Md. Code Regs. 26.24.05.02

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

Section 26.24.05.02 - Bonding for Mitigation Purposes

A. This regulation does not apply to any State, county, or municipal government, or to projects licensed by the Board.

B. This regulation only applies to those projects proposed and permitted by the Department in private tidal wetlands.

C. The bond is payable to the Department and conditioned upon fulfillment of mitigation monitoring requirements.

D. Alternative Forms of Security.

(1) Instead of a surety bond, the Department may accept one of the following forms of security:

(a) A deposit of cash or negotiable bonds of the federal government having a market value equal to the bond amount accompanied by a written agreement of the bank to pay the State on demand in the event of forfeiture;

(b) A certificate of deposit equal to the required bond amount, issued by a bank in the State and with a written agreement from the bank to pay the State on demand in the event of forfeiture;

(c) An irrevocable letter of credit equal to the bond amount, issued by a bank or financial institution organized to do business in the State, that expressly states that the total sum is guaranteed to be available and payable directly to the State on demand in the event of forfeiture;

(d) The grant to the Department, in trust, of a deed, easement, or other interest in upland property owned by the permittee that has the same or greater monetary value than the selected mitigation site; or

(e) Fulfillment of mitigation requirements before completion of the permitted activity which results in the loss of tidal wetlands.

(2) The permittee shall submit to the Department the alternative form of security under this regulation, until authorized by the Department for release. Alternative forms of security may not be released until monitoring of the mitigation project has been successfully completed.

E. Amount of Bond.

(1) The amount of the bond for a permittee is $50,000 per acre of tidal wetlands mitigation required under the permit, or in an amount determined by the Department.

(2) The permittee may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information.

(3) The Department shall determine whether a lesser amount is sufficient to cover the cost of the mitigation project, taking into account the following:

(a) Number of acres to be mitigated;

(b) The cost of land in the area of the mitigation site;

(c) The proposed method of mitigation; and

(d) Any other relevant factors, including the likelihood of success of the project.

F. Liability under the bond continues until the Department determines that the monitoring requirements have been fulfilled, and the surety or financial institution receives written notice from the Department that the mitigation project was successfully completed.

G. A surety bond or other alternative form of security may be cancelled by the surety, bank, or other issuing entity when both of the following conditions are satisfied:

(1) The surety notifies the Department and the permittee of its intent to cancel the bond, in writing, by certified mail, not less than 90 days before cancellation; and

(2) At least 45 days before the cancellation date indicated in the notice, the permittee files a replacement bond from a surety, bank, or other issuing entity to provide a substitute security which will be effective on the cancellation date indicated in the notice.

H. Bond Forfeiture.

(1) The bond or other instrument securing compliance with the mitigation plan may be subject to forfeiture upon:

(a) Revocation of a tidal wetlands license or permit;

(b) Failure to comply with an administrative order; or

(c) Failure to comply with any element of the approved mitigation plan.

(2) The Department, in writing and by certified mail, shall notify the permittee, surety, or other financial institution of the Department's intention to initiate forfeiture proceedings and the grounds for forfeiture.

(3) The permittee, surety, or other financial institution has 30 days from receipt of the notice of forfeiture to show cause why the bond or other instrument may not be forfeited.

(4) On showing cause, the Department shall provide for a reasonable time for the permittee, surety, or other financial institution to correct the problem.

(5) If the permittee, surety, or other financial institution fails to show cause, the bond is forfeited nisi and the Department shall notify the permittee, surety, or other financial institution. If a showing of an intention to correct the problem in compliance with the mitigation plan is not submitted within 30 days from forfeiture nisi, the bond shall be forfeited absolute.

I. If tidal wetlands are adequately protected, the Department may allow an applicant to post one bond under Environment Article, § 15-823, Annotated Code of Maryland, or another Department program requiring bonding.

J. A permittee may not conduct a regulated activity in a tidal wetland if the permittee previously forfeited a bond under this subtitle, unless the permittee repays the Department the cost of completing the mitigation project in excess of the forfeited bond, plus interest at the rate set in Courts and Judicial Proceedings Article, § 11-107(a), Annotated Code of Maryland. If the mitigation project is still not completed, the permittee shall complete the mitigation project at the permittee's expense according to the approved mitigation plan.

Md. Code Regs. 26.24.05.02

Regulations .02 were recodified from Regulations .21 and .22, respectively, under COMAR 08.05.05 Tidal Wetlands, June 1996