 18

related facility or activity is publicly owned and meets all the requirements under Regulation .08 19

of this chapter. 20

21

.07 Community Piers and Other [Related Noncommercial Boat Docking] Community Boat-22

Docking and Storage Facilities. 23

12

A. [New or expanded community piers and other noncommercial boat-docking and storage 1

facilities may be authorized in the buffer subject to the requirements of Regulation .03A of this 2

chapter and §B of this regulation, provided that] A. The provisions of this regulation are in 3

addition to the provisions of Regulations .03 and .04 of this chapter. 4

B. Subject to the requirements under §C of this regulation, a local jurisdiction may approve 5

the location of a new or expanded community pier or other community boat-docking or storage 6

facility in the buffer if: 7

(1) [These facilities may not offer food, fuel, or other goods and services for sale and shall 8

provide adequate and clean sanitary facilities] The owner or operator of the pier or facility: 9

(a) Does not offer food, fuel, or other goods and services for sale in the buffer or on the 10

community pier; and 11

(b) As applicable, complies with the requirements of COMAR 26.24.04.03; 12

(2) The [facilities are] pier or facility is community-owned and established and operated for 13

the benefit of the residents of a platted and recorded riparian subdivision; 14

(3) The [facilities are] pier or facility is associated with a residential [development] project 15

approved by the local jurisdiction [for the Critical Area and consistent with all criteria and local 16

regulations for the Critical Area] as consistent with all State and local program requirements; 17

(4) Disturbance to the [Buffer] buffer is the minimum necessary to provide a single point of 18

access to the [facilities] pier or facility; and 19

(5) If [community piers are] a community pier is provided as part of [the new development] a 20

new residential project, private piers [in the development are not authorized] are prohibited in 21

that residential project. 22

13

C. The number of slips authorized at [the] a pier or facility shall be the lesser of [§B(1) or (2),] 1

§C(1) or (2) of this regulation: 2

(1) One slip for each 50 feet of shoreline in [the subdivision] a residential project in the 3

intense development and limited development [areas] areas, and one slip for each 300 feet of 4

shoreline in [the subdivision] a residential project in the resource conservation area; or 5

(2) A density of slips to platted lots or dwellings within [the subdivision] a residential 6

project in the Critical Area according to the following schedule: 7

8

Platted Lots or Dwellings

in the Critical Area

Slips

up to 15 1 for each lot

16—40 15 or 75%, whichever is greater



over 300 75 or 15%, whichever is greater

9

.08 Public Beaches and Other Public Water-Oriented Recreation or Education Areas or 10

Activities. 11

A. [Public beaches or other public water-oriented recreation or education areas including, but 12

not limited to, publicly owned boat launching and docking facilities and fishing piers may be 13

permitted in the Buffer in intensely developed areas. 14

14

B. These facilities may be permitted within the Buffer in limited development areas and 1

resource conservation areas provided that] The provisions of this regulation are in addition to the 2

provisions of Regulations .03 and .04 of this chapter. 3

B. A local jurisdiction may approve the location of: 4

(1) A public beach or other public water-oriented recreation or education area or 5

activity in the buffer of: 6

(a) An intensely developed area; or 7

(b) A limited development area or a resource conservation area if: 8

[(1)] (i) Adequate sanitary facilities exist; 9

[(2) Service] (ii) Sanitary and service facilities are, to the extent possible, 10

located outside the [Buffer] buffer; 11

[(3) Permeable surfaces are] (iii) A permeable surface is used to the 12

extent practicable, if no degradation of ground water would likely result; and 13

[(4)] (iv) Disturbance to natural vegetation is avoided or, in the 14

alternative, minimized; [and] or 15

[(5) Areas for passive recreation, such as nature study, and hunting and trapping, and for 16

education, may be permitted in the Buffer within resource conservation areas, if service facilities 17

for these uses are located outside of the Buffer] 18

(2) A public passive outdoor recreation or education area, such as hiking, hunting, 19

trapping, or nature study, in the buffer of a limited development area or a resource conservation 20

area if sanitary and service facilities to support these uses are located outside the buffer. 21

