Article III Overlay and Floating Zoning Districts

The proposed IDA would be for the purpose of allowing land uses consistent with Comprehensive Plan goals;

The Comprehensive Plan land use policies for the particular location support development with density or intensity suitable for an IDA;

The IDA would have overall economic benefit for the community; and

The IDA designation will support the established character of a community and provide for suitable infill and redevelopment.

The following standards apply to any new or expanded LDA:

LDAs should be located in areas conforming to at least one of the following criteria:

Housing density ranging from one dwelling unit per five acres up to four dwelling units per acre;

Areas not dominated by agriculture, wetland, forest, barren land, surface water, or open space;

Areas with characteristics suitable for an IDA, but having less than 20 acres; or

Areas having public sewer, public water, or both.

A new LDA shall be adjacent to an existing LDA or an existing IDA except as provided in Subsection I.4.c below.

A new LDA may be located nonadjacent to an existing LDA or IDA only if:

The proposed revision would be for the purpose of allowing land uses consistent with Comprehensive Plan goals;

The Comprehensive Plan land use policies for the particular location support development with density or intensity suitable for an IDA or LDA;

The area would have overall economic benefit for the community; and

The area designation will support the established character of a community and provide for suitable infill and redevelopment.

In addition, any new LDA or IDA shall be located in a manner that:

Minimizes impacts to habitat protection areas;

Optimizes benefits to water quality; and

Minimizes impacts to agricultural land and forests.

If a new LDA or IDA is in a Resource Conservation Area (RCA), locate it at least 300 feet beyond the landward edge of tidal wetlands or tidal waters, unless alternative measures for enhancement of water quality and habitat that provide greater benefits to the resources are approved by the Critical Area Commission.

A majority of the County's Critical Area lands for which growth allocation is planned are currently classified Resource Conservation Areas. No more than 50% of the County's growth allocation may be utilized on lands located in the Resource Conservation Area (RCA), unless the following standards are met:

[Amended 5-28-2019 by Bill No. 1411]

Any development will be served by public sewer;

The area is located in a priority funding area or municipal growth area;

Development is consistent with the County Comprehensive Plan;

The development will have an overall economic benefit to the community, or implements a specific goal, objective or policy of the Comprehensive Plan.

Development shall be clustered.

Comprehensive or sectional zoning map amendment.

Applicability.

The procedures in this section shall govern the County's reclassification of Critical Area land management designations in the County when the reclassifications occur through the County's comprehensive or sectional map amendment process.

Section 190-55 governs the use of growth allocation for reclassifying Critical Area land management designations other than through the comprehensive or sectional map amendment process.

The following standards apply to reclassification of Critical Area land management designations through the comprehensive or sectional map amendment process:

A new IDA:

Shall meet the adjacency standards under § 190-15.3.I.3.a.; and

May include areas of less than 20 acres if the standards under § 190-15.3.I.3.b are met.

A new LDA:

Shall meet at least one of the conforming location standards under § 190-15.3.I.4.a.; and,

Shall be adjacent to an existing LDA or an existing IDA, or shall meet the nonadjacency standards as listed in § 190-15.3.I.4.c.

New LDA or IDA in the RCA shall be located at least 300 feet beyond the landward edge of tidal wetlands or tidal waters.

The County Council shall consider each of the following factors in reclassifying Critical Area land management designations from less intense to more intense land management designations:

Consistency with the County's adopted Comprehensive Plan and whether the reclassified Critical Area land management designations would implement the goals and objectives of the adopted plan;

Consistency with state and regional environmental protection policies concerning the protection of threatened and endangered species and species in the need of conservation;

Impacts on a priority preservation area, as defined under § 2-518 of the Agricultural Article;

Environmental impacts associated with location in coastal hazard area or an increased risk of severe flooding;

Whether the area is located in a manner that:

Minimizes impacts to habitat protection areas;

Optimizes benefits to water quality; and

Minimizes impacts to agricultural land and forests.

Whether the area is to be served by a public wastewater system or septic system that uses the best available nitrogen removal technology; and

For a new IDA, whether the area will:

Have an allowed average density of at least 3.5 units per acre, as calculated under § 5-7B-03(h) of the State Finance and Procurement Article;

If a new IDA that is greater than 20 acres, be located in a priority funding area, as described under §§ 5-7B-02(1) and 5-7B-03 of the State Finance and Procurement Article; and

Have a demonstrable economic benefit to the area.

If the comprehensive or sectional map amendment reclassifies the Critical Area land management designations from more intense land management designations to RCA, the County Council shall consider how the characteristics of the land reclassified to RCA is consistent with the purposes listed under § 190-15.3.E.

In addition to the above, all comprehensive or sectional map amendments shall include the following documentation:

A description of the Critical Area land change for all parcels;

Zoning maps of the existing and proposed Critical Area land designations;

Recent aerial maps of each parcel to show existing[1] conditions; and

[1]

Editor’s Note: With the permission of the County, the typographical error “exiting” was corrected to read “existing.”

A table with the:

Proposed Critical Area land designation change;

Talbot County Map ID Number;

Tax Map and Parcel Number;

Existing land use of each parcel;

Total parcel acreage;

vi.

Total parcel acreage in the Critical Area; and

vii.

Total parcel acreage of the proposed Critical Area land destination change.

Calculating growth allocation.

The total acres reclassified to a more intense designation shall be deducted from the County's growth allocation allotment.

Five percent of the area reclassified from a more intense designation to RCA may be added to the County's available acreage that may be used for growth allocation in unincorporated areas of the County or through supplemental growth allocation.

Such comprehensive or section amendments, if approved by the County Council, shall comply with § 190-55.1.D and E, describing the process for approval by the Chesapeake Bay Critical Area Commission.

15.4

Requirements applicable throughout the Critical Area.

Prohibited uses. The following uses are prohibited in the Critical Area.

Non-maritime heavy industry;

Transportation facilities and utility transmission facilities, except those necessary to serve permitted uses, or where regional or interstate facilities must cross tidal waters. Utility transmission facilities do not include power plants;

Permanent sludge handling, storage, and disposal facilities, except those facilities associated with current wastewater treatment operations in Talbot County, and except the agricultural or horticultural land applications of sludge (with Maryland State approvals and approved application methods and rates) outside of the Shoreline Development Buffer;

Solid or hazardous waste collection or disposal facilities;

Sanitary landfills;

Septage storage or holding facilities, except facilities on the site of a Talbot County wastewater treatment plant; and

Boathouses and floating residences.

Stormwater management. Facilities for treatment of stormwater within the Critical Area shall not serve development outside of the Critical Area.

Tributary stream management. All development activities that cross or affect streams shall be prohibited unless there is no feasible alternative. If no alternative exists, development activities that cross or affect a stream shall be designed to:

Reduce increases in flood frequency and severity that are attributable to development;

Retain tree canopy so as to maintain stream water temperature within normal variation;

Provide a natural substrate for stream beds; and

Minimize adverse water quality and quantity impacts of stormwater.

Other requirements applying throughout the Critical Area. The requirements for agricultural uses (§ 190-15.8), forests, developed woodlands and trees (§ 190-15.9), and habitat protection areas (§ 190-15.10) apply throughout the Critical Area Overlay District.

15.5

Requirements specific to the RCA.

The RC Zoning District covers all land areas within the RCA in Talbot County unless granted growth allocation in accordance with § 190-55.5.K. Lot size, density, subdivision and land use requirements for the RCA are incorporated into the RC Zoning District requirements; see § 190-8.5.

See Article IV for land use requirements. New commercial, industrial, and institutional uses are prohibited in the RCA except uses that are specifically permitted in the RC District by Article IV.

15.6

Requirements specific to the RCA and LDA. The following development standards apply within areas designated as RCA (Resource Conservation Area) or LDA (Limited Development Area).

Forest and developed woodland standards. The following requirements apply to all development activity.

A forest preservation plan (§ 190-15.9.B) is required to address these forest planting and preservation requirements.

Existing forests and developed woodlands in habitat protection areas shall be protected.

