Md. Code Regs. 26.24.01.02

Current through Register Vol. 51, No. 21, October 18, 2024

Section 26.24.01.02 - Definitions

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

(1) "Administration" means the Water Management Administration, a unit of the Department of the Environment designated by the Secretary of the Environment to administer Environment Article, Title 16, Annotated Code of Maryland.

(2) "Administrative Procedure Act" means the provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(3) "Aquaculture" has the meaning stated in Natural Resources Article, § 4-11 A-01, Annotated Code of Maryland.

(4) "Bathymetry" means the water depth relative to the elevation of mean low water.

(4-1) "Beach nourishment" means a structural shoreline stabilization measure that is:

(a) Made by placing or pumping appropriately-sized sand from elsewhere onto an eroding shore; and

(b) Designed to:

(i) Create a new beach; or

(ii) Restore or widen an existing beach.

(5) "Best management practices" means conservation practices or systems of practices and management measures that:

(a) Control soil loss and reduce water quality degradation caused by runoff, nutrients, animal waste, toxicants, and sediment if best management practices do not dredge or fill tidal wetlands; and

(b) Minimize adverse impacts to the surface water, ground water flow, circulation patterns, and to the chemical, physical, and biological characteristics of tidal wetlands.

(6) "Board" means the Board of Public Works.

(7) "Boathouse" means a structure with a roof or cover, or similar device placed over open water to protect a boat or other vessel.

(7-1) "Breakwater" means a structural shoreline stabilization measure comprised of a segmented or non-segmented stone structure that is:

(a) Typically placed offshore parallel to the shoreline; and

(b) Designed to dissipate wave energy and reduce erosion.

(7-2) "Buffer management plan" has the meaning stated in COMAR 27.01.09.01 o.

(7-3) "Bulkhead" means a structural shoreline stabilization measure comprised of a vertical retaining wall composed of wood, stone, concrete, plastic, steel, or other similar material that is:

(a) Placed parallel to the shoreline; and

(b) Designed to control erosion.

(8) "Containment structure" means a facility designed for the sole purpose of accepting and confining dredged material from tidal waters while allowing the release of effluent, and excludes those structures designed to contain, impound, or obstruct the waters of the State as defined by Environment Article, § 5-501, Annotated Code of Maryland.

(9) "Coastal Bays" means the estuaries situated between Maryland's Atlantic Ocean barrier islands and the opposing shoreline of the mainland which include Chincoteague Bay, Sinepuxent Bay, Isle of Wight, Newport Bay, Assawoman Bay, and the St. Martin River.

(10) "Critical Area" has the meaning stated in COMAR 27.01.01.01 o B.

(11) Critical Area Buffer.

(a) "Critical Area buffer" means an area in the Critical Area that:

(i) Based on conditions present at the time of development, is immediately landward from mean high water of tidal waters, the edge of each bank of a tributary stream, or the landward boundary of a tidal wetland; and

(ii) Exists or may be established in natural vegetation to protect a stream, tidal wetland, tidal waters, or terrestrial environment from human disturbance.

(b) "Critical Area buffer" includes an area of:

(i) At least 100 feet, even if that area was previously disturbed by human activity; and

(ii) Expansion for contiguous areas, including a steep slope, hydric soil, highly erodible soil, nontidal wetland, or a Nontidal Wetland of Special State Concern as defined in COMAR 26.23.01.01 o.

(11-1) "Critical Area Commission" means the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, as established under the Natural Resources Article, Title 8, Subtitle 18, Annotated Code of Maryland.

(12) "Department" means the Department of the Environment.

(13) "Direct discharge" means the concentrated release of storm water to tidal waters or vegetated tidal wetlands from new development or redevelopment projects in the Critical Area.

(14) "Director" means the Director of the Water Management Administration.

(15) "Dredging" means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands.

(16) "Emergency condition" means a sudden, unforeseen occurrence caused by act of God, natural disaster, or other similar natural event or catastrophe when the health, safety, or welfare of the citizens of the State would be jeopardized by a delay in issuance of a license or permit.

(17) "Endangered species" has the meaning stated in COMAR 08.03.08.01 o.

(17-1) "Fetch" means the linear distance of open water over which wind-generated waves of a certain direction, speed, and duration travel unobstructed before reaching a shoreline.

(18) Filling.

(a) "Filling" means the:

(i) Displacement of navigable water by the depositing of soil, sand, gravel, shells, or other materials, including pilings, piers, boathouses, deadweights, or riprap into State or private tidal wetlands;

(ii) Artificial alteration of tidal water levels by any physical structure, drainage ditch, or otherwise; or

(iii) Discharge of water from storm drainage projects directly into tidal waters of the State.