22

15

.09 [Research Areas] Research-Associated and Education-Associated Water-Dependent 1

Facilities or Activities. 2

[Water-dependent research facilities or activities operated by State, federal, or local agencies, 3

or educational institutions, may be permitted in the Buffer, if nonwater-dependent structures or 4

facilities associated with these projects are, to the extent possible, located outside of the Buffer] 5


of this chapter. 7

B. As applicable, if an associated nonwater-dependent project is located outside the buffer, a 8

local jurisdiction may approve the location in the buffer of a research-associated water-9

dependent facility or activity or of an education-associated water-dependent facility or activity. 10

11

.10 [Fisheries] Aquaculture and Fishery Facilities and Activities; and Water Quality 12

Restoration. 13

[A. Lands and water areas with high aquacultural potential should be identified by the local 14

jurisdictions in cooperation with the State. These areas are encouraged for that use and, if so 15

used, should be protected from degradation by other types of land and water use or by adjacent 16

land and water uses. 17

B. Commercial water-dependent fisheries facilities including, but not limited to, structures for 18

crab shedding, fish off-loading docks, shellfish culture operations, and shore-based facilities 19

necessary for aquaculture operations, and fisheries activities, may be permitted in the Buffer, in 20

intensely developed, limited development, and resource conservation areas] 21


of this chapter. 23

16

B. A local jurisdiction may approve the location of the following facilities and activities in the 1

buffer: 2

(1) A shore-based facility or activity necessary for a commercial aquaculture operation; 3

(2) A commercial water-dependent fishery facility or activity, including a structure for 4

crab shedding, a fish off-loading dock, and a shellfish culture operation; and 5

(3) A facility or activity that supports water quality restoration in the Chesapeake Bay, 6

the Atlantic Coastal Bays, or their watersheds. 7

8

.11 Product Transfer Facilities or Activities. 9

A. Definitions. 10

(1) In this regulation, the following terms have the meanings indicated. 11

(2) Agriculture Products. 12

(a) “Agriculture products” means goods that: 13

(i) Are used in farm production or are produced on a farm; and 14

(ii) Have a domestic or foreign commercial market. 15

(b) “Agriculture products” include fertilizer, grain, and seed. 16

(3) Agriculture Product Transfer Facility or Activity. 17

(a) “Agriculture product transfer facility or activity” means a water-dependent 18

commercial facility or activity with the primary purpose of loading or unloading agriculture 19

products in the buffer. 20

(b) “Agriculture product transfer facility or activity” may include: 21

(i) In the buffer, conveyer equipment, other machinery, and storage bins that are 22

related to the water-dependent transport of agriculture products; and 23

17

(ii) Outside the buffer, a nonwater-dependent project that is related to the 1

storage, transfer, processing, or sale of agriculture products, and is necessary to support the 2

water-dependent facility or activity under §A(3)(a) of this regulation. 3

(4) Forest Products. 4

(a) “Forest products” means trees or parts of a tree harvested for compensation. 5

(b) “Forest products” include: 6

(i) Green lumber, logs, pulpwood, firewood, bark, chips, shavings, and sawdust; 7

and 8

(ii) A final product that results from the additional processing of a forest product, 9

such as dried lumber, veneer, particle board and related products, plywood, pulp, paper, piling, 10

posts, mats, and pellets. 11

(5) Forest Product Transfer Facility or Activity. 12

(a) “Forest product transfer facility or activity” means a water-dependent 13

commercial facility or activity with the primary purpose of loading or unloading forest products 14

in the buffer. 15

(b) “Forest product transfer facility or activity” may include: 16

(i) In the buffer, conveyor equipment, other machinery, and storage 17

bins that are related to the water-dependent transport of forest products; and 18

