Sec. 27.02.05.03. Criteria for Development by a State Agency on State-Owned Land

A. The following general criteria are applicable to development by a State agency on State-owned land:

(1) To the maximum extent practicable, a State agency shall locate development outside the Critical Area;

(2) A State agency may not locate a solid or hazardous waste acceptance facility on State-owned land in the Critical Area; and

(3) Except in the buffer, a State agency may apply, or authorize the application of, sludge in the Critical Area if the application:

(a) Occurs on agricultural or horticultural land; and

(b) When a permit is required, is in accordance with the permit issued by the Department of the Environment.

B. When a State agency proposes development on State-owned land in the Critical Area, the agency:

(1) Shall demonstrate to the Commission that the development project has received all applicable federal and State authorizations, including approvals related to stormwater management and soil erosion and sediment control;

(2) Shall comply with the habitat protection area requirements under Regulations.09-.13 of this chapter;

(3) Shall, to the maximum extent practicable:

(a) Incorporate and maintain a wildlife corridor system, including all habitat protection areas near the development project, so as to connect the largest, most vegetated tracts of land within, adjacent to, or near the development project and provide continuity of existing wildlife and plant habitat with other off-site habitat areas;

(b) Preserve, protect, and maintain a potential wetland migration area:

(i) Within the area of the development project; and

(ii) Adjacent to the area of the development project, if the agency owns the adjacent land or the adjacent land is within the agency’s legally enforceable right-of-way;

(c) Establish areas of public access to the shoreline, including foot paths, scenic drives, and other public recreational facilities;

(d) Maintain all forest and developed woodland designated on the development plans;

(e) Increase or, in the alternative, maintain the total acreage of forest cover in the Critical Area; and

(f) Cluster development activities;

(4) When cutting or clearing trees located in a forest or developed woodland or altering a forest or developed woodland, shall:

(a) Design and implement a development project so as to minimize the clearing of forest and developed woodland;

(b) Protect an area identified as a habitat protection area; and

(c) Replace all forest and developed woodland that is cut or cleared in the Critical Area at a ratio of at least 1:1, except:

(i) In accordance with a management plan for a habitat protection area that has been approved by the Commission;

(ii) As specified under §B(10) of this regulation; or

(iii) As provided under Regulation .03-2 or .03-3 of this chapter;

(5) If development is likely to result in an adverse off-site impact on the Critical Area of a local jurisdiction, shall, with the proposal and findings required under Regulation .02 of this chapter, describe:

(a) All expected off-site impacts on the local jurisdiction’s Critical Area; and

(b) All alternatives pursued by the agency in order to minimize the off-site impacts, including any measures proposed to mitigate these impacts;

(6) Except as authorized under §E(1) of this regulation, may not locate a development project on a site where that project or a related project would cross or impact a stream;

(7) Except as authorized under §E(2) of this regulation, may not locate a road, bridge, or utility in a habitat protection area designated under COMAR 27.01.09;

(8) Shall demonstrate to the Commission that the development will comply with all stormwater pollutant reduction requirements that are applicable under the Critical Area Program;

(9) Shall demonstrate to the Commission that:

(a) In determining the proposed location, the agency has considered the likelihood of inundation by sea level rise over the course of the design life of the development; and

(b) The development identifies and incorporates climate resilient practices in order to avoid or, in the alternative, minimize environmental and structural damage associated with a coastal hazard, an extreme weather event, sea level rise, and other impacts; and

(10) Shall replant at a ratio of at least 3:1 of the entire areal extent of a cleared forest or developed woodland if the agency:

(a) Clears the forest or developed woodland before obtaining Commission approval;

(b) Clears the forest or developed woodland before obtaining all applicable federal and State authorizations under §B(1) of this regulation; or

(c) Exceeds the maximum removal area approved by the Commission under Regulation .03-2C(1) or D of this chapter.

C. If a detrimental impact to a potential wetland migration area under §B(3)(b) of this regulation is unavoidable, a State agency shall:

(1) Demonstrate to the Commission why that impact is unavoidable;

(2) Provide an assessment of the ecological features on site that could be enhanced, restored, or created in order to maintain existing wetland functions and to provide additional protection against future sea level rise and coastal storm impacts; and

(3) Make recommendations regarding the most feasible methods to address the detrimental impact and the enhancement, restoration, and creation of natural features on site.

D. When an area of public access is established under §B(3)(c) of this regulation, a State agency shall demonstrate to the Commission that:

(1) The location and design of the project will minimize impacts from coastal hazards and sea level rise; and

(2) Long-term access has been considered.

E. A State agency may locate:

(1) Development on a site where the project would cross or impact a stream if:

(a) No practicable alternative exists for the location of the development; and

(b) The agency designs, builds, and maintains the development project so as to:

(i) Prevent or, in the alternative, accommodate an increase in flood frequency and severity that is attributable to the development project;

(ii) Accommodate foreseeable changes in hydrologic conditions, including an increase in tidal inundation;

(iii) Retain tree canopy to maintain stream water temperature within normal variation;

(iv) Provide a natural substrate for the streambed; and

(v) Minimize adverse impacts on water quality and quantity from stormwater; and

(2) A road, bridge, or utility in a habitat protection area if:

(a) No practicable alternative exists for the location of the road, bridge, or utility; and

(b) The agency designs, builds, and maintains the road, bridge, or utility so as to:

(i) Provide maximum protection from erosion;

(ii) Avoid or, in the alternative, minimize negative impacts on wildlife, aquatic life, plants, and their habitats; and

(iii) Maintain hydrologic processes and water quality.

F. A State agency:

(1) Shall provide an offset if the stormwater management technology authorized under §B(8) of this regulation does not reduce pollutant loading by at least 10 percent:

(a) Of the predevelopment level, for new development; or

(b) Below the level of pollution on site before redevelopment; and

(2) May provide the offset off site if:

(a) An on-site offset is not practicable;

(b) Water quality benefits off site are equivalent to those that would be achieved on site;

(c) Water quality benefits are achieved in the same watershed as the development project; and

(d) Water quality benefits are demonstrable through the use of modeling, monitoring, or other computation measures of mitigation acceptable to the Commission.

G. If a State agency proposes development on State-owned land under the waters of the Chesapeake Bay, the Atlantic Coastal Bays, or their tidal tributaries, the agency shall demonstrate to the Commission that:

(1) The development project has received all applicable federal and State authorizations; and

(2) Development on any fastland created by the agency will be consistent with the requirements of this chapter.