The following standards shall apply to the removal of existing forest or developed woodland:

The removal of any existing forest or developed woodland shall be limited to 20% of the forest on any parcel.

The remaining 80% shall be protected and maintained through fee title donation, conservation easements, cooperative agreements with landowners and/or special provisions in forest management plans. The Planning Director shall approve the delineation of the area to be protected and the protection method.

Any natural vegetation, forest or developed woodland that has been removed shall be replaced on a not-less-than-equal-area basis, with the same species or a species appropriate to the site. Preferred location for replacement shall be on-site and adjacent to existing woods, streams or other natural habitat.

An additional 10% of any forest or developed woodland may be removed from forest use, provided that the replacement forest shall be 1.5 times the entire area of the forest or developed woodland being removed, including the first 20%.

Except for lots less than one acre as provided in Subsection A.3.f below, clearing more than 30% of any forest or developed woodland is prohibited unless authorized under a variance. See § 190-58 for variance procedures. Lots less than one acre are exempt from clearing limits.

[Amended 5-28-2019 by Bill No. 1411]

Legal lots of record in existence as of December 1, 1985, that are less than one acre may clear more than 30% of the forest and developed woodland on site, provided that:

[Added 5-28-2019 by Bill No. 1411[2]]

Clearing more than 30% and less than 50% will be mitigated at 1.5 times the entire area of forest or developed woodland cleared; or

Clearing 50% or greater will be mitigated at two times the entire area of forest or developed woodland cleared.

[2]

Editor's Note: This bill also redesignated former Subsection A.3.f. through i. as Subsection A.3.g. through j.

A fee-in-lieu shall be provided to the County, sufficient to ensure the restoration or establishment of an equivalent forest area, if the area of the site precludes the implementation of Subsection A.3.c, d and f above. The amount of the fee shall be determined in the fee schedule adopted by the County Council.

[Amended 5-28-2019 by Bill No. 1411]

Surety shall be provided by the property owners or developers in an amount acceptable to the Talbot County Council that will be suitable to assure satisfactory forest replacement as required in Subsection A.3.c and d above.

The Planning Director may require approval of an erosion and sediment control plan for the project prior to approving a forest preservation plan.

Any vegetation removed before obtaining required permits, or any forest area removed that exceeds the maximum allowed in Subsection A.3.a and d above, shall be replaced at three times the area of forest removed.

Afforestation is required when development occurs on an unforested or partially forested (less than 15% forested) parcel or lot existing as of August 13, 1989. The lot shall be planted to provide a forest or developed woodland cover of at least 15%. The preferred location for plantings shall be within the Shoreline Development Buffer, then adjacent to streams, woods or other natural features. The afforestation areas shall be shown on a forest preservation plan.

Steep slopes. Development on slopes equal to or greater than 15%, as measured before development, shall be prohibited unless the project is the only effective way to maintain or improve the stability of the slope and is consistent with the purposes of the RCA and LDA (§ 190-15.3.E and F).

Lot coverage.

15% limit throughout RCA and LDA. Lot coverage in the RCA and LDA is limited to no more than 15% of a parcel or lot. There are limited exceptions to this lot coverage limitation for lots of one acre or smaller, as provided in Subsection C.4 below. Lot coverage shall be calculated separately for the area in the RCA and the area in the LDA, so that the 15% limit is met for each land use designation.

15% limit for certain subdivisions. If an individual lot one acre or less in size is part of a subdivision approved after December 1, 1985, the total lot coverage for the entire subdivision may not exceed 15%, and the lot coverage of an individual lot may not exceed 40%.

Lot coverage in the Shoreline Development Buffer. Within the Shoreline Development Buffer, there is no allowable, by right, lot coverage. Increases in lot coverage may be allowed based upon certain allowances for:

Properties in the Modified Buffer Area (§ 190-15.11.H);

For certain water-dependent facilities (§ 190-15.14); or

Through a variance for expansion of a legal, nonconforming structure (§ 190-58).

Exceptions to 15% lot coverage limit.

Additional lot coverage in the LDA is permitted if official documentation (plats, deed records) demonstrates that the lot existed on December 1, 1985. Lot coverage for such lots shall be limited as shown in Table III-3.

Table III-3. Lot Coverage Limits for Lots Existing in the LDA on December 1, 1985
Column A Permitted Lot Coverage		Column B Higher Maximum Lot Coverage With Planning Director Approval¹
Lot Size	Maximum Lot Coverage	Lot Size (square feet)	Maximum Lot Coverage
21,780 square feet (1/2 acre) or less	25%	0 to 8,000	25% of parcel plus 500 square feet
		8,001 to 21,780	31.25% of parcel
Greater than 1/2 acre and less than 1 acre	15%	21,781 to 36,300	5,445 square feet
		36,301 to 43,560	No increase over 15%
1 acre or greater	15%	N/A	N/A

NOTE:
¹	See criteria for approval in Subsection B.4.b of this section.

The Planning Director may approve the greater lot coverage as indicated in Column B of Table III-3 based upon findings that the following criteria are satisfied:

New lot coverage on the property has been minimized; and

Water quality impacts associated with runoff from the new development activities that contribute to lot coverage will be minimized through site design considerations or use of best management practices; and

If Subsection C.4.b.ii cannot be achieved, the property owner performs on-site mitigation as required by the Planning Director to offset potential adverse water quality impacts from the new development activities that contribute to lot coverage.

Lots impacted by 2008 revisions to impervious surface limits. A lot or parcel not in compliance with the lot coverage requirements, but legally developed as of July 1, 2008, in accordance with the impervious surface requirements in effect at the time of construction, is legally nonconforming for purposes of lot coverage requirements. See Article VI for nonconforming structure provisions.

Lots impacted by 2014 Zoning Map amendments. If adoption of the Official Zoning Maps of Talbot County, Maryland, increases the Critical Area on a lot of record existing as of October 11, 2014, the following lot coverage limitations shall apply to that lot:

Lots greater than 1/2 acre: lot coverage may not exceed 15% of the total lot area located within the Critical Area.

Lots 1/2 acre or less: lot coverage may not exceed 40% of the total lot area located within the Critical Area.

Nonconforming lots: a legally developed lot subject to this Subsection C.6 that exceeds the percentage of lot coverage in Subsection C.6.a or b above, prior to October 11, 2014, shall be treated as a legally nonconforming lot for purposes of lot coverage requirements. Figure III-1 illustrates examples of this category of lots.

Figure III-1: Examples of Lot Coverage for Lots Developed Prior to October 11, 2014[3]

[3]

Editor’s Note: With the permission of the County a notation referencing Bill No. 1294 was removed from this figure.

Clustering requirements for subdivisions. The following standards apply to subdivisions in the TR, RR and RC Districts that are within the Critical Area RCA and LDA:

The cluster development form of subdivision shall be used.

In clustering lots, the following priorities shall be observed:

Minimize alteration to habitat protection areas described in the project's habitat protection plan;

Minimize development activities on land that has been used for agricultural purposes within the two years prior to the subdivision request.

15.7

Requirements specific to the IDA. The following requirements apply within areas designated as an IDA (intensely developed area).

All permeable ground surfaces shall be established in vegetation.

Stormwater management plans shall comply with the Maryland Chesapeake and Atlantic Coastal Bays Critical Area 10% Rule Guidance - Fall 2003 (the 10% Rule Guidance) and as subsequently amended.

Redevelopment and new development proposals in the IDA shall demonstrate use of best management practices for stormwater management that assure a 10% reduction of predevelopment pollutant loadings. This demonstration shall be based on methodologies agreed on by the County and the Critical Area Commission.

Plans that cannot demonstrate the required on-site reductions in predevelopment pollutant loadings may be approved only if the plan demonstrates that mitigation measures, including fees-in-lieu, or offsets will be provided to achieve equivalent water quality benefits elsewhere in the same watershed. All such mitigation measures or offset plans shall be consistent with methodologies agreed on by the County and the Critical Area Commission.