(ii) Outside the buffer, a nonwater-dependent project that is related to the 19

storage, transfer, processing, or sale of forest products, and is necessary to support the water-20

dependent facility or activity under §A(5)(a) of this regulation. 21

(6) Product Transfer Facility or Activity. 22

(a) “Product transfer facility or activity” means a facility or activity approved by 23

18

a local jurisdiction for the primary purpose of water-borne transportation of agriculture 1

products or forest products. 2

(b) “Product transfer facility or activity” includes: 3

(i) An agriculture product transfer facility or activity; or 4

(ii) A forest product transfer facility or activity. 5

(c) “Product transfer facility or activity” does not include a commercial or industrial use 6

that is not approved under the local Critical Area program. 7

B. The provisions of this regulation: 8

(1) Are in addition to the provisions of Regulations .03 and .04 of this chapter; and 9

(2) Do not apply to silviculture. 10

C. In developing and updating its Critical Area program, a local jurisdiction may approve the 11

location of a product transfer facility or activity in the buffer if the Commission has approved a 12

local program amendment that: 13

(1) Authorizes the development of the buffer for the purpose of an agriculture or 14

forest product transfer facility or activity; 15

(2) Ensures that the location of a product transfer facility or activity in a 16

resource conservation area will, in accordance with land uses authorized under COMAR 17

27.01.02.05, minimize impacts to the resource conservation area; 18

(3) Demonstrates: 19

(a) Compliance of the product transfer facility or activity with all applicable 20

federal, State, and local requirements; and 21

(b) The consistency of the product transfer facility or activity with the 22

comprehensive plan of the local jurisdiction; 23

19

(4) Requires due consideration of the following factors: 1

(a) The extent of lot coverage in the buffer that is associated with the product 2

transfer facility or activity, including temporary staging, is no more than necessary to 3

accomplish the water-dependent transport operation of the facility or activity; 4

(b) Short-term storage of agriculture products or forest products in the buffer is 5

no more than necessary to coordinate the water-dependent transport of the products with their 6

nonwater-dependent transport; and 7

(c) The use, placement, or parking of equipment or vehicles in the buffer, such as 8

a forklift, crane, truck, or automobile, is no more than necessary to accomplish the water-9

dependent transport operation of the product transfer facility or activity; and 10

(5) Establishes procedures and requirements applicable upon the abandonment of an 11

approved product transfer facility or activity, including: 12

(a) The re-use of the site for another approved product transfer facility or activity 13

or for some other approved water-dependent facility or activity, including as much restoration of 14

the site to its pre-development condition as is practicable given the nature and extent of the 15

approved re-use; and 16

(b) If the site will no longer be used, the decommissioning of the facility or 17

activity by stabilizing the site and restoring the buffer to its pre-development condition, including 18

the posting of a bond sufficient to cover all costs associated with demolition, removal, recycling, 19

site stabilization, stormwater management, and buffer restoration. 20

D. A local jurisdiction: 21

20

(1) Shall require that re-use of a site approved as a product transfer facility or activity 1

complies with all applicable federal, State, and local requirements and is consistent with its 2

comprehensive plan; and 3

(2) May not approve the re-use of a site approved as a product transfer facility or activity 4

for another product transfer facility or activity or for some other water-dependent facility or 5

activity unless the local jurisdiction demonstrates that the re-use complies with its procedures 6

and requirements established under §C(5)(a) of this regulation. 7

E. Unless authorized under a local Critical Area program, a local jurisdiction may not 8

approve a variance, modification, waiver, or other local procedure or approval that alters the 9

requirements of this regulation. 10

11

Chapter 09 Habitat Protection Areas in the Critical Area 12

Authority: Natural Resources Article, §8-1806, Annotated Code of Maryland 13

14

.01 Buffer. 15




[(17) Structure. 19

(a) "Structure" means building or construction materials, or a combination of those 20

materials, that are purposely assembled or joined together on or over land or water. 21