(b) "Filling" does not include:

(i) Drainage of agricultural land;

(ii) In-place replacement or repair of functional shore erosion control structures using substantially similar materials and construction design;

(iii) Planting of wetlands vegetation when no grading or fill in State or private wetlands is necessary; or

(iv) Marking channels and harbors and establishing aids to navigation if approval has been granted by the United States Coast Guard.

(19) "Fish" has the meaning stated in Natural Resources Article, § 4-101, Annotated Code of Maryland.

(20) "Functional" means performing at least 85 percent of the action that a structure was originally designed to perform.

(21) "General wetlands license" means written authorization from the Department based on a standing authorization by the Board for recurrent or minimally disruptive activities conducted in State tidal wetlands.

(22) "General wetlands permit" means written authorization from the Department for activities conducted in private tidal wetlands that cause only minimal individual and cumulative adverse impacts.

(22-1) "Groin" means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is:

(a) Typically placed perpendicular to the shoreline; and

(b) Designed to trap sand and reduce erosion.

(23) "Historic property" means a district, site, building, structure, monument, or object significant in the prehistory, history, upland and underwater archeology, architecture, engineering, and culture of the State, including artifacts, records, and remains related to a district, site, building, structure, or object.

(24) "In kind" means having characteristics closely approximating original characteristics, including those of a vegetated tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of similar materials and dimensions.

(25) "In the dry" means activities performed above or landward of the mean high water line and all tidal wetland vegetation.

(25-1) "Jetty" means a structural shoreline stabilization measure comprised of stone, wood, plastic, steel, or other similar material that is:

(a) Placed at inlets; and

(b) Designed to:

(i) Stabilize the position of a channel;

(ii) Shield vessels from wave forces; and

(iii) Control the movement of sand along adjacent beaches by minimizing the movement of sand into a channel.

(26) "Landward boundary of tidal wetlands" means the common boundary between upland or nontidal wetlands, and State or private wetlands, as defined in this subtitle.

(27) "License" means written authorization by the Board or by the Department under delegation from the Board to dredge, fill, construct structures, or conduct other activities involving State tidal wetlands which conveys a limited property interest.

(28) "Maintenance dredging" means the removal or displacement by any means of soil, sand, gravel, shells, or other material, whether or not of intrinsic value, from any State or private tidal wetlands, that restores a navigation channel, marina, or mooring basin to depths confirmed after 1972.

(29) "Marina" means a facility for the mooring, docking, or storing of more than ten vessels on tidal navigable waters, including a commercial, noncommercial, or community facility.

(30) "Mean higher high water" means the average of the higher high water height of each tidal day observed over the national tidal datum epoch, including a spring tide.

(31) "Mean high water" means the average of all the high water levels observed over the national tidal datum epoch.

(32) "Mean high water line" means the line where the land meets the water surface at the elevation of mean high water.

(33) "Mean low water" means the average of all the low water levels observed over the national tidal datum epoch.

(34) "Mitigation" means the creation, restoration, or enhancement of tidal wetlands lost or damaged due to dredging or filling.

(35) "National tidal datum epoch" means the specific 19-year period adopted by the National Ocean Service as the official time segment over which tidal observations are taken and reduced to obtain mean values for tidal datums.

(35-1) Nonstructural Shoreline Stabilization Measure.

(a) "Nonstructural shoreline stabilization measure" means an erosion control measure that is dominated by tidal wetland vegetation and is designed to preserve the natural shoreline, minimize erosion, and establish aquatic habitat.

(b) "Nonstructural shoreline stabilization measure" includes a living shoreline.

(36) "Nontidal wetland" has the meaning stated in COMAR 26.23.01.01 o.

(37) "Non-water-dependent structure or activity" means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation does not require location in or over State or private tidal wetlands.

(38) "Out of kind" means having characteristics not closely approximating those of a tidal wetland before that wetland was adversely impacted, or replacement of a structure with a structure of dissimilar materials or dimensions.

(39) "Permit" means written authorization by the Department to dredge, fill, construct structures, or to conduct certain other activities involving private tidal wetlands.

(40) "Person" means any natural person, partnership, joint stock company, unincorporated association or society, the federal government, the State, any unit of the State, a political subdivision, or other corporation of any type.

(41) Pier.

(a) "Pier" means any fixed or floating pier, wharf, dock, walkway, or other similar water-dependent structure constructed on or over State or private tidal wetlands for the purpose of gaining access to the navigable waters of the State.

(b) "Pier" does not include a structure on pilings or stilts that was constructed before December 2, 1985, landward of the tidal wetland boundaries.

(42) "Private tidal wetlands" means:

(a) Land not considered State wetland bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth;

(b) Tidal wetlands transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights, to the extent of the interest transferred; and

(c) Tidal waters created by the excavation of upland unless conveyed to the State.

(43) "Public informational hearing" means a meeting, open to the public, at which the applicant or the Department presents information concerning a permit or license and the Department receives oral and written comments concerning a decision to issue or deny a permit or a license. A public informational hearing is not a contested case hearing under State Government Article, § 10-202(d), Annotated Code of Maryland.