Forest preservation plans (§ 190-15.9.B) shall comply with the following criteria:

Forest and developed woodland resources shall be enhanced through techniques such as urban forestry (street tree plantings, gardens, landscaping, open land buffer plantings);

Destruction of forest and woodland vegetation shall be minimized; and

Existing forests and developed woodlands in habitat protection areas shall be protected.

15.8

Agricultural uses. Permitted agricultural uses in all portions of the Critical Area shall be conducted in accord with the following provisions:

Best management practices.

Agricultural activity within the Critical Area shall utilize best management practices (BMPs) by having in place and implementing:

A soil conservation and water quality plan approved by the County Soil Conservation District; and

A nutrient management plan prepared by a certified nutrient management consultant or certified farm operator in accordance with COMAR § 15.20.07 and 08.

The BMPs implemented within the Critical Area shall include the following:

Farming activities, including the grazing of livestock, shall not disturb stream banks, tidal shorelines, or other habitat protection areas; and

The feeding or watering of livestock may not occur within 50 feet of the mean highwater line of tidal water and edge of tidal wetlands, and of tributary streams, whichever is further inland.

New agricultural lands. The creation of new agricultural lands shall not be accomplished by:

Diking, draining, or filling of any class or subclass of palustrine wetlands as described in the State Critical Area Program that are seasonally flooded, unless mitigation is accomplished in accordance with applicable state and County regulations;

Clearing forests or woodlands with soils having a slope greater than 15%; or on soils with a K-value greater than 0.35 and slope greater than 5%;

Clearing vegetation that will adversely affect water quality or will destroy plant and wildlife habitats; or

The clearing of existing natural vegetation within the Shoreline Development Buffer.

Vegetated filter strip. Agricultural activities are permitted in the Shoreline Development Buffer, provided that, as a minimum best management practice, a vegetated filter strip conforming to the following standards is provided:

The filter strip shall be at least 25 feet wide, measured landward from the mean high-water line of tidal water, edge of tidal wetlands, and edge of tributary streams (excluding drainage ditches), whichever is further inland.

If the average slope of the strip is greater than 6% (measured from the water's edge to the landward edge of the strip, along a line perpendicular to the water), then the strip shall be expanded in four-foot increments for each 1% of slope over 6%.

The filter strip shall be composed of either trees with a dense ground cover, a dense ground cover with suitable native shrubs and grasses, or a thick sod of grass, and shall be managed so as to provide water quality benefits and habitat protection consistent with the Shoreline Development Buffer purposes.

Invasive species and noxious weeds that occur in the filter strip, including Johnson grass, Canada thistle, and multiflora rose, may be controlled by authorized means.

The filter strips shall be maintained until such time as the landowner is implementing, under an approved Soil Conservation and Water Quality Plan, a program of best management practices for the specific purposes of improving water quality and protecting plant and wildlife habitat; and provided that the portion of the Soil Conservation and Water Quality Plan being implemented achieves the water quality and habitat protection objectives of the filter strip.

15.9

Forests, developed woodlands and trees.

Purposes and required plans.

Development in the Critical Area is to be designed to:

Maintain and increase the forested vegetation of the Critical Area.

Conserve forests and developed woodlands and provide for expansion of forested areas;

Minimize the removal of trees associated with development activities, and provide for mitigation where appropriate;

Recognize that forests are a protective land use to be managed to maintain the maximum values for wildlife, water quality, timber, recreation, and other resources, recognizing that, in some cases, these uses may be mutually exclusive.

Forest preservation, planting and mitigation requirements for the Critical Area:

Specific to the IDA are listed in § 190-15.7.C.

Specific to the RCA and LDA are listed in § 190-15.6.A.

Table III-4 lists the approvals required for different types of forestry and tree maintenance activities in the Critical Area. The Department of Planning and Zoning shall decide if removal of trees is permitted, and what type of plan is required, based on considerations including, but not limited to the following:

The number of trees or area of vegetation, if any, to be removed;

Slopes;

Potential for erosion; and

Whether mitigation will be required.

Types of plans that may be required within the Critical Area but outside the Shoreline Development Buffer include:

Critical Area timber harvest plans, required for commercial harvesting of trees;

Forest preservation plans, required when forests or developed woodlands are to be cleared; when multiple trees are to be removed from within a forest or developed woodland; or afforestation is required; and

Property maintenance permits, required for removal of invasive or noxious vegetation, removal of individual trees, and horticultural practices.

Within the Shoreline Development Buffer, a buffer management plan is required for removal or planting of vegetation. (See § 190-15.12.)

For any activity not listed in Table III-4, the Planning Director shall determine if the activity is permitted and what type of plan or permit is required.

Table III-4. Critical Area Forestry Activity Approvals
Activity		Plan or Permit Required
Outside the Shoreline Development Buffer
a.	All timber harvesting occurring within any one-year interval and affecting one or more acres in forests and/or developed woodland	Critical Area timber harvest plan and forest preservation plan
b.	Development activity that results in the cutting or clearing of any portion of a forest or developed woodland or individual trees	Forest preservation plan or property maintenance permit
c.	Development activity resulting in required tree planting, forest establishment or mitigation under any provision of the Critical Area Overlay District, § 190-15	Forest preservation plan
d.	The removal of individual trees for valid reasons other than accommodating development activity	Forest preservation plan or property maintenance permit
e.	Removal of individual trees that are in danger of falling and causing damage to dwellings or other structures, or that are in danger of falling and therefore causing the blockage of streams, or resulting in accelerated shore erosion	Forest preservation plan or property maintenance permit
f.	Horticultural practices, including thinning, necessary to maintain the health of individual trees, or removal of trees that are dead, diseased or damaged from natural causes and are unlikely to survive	Forest preservation plan or property maintenance permit
g.	Other cutting techniques which may be undertaken under the advice and guidance of the Maryland Departments of Agriculture and Natural Resources, if necessary to preserve the forest from extensive pest or disease infestation or threat from fire	Forest preservation plan or property maintenance permit
h.	Removal of invasive species or noxious vegetation, including Johnson grass, Canada thistle, and multiflora rose	Property maintenance permit
Within the Shoreline Development Buffer
i.	All timber harvesting regardless of the area affected	Critical Area timber harvest plan, buffer management plan
j.	Development activity, subdivision, change in use, clearing or installing vegetation for any purpose	See §§ 190-15.12 and 190-15.13

Forest preservation plans.

When required. A forest preservation plan is required for tree removal or planting within the Critical Area and outside of the Shoreline Development Buffer.

Preparation; submittal; decision.

The Planning Director shall publish an application form and a checklist of required information for forest preservation plans.

At a minimum, the forest preservation plan shall show existing vegetation, vegetation proposed to be removed, proposed planting, including the size, species and location of all plantings and proposed planting dates.

The Planning Director may require that a forest preservation plan be prepared by a registered professional forester or other qualified professional.

The application shall be filed with and decided by the Department of Planning and Zoning.

Implementation and maintenance.

A forest preservation plan shall include either of the following:

A time period for implementing the plan and provisions for a final inspection by the County, after which the plan will be certified complete; or

Provisions for removal of invasive species and/or maintenance of natural vegetation for a period of up to five years, including provisions for annual inspection by the County.

Approval of a forest preservation plan authorizes the current property owner to maintain the approved area or activity in accordance with the plan, without any requirement for reapplication or re-approval.

Property maintenance permits.

A property maintenance permit is required for removal of invasive or noxious vegetation, removal of individual trees and horticultural practices within the Critical Area and outside the Shoreline Development Buffer.

The Planning Director shall publish an application form and checklist of required information for property maintenance permits.

The application shall be filed with and decided by the Department of Planning and Zoning.

In approving the application, the Department of Planning and Zoning may include conditions necessary to achieve the purposes and general requirements of this § 190-15.9.

Critical Area timber harvest plans.

Procedures.

The plan shall be prepared by a registered professional forester or the Maryland Forest Service.

The plan shall be submitted to the Talbot County Forest Conservancy District Board and, upon approval, to the Talbot County Soil Conservation District.