21

(b) "Structure" includes a temporary or permanent fixed or floating pier, piling, deck, 1

walkway, dwelling, building, boathouse, platform, gazebo, or shelter for the purpose of marine 2

access, navigation, working, eating, sleeping, or recreating.] 3


C. (text unchanged) 5

D. (text unchanged) 6

E. Buffer Standards. 7

(1) In conjunction with mitigation performed in accordance with an approved buffer 8

management plan under Regulation .01-3 of this chapter, a local jurisdiction may authorize 9

disturbance in the buffer for: 10

(a) A [new] development activity [or a redevelopment activity]: 11

(i) Associated with a water-dependent facility or activity under COMAR 27.01.03; 12

(ii) Authorized under a variance; 13

(iii) In accordance with §E(8) of this regulation; [or] 14

(iv) In accordance with Regulation .01-3B of this chapter; or 15

(v) Associated with the placement of dredged material under COMAR 27.01.03.03D; or 16

(b) In accordance with COMAR 26.24.02, a shore erosion control measure under COMAR 17

27.01.04. 18


20

.01-2 Mitigation and Planting Standards. 21

A. — C. (text unchanged) 22

22

D. Temporary Disturbance. As applicable to a site, a local jurisdiction shall [calculate 1

mitigation for temporary disturbance according to the ratios under §H of this regulation] require 2

that an area in the buffer that is temporarily disturbed by a development activity be restored to 3

pre-disturbance conditions. 4

E. — G. (text unchanged) 5

H. Permanent Disturbance. In accordance with the applicable activity, a local jurisdiction shall 6

require the following ratios of mitigation for each permanent disturbance: 7

[Activity

Mitigation Ratio

Permanent

Disturbance

Temporary

Disturbance

Septic on a lot created before local program approval if located in

existing grass or if clearing is not required

Not

applicable

0

Septic system in a forest or developed woodland on a lot created

before local program approval if clearing is required

1:1

Not

applicable

Shore erosion control 1:1 1:1

Riparian water access 2:1 1:1

Development or redevelopment of a water-dependent facility 2:1 1:1

Variance 3:1 1:1

Violation 4:1

Not

applicable]

8

23

Activity

Mitigation

Ratio

Septic on a lot created before local program approval if located in existing

grass or if clearing is not required

Not applicable

Septic system in a forest or developed woodland on a lot created before local

program approval if clearing is required

1:1

Shore erosion control 1:1

Riparian water access 2:1

Development of a water-dependent facility or activity under COMAR 27.01.03 2:1

Variance 3:1

Violation 4:1

1

I. — S. (text unchanged) 2

3

Chapter 11 Directives for Updating Critical Area Maps 4

Authority: Ch. 119, Acts of 2008, §§1—4 5

.04 Mapping Methodology for the Assessment of Physical Features. 6

A. — C. (text unchanged) 7

D. Except for a living shoreline or a mudflat, the Department and the Commission shall map 8

the following land features as upland: 9

(1) An upland island surrounded by open water; 10

(2) An upland area surrounded by a tidal wetland if the upland area: 11

24

(a) Was mapped as upland on the 1972 tidal wetlands maps and is at least one acre in size; 1

or 2

(b) Except for a duckblind or a water-dependent facility or activity under COMAR 3

27.01.03, is developed with a legally authorized improvement; and 4

(3) A dredged material containment facility surrounded by open water that is part of a State-5

sponsored restoration project with conservation and habitat protection as essential elements of its 6

operation. 7

E. — H. (text unchanged) 8

Chapter 13 Nonwater-Dependent Projects 9

Authority: Natural Resources Article, §§8-1808.4, Annotated Code of Maryland; 10

Ch. 492, Acts of 2013, §§1-4 11

.01 Definition. 12

A. — B. (text unchanged) 13

C. “Nonwater-dependent project” does not include: 14

(1) A fuel pump or other fuel-dispensing equipment on a pier; 15

(2) A sanitary sewage pump or other wastewater removal equipment on a pier; [or] 16