(44) "Regular or periodic tidal action" means the rise and fall of the sea produced by the attraction of the sun and the moon uninfluenced by wind or any other circumstances.

(45) Repair.

(a) "Repair" means an activity that restores the scope, size, and design of a functional structure to its previously authorized, undamaged condition.

(b) "Repair" does not include activities that change the size or scope of a project beyond the original design and dredge or fill tidal wetlands that were not previously impacted by the project.

(46) "Restoration" means reestablishment of tidal wetlands on former tidal wetland sites.

(47) "Revetment" means a structural shoreline stabilization measure comprised of stone, broken concrete, or other similar material that is:

(a) Typically placed parallel to the shoreline; and

(b) Designed to:

(i) Prevent erosion;

(ii) Fortify a bulkhead; or

(iii) Stabilize an embankment.

(48) "Riparian landowner" means a property owner whose land borders on tidal wetlands or waters of the State.

(49) "Riparian rights" means the rights of an owner of land bordering on tidal wetlands or waters of the State as recognized by Environment Article, Title 16, Annotated Code of Maryland.

(50) "Shallow water habitat" means aquatic habitat less than 3 feet in depth at mean low water.

(51) "Species in need of conservation" has the meaning stated in COMAR 08.03.08.01 o.

(52) "State tidal wetlands" means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide. Tidal wetlands of this category which have been transferred by the State by a valid lease, patent, or grant confirmed by Article 5 of the Maryland Declaration of Rights are considered private tidal wetlands to the extent of the interest transferred.

(53) Structural shoreline stabilization measure.

(a) "Structural shoreline stabilization measure" means an erosion control measure that uses devices to armor and stabilize an area landward of the measure from further erosion.

(b) "Structural shoreline stabilization measure" includes the use of a bulkhead, gabion, revetment, groin, breakwater, jetty, sand, beach nourishment, and any other similar structure, or any other device for erosion control or vessel protection.

(54) Structure.

(a) "Structure" means building or construction materials, or a combination of those materials, that are purposely assembled or joined together on or over land or water.

(b) "Structure" includes a temporary or permanent fixed or floating pier, piling, deck, walkway, dwelling, building, boathouse, platform, gazebo, or shelter for the purpose of marine access, navigation, working, eating, sleeping, or recreating.

(55) Submerged Aquatic Vegetation.

(a) "Submerged aquatic vegetation (SAV)" means a vascular hydrophyte, which is rooted or unrooted, that lies entirely beneath the surface of the water except for the flowering parts of some species. Examples include Zannichellia palustris, Ruppia sp., and Potamogeton sp.

(b) "Submerged aquatic vegetation" does not include algae.

(56) "Threatened species" has the meaning stated in COMAR 08.03.08.01 o.

(57) "Tidal wetlands" means all State and private tidal wetlands, marshes, submerged aquatic vegetation, lands, and open water within the Chesapeake Bay and its tidal tributaries, the Coastal Bays and their tidal tributaries, and the Atlantic Ocean to a distance of 3 miles offshore of the low water mark.

(58) "Tidal wetland boundary map" means a map or aerial photograph on a scale of 1 inch to 200 feet that delineates the landward boundary of tidal wetlands and is adopted by the Department.

(59) "Unified soil classification system" means a classification system used to classify sedimentary materials by grain size into gravel, silt, and clays. It is the principal classification system used by engineers, and its boundaries correspond to U. S. standard sieve sizes.

(60) "Upland" means any area that does not qualify as a tidal or nontidal wetland.

(61) "Utility line" means an underground or overhead transmission line, conduit pipe, cable, or wire for the conveyance of public or private water, sewage, natural gas, or petroleum, or the transmission of electricity or telecommunications.

(61-1) "Waiver" means a decision by the Department that a person is not required to construct a nonstructural shoreline stabilization measure.

(62) "Water dependent" means a temporary or permanent structure or activity, which by reason of its intrinsic nature or operation, requires location in or over State or private wetlands.

(62-1) "Water Quality Certification" means the certification required under COMAR 26.08.02.10 o.

(62-2) "Wetlands License" means written authorization by the Board to dredge, fill, construct a structure, or conduct any other activity involving State tidal wetlands that does not qualify for approval under a general wetlands license.

(62-3) "Wetlands Permit" means written authorization by the Department to dredge, fill, remove, alter, pollute, or conduct any other activity involving private tidal wetlands that does not qualify for approval under a general wetlands permit.

Md. Code Regs. 26.24.01.02

Regulations .02 were recodified from Regulations .01, .02, .13, .24, .25, .27, and .28, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996
Regulation .02B amended as an emergency provision effective March 9, 2007 (34:7 Md. R. 695); emergency expired September 5, 2007
Regulation .02B amended effective February 4, 2013 (40:2 Md. R. 73)