Upon approval by the Talbot County Soil Conservation District, the plan shall be forwarded to the Planning Office, accompanied by an application for approval of a forest preservation plan. The Department of Planning and Zoning shall approve the forest preservation plan, provided it is consistent with the applicable requirements for the Critical Area Land Management Area and with the approved timber harvest plan.

Requirements for timber harvesting in the Critical Area. All Critical Area timber harvesting plans shall:

Include measures to protect surface water and groundwater quality;

Identify whether the activities will disturb or affect habitat protection areas and incorporate protection measures for these areas; and

Provide for the continuity of habitat through forest management techniques, including scheduling, size, timing and intensity of harvest cuts, afforestation and reforestation.

Requirements for timber harvesting within the Shoreline Development Buffer.

Cutting or clearing of trees within the Shoreline Development Buffer is prohibited, except that commercial harvesting of trees may be permitted in the portion of the buffer more than 50 feet from the mean high-water line of tidal water and edge of wetlands, and more than 50 feet from tributary streams. Such harvesting shall allow the selective cutting of any species or clear cutting of loblolly pine and tulip poplar trees.

Commercial harvesting shall not be permitted within those portions of the Shoreline Development Buffer located in the following habitat protection areas:

Wetlands;

Habitats of threatened and endangered species or species in need of conservation;

Anadromous fish propagation waters; and

Plant and wildlife habitats.

For harvest activities within the Shoreline Development Buffer, the timber harvest plan shall also insure that:

Disturbance to stream banks and shorelines is avoided;

The area disturbed or cut will be replanted or allowed to regenerate in a manner that assures the availability of cover and breeding sites for wildlife, and reestablishes the wildlife corridor function of the Shoreline Development Buffer; and

The cutting does not involve the creation of logging roads and skid trails within the Shoreline Development Buffer.

Erosion and sediment control plan.

For any timber harvest that will disturb an area of 5,000 square feet or more, including harvesting of trees on agricultural lands, an erosion and sediment control plan shall be submitted to the Soil Conservation District. This plan is also required for any harvests which cross tidal streams.

This plan shall be developed according to the state guidelines entitled "Standard Erosion and Sediment Control Plan for Harvest Operations."

Implementation and enforcement. Harvest operations shall be implemented in accordance with specifications set out by the Maryland Department of Natural Resources. The County will enforce the timber harvest plan.

15.10

Habitat protection areas; habitat protection plans.

Habitat protection areas.

As established in COMAR Title 27, habitat protection areas are the following: the Shoreline Development Buffer, nontidal wetlands, habitats of species in need of conservation, threatened and endangered species, plant and wildlife habitat areas, and anadromous fish propagation waters.

Development and redevelopment activities shall be subject to the requirements of this section to avoid disturbance to habitat protection areas. When no alternative exists and such activities must cross or be located in habitat protection areas, the applicant shall minimize impacts to habitats and show that no reasonable feasible alternative location for such activity exists.

An applicant for a development activity proposed for a site within the Critical Area that is in or near a habitat protection area listed above shall request review by the Department of Natural Resources Wildlife and Heritage Service (DNR WHS), and as necessary the United States Fish and Wildlife Service (USFWS), for comment and technical advice.

Habitat protection plans.

A habitat protection plan is required when a proposed subdivision would affect any of the habitat protection areas described in Subsection D, E, F or G below.

The Planning Director may require a habitat protection plan for types of development activity other than subdivisions.

A habitat protection plan shall be prepared by a professional biologist, ecologist, or other professional qualified to prepare such plans.

The habitat protection plan shall show how the development activity will meet the purposes and specific requirements for each type of habitat protection area set forth in the individual habitat protection area sections below.

Roads, bridges and utilities.

Roads, bridges, and utilities are prohibited in any habitat protection area unless no feasible alternative exists.

If authorized, all roads, bridges, and utilities that must cross a habitat protection area shall be located, designed, constructed, and maintained so as to provide maximum erosion protection, minimize negative impacts to wildlife, aquatic life and their habitats, and maintain hydrologic processes and water quality.

Nontidal wetlands.

A permit shall be obtained from the Maryland Department of the Environment for any activity regulated under COMAR 26.23 (Nontidal Wetlands) that is proposed as part of a development activity in or within 25 feet of nontidal wetlands.

A minimum twenty-five-foot buffer around nontidal wetlands shall be maintained. Regulated activities within nontidal wetlands and their buffers authorized by a permit or letter of exemption from the Maryland Department of the Environment, and development activities that do not require a permit or letter of exemption from the Maryland Department of the Environment, are not subject to this requirement.

Nontidal wetlands and a twenty-five-foot buffer shall be shown on all required plans and plats, including, but not limited to, concept plans, subdivision plans, forest preservation plans, buffer management plans and site plans.

Threatened and endangered species; species in need of protection or conservation.

Purpose. The purpose of this section is to provide protection for threatened and endangered species, for species in need of conservation, and for the habitats of these species in the Critical Area.

Species.

Species protected under this section include, but are not necessarily limited to, the Bald Eagle, Delmarva Fox Squirrel, and the Sedge Wren.

As part of the habitat protection plan, the applicant shall coordinate with the appropriate state and federal agencies (Department of Natural Resources, United States Fish and Wildlife Services, etc.) to identify any threatened and endangered species and species in need of conservation that might be affected by the proposed development activity, and to identify protection and management mechanisms.

Requirements. The habitat protection plan shall include measures to protect threatened and endangered species and species in need of conservation. These measures shall include:

Designation of protection areas around the habitats of the species; and

A program for protecting the habitats of the species which may include, but is not limited to areas or periods of restricted access or activity, conservation easements, cooperative agreements with landowners, special provisions in forest preservation plans, buffer management plans, soil conservation and water quality plans, soil erosion and sediment control plans, or other plans.

Plant and wildlife habitat areas.

Purpose. The purpose of this section is to:

Conserve wildlife habitat in the Critical Area;

Protect those wildlife habitats that tend to be least abundant, or which may become so in the future if current land use trends continue;

Protect those wildlife habitat types which are required to support the continued presence of various species; and

Protect natural heritage areas.

Plant and wildlife habitat areas. Plant and wildlife habitat areas include:

Colonial waterbird nesting sites;

Historic waterfowl staging and concentration areas in tidal waters, tributary streams or tidal and nontidal wetlands;

Riparian forests (for example, those relatively mature forests of at least 300 feet in width which occur adjacent to streams, wetlands, or the bay shoreline and which are documented breeding areas);

Forest areas utilized as breeding areas by forest interior dwelling birds and other wildlife species (for example relatively mature forested areas within the Critical Area of 50 acres or more or forest connected with such areas).

Natural heritage areas;

Other areas which may in the future be identified by state and federal agencies as important plant or wildlife habitat areas;

Other plant and wildlife habitats determined to be of local significance because they contain species uncommon or of limited occurrence in the County, or because the species are found in unusually high concentrations; and

Nontidal wetlands.

Requirements. The habitat protection plan shall include measures to protect and enhance plant and wildlife habitat areas. These measures shall include:

Buffer areas for colonial water bird nesting sites. Protect these areas from development activities and from disturbance in the breeding season.

Locate new water-dependent facilities so as to prevent disturbance to sites of significance to wildlife such as historic, aquatic staging and concentration areas for waterfowl.

Protect and conserve forested areas required to support plant and wildlife species. (See A Guide to the Conservation of Forest Interior Dwelling Birds in the Chesapeake Bay Critical Area, dated June 2000, and as may be subsequently amended.) Management measures may include, but are not limited to:

Clustering development;

Other site design practices;

Easements and other land preservation techniques; and

Preserving the vertical diversity of plant type by maintaining natural bush and ground cover layers beneath stands of trees.

Provide effective connections between wildlife habitat areas.

Protect by appropriate means locally significant plant and wildlife habitats.

Protect natural heritage areas from alteration due to development activities or cutting or clearing so that the structure and species composition of the areas are maintained.