(3) An office on a pier for managing marina operations, including monitoring vessel traffic, 17

registering vessels, providing docking services, and housing electrical or emergency equipment 18

related to marina operations; or 19

(4) A water-dependent facility or activity covered under COMAR 27.01.03. 20

25

Subtitle 02 DEVELOPMENT IN THE CRITICAL AREA 1

RESULTING FROM STATE AND LOCAL AGENCY 2

PROGRAMS 3

Chapter 01 General Provisions 4

Authority: Natural Resources Article, §§8-701, 8-1806, 8-1808.4(a), and 8-1814, Annotated Code of Maryland 5

6

.01 Definitions. 7


B. Terms Defined. 9

(1) — (40-2) (text unchanged) 10

(41) "Port" [means a facility or area established or designated by the State or local 11

jurisdictions for purposes of water-borne commerce] has the meaning stated in COMAR 12

27.01.01.01. 13


(60-1) “Vessel” has the meaning stated in Natural Resources Article, §8-701, Annotated 15

Code of Maryland. 16

[(62) "Water-use industry" means an industry that requires location near the shoreline 17

because it utilizes surface waters for cooling or other internal purposes.] 18


20

Chapter 05 State Agency Actions Resulting in Development on State-Owned 21

Land 22

26

Authority: Natural Resources Article, §§8-1806 and 8-1814, Annotated Code of Maryland 1

2

.04 Water-Dependent Facilities and Activities - Definition. 3

[A. Definitions. 4

(1) "Vessel" has the meaning stating in Natural Resources Article, §8-701, Annotated Code 5

of Maryland. 6

(2) Water-Dependent Facilities. 7

(a) "Water-dependent facilities" means those structures or works associated with industrial, 8

maritime, recreational, educational, or fisheries activities that require location at or near the 9

shoreline within the Buffer specified in Regulation .09 of this chapter. 10

(b) An activity is water-dependent if it cannot exist outside the Buffer and is dependent on 11

the water by reason of the intrinsic nature of its operation. These activities include, but are not 12

limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas 13

and other boat docking structures, public beaches and other public water-oriented recreation 14

areas, and fisheries activities] 15

In this regulation and in Regulations .04-1 through .04-3 of this chapter, “water-dependent 16

facility or activity” has the meaning stated in COMAR 27.01.03.01. 17

[B. Criteria. 18

(1) Except as provided in §B(3) and (4), below, new or expanded development on State-19

owned lands may occur in the Buffer if it can be shown that: 20

(a) It is water-dependent; 21

(b) The project meets a recognized public need; 22

(c) Adverse effects on water quality, and fish, plant, and wildlife habitat are minimized; 23

and 24

27

(d) Insofar as possible, nonwater-dependent structures or operations associated with water-1

dependent projects or activities are located outside the Buffer. 2

(2) If new or expanded water-dependent facilities are proposed on State-owned lands, the 3

agency proposing the development shall consider all of the following factors in identifying areas 4

suitable for these facilities: 5

(a) That the activities will not significantly alter existing water circulation patterns or 6

salinity regimes; 7

(b) That the water body upon which these activities are proposed has adequate flushing 8

characteristics in the area; 9

(c) That disturbance to wetlands, submerged aquatic plant beds, or other areas of important 10

aquatic habitats will be minimized; 11

(d) That adverse impacts to water quality that may occur as a result of these activities, such 12

as nonpoint source run-off, sewage discharge from land activities or vessels, or from boat 13

cleaning and maintenance operations, is minimized; 14

(e) That shellfish beds will not be disturbed or be made subject to discharge that will 15

render them unsuitable for harvesting; 16

(f) That dredging shall be conducted in a manner, and using a method, which causes the 17

least disturbance to water quality and aquatic and terrestrial habitats in the area immediately 18

surrounding the dredging operation or within the Critical Area, generally; 19

(g) That dredged spoil will not be placed within the Buffer except as necessary for: 20

(i) Backfill for permitted shore erosion protection measures, 21

(ii) Use in approved vegetated shore erosion projects, 22

(iii) Placement on previously approved channel maintenance spoil disposal areas, and 23

28

(iv) Beach nourishment; and 1

(h) That interference with the natural transport of sand will be minimized. 2

(3) Evidence that the factors listed in §B(2), above, have been considered in planning for 3

new or expanded water-dependent facilities shall be included in the agency's project description 4

and statement of findings as provided in Regulation .02 of this chapter. 5

(4) New, expanded, or redeveloped water-dependent industrial or port-related facilities, or 6

the replacement of these facilities, may only occur in the Buffer in areas of intense development 7

and only if: 8

(a) The facility is subject to the requirements of §B(1), above; and 9

(b) The area proposed for the facility has been exempted from the Buffer requirements by 10

the Commission as set forth in Regulation .09 of this chapter. 11

(5) Marinas and Other Water-Dependent Commercial Maritime Facilities. 12

(a) New or expanded marinas and related facilities may be permitted in the Buffer within 13

areas of intense development subject to the requirements of §B(1), above. 14

(b) New marinas or related maritime facilities may not be permitted in the Buffer in 15

locations other than areas of intense development except as provided in §B(6), below. 16

(c) Expansion of existing marinas may be permitted to occur outside areas of intense 17

development provided that it is sufficiently demonstrated that the expansion does not adversely 18

affect water quality, and that it will result in an overall net improvement in water quality at or 19

leaving the site of the marina. 20

(d) New and existing marinas shall meet the sanitary requirements of the State Department 21

of the Environment as required in COMAR Title 26. 22

29

(e) New marinas shall establish a means of minimizing the discharge of bottom wash 1

waters into tidal waters. 2

(6) Public beaches or other public water-oriented recreation or education areas on State lands 3

including, but not limited to, publicly-owned boat launching and docking facilities and fishing 4

piers may be permitted in the Buffer if: 5

(a) Adequate sanitary facilities exist; 6

(b) Service facilities are, to the extent possible, located outside the Buffer; 7

(c) Permeable surfaces are used to the extent practicable, if no degradation of ground water 8

would result; and 9

(d) Disturbance to riparian and aquatic natural vegetation is minimized. 10

(7) Areas for passive recreation, such as nature study, and hunting and trapping, and for 11

education, may be permitted in the Buffer if service facilities are located outside of the Buffer. 12

(8) Water-dependent research facilities on State-owned lands may be permitted in the Buffer, 13

if nonwater-dependent structures or facilities associated with these projects are, to the extent 14

possible, located outside the Buffer. 15

(9) Water-dependent fisheries facilities including but not limited to structures for crab 16

shedding, fish off-loading docks, shellfish culture operations, and shore-based facilities 17

necessary for aquaculture operations and fisheries activities, may be permitted in the Buffer on 18

State-owned lands.] 19

20

.04-1 Water-Dependent Facilities and Activities – General Criteria. 21

An agency proposing development on State-owned land or responsible for the administration of 22

a water-dependent facility or activity located on State-owned land: 23

30

A. In accordance with Natural Resources Article, §8-1808.3, Annotated Code of 1

Maryland, and COMAR 27.02.05.09, shall limit development in the buffer to the minimum lot 2

coverage necessary to accommodate each water-dependent facility or activity; 3

B. Except as otherwise provided under Regulations .04 through .04-3 of this chapter, may 4

develop a water-dependent facility or activity in the buffer if: 5

(1) The facility or activity is water-dependent; 6

(2) The facility or activity meets a recognized public need; 7

(3) Adverse impacts on water quality and fish, wildlife, and plant habitat are 8

avoided or, in the alternative, minimized; and 9

(4) A nonwater-dependent project associated with the water-dependent facility or activity 10

is located outside the buffer; 11

C. May not place, or approve the placement of, dredged material in the buffer or a portion of 12

the Critical Area that has been designated as a habitat protection area, except as necessary for: 13