Incorporate plants with high benefit to wildlife into development.

Anadromous fish propagation waters.

Purpose. The purposes of this section are to:

Protect the in-stream and streambank habitat of anadromous fish propagation waters;

Promote land use policies and practices in the watershed of spawning streams that minimize the adverse impacts of development on the water quality of the streams; and

Provide for the unobstructed movement of spawning and larval forms of anadromous fish in streams.

Identification of waters. Bodies of water that have been identified as spawning areas in Talbot County are identified by the Maryland Department of Natural Resources.

Requirements.

Unobstructed movement in streams shall be provided for spawning and larval forms of anadromous fish. The construction or placement of dams or other structures that would interfere with or prevent the movement of spawning fish or larval forms in streams shall be prohibited. The removal of existing barriers shall be accomplished wherever possible.

The construction, repair, or maintenance activities associated with bridges or other stream crossings, or with utilities and roads, which involve disturbance of the Shoreline Development Buffer or which occur in streams with identified spawning areas, shall be prohibited between March 1 and June 15.

The installation or introduction of concrete riprap or other artificial surfaces onto the bottom of natural streams shall be prohibited, unless it can be demonstrated that installation of such surfaces improves water quality and fisheries habitat.

Channelization or other physical alteration that may change the course or circulation of a stream and thereby interfere with the movement of fish shall be prohibited.

Construction of shore-based facilities (such as marinas), dredging, filling, and construction of jetties or bulkheads shall not be allowed in areas of established submerged aquatic vegetation within spawning waters.

Shoreline Development Buffer. (See §§ 190-15.11 and 190-15.12.)

The Shoreline Development Buffer is intended to consist of naturally vegetated areas, or areas to be established in vegetation, that are managed to protect aquatic, shoreline, wetland, and terrestrial environments from human-made disturbances.

In order to accomplish this intent, the Shoreline Development Buffer generally prohibits new development, requires protection of naturally vegetated areas, and requires mitigation whenever natural vegetation is disturbed or new development occurs.

The location and width of the Shoreline Development Buffer is determined by COMAR, § 27.01.09.01.E. This area is established for each lot or parcel based upon the criteria given in § 190-15.11.B below.

Requirements for the Shoreline Development Buffer are given in §§ 190-15.11 and 190-15.12.

15.11

Shoreline Development Buffer (also referred to as the "Buffer").

Purpose. The Shoreline Development Buffer is a habitat protection area that shall be established and managed to achieve or enhance the following functions:

Remove or reduce the sediments, nutrients, and potentially harmful or toxic substances in runoff entering the Chesapeake Bay and its tributary streams;

Minimize the adverse effects of human activities on wetlands, shorelines, stream banks, tidal waters, and aquatic resources;

Maintain an area of transitional habitat between aquatic and upland ecological communities;

Maintain the natural environment of streams;

Protect riparian wildlife habitat; and

Maintain natural vegetation.

Measurement.

The Shoreline Development Buffer shall be measured based on existing field conditions from the landward edge of the mean high-water line of tidal waters, the edge of each bank of a tributary stream, and the upland boundary of a tidal wetland.

The Shoreline Development Buffer shall be:

When within the RCA and measured from the edge of mean high water or tidal wetlands:

At least 200 feet wide for subdivisions and site plans submitted after July 1, 2008, excluding, for subdivisions only, one parent parcel, which shall be subject to Subsection B.1.a.ii below;

At least 100 feet wide for all parent parcels, lots legally created prior to July 1, 2008, or lots for which subdivision plans were submitted before July 1, 2008, and final plats were recorded on or before July 1, 2010;

At least 100 feet wide for lots within the LDA or IDA; and

At least 100 feet wide from the edge of tributary streams.

Reduction of Buffer.[4]

The 200-foot Shoreline Development Buffer may be reduced if the strict application of the minimum 200-foot Buffer would preclude:

Subdivision of the property at a density of one dwelling unit per 20 acres, provided all other state and local requirements will be satisfied; or

An intrafamily transfer as permitted by the RC District standards.

The reduced Buffer should be the minimum necessary to accommodate a dwelling and a sewage reserve area, as determined by the Planning Director, but no less than 100 feet.

[4]

Editor’s Note: With the permission of the County the organization of this subsection was changed to provide additional clarity.

A Buffer expansion shall be required, beyond the minimum 100-foot or 200-foot Shoreline Development Buffer, to include and extend beyond contiguous sensitive areas, such as soils with slopes 15% or greater, hydric soils, or highly erodible soils.

The Buffer shall be expanded for slopes of 15% or greater (steep slopes) in accordance with the following. Also see "Buffer Expansion" as defined in Article IX.

If a steep slope is contained completely within the Buffer, Buffer expansion is required only to provide a Buffer of at least 25 feet from the top of the slope.

If a steep slope is partially within or contiguous to the Buffer, the Buffer shall be expanded four feet for every 1% of slope beyond the required Buffer, or 25 feet from the top of the slope, whichever is greater in extent, except as provided in Subsection B.5.c below.

The Planning Commission may approve a Buffer expansion limited to 25 feet from the top of the slope, even if greater expansion would be required based on the Subsection B.5.b above, if the Planning Commission determines that the slope has one or more of the following characteristics:

Steep slopes less than 10 feet in width, such as agricultural ditches;

Steep slopes that are isolated and less than 10,000 square feet in area, irrespective of property lines;

Steep slopes with width of less than 25 feet where the slope crosses the 100-foot Buffer boundary; or

Similar characteristics exist that result in a narrow and/or isolated area of steep slopes.

The following criteria shall be used to measure the expanded Buffer for highly erodible soils or hydric soils contiguous to the Buffer:

For a nontidal wetland of special state concern, expand the Buffer to include the upland boundary of the wetland and its regulated 100-foot Buffer;

For other nontidal wetlands, expand the Buffer to include the upland boundary of the nontidal wetland;

For highly erodible soils or hydric soils with a slope of 5% or greater, expand the Buffer to the lesser of the landward edge or 300 feet, including the Buffer width required under Subsection B.2 above.

If the Buffer is contiguous to hydric or highly erodible soils on a slope less than 15%, and the Buffer is on a lot created before January 1, 2010, development activity may be approved in the expanded Buffer if:

The development activity is in the expanded portion of the Buffer, but not in the Buffer required under Subsection B.2 above;

The Buffer occupies at least 75% of the lot or parcel; and

Mitigation occurs at a 2:1 ratio, based on the lot coverage of the proposed development activity that is in the expanded Buffer.

In Modified Buffer Areas, under certain conditions, Shoreline Development Buffer setbacks may vary in accordance with provisions set forth in § 190-15.11.H.

Maintaining the Shoreline Development Buffer.

The Buffer shall be maintained in natural vegetation and managed to achieve or enhance the functions stated in Subsection A above.

New development activities, including structures, fences, roads, parking areas and other impervious surfaces, mining and related facilities, or septic systems, are not permitted in the Shoreline Development Buffer, except for those necessarily associated with water-dependent facilities or individual private piers.

Lot coverage in the Buffer may not exceed the minimum amount necessary for water-dependent facilities, regardless of the Critical Area classification or the size of the parcel or lot, except:

In Modified Buffer Areas;

If a variance is granted in accordance with § 190-58; or

In accordance with § 190-15.11.B.7.

Cutting, clearing, and removal of existing vegetation, including understory trees, shrubs and ground cover within the Buffer is prohibited except as authorized by a Buffer Management Plan.

Existing areas of public access to the shoreline, such as footpaths, scenic drives, and other public recreational facilities, shall be maintained, with new facilities encouraged in the IDA.

Vegetation may be removed for one pathway to the shore or piers, subject to the approval of a Buffer Management Plan. (See § 190-15.12.)

The pathways shall be:

Direct and no longer than necessary;

No wider than six feet; and

Constructed to maintain as much canopy as possible.

Pathway surfaces shall be:

Grass or similar low vegetation, stabilized only with pervious wood chips or,

Materials such as boards, asphalt, or gravel, provided that mitigation is provided, in accordance with a buffer management plan, that covers two times the area of the hard surfaced pathway.

In areas of steep slopes, wooden stairways may be constructed as approved by the Planning Director.

Normal and customary maintenance of lawns located in the Shoreline Development Buffer may continue until approval of a development activity requiring a buffer management plan.

Shoreline Buffer establishment.

Shoreline Buffer establishment requirements apply to:

Development or redevelopment activity on a lot that includes a Buffer to tidal waters, a tidal wetland, or a tributary stream if the development or redevelopment activity is located outside the Buffer; and

A subdivision that includes a Buffer to tidal waters, a tidal wetland, or a tributary stream.

When the Shoreline Development Buffer is not fully forested or fully established in existing, naturally occurring woody or wetland vegetation, an applicant shall establish the Buffer to the extent required in Table III-5.

The required Buffer establishment area shall be:

Calculated as the linear length of the tidal shoreline times the depth of the Buffer (including required Buffer expansion);

Reduced by the area within the Buffer of existing naturally occurring wetland or woody vegetation or forest; and

Reduced by the lot coverage which existed in the Buffer before December 1, 1989.

Buffer establishment is not required for:

In-kind replacement of a structure; or

Land that remains in agricultural use after subdivision, provided that the applicant records an approved buffer management plan with the plat and implements the Buffer management plan when the lot is converted to a nonagricultural use.

The applicant may deduct from the total establishment requirement an area removed within the Shoreline Development Buffer that is covered by existing improvements if:

The lot coverage existed before December 1, 1989; and

The total area is stabilized.

When the establishment requirement is based on the total square footage of lot coverage located outside of the Buffer:

At least 50% of the Buffer establishment requirement shall be located within the first 100 feet and the remainder of the requirement may be within 300 feet (as measured landward from the edge of tidal waters or the upland boundary of tidal wetlands).

[Amended 5-28-2019 by Bill No. 1411]

At least half of the canopy and understory tree requirement shall be located within the 100-foot Buffer and in accordance with Table III-8.

Table III-5. Shoreline Development Buffer Establishment Requirements
Development Category	Lot Created Before 8-13-1989	Lot Created After 8-13-1989
Development on a vacant lot	Establish an area of the Buffer equal to the total square footage of lot coverage outside the Buffer	Fully establish the Buffer
Subdivision	Fully establish the Buffer
New lot with an existing dwelling unit	Establish an area of the Buffer equal to the total square footage of lot coverage outside the Buffer
Conversion of a land use on a parcel or lot to another land use	Fully establish the Buffer
Construction of an addition, accessory structure, or redevelopment	Establish an area of the Buffer equal to the net square footage increase in lot coverage outside the Buffer
Substantial alteration to an existing structure	Establish an area of the Buffer equal to the total square footage of lot coverage outside the Buffer

Plantings shall be located in a manner that provides water quality and habitat benefits, and the County-approved Buffer Management Plan shall include appropriate measures for the protection and the maintenance of the entire area planted, including those areas planted outside of the Shoreline Development Buffer.

[Added 5-28-2019 by Bill No. 1411]

Buffer mitigation. Mitigation is required when existing vegetation in the Buffer is disturbed in accordance with the following standards:

Mitigation for development or redevelopment activity in the Buffer or for the removal of an individual tree, developed woodland, or forest shall be calculated:

According to the ratios in Table III-6, Minimum Planting Mitigation Ratios, below; and

Based on the area (square footage) of canopy coverage removed, as determined by the Planning Office.

Mitigation for or removal of a diseased, dying, invasive, or hazardous tree:

Mitigation shall be one tree of at least a 3/4-inch caliper for each tree removed; or

The affected area shall be stabilized in native woody vegetation, if a tree cannot be replanted due to space constraints.

Mitigation for removal of a dead tree: the affected area shall be stabilized with native groundcover or other native vegetation as necessary.

Planting priorities.

Whenever feasible, mitigation planting shall be provided on-site within the Shoreline Development Buffer.

If mitigation planting cannot be located on-site within the Buffer because of site constraints, planting shall be required in the following order of priority:

On-site and adjacent to the Buffer;

On-site elsewhere in the Critical Area;

If no feasible on-site alternative exists, payment of a fee-in-lieu in accordance with the fee schedule adopted by the County Council; and

With Critical Area Commission concurrence, off-site planting in the buffer.

Off-site mitigation planting shall include easements or other means of ensuring long-term protection for the mitigation area.

Minimum mitigation ratios. Table III-6 establishes the required minimum mitigation ratios.

Deduction for prior lot coverage. An applicant may deduct from the total mitigation requirement an area of lot coverage removed from the Buffer if:

The lot coverage existed prior to December 1, 1989; and

The total area is stabilized.

Table III-6. Minimum Planting Mitigation Ratios in the Shoreline Development Buffer
Activity	Minimum Mitigation Ratio
Activity	Permanent Disturbance	Temporary Disturbance
Septic system on a lot created before August 13, 1989, 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 August 13, 1989, if clearing is required	1:1	Not applicable
Shore erosion control if clearing or grading is required	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

Planting requirements for buffer establishment and mitigation.

Buffer management plan required. A buffer management plan is required for Buffer establishment or mitigation in accordance with § 190-15.12.

Buffer planting and required forest planting. Any lands within the Shoreline Development Buffer where forest is established for Buffer establishment may be credited towards plantings required under § 190-15.9.A, forest and developed woodland standards.

Required plantings for buffer mitigation. A buffer management plan may include a combination of plantings for Buffer mitigation in accordance with Table III-7:

Table III-7. Buffer Mitigation Planting Requirements
Total Area of Required Mitigation Plantings (acres)	Options
Less than 1	Landscaping stock according to Table III-8 for the entire area
1 or greater	At least 50% of area in landscaping stock according to Table III-9, with the remainder in small nursery stock according to Table III-10

Required plantings for buffer establishment. A buffer management plan may authorize a combination of plantings and natural regeneration for Buffer establishment in accordance with Table III-8.[5]

Table III-8. Buffer Establishment Planting Requirements
Total Establishment Requirement (acres)	Options
Less than 1/4	Landscaping stock according to Table III-9 for the entire area
1/4 to 1	At least 25% landscaping stock (Table III-9) with the remainder a combination of small nursery stock (Table III-10) or natural regeneration (§ 190-15.12.G below)
Greater than 1	At least 10% landscaping stock (Table III-9) with the remainder a combination of small nursery stock (Table III-10) or natural regeneration (§ 190-15.12.G below)

[5]

Editor’s Note: At the direction of the County, the incorrect reference to “Table III-7” was corrected to read “Table III-8.”

Landscaping stock.

Where Buffer establishment or mitigation is provided with landscaping stock, the planting credits in Table III-9 shall be applied for the type and size of the vegetation.

All landscaping stock shall be guaranteed for at least two years after planting is completed.

Table III-9. Planting Credits for Landscaping Stock
Vegetation Type	Minimum Size Eligible for Credit	Maximum Credit Allowed (square feet)	Maximum Percent of Landscape Stock Credit
Canopy tree	2-inch caliper	200	Not applicable
Canopy tree	3/4-inch caliper	100	Not applicable
Understory tree	3/4-inch caliper	75	Not applicable
Large shrub	3 feet high	50	30
Small shrub	18 inches high	25	20
Herbaceous perennial	1 quart or based on the area covered by plugs or seed mix	2	10
Planting cluster for Buffer establishment or mitigation of less than 1/2 acre	1 canopy tree; and 3 large shrubs or 6 small shrubs of sizes listed above	300	Not applicable
Planting cluster for Buffer establishment or mitigation of less than 1/2 acre	2 understory trees; and 3 large shrubs or 6 small shrubs of sizes listed above	350	Not applicable

Small nursery stock. Where Buffer establishment or mitigation is provided with small nursery stock, as allowed by Tables III-7 and III-8, the planting credits in Table III-10 shall be applied for the size of the trees at planting.

Table III-10. Planting Credits for Small Nursery Stock
Stock Size of Trees Only	Required Stems Per Acre	Survivability Requirement	Minimum Financial Assurance Period After Planting (years)
Bare-root seedling or whip	700	50%	5
1/2-inch to 1-inch container grown trees	450	75%	2
More than 1-inch container grown trees	350	90%	2

Natural regeneration. Where natural regeneration is used as a component of Buffer establishment:

The natural regeneration area shall not include any new managed lawn or turf;

The natural regeneration area must be within 300 feet of a mature forest of at least one acre that contains a seed bank of native species adequate for natural regeneration;

The buffer management plan shall include a natural regeneration component in compliance with § 190-15.12.G; and;

The reporting and inspection requirements of § 190-15.12.G shall be followed to ensure the success of the natural regeneration component.

Increased proportion of shrubs and perennials. The percentage of shrubs or herbaceous perennials required by Table III-9, for the landscape stock component of Buffer establishment or mitigation, may be increased:

[Amended 5-28-2019 by Bill No. 1411]

If the Buffer has existing canopy coverage of at least 50%; or

If site constraints preclude canopy planting, including severely eroding slopes, salt water intrusion, predominately sandy soils, or unconsolidated fill; or

To allow Buffer planting in shrubs and herbaceous perennials, rather than trees, within an area no wider than 15 feet located immediately adjacent to a marsh creation.

Plan and permit approval.

No waiver or variance may be granted to the planting and mitigation standards of this section.

A final subdivision application shall not be approved until the required buffer management plan is approved.

A use and occupancy permit for a site that includes land in the Shoreline Development Buffer shall not be issued until the applicant:

Completes the planting required under an approved buffer management plan; or

Pending completion of the planting during the next planting season, provides financial assurance to cover the costs for:

Materials and installation; and

At least two years of monitoring and assurance of survivability.

Before final plat recordation or approval of a site plan for a multifamily, commercial, industrial, or institutional use, an applicant shall post permanent signs delineating the upland boundary of the Buffer at a ratio of at least one sign per lot or per 200 linear feet of shoreline, whichever is applicable. Each sign shall:

Be at least six inches in width and eight inches in height;

Be placed at a height of 4.5 feet, but not attached to a tree; and

Clearly state "Critical Area Buffer — No clearing or disturbance permitted."

Concurrent with the recordation of a final plat, an applicant shall record an easement or similar instrument for a buffer management plan.

Modified Buffer Area.

Purposes.

Modified Buffer Areas are portions of the Shoreline Development Buffer where patterns of development that existed as of December 1, 1989, prevent the Shoreline Development Buffer from fulfilling its natural functions. In such areas special regulations apply to accommodate limited use of shoreline areas while protecting water quality and wildlife habitat to the extent possible, and providing for mitigation measures where encroachment of the Shoreline Development Buffer takes place.

In Modified Buffer Areas, certain types of development activities are permitted to encroach into the Shoreline Development Buffer without the need for a variance.

The Shoreline Development Buffer requirements remain in effect for the depth of the buffer as specified in § 190-15.11.B. Only the requirements specified in this § 190-15.11.H are modified.

Establishment.

Modified Buffer Areas shall be designated by the County Council pursuant to the authority granted to the County by COMAR § 27.01.09.01. Any creation of or revision to a Modified Buffer Area boundary also requires approval by the Maryland Critical Area Commission.

Creation of or revision to Modified Buffer Areas shall be submitted and heard following the procedures for County Council applications for amendments to the Official Zoning Maps in Article VII of this chapter.

A request for individual property reclassification may not be considered, with the exception of commercial, institutional, or industrial sites, or those properties adjacent to an existing mapped Modified Buffer Area.

Standards for decision. The Council shall decide whether to grant approval based on the following findings and standards with respect to the community in which the mapping amendment is requested:

That existing patterns of residential, commercial, industrial and institutional development prevent the Shoreline Development Buffer from fulfilling its functions for water quality protection and conservation of wildlife habitat;

That the lots in the proposed Modified Buffer Area were created prior to August 13, 1989;

That the primary structures in the proposed Modified Buffer Area are located within the Shoreline Development Buffer;

That other development activities (i.e., accessory structures, access roads, septic systems, riprap and bulkheading, etc.) impact the Shoreline Development Buffer; and

That the Shoreline Development Buffer does not contain forest cover.

Applicability. The requirements in Subsection H.5 below apply to the following structures and uses in Modified Buffer Areas:

The construction of a primary dwelling or a primary structure;

The reconstruction, conversion, structural alteration, relocation or enlargement of, or attachment to, any primary dwelling or existing primary structure located on a lot of record as of August 13, 1989, and:

Located within 100 feet of the mean high-water line of tidal waters; or

Located within 100 feet of the edge of tidal wetlands or their tributary streams; and

Accessory structures.

Requirements.

Residential:

The encroachment into the Shoreline Development Buffer for any structure on an infill lot may be reduced to the average shoreward development setback of all existing primary structures within the community as depicted on the Official Zoning Maps.

New structures and other development activities shall be designed to minimize encroachment into the Shoreline Development Buffer, and in no case shall they be closer than 50 feet to mean high water, edge of tidal wetlands or tributary streams.

Nonresidential:

New commercial, industrial, or institutional uses shall not be located closer than 50 feet to mean high water except for water-dependent activities.

New, nonresidential accessory structures and impervious surfaces shall not extend closer to the water than 50 feet except for water-dependent activities.

Habitat protection areas. Development and redevelopment may not impact any habitat protection areas other than the Modified Buffer Area.

Natural vegetation. Natural vegetation shall not be removed in the Modified Buffer Area except that required by the proposed construction.

Lot coverage. The total lot coverage of the Critical Area portion of the site shall be in compliance with the applicable standards of § 190-15.6.C.

Mitigation. Development activity in a Modified Buffer Area shall be mitigated as follows:

The extent of the lot or parcel shoreward of the proposed development shall be required to remain in natural vegetation, or shall be established and maintained in vegetation, in accordance with § 190-15.11.D, E and F and per Subsection H.5.f.ii below.

Mitigation equal to an area two times the square footage of the proposed lot coverage in the Shoreline Development Buffer area will be required to be planted within the Shoreline Development Buffer. Should on-site planting of required vegetation be precluded, an off-site Shoreline Development Buffer location may be established. The applicant shall be responsible for filing a buffer management plan with the Planning Office.

Should the on-site or off-site Shoreline Development Buffer locations preclude the implementation of the preceding subsection, a fee-in-lieu shall be provided to the County adequate to ensure the restoration or establishment of an equivalent forest area in the Shoreline Development Buffer. The amount of the fee is established in the schedule of fees adopted by the County Council.

New lots. New lots created within Modified Buffer Areas are subject to full compliance with all development requirements as set forth in this chapter, including those for the Shoreline Development Buffer.

Administrative appeals. When granting permission to allow construction in the Shoreline Development Buffer as the result of an administrative appeal or variance, the Board of Appeals must find that the proposed construction meets the criteria set forth in this section for Modified Buffer Areas and may impose such conditions and restrictions as are deemed necessary to mitigate any potential adverse impacts upon adjacent properties, the Shoreline Development Buffer, and habitat protection areas.

15.12

Buffer management plans.

When required.

A buffer management plan is required for establishment of the Buffer or disturbance to the Buffer resulting from the issuance of a:

Variance;

Subdivision approval;

Site plan approval;

Shore erosion control permit;

Building permit;

Grading permit;

Special exception; or

Permit for installation, repair, or replacement of a septic system.

A permit or approval of a development activity will not be issued for a property that is the subject of a violation due to failure to apply for or comply with a buffer management plan.

A buffer management plan is not required for maintenance of an existing grass lawn or an existing garden in the Buffer.

Application.

The Planning Director shall publish application forms and a checklist of required information for:

Simplified buffer management plans;

Minor buffer management plans; and

Major buffer management plans.

The Planning Director may require that a buffer management plan be prepared by a registered professional forester or other qualified professional.

The application shall be filed with the Department of Planning and Zoning and decided by the Planning Director.

All buffer management plans shall also be in accordance with COMAR 27.01.09.01-3.

Standards for approval. A buffer management plan shall:

Establish appropriate measures for the protection and maintenance of the Buffer;

Prohibit the installation or cultivation of new lawn or turf in the Buffer;

Ensure planting in compliance with the amounts specified in § 190-15.11.D, E and F;

Ensure coverage of the Buffer with mulch or native ground cover or both until Buffer plantings are established; and

Ensure plantings are distributed throughout the Buffer to provide optimum habitat and water quality benefits.

Simplified buffer management plan.

A simplified buffer management plan is required for:

Providing access up to three feet wide to a private pier or shoreline that is up to three feet wide;

Manually removing invasive or noxious vegetation;

Filling to maintain an existing grass lawn;

Managing storm damage;

Repairing or replacing a septic system; or

Except for an emergency situation under Subsection D.2 below, cutting up to five dead, diseased, dying, invasive, or hazardous trees.

If cutting a tree in the Buffer is immediately necessary because of an emergency situation, the applicant shall submit a simplified buffer management plan to the Department of Planning and Zoning at the earliest possible time after the tree has been cut.

Minor buffer management plan. A minor buffer management plan is required for:

An application listed in § 190-15.12.A for which establishment of less than 5,000 square feet of the Buffer is required under § 190-15.11.D; or

An application listed in § 190-15.12.A for which mitigation of less than 5,000 square feet is required under § 190-15.11.E.

Major buffer management plan.

A major buffer management plan is required for:

An application listed in § 190-15.12.A for which establishment of at least 5,000 square feet of the Buffer is required under § 190-15.11.D; or

An application listed in § 190-15.12.A for which mitigation of at least 5,000 square feet is required under § 190-15.11.E.

For a major buffer management plan a single species may not exceed 20% of the total planting requirement.

Natural regeneration component of buffer management plan.

Where natural regeneration is a component of Buffer establishment, the buffer management plan shall include a component including the required items for natural regeneration on the application form and checklist published by the Planning Office.

The natural regeneration component shall also be in accordance with COMAR 27.01.09.01-4.

The financial assurance for implementing the buffer management plan:

Must be sufficient to cover the cost of planting an area equivalent to the area of proposed natural regeneration; and

Specifies that release of the financial assurance may not occur until the later of five years after the date of plan approval or when the natural regeneration area contains at least 300 native woody stems, on a per acre basis, that are at least four feet tall.

Report, inspection, and release of financial assurance.

Five years after the date of approval of a buffer management plan that includes natural regeneration, the applicant shall submit to the Department of Planning and Zoning a report that contains:

Photographs of the natural regeneration area;

An estimate of the number and average size of trees growing within the natural regeneration area on a per acre basis; and

A list of plant species found within the natural regeneration area.

If the natural regeneration area does not contain at least 300 native woody stems on a per acre basis that are at least four feet tall, the applicant shall implement a supplemental planting plan for two years.

Upon expiration of the 2-year supplemental planting term, the applicant shall submit to the Department of Planning and Zoning an updated report as described in Subsection G.2.a above.

At any time, if the Planning Director determines that natural regeneration is not likely in the time anticipated in the buffer management plan and that applicant is no longer available to complete performance of the buffer management plan, the County may use the financial assurance to implement the plan.

15.13

Shoreline stabilization measures.

Plan required.

A shore erosion protection works plan shall be prepared when measures are proposed to protect eroding portions of the shoreline. Improvements to protect property against erosion shall consist of nonstructural shoreline stabilization measures that preserve the natural environment, such as marsh creation, except in areas:

Designated by Maryland Department of the Environment (MDE) maps as appropriate for structural shoreline stabilization measures; or

Where MDE determines that nonstructural measures are not feasible, including areas of excessive erosion, areas subject to heavy tides, and areas too narrow for effective use of nonstructural shoreline stabilization measures.

For purposes of this section, the terms "structural" and "nonstructural" shall be determined by the MDE.

For shoreline stabilization measures that will disturb an area of 5,000 square feet or more an erosion and sediment control plan shall be submitted to the Soil Conservation District.

Preparation and submittal.

A zoning certificate from the Office of Permits and Inspections is required prior to construction of shore erosion control measures.

The shore erosion control plan shall be submitted to the Office of Permits and Inspections with the zoning certificate application. The Department of Planning and Zoning shall review the shore erosion control plan and supporting information for compliance with this section.

The plan shall include:

A copy of all relevant, federal and state permits, including, but not limited to, those approvals by MDE and the U.S. Army Corps of Engineers.

Specifications for the proposed shore erosion protection, including information on the design storm, calculated wave run-up, required stone weight, and other information required for review by Talbot County, MDE and/or the U.S. Army Corps of Engineers.

Any other information necessary for review of the plan in relation to the criteria in this Code to include, but not be limited to, erosion and sediment control plan, stormwater management plan, floodplain management compliance, impacts to historical property or sites, environmental impacts to wildlife or aquatic habitats and oyster bars.

Buffer management plan delineating existing vegetative cover that would be removed and how it would be mitigated. Shore erosion control requiring grading or clearing shall be mitigated at a ratio of 1:1.

Location and quantity of fill materials.

Plans for restoration of disturbed area.

Copy of review comments from the Critical Area Commission.

Criteria for plans. The following criteria shall be used in developing and reviewing shore erosion control plans. These criteria shall be applied based on the written determination from MDE as to whether the project is structural or nonstructural:

Use structural control measures only when nonstructural control measures would be impractical or ineffective;

Where structural erosion control is proposed, use measures that best provide for conservation of fish and plant habitat;

Use nonstructural measures in areas of erosion where they would be a practical and effective method of erosion control;

Structural erosion measures are not to be encouraged in areas where no significant erosion occurs;

If significant alterations in the characteristics of a shoreline occur, the measure that best fits the change may be used for sites in that area; and

Habitat enhancement practices, such as dredge fill and marsh creation, are encouraged.

15.14

Water-dependent facilities.

Uses included. As indicated in Table IV-1, Land Uses, the following uses, which use water for transportation and derive economic benefits from shore access, may be allowed:

Private piers, community piers and related boat facilities;

Marinas; and

Water-oriented public recreation, education, research areas.

Additional regulations. For the above uses, in addition to the specific requirements for the uses in Article IV and, where applicable, the findings and requirements for special exceptions in Article VII, the following regulations apply which the approving authority shall review as part of the development plan or special exception:

Required findings. The following findings must be made:

The request is consistent with the intent and purpose of the Maryland Chesapeake Bay Critical Area Law;

The activity shall have minimal individual and cumulative impact on water quality and fish, wildlife, and plant habitat in the Critical Area through design and location criteria;

The activity shall be water-dependent;

The project shall meet a recognized private right or public need;

Non-water-dependent structures or operations associated with water-dependent projects or activities shall be located outside the Buffer with sufficient area provided for these associated structures or operations.

Requirements. The following requirements must be met:

The activity shall not alter existing water circulation patterns or salinity regimes;

The activity shall maintain or improve the flushing characteristics of the water body adjacent to the activity;

Wetlands, submerged aquatic plant beds, or other areas of important aquatic habitats shall not be disturbed except for approved research projects;

The operation procedures shall preclude any adverse impacts to water quality that may occur as a result of the activity, such as non-point-source runoff, sewage discharge from land activities or vessels, or from boat cleaning and maintenance operations;

The operation procedures shall ensure that shellfish beds will not be disturbed or be made subject to discharge that will render them unsuitable for harvesting;

The construction procedures shall ensure that dredging will be conducted in a manner, and using a method, which causes the least disturbance to water quality and aquatic and terrestrial habitats in the area immediately surrounding the dredging operation or within the Critical Area;

The construction procedures shall ensure that dredged spoil will not be placed within the Shoreline Development Buffer or elsewhere in a habitat protection area except as necessary for:

Backfill for permitted shore erosion protection measures;

Use in approved vegetated shore erosion projects; and