(1) A beneficial use approved by the Board of Public Works or the Department of the 14

Environment, such as: 15

(a) Backfill for a shoreline stabilization measure; 16

(b) Use in a non-structural shoreline stabilization measure, including a living 17

shoreline; 18

(c) Beach nourishment; 19

(d) Restoration of an island; 20

(e) The creation, restoration, or enhancement of a wetland, or a fish, wildlife, or 21

plant habitat; or 22

(f) Any other approved beneficial use; or 23

31

(2) Placement in an area that was approved for the disposal of channel maintenance 1

dredged material before June 11, 1988; and 2

D. Shall ensure: 3

(1) The avoidance, or, in the alternative, the minimization of impacts to fish, wildlife, or 4

plant habitat; and 5

(2) Mitigation at a ratio of 1:1 based on the square footage of the area of the canopy 6

coverage removed. 7

8

.04-2 Water-Dependent Facilities and Activities – General Location Requirements. 9

A. The provisions of this regulation are in addition to the provisions of Regulation .04-1 of this 10

chapter. 11

B. An agency proposing development on State-owned land or responsible for the 12

administration of a water-dependent facility or activity located on State-owned land shall 13

document how each of the following siting factors is accorded due consideration: 14

(1) The impact on the water body upon which the water-dependent facility or activity is 15

proposed that would likely result from the approval of that location, including: 16

(a) Alteration of an existing water circulation pattern or salinity regime; 17

(b) Adequacy of area flushing characteristics; 18

(c) Necessity of, and proximity to, a dredging operation; and 19

(d) Interference with the natural transport of sand; 20

(2) Disturbance to: 21

(a) An oyster harvest area, as defined in COMAR .08.02.04.11; 22

(b) An area covered in a current aquaculture lease, as defined in Natural 23

32

Resources Article, §4-11A-01, Annotated Code of Maryland; 1

(c) A harvest reserve area, as designated under Natural Resources Article, 2

§4-1009.1, Annotated Code of Maryland; 3

(d) An oyster sanctuary, as established in COMAR .08.02.04.15A; and 4

(e) Any other shellfish located in a shellfish area regulated by the Department 5

of Natural Resources; 6

(3) Avoidance of disturbance to water quality and aquatic or terrestrial habitat resulting 7

from the method or manner of dredging; and 8

(4) Avoidance or, in the alternative, minimization of: 9

(a) Disturbance to: 10

(i) A wetland; 11

(ii) Submerged aquatic vegetation; 12

(iii) A habitat of threatened or endangered species or species in need of 13

conservation; 14

(iv) In accordance with COMAR 26.08.02.04-1, a water body identified by 15

the Department of the Environment as a Tier II, high quality, water body and its watershed; and 16

(v) A nontidal wetland of special State concern, as set forth in COMAR 17

26.23.01.01 and .04, and COMAR 26.23.06.01; and 18

(b) Adverse impact on water quality that would likely result from the facility or 19

activity, such as nonpoint source runoff, sewage discharge, or other pollution related to vessel 20

maintenance. 21

22

.04-3 Water-Dependent Facilities and Activities – Site-Specific Criteria. 23

33

A. The provisions of this regulation are in addition to the provisions of Regulations .04-1 and 1

.04-2 of this chapter. 2

B. An agency proposing development on State-owned land or responsible for the 3

administration of a water-dependent facility or activity located on State-owned land: 4

(1) May locate a water-dependent industrial or port-related facility or activity in the 5

buffer if: 6

(a) The facility or activity is in an intensely developed area; and 7

(b) The Commission has approved a modification of the buffer requirements 8

under Regulation .09 of this chapter or has duly executed a memorandum of understanding to 9

that effect; 10

(2) Shall require that the operation of each commercial marina and each related 11

commercial maritime facility or activity complies with: 12

(a) The requirements of COMAR 26.08.04.09 and, as applicable, 26.24.04.03; 13

and 14

(b) The stormwater, wastewater, noncontact cooling water discharge, and any 15

other applicable requirements of the Department of the Environment; 16

(3) May develop a commercial marina or a related commercial maritime facility or 17

activity in the buffer of a resource conservation area, upon full satisfaction of all the 18

requirements under subsection (4)(a) of this section; 19

(4) May locate: 20

(a) A public beach or other public water-oriented recreation or education area or 21

activity, including a publicly owned fishing pier or a boat launching and docking facility or 22

activity, in the buffer if: 23

34

(i) Adequate sanitary facilities exist; 1

(ii) Sanitary and service facilities are, to the extent possible, located 2

outside the buffer; 3

(iii) A permeable surface is used to the extent practicable, if no 4

degradation of ground water would likely result; and 5

(iv) Disturbance to natural vegetation is avoided or, in the alternative, 6

minimized; or 7

(b) A public passive outdoor recreation or education area, such as hiking, 8

hunting, trapping, or nature study, in the buffer of a limited development area or a resource 9

conservation area if sanitary and service facilities to support these uses are located outside the 10

buffer; 11

(5) As applicable, if an associated nonwater-dependent project is located outside the 12

buffer, may locate in the buffer a research-associated water-dependent facility or activity or an 13

education-associated water-dependent facility or activity; and 14

(6) May locate the following facilities and activities in the buffer: 15

(a) A shore-based facility or activity necessary for a commercial aquaculture 16

operation; 17

(b) A commercial water-dependent fishery facility or activity, including a 18

structure for crab shedding, a fish off-loading dock, and a shellfish culture operation; and 19

(c) A facility or activity that supports water quality restoration in the 20

Chesapeake Bay, the Atlantic Coastal Bays, or their watersheds. 21

22

.09 Buffer. 23

35


B. Criteria. In planning or proposing development on State-owned lands, the agency proposing 2

the development shall use the following criteria: 3

(1) The agency shall establish a minimum 100-foot [Buffer] buffer landward from the mean 4

high water line of tidal waters, tributary streams, and tidal wetlands. The [Buffer] buffer is not 5

required for agricultural drainage ditches if the adjacent agricultural land has in place best 6

management practices [as required in Regulation .09 of this chapter] required under this 7

regulation. 8

(2) [New development] Development activities, including structures, roads, parking areas, 9

and other lot coverage areas, mining and related facilities, and septic systems, are not [permitted] 10

authorized in the [Buffer] buffer, except for those necessarily associated with water-dependent 11

facilities or activities, as [set forth] defined in Regulation .04 of this chapter. 12


14

.12 Plant and Wildlife Habitat. 15


B. Criteria. When planning or proposing development [or redevelopment] on State-owned 17

lands within the Critical Area, the agency proposing the development shall use the following 18

criteria for plant and wildlife habitat: 19

(1) (text unchanged) 20

(2) The agency shall develop protection measures for the plant and wildlife habitats 21

identified above as follows: 22

(a) (text unchanged) 23

36

(b) Provide that new water-dependent facilities or activities, as defined in Regulation .04 1

of this chapter, are so located as to prevent disturbance to sites of significance to wildlife such as 2

historic, aquatic staging and concentration areas for waterfowl. 3

(c) — (f) (text unchanged) 4

5

Subtitle 03 PROJECT APPLICATIONS 6

Chapter 01 Notification of Project Applications 7

Authority: Natural Resources Article, §§8-1806, 8-1808(c), and 8-1811, Annotated Code of Maryland 8

9

.01 Definitions. 10

A. [As used in] In this chapter, the following terms have the meanings indicated. 11



(12-1) “Structure” has the meaning stated in COMAR 27.01.01.01. 14

(13) (text unchanged) 15

Title 27 CRITICAL AREA COMMISSION FOR THE CHESAPEAKE … · 13 Chapter 03 [Water Dependent]